[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 218--FOREIGN
INTELLIGENCE INFORMATION (``THE WALL'')
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
APRIL 28, 2005
__________
Serial No. 109-16
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
______
U.S. GOVERNMENT PRINTING OFFICE
20-877 WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512�091800
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona ADAM SMITH, Washington
MIKE PENCE, Indiana CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida MAXINE WATERS, California
STEVE CHABOT, Ohio MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
Jay Apperson, Chief Counsel
Elizabeth Sokul, Special Counsel on Intelligence
and Homeland Security
Jason Cervenak, Full Committee Counsel
Michael Volkov, Deputy Chief Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
APRIL 28, 2005
OPENING STATEMENT
Page
The Honorable Steve Chabot (presiding), a Representative in
Congress from the State of Ohio, and Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
Mr. Patrick J. Fitzgerald, United States Attorney for the
Northern District of Illinois, U.S. Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 6
Mr. David S. Kris, Vice President for Corporate Compliance, Time
Warner Corporation
Oral Testimony................................................. 15
Prepared Statement............................................. 17
Ms. Kate Martin, Director, Center for National Security Studies
Oral Testimony................................................. 51
Prepared Statement............................................. 52
Mr. Peter Swire, Professor of Law, Ohio State University
Oral Testimony................................................. 60
Prepared Statement............................................. 63
APPENDIX
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a
Representative in Congress from the State of Virginia, and
Ranking Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 91
Letter from William E. Moschella, Assistant Attorney General,
U.S. Department of Justice to the Honorable Dianne Feinstein... 92
Letter from William E. Moschella, Assistant Attorney General,
U.S. Department of Justice to the Honorable Arlen Spencer...... 102
The Use of Section 218 in Terrorism Investigations............... 109
Submission by Peter Swire entitled ``The System of Foreign
Intelligence Surveillance Law,'' 72 George Washington Law
Review 1306 (2004), available at http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=586616.................................. 115
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 218--FOREIGN
INTELLIGENCE INFORMATION (``THE WALL'')
----------
THURSDAY, APRIL 28, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:30 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Steve
Chabot presiding.
Mr. Chabot This is the Subcommittee on the Constitution.
We'll come to order.
[Discussion off the record.]
Mr. Chabot. Subcommittee on Crime, I've been informed.
[Laughter.]
I'm the Chair of the Subcommittee on the Constitution. I'm
so used to saying that. I apologize.
This is the Subcommittee on Crime, Terrorism, and Homeland
Security. And the Chair of the Committee, Howard Coble, is
unable to attend this afternoon; so he asked me to stand in his
place. And I'll try to remember which Committee this is for the
rest of the afternoon. So I apologize for that.
This is this Committee's second hearing today on the USA
PATRIOT Act. This hearing focuses on section 218 and its effect
on ``The Wall'' that prevented our law enforcement agencies and
intelligence community from communicating.
The Foreign Intelligence Surveillance Act limited
surveillance and physical search orders to instances where
authorities certified that ``the purpose'' of the order was for
foreign intelligence gathering. Subsequent case law and agency
guidance interpreted the ``purpose'' requirement to mean that
foreign intelligence gathering had to be the primary purpose.
As a result, law enforcement and the intelligence community
came to believe that sharing information or coordinating
efforts would preclude the ability to obtain court approval for
appropriate surveillance.
The effect of this interpretation was that the metaphorical
``wall'' was built; which prevented vital communications, that
some argue contributed to the failure of Government officials
to share vital information that could possibly have prevented
the 9/11 attacks.
The witnesses this afternoon will examine the effects of
section 218 on the Foreign Intelligence Surveillance Act and
``The Wall.'' With this background on FISA, I look forward to
hearing testimony from the witnesses; and now turn to the
distinguished Ranking Member of this Committee, Bobby Scott,
for his opening statement.
Mr. Scott. Thank you. And I thank you for chairing the
hearing, and for holding this hearing on the issue that has
been foreshadowing much of our discussion about the PATRIOT
Act: the extent to which we have dismantled the so-called
``wall.''
We've broken down the traditional wall between foreign
intelligence gathering--particularly foreign intelligence--and
criminal proceedings, in order to give Government broad
authority to collect and share information, mostly secretly.
And so I'm concerned that we have blurred the traditional line
between protecting our privacy and freedoms.
While I agree that some lifting of traditional restrictions
in this area may be justified for Government to better use the
authorities it already has in many instances, I'm also mindful
that those restrictions were placed there for a good reason. We
have seen, with COINTELPRO, Watergate, FBI spying on Martin
Luther King, Jr., and other incidents, what abuses can occur
when we do not keep tight enough rein on the Government's use
of extraordinary powers. We shouldn't have to experience those
problems again to ensure that the abuses do not occur.
When we operate in the foreign intelligence area, we have
traditionally given broad latitude for the use of extraordinary
investigatory tools abroad, particularly involving non-U.S.
persons. But when we turn those tools inward, we run the risk
of including U.S. persons in some of the investigative sweeps
that occur, unless we have sufficient barriers to prevent
unwarranted extensions.
Now, since much of the foreign intelligence side is
secretive and ex-parte, with only Government participation, and
with no public oversight or review, we don't have the
traditional notice, challenge, and public scrutiny oversight
that we have on the criminal side. So we've used ``The Wall''
as protection. That is, if you get something on the foreign
intelligence side, you can't use it on the criminal side.
With ``The Wall'' gone, I believe we should focus on
establishing sufficient notice, challenge, and public reporting
requirements, to ensure that foreign intelligence operations do
not unduly creep into the domestic activities of U.S. persons.
Now, some of our law enforcement officials seem to feel
that the mere inclusion of information regarding uninvolved,
innocent persons amounts to ``no harm, no foul,'' if they're
not arrested or subjected to having to challenge the
inclusion--excuse me, the incursion or other process; a sort of
``What they don't know won't hurt them'' philosophy. Yet if
overly broad information is collected, it can also be spread
all over town, greatly increasing the likelihood that any of
your neighbors, who may happen to be law enforcement, military,
or intelligence employees, will know private things about you
that you thought were private and known only to those whom you
knowingly gave the information.
So the problem with ``The Wall'' being broken down isn't
just the improper acquisition and use of the information; but
it's also preventing people from having it in the first place,
other than those you gave it to with an expectation of privacy.
So Mr. Chairman, I look forward to the testimony of our
witnesses on the extent to which our privacies and freedoms are
being protected despite the dismantling of ``The Wall'' through
the USA PATRIOT Act and other measures, and what safeguards are
needed to prevent the creep of overly intrusive foreign
intelligence operations and powers into the privacy of our
homes. Thank you, Mr. Chairman.
Mr. Chabot. Thank you very much. And it's the practice of
the Subcommittee to swear in witnesses who are appearing before
it. So if you would, all please rise and raise your right
hands.
[Witnesses sworn.]
Mr. Chabot. Thank you. Let the record show that each of the
witnesses answered in the affirmative.
And at this time, I'd like to introduce this afternoon's
very distinguished panel. Our first witness is Patrick J.
Fitzgerald, United States Attorney for the Northern District of
Illinois. Prior to his appointment to this position by
President George W. Bush, Mr. Fitzgerald served for 13 years as
an Assistant U.S. Attorney in the United States Attorney's
Office for the Southern District of New York, General, of the
United States. He graduated from Amherst College, Phi Beta
Kappa, with a bachelor's degree in economics and mathematics,
and from Harvard Law School. We welcome you here this
afternoon, Mr. Fitzgerald.
Our second witness is David Kris. David Kris joined the
Department of Justice after clerking for U.S. Court of Appeals
Judge Stephen S. Strott. For 8 years, he served in the criminal
division in the U.S. Attorney's Office for the District of
Columbia. In 2000, Mr. Kris was named Associate Deputy Attorney
General, with responsibilities for managing the Justice
Department's national security programs. He attended Haverford
College, and Harvard Law School. In June 2003, Mr. Kris joined
Time Warner Inc., as vice president in the legal department.
And we welcome you here this afternoon, Mr. Kris.
Our third witness would be Kate Martin. Ms. Martin has been
Director of the Center for the National Security Studies since
1992. And prior to assuming her current role, she served as
litigation director for the center. She graduated from the
University of Virginia Law School, and from Pomona College,
with a B.A. in philosophy. And we welcome you here this
afternoon, Ms. Martin.
And our fourth and final witness this afternoon will be
Peter Swire, a professor of law at the Ohio State University's
Morris College of Law. I thank Professor Swire for returning.
He has graciously agreed to testify for a second time in this
series of PATRIOT Act hearings.
And also, coming from Ohio State, we ought to give you a
special recognition for that, as well. Cincinnati's not too far
from there.
Prior to joining the faculty at Ohio State University, Mr.
Swire served in the Clinton Administration as chief counselor
for privacy in the Office of Management and Budget. Professor
Swire is a graduate of Princeton University, and Yale Law
School. After graduating from law school, he clerked for Judge
Ralph K. Winter, Jr., of the United States Court of Appeals for
the Second Circuit.
And so we have a very distinguished panel here this
afternoon. And as I'm sure you're all aware of, we have a
lighting system here. We'd ask each witness to stay within the
5-minute time frame, if at all possible. There'll be a green
light that'll stay on for 4 minutes; a yellow light will tell
you you've got about a minute to wrap up; and then, the red
light will come on. And we'll give you a little leeway, but if
you could stay within that we'd really appreciate it.
And we'll begin this afternoon with you, Mr. Fitzgerald.
TESTIMONY OF PATRICK J. FITZGERALD, UNITED STATES ATTORNEY FOR
THE NORTHERN DISTRICT OF ILLINOIS, DEPARTMENT OF JUSTICE
Mr. Fitzgerald. Thank you, Mr. Chairman and Ranking Member
Scott. I sit here now, having been working on terrorism cases
in the field for about 11 years. And seven of those years, I
worked as a terrorism prosecutor while ``The Wall'' was up; and
four I've worked since it has been down. And I can tell you,
then, 4 years ago, when ``The Wall'' was taken down, I could
tell you my firm belief that that was the single most important
change made, not just in the PATRIOT Act, but in any law that
affected our national security. It is extremely valuable. Four
years later, I believe that even more.
Let me give you a practical example of how ``The Wall''
worked. in 1996, when we had an investigation of Osama Bin
Laden, there were limits on certain people who we could talk to
about certain topics. When we talked to private citizens, New
York City police officers, law enforcement generally, even the
CIA, there were basically no limits on what we could ask and
what we could learn, if we had the clearance.
When we went overseas, we could talk to foreign citizens,
foreign police, foreign spies. We could ask whatever we wanted.
And if they gave us the answers, we could take it.
When we dealt with Al-Qaeda members, and we did--both
overseas and in the United States, as part of our
investigation, we talked to Al-Qaeda members and made them
witnesses--we not only could ask everything we wanted to, we
did. And whatever information we got, we could use.
The people we had limits on speaking to were the FBI agents
working the intelligence investigation of Osama Bin Laden right
across the street from us in New York, because of ``The Wall'':
the fear we might learn what they had learned from FISA.
In other cases in many other districts, there were
prosecutors who did not even know there were intelligence
investigations going on, because the people who did those
investigations did not even know who the prosecutors were, or
never talked to them.
And let me give you a concrete example of how dangerous
that could be. After the 1998 bombings of two embassies,
American embassies, in Kenya and Tanzania, we had in the grand
jury--and it's now public--a person by the name of ``Ali
Mohamed,'' a U.S. citizen from California who used to be in the
American military and the Egyptian military. At the time, we
suspected he had a role in the embassy bombings.
He went into the grand jury; he lied. We believed he lied.
We had no link then to the bombings. And we knew from him that
if we did not arrest him that day, he was flying overseas. And
we were afraid that we would never see him again. We also knew
that a search had happened, under the FISA statute, of Ali
Mohamed prior to that. We had no idea what was taken. We didn't
know the contents, the results of that search.
We had to make a decision whether to arrest him or not--
that night, with many of the cards in our hand unknown to us,
although known to the FBI. And my prior boss, Mary Jo White,
made the right decision. We arrested Ali Mohamed. He would
later plead guilty and admit to us that he had been around for
the training of the top Al-Qaeda leadership, including Bin
Laden and Ayman Zawahiri. He had trained some of the people who
would later be involved in the World Trade Center bombing. He
had done the surveillance, the casings, of the American
embassies in Tanzania and Kenya. He had shown photographs and
sketches of the embassies to Osama Bin Laden himself. And he
told us that if we had not arrested him that evening, he would
have left the country and rejoined Osama Bin Laden in
Afghanistan.
Because of ``The Wall,'' we made a decision only knowing
half the facts we needed to know. And we could easily have let
him rejoin Osama Bin Laden in a cave, fighting our troops;
rather than being in an American prison facility. That, to me,
illustrates how crazy ``The Wall'' was. We could know what Al-
Qaeda knew; we couldn't know what the FBI knew.
When the PATRIOT Act included section 218, that wall
changed. And now, when we sit down in my district, the Northern
District of Illinois, and work together with the FBI, we sit
down and talk about our criminal investigations; we talk about
the intelligence investigations. And we try to make sure that
we're doing the right thing; that we're coordinated. And we
move forward.
I, too, am concerned about civil liberties and privacy. In
my view, the way we're working, we're doing things coordinated.
We're talking things through. We're making sure the law is
followed. I do not see abuses of privacy or civil liberties.
What I do see is that the right hand knows what the left hand
is doing. And I think we do a much better job. Thank you.
[The prepared statement of Mr. Fitzgerald follows:]
Prepared Statement of Patrick J. Fitzgerald
Mr. Chabot. Thank you very much.
Mr. Kris, you're recognized for 5 minutes.
TESTIMONY OF DAVID S. KRIS, VICE PRESIDENT FOR CORPORATE
COMPLIANCE, TIME WARNER CORPORATION
Mr. Kris. Mr. Chairman, Ranking Member Scott, thank you for
the opportunity to testify about the FISA ``wall'' and the role
of the PATRIOT Act in tearing it down.
