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IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)
Part II
THURSDAY, APRIL 28, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met pursuant to call, at 9:30 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. Good to have all of you with us today.
The Subcommittee on Crime, Terrorism, and Homeland Security will conduct two hearings on the USA PATRIOT Act. At this morning's hearings, the Subcommittee will examine section 206, the roving wiretap provision, and section 215, the business records provision. Both section 206 and 215 amend the Foreign Intelligence Surveillance Act of 1978, known as FISA, and both expire on December 31, 2005. These two sections are among the most controversial. I believe much of the controversy is due to misinformation about the provisions, and I hope this hearing will clarify exactly what the law does.
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While I expect an in-depth and lively discussion on these issues, I would like to point out a few things we've recently learned through our hearings and oversight.
We know, though I am not sure the public is aware of this, that section 215, the so-called library provision, does not even mention the word ''library.'' It covers business records.
And yes, section 215 could be used to obtain business records from a library, but we also know from the Attorney General's oral testimony to this committee on April 6, that section 215 has never been used to obtain business records from a library. Nor has section 215 been used to obtain bookstore records, medical records, or gun sale records. In fact, no evidence has been presented to this Subcommittee or to the Department of Justice's Inspector General of any abuse of 215 for any use.
We also know from the Department of Justice response to questions from this Subcommittee and full committee that terrorists are indeed using our libraries so that at some point section 215 may be needed there.
Section 206 amends the wiretap provision under the Foreign Intelligence Surveillance Act to allow the wiretap order to follow the person instead of covering a communication facility. Thus, when a terrorist uses a cell phone, then throws it away, uses another phone, throws it away, law enforcement does not have to get a new order each time.
We also know that this section has been used 49 times, and, according to the Attorney General, has been effective in monitoring international terrorists and spies.
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Now, folks when I said there's a lot of misinformation surrounding these provisions, a lot people—well, strike that. Maybe I shouldn't say a lot people—some people. In fact, some have even talked to me.
They portray it in this manner: A couple FBI agents riding around town. Well, let's go get a couple burgers and a milkshake, and then maybe stop by the FISA Court. Pick up a couple roving wiretaps and maybe a couple 215 orders and—now, folks, I don't mean this to be cute, because folks back home have said this to me, and then maybe go to the library. See what we can come up with. Maybe share with our friends and neighbors some of the information we've found. Folks, that's far a field from what happens. It's difficult to obtain this, and I want the public to know that.
Having said that, I will now—I now look forward to hearing from my good friend, the Ranking Member, the gentleman from—the distinguished gentleman from Virginia, Mr. Bobby Scott.
Mr. SCOTT. Thank you, Mr. Chairman. Don't give them any ideas.
Thank you for holding this hearing on section 216 and 215 of the USA PATRIOT Act. These are some of the most controversial sections of the bill that will come up for renewal.
They're controversial because of the extraordinary powers of virtually—virtually unchecked powers that allow Government to use the—to allow the Government to use to invade the privacy of individuals. Section 215 is particularly disturbing, given its breadth of authority, especially because it allows law enforcement officers to obtain private records with no more than a representation that it is relevant to foreign intelligence.
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And even though section 505 of the PATRIOT Act is not under sunset, you really can't talk about 215 without discussing the same problems with 505. 505 allows a host of private records and information to be obtained through the issuance by line level officers of National Security Letters on mere representation that they are relevant to an investigation of foreign intelligence.
There need to be no crime, no probable cause of a crime, no reason to believe that there's a crime, no credible or particular facts, just representation in the case of a 215 and the FISA Court has no choice but to issue the order for the production of records.
In the case of the National Security Letters, there's no court issuance or oversight, just a line officer's issuance of the letter in terms of the requirements of law.
Now, all of this is done in secret, and no explicit right to challenge the orders with a permanent gag order on the keepers' of the records, even to the extent apparently of consulting with an attorney. With our liberalized information sharing rules, this information can be distributed all over town to various agencies and this means your neighbors who may be law enforcement agents or Defense Department officials, may know a lot more about you private medical, organizational affiliation, reading or video viewing habits than you ever imagined.
