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2005
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
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 26 AND APRIL 28, 2005
Serial No. 109–17
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Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
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STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
ADAM SMITH, Washington
CHRIS VAN HOLLEN, Maryland
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
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Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California
MARK GREEN, Wisconsin
TOM FEENEY, Florida
STEVE CHABOT, Ohio
RIC KELLER, Florida
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
ROBERT C. SCOTT, Virginia
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ANTHONY D. WEINER, New York
JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Special Counsel on Intelligence
and Homeland Security
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JASON CERVENAK, Full Committee Counsel
MICHAEL VOLKOV, Deputy Chief Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
HEARING DATES
Tuesday, April 26, 2005
PART I
Thursday, April 28, 2005
PART II
OPENING STATEMENT
April 26, 2005
The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
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April 28, 2005
The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
WITNESSES
April 26, 2005
The Honorable Mary Beth Buchanan, United States Attorney, Western District of Pennsylvania, U.S. Department of Justice
Oral Testimony
Prepared Statement
Mr. James A. Baker, Counsel for Intelligence Policy, U.S. Department of Justice
Oral Testimony
Prepared Statement
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Ms. Suzanne Spaulding, Managing Director, The Harbour Group, LLC
Oral Testimony
Prepared Statement
April 28, 2005
Mr. Kenneth L. Wainstein, interim U.S. Attorney, District of Columbia
Oral Testimony
Prepared Statement
Mr. James A. Baker, Counsel for Intelligence Policy, U.S. Department of Justice
Oral Testimony
Prepared Statement
Mr. Robert S. Khuzami, former Assistant U.S. Attorney, Southern District of New York
Oral Testimony
Prepared Statement
Mr. Gregory T. Nojeim, Associate Director/Chief Legislative Counsel, American Civil Liberties Union
Oral Testimony
Prepared Statement
APPENDIX
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Material Submitted for the Hearing Record
April 26, 2005
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
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S. Department of Justice, dated April 30, 2003, to the Honorable Orrin Hatch, Chairman, Committee on the Judiciary, United States Senate
Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S. Department of Justice, dated March 5, 2003, to the Honorable Orrin Hatch, Chairman, Committee on the Judiciary, United States Senate
Letter from Daniel J. Bryant, Assistant Attorney General, U.S. Department of Justice, dated July 31, 2002, to the Honorable Bob Graham, Chairman, Select Committee on Intelligence, United States Senate, and the Honorable Richard C. Shelby, Vice-Chairman, Select Committee on Intelligence, United States Senate
April 28, 2005
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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
Prepared Statement of the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan, and Ranking Member, Committee on the Judiciary
Redacted document ACLU received in response to a request under the Freedom of Information Act to disclose activity related to Transactional Records National Security Letters issued since October 26, 2001
Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Richard B. Cheney, President of the Senate, United States Senate
Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to L. Ralph Mecham, Director, Administrative Office of the United States Courts
Form National Security letter from the U.S. Department of Justice
Illustrations to show the implications of the PATRIOT Act and Doe v. Ashcroft on Section 2709 of the Electronic Privacy Act
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IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
Part I
TUESDAY, APRIL 26, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to call, at 10 a.m., in Room 2141, Rayburn House Office Building, the Honorable Howard Coble (Chair of the Subcommittee) presiding.
Mr. COBLE. Good morning, ladies and gentlemen. This week the Subcommittee on Crime, Terrorism, and Homeland Security will continue to review its review of the USA PATRIOT Act by conducting three hearings.
These hearings will examine the provisions that affected the Foreign Intelligence Surveillance Act of 1978, popularly known as FISA. Today we will hear testimony on sections 204, 207, 214, and 225 of the PATRIOT Act.
Additionally, we have asked the witnesses to address sections 6001 and 6002 of the Intelligence Reform and Terrorism Prevention Act of 2001, which amended FISA. These sections are similarly set to expire on December 31 of this year.
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The witnesses will discuss each provision in depth. With that in mind I will keep my comments brief and just mention the history of the Foreign Intelligence Surveillance Act of 1978. The Congress enacted the first Federal wiretap statute to prevent disclosures of Government secrets during World War I. Today, except under limited circumstances, it is unlawful to intercept oral, wire and electronic communications, access stored electronic communications, or use a pen register or trap and trace device.
It is furthermore unlawful to abuse electronic surveillance authority under the FISA. Today the U.S. Courts tend to use a two-pronged expectation of privacy analysis to determine whether the fourth amendment has, in fact, been violated.
This language is from Justice Harlan's concurrence in Silverman v. United States, in which he stated, and I quote, my understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first, that a person have exhibited an actual or subjective expectation of privacy, and second, that the expectation be one that society is prepared to recognize as reasonable, close quote.
Consistent with the fourth amendment, the Congress created statutory procedures to allow limited law enforcement access to private communications and communication records. Today under title III of the Omnibus Crime Control and Safe Streets Act of 1968, it is a Federal crime to intercept wire, oral, or electronic communications of another without court approval, unless one of the parties consents.
It is also a Federal crime to disclose any information illegally obtained. The Crime Control Act did not cover national security cases, however. In 1978, the Foreign Intelligence Surveillance Act was enacted to set standards for foreign intelligence investigations.
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FISA authorized the Government to collect intelligence within the United States on foreign powers and agents of foreign powers. FISA also established a special court to review and authorize or deny wiretapping and other forms of electronic eavesdropping for purposes of foreign intelligence gathering in domestic intelligence cases.
While the PATRIOT Act updated the FISA, it did not change the procedures against abuse. Before and after the enactment of the PATRIOT Act, FISA still requires advanced judicial approval for electronic surveillance and physical searches with limited exceptions.
FISA still requires a high-ranking Government official to sign and certify each FISA application. FISA still requires the Attorney General or his or her deputy to personally sign and approve every FISA application. FISA still requires that the Government must have probable cause to believe that a FISA target is an agent of a foreign power as defined by the statute.
And, if the target is also a U.S. Citizen, FISA still requires the Government to show that the target is engaged in criminal activity, such as international terrorism, sabotage or espionage, in addition to being an agent of a foreign power.
With this background on FISA, I look forward to hearing the testimony from the witnesses, and now recognize the distinguished gentlemen from Virginia, the Ranking Member, Mr. Bobby Scott, for his statement.
Mr. SCOTT. Thank you, Mr. Chairman, for holding this hearing on the issues before us today, in the context where we have actually broken down the wall that existed between foreign intelligence gathering, particularly foreign intelligence, and criminal proceedings, to give the Government broad authority to collect and share information, mostly secret.
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I am concerned that we have also blurred the traditional line of protection for freedoms and privacy. While I agree that some lifting of traditional restrictions in this area may be justified in order to induce Government to better use the authorities it already has, I am also mindful that those restrictions were placed there for good reason.
We have seen in the past the COINTELPRO, Watergate, FBI spying on Martin Luther King, Jr., and other incidents as an example of what can occur if we do not keep tight enough rein on Government's use of extraordinary power.
We should not have to experience those problems again in order to ensure that such abuses do not occur. Some of the provisions today reflect a trend that is troubling, the trend of Government to justify an ever-increasing extension of extraordinary powers based on convenience. We are considering time frames for surveillance operations that have been extended even more since the PATRIOT Act extensions, all because the Government says it is too costly for it to have to justify extensions in court, even under the low burden of the FISA court.
If we can commit to speed to spend billions of dollars in prisons and other law enforcement costs just to codify sound bites urged by the Department, we can certainly spend time and expense that it takes to ensure our privacy and freedoms are not unduly abridged.
And, Mr. Chairman, I believe it is important that we be safe and maintain our privacy and freedoms, and I don't think we should have to operate under the premise that we have to give up one in order to get the other.
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So, Mr. Chairman, I look forward to the testimony by witnesses on the provisions before us today, to learn how they are being used and how these extraordinary powers can be authorized, whether or not the sufficient oversight is being undertaken, and whether the powers are used in a way to protect our safety as well as privacy and freedoms. And I thank you again for calling the hearing.
Mr. COBLE. I thank the gentleman from Virginia. We have been joined by the distinguished gentleman from Michigan, the Ranking Member of the full Committee. Mr. Conyers, do you have an opening statement?
Mr. CONYERS. Just a comment. Thank you, Chairman Coble. We have three Members and three witnesses, so we all get a chance to make a comment.
I come here in support of expiration. There are three areas that I would like to see expire and not be renewed. One is section 207, one is section 214, and the other is the Lone Wolf provision, and I would like everybody to try to make it as clear as they can why they agree with me, hopefully.
Section 207 allows secret surveillance up to a year. The justification for allowing the extraordinary intrusions under the Foreign Intelligence Surveillance Act is the extensive judicial oversight by the FISA court. This section takes that reasonable oversight away and gives the Justice Department authority to surveil suspects long after the relevant issues, the facts have expired, and I think that is not good.
I look forward to hearing why section 214 should be reauthorized. Pen register and trap and trace orders no longer are needed to be aimed at an agent of a foreign power under this provision and are available under the vague standard of relevance. This is even more troublesome in light of how the PATRIOT Act has permanently expanded these orders to allow the Government to record the websites a person visits, and addresses and subject headings of the e-mails that are sent and received.