As you know, I worked on these matters when I was at the
Department of Justice. And although I've been out of Government
since May of 2003, I have maintained an interest in national
security issues. And I need to emphasize at the very outset
that, in appearing before you today, I'm doing so only as an
individual, and not as a representative of any former or
current employer, including the Department and Time Warner.
My written testimony lays out in detail the legal
background and the history of the FISA ``wall.'' And subject to
your questions, I don't intend to repeat any of that material
here. Instead, in keeping with the 5-minute rule, I would like
to make two brief points.
The first is that, regardless of your views on ``The Wall''
or the PATRIOT Act, whether you think it's a good thing or a
bad thing, you should do something about the upcoming sunset of
section 218.
[Sound of buzzer.]
Mr. Chabot. Go ahead.
Mr. Kris. I thought maybe my time had run out.
Mr. Chabot. No. That just means that the House is going
back into session. So there could be votes at some point from
here on.
Mr. Kris. Right.
Mr. Chabot. But don't worry about it.
Mr. Kris. The reason that you should do something is
because, if you do nothing and just allow the sun to set, I
predict that you will thereby expand, rather than contract,
Governmental power in this area. And the reasons for that are
laid out in detail in my written testimony.
Mr. Scott. Say that again.
Mr. Kris. I predict that, if you allow the sun to set on
section 218, you will thereby expand the Government's power in
this area, for the reasons that are in my testimony. And I
don't hear Mr. Fitzgerald asking for any broader authority. And
indeed, even if he were, I don't think that the gains from that
would be----
[Repeated sounds of buzzer.]
Mr. Kris. This is----
Mr. Chabot. Now they're just doing that to annoy us. So go
ahead.
Mr. Kris. I don't think the gains would be worth the
attendant confusion. So my first point is that you should do
something. And I guess that's why you're holding these
hearings.
My second point is one that I think will strike you as
perhaps a little strange, because it, I think, flies in the
face of conventional wisdom. But nonetheless, I believe there
is substantial reason to think that civil liberties are better
protected with ``The Wall'' down, than they are with ``The
Wall'' up.
And here's why: With ``The Wall'' down, DOJ prosecutors--
and there are a lot of them; like Mr. Fitzgerald, they're smart
and energetic--enjoy full legal access to domestic national
security investigations and matters. And from that lawyer
access, if it's done right, comes lawyer oversight of these
investigations. And lawyer oversight is how this country has
protected civil liberties in the area of national security
since at least the Church Commission report in the 1970's. And
obviously, it is today the civil liberties backbone of
Executive Order 12333.
So tearing down ``The Wall'' has the effect of opening up
these investigations to a substantially larger pool of lawyers.
And I think that is a good thing for civil liberties.
On the other hand, if ``The Wall'' is up, DOJ prosecutors
lose a substantial amount of that access and, in particular,
their ability to recommend law enforcement solutions to
national security problems. That, after all, is the very
essence of ``The Wall.''
And yet, I think there will always be some cases in which a
national security threat must be dealt with through
incarceration or detention of one or more individuals. That is
just the nature of the business: Sometimes you have to lock
somebody up. And in those cases, ``The Wall'' has a tendency to
channel the Government toward methods of achieving that kind of
detention and incarceration that do not require the involvement
of civilian law enforcement personnel.
And regardless of what the alternatives to civilian
prosecution were in 1978, today, obviously, one of the
alternatives is military detention, or tribunals. Now, I hasten
to state that I am not saying there's anything wrong with
military justice, one way or the other. I'm not taking any
position on that matter. But I am saying, I think, that from a
pure civil liberties perspective, at least after the Supreme
Court's decision in Hamdi, it's clear that military justice
need not involve all of the same due process protections as
civilian justice. And so I think for that reason as well, there
is a good basis for expecting that civil libertarians should
prefer ``The Wall'' to be down.
One last caveat. I see my time has almost expired. I don't
mean to raise the specter of mass enemy combatant designations
if ``The Wall'' is rebuilt. That would be silly. But I do mean
to say this. ``The Wall'' has a tendency to deprive prosecutors
of their seat at the table when the Government comes together
in an inter-agency forum to decide what to do in a case--let's
say, the Moussaoui case or something like it. And anyone who
has ever been through a contentious inter-agency meeting in the
Executive Branch, as I have, knows one iron-clad rule of the
bureaucracy. And that is that the absent agency rarely
prevails. Thank you very much.
[The prepared statement of Mr. Kris follows:]
Prepared Statement of David S. Kris
Mr. Chabot. Thank you.
Ms. Martin, you're recognized for 5 minutes.
TESTIMONY OF KATE MARTIN, DIRECTOR,
CENTER FOR NATIONAL SECURITY STUDIES
Ms. Martin. Thank you, Mr. Chairman and Ranking Member
Scott, for the opportunity to testify here before you today. I
first of all want to make clear that, as civil libertarians,
we're not in favor of ``The Wall''; and indeed, have never been
in favor of ``The Wall.'' In the 2 weeks after September 11th,
we testified before the Congress in favor of more and better
information sharing between intelligence and law enforcement
communities.
I do think, though, it's important to note that the effect
of section 218 is slightly more complicated, I think, than
simply to say that it tore down ``The Wall.'' Section 218--I'm
sorry, the purpose requirement, which was changed by section
218, was interpreted by the Justice Department before September
11th as prohibiting contact between prosecutors and the FBI; an
interpretation, by the way, which the FISA Court of Appeals
after September 11th said was wrong.
The PATRIOT Act contains another section, 504, which
explicitly provides that all FISA information may be shared
with all law enforcement. And one of the things that I think is
necessary in the current effort to find out about the use of
the PATRIOT Act is to ask the question of the Justice
Department about why section 218 is necessary, given section
504. What is it that section 218 adds in dismantling ``The
Wall'' that 504 doesn't already give?
And the reason why it's important to ask that question is
that section 218 doesn't simply tear down ``The Wall.'' It
makes FISA surveillance much more broadly available than it was
before the passage of the PATRIOT Act. And it is that aspect of
section 218 that I'd like to briefly focus on today.
Section 218--before September 11, it was understood that if
the Government started out with the primary purpose of making a
criminal case against an individual, it must use the criminal
surveillance authorities; not the Foreign Intelligence
Surveillance Act. Section 218 changed that, and allows the
Government to now use the broad and secret authorities of the
FISA when its primary purpose is not to obtain foreign
intelligence information.
I suggest that one of the questions we don't yet have the
answer to is how and why and when the Justice Department and
the FBI decide to use the secret FISA authorities instead of
the regular criminal authorities. And that's an important
question to obtain the answer to.
Most importantly, I think that in looking at section 218
it's important for this Committee to look more broadly at the
use, and possible abuse, of the FISA authorities; especially
given the recent revelations about the secret FISA search of
Brandon Mayfield, the Muslim lawyer in Portland, Oregon.
As the Committee knows, the FISA authorizes secret searches
and secret wiretaps, not delayed-notice searches of the kind
that are authorized under section 213 of the PATRIOT Act. It
authorizes such secret searches and secret wiretaps with less
probable cause of criminal activity than is authorized in the
fourth amendment in criminal investigations.
But there are two additional key features of FISA
surveillance. The first is that in most instances, when
Americans are targeted for secret searches and secret wiretaps
under the FISA, they are never informed by the Government that
the FBI has been inside their house, has copied their computer
drives or, in some instances, seized their DNA. They are never
informed that the FBI has been listening to their telephone
conversations.
The second key difference between FISA surveillance and
criminal surveillance is that when individuals are indicted,
after having been targeted by FISA surveillance, then they are
in fact informed. That's the only time they are informed of
FISA surveillance. But even then, they are never provided with
any kind of opportunity to look at any portion of the original
application for the FISA warrant.
And the effect of that means that there is no adversarial
judicial review of the propriety of a FISA search. It is true,
of course, that a FISA judge initially approves a FISA
surveillance. But on the criminal side, what we rely on to make
sure that the fourth amendment was in fact complied with is
after-the-fact judicial review of the search and the probable
cause, in which the target of the search has a fair chance to
participate and challenge whether or not there was in fact
probable cause to begin with. That opportunity is missing in
the FISA context.
And I would suggest that this Committee look into two
possible amendments to address the problem of the searches
being secret forever, and the second problem of no adequate
chance to challenge the legality of the search when someone is
indicted using FISA evidence.
[The prepared statement of Ms. Martin follows:]
Prepared Statement of Kate Martin
Thank you, Mr. Chairman, for the honor and opportunity to testify
today on behalf of the Center for National Security Studies. The Center
is a civil liberties organization, which for 30 years has worked to
insure that civil liberties and human rights are not eroded in the name
of national security. The Center is guided by the conviction that our
national security can and must be protected without undermining the
fundamental rights of individuals guaranteed by the Bill of Rights. In
our work on matters ranging from national security surveillance to
intelligence oversight, we begin with the premise that both national
security interests and civil liberties protections must be taken
seriously and that by doing so, solutions to apparent conflicts can
often be found without compromising either. The Center has worked for
more than twenty years to protect the Fourth Amendment rights of
Americans to be free of unreasonable searches and seizures, especially
when conducted in the name of national security. For example, the
Center, then affiliated with the American Civil Liberties Union, was
asked to testify before Congress when the Foreign Intelligence
Surveillance Act was first enacted. In 1994, when Congress amended the
Act to include physical searches, we were again asked to testify about
the civil liberties and constitutional implications of that
legislation.
We appreciate the role this Committee has taken in connection with
the USA Patriot Act, beginning with the work that was done before its
enactment to build in protections for civil liberties while the
government's surveillance powers were increased. Since its enactment,
the Committee has vigorously pursued information from the Justice
Department concerning the use of the Act, and we commend the Committee
for now holding this series of oversight hearings.
However, we do not believe that the Congress yet has enough
information to make permanent certain key provisions of the Patriot
Act, particularly section 218 and those relating to information-
sharing. (My testimony today does not address the specific provisions
of the Patriot Act relating to information-sharing, sections 203 and
905, as that is the subject of another hearing. However, we do not
believe that the Congress yet has adequate information about how the
law enforcement community, including the FBI, determines what
information about Americans should be shared with the CIA and other
intelligence agencies, what specific safeguards exist against abuse, or
how the agencies insure that they recognize and act appropriately on
important information. For further information, please see the article
on section 203 of the Act at www.patriotdebates.com.)
The subject of today's hearing is section 218 of the Patriot Act
which amended the purpose requirement of the Foreign Intelligence
Surveillance Act (FISA) and is sometimes described as having dismantled
the ``wall'' between law enforcement and intelligence. While it is
clear that more and better coordination is needed between law
enforcement and intelligence on counterterrorism, it is not clear that
amending the purpose requirement of the FISA was necessary to achieve
that. More importantly, it is not clear whether the government is now
using the extraordinary secret search and seizure powers under the FISA
in ways that are both effective and consistent with constitutional
requirements. The recent case of Brandon Mayfield, the innocent lawyer
in Oregon jailed for two weeks, apparently because of his religion,
raises serious and unanswered questions. The Committee should demand
more information concerning the use of the FISA search and seizure
authorities before extending section 218. If section 218 is extended,
Congress should amend FISA to protect due process and Fourth Amendment
rights.
My testimony today will also discuss the separate but related issue
of the relationship between law enforcement and intelligence in
investigating Americans and others inside the United States, and the
so-called ``wall.'' The Center has long advocated the necessity of
tying domestic intelligence authorities to law enforcement to insure
that government surveillance is targeted against actual wrong-doers and
not against political or religious minorities. As FBI Director Mueller
said, ``there are no clear dividing lines that distinguish criminal,
terrorist and foreign intelligence activity. Criminal, terrorist and
foreign intelligence organizations and their activities are often
inter-related or interdependent.'' \1\ However, the most recent
proposal for further intelligence reorganization recommends
consideration of establishing a new MI5-like domestic intelligence
agency presumably divorced from law enforcement. The recommendation
made by the Commission on the Intelligence Capabilities of the United
States Regarding Weapons of Mass Destruction to move the FBI's
counterterrorism and counterintelligence operations under the new
Director of National Intelligence raises serious questions about moving
control of domestic intelligence away from the Attorney General to the
DNI. We believe that doing so would be a mistake from the standpoint of
both civil liberties and effective counterterrorism.
---------------------------------------------------------------------------
\1\ Oversight of the USA Patriot Act, Hearings Before the Senate
Comm. On the Judiciary, 109 Cong. (Apr. 5, 2005).
---------------------------------------------------------------------------
THE ``WALL'' BETWEEN LAW ENFORCEMENT AND INTELLIGENCE
The existence of a legal ``wall'' preventing law enforcement and
intelligence agencies from sharing vital information about suspected
terrorists is often cited by government officials as the main reason
the CIA and FBI didn't discover and stop the September 11 hijackers.\2\
The Justice Department made this argument when it sought to amend the
purpose requirement of the Foreign Intelligence Surveillance Act in the
Patriot Act and Attorney General Ashcroft repeated it when defending
the pre-9/11 intelligence failures before the 9/11 Commission. But the
existence of legal barriers to sharing information before 9/11 was
highly exaggerated, and even the Justice Department has come to
recognize that the real problems were bureaucratic failures of
coordination and communication between and within the FBI and CIA.
---------------------------------------------------------------------------
\2\ Parts of this testimony were adopted from my article on
``Domestic Intelligence and Civil Liberties,'' SAIS Review of
International Affairs Winter-Spring 2004, Volume 24, No. 1, available
at http://www.saisreview.org/PDF/24.1martin.pdf.