Now, with respect to section 206, the FISA roving wiretaps, I've often noted the difficulties that I see. Again, under the law no crime need even be alleged, and under the John Doe wiretap no person or particular device need to be shown, and in either case, no effort has been made to ascertain whether or not the target is actually using the device before communications are actually intercepted.
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And again, all of this is in secret; secret court with limited oversight and reporting requirements when compared to the criminal wiretap process. And the Department of Justice witnesses often use the powers extended on the criminal side to justify the same powers on the FISA side.
However, they don't call for the same oversight and reporting requirements as a criminal warrant, and I think we need to pay a lot more attention to as we consider renewing these powers.
So, Mr. Chairman, I look forward to the testimony of our witnesses for enlightenment on why we should consider renewing these extraordinary powers and, if so, under what circumstances and conditions, and I look forward to working with you as we try to implement those recommendations.
Mr. COBLE. I thank the gentleman. We've been joined by the Ranking Member of the Full Committee, the distinguished gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Good morning, Chairman Coble.
Mr. COBLE. Good morning, sir.
Mr. CONYERS. And Members of the Committee welcome the panel. And this is one of the important Subcommittee hearings in which this review of the PATRIOT Act is so important, and I'm glad we have the witnesses here.
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I just want to say one word about the executive director of the American Civil Liberties Union Chief Legislative Council because that organization has done so much important work, not alone. There are plenty of other organizations with them, but I single them out this morning.
But there are three considerations here. One is whether we need John Doe taps and roving taps. To me, that's a critical consideration. And what are the safeguards we need to put around it. The thing of while National Security Letters have been left off the oversight list of the committee. I hope that some of our witnesses today will tell us about their use. It appears from a redacted Freedom of Information Request that this provision has been used lots of times, hundreds of times.
The less famous part of section 215, National Security Letters, are dangerous because in addition to adding a complete gag order on the recipient, they're issued without any oversight, even from the FISA Court.
And because DOJ admits getting information from libraries, I suspect that these letters may be the source and we must have more information about them.
And finally, section 215, allowing the Government to secretly get anything from any business only upon showing a—the showing of relevance to a terror or intelligence information—only on showing of relevance to terror information or intelligence information. And as super secret as usual, DOJ refuses to explain how this section has been used. We're the lawmakers. It seems like the courtesy should be given to us, and if for any reason, it can't be done public, we're all cleared for the most secret information that's in our Government. It does confirm it has been used 35 times. The information comes on the eve of the sunset. After 3 years of pressing national security that required a secret classification.
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So these are the areas that I'm concerned with and I reiterate my concern that the committee has left, in my judgment many important terror-related policies off its oversight schedule—the practice of rendition to the abuse of the material witness statute, to unsuccessful racial profiling. This committee is, in my view—and I want to work on trying to get this corrected before this series of hearings ends—is ignoring the most pressing matters within its jurisdiction. We can't limit our oversight to a few sections of the code that are due to expire. There's plenty of things to examine that don't have any expiration date, and so the Department has shifted the weight of its terror pursuit to other authorities, and or even in the absence of lawful authority at all. So, if we're truly to do our constitutional duty of overseeing the Executive's use of criminal and intelligence laws, I beg this committee to look at all of these issues, and I thank you for this opportunity, Chairman Coble.
Mr. COBLE. I thank the gentleman. We've been joined by the distinguished gentleman from Arizona, Mr. Flake, and the distinguished gentleman from Massachusetts, Mr. Delahunt.
It's the practice, I say to the panel of the Subcommittee to swear in all witnesses appearing before it. So, if you all would please stand and raise your right hands.
[Witnesses sworn.]
Mr. COBLE. Let the record show that each of the witnesses has answered in the affirmative, and you all may be seated.
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Our first witness today is Mr. Kenneth Wainstein—is that correct, Mr.?—United States Attorney for the District of Columbia. Prior to joining the U.S. Attorney's Office, Mr. Wainstein served as general counsel of the FBI and as director of the Justice Department's Executive Office for the U.S. Attorney. He is a graduate of the University of Virginia, and the Boalt Hall School of Law at the University of California at Berkeley.