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And, finally, I hope that we examine the Lone Wolf provision, also set to expire this year, where a person need not be required to be connected with a terrorist organization.
FISA allows the secret surveillance, search and seizure, only because it is necessary to protect us from foreign powers. To expand FISA to apply to those who by definition have no connection to a foreign power starts law enforcement down a very obvious slippery slope.
And those are my comments, Chairman Coble. I thank you for this opportunity.
Mr. COBLE. I thank the gentleman from Michigan.
Ladies and gentleman, it is the practice of the Subcommittee to swear in all witnesses appearing before us. So if you would please stand and raise your right hands.
[Witnesses sworn.]
Mr. COBLE. Let the record show that each of the witnesses answered in the affirmative.
You may be seated. Today we have three distinguished witnesses. Our first witness is Mary Beth Buchanan, United States Attorney for the Western District of Pennsylvania.
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Ms. Buchanan has this distinction of being the first woman in Pennsylvania's history for this presidentially appointed position. Prior to her appointment as U.S. Attorney, Ms. Buchanan was an Assistant U.S. Attorney.
From 1992 to 2001, Ms. Buchanan served in the Criminal Division representing the United States in the prosecution of both financial and violent crimes. Ms. Buchanan is a graduate of the California University of Pennsylvania and the University of Pittsburgh School of Law.
Our second witness is Mr. James A. Baker. Mr. Baker has been a Counsel For Intelligence Policy in the Office of Intelligence Policy and Review at the Department of Justice since 2002.
He served as Acting Counsel from May 2001 until January of 2002. Prior to that he was OIPR's Deputy Counsel for Intelligence Operations. Prior to joining OIPR, he served as a Federal prosecutor handling numerous international white collar crimes for the Criminal Division of the Department of Justice.
Mr. Baker was awarded his undergraduate degree from the University of Notre Dame and his J.D. And M.A. From the University of Michigan.
Our final witness today is Ms. Suzanne Spaulding, the Managing Director at the Harbour Group. Recently Ms. Spaulding worked as the Executive Director of the two Congressionally mandated Commissions, the National Commission on Terrorism and the Commission to Assess the Organization of the Federal Government to Combat the Proliferation of Weapons of Mass Destruction.
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Ms. Spaulding received her undergraduate and law degrees from the University of Virginia.
Now, ladies and gentlemen, as you all have previously been told, we operate by the 5-minute rule here. Your testimony has been reviewed and will be rereviewed. So if you could comply with that 5-minute rule. We impose the same 5-minute rule against us when questioning you all. So when we examine you, if you can be as terse as possible that will speed matters along. I do not mean to hold a stopwatch on you, but we have things to do today.
So, Ms. Buchanan, you will start off. When the amber light appears that will advise you that you have a minute to go, and when the red light appears that indicates that the ice on which you are skating has become very thin.
Just a minute. If you will suspend, Ms. Buchanan, we have been joined by our friend from Massachusetts, Mr. Delahunt.
Ms. Buchanan, you are recognized for 5 minutes.
TESTIMONY OF THE HONORABLE MARY BETH BUCHANAN, UNITED STATES ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA, U.S. DEPARTMENT OF JUSTICE
Ms. BUCHANAN. Thank you, Mr. Chairman, Ranking Member Scott, Members of the Subcommittee. I am Mary Beth Buchanan, the United States Attorney for the Western District of Pennsylvania, and also the Director of the Executive Office for United States Attorneys.
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It is an honor to appear before you today to discuss the necessary provisions of the USA PATRIOT Act. As you know, there are three main themes of the PATRIOT Act: First, to facilitate the sharing of information between law enforcement and the intelligence communities; second, to modernize our legal tools to keep pace with technology; and, third, to create parity between the criminal law and the national security laws.
My remarks today will focus primarily on this third theme. Section 214 of the PATRIOT Act deals with the use of pen registers and trap and trace devices under FISA. A pen register is a device that can track dialing, routing, addressing, and signaling information about a telephone or Internet communication.
For example, which numbers are dialed from a particular telephone. A trap and trace device gathers the telephone numbers which call a particular telephone. In neither situation is content information collected. These devices are commonly used in the early stages of a criminal investigation to reveal who is talking to whom, and they can only be used upon certification to a judge that the information is relevant to an ongoing criminal investigation.
The information obtained often forms the building blocks supporting the issuance of search warrants and wiretap orders, and may also be very valuable at trial to show the connection between coconspirators.
The process for obtaining authorization for pen register or trap and trace from the FISA court is similar under section 214. The Government must show that the FISA court—or must show the FISA court that the information sought is relevant to an intelligence investigation. The FISA law, however, prohibits investigations of United States persons which are based solely upon activities that are protected by the first amendment.
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Let me give you two examples of how pen registers have been used in criminal cases in my district. The first example is a domestic terrorism case in which David Wayne Hull, a self-declared imperial wizard of the Ku Klux Klan was convicted and sentenced to 12 years in prison for illegal possession of firearms and destructive devices.
In that case, the use of pen registers and trap and trace devices showed that Hull was in frequent telephone contact with other members of a white supremacist organization, not only in Pennsylvania but in four other States. These tools eventually helped to obtain search warrants and title III orders and to convict Hull for those offenses.
Pen register information was also very essential to develop probable cause for a wiretap in a large multi-year drug investigation. Fifty-one defendants, responsible for bringing thousands of kilograms of cocaine and heroin into the Western District of Pennsylvania were convicted on money laundering, drug and firearm charges.
The pen registers helped to develop the probable cause to establish that these individuals were communicating with one another in order to transact their drug trafficking business. This information led to wiretaps and ultimately resulted in the conviction of all 51 defendants. In fact, most of the defendants pled guilty because they realized they had no defense to the charges.
More importantly, this case had a substantial impact upon the Western District of Pennsylvania. The availability of heroin and cocaine was dramatically reduced. In fact, the heroin overdose deaths declined from 138 in 2001 to 46 in 2003.
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These are just a few examples to show how important these tools can be in criminal investigations. The same tools must be available in national security investigations. Prior to the passage of the PATRIOT Act, FISA required the Government to certify that the facilities to be monitored had been used or were about to be used to contact a foreign agent or an agent of a foreign power.
Thus, this was a much higher standard and a much higher showing than was ever required under the criminal law to obtain a pen register or a trap and trace order. I hope that you will agree that terrorism investigations should be on equal footing with criminal investigations.
Section 214 of the PATRIOT Act does just that. We must continue to pursue the terrorists with every legal means available. We need the important tools of the PATRIOT Act to keep our Nation safe from terror attack.
I thank the Committee for its continued leadership and support, and I would be glad to answer your questions. Thank you.
[The prepared statement of Ms. Buchanan follows:]
PREPARED STATEMENT OF MARY BETH BUCHANAN
Mr. COBLE. Thank you, Ms. Buchanan. Mr. Baker, you are recognized for 5 minutes.
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TESTIMONY OF JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY, U.S. DEPARTMENT OF JUSTICE
Mr. BAKER. Thank you, Mr. Chairman. Chairman Coble, Ranking Member Scott and Members of the Committee, I am pleased to be here today to discuss the Government's use——
Mr. COBLE. Mr. Baker, if you will suspend just a minute. We have been joined by the distinguished gentleman from Ohio, Mr. Chabot.
Go ahead, Mr. Baker. I won't penalize you for those 10 seconds, Mr. Baker.
Mr. BAKER. Thank you, sir.
I am pleased to be here today to discuss the Government's use of the authorities granted to it by Congress under FISA, including the amendments to FISA under the USA PATRIOT Act and the Intelligence Reform Act of 2004. Those provisions have made a critical contribution to our ability to protect the national security of the United States consistent with the need to protect the privacy of Americans.
They affect nearly every FISA application that we file, and we ask you to renew them. As the Chairman mentioned, I am the Counsel for Intelligence Policy and the head of Office of Intelligence Policy and Review at the Department of Justice.
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OIPR, as we are known, conducts oversight of the intelligence and counterintelligence activities of the executive branch agencies, including the FBI, and my office prepares and presents to the FISA court all FISA applications, and we represent the United States before the FISA court.
I report directly to the Deputy Attorney General. I am a career member of the Senior Executive Service and not a political appointee.
Rather than reading my written statement into the record today, I would just like to make a few observations about FISA that I think will be helpful to our discussion generally today. First, I would just like to mention the overall purpose of FISA. As the Chairman discussed, FISA was enacted in 1978 to provide legislative authorization for and regulation of all electronic surveillance conducted in the United States for foreign intelligence purposes. FISA was not intended to prohibit the collection of important foreign intelligence information, but rather to subject such collection to statutory procedures.
Over the years, Congress has expanded the scope of FISA. In 1994 it was expanded to cover physical searches, in 1998 to provide for separate authorization for pen registers and access to certain business records. In 2001, of course, we have the PATRIOT Act that we are all familiar with and why we are here today.
In addition to that purpose of FISA, I would like to make clear, to describe that FISA established clear standards for who could be a target under FISA. Since 1978, the only authorized targets of full content FISA collection have been foreign powers and agents of foreign powers. Those terms are defined terms under the act. The PATRIOT Act did not change the definition of those terms.