---------------------------------------------------------------------------
The term ``wall'' was used as shorthand for the understanding that
the fundamental principles limiting government surveillance of
Americans apply differently in the case of law enforcement or
intelligence. Such principles include the recognition that there are
important consequences for individuals depending on the government's
purpose in initiating surveillance; in particular whether it intends to
use the fruits of its surveillance against an individual to prosecute
and jail him. They include the teaching of the Fourth Amendment that
the best protection against abuse of surveillance powers is to require
the government to have some evidence of criminal activity before
investigating an individual. Requiring some criminal predicate for
government investigations in turn helps protect citizens from being
targeted based on dissent, religion, or ethnicity, and helps to insure
that surveillance and intelligence powers are not used for political
purposes.
The classic understanding of foreign intelligence gathering--the
collection of information that policymakers need concerning the
capabilities and intentions of foreign governments and groups--is not,
however, linked to a criminal predicate. The distinction between the
two--investigating possible wrong-doing by individuals and spying on
foreign powers--was the fundamental rationale for separating the
functions of law enforcement and intelligence agencies. It was also
understood that Fourth Amendment rules governing searches and seizures
in the United States should be most protective when criminal sanctions
against an individual are possible.
Thus, there were separate authorities written to govern law
enforcement and foreign intelligence investigations inside the United
States. In particular, since 1978, wiretapping to investigate crimes
has been governed by one federal statute, while the Foreign
Intelligence Surveillance Act (FISA) governs wiretapping ``agents of a
foreign power'' inside the United States for the purpose of gathering
foreign intelligence. Similarly, the Attorney General's Guidelines
governing FBI activities, written by Attorney General Levi in 1976 and
since amended, provided one set of rules for criminal investigations
and another for gathering foreign intelligence relating to espionage or
international terrorism inside the United States. These authorities
allowed the government much wider latitude in gathering information
about Americans and keeping it secret for foreign intelligence purposes
than that which is allowed for law enforcement purposes. They also
provided much less judicial oversight of the gathering of information
for foreign intelligence purposes than for criminal investigations.
While the pre-September 11 framework assumed differences between
law enforcement and intelligence, everyone, including the civil
liberties community, always recognized the necessity of effective
coordination between the intelligence community and law enforcement to
fight terrorism.\3\ Indeed, for all the talk of a ``wall,'' the pre-
September 11 legal regime acknowledged that terrorism-like espionage,
and to a lesser extent international narcotics trafficking--is both a
law enforcement and intelligence matter. Indeed, no statutory ``wall''
prohibited sharing information between the law enforcement and
intelligence communities; to the contrary, the law expressly provided
for such sharing. While the Foreign Intelligence Surveillance Act was
interpreted to mean that prosecutors could not direct foreign
intelligence wiretaps, as opposed to criminal wiretaps, the text of
FISA expressly contemplated that FISA surveillance may uncover evidence
of a crime. Before September 11, FISA information had been used in many
criminal cases.
---------------------------------------------------------------------------
\3\ See, for example, Kate Martin's September 24, 2001 testimony
before the Senate Select Committee on Intelligence on the Legislative
Proposals in the Wake of September 11, 2001 Attacks, including the
Intelligence to Prevent Terrorism Act of 2001, available at
www.cnss.org/kmtestimony0924.pdf.
---------------------------------------------------------------------------
Moreover, none of the 9/11 failures were caused by the inability of
prosecutors to direct FISA surveillance. The reports of the
Congressional Joint Inquiry and 9/11 Commission describe many missed
opportunities in detail. Although there were widespread bureaucratic
misunderstandings about legal restrictions on information sharing,
nowhere do the reports identify any statutory prohibition on
information sharing as at fault. Instead, the failures resulted from
the FBI and CIA failing to know what they knew. For example, while
lower level FBI agents had important information about Al Qaeda
associates in the United States that they shared with Headquarters, the
higher-ups failed to understand the significance of the information,
much less act on it. Similarly, the CIA knew for almost two years about
the U.S. visa issued to an Al Qaeda suspect who would hijack a plane on
September 11, but failed to inform the FBI or appreciate the importance
of the information. This was a failure of analysis and coordination; it
was not caused by legal restrictions on access to information.
THE PATRIOT ACT AND SECTION 218.
Before September 11, it was understood that if the government
started out with the primary purpose of making a criminal case against
an individual, it must use the criminal surveillance authorities, not
FISA.\4\ In the Patriot Act, the Justice Department asked Congress to
repeal the fundamental requirement in FISA that its secret and
extraordinary procedures be used only when the government's primary
purpose is to collect foreign intelligence. Through section 218 of the
Patriot Act, the Justice Department sought to allow the use of FISA's
extraordinary powers when the government targets an individual for
criminal prosecution or otherwise as long as foreign intelligence
gathering was a significant purpose of the surveillance. Of course,
since FISA only applies when there is probable cause that the target is
an ``agent of a foreign power'' or foreign power, the significant
purpose requirement will always be met when the other statutory
requirements are met. (FISA authorizes surveillance of all individuals
in the United States, both U.S. persons and non U.S. persons who meet
the definition of ``agent of a foreign power.'')
---------------------------------------------------------------------------
\4\ But see In re: Sealed Case No. 02-001, Foreign Intelligence
Surveillance Court of Review, 18 November 2002.
---------------------------------------------------------------------------
In seeking section 218, the Department complained that FISA barred
the sharing of information with prosecutors and law enforcement
investigators. However, even if legal rather than bureaucratic
obstacles existed to sharing information, Congress could have
adequately addressed the problem simply by providing that FISA
information could be shared with law enforcement personnel, as it did
explicitly in section 504 of the Patriot Act. This provision alone--
proposed by Senator Leahy, not the Justice Department--would have
addressed whatever confusion existed about the FISA requirements at the
FBI and elsewhere.
But the Patriot Act goes much further. Section 218 repeals the
requirement that foreign intelligence gathering be the primary purpose
when initiating FISA surveillance. Thus, the government is now free to
use the broad powers in FISA to conduct secret surveillance on
Americans with the intention of bringing criminal charges against them,
or simply to collect information about them as long as there is
probable cause that the individual is an agent of a foreign power.
In evaluating the effect of section 218, it is important to begin
with a description of FISA authorities. The FISA statute authorizes
secret surveillance on less probable cause of criminal activity than is
authorized by the Fourth Amendment in criminal investigations.
Moreover, FISA contains many fewer safeguards against abuse because
there is no post surveillance check on either the legality of the
initial warrant or on how the surveillance was conducted. While the
Justice Department claims that there are judicial oversight and
probable cause requirements built into FISA, there is no dispute that
in most instances the government will never have to inform an American
that his conversations were overheard, his house searched or his DNA
seized pursuant to FISA. The statute only requires the government to
inform Americans targeted by FISA wiretaps or searches of those
searches if they are subsequently criminally indicted and the
government tries to use the fruits of the searches against them. The
statute also permits, but does not require the Attorney General to
determine that there is no national security interest in continuing
secrecy about the search of a U.S. person's home and then to inform
that individual that his house was searched. 50 U.S.C. sec. 1825(b).
Even in those few cases where an individual is informed that he or
she has been the target of FISA searches and seizures, the Attorney
General always blocks access to the original application for the FISA
warrant. See 50 U.S.C. secs. 1806(f) and 1825(g). Thus, there is no
opportunity for a target to challenge the search and obtain
adversarial, rather than ex parte, judicial review of the adequacy and
legality of the search, because the original application for a FISA
warrant, unlike a criminal warrant application, is always withheld from
the target.
Unanswered questions concerning the use of FISA.
While the Justice Department continues to claim that the change in
FISA's purpose requirement in section 218 is necessary to allow it to
use FISA information in criminal prosecutions, its claims raise more
questions than they answer. For example, the Department cites
prosecutions of individuals based on FISA information obtained from
surveillance conducted before the Patriot Act as evidence of the
usefulness of section 218.\5\ The Department, however, has provided no
explanation about why section 504 is not sufficient to provide full
authority for sharing all FISA information with prosecutors. Section
218's change to the purpose requirement would seem irrelevant to such
sharing. This would seem especially true, of course as to the sharing
of FISA surveillance conducted before section 218 changed the purpose
requirement.
---------------------------------------------------------------------------
\5\ See Justice Department, USA Patriot Act: Sunsets Report, April
2005, in particular concerning the case of Sami Al-Arian.
---------------------------------------------------------------------------
The second unanswered question concerns the effect of section 218
to allow the government to use the secret authorities in FISA in
criminal cases instead of the usual Fourth Amendment warrants which
contain greater protections. The Justice Department has offered no
public explanation for why and when it decides to use the secret
authorities of FISA, rather than the usual criminal authorities. This
question is especially important as the extraordinary procedures of
FISA are available not just for matters involving international
terrorism. The statute also allows the use of secret searches and
seizures against Americans in investigations of ``clandestine
intelligence gathering'' on behalf of a foreign government, which might
well include legal activities such as preparing non-public reports for
foreign governments or groups.
Similarly, the Department's description of its use of FISA
surveillance pursuant to section 218 in the case of the ``Portland
Seven'' again raises more questions than it answers. While the
Department claims that section 218 allowed it to postpone arresting one
individual in order to continue the investigation and arrest six more
people, it provides no explanation about how the law worked to effect
that result. To the contrary, missing from this explanation is any
acknowledgement that the Department has the authority to postpone
notice of criminal wiretap surveillance and physical searches and
seizures until it is able to identify and arrest other conspirators.
Indeed section 213 of the Patriot Act--the so-called sneak and peak
authority--explicitly codifies that authority to delay notification of
criminal searches and seizures. The Justice Department has said nothing
about why they could not have used the delayed notice authority in
section 213 and Title III of the wiretap statute to accomplish the same
result in the Portland Seven case.
Moreover, in order to fully evaluate section 218, it is important
to consider the broader context of the secret wiretap and surveillance
authority in the FISA. The recent revelations concerning the secret
search of Brandon Mayfield's home raise serious unanswered questions
about possible abuse of the FISA authorities. Mayfield, a Muslim lawyer
in Portland, Oregon was jailed for two weeks, without charges, on what
turned out to be the false claim that he had material information
concerning the March 11, 2004 terrorist bombing in Madrid. After he was
released the FBI apologized for jailing an innocent person. In the
course of investigating Mr. Mayfield, the FBI apparently obtained a
warrant under the FISA to secretly search his home and seize copies of
his documents, computer files and his DNA. Apparently, the FBI also
secretly wiretapped his phone and e-mail. There is ample evidence that
the FBI carried out the searches and seizures with the intention of
jailing and prosecuting Mr. Mayfield. While the Inspector General is
now investigating the case, including presumably how the FBI came up
with a suspect who was Muslim based on a misread fingerprint, the
Congress needs to undertake its own investigation, in particular on the
use or abuse of the FISA authorities. There is no way to know how many
other innocent Americans have had their houses searched or their phones
tapped based on allegations resting on their religion. The search of
Mr. Mayfield's home is an example of the dangers of FISA. Those dangers
are increased by section 218 (regardless whether that section played a
role in that particular search) because by making FISA surveillance
more easily obtainable, section 218 makes it likely that a lot more
people will be secretly searched. And the attendant secrecy raises the
specter that the government will as it did in the Mayfield case--go
after an innocent American. Under current law, there is no way to know
how many Americans have been subject to such surveillance, or how many
more will be.
At a minimum, Congress should obtain the answers to all these
questions before extending section 218. The Committee should make
arrangements to review the FISA applications--at least for U.S.
persons--under secure circumstances. The Committee should investigate
the use of FISA searches and seizures when the purpose of the
investigation is to target individuals for criminal prosecution or
deportation. The Committee should also investigate what protections
exist against using protected First Amendment activities, including
religious beliefs and political activities, as the basis for FISA
surveillance. While the details of particular FISA applications are of
course classified and cannot be publicly disclosed, there is much
information concerning the law and its application which can be
disclosed and needs to be publicly discussed before Congress extends
section 218.
Needed Amendments.
Should the Congress determine to extend section 218 for an
additional period of time, it should consider adopting two amendments
to provide some minimal safeguards. The amendments are needed to
protect the Fourth Amendment rights of individuals whose homes are
secretly searched, and whose papers and DNA are secretly seized, but
who turn out not be spies and terrorists and to protect the due process
right of those the government seeks to prosecute and imprison based on
the results of such secret searches and seizures.
Under current law, the government is required to notify an
individual that he has been targeted under FISA only when it seeks to
use the information against him. Mr. Mayfield is apparently the only
individual ever notified by the government that he had been the target
of a FISA search, who the government was not seeking to prosecute or
deport. While it is not clear why he was informed, it is likely that
the government did so only because it had wrongly imprisoned him and is
now being sued for that act. While the FISA refers to the Attorney
General determining that there is no national security interest in
continuing secrecy about the search of a U.S. person's home, the
Justice Department claims that no court may compel it to inform an
individual of a search in those circumstances. See Mar. 24, 2005 letter
from Justice Department to Mr. Elden Rosenthal, referring to 50 U.S.C.
Sec. 1825(b).
Even when an individual is notified because he has been indicted,
the government is not required to disclose anything more than the
existence of the FISA surveillance unless it either seeks to introduce
FISA information into evidence or the information is required to be
disclosed to the defendant under the Brady exculpatory evidence rule.
And then, all the government provides to the defendant is a record of
his own telephone conversations or a copy of his own papers. See FISA,
50 U.S.C. Sec. Sec. 1806(c), 1825(d). (Even these minimal protections
are only available to individuals not alleged to be ``alien
terrorists.'' See 8 U.S.C. Sec. 1534(e). )
The government is not required to disclose and, it appears, has
never disclosed the application for a FISA warrant to anyone. Indeed,
information obtained under FISA is accorded much greater secrecy than
any other kind of classified information is accorded under the
Classified Information Procedures Act or, in our view, than is
consistent with constitutional due process requirements.