Our second witness is Mr. James A. Baker, who's been with us before. Mr. Baker, good to have you back. I thank Mr. Baker for graciously agreeing to return as a witness for a second time during this series of oversight hearings on the USA PATRIOT Act. Mr. Baker has been in the Council 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 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 next witness is Mr. Robert Khuzami, former Assistant United States Attorney in the U.S. Attorney's Office for the Southern District of New York. While in that office, he served in the office's terrorism unit. Mr. Khuzami clerked for the Honorable John R. Gibson of the U.S. Court of Appeals for the 8th Circuit in Kansas City, Missouri. Mr. Khuzami attended the University of Rochester and the Boston University School of Law.
Our final witness today is Mr. Gregory T. Nojeim, the Associate Director and Chief Legislative Counsel of the American Civil Liberties Union's Washington National Office. And at this time, on behalf of the Subcommittee, I would like to congratulate Mr. Nojeim in advance because I am told that next you will become the acting director of that office, so we congratulate you, Mr. Nojeim.
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Prior to joining the ACLU, Mr. Nojeim served as Director of Legal Services of the American-Arab Anti-Discrimination Committee. He was graduated from the University of Rochester and the University of Virginia's School of Law.
Now, as we have told you all previously, we like to practice the 5-minute rule here. We have examined your written testimony that will be reexamined. So the panels that appear before you all on your desks there, when the amber light appears, you will have 1 minute to wrap up, and no one is going to be keel hauled if you violate the 5-minute rule, but if you could stay within—when the red light appears that indicates the 5 minutes have expired.
Mr. Wainstein, we will start with you, sir.
TESTIMONY OF KENNETH L. WAINSTEIN, INTERIM U.S. ATTORNEY, DISTRICT OF COLUMBIA
Mr. WAINSTEIN. Thank you, and good morning. My name is Ken Wainstein. I'm the U.S. Attorney here in the District of Columbia.
Mr. Chairman, Ranking Member Scott, and Members of the Subcommittee, thank you very much for inviting me here today to discuss two provisions of the USA PATRIOT Act, sections 206 and 215 that are critical to our counter terrorism and counter intelligence efforts.
These two sections are scheduled to sunset at the end of this year. If this is allowed to happen, we will find ourselves in the position where tools available to law enforcement in the fight against drugs, organized crime, and child pornography would be denied our national security investigators who are striving to protect our country against terrorism and espionage. Such an outcome would be a serious mistake, and, therefore, I am here today to ask you to make permanent sections 206 and 215 of the USA PATRIOT Act.
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Section 206 allows the FISA Court to authorize roving quote unquote ''roving surveillance'' of a foreign power or an agent of a foreign power, such as a terrorist or spy.
Since 1986, we've had the authority to use roving wiretaps to investigate regular crimes, and this tool has proved critical to our efforts against sophisticated criminals who regularly switch phones to avoid electronic surveillance.
In a case out of Florida, for example, our prosecutors and agents investigating a dangerous cell of Colombian drug dealers had gotten 23 separate wiretaps against cell members and leaders, but were failing to make a strong case because of the cell's practice of constantly cycling through cell phones.
Our people ultimately cracked the case when they got a roving wiretap that allowed them to continue surveillance as the cell members changed phones, and the suspects were ultimately arrested and convicted of distributing over a thousand kilograms of cocaine in our country.
In another drug investigation, in Chicago, investigators obtained roving surveillance authority after establishing that the drug lord target was purchasing blocks of prepaid cell phones and throwing each phone after a short period of use. In the course of about 7 months, this target went through at least 25 cell phones, thereby justifying the use of a roving wiretap under the criminal electronic surveillance statute.
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Before the USA PATRIOT Act, however, national security investigators couldn't utilize such wiretaps in international terrorism or espionage investigations. Experience shows that terrorists and spies are every bit as crafty at avoiding surveillance as common criminals.