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As you know, section 6001 of the Intelligence Reform Act did change one of the definitions of an agent of foreign power to include a non-U.S. Person who engages in international terrorism or activities in preparation therefor. This is the so-called Lone Wolf provision that we will discuss today.
Similarly, FISA only permits the use of other collection activities, such as pen registers, when there is a sufficient nexus between the information that will be collected and a legitimate intelligence investigation. And when the investigation involves a U.S. Person, it cannot be based solely on first amendment activities.
In addition, FISA includes various provisions to ensure accountability for the authorizations that are approved under FISA. It includes mechanisms, several mechanisms to ensure written accountability within the executive branch for the decision to engage in foreign intelligence collection. This serves as a check on executive branch arbitrariness. For example, each full content FISA application must have a certification from a high ranking official and must be signed by the—personally signed by the Attorney General or his Deputy. And FISA's other provisions also include mechanisms to ensure accountability.
In addition, there is judicial oversight of our activities under FISA. Whenever a surveillance or a search for foreign intelligence purposes may involve the fourth amendment rights of any U.S. Person, approval for such collection must come from a neutral and detached Federal judge.
Moreover, even when such fourth amendment rights are not implicated, such as for pen register data, FISA still requires approval by a Federal judge or magistrate before the Government can engage in such collection.
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Finally, I would like to highlight some additional privacy protections that are in FISA, and they are known as minimization requirements. The Government may only conduct a full content surveillance or search when there are adequate procedures in place to minimize the intrusion into the privacy of U.S. Persons. Each application that we file for full content collection must include specific minimization procedures that are approved by the Attorney General, are reasonable in their design, and minimize the acquisition, retention and dissemination of information about U.S. Persons, consistent with the need of the Government to obtain, produce, and disseminate foreign intelligence. In each case, the Federal judge orders the Government to follow those procedures.
With these principles in mind, I am happy to answer any questions the Committee may have on our use of FISA and the authorities granted to us by Congress in the PATRIOT Act and the Intelligence Reform Act.
[The prepared statement of Mr. Baker follows:]
PREPARED STATEMENT OF JAMES A. BAKER
Baker1.eps
Baker2.eps
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Baker4.eps
Mr. COBLE. Thank you, Mr. Baker. Ms. Spaulding.
TESTIMONY OF SUZANNE SPAULDING, MANAGING DIRECTOR, THE HARBOUR GROUP, LLC
Ms. SPAULDING. Chairman Coble, Ranking Member Conyers, and Subcommittee Ranking Member Scott and Members of the Committee, thank you for inviting me to participate in today's hearing.
I understand that this is just one of many hearings the Committee will be holding on the implementation of the USA PATRIOT Act. I commend you for your commitment to undertaking a thorough examination of these significant provisions.
I would like to begin my testimony by emphasizing that I have spent over 20 years working on efforts to combat terrorism, starting in 1984 as Senior Counsel to Senator Arlen Specter of Pennsylvania, who introduced and guided to enactment the first law to provide extraterritorial jurisdiction over terrorist attacks against Americans abroad.
Over the last 2 decades in my work at the Central Intelligence Agency, at Congressional intelligence oversight Committees, and as Executive Director of two independent commissions, I have seen how the terrorist threat changed, from one aptly described in the mid-1980's by Brian Jenkins'famous remark that, quote, terrorists want a lot of people watching, not a lot of people dead, to one that is now more aptly described by former DCI Jim Woolsey's observation that the terrorists of today don't want a seat at the table, they want to destroy the table and everyone sitting at it.
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There is no question that today we face a determined set of adversaries bent on destroying American lives and America's way of life. The counterterrorism imperative is to deny the terrorists both of these objectives.
My testimony this morning attempts to assess how well two key provisions, in particular the Lone Wolf amendment and section 214, satisfy this counterterrorism imperative. Let me start with the Lone Wolf amendment to FISA.
The Foreign Intelligence Surveillance Act is an extremely important national security tool. The problem with the Lone Wolf provision is that it needlessly undermines the policy and constitutional justification for this essential authority. The Lone Wolf provision is often referred to as the Moussaoui fix. But, in fact, no fix was needed in the Moussaoui case, because it was not FISA's requirements that prevented the FBI from gaining access to his computer back in August of 2001. The problem was the FBI's misunderstanding of FISA's requirements.
This conclusion is supported by the findings of the Joint Congressional Intelligence Committee inquiry into the 9/11 attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 Commission.
As the Senate Judiciary Committee report explained, the FBI did not have a proper understanding of either the probable cause standard or the legal definition of the agent of a foreign power requirement. Specifically, the Bureau was under the incorrect impression that the statute required a link to an already identified or recognized terrorist organization.
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The Senate Judiciary Committee report explains that while a group is not defined in FISA, in common parlance and using other legal principles, including criminal conspiracy, a group consists of two or more persons whether identified or not. And the probable cause standard does not mean more likely than not or an over 51 percent chance, but only the probability and not a prima facie showing.
The report concluded that the Government did have sufficient information to meet the FISA standard and gain access to Moussaoui's computer.
Some would argue that we ought to include the Lone Wolf amendment to FISA anyway, just in case. The problem with this reasoning is that it comes at a high cost. In addition to being unnecessary, the Lone Wolf provision, by extending FISA's application to an individual acting entirely on their own, undermines the policy and constitutional justification for the entire FISA statute.
When Congress enacted FISA, according to the Senate report, it carefully limited its application in order to, quote, ''ensure that procedures established in FISA are reasonable and in relation to legitimate foreign counterintelligence requirements and the protective rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed and supported from abroad by foreign intelligence services and foreign-based international terrorist groups.''
The Congressional debate and the court cases that informed and followed it clearly reflect the sense that this limited exception from normal criminal warrant requirements is justified only when dealing with foreign powers or their agents, and was further enforced in the FISA court of review opinion.
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Congress should let the Lone Wolf provision sunset. If the Government can make a compelling case that targets have escaped necessary surveillance because the Government has been unable to meet the relatively low probable cause standard for showing that at least one other person is involved, Congress could consider creating a permissive presumption that if there is probable cause to believe that a non-U.S. Person is engaged in or preparing for international terrorist activities they can be considered an agent of a foreign power. However, if it ultimately becomes clear that the target is acting alone a criminal warrant should be sought.
And I would be happy to address sections 214 and 207 in the question and answer period.
[The prepared statement of Ms. Spaulding follows:]
PREPARED STATEMENT OF SUZANNE E. SPAULDING
Mr. Chairman, Ranking Member, and members of the committee, thank you for inviting me to participate in today's oversight hearing on the implementation of certain sections of the USA PATRIOT Act and the Lone Wolf provision, all of which are subject to sunset provisions. I understand that this is just one of many hearings that the committee will be holding on the implementation of USA PATRIOT Act and I commend the committee for its commitment to undertaking a thorough examination of these significant provisions.
I would like to begin my testimony today by emphasizing that I have spent over twenty years working on efforts to combat terrorism, starting in 1984 as Senior Counsel to Senator Arlen Specter of Pennsylvania, who introduced and guided to enactment the first law to provide extraterritorial jurisdiction over terrorist attacks against Americans abroad. Over the last two decades, in my work at the Central Intelligence Agency, at congressional intelligence committees, and as Executive Director of two different commissions on terrorism and weapons of mass destruction, I have seen how the terrorist threat changed from one aptly characterized by Brian Jenkins famous remark that ''terrorists want a lot of people watching, not a lot of people dead,'' to one better described by former DCI Jim Woolsey's observation that ''the terrorists of today don't want a seat at the table, they want to destroy the table and everyone sitting at it.'' There is no question that today we face a determined set of adversaries bent on destroying American lives and our way of life. The counterterrorism imperative is to deny the terrorists both of these objectives.
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My testimony this morning attempts to assess how two key provisions, the Lone Wolf amendment and section 214, satisfy this counterterrorism imperative.
LONE WOLF
The Foreign Intelligence Surveillance Act (FISA) is an extremely important national security tool. The problem with the Lone Wolf provision is that it needlessly undermines the policy and constitutional justification for this essential authority.
The common wisdom—''if it ain't broke, don't fix it''—was ignored when Congress enacted the ''lone wolf'' amendment to the Foreign Intelligence Surveillance Act (FISA), allowing its use against an individual acting totally alone, with no connection to any foreign power, so long as they are ''engaged in international terrorism or activities in preparation therefor.''
I think it's important for the committee to separate the true lone wolf from the case of someone who's connection to a terrorist group is simply unclear. If there is a legitimate concern about the ability of the government to show the necessary connection to an international terrorist group—and I am not convinced there is—then there are better ways to address this concern than to extend FISA to someone that we know is acting entirely alone.
Let's start with the case of someone who's connection to an international terrorist group may be unclear. I would urge the committee to carefully consider whether the government has made a compelling case that they need the lone wolf provision to address this concern.
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The lone wolf provision is often referred to as the ''Moussaoui fix.'' In fact, no ''fix'' was needed in the Moussaui case because it was not FISA's requirements that prevented the FBI from gaining access to his computer back in August of 2001. The problem was the FBI's misunderstanding of FISA. This conclusion is supported by the findings of the Joint Congressional Intelligence Committee Inquiry into the 9/11 Attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 Commission.