If Congress extends section 218, allowing secret surveillance when
the government's primary purpose is not foreign intelligence gathering,
but rather making a criminal case against an individual, Congress
should consider how to bring the use of FISA information in line with
basic due process requirements. One way to do this would be to treat
FISA information like all other kinds of classified information by
making it subject to the provisions of the Classified Information
Procedures Act. Such a provision is included in the Civil Liberties
Restoration Act, H.R.1502, sec. 401. Under current law, it is nearly
impossible for a defendant to contest the introduction of FISA evidence
against him because the government's application for the FISA search
and related materials are automatically kept secret. That should be
changed so that when FISA evidence is used in criminal cases, the court
may disclose the application and related materials to the defendant or
his counsel, with any necessary redactions, in accordance with the
Classified Information Procedures Act. (Sources and methods information
for example, might be withheld.) Such an amendment would offer a
balanced and effective way to protect both sensitive national security
information and the due process rights of individuals.
Congress should also consider amending the FISA to protect the
Fourth Amendment rights of those whose homes are searched and
conversations are overheard, but who turn out not to be terrorists or
spies. There is no requirement under current law that the government
inform innocent persons whose conversations are overheard, houses are
searched and belongings are seized that the FBI was in their home and
listening to their conversations. There is no after-the-fact check on
the propriety of the search. An innocent individual never gets a chance
to challenge the search, only one who is subsequently indicted. And
with the repeal of the purpose requirement in section 218, the number
of FISA searches has been steadily increasing.
A fundamental requirement of the Fourth Amendment is that an
individual be notified of the government's search and seizure and
Congress should take one small step to restore this constitutional
protection to those who are targeted for secret searches and turn out
to be innocent. Congress should consider amending the FISA so that, if
it turns out that the person whose house was searched (and whose
conversations or e-mail were intercepted) was not a terrorist or a spy,
the individual would be told after some reasonable period of time that
the government had searched his belongings and be given an inventory of
what was taken. This could be done by amending 50 U.S.C. Sec. 1825(b)
to require the Attorney General when certain criteria are met to notify
all those who were subject to FISA searches or seizures. Those criteria
should include the passage of a definite time period and the
determination that there is no current probable cause that the target
is in fact an ``agent of a foreign power.'' Doing so would restore
Fourth Amendment protections and provide some measure of accountability
for secret searches of Americans' homes.
DOMESTIC INTELLIGENCE REORGANIZATION PROPOSALS
In enacting the recommendations of the 9/11 Commission regarding
the reorganization of U.S. intelligence agencies, the Congress accepted
its conclusion that a new domestic MI5 or CIA should not be created.
There has been a broad consensus among both civil libertarians and
intelligence officials that the responsibility for intelligence
activities inside the United States should ultimately remain with the
Attorney General as the chief law enforcement officer rather than with
an intelligence official. As former intelligence and national security
officials, including former DCI Robert Gates, John Hamre and Sam Nunn
urged, ``[e]ven as we merge the domestic and foreign intelligence we
collect, we should not merge responsibility for collecting it . . .
exclusive responsibility for authorizing and overseeing the act of
domestic intelligence collection should remain with the Attorney
General. This is the only way to protect the rights of the American
people upon whose support a strong intelligence community depends.''
\6\
---------------------------------------------------------------------------
\6\ Center for Strategic and International Studies, Guiding
Principles for Intelligence Reform, at 2 (Sept. 21, 2004), at http://
www.csis.org/0409--intelreformprinciples.pdf.
---------------------------------------------------------------------------
In the Intelligence Reform and Terrorism Prevention Act of 2004,
the Congress set up a National Counterterrorism Center to insure
sharing of information and coordination of plans, but agreed that
ultimate responsibility for domestic operations should remain with the
Attorney General. However, the most recent review done by the
Silberman-Robb Commission has recommended that the counterterrorism and
counterintelligence operations of the FBI be moved under the direct
supervision of the new Director National Intelligence. Such a
recommendation, if adopted, would make use of counterterrorism's most
effective domestic tool--the ability to prosecute and jail terrorists
more difficult. By separating domestic terrorism and
counterintelligence from law enforcement, it could create new and more
difficult coordination problems. Indeed the Commission also recommends
the reorganization of national security responsibilities at the Justice
Department, but does not explain how those prosecutorial efforts under
the supervision of the Attorney General would be coordinated with a
reorganized FBI carrying out the intelligence and investigations
necessary to bring prosecutions under the supervision of the new NDI
rather than the Attorney General. In making its recommendation, the
Commission also overlooks the fundamental differences in intelligence
at home and abroad and risks resurrecting all the bureaucratic
difficulties attributed to the ``wall'' that law enforcement and
intelligence agencies have been working to dismantle since September
11. Such a change is likely to threaten civil liberties.
Differences between intelligence at home and abroad. The Attorney
General, unlike an intelligence director, has an institutional
responsibility to protect constitutional rights and is subject to
closer and more transparent congressional scrutiny. As William Webster,
former director of both the FBI and CIA, testified last August
concerning proposals to transfer the FBI's domestic intelligence
authorities from the Attorney General to an intelligence official,
``the FBI should take its guidance from the Attorney General on its
dealings with U.S. persons and the manner in which it collects
information in the United States. This has been an important safeguard
for the American people, should not be destructive of effective
operations, and avoids the risks of receiving vigilante-type
instructions, whether from the intelligence community or the White
House.'' \7\
---------------------------------------------------------------------------
\7\ Testimony of William H. Webster before the Senate Committee on
Governmental Affairs, Reorganizing America's Intelligence Community: A
View From the Inside (Aug. 16, 2004), at 8, available at http://
hsgac.senate.gov/--files/081604webster9934.pdf.
---------------------------------------------------------------------------
Historically, overseas intelligence was largely carried out by the
CIA (and Defense Department agencies) while the FBI was largely
responsible for domestic intelligence because there are important
differences between the missions and methods that are necessary and
appropriate abroad and at home. These differences should not be
disregarded by the simplistic device of labeling these different
activities in the U.S. and abroad as ``intelligence.'' Generally, the
CIA has been confined largely to gathering foreign intelligence abroad
for policymakers regarding the intentions and capabilities of foreign
powers or groups. The FBI has had both law enforcement and intelligence
responsibilities inside the United States, for both counter-espionage
and international terrorism matters. While both involve intelligence,
the difference in functions is important from the standpoint of civil
liberties.
The CIA acts overseas, in secret, and its mission includes
violating the laws of the country in which it is operating when
necessary. It is charged with collecting information overseas without
regard to individual privacy, rights against self-incrimination, or
requirements for admissibility of evidence. It is also tasked with
carrying out covert actions to influence events by whatever means the
President authorizes. The agency gives the highest priority to
protection of its sources and methods.
In contrast, the FBI, as an agency with both intelligence and law
enforcement responsibilities, must always operate within the law of the
jurisdiction in which it is operating, even when outside the U.S. It
must respect the constitutional limits set by the First Amendment, the
Fourth Amendment and due process on government activities inside U.S.
borders, which limits have not (yet) been extended to aliens
overseas.\8\ While the task of foreign intelligence is to learn as much
as possible to provide analyses to policymakers, deepseated notions of
privacy rooted in the Constitution limit the information the government
may collect and keep about Americans. There is much greater
transparency of the FBI's operations, in part because they affect
Americans and in part because they are likely to lead to prosecutions,
with the result that information which is collected must generally be
admissible as evidence at trial and the methods and informants used are
quite likely to be publicly identified.
---------------------------------------------------------------------------
\8\ While international human rights law provides many of the
protections recognized in the Bill of Rights and is not limited by
national borders, its applicability to intelligence activities in times
of emergency or war is less developed.
---------------------------------------------------------------------------
Examining how intelligence information is actually used in
counterterrorism demonstrates the necessity of tying intelligence
activities inside the U.S. to a law enforcement agency. The first use
of ``intelligence'' information is to identify and locate individuals
involved in planning terrorist acts. This information must then be used
to prevent the attack, in ways that are legally permissible. Potential
terrorists found in the United States may be placed under intensive
surveillance. They may be apprehended if there is probable cause that
they are engaged in criminal activity or are in the United States in
violation of the immigration laws. They may be arrested not only for
plotting terrorism, including attempt or conspiracy, but for any crime
or visa violation. The government may also attempt to turn them into
informants on their associates (with or without arresting them), but
may not blackmail them to do so. Ultimately, in order to disable
individuals from future terrorist activity, they have to be arrested
and prosecuted. (They may also be deported.) Such ``prevention''
through prosecution has remained one of the government's major anti-
terrorism tools even since September 11. Such an approach focuses on
individuals involved in planning criminal activities and ultimately
relies on law enforcement authorities.\9\
---------------------------------------------------------------------------
\9\ As the 9/11 Commission recognized: ``Counterterrorism
investigations in the United States very quickly become matters that
involve violations of criminal law and possible law enforcement action.
Because the FBI can have agents working criminal matters and agents
working intelligence investigations concerning the same international
terrorism target, the full range of investigative tools against a
suspected terrorist can be considered within one agency.'' National
Commission on Terrorist Attacks Upon the United States, The 9/11
Commission Report 424 (2004).
---------------------------------------------------------------------------
Whereas the FBI must arrest and charge individuals in the U.S.
consistent with due process, the CIA and DoD intelligence agencies
operating overseas are free to employ methods such as disinformation
campaigns, secret kidnappings, and interrogations. The methods used by
the CIA and foreign intelligence agencies to ``disable'' terrorists--
predator drones shooting missiles at a car crossing the desert; turning
individuals over without any legal proceedings to intelligence services
infamous for coercive interrogations; or indefinitely detaining
individuals incommunicado without any legal process--have never been
deemed constitutional or appropriate to use against individuals in the
United States. Even absent military hostilities, overseas intelligence
methods include disruption of groups and harassment of individuals
using agent provocateurs, blackmail or other means, which have not been
allowed in the United States.
Moreover, counterterrorism intelligence inside the United States
poses special risks to civil liberties. It is always difficult to
investigate planned terrorist activity without targeting those who may
share the religious or political beliefs or the ethnic backgrounds of
the terrorists, but do not engage in criminal activity. It is easier
for an agency to identify those who share the political goals or
religious fanaticism of terrorists than to identify and locate those
actually plotting harm. It is therefore crucial to structure
bureaucratic rules and incentives to discourage investigations based on
political and religious activities and to require focusing on finding
actual terrorists. An important means for doing this is to require
agencies to focus on criminal activity, which encompasses all terrorist
plotting and financing, rather than authorizing an intelligence
approach that absorbs all available information about thousands of
individuals in the hope of finding something useful. A second important
safeguard is the transparency inherent in a law enforcement agency
ultimately answerable to the courts--transparency to which the CIA, as
an intelligence agency, has never been subjected.
While questions have been raised concerning the effectiveness of
various FBI efforts, those issues do not undercut the importance of
tying domestic intelligence efforts to a law enforcement agency.
Similarly, the fact that it is important to assure effective
coordination between intelligence activities overseas and those in the
U.S. does not argue for any separation of domestic intelligence
activities from related law enforcement activities. Indeed, even as the
9/11 Commission recommended new structures to insure coordination, it
agreed that the FBI, not the CIA, should retain domestic intelligence
responsibilities. ``The FBI's job in the streets of the United States
would thus be a domestic equivalent, operating under the U.S.
Constitution and quite different laws and rules, to the job of the
CIA's operations officers abroad.'' \10\
---------------------------------------------------------------------------
\10\ 9/11 Commission Report, at 423.
---------------------------------------------------------------------------
Given the importance of maintaining different laws and rules for
the collection of intelligence on Americans than for the collection of
intelligence overseas, the Attorney General should remain ultimately
responsible for the FBI's operations. Putting an Intelligence Director
or Office in charge of domestic intelligence will exacerbate the
difficulties in reconciling the different approaches that are required
in the U.S. and overseas. We note that the Silberman-Robb Commission
did recommend that the rules for domestic intelligence should still be
written by the Attorney General, but we suggest that such a division of
responsibility--between an Attorney General who writes rules for
intelligence and counterterrorism operations, but has no responsibility
for how those rules are carried out and a Director of National
Intelligence who has responsibility for how operations are carried out,
but no responsibility for writing the rules--makes no sense. We
respectfully suggest that the DNI should have responsibility for
insuring coordination between domestic and foreign collection and for
setting overall strategic priorities for domestic intelligence
collection, while domestic intelligence operations should remain
operationally tied to law enforcement.
In conclusion, let me reiterate our appreciation for the
Committee's hard work on these difficult problems that are important
for both our liberty and our security. We look forward to working with
you in the future and stand ready to provide whatever assistance we
can.
Mr. Chabot. Thank you very much.
And Mr. Swire, you're recognized for 5 minutes.
TESTIMONY OF PETER SWIRE, PROFESSOR OF LAW,
OHIO STATE UNIVERSITY
Mr. Swire. Thank you, Mr. Chairman, and thank you for the
kind words from Ohio. Thank you, Mr. Ranking Member, for being
here today and for you inviting me back to testify this week.
Your Committee is doing an exemplary job, I believe, of
developing a record for what to do next on the PATRIOT Act.
The topic of today's hearing, FISA and ``The Wall,'' has
been the focus of my biggest single research project since I
left the Government 5 years ago. My testimony today is drawn
from a Law Review article \1\ that has been placed in the
hearing record and is available online. Research for that
article included many interviews, often on background, with
Government officials who have worked with FISA over the
decades.
---------------------------------------------------------------------------
\1\ The information referred to is located in the Appendix.
---------------------------------------------------------------------------
I have one over-arching point today, as well as four
specific points. The over-arching point is this: ``The Wall''
has been our chief protection against a slippery slope, against
permitting secret FISA surveillance from expanding deep into
normal law enforcement activities. If ``The Wall'' stays down,
then it is the job of this Committee and the Congress to create
a new set of checks and balances against abuse.
These hearings are the single biggest reexamination of FISA
since it was passed in 1978. I therefore attached to the
testimony a set of oversight questions, to try to clarify law
and practice. I've also attached a list of concrete possible
reforms that can, taken together, I hope, create the checks and
balances needed to replace ``The Wall.'' In 2001, a wall was
taken out of the structure of FISA. It's up to Congress to
build a sound structure for the future.