To see that, we need look no further than the Al-Qaeda training manual that warns members that quote, ''communication can be a knife dug into our back if we do not take the necessary security measures.'' Close quote. And that manual directs Al-Qaeda members to undertake a variety of measures to counter our electronic surveillance efforts.
With no roving authority for national security investigators, the terrorists and spies used to have the advantage, and they could stay one or two steps ahead of our investigators by switching phones.
Thankfully, section 206 balanced the playing field by authorizing the use of roving wiretap authority in national security investigations. Some have expressed concerns that wiretaps, roving wiretaps, somehow open the door to unconstitutional intrusion into our privacy.
This concern is best addressed by looking at the various safeguards in the statute that protect against abuse and overreaching.
First, we can only get a roving wiretap if we show probable cause to believe that the target of a roving surveillance order is either a foreign power or an agent of a foreign power, such as a terrorist or spy. To make that showing, we must know the target's name or else describe the target with sufficient specificity to convince the FISA Court that there's probable cause to believe that that target is a foreign power and agent of a foreign power.
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We have to show that that target is taking action, such as switching phones, that may have the effect of thwarting surveillance. And finally, roving surveillance under 206 carries all the court approved minimization procedures that limit all FISA surveillance.
Because of these procedures and safeguards, all appellate courts that have heard challenges to roving wiretaps have upheld their constitutionality.
Section 215. This section provides national security investigators with the authority to ask the FISA Court to order the production of the same kind of tangible things, such as business records, that prosecutors have long been able to acquire through grand jury subpoenas and criminal investigations.
As a prosecutor, I can tell you from first hand experience that the ability to obtain records with grand jury subpoenas is an essential tool for law enforcement. Investigating crime without subpoena power would be like Tiger Woods playing the Masters without a putter.
Before the USA PATRIOT Act, however, it was difficult for national security investigators to obtain business records, as the FISA Court could only authorize orders for certain categories of records.
For example, an agent prior to the PATRIOT Act who was investigating a terrorism suspect would not have been able to get a FISA Court order to obtain records showing that that suspect purchased bulk quantities of fertilizer to produce a bomb because a feed store is not a quote ''common carrier, public accommodation facility, physical storage, or rental facility,'' the entities for which the old law authorized the use of FISA Court orders.
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Section 215 remedied that glaring problem by authorizing investigators to request the production of any tangible things that are relevant to the investigation. In my experience as a prosecutor, I view section 215 as a commonsense investigative tool. I recognize, however, that the provision has been subject—the subject of concern by many across the country.
Once again, I believe part of the problem here is that people don't understand the safeguards that are in the statute. 215 has a number of these safeguards, which we'll discuss today.
Unlike grand jury subpoenas, it requires prior court approval. It protects against the use of 215 orders to investigate activities based solely on the exercise of first amendment rights. They have a narrow scope, and they are subject to congressional oversight.
Like 206, section 215 fully safeguards privacy while providing us the tools we need to protect our country against international terrorists and spies.
Given the threat these individuals pose to our nation, I urge Congress to allow us the continued use of these vital tools.
[The prepared statement of Mr. Wainstein follows:]
PREPARED STATEMENT OF KENNETH L. WAINSTEIN
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Mr. COBLE. Thank you, Mr. Wainstein. Mr. Baker.
TESTIMONY OF JAMES BAKER, COUNSEL FOR INTELLIGENCE POLICY, U.S. DEPARTMENT OF JUSTICE
Mr. BAKER. Thank you, Chairman Coble, Ranking Member Scot, and Members of this Subcommittee.
I am pleased to be again before you to discuss the Government's use of the authorities granted to it by Congress under FISA, including amendments to FISA and the USA PATRIOT Act.
As I mentioned on Tuesday, these provisions have made a critical contribution to our ability to protect the national security of the United States.
For the benefit of Members who were unable to attend on Tuesday, my office conducts oversight of the intelligence and counter intelligence activities of executive branch agencies, including the FBI.