In order to obtain a FISA order authorizing access to Moussaoui's computer, the FBI needed to show probable cause to believe that Moussaoui was acting ''for or on behalf of a foreign power.'' A foreign power is defined to include a group engaged in international terrorism. As the Senate Judiciary Committee Report explained, the FBI misunderstood the FISA requirement:
In addition to not understanding the probable cause standard, the (the Unit Chief) did not have a proper understanding of the legal definition of the ''agent of a foreign power'' requirement. Specifically, he was under the incorrect impression that the statute required a link to an already identified or ''recognized'' terrorist organization, an interpretation that the FBI and the supervisor himself admitted was incorrect.
FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, An Interim Report by Senators Patrick Leahy, Charles Grassley, & Arlen Specter (February 2003) at p. 17.
The Judiciary Committee Report, echoing the House Report accompanying FISA in 1978, explained that while ''a group'' is not defined in FISA, ''in common parlance, and using other legal principles, including criminal conspiracy, a group consists of two or more person whether identified or not.'' Moreover, remember that the FBI does not have to ''prove'' the target's connection to a terrorist group. They must merely meet the ''probable cause'' standard, which, as the Judiciary Committee Report points out, does not mean ''more likely than not'' or ''an over 51% chance,'' but ''only the probability and not a prima facie showing.'' The Report concluded that ''there appears to have been sufficient evidence in the possession of the FBI which satisfied the FISA requirements for the Moussaoui application'' (p. 23). Thus, no ''fix'' was required to search Moussaoui's computer.
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Even if the FBI had not been able to meet the relatively low ''probable cause'' standard for showing that Moussaoui was working with at least one other person, the FBI could very likely have obtained a criminal warrant to search Moussaoui's computer. They did not pursue that because they were concerned that doing so would preclude them from getting a FISA warrant later if they were turned down for the criminal warrant or ultimately did develop what they thought was sufficient information linking him to a terrorist group. This concern was based on the ''primary purpose'' test—viewed as precluding the use of FISA if the primary purpose was criminal prosecution rather than intelligence collection—which was subsequently changed in the USA PATRIOT Act.
Now that this ''primary purpose'' test has been eliminated, and particularly in light of a subsequent opinion by the Foreign Intelligence Surveillance Court of Review, this would no longer be a concern and the government today could seek a criminal warrant without concern of precluding future use of FISA.
Nor would the need to use sensitive information in the criminal warrant application be a compelling concern, since the criminal wiretap statute already imposes security requirements upon the judiciary in connection with crimes such as espionage, sabotage, and treason. In addition, classified information already is shared with judges in the context of the Classified Intelligence Procedures Act.
One might argue that we should include the Lone Wolf option in FISA ''just in case.'' The problem with this reasoning is that it comes at a high cost. In addition to being unnecessary, the lone wolf provision—by extending FISA's application to an individual acting entirely on their own—undermines the policy and constitutional justification for the entire FISA statute.
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When Congress enacted FISA, according to the Senate Report, it carefully limited its application in order ''to ensure that the procedures established in [FISA] are reasonable in relation to legitimate foreign counterintelligence requirements and the protected rights of individuals. Their reasonableness depends, in part, upon an assessment of the difficulties of investigating activities planned, directed, and supported from abroad by foreign intelligence services and foreign-based terrorist groups.'' Senate Report 95–701, at 14–15 (emphasis added).
The Congressional debate, and the court cases that informed and followed it, clearly reflect the sense that this limited exception from the normal criminal warrant requirements was justified only when dealing with foreign powers or their agents. Most recently, the FISA Court of Review (FISCR) cited the statute's purpose, ''to protect the nation against terrorists and espionage threats directed by foreign powers,'' to conclude that FISA searches, while not clearly meeting ''minimum Fourth Amendment warrant standards,'' are nevertheless reasonable.
The FISA exception to the Fourth Amendment warrant requirement was not based simply on a foreign nexus; it did not apply to every non-US person whose potentially dangerous activity transcended US borders. It was specifically limited to activities involving foreign powers.
Individuals acting entirely on their own simply do not implicate the level of ''foreign and military affairs'' that justify the use of this extraordinary foreign intelligence tool.
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The requirement that the lone wolf must be ''engaged in international terrorism or acts in preparation therefore'' does not solve this problem. Nowhere in FISA's definition of ''international terrorism'' is there any requirement for a connection to a foreign government or terrorist group. The definition of international terrorism merely requires a violent act intended to intimidate a civilian population or government that occurs totally outside the United States, or transcends national boundaries in terms of the means by which it is accomplished, the persons it appears intended to coerce or intimidate, or the locale in which the perpetrators operate or seek asylum. This would cover an individual inside the US who uses a gun that was purchased in Mexico to threaten a teacher in a misguided attempt to get the government to change its policies on mandatory testing in schools.
Nor should we rely upon FISA judges to ensure that an overly broad standard is only applied in ways that are sensible, since the law makes clear that they must approve an application if the standards set forth in the statute are met.
Congress should let the lone wolf provision sunset. If the government can make a compelling case that targets have escaped necessary surveillance because the government has been unable to meet the relatively low ''probable cause'' standard for showing that at least one other person is involved, then Congress could consider creating a permissive presumption that if there is probable cause to believe that a non-US person is engaged in or preparing for international terrorist activities, they can be considered an agent of a foreign power. If it ultimately becomes clear that the target is acting alone, a criminal warrant should be sought.
If nothing else, Congress should seriously reconsider its decision to ''fix'' FISA by slipping the ''lone wolf'' into the definition of an ''agent of a foreign power.'' By defining an individual acting totally alone, with no connection to any other individual, group, or government, as ''an agent of a foreign power,'' Congress adopted the logic of Humpty Dumpty, who declared: ''When I use a word, it means just what I choose it to mean.'' Unfortunately, this legislative legerdemain stretched the logic of this important statutory tool to a point that threatens its legitimacy. If its use against a true lone wolf is ever challenged in court, FISA, too, may have a great fall.
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SECTION 214
Section 214 expands the pen register and trap and trace authority under FISA. Prior to this expansion, these orders could be issued only if there was reason to believe that the telephone line or other communication device had been or was about to be used to communicate with an individual involved in international terrorism or spying that may violate US criminal laws or, in the case of an agent of a foreign power, communications that may concern international terrorism or spying that violate criminal laws. The new standard is significantly lower. Now these orders must be issued if it is merely ''relevant'' to ongoing investigation to protect against international terrorism or spying. This is justified as being consistent with the standard for pen registers and trap and trace authority in the criminal context, which requires that the communications be relevant to an ongoing criminal investigation.
Without addressing the appropriateness of the criminal standard, let me try to explain why I am uncomfortable with the government's argument that whatever powers it has in the ordinary criminal context, it should have for international terrorism investigations—an argument it has made to justify many post-9/11 expansions of power.
The rules that apply in the criminal context require some kind of criminal predicate. Not necessarily that a crime has already been committed, but that the activity that is targeted would violate a criminal statute. Under our constitution, criminal activity must be well defined so that individuals are clearly on notice with regard to whether their actions may violate the law and thus justify government scrutiny.
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The language in section 214 and elsewhere drops all references to any criminal predicate, referring instead to ''an investigation to protect against international terrorism.'' These investigations can be based merely on ''suspicious activity''—something that has not yet been defined and which any one of us might engage in without even knowing it. The implications of this distinction are potentially profound and have not, I believe, been fully considered.
Beyond this concern, it is also troubling that the only caveat in section 214 with respect to US persons is that the investigation cannot be based ''solely'' upon activities protected by the First Amendment to the Constitution. Doesn't this mean that the non-First Amendment activity could be extremely minor or insignificant, since even that would take it out of the realm of relying ''solely'' on First Amendment activity?
Concerns about the new standard in section 214 are similar to concerns expressed about the nearly identical standard provided for Section 215 of the PATRIOT Act, which provides authority for the FBI to compel anyone to produce any tangible thing in their possession as part of a terrorism investigation. I am certain that the committee will spend a great deal of time considering the range of concerns raised by section 215. Thus, I will not go into these concerns in detail but would urge the committee to keep section 214 in mind when it considers the standard in section 215.
The concerns with section 214 are often downplayed because it does not provide authority to intercept the ''content'' of the communications and, thus, the assumption is that there is no reasonable expectation of privacy. However, as you know, section 216 of the PATRIOT Act, which is not subject the sunset provisions, expanded pen register and trap and trace authority to activity on the Internet, where it is far more difficult to separate content from routing and addressing information. If a pen register served on an ISP requires disclosure of the URL, for example, that will almost always reveal the subject matter. Furthermore, if the government simply looks up the URL on the Internet, they can view the entire content of the page that you visited. This makes it more analogous to section 215's authority for the FBI to find out what books you are reading, and this is another reason that the committee should reconsider section 214 when it considers section 215.