My four specific points: First, supporting Kate Martin's
proposals in her written testimony; second, talking about
``agent of a foreign power'' definition; third, talking about
the words in section 218, itself; and fourth, a brief comment
on one other provision.
Turning to the next point, the definition of ``agent of a
foreign power,'' this is absolutely crucial to defining the
scope of FISA. For law enforcement investigations, a wiretap
means probable cause of a crime. For FISA, it's just probable
cause the person is an agent of a foreign power.
Think about an individual who works in the United States
for the Cali drug cartel. Is that person an agent of a foreign
power? The Cali cartel is very organized. It physically
controls a lot of land in Colombia. It may well be more of a
foreign power than Al-Qaeda is, that doesn't own a big
territory. So if one accepts that the Cali cartel is a foreign
power, and a major smuggler is an agent of a foreign power,
what about a street-level cocaine dealer? Is that an agent of a
foreign power? Is that a FISA wiretap because that person is
part of narco-terrorism?
To take another example, what about the activities of the
so-called ``Russian mafia''? Many organized crime groups have
links to overseas operations. How small can the links back home
be to still qualify that group's actions as part of a foreign
power's operations?
My second specific point concerns a proposal for partially
mending ``The Wall.'' The Law Review article explores in detail
the reasons for and against having ``The Wall.'' Based on my
research, the greatest problem with the old ``primary purpose''
test is that investigators genuinely don't know in the early
stages of an investigation whether the case will primarily end
up being for intelligence or law enforcement. The early wiretap
order is a dual-use technology. It's for both intelligence and
law enforcement, depending how things turn out.
My article argues that the missing legislative piece is a
requirement within FISA that the surveillance, one, be
important enough and, two, be justifiable on foreign
intelligence grounds alone. It has to really be a foreign
intelligence wiretap.
One way to go could be to say that a principal purpose, ``a
principal purpose,'' is foreign intelligence. Another way would
be to amend FISA to include a new certification in the FISA
application. The certification would say that, ``The
information sought is expected to be sufficiently important for
foreign intelligence purposes to justify the order.'' It really
has to be for foreign intelligence; maybe also it turns out to
be for criminal.
In concluding, I note that the article goes piece by piece
through FISA, suggesting ways to update many of its provisions
in light of our experience since 1978 and since 2001. A special
focus of the article is the so-called ``gag rule'' that applies
to section 215 orders and national security letters. The Senate
version of the SAFE Act has included one of my recommendations,
which is to put a 6-month limit on the gag. You can't talk
about the search; but 6 months later, ordinary people can. That
limit would be extendable by order of the FISA court. I hope
very much this Committee will follow along with the Senate, and
include the same limit in the bill this year.
To return to my over-arching point, ``The Wall'' probably
deserves to be lowered somewhat in our globalized world, where
information sharing is vital to fast-moving interrogations--
investigations. ``The Wall,'' however, was our chief bulwark
against the creep of the FISA system into ordinary law
enforcement. If ``The Wall'' comes down, this Committee should
erect new safeguards against the abuses that do come from
secret surveillance. Thank you.
[The prepared statement of Mr. Swire follows:]
Prepared Statement of Peter P. Swire
Mr. Chabot. Thank you very much. And the Members now will
have 5 minutes to ask questions of the witnesses, and I'll
recognize myself for that purpose at this time.
Mr. Fitzgerald, let me refer to you first. Mr. Swire
referred to the Mayfield case. And is the Mayfield case
evidence of abuse of FISA, or is it evidence of abuse due to
the PATRIOT Act? Or wasn't the Mayfield case a result of
erroneously read fingerprints by the FBI and Mr. Mayfield--or
Mr. Mayfield's own expert?
Mr. Fitzgerald. I'm not handling the Mayfield case, but
from my understanding of the public record, that was a
situation--a terrible situation that arose out of mis-
identification of fingerprints, both by the FBI mis-identifying
Mr. Mayfield's fingerprint as matching the exemplar they had,
and by an expert selected by the defense and paid for by the
court--made that same mistake. And I think the lesson of the
Mayfield case is we have concerns about the fingerprint
science.
With or without the amendments to the PATRIOT Act, the
actions taken under FISA could have been done, and should be
done if you thought that the person's fingerprint actually
matched the materials involved in a bombing. So the problem we
have is not with the PATRIOT Act, which didn't facilitate what
happened. The law provided for it anyway. It was bad
information on the fingerprints. And I don't see how the
Brandon Mayfield situation casts section 218 in doubt. The
Brandon Mayfield situation casts fingerprint science as
something we ought to examine, but not the PATRIOT Act.
Mr. Chabot. Thank you. Mr. Kris, let me follow up with you
here. In Mrs.--in Ms. Martin's written testimony, she suggests
that we amend FISA so that, if it turns out that the person who
was under surveillance was not a terrorist or spy, the
individual would be notified of the surveillance after some
reasonable period of time.
I'm concerned, however, that such a requirement could
jeopardize sensitive investigations. For example, were the
associate of a terrorist notified that he'd been under
investigation, that associate would almost certainly tip off
the terrorist that the Government was probably onto him as
well. Do you share that concern? Or what comment might you like
to make on that?
Mr. Kris. Well, I share your concern about the case you
just described. If they mistakenly go up on someone who is
connected with, but not himself, a terrorist, and then he tips
off the other target, I think that would be very dangerous.
I guess my basic sense of this is that notification is
acceptable, except when it's not. And right now, FISA has a
provision under which--I think it's 1825(b), under which, if
there's a search of a U.S. person home, and the Attorney
General determines that there is no national security basis for
maintaining the secrecy, then he shall inform the target. And I
believe that provision----
[Sound of buzzer.]
Mr. Kris. Every time I talk. And I believe that provision
is involved in the Mayfield case; although I'm not absolutely
sure. To expand it to reach all forms of searches or
surveillance, not just U.S. person house searches, I think
conceptually would be okay, if you could figure out what the
right standard was. Maybe it would be when probable cause is
found to be lacking under Franks v. Delaware.
But administratively, it would impose a pretty significant
burden. I think there were some 15, 17 hundred FISAs last year.
And it would, I guess, mean that the Government would need to
review each and every one of those to determine whether it met
the standard. So I have some concerns about that, on that
theory, as well.
Mr. Chabot. Thank you. Professor Swire, do you agree with
those you interviewed at the Department of Justice, that the
greatest problem with the ``primary purpose'' test is that
investigators generally don't know in the early stages of an
investigation whether the case will be primarily for
intelligence or instead for law enforcement? And do you agree
that ``The Wall'' did prevent sharing of vital information?
Mr. Swire. Yes.
Mr. Chabot. Okay.
Mr. Swire. I mean, I think that one of the questions comes
up later on. So you've done your first wiretap. You didn't know
which way it was going to go; but now it's up for renewal, and
you really know it's turning into a law enforcement
investigation. And I think it makes sense for the law to push
things toward law enforcement at that point, if that's what's
really happened. Among other things, that means that it will
get notice to people after the fact of the wiretap.
Mr. Chabot. Okay. And finally, Mr. Kris, in your written
testimony, you suggest that keeping ``The Wall'' down will
enhance the protection of civil liberties. And you stated this
and described it to some degree in your opening statement.
Could you say again why you believe that coordination
between law enforcement and intelligence officials helps to
safeguard constitutional rights? And I know you went into that,
but I'd like to hear about it again.
Mr. Kris. Sure. I mean, I think there are two reasons to
believe that it will be helpful in protecting civil liberties.
The first is that it opens up these cases, these
investigations, to a large number of energetic lawyers inside
the Department of Justice, who previously really were limited
in their access. And lawyers, I mean, for all their faults, you
know, do have an awareness of and a respect for rules and laws.
And it is for that reason, I think, that this country uses
lawyer oversight to safeguard civil liberties in the area of
national security.
And so, if it's done right, I think the opening up of these
cases to many, many more lawyers will be a good thing, because
they will be able to spot potential abuses early on and maybe
put a stop to them.
The other reason that I articulated--and I say it with some
hesitation, because I'm afraid it will be misconstrued and
misused--but there are cases, and I think there always will be,
where somebody needs to get locked up, if you're going to keep
the country safe from terrorism. And today, if you can't do it
using traditional law enforcement because of ``The Wall,'' then
I think you have to go to the alternatives. And one of those
alternatives is military detention; which I believe, after
Hamdi, civil libertarians do not smile upon.
And so, for that reason as well, I think, if compared to
the alternatives, prosecution in an open court, with a jury of
12, court-appointed lawyer, public access, and so forth, is not
something that we need to be afraid of.
Mr. Chabot. Thank you. My time's expired. The gentleman
from Virginia is recognized.
Mr. Scott. I think Ms. Martin and Mr. Swire pointed out
that when you run these investigations where the primary
purpose is something other than--when you get a FISA wiretap
with the diminished--with no probable cause of a crime even
required, you're running a criminal investigation without
probable cause. And when we changed ``primary purpose'' to
``significant purpose,'' it invited the question: What is the
purpose of the wiretap, if the primary purpose wasn't foreign
intelligence? What was the purpose of the wiretap?
And the Attorney General answered the question for us. He
said it's a criminal investigation, and then you kind of put in
parentheses, ``without having to fool with the probable
cause.'' Now, I suppose--is ``probable cause'' the problem, Mr.
Fitzgerald? I mean, is the requirement that we get probable
cause the problem? I mean, if we didn't have to fool with
probable cause--if we could start listening in and searching
without probable cause, we could probably do a better job for
law enforcement.
Mr. Fitzgerald. I'd love to answer that question. It's not
the problem. There's two misconceptions, I think, that are
going on in the public debate. The first is that there's no
probable cause requirement in FISA. Let me speak from the
perspective of a terrorism investigation.
To get a probable--to get a FISA for a terrorism
investigation, you have to have probable cause that the person
is the agent of a foreign power; which means that they
knowingly engage in activity--in sabotage or international
terrorism, or activities that are in preparation thereof, on
behalf of a foreign power----
Mr. Scott. Wait a minute. Keep reading.
Mr. Fitzgerald. Okay. Or they knowingly aid or abet any
person in the conduct of activities, or they knowingly
conspire.
Mr. Scott. Keep reading.
Mr. Fitzgerald. That's the end--Or as described in
Subparagraph (a), (b), and (c). I'm talking about terrorism.
Mr. Scott. Oh, oh. Oh, you're talking about terrorism----
Mr. Fitzgerald. That's what I said.
Mr. Scott. --as far as the FISA.
Mr. Fitzgerald. I said ``terrorism.''
Mr. Scott. Well, what about the foreign--foreign
intelligence? You have probable cause you can get some foreign
intelligence. What about foreign affairs?
Mr. Fitzgerald. Okay, it's not probable cause you can get
foreign intelligence. It's probable cause that the person is an
agent of a foreign power.
Mr. Scott. Right.
Mr. Fitzgerald. You have to certify, in addition, that
you're going to gain foreign intelligence, my point being----
Mr. Scott. Wait, wait, wait. Whoa, whoa. What is foreign
intelligence?
Mr. Fitzgerald. Foreign intelligence, that's one of the
things you have to get. But before you can even certify that
you're getting foreign intelligence, you have to establish that
the person is an agent of a foreign power. Under the terrorism
statute, there is no----
Mr. Scott. Well, wait, wait a minute. Wait a minute----
Mr. Fitzgerald. Let me just----
Mr. Scott. Well, no, no, because people keep coming here,
time and time again--this isn't the first hearing we've had.
Mr. Fitzgerald. I know.
Mr. Scott. They come and say you need a FISA to protect
from terrorism.
Mr. Fitzgerald. Yes.
Mr. Scott. And then you point out that you can get a FISA
warrant for things--have nothing to do with crimes, have
nothing to do with terrorism, if you can get foreign affairs.
The example I've used is----
Mr. Fitzgerald. And I disagree with that. And if you could
let me explain, because you do need----
Mr. Scott. Okay, okay, well, let me make my point----
Mr. Fitzgerald. Okay.
Mr. Scott. --so you know what you're disagreeing with.
Mr. Fitzgerald. Okay.
Mr. Scott. If I've got probable cause that somebody's an
agent of a foreign government, and we're about to negotiate a
trade deal, and I can get their bottom price on steel, can I
get a FISA wiretap?
Mr. Fitzgerald. That answer? I'll be blunt. I don't know.
Mr. Scott. Okay.
Mr. Fitzgerald. Because I--what I'm saying is I don't----
Mr. Scott. The answer everybody else has given is ``Yes.''
And that's how easy it is, and how unrelated to crime and
terrorism these FISA wiretaps are. And if you can--if that's
all you've got to get, to get into somebody's home, to get a
wiretap and all this, then it's a lot easier to run a criminal
investigation without having to fool around with whether a
crime is actually being committed.
Mr. Fitzgerald. Except that, if that's what you are doing,
you'd be lying and making a false statement when you certified
that the purpose of the investigation was to gather foreign
intelligence. And when you try to bring that person into court
for some drug crime and say, ``We had a FISA wiretap,'' and
show it to the judge, for something else, it would be out of
it. Let me make this point----
Mr. Scott. A significant purpose was getting the bottom
price on steel, and you tripped over a drug deal. Or you knew
the drug deal was happening, and you knew he was negotiating a
trade deal.
Mr. Fitzgerald. Sir, all I can tell you is this. In
Chicago, we spend--I spend a lot of my time prosecuting drug
cases and gang cases. We have never contemplated, much less
done, anyone going near a FISA court to get a drug wire. We've
got plenty of other----
Mr. Scott. Then what was the Attorney General talking about
when he said, if the primary purpose of the FISA wiretap wasn't
foreign intelligence, what was it? Why did he say ``criminal
investigation''?
Mr. Fitzgerald. And if I could get to the second part of
what I wanted to say, it's most of those predicates require
probable cause of activities which themselves are crimes when
people commit terrorist acts. The point being, I think that the
primary purpose itself is a fiction. And I'd like to explain
that, because I think it's important.
It may be that people say early on you don't know what the
primary purpose is. Let me give you an example. If a CIA
officer came into my office tomorrow and said, ``We have
sensitive information coming from overseas that someone's going
to put a bomb in the middle of Chicago next week, and take
lives,'' we would have the CIA in the room sharing their
information. We would put the FBI in charge. We'd have
several--lots of agents in Chicago. We'd have the Chicago
Police Department. And we'd say, ``Let's stop this bombing.
Let's get the information, and let's go prevent it.''
If you ask the CIA officer under truth serum what is the
primary purpose in what he's doing, I have no doubt that he or
she would say, ``This is an intelligence operation to stop a
bombing.'' If you ask the Chicago Police Department, ``What is
the primary purpose of this operation?'' he no doubt, or she no
doubt, would say, ``We are trying to prevent the crime of a
bombing that--''
Mr. Scott. You can't get a criminal warrant on something
like that?
Mr. Fitzgerald. If it's coming from overseas, it might be a
FISA. It may not be a criminal warrant, if it was classified
information that we could not use. If it was an Al-Qaeda
operation doing this bombing on behalf of a terrorist group,
that is appropriate for a FISA.
My point being, different people involved in the same
operation may have--one may have an intelligence purpose; one
may have a criminal purpose. And if I, as the prosecutor, have
to sit there and figure out, ``How will a court review this
later?'' if there's a bombing prevented and people are
arrested, and have to decide, ``I can't use FISA, I can't use
title III, I'm paralyzed''--we need to know that there's a
legitimate intelligence purpose in trying to prevent a
terrorist group from bombing a major metropolitan city, and we
go forward.
We can't sit around having a philosophical discussion,
saying, ``Who thinks it's intelligence? Who thinks it's law
enforcement? Where does the balance go?'' We can't do that. And
that's what we used to do.
The fellow in the back who testified this morning, Rob
Khuzami, and I worked a case together in New York in 1994,
where people were plotting to blow up the bridges and tunnels
in New York. And no one wanted to bring the prosecutors in
until the end because they were afraid that, by talking to
prosecutors, it would look like a law enforcement matter, and
the FISA may later be thrown out.
We can't go through a world where we don't bring in the
cops and the prosecutors to decide what to do because we're
afraid the consultation will color how a court looks at it
later. So I think it's a fiction that a primary purpose exists.
There are purposes. And if you have a legitimate intelligence
purpose, I think we need to be able to proceed.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Indiana, Mr. Pence, is recognized for 5
minutes.
Mr. Pence. Thank you, Mr. Chairman. And thank you for
holding this hearing. I had--and I want to thank the panel.
This is an extraordinary panel of experts and public servants.
And I'm most especially pleased to have the opportunity to hear
from and to meet Mr. Fitzgerald, whose reputation in law
enforcement is highly regarded in this nation. And I'm grateful
for your insights.
Two questions specifically for the panel. I'm very
intrigued in reading your statement, Mr. Fitzgerald. I was
literally added to the Judiciary Committee a week before we
wrote the PATRIOT Act. I haven't crammed like that since law
school. But I've been a defender of this act, believing that it
has balanced our civil liberties in this country with positive
advances in our ability to confront the enemies in our midst.
And I'm struck in your testimony by a variety of examples
that you use; even one, I believe, that had to do with the '93
bombing of the World Trade Center and one Sheikh Omar Abdel
Rahman who there were--according to your testimony, that there
were criminal and intelligence investigations, but that
prosecutors--because of ``The Wall'' that we're talking about
in this hearing, prosecutors didn't have that information.
And it is--is it accurate to say in that case that
prosecutors were in the dark about the details of a plot that
our intelligence officials knew about by Sheikh Rahman to bomb
the Holland and Lincoln Tunnels, the FBI Building, the UN, the
George Washington Bridge, until very late in--very late in that
investigation; and that that's materially changed by the
section of the PATRIOT Act we're here to debate?
Mr. Fitzgerald. Yes. My understanding is that the first
time a prosecutor was told about it, they were told very
little, other than that it was an operation going on. And
because FISAs were up, they were very concerned about contacts
with prosecutors making it look like it was a primarily
criminal purpose. And so they were brought in very late in the
day, and decided when things had to be taken down, so to speak.
And a similar experience happened around the millennium,
when there were threats to our country. And myself and my
partner, another lawyer, sat by the phone for many days going
up to the millennium eve, waiting for a phone call, if there
was anything we could be told; while people on the intelligence
side dealt with the case.
After the PATRIOT Act, if there were a threat like that,
we'd be sitting down at meetings with the FBI, CIA, and
exchanging information and deciding what we ought to be doing
appropriately that is lawful and that will best protect our
country.
Mr. Pence. Thank you. It's just amazing to me. I think any
Americans looking in on television at this hearing would be
astounded at what used to be the practice--the left hand not
knowing what the right hand is doing--between intelligence and
domestic law enforcement.
Mr. Kris, you testified that you thought that if section
218 sunsets, that law enforcement would have greater authority.
Mr. Kris. Yes.
Mr. Pence. Which flies in the face of many of the critics
of ``The Wall.'' Now, I know you discussed this in your written
testimony. I'm looking at page 12 of your written testimony
and--but I'd love for you to elaborate on that, because I think
it's an intriguing point. Because as a limited-Government
conservative, I'm always interested in how do we advance
national security----
Mr. Kris. Right.
Mr. Pence. --and do that in a way that's consistent with
limiting Government intrusion.
Mr. Kris. Right. Well, I think the answer to your question
really depends on an understanding of the decision of the
Foreign Intelligence Surveillance Court of Review.
Mr. Pence. Uh-huh.
Mr. Kris. What that court held was that, as enacted in
1978, FISA did not discriminate between law enforcement methods
of dealing with or protecting against terrorism and espionage
and other foreign threats to national security, and any other
method--a traditional intelligence method, diplomatic method,
and so forth--of dealing with those threats.
So, the court basically held that, as enacted in 1978, FISA
would have allowed surveillance even where the sole purpose was
to prosecute a terrorist or a spy. The distinction, the court
said, was not the nature of the method used to address the
threat--law enforcement methods or some other method--but
rather, the nature of the threat that was being addressed--a
terrorist threat, as opposed to, say, a routine domestic crime,
bank robbery or what have you.
But the court recognized that for 23 years everybody
misread the statute in all three branches of Government. And
until the Department figured it out and advanced the argument
in the appeal, and the court agreed, nobody knew. Which meant
that at the time the PATRIOT Act and section 218 in particular
was enacted, the misunderstanding prevailed. And so the court
held, section 218, in effect, codified that misunderstanding
and created this false distinction between law enforcement
methods of dealing with these threats and all other methods.
Now, if 218 were to sunset, I think the misunderstanding
would sunset, too. Or at least there's a substantial argument
to that effect.
Mr. Pence. Well, you would lose that element of the statute
that would clarify what the significant non-law enforcement
purpose standard.
Mr. Kris. And so I think you would probably--and again, I
haven't done the really heavy lifting that would be necessary
to determine this authoritatively. But I think you can see the
logic of the argument that if 218 sunsets, you revert to the
original--albeit newly discovered--meaning of the statute.
Mr. Pence. Uh-huh.
Mr. Kris. And that is why I believe if 218 sunsets without
more, the Government may have more power than it does today.
Mr. Pence. So----
Mr. Chabot. The gentleman's time----
Mr. Pence. --Americans' privacy rights were strengthened by
the PATRIOT Act, in that regard.
Mr. Kris. The PATRIOT Act cut back on Government power.
That is what the court of review said.
Mr. Chabot. The gentleman's time has expired.
The gentleman from Ohio seems to be chomping at the bit
there, so go ahead, if you have a quick point.
Mr. Swire. Well, I think another way to look at it is
there's a circuit split between the five or six circuits that
went one way, and the FISA Court of Review that went the other
way. Because there were numerous circuit court judges that had
what the Justice Department found was a misunderstanding.
Mr. Chabot. Thank you. We were just getting ready to go to
a second round. Two Members have just gotten here. Did you want
to get in on the second, or you still want to get in on the
first?
Ms. Jackson Lee. First.
Mr. Chabot. You want to get in on the first. Okay. The
gentlelady from Texas is recognized for 5 minutes.
Ms. Jackson Lee. Thank you, Mr. Chairman. We have seemingly
been patriotic now for a couple of days, and we've lived with
the PATRIOT Act for a longer period than that. I want to thank
the witnesses for their testimony, and the Ranking and Chairman
for this hearing.
I was just meeting with some constituents, and one of their
chief issues was the question of civil liberties. Isn't it
interesting, in 2005, that that doubt of having civil liberties
is being raised by Americans really across the land.
I think the important point to be made possibly--or for
those of us who sit on this side of the panel is that there is
not a divide in wanting to make sure that the homeland is
secure; or, frankly, that there are not the basic and enhanced
resources for law enforcement. But we have to be, in essence,
the wall, the divide, the protector of excessiveness, and the
representation that the present state of the law is not
adequate.
So I simply--I appreciate the U.S. Attorney in his
deciphering ``primary'' and ``significant'' and I will--Mr.
Fitzgerald, I want to raise some questions with you. But Mr.
Swire, if you could let me know, I know that there have been
mistakes that the Department of Justice has made--some 70 of
them, as I understand it--about information sharing,
unauthorized dissemination of information. In fact, I think
Attorney General Janet Reno first interjected into trying to
give guidelines of where the FBI could begin to share
information with the U.S. attorneys.
My question to you is to pick up where my colleague,
Congressman Scott, was as I was listening to his inquiry about
this ``significant'' and ``primary'' question. But also, have
we even fixed some of the problems that are generated from the
misrepresentations of information sharing, unauthorized
dissemination of information? And how do we know that the
Department has any knowledge of these misrepresentations and
has any ability to account for them?
And let me make this other point. We learned in an earlier
hearing today that we have the right to get certain
information, the Congress does, under FISA. And I'm wondering
whether we are even getting that information. Not only do we
have the right to get information, but the public has a right
to have pronouncements being made.
In your profession, or as you have traveled the highways
and byways, are we fulfilling our responsibility? Are you
getting pronouncements from the DOJ, or local DOJ, about
anything dealing with FISA? I yield to the gentleman. And I may
interrupt you because my green light may go and I may want to
deal with Ms. Martin or Mr. Kris and Mr. Fitzgerald.
Mr. Swire. Thank you, Congresswoman----
Ms. Jackson Lee. Yes, sir.
Mr. Chabot. The green light just went so----
Ms. Jackson Lee. I'm on a beige light now, but that's all
right.
Mr. Swire. A couple of points. One is attached to my
testimony are possible oversight questions, to try to ask some
questions that maybe the Committee would find useful to ask the
Department of Justice. I think that having a greater oversight
by the Judiciary Committees going forward--if this turns out to
be really a criminal statute so often, maybe the Judiciary
Committee should get the same oversight information that the
Intelligence Committee----
Ms. Jackson Lee. But do you know if they've answered any of
the problems dealing with the question of 70
misrepresentations?
Mr. Swire. Well, it points out that there's no adversary
process in the FISC court--in the FISA court. And the court
there was able to discover that more or less on its own. And so
we need to figure out how that oversight is going to happen in
the future.
Ms. Jackson Lee. Ms. Martin?
Ms. Martin. Well, I'd like to make the point that I think
there are really two separate issues being talked about here.
One is sharing and the failure to be able to share before
September 11th, described by Mr. Fitzgerald. And I think we all
recognize that that was a mistake and that it shouldn't happen
again; that we don't want to write in a legal prohibition on
that kind of sharing.
But the question I think that the Committee faces in
connection with 218 is not a sharing question, but is the
question of when are the FISA authorities going to be allowed
to be used? The FISA authorities allow the Government to
secretly search Americans' homes and secretly wiretap their
telephones.
And those are extraordinary powers, going to the core of
the fourth amendment. One of the core fourth amendment
protections has been that when a person's home is searched and
their telephone conversations are tapped, after the fact
they're told about it. FISA is--the whole point of FISA is that
you don't have to tell the person that that happened.
Section 218 broadens the circumstances under which the
Government can use those extraordinary powers. And I think that
the question the Committee needs to focus on is, given that we
are going to have those extraordinary powers, given that we of
course want the information collected by FISA to be freely
available to law enforcement and prosecutors, what kinds of
protections are we going to have against abuse of those secret
powers? And the Mayfield case is an example, I think, of that
problem; which I'd be glad to talk about.
Mr. Chabot. The gentlelady's time has expired. I think the
gentleman on his time is going to ask for a follow-up, because
we're already on 7 minutes on yours.
Ms. Jackson Lee. If Mr. Kris and Mr. Fitzgerald can answer,
I'd appreciate it.
Mr. Chabot. Well, they will, but I don't want to drag this
out too long. The gentleman from California is recognized at
this time.
Mr. Lungren. Thank you, Mr. Chairman. And I would ask Mr.
Fitzgerald and Mr. Kris to please respond to the last comments
made by Ms. Martin with respect to the fact that the--that 218
expanded in these areas these kinds of searches, and does not
give adequate notice; and seemed to suggest that therefore it
is inappropriate.
Mr. Kris. I'll speak to the 218 question, because I'm
actually prepared to say that it is essentially the case that
218 and the provisions that tear down ``The Wall'' don't affect
the ``who,'' the ``what,'' the ``where,'' the ``when,'' or the
``how'' of FISA surveillance. What they really do is permit the
two hands of the Government--law enforcement and intelligence--
to talk and communicate in a normal way, one to the other.
When ``The Wall'' is up, the Government is free to do any
surveillance that it can do when ``The Wall'' is down, with one
condition; and that is, the prosecutors have to be kicked out.