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CONCLUSION
Let me close by again commending the committee for its commitment to ensuring that the government has all appropriate and necessary tools at its disposal in this vitally important effort to counter the terrorist threat. We often say that Democracy is our strength. The unique relationship between government and the governed in a democracy is a key source of that strength. These hearings, and your willingness to carefully consider whether these provisions adopted in haste in a time of great fear should be renewed or modified, will contribute significantly to restoring the necessary public confidence that the government is protecting both American lives and America's way of life. Thank you.
Mr. COBLE. Thank you. I commend each of you for not having violated the red light rule. You all came in under the wire.
Folks, our Subcommittee has been blessed, generally, with the appearance of excellent witnesses. Today is no exception. I think we have a very fine panel before us. Mr. Baker, let me start with you.
Why was it necessary to extend the surveillance from 90 days to 120 days and the period of physical searches from 45 to 90 days?
Mr. BAKER. Mr. Chairman, this was an effort to be reasonable in the sense that we were after—especially after 9/11, we were crushed, my office was crushed with the number of FISA applications that were going through. And so we were looking for ways to try to enable us to use our resources more effectively and more efficiently to protect the privacy of Americans.
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So what we did by proposing this was to focus, with respect to the 90-day to 120-day and 1-year provisions, to focus on cases involving non-U.S. Persons. And these non-U.S. Persons are individuals who act in the United States as officers or employees of a foreign power or act as a member of an international terrorist group. So it was our assessment that this was an area where the privacy interests at issue for Americans were lower, and, therefore, by allowing us to use resources on the cases where Americans were targeted, that was a better use of our resources. That was where the civil liberties issues were more focused and was a better use of our resources in general there.
Mr. COBLE. So, now, assuming this extension is in fact enacted, could the Government go back to court and request an extension of the orders upon expiration of the time frame; that is, the 120 or the 90 days?
Mr. BAKER. Yes. The expiration—we would obtain authorization for one of these individuals in the first instance, for 120 days, and then the expiration—at the expiration of 120 days, we would seek an extension for 1 year.
Mr. COBLE. Thank you, sir.
Ms. Spaulding, you said you might want to talk about the other sections you did not allude to. So fire away.
Ms. SPAULDING. Thank you, Mr. Chairman. With regard to section 207 and the duration of FISA orders, if the Government is indeed able to make a compelling case to the Committee that it is overly burdensome to file for extensions more frequently, my suggestion would be that at a minimum the Committee consider broadening the discretion of the FISA judge to enter an order for a shorter period of time under certain circumstances.
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There are undoubtedly situations which you might consider a slam dunk, to use an unfortunate term, where it is quite clear that you are going to be getting valuable information from a FISA surveillance.
There are other circumstances in which it maybe is not quite so clear, in which a FISA judge ought to have the discretion, as they do apparently, in the extensions of an order, to enter it for up to the period of time. But, in the initial order, the language is not clear as to whether the FISA judge has this discretion to ask the Government to come in at an earlier point in time, and that would be my suggestion on 207.
Mr. COBLE. I thank you. Ms. Buchanan, let me put a multifaceted question to you. How are pen registers typically used in criminal investigations, A, and does 214 authorize pen registers for intelligence investigations to obtain the content of a conversation, e-mail or phone call? And, finally, what kind of information does section 214 allow the Government to obtain?
Ms. BUCHANAN. Pen registers are obtained in order to collect the information that is dialed from a telephone, the numbers that are dialed, the routing information. This is not content information. This type of information is collected by the Government to show connections between individuals, to develop probable cause, to further develop a case.
These procedures are utilized early in an investigation. Section 214 permits the Government to obtain this information in intelligence investigations as well as the criminal law. Neither under the criminal law or under section 214 can the Government collect content information. So that is not permissible under either statute.
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Mr. COBLE. Well, I think we will probably have a second round because we do not have that many Members here, and this is indeed important. So I will suspend, waiting for the second round.
I recognize the gentleman from Virginia.
Mr. SCOTT. Thank you, Mr. Chairman. Let me follow through on that. On the pen register, trap and trace warrants, you say you cannot get content. That is on the telephone conversations. How do e-mail and websites fare under that standard?
Ms. BUCHANAN. It is really no different, Congressman Scott. Content information is not collected either under a pen register for a telephone or under a pen register of e-mail. Content is not collected. The statute——
Mr. SCOTT. What do you get on e-mail or websites?
Ms. BUCHANAN. The statute is designed to collect just the routing information, who is talking to whom, not the content. The statute specifically deals——
Mr. SCOTT. What do you get on an e-mail?
Ms. BUCHANAN. With an e-mail you just get the routing information, where the e-mail went, who the e-mail was addressed to, not the subject or not any of the content. The statute——
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Mr. SCOTT. No subject line.
Ms. BUCHANAN. No subject line. The statute anticipates that in some circumstances there could be inadvertent collection. The statute requires the Government to use the latest technology to prevent that from happening, and in the inadvertent situation when it does happen the Government is required to minimize this information and not to use it.
Mr. SCOTT. What about websites?
Ms. BUCHANAN. The same would apply to a website. This information——
Mr. SCOTT. Do you get to know which website was looked at?
Ms. BUCHANAN. The information that is sought is where the e-mail traffic was routed to.
Mr. SCOTT. What about—website is not an e-mail. Can you find out what websites I have looked at?
Ms. BUCHANAN. I think I am going to defer to Mr. Baker.
Mr. BAKER. Well, this is the——
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Mr. SCOTT. I just say that because a website, if you know what website it was you know what I was looking at. If there were dirty pictures that would be embarrassing. Can you find out whether or not I was looking at dirty pictures, or whether or not I just accessed AOL?
Mr. BAKER. There are two issues here. The one issue is what does the technology allow us to do, and then what does the law allow us to do?
In situations where the technology would not sort of by default restrict the—looking down at particular web pages at a particular website, there are internal Department of Justice procedures as recognized by the statute that are in place to try to address the situation that you are describing.
So the law indicates that we are not allowed to collect the content, technology sometimes is not able to do that, to sort of defeat the content, and there are provisions in place in terms of policies to, in effect, minimize that kind of collection for—in other words——
Mr. SCOTT. Well, you recognize the fact that if you have—the website you look at has content implications, if there are certain health care websites, other kinds of websites, you can get some content just because you know what I have been reading.
Mr. BAKER. Yes. But these are communications—well——
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Mr. SCOTT. Or what books I bought off of amazon.com. When I go to a website and look at those books, the website, page by page, you can see what I have been doing, what I have been buying.
Mr. BAKER. Well, I mean, business records, books that you purchased from a company, that is not something that is protected by the fourth amendment. And so different standards apply when the Government wants to obtain that kind of information.
So the statute is written a particular way to prohibit the use of a pen register to get content. But, nevertheless, those materials and that example might not be protected by the fourth amendment.
Mr. SCOTT. These FISA warrants, there is reference to not a U.S. Citizen. Can a U.S. Citizen be the target of a FISA wiretap?
Mr. BAKER. Absolutely, yes. The law distinguishes and has different standards for when you want to—when your target is a non-U.S. Person or a foreign power and when your target is a U.S. Person.
Mr. SCOTT. Well, target of the investigation and target of the wiretap——
Mr. BAKER. I am talking about the target of the surveillance in terms of a full content FISA.
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Mr. SCOTT. Okay. Well, the target of the wiretap, does that have to be the target of the investigation? Suppose you find that somebody has a lot of information about your target. Can you wiretap that phone to get information about the target?
Mr. BAKER. The target is the person or the entity about whom you want to obtain information. So——
Mr. SCOTT. Suppose a U.S. Citizen has information, and would be—you find out that they are going to be talking about your target, and you can find out where they are going to be, get good information about your target. Can you wiretap—as part of the investigation of the target, can you wiretap somebody else to get information about your target?
Mr. BAKER. No. Only if I could show that that person was an agent of a foreign power. I would have to separately show, or that the other person is using or about—that my target—what I have—two things I have to show under FISA: that the target is an agent of a foreign power, and I have to establish that by probable cause, and the second thing, that the target is going to use the facilities or places of which the surveillance is going to be directed. So a telephone used by an innocent person that is not being used by the target is off limits unless I can make the statutory showing.
Mr. SCOTT. So you can only listen into conversations that involve the target?
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Mr. BAKER. It depends what facility I am targeting. If I am surveilling the target's home phone, let's say, and the target—and that is my target, and I can be up on that telephone, if other individuals use that phone, then I can continue my collection, and I deal with that through court authorized and approved minimization procedures.
This is exactly what happens in the title III arena as well. You come up on the telephone——
Mr. SCOTT. Well, that is the home phone. If you got this roving kind of thing and the bug is actually placed at his place where he volunteers a lot, like the National Democratic Headquarters, how do you listen in on other people's conversations there?
Mr. BAKER. Well, again, I am going to have to—I know that the roving positions are going to be the subject of a hearing on Thursday. But succinctly, all of the FISA provisions have within them these minimization procedures that I mentioned earlier, that minimize, that require the Government to minimize the acquisition, retention, and dissemination of the information that is collected.
And those are—and the court orders us to follow those procedures. The court reviews those procedures and orders us to follow them.
Mr. COBLE. I thank the gentleman. The gentlemen from Ohio is recognized for 5 minutes.