And there is no change connected to ``The Wall'' in the
probable cause standards or the definitions of ``agent of
foreign power'' or ``foreign power.'' And so the same people
can be targeted to the same extent on the same facilities.
The difference is that law enforcement officials can be
involved and coordinate with the intelligence officials. The
Government is essentially no longer put to that very difficult
choice between either, A, coordinating or, B, conducting the
surveillance. They can now do both. So I guess that's my basic
response on that.
Mr. Lungren. Mr. Fitzgerald?
Mr. Fitzgerald. He said it better than I would have, so I
agree.
Mr. Lungren. All right, you're not going to get off that
early. Mr. Fitzgerald, in Ms. Martin's testimony, her written
testimony, she suggests that Congress should take the
opportunity to bring the FISA information in criminal
proceedings ``in line with basic due process requirements.''
It's my understanding that the current procedures governing
FISA in criminal cases have been upheld as constitutional in
Federal courts across the country. Are you aware of any Federal
court that has held that the current procedures are
unconstitutional?
Mr. Fitzgerald. No, and in the several times it's been
litigated in cases I've participated in, it's always been held
to be constitutional and to comport with due process.
Mr. Lungren. Even in the event that no courts have found it
unconstitutional, do you see any reason for reforms? And if so,
what reforms would you suggest?
Mr. Fitzgerald. I, personally, don't. I think that when
judges review these materials they do review them to make sure
that they're in order. And I think that--I think it's
appropriate, given the sensitive nature of the material that
goes into applications, often which can come from very
sensitive sources or foreign governments who do not wish what
they contribute to be exposed and the sources and methods.
Mr. Lungren. You talked in your testimony about the
investigation of Osama Bin Laden in the 1990's. Based on that
experience, how damaging do you think ``The Wall'' was to our
nation's counterterrorism efforts during that time?
Mr. Fitzgerald. I think it was extremely damaging and----
Mr. Lungren. Why?
Mr. Fitzgerald. I would describe it this way. National
security and civil liberties are both extremely important, so
I'm going to make an analogy to a game; not because I don't
think life and liberty and privacy aren't serious. But if you
played football and you were on defense, and your job was to
make sure no one attacked you, and where the risk were lives,
you would not tell the defense that they have to separate into
two huddles and can't talk to each other; which is what ``The
Wall'' did.
And if you went and played a game like that, where two
separate huddles couldn't collaborate, and one day they finally
said, ``You know what, you could actually talk before the other
team tries to score a touchdown,'' where the price of a
touchdown is lives, you would recognize that there's no way we
should go through a dysfunctional system where we're not
talking to each other, trying to defend against a lethal
threat.
Mr. Lungren. Do you understand the concerns that some
people have, that tearing down ``The Wall'' would in some way
jeopardize our protections of individuals' privacy rights?
Mr. Fitzgerald. I do. I absolutely understand that, for two
reasons. I understand privacy rights are very important. I want
my privacy rights protected, so I don't at all cast any doubt
on why people would be concerned about their privacy rights.
And I understand the history from the '60's and '70's, why
people would be concerned about that.
From a pragmatic point of view, I agree with David Kris. I
think we do our best job, not just of protecting national
security, but protecting privacy rights and civil liberties, if
we have the law clear, and we put lawyers and others in the
room and say, ``These are the rules of the road,'' and we work
together and make sure people don't make mistakes.
So I think that ``The Wall,'' while it protects national
security, doesn't jeopardize civil liberties--we want a system
where we're all operating on the same set of laws and rules,
and follow them, and make sure that people who are responsible,
and have law degrees that they want to keep and jobs they want
to keep, follow the rules and make sure that everyone around
them follows the rules.
Mr. Chabot. The gentleman's time has expired. We are going
to go to a second round at this time, so I recognize myself for
5 minutes.
Mr. Kris or Mr. Fitzgerald, let me ask you this question.
Do terrorist organizations work with other criminal elements,
such as drug dealers and street gangs and other violent
criminals of that nature? And if so, can you give some specific
examples of that? And how common is this cooperation or
association between terrorists or terrorist organizations and
other criminal elements?
And prior to enactment of 218, how would the law
enforcement agency in charge of the criminal investigation
coordinate with the foreign intelligence agency in charge of
the terrorist investigation? And how cumbersome was that
process? And again, some of these things we've already touched
on time and time again.
Mr. Fitzgerald. I will give you my limited perspective. I
do know there have been occasions in the past where gangs and
terrorists have linked up. I think going back to the late
'80's, there was a Chicago gang that tried to get shoulder-
fired missiles for a foreign country--I think Libya--and that
was exposed and later prosecuted. So that has happened.
In my personal experience, I've more seen more incidental
involvement of gang members or street criminals. For example,
the plot where they were trying to blow up the bridges and
tunnels in New York City: they had to get stolen cars; they had
to get guns; they had to get things like that; where in the
course of an investigation they were dealing with street-level
criminals, just because they needed fake passports; they needed
cars; they wanted to get detonators. So they got into this with
the criminal underworld because they needed to get logistics.
But it was more of a--the plan was being done by the terror
ring, and they were reaching out to other people just to get
logistics.
I don't see us using FISA to go after a gang problem, at
all. What I do see is if FISA's going after a terrorist
problem, we may incidentally pick up someone if they turn to a
gang member or street criminal as part of their effort to get
a, you know, weapon or a detonator, that sort of thing. But I
haven't seen yet a situation where we haven't been able to just
deal with it as a terrorism issue where you might incidentally
come across street-level criminals. And I hope it stays that
way.
Mr. Chabot. Thank you. Mr. Kris, anything you want to add
to that?
Mr. Kris. I'm not going to say anything about any
particular cases, I don't think, in an open hearing; and as a
former Government lawyer, not a current one.
I will say that there are cases that I know of that are
public, in which terrorist organizations or other national
security threats have used what would otherwise be sort of more
traditional kinds of crime, to finance or facilitate their
terrorist acts. We had cigarette smugglers, for example, who
were raising money to buy weapons. And that can happen.
I think, legally, those kinds of crimes are treated like
foreign intelligence crimes, under the new law tearing down
``The Wall.'' And FISA could be used to gather evidence of
those kinds of crimes. It can't be used to gather evidence--or
primarily to gather evidence of ordinary crimes that are not
being committed to facilitate those kinds of national security
threats.
Mr. Chabot. Thank you. Ms. Martin, you stated in your
written testimony, and I think today orally as well, that the
FISA statute authorizes secret surveillance on less probable
cause of criminal activity than is authorized by the fourth
amendment in criminal investigations. Some have claimed that
FISA has no probable cause requirement. Is it your opinion that
FISA has a probable cause requirement, or not? Would you
comment on that, please?
Ms. Martin. Yes. It's clear that it does have a probable
cause requirement, and the probable cause requirement is, as
Mr. Fitzgerald stated, that someone be an agent of a foreign
power. There are then paragraphs defining what an agent of a
foreign power is.
In the terrorist context, it's pretty clear that that would
be the equivalent of probable cause of criminal activity. But
in the clandestine intelligence gathering context, which also
applies to FISA, it's also clear that--if you read the FBI's
own memo on the use of FISA, that the probable cause required
is less than the probable cause required for a purely criminal
warrant in that context. Which is not to say there's no
probable cause and that there is a criminal nexus, but the--And
I see Mr. Kris agreeing with me, so I'll just end----
Mr. Chabot. Okay.
Ms. Martin. --before I say anything else.
Mr. Chabot. Okay. My time is about ready to expire. Let me
ask one more question, if I could. Either Mr. Kris or Mr.
Fitzgerald, would you explain why the FISA Court of Review
concluded back in 2002 that section 218 of the USA PATRIOT Act
is constitutional? And as the Chairman of the Constitution
Subcommittee, I'm particularly interested in that.
Mr. Kris. I'll try to--I'll try to tackle that. The court
basically held that FISA is constitutional because it is
reasonable, and reasonableness is the touchstone of analysis
under the fourth amendment.
The court specifically relied, I think, on two prior
Supreme Court decisions. First, the Keith case, United States
against the United States District Court, from the 1970's; and
the more recent decision of City of Indianapolis v. Edmond.
Keith held that in the case of surveillance involving
domestic terrorists, standards different than and lower than
those in title III would be permissible, because of the special
nature of the threat that those kinds of domestic terrorist
cases present. And I think that reasoning applies, a fortiori,
to FISA, which involves foreign threats to national security,
which are even more dangerous and more difficult to
investigate.
In Edmond, the Supreme Court drew a distinction between
ordinary and special kinds of law enforcement in its analysis
and discussion of a checkpoint. And so I think the basic reason
that the Court upheld FISA is that, like the statute which
distinguishes between kinds of threats, rather than kinds of
responses to threats, so, too, the fourth amendment ultimately
draws that distinction. And surveillance is lawful under FISA
if it is addressing the kind of threat that the statute deals
with, regardless of the kind of method being used to deal with
the threat.
Mr. Chabot. Thank you very much. My time has expired.
The gentleman from Virginia is recognized for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman. Mr. Kris, did I
understand you to say that domestic--investigation of domestic
terrorism did not require the same level of probable cause as
other criminal warrants would require?
Mr. Kris. Under current statutory law, that is not correct.
Those would proceed under title III, the conventional criminal
statute. But under the Constitution, the Supreme Court held in
Keith, standards lower than title 3 maybe--or maybe not, in the
probable cause area--would be tolerable.
Congress has never taken up the Court on that invitation in
Keith, and has not enacted a special statute governing domestic
terrorism. But Keith indicates that it could do so.
Mr. Scott. But the present state of the law is that
domestic terrorism cannot be investigated with a lower probable
cause standard than other crimes? That's the state of the law
today?
Mr. Kris. Yes.
Mr. Scott. Ms. Martin, you indicated about a criminal nexus
to title--to FISA once. Did you say you needed a criminal
nexus, or could have a criminal nexus?
Ms. Martin. Well, when you're investigating ``clandestine
intelligence gathering,'' as opposed to terrorism, it's not
defined to equal criminal activity. It's defined to include
activity that might be criminal. So you could say----
Mr. Scott. And it could----
Ms. Martin. --that it's connected to, but it's not a
criminal probable cause standard.
Mr. Scott. It could be connected to the conduct of foreign
affairs of the United States.
Let me ask Mr. Fitzgerald. Your reading--What code section
were you reading off of when you were responding to the other
question?
Mr. Fitzgerald. Fifty--Title 50, United States Code,
Section 1801. When I talked about the agent of a foreign power,
I was reading from section ``b,'' and when I read from
international terrorism, I think I read ``b,'' and the
terrorism parts were subsection ``c'' and ``e.'' They also have
in there the sections about clandestine intelligence activity.
Mr. Scott. Okay. Because I'm reading Title 1, section 101.
When you talk about getting a FISA warrant, you can get it if
you're getting foreign intelligence. And foreign intelligence
information includes the conduct of foreign affairs of the
United States; which may or may not have anything to do with a
criminal activity.
Mr. Fitzgerald. And you're reading from subsection ``e.''
And my point being, you have to satisfy the standard earlier
that the person is an agent of a foreign power. If you satisfy
that--and to be an agent of a foreign power, to engage in
clandestine intelligence activity, that is a crime. To be an
unregistered agent of a foreign power is a crime in itself.
Mr. Scott. Well, if you are a registered agent of a foreign
power.
Mr. Fitzgerald. If you are a registered agent? Okay.
Mr. Scott. Yes.
Mr. Fitzgerald. Okay. Then if you're a registered agent of
a foreign power, then that may not be a crime, because you're
obviously not--you've registered. But if you're engaged in
clandestine intelligence activities, you're a spy.
Mr. Scott. Well, if you are a registered agent of a foreign
power----
Mr. Fitzgerald. Engaging in clandestine intelligence
activity.
Mr. Scott. No. No, we're going to get some information from
you. And the idea--your bottom price on a steel deal we're
going to negotiate tomorrow afternoon. If I know you're going
to be talking to people back home, I can wiretap your phone and
listen in to get that information. And that's a FISA wiretap.
No crime; just getting information. Right?
Mr. Fitzgerald. And as I told you before----
Mr. Scott. You don't know.
Mr. Fitzgerald. That part of it, I'm less familiar with. I
could just read the statute----
Mr. Scott. Okay, well, see, we've got to deal with the
whole thing. You're dealing with terrorism, and we're dealing
with the code and determining whether we're going to allow this
to continue. And the idea is, since we changed that primary
purpose to a significant purpose, the Attorney General told us
that you can run criminal investigations out of FISA on these
lower standards.
Mr. Fitzgerald. And I could just add that the PATRIOT Act
did not change that definition. The FISA statute, it didn't
change the----
Mr. Scott. That it changed to say ``primary purpose'' to
``significant purpose''; which invites the question, if it's
not the primary purpose, what is?
Mr. Fitzgerald. And my only point being that if it's lawful
to listen in on those trade negotiations, it was lawful before
the PATRIOT Act, and afterwards.
Mr. Scott. Yes, but you can't run a criminal investigation.
You can't use it as an excuse to running a criminal
investigation if that wasn't your purpose.
Mr. Fitzgerald. And you can't do it here, if your primary
purpose isn't to gain foreign intelligence. You have to certify
that. That would be false if your----
Mr. Scott. Well, that's why we changed the law, so you
could run a criminal investigation without probable cause. Let
me ask a quick question, before all my time runs out. How do
you challenge a FISA wiretap that was inappropriate? In
criminal investigation, you challenge it using the exclusionary
rule. How do you challenge--if they shouldn't have gotten the
wiretap to begin with, if it was really a ruse, how do you
challenge it?
Ms. Martin. It's impossible. Not only would you not be able
to challenge it, you would never know about it. And that's the
whole difficulty. And that's what Brandon Mayfield's case
illustrates. There they got a secret FISA search of his home,
and it turns out he's innocent. There's nothing in the statute
that required the Attorney General or the Justice Department to
inform him that the FBI had been inside his house. And the
Justice Department made that clear when they did inform him,
because they said, ``We're going to tell you that, but we
didn't have to tell you we were inside the house.''