Mr. CHABOT. Thank you, Mr. Chairman. Mr. Baker, prior to the enactment of the Lone Wolf amendment, how difficult was it for intelligence agencies to obtain wiretap orders for foreign terrorists who do not belong to any identified terrorist organizations?
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Mr. BAKER. Well, it was not authorized by the statute for us to be able to do that. So the answer is we could not do that. We had to find a connection between the target and a foreign power, an international terrorist group or a foreign government, so on.
But it is worth mentioning that from the beginning, from 1978, an international terrorist group could consist of as few as two people. So the difference here really is going, at the minimum, or at the base level, I guess, from a group of two people to a group, if you will, of one person.
Mr. CHABOT. And what must the FISA court find before issuing a surveillance order under the Lone Wolf provision?
Mr. BAKER. That the Lone Wolf, that the target is an agent of a foreign power, meaning in this context that they are a non-U.S. Person, that is critical to remember, non-U.S. Person, who engages in international terrorism or activities in preparation therefor. So this is the Lone Wolf who—an individual who could, I mean, in sort of the doomsday scenario, the things that we are most worried about, an individual who might have access to some kind of a weapon of mass destruction, chemical, biological, nuclear, or radiological weapon, attempt to use a device such as that in the United States, but have no known or apparent connection to another individual or a group or a foreign government.
Mr. CHABOT. And do you believe that real or apparent Lone Wolf terrorists could threaten the safety and security of the American people?
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Mr. BAKER. Absolutely. As I have just described, that is what we are very worried about. And it seems to me that, I mean, as the FISA court of review said back in 2002, FISA is constitutional because the searches it authorizes are reasonable.
And it seems to me that targeting an individual such as the one I just described, bringing in a weapon of mass destruction into the United States, under the fourth amendment that is reasonable, and I think therefore that this provision of FISA is certainly constitutional.
Mr. CHABOT. Now, critics of the Lone Wolf provision argue it is a dangerous expansion of authority allowing the application of FISA to individuals lacking any connection to foreign powers.
Do you agree with Mr. Woods who counters this claim on patriotdebates.com when he says, quote, the language actually enacted, however, integrates a definition of international terrorism that preserves a sufficiently strong foreign nexus requirement, unquote?
And if so, could you explain that nexus and why it is important.
Mr. BAKER. Yes, I agree with that comment. Again, to be an agent of a foreign power under this provision, you have to first be a non-U.S. Person and you have to be engaged in international terrorism activities. International terrorism is a defined term under the statute. It includes or covers or applies only to, said differently, violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or would be if committed here, that have a coercive or intimidation factor associated with them, and occur outside the United States or transcend national boundaries, and the perpetrators, the locale that they are going to be taking place in, or the places where the target is going to seek asylum.
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And so there is a nexus to international terrorism. You cannot use the Lone Wolf provision to conduct electronic surveillance of a U.S. Person who is engaged in domestic terrorism in the United States. It doesn't apply to that kind of situation.
Mr. CHABOT. Okay. And who determines whether an individual will be classified as a Lone Wolf and what are the criteria used in making such a determination?
Mr. BAKER. Well, at the end of the day it is the FISA court. We have to go before the FISA court before we can get one of those approvals. Prior to that, the Attorney General must sign every application that would use the Lone Wolf provision. Before that, you would have to have a certification from someone, such as the Director of the FBI or another high ranking Government official with national security responsibilities. And my office reviews that, the FBI reviews that and so on.
And, again, the legal foundation is that there is probable cause to believe that the target is an agent of a foreign power under the standard I just articulated, and that they are using or are about to use the facilities at which the surveillance will be directed.
Mr. CHABOT. Finally, has provision alone resulted in a dramatic increase in the use of FISA warrants in situations that do not justify such extraordinary Government power?
Mr. BAKER. Well, I would—I mean I would say, first of all, the number of times that we have used this I believe is still classified, so I can't discuss that today.
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But I would say that, I mean certainly, whenever—if we can meet this standard, I think that surveillance of such a person would be justified and would be warranted.
Mr. CHABOT. Thank you. I know that the light is ready to come on. So I yield back the balance of my time.
Mr. COBLE. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. I remember Attorney Buchanan pointing out how helpful some of the provisions here in the PATRIOT Act were. But the convictions were only criminal convictions. They had nothing to do with terrorism.
Ms. BUCHANAN. That is correct, Mr. Conyers. I was demonstrating how the pen register is used in a criminal case, because, of course, those cases are not classified and the pen register is used in the same manner under FISA.
So I was demonstrating how it can collect noncontent information to show connections between individuals and how that information can be used to later build upon the investigation and ultimately result in convictions.
Mr. CONYERS. Have there ever been any terrorist convictions in the United States?
Ms. BUCHANAN. Well, we just had one last week.
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Mr. CONYERS. Well, you had a plea of guilty.
Ms. BUCHANAN. Well, that is a conviction.
Mr. CONYERS. Congratulations. Any others?
Mr. BAKER. Well, I think——
Mr. CONYERS. Can you think of any others, Counsel?
Ms. SPAULDING. No.
Mr. CONYERS. Can you? I am just inquiring.
Mr. BAKER. Mr. Congressman, you are looking for trials, actually where someone was convicted following a trial is what I am gathering from your question.
Mr. CONYERS. Well, there has only been one plea of guilty, and no trials, according to what I know.
Mr. BAKER. Well, I can't remember off the top of my head every conviction. But we have the cases up in Buffalo, the Lackawanna cases, we have the cases in Portland, we have the cases in Virginia as well, I think the Virginia cases, the so-called Virginia Jihad Group. Those I believe were convictions following a trial before a jury. So I think the answer is yes.
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Mr. CONYERS. All right. Let me ask Attorney Spaulding. I am trying to shape this notion, the feeling that I have is that the way these things are written and interpreted that the intelligence community can do just about anything they want anyway.
Can you make me feel better about that and get that out of my system, and really believe that—I mean, I would like to imagine a situation where they are only looking for the phone numbers that you are calling and who you are calling, but they don't want to hear the substance, and they are sitting up there, and I am trying to really keep a straight face and believe that they are not going to listen to substance—I mean, what—this whole area is so general and vague. I remember the former Attorney General refusing court orders flat out. They asked him, I think, to produce something. He said no, he is just not doing it. They can do whatever they want.
Ms. SPAULDING. My sense, from working in the intelligence community and on the staff of the oversight Committees, is that the intelligence community takes its legal obligations very seriously, that in fact they endeavor to stay on the right side of U.S. Law.
Needless to say, espionage is a violation of laws of virtually every country in the world. So they are violating law when they operate overseas. But they take very seriously their obligation to follow U.S. Law.
But it is also the case that law enforcement and intelligence communities will use all of the authority that the law gives them, and they will use it to its fullest to accomplish their mission, which is why it is so important to make sure that the law is clear and appropriate, not overly broad and not vague.
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The concern with respect to the potential for section 214 to provide access to content that was illustrated by Mr. Scott's questions, particularly most acute in the Internet context, is a legitimate concern. And it is why I think that it ought to be, that section 214 ought to be reconsidered by this Committee when it looks at section 215. The standards are very similar, and I would hope that 215 will be discussed in that same context.
Attorney Buchanan talked about the standard is parallel to that in the criminal context, ''relevant to a criminal investigation for criminal context, and relevant to an international terrorism'' or investigation to protect against terrorism in the FISA context, and I would simply urge the Committee to carefully consider the import of that distinction.
Mr. CONYERS. Last question. If Chairman Coble in his usual fairness were to allow us to drop one of these three, Lone Wolf, 214, 207, and we had a quick conference, wouldn't you agree that the Lone Wolf provision is the most troublesome?
Ms. SPAULDING. I would, yes.
Mr. CONYERS. Thank you.
Mr. COBLE. The gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Thank you, Mr. Chairman. Ms. Spaulding, could you comment on the testimony by Mr. Baker, Mr. Baker and his analysis of the necessity of the Lone Wolf provision?
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Ms. SPAULDING. Yes.
Mr. DELAHUNT. I sense a nuanced disagreement. And then I will ask you, Mr. Baker, to comment on her response.
Ms. SPAULDING. I think it's important. I believe that FISA—the justification for FISA is not based on the dangerousness of the threat. Clearly a domestic terrorist can wreak just as much havoc as an individual who has transcended international borders in the means by which they carry out their act. So I don't think FISA is just based on that ground. In fact, what the courts and the Congress have said is that FISA is based on a compelling Government need that exists in the context of an international group; that exists in the context where you've got more than one player so that you're likely to get something out of listening to this conversation, and because there is more than one player and it involves an international group, the challenges for the collection of that intelligence and the need for continued secrecy because there are other players involved are what provide the justification of FISA, and this is totally lacking in the context of an individual acting solely on their own. And I think that is a very important distinction because you get caught up in the nature of the threat.
Mr. BAKER. Again, Congressman, I think that the basic answer is that the searches and surveillances that FISA authorizes are constitutional because they are reasonable. And it's our assessment that focusing on somebody like a lone wolf, somebody——
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Mr. DELAHUNT. Let me interrupt you for a moment. You use the hypothetical of an individual coming in with weapons of mass destruction. I'm talking about, you know,—I understand the concerns. But by implication, doesn't that qualify as—by inference, isn't there a reasonable inference that there is a group, that there is a conspiracy of some sort just simply because of the acquisition, if you will, the transmission? I'm sure that a weapon of mass destruction just doesn't appear out of thin air on someone's door.
Again, I think, you know, that was the point that I think I heard earlier from Ms. Spaulding. You know, I think there are other means, other than the provision itself to achieve the result you're looking for.
Mr. BAKER. In a situation such as we're describing here, time will be—if we are faced with that, time will be of the essence.
Mr. DELAHUNT. You know, this whole time issue continues rising like there is an immediacy to it. If there is in the possession of the Government and investigatory agencies, I can't imagine a scenario where there is not implicated a co-conspirator. I simply can't.
Mr. BAKER. You might not be able to imagine that, but we have to have some evidence to establish that before the FISA court.
Mr. DELAHUNT. I understand that. But I would think a FISA judge sitting on, you know, being presented an affidavit—included in the affidavit would be some reference to another individual. I mean, there has to be a minimal level of evidence there.
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Mr. BAKER. Whether or not I could come up with as a creative lawyer and explain to the FISA court reasonable instances and so on in a particular factual situation is one thing. But the question is, doesn't it make more sense to have a clear standard already in the law that doesn't force us when we are under the gun in terms of time pressure to try to concoct something that may not fly.
Mr. DELAHUNT. This is always going to be the balancing act that, you know, is implicated in our Constitution.
Ms. Spaulding.
Ms. SPAULDING. And there is always the option of going for a title III criminal warrant if ultimately you are unable to show a connection with any other person. The hardest thing about frustrating a lone wolf terrorist attack is not accessing their communications but finding the lone wolf.
Mr. BAKER. FISA is a good tool to use in these situations because the information we have about this target, this lone wolf may be from a sensitive source. And we don't want to necessarily put that source at issue in a criminal proceeding. We want to use the protections that FISA has which are constitutional.
Mr. DELAHUNT. Under a title III proceeding, you could still, I presume, request the necessary protections to protect that source. I mean that is not unheard of.
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Mr. BAKER. There are mechanisms, but they're not as good. And Congress, in 1978, assessed that there was a better way to try to protect the national security sources as well as the methods we are going to use against this type of individual. If we have somebody——
Mr. DELAHUNT. There's always—the burden always has to be placed on the Government if we are going to protect the liberty and our freedoms. And I guess the question is, is the measure, is the quantum of the burden sufficient to make it so difficult that we can't achieve the goal of protecting our national security.
Mr. BAKER. We live with that issue in terms of balancing security versus liberty every single day in my office. And the folks who work for me diligently try to achieve both of those goals at the same time, and it is a difficult job. But what I would urge you is to give us the tools where there is clarity, where there is sufficient protection on both sides of that.
And again, as I went through, the difference between a group of—international terrorist group of two people versus one person is not that great, and I don't think it is of constitutional significance. And so I think you should feel comfortable in allowing this provision to continue.
Mr. COBLE. We will start a second round now. Mr. Baker and Ms. Spaulding have been examined more thoroughly, Ms. Buchanan. I don't want to ignore you, so I'm going to start with you. How does providing immunity to those who assist law enforcement with a FISA order help intelligence investigations and the war on terrorism?
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Ms. BUCHANAN. Under the criminal law, we have had a provision in the law which provides immunity to those who assist law enforcement with obtaining pen registers and trap and trace orders. What I mean by assist, those individuals who are working with the communications company who installed the equipment and those individuals are immune from civil suit as a result of their participation. We ought to have that same immunity in the FISA statute to protect individuals who assist in the installation and application for pen register or trap and trace. That is what the PATRIOT Act gives us.
Mr. COBLE. Some are now arguing that a higher standard should be used for pen registers. Are you familiar with any of these proposals and do you agree with them, A? And if you would, Ms. Buchanan, explain what the relevant standard requires and why it is applied to a pen register or trap and trace order rather than probable cause standard.
Ms. BUCHANAN. The standard is and should be relevance with respect to this type of information. This information that is collected is not a search under the fourth amendment. Individuals have no expectation of privacy in this information. And that is why the standard is set at a lower standard, which is relevance. I think there has been a little confusion in the questioning this morning about what is collected with the pen register versus a wiretap.
With the pen register, the device is simply collecting the telephone numbers, the routing information, it is not collecting the substance of any of the communications. In fact, the equipment doesn't have that capability. So that is not what is the subject of collection. And that is why the standard is set at relevance. With the relevance standard, the Government simply alleges that the information would be related or connected to an ongoing investigation, that it is likely to produce other information. That is the standard. And it is much lower than probable cause.
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When you look at a probable cause standard under the criminal law, you are dealing with information that has a higher expectation of privacy and that is why the law requires a probable cause standard to collect information where there is a greater expectation of privacy. And because they are very different, that is why there are different standards recognized under our law today.
Mr. COBLE. Reverting to content, Mr. Baker, if the court determines that content was collected and used by the Government under 214, what would the court likely do?
Mr. BAKER. In that case, you would have a situation where we would have disobeyed a court order, and I would gather they would want to know was this an intentional violation? Was it inadvertent? How did it happen, what procedures were in place to make sure it doesn't happen again, who's responsible, what part of the Government is going to conduct an investigation. We have, in the Department of Justice, an inspector general. We have an Office of Professional Responsibility, both at main Justice and at the FBI. You've got an inspections division at the FBI and multiple entities within the Government that the court could look to to find out the facts and take steps to address it.
I mean, there is this one case from several years ago where the court had concerns about representations by an agent in some pleadings and the court barred that person from appearing before the court again. The court is quite vigilant about ensuring that what's happening is consistent with the law.
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Mr. COBLE. Ms. Spaulding, do you want to visit the sections you have not had a chance to emphasize?
Ms. SPAULDING. Thank you, Mr. Chairman. I would like to talk about section 214 and this relevancy standard. The question is relevant to what. In the criminal context, it is relevant to a criminal investigation. In section 214, it's relevant to an investigation to protect against international terrorism. It drops all references to any criminal predicate. Under our Constitution, crimes must be very clearly defined so that Americans are clearly on notice whether their activities might violate the law and thereby invite Government scrutiny.
Investigations to protect against terrorism can be based merely on suspicious activity, which is undefined, and any one of us might be engaging in it without even knowing it. The implications of this, I think, are very profound and have not been thoroughly examined.
Mr. COBLE. Ms. Buchanan, I will end with you.
Ms. BUCHANAN. The American people have every right to be protected against international terrorism as they do against criminal violations. The standard is the same and should be the same because the dangers are equal if not greater in the terrorism arena.
Mr. COBLE. Mr. Baker, very quickly.
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Mr. BAKER. The definition of international terrorism includes a nexus to criminal law. So that is in there when you are dealing with an international terrorism investigation.
Mr. COBLE. I thank you. The gentleman from Virginia.
Mr. SCOTT. Thank you, Mr. Chairman. One of the problems we have had with some of these provisions is that people when they talk about them say loudly and clearly terrorism and then mumble something about foreign intelligence. Foreign intelligence doesn't have anything to do with crimes. It is just spying on people. You could be talking about anything involving conduct of foreign affairs, which may not have any criminal connection. Now am I right on the lone wolf provision, you have to have a terrorism connection not just vague foreign policy?
Mr. BAKER. You have to have a terrorism connection. You could not be an agent of a foreign power unless you were engaging in international terrorism or activities in preparation therefor.
Mr. SCOTT. For the purpose of a lone wolf?
Mr. BAKER. Correct.
Mr. SCOTT. For the other purposes, you could be the agent of a foreign government having nothing to do with terrorism or crimes, you could just be negotiating trade deals and stuff like that?
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Mr. BAKER. Without commenting on the specifics what we would be acquiring, you could be an agent of a foreign power if you are a non-U.S. person who acts as such in the United States and you're an officer or employee of a foreign government.
Mr. SCOTT. And have foreign affairs type information nothing to do with criminal activity?
Mr. BAKER. That's correct.
Mr. SCOTT. That's what I said. People will loudly and clearly say terrorism and then mumble something about foreign intelligence, suggesting that we are talking about terrorism. We are talking about many of these circumstances, things that have nothing to do with crimes, terrorism or anything else, just foreign intelligence.
Mr. BAKER. That's correct.
Mr. SCOTT. But for the lone wolf, it has to be terrorism connected. What about the pen and trap and trace?
Mr. BAKER. You have to have a showing—make a showing in the application that the information that's likely to be obtained is either foreign intelligence information not concerning a U.S. person or is relevant to an investigation to protect against international terrorism or clandestine intelligence activities.
Mr. SCOTT. You can get this pen and trap and trace with things that are not criminally related or crime or terrorism-related? It can be foreign intelligence related?
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Mr. BAKER. Foreign intelligence is a defined term in the statute.
Mr. SCOTT. Which includes terrorism and weapons of mass destruction and conduct of foreign affairs, which could be about anything. So I'm talking about it can involve just about anything part of it. We know the terrorism is in there. What else is in there?
Mr. BAKER. As you suggested, definitely includes foreign affairs. That's one of the prongs of foreign intelligence.