And the reason, apparently, they told him that they had
been inside the house was only because he had been mistakenly
jailed. So if he hadn't been jailed, he never would have been
told that they had a wiretap or a physical search of his house,
when it turned out it was a mistake.
And that's the problem that I think this Committee needs to
look at. And that problem did pre-exist section 218 of the
PATRIOT Act. There's no doubt about that. But it's been
exacerbated.
Mr. Chabot. The gentleman's time has expired, but if you
want to follow up just for a minute----
Mr. Scott. I do want to follow up. I wanted Mr. Swire to
comment.
Mr. Swire. The simple point I wanted to make is that in
Kate Martin's testimony, she proposes legislative fix that's
based on CIPA, classified procedures act, which came after
1978, and is a better way for handling those challenges than
the '78 law had. Basically, we should update our 1978 version
of FISA to the things we learned over time for how to handle
the classified information and have those challenges done
better.
Mr. Scott. Okay.
Mr. Chabot. The gentleman's time has expired.
The gentleman from California, Mr. Lungren, is recognized
for 5 minutes.
Mr. Lungren. Thank you, Mr. Chairman. Mr. Kris, I'd like to
direct this to you, because listening to the comments and the
questions of the gentleman from Virginia prompts this question;
which is when we're talking about FISA and he's talking--and
we're talking about a non-criminal act--we're talking about the
position another country may have on trade--FISA can only come
into effect if the individual involved is a foreign agent--an
agent of a foreign government; is that not correct?
Mr. Kris. Yeah. I mean, I think there's two separate legal
requirements here that may be getting a little bit mixed.
Mr. Lungren. Yes.
Mr. Kris. And maybe I can try to differentiate. To be a
FISA target, you have to be an agent of a foreign power, or a
foreign power, and the Government has to establish probable
cause, the court has to find probable cause. And that's a
requirement that, just as Ms. Martin says, in some cases,
particularly where it's a terrorism case involving a U.S.
person, it's essentially the same probable cause standard as in
a criminal case, plus some additional requirements.
But in the espionage context, it's a slightly different
standard. It is activities that involve, or may involve, or are
about to involve a crime; which is--and the legislative history
is very clear on this--somewhat lower than the traditional
criminal probable cause standard. That is what the statute
says.
The other requirement in a FISA application is a
certification from some high-ranking Executive Branch official,
like the FBI Director, that now a significant purpose is to
obtain foreign intelligence information. There are two kinds of
foreign intelligence information. There's the kind that is
normally at issue in these kinds of ``Wall''-related cases,
what I will call counter-intelligence, or protective
intelligence, information that is relevant or necessary to
protect against a series of specified threats--terrorism,
attack, so forth.
There is also a second definition in foreign intelligence
information, and I'll call that affirmative, or positive
foreign intelligence. And that is information with respect to a
foreign power or foreign territory that relates to or, if
concerning a U.S. person, is necessary to the defense or
security of the United States or the conduct of foreign
affairs.
And it is absolutely correct that information that is
relevant to a trade negotiation would be, I think, or could be
foreign intelligence information, under this second definition.
However, I will also say that information is foreign
intelligence information under that second definition only if
it is with respect to a foreign power or a foreign territory.
And if you read the legislative history there, they
contrast that ``with respect to'' language. On the one hand,
with respect to a foreign territory or power; on the other
hand, not about a U.S. person. And so it really is, I think, if
you read the legislative history, the kind of information that
you would get from monitoring visiting foreign trade
delegations, if that's what you were going to do. And I'm not
saying we do it or not.
Mr. Lungren. As opposed to an American citizen.
Mr. Kris. Right. And the two requirements are, in any
event, independent. Because even if--it would be a very strange
case, I must say, in which the Government would assert, on the
one hand, there is probable cause that this U.S. person is a
terrorist, or is knowingly engaged in international terrorism
or activities in preparation therefor; and yet, our primary
purpose is to gather information about a trade negotiation.
That would be a very odd disjunction.
And I think--I don't say you should rely on the good faith
of the Government officials involved. Having been one, I know
better than that. But it would certainly be a difficult
articulation for the FBI Director to make.
Mr. Lungren. Well, see, what I'm trying to do is figure out
if we've been hearing about a straw man for quite a bit of time
in various questions, or whether this is a serious problem. I
mean, I'm aware of no abuse in this area. But is it a serious
problem, where an American citizen has to worry about somehow
FISA being used to invade their privacy under some tortured
version of these terms? I'm just asking----
Mr. Kris. Yes.
Mr. Lungren. --for your help on this, looking at this
statute.
Mr. Kris. I think my basic answer to that question is
``No,'' because the probable cause requirements in 1801 of
Title 50 remain the same, both before and after the PATRIOT
Act, and still require the Government to make a substantial
showing of criminality in clandestine intelligence cases, and
what amounts to a full-blown traditional criminal showing of
probable cause in a terrorism case, regardless of what prong of
the foreign intelligence definition they are proceeding under.
Mr. Lungren. Thank you.
Mr. Chabot. Does the gentleman yield back? The gentleman's
time has expired.
The gentlelady from Texas is recognized for 5 minutes.
Ms. Jackson Lee. I'd like to go back to Ms. Martin. But
before I briefly turn to you, I just want to state for the
record, to make it very clear, you were delineating two very
horns of the dilemma that Members of this Committee and
Congress have. And that is, of course, to recognize the
vitality of information sharing, i.e., the--for lack of a
better word, the sort of ``Three Stooges'' approach pre-9/11.
And I don't say it unkindly. But I think many of us were sort
of aghast about the lack of sharing that we thought might have
been helpful. And of course, that was a combination of domestic
and international only because the individuals came into the
country. But there were some that were there in the country
doing activities that did not seem to funnel in one place. So I
don't disagree with you. And I think I don't even glean that we
would not be concerned that we can't do a better job at
information sharing.
I think there's some question of whether or not--we have
this national intelligence director, which we now have, and,
you know, whether that bridges any necessary intelligence
necessities because of the CIA, because of the FBI and other
elements, that need to cooperate.
But the other part of it is--and these are my words--the
broadness, the depth, of the power of the Government in
utilizing FISA, and when to use this broad-based power; which
is what my concern is. I've seen some looking maybe aghast or
shocking from Mr. Kris when I mentioned the ``Three Stooges,''
but this is--we're all big boys and girls up here and we can
face conversation that may be somewhat pointed.
Again, it's not a personal commentary. It is just a
commentary of what we've found ourselves. And when I say that,
let me put everybody in the same boat together. Everybody was
equally shocked that maybe there were not procedures in place.
As I look at your testimonies--so my interest is really to
do as you've noted. In fact, I've noted in your testimony that
the national security study deals with the question of
protecting us and civil liberties. And I assume you're
consistent in your work. And I think that's a fair balance.
Maybe we're not--we probably won't agree on many issues. I
happen to be on Homeland Security. I say that--I've said that
before. But I think that you wouldn't ask a Member of Congress
that they are not interested in that part of security--of
securing the homeland. But it's the use of this power that
concerns me.
And I circled something here: ``The center has long
advocated the necessity of tying domestic intelligence
authorities to law enforcement to ensure that Government
surveillance is targeted against actual wrongdoers, and not
against political or religious minorities.'' However, if, for
example--and I'm on the domestic side--a religious minority had
as its philosophy and also its action the bombing of abortion
clinics; its faith or its views were that they are absolutely
abhorrent--abhor them, but then the next step was that they
planned bombing--bombings. You don't include that in
protections of civil liberties; is that correct?
Ms. Martin. No. That's actually an issue that we worked on
to a great deal before September 11. Because we were concerned
about two things: that the Government adequately investigate
and stop abortion clinic violence; but that it not target
groups who opposed abortion, or conduct surveillance of groups
who opposed abortion, simply on the excuse that it was trying
to stop abortion clinic violence.
And that line--between investigating and targeting
politically motivated violence, while being careful to respect
the first amendment rights of those who might share the
political views of the violent actors--is an extremely
important and difficult problem.
Ms. Jackson Lee. Right. Let me take you up on that. Lights
go out quickly here. Let's take that on the international
basis, or at least the basis of groups that have gotten
profiled: Muslims who gather in a mosque here in the United
States; Pakistanis; people from Iran who live in the United
States. Then how would the center expand on where you're going
with the protection of the civil liberties and to avoid this
expansive use of this procedure and still--where would we
begin, or where would we take this hearing to really respond to
that?
Because that, I think, as much as this is such a wonderful
panel that talks about the necessity of security, and the U.S.
Attorney, but we have in here the makings of the broad use of
this procedure. How would you answer, a good way of providing
that protection?
Mr. Chabot. And the gentlelady's time has expired, but you
can answer the question.
Ms. Jackson Lee. You can answer the question, thank you.
Thank you, Mr Chairman.
Ms. Martin. Well, I think it's an extremely important and
extremely difficult question to answer, that has to be answered
in many different specifics. But I think that, given where we
are, that we are going to continue to have the use of what are
basically completely secret surveillance authorities; and which
we tried to write in all of these detailed protections so that
people wouldn't be spied on because they were Muslim. But as
you can tell from all of the lawyers sitting here, it's a
complicated statute. And whether or not those details in the
statute in the end are going to be sufficient to protect people
is not--no longer clear to me.
I think that we have to come up with some new ways to look
at what the Government is actually doing. And it's a hard
problem because, of course, they have to operate in secret
here. But I think I've made a couple of suggestions.
I think another suggestion we haven't talked about is that
this Committee go look at the actual FISA applications, the
warrants, and the returns, especially of U.S. persons, and see
who's being surveilled and what they found when they've done
the surveillance, and actually look at that. And that's another
way to look at this problem.
Ms. Jackson Lee. I thank the gentlelady. We'll take you up
on that. At least, I will. Thank you.
Mr. Chabot. Thank you. The gentlelady's time has expired.
That concludes the second round of questioning.
And at this time, I'd like to ask unanimous consent to
include in the record the Department of Justice's response to a
letter from Senator Feinstein alleging abuses under the PATRIOT
Act. And I understand that this indicates the absence of those
abuses.
I'd also like to thank the witnesses for their testimony
here this afternoon, which I really thought was excellent. The
Subcommittee very much appreciates your contribution to this
important effort. And in order to ensure a full record and
adequate consideration of this important issue, the record will
remain open for additional submissions for 7 days. Also, any
written questions that a Member wants to submit should be
submitted within the same 7-day period.
That concludes the Oversight Hearing on the
``Implementation of the USA PATRIOT Act: Section 218--Foreign
Intelligence Information. (`The Wall')'' I want to thank all
the Members for their attendance and their participation this
afternoon. We want to especially thank the witness panel for
being here and answering our questions. And if there's no
further business to come before the Subcommittee, we're
adjourned. Thank you.
[Whereupon, at 4 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
Prepared Statement of the Honorable Robert C. Scott, a Representative
in Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Thank you, Mr. Chairman, for holding this hearing on the issue that
has been foreshadowing much of our discussion about the PATRIOT Act--
the extent to which it dismantled ``the wall.'' Given that where we
have broken down the traditional wall between foreign intelligence
gathering, particularly foreign intelligence, and criminal proceedings,
to give the government broad authority to collect and share
information, mostly secretly, I am concerned that we have also blurred
the traditional line of protection for our privacy and freedoms.
While I agree that some lifting of the traditional restrictions in
this area were justified for the government to better use the
authorities it already had in many instances, I am also mindful that
those restrictions were placed there for a very good reason. We have
seen with ``COINTELPRO,'' Watergate, the FBI spying on Dr. Martin
Luther King, Jr., and with other incidents, what abuses can occur when
we do not keep a tight enough reign on the government's use of
extraordinary powers. We shouldn't have to experience those problems
again to ensure that such abuses do not occur.
When we operate in the foreign intelligence arena, we have
traditionally given fairly broad latitude for use of extraordinary
investigative tools abroad, particularly involving non-U.S. persons.
But when we turn those tools inward, we run a greater risk of including
U.S. persons in some of the investigative sweeps that occur, unless we
have sufficient barriers to prevent unwarranted extensions. Since much
of the foreign intelligence side is secretive and ex parte for the
government with no public oversight and review, we don't have the
traditional notice, challenge and public scrutiny on the criminal side.
We used to have the ``wall'' as a protection. With the wall gone, I
believe w should focus on establishing sufficient notice, challenge and
public reporting requirements to assure that foreign intelligence
operations do not unduly creep into domestic activities of U.S.
persons.
Some of our law enforcement officials seem to feel that the mere
inclusion of information regarding uninvolved, innocent persons amounts
to ``no harm, no foul'' if they are not arrested or subjected to having
to challenge the incursion or other process--a sort of ``what they
don't know won't hurt them'' philosophy. Yet, if overly broad
information is collected, it can be spread all over town, greatly
increasing the likelihood that your law enforcement, military or
intelligence agency neighbor will know private things about you that
you thought were private and known only by those to whom you knowingly
gave the information. So, the problem with the ``wall'' being broken
down isn't just improper acquisition and use of private information,
but one of preventing people from having it the first place, other than
those you gave it to with an expectation of privacy.
So Mr, Mr. Chairman, I look forward to the testimony of our
witnesses on the extent to which our privacies and freedoms are being
protected despite the dismantling of the ``wall'' through USA PATRIOT
and other measures, and what safeguards are needed to prevent the creep
of overly intrusive foreign intelligence operations and powers into the
privacy of U.S. persons.
Letter from William E. Moschella, Assistant Attorney General,
U.S. Department of Justice to the Honorable Dianne Feinstein
Letter from William E. Moschella, Assistant Attorney General,
U.S. Department of Justice to the Honorable Arlen Spencer
The Use of Section 218 in Terrorism Investigations
Submission by Peter Swire entitled ``The System of Foreign
Intelligence Surveillance Law''