Mr. SCOTT. We're talking about getting this trap and trace on foreign intelligence?
Mr. BAKER. Not concerning a U.S. person.
Mr. SCOTT. And not concerning any crimes and not concerning any terrorism?
Mr. BAKER. Potentially. That's correct. Because Congress wanted to regulate all of the Government's——
Mr. SCOTT. The reason I say this is we scare people to death, and think we are talking only weapons of mass destruction when, in fact, we are talking about information that could have nothing to do with any criminal law at all.
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Mr. BAKER. In a situation not involving a U.S. person.
Mr. SCOTT. In the United States?
Mr. BAKER. That's correct.
Mr. SCOTT. The predicate for this FISA wiretap and this FISA trap and trace could be the desire to get information about negotiating with another country on conduct of foreign affairs that have nothing to do with the terrorism or crimes or anything else that would endanger people in the United States?
Mr. BAKER. Well, it's always focused on the foreign relations of the United States vis-à-vis——
Mr. SCOTT. Which could include things that are not terrorism or crime related? You can start these wire taps off with ''foreign intelligence,'' which is conduct of foreign affairs, but with the lone wolf, you have to be in terrorism. For the other, trap and trace, it could be any other thing. What about wire tapping outside of the United States proper? Can CIA agents and all that wiretap outside of the United States? Are we even talking about that?
Mr. BAKER. FISA governs surveillance and physical searches inside the United States.
Mr. SCOTT. Is it quicker to get a FISA wiretap than a criminal wiretap?
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Mr. BAKER. I don't know the statistics on the criminal wiretaps. But there are provisions in FISA that allow us for start to collection in an emergency situation based upon the authorization of the Attorney General. In an emergency circumstances, there are mechanisms to address that. There is a mechanism similar to that in the title III area.
Mr. SCOTT. And if you are in Colorado, it's quicker to come to Washington, D.C. To go before a FISA court than it is a magistrate in Colorado?
Mr. BAKER. I don't know about that. Faced with a situation like that, we obviously have secure telephones. The FBI field office in Colorado would call headquarters and they would call us at the main justice.
Mr. SCOTT. Rather than just running over to the magistrate and get a quick warrant? If you have probable cause that a crime is being committed and can get information from a wiretap, why wouldn't you get a criminal warrant?
Mr. BAKER. It depends on what you are investigating and what you're focused on and what tools you want to use that are at issue and what sources of information you have and what protections you think that the various statutes are going to give you with respect to these various areas. And so the FBI agents look at the investigation they've got and make an assessment about the various tools they have available to them and try to decide what to use.
Mr. SCOTT. We've heard about people for whom you have evidence that they are gathering up explosives about to blow something up. What's the barrier to getting a title III wiretap?
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Mr. BAKER. Again, these are very fact specific situations. But FISA was built by Congress to address these kinds of threats to the national security. And it includes definitions, time periods, protections against disclosure of information, and other provisions, including minimization procedures that fit better in these situations than title III does necessarily. That's why it would be used in a particular situation versus a title III.
Mr. COBLE. Gentleman's time has expired. The gentleman from Massachusetts.
Mr. DELAHUNT. Just an observation to the Chair, Mr. Coble. We have been having some excellent hearings. And all of the panels, I think, have been very helpful. I guess my question to you my friend. We are going at a fairly accelerated pace. And much of the information that we're getting, I would suggest, needs some reflection. I understand we're having another hearing this week—two more. Does the Chair have a time table for when we might consider a resolution or a bill? Could you give us some guidance?
Mr. COBLE. If the gentleman would yield. I say to the gentleman, this accelerated schedule is not determined by me.
Mr. DELAHUNT. I suspected that. If the Chair knows, do we have—is there a calendar for when the Subcommittee itself might consider a proposal?
Mr. COBLE. If the gentleman would yield further to me. Not known to me.
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Mr. DELAHUNT. Not known to you.
Mr. COBLE. No fixed calendar.
Mr. DELAHUNT. Because we are really rolling along here and I would make a request to the Chair and I know you're a diligent worker, but many of us do not, you know, have your experience. And maybe if we could slow the pace down in terms of the calendar itself, it might provide us an opportunity to consult with many of the witnesses that have already appeared before us just to provide us with an opportunity to become even more informed. The Chair might consider passing that request on up wherever it may go, but I would hope that that the Chair would consider that.
Mr. COBLE. If the gentleman would yield again. I would convey that and thank the gentleman from Massachusetts.
Mr. DELAHUNT. I don't think I have—I do have another question. I'm reading one of these Hill papers here about the nominee for the United Nations, and there appears to be a question regarding his inquiry about the names of American citizens on 10 different intercepts. And I'm not going to ask you specifically about that, but I guess this goes along with the question that was posed by Mr. Scott.
In terms of protection of non-U.S. persons who are referenced in the course of a surveillance, who has access to that information? Would somebody from the Department of State have access to that information under a FISA order or would that simply—only designated officials have access to that information?
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Mr. Baker?
Mr. BAKER. Again, you have to keep in mind that every court order is different—they are all different, but they all include minimization procedures. So there are restrictions on the acquisition, retention, and dissemination of U.S. person communications. And that's the focus, to protect the privacy of Americans. With respect to who has access, if you have an FBI surveillance, the FBI in the field office conducts a review of the material and decides what information is foreign intelligence information, what information is not. And then it can write summaries or do other transcripts.
Mr. DELAHUNT. I understand that. But let me—if an official, let's say hypothetically, Mr. Bowl was the deputy Under Secretary for whatever in the Department of State or the Department of Defense, whatever, and he communicated—presumably the Attorney General of the United States has access to this information under a FISA court order, because presumably it's written in a way that would allow that, the Attorney General of the United States and/or his designee, would a high ranking official in another department have access to that information, i.e., the name of the American citizen?
Mr. BAKER. Not directly. If they had some reason to believe there was some information out there and had a basis to ask for it, they would submit a request to the agency they think has the information and the agency would have to make an assessment whether disclosure of that information to that person would be consistent with the minimization procedures. And there are statutory restrictions on the use of FISA information as well.
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Mr. DELAHUNT. I understand statutory restrictions. This is simply accessing information, however. Would there be, for example, the need to return before the FISA court to seek a—if such a request was made, would the—there has been any history of this, would one of—if there was doubt as to whether the request fell within the ambit of the minimization that was issued pursuant to the court order, would it be reasonable to infer that there would be an additional appearance before the FISA court to clarify?
Mr. BAKER. It could be. The FISA court carefully monitors the minimization of U.S. Person communications.
Mr. DELAHUNT. In the report back to FISA, would that information be disclosed, the individuals who did have—who had access to that information?
Mr. BAKER. Not on a regular basis. Not necessarily, no. But there are other mechanisms for that. And what would happen, the agency that requested, if they didn't think it fell squarely within the minimization procedures, would seek advice from our office, and we would make a decision as to whether we felt comfortable or not doing it.
Mr. DELAHUNT. Have you ever had those kind of requests?
Mr. BAKER. I can't think of one off the top of my head. It's an expectation that sometimes people will read a report that might reference a U.S. person and might want to know the name of that person and there are established procedures to deal with that situation and approval levels and so on that you go through.
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Mr. COBLE. I thank the gentleman. Thank you all for being here and thank you for those in the audience. We live in a chaotic time, as you all know, folks. I don't think we ever want to see a repeat of 9/11 when those bastards came over here, pardon my vernacular—referring to the murderers, of course. On the other hand, I don't think any one of us wants to compromise our liberties. It's a delicate line we're negotiating. And Mr. Baker, since you are in my direct line of fire, let me go to you. Again, thinking aloud, the President has the authority grounded in the Constitution to protect our Nation's security. Based on that responsibility, what did the Government do prior to 1978, prior to FISA, A? And why was FISA enacted?
Mr. BAKER. Prior to the enactment of FISA, as I understand it, sort of the beginning of electronic communications, collection of those kinds of communications for national security purposes was done pursuant to the President's inherent authority under the Constitution to collect foreign intelligence without a warrant. It was done from the beginning up until 1978 for those purposes without a warrant.
And it was, as a result of, frankly, abuses of that authority by the executive branch that came to light in the 1970's that resulted in, among other things, the enactment of FISA in 1978. It takes us from a regime where there was no congressional legislation to a regime that Congress, as I said earlier, puts into place, clear standards for who can be a legitimate target of this kind of collection, requirements to protect the privacy of Americans and the minimization procedures and accountability for the individuals who decide to engage in one of these surveillances and to make sure it is done for a legitimate national security purpose.
Mr. COBLE. We are going to visit this PATRIOT Act time and again, and as Mr. Delahunt said probably in an accelerated mode. Thank you, Mr. Scott, Mr. Delahunt, Mr. Conyers and Mr. Chabot, for attending as well. The Subcommittee very much appreciates your contribution. In order to ensure a full record and adequate consideration of this important issue, the record will be left open for additional submissions for 7 days. Also, any written questions that a Member wants to submit should be submitted within this same 7-day period. This concludes the oversight hearing on the Implementation of the USA PATRIOT Act: Foreign Intelligence Surveillance Act (FISA), part one. Thank you for your cooperation and the Subcommittee stands adjourned.
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[Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]
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