We prepare all FISA applications and represent the United States before the FISA Court.
I report directly to the Deputy Attorney General. I'm a career member of the senior executive service, and not a political appointee.
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Again, rather than simply read my written statement into the record, I'd like to make a few general points about FISA, and amplify on some of my prior comments from the other day.
As I mentioned the other day, the purpose of FISA was to—as enacted in 1978—was to provide legislative authorization for and regulation of electronic surveillance conducted within the United States for foreign intelligence purposes. FISA was not intended to prohibit collection of important intelligence information, but to subject such collection to statutory procedures.
Over the years, Congress has expanded the scope of FISA to create mechanisms for the Government to obtain separate authorizations for pen registers, searches, and to obtain access to business records and other tangible things.
Prior to the enactment of FISA, the Executive Branch conducted electronic surveillance to collect foreign intelligence information without a warrant, based upon the President's inherent constitutional authority to do so.
In the 1970's, however, abuses of domestic national security surveillance were disclosed. As a result, Congress looked for an appropriate mechanism to safeguard civil liberties, consistent with the needs of national security.
Since the enactment of FISA, 27 years ago, I submit that there has been no repeat of the abuses of the past. I believe this is so for several reasons.
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First, there are now clear standards for determining who may be a legitimate target of a FISA surveillance or search. The only authorized targets of FISA full content collection are foreign powers and agents of foreign powers, both of which are defined terms in the act.
Similarly, FISA only permits the use of other collection activities, such as orders for tangible things, when there is a sufficient nexus between the information that will be collected and a legitimate intelligence investigation.
When such an investigation involves a U.S. person, it cannot be based solely upon protected first amendment activities.
Second, there is accountability for authorizations for national security collection. FISA includes several mechanisms to ensure written accountability within the Executive Branch for the decision to engage in foreign intelligence collection, including a requirement that the Attorney General or his deputy personally sign each full content application. This serves as a check on Executive Branch arbitrariness.
In addition, the Attorney General must fully inform the intelligence committees of both Houses of Congress on our use of FISA on a regular basis.
Third, there is judicial oversight of our actions. Whenever a surveillance or search for foreign intelligence purposes may involve the fourth amendment rights of any U.S. person, approvals for such collection must come from a neutral and detached Federal judge. Moreover, even when fourth amendment rights are not implicated, such as for third party business records, FISA still requires approval by a Federal judge or a magistrate before the Government may engage in such collection.
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Finally, FISA contains other provisions to protect the privacy of Americans, most notably including court-ordered minimization procedures. 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 Americans. This includes minimization of the acquisition, retention, and dissemination of information about U.S. persons obtained pursuant to full content collection under FISA.
In conclusion, as we proceed with our discussion today, we must remember that it's our collective fundamental task to determine how best to protect the national security of the United States in a manner consistent with the Constitution. We must be mindful, as the Supreme Court stated in the Keith case in 1972, that unless Government safeguards its own capacity to function and to preserve the security of its people, society itself could become so disordered that all rights and liberties would be endangered.
I am proud to be here today to represent the dedicated men and women OIPR who work diligently everyday to do their part to protect both the national security and the Constitution of the United States, and to enforce the laws as enacted by Congress, especially FISA. With these principles in mind, I'm happy to answer any questions that the committee may have.
[The prepared statement of Mr. Baker follows:]
PREPARED STATEMENT OF JAMES A. BAKER
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Mr. COBLE. Mr. Baker, you've been on the Hill several times. You know how to beat that red light. You did it again.
Mr. BAKER. Thank you, sir.
Mr. COBLE. Mr. Khuzami, good to have you with us, sir.
TESTIMONY OF ROBERT KHUZAMI, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK
Mr. KHUZAMI. Thank you. Chairman Coble, Ranking Member Scott, Members of the Subcommittee, it's an honor to testify before you today in a matter of such importance to our national security.
For nearly 12 years, I was an Assistant United States Attorney in the U.S. Attorney's Office in the Southern District of New York, and spent a significant amount of time working on terrorism cases. I was a member of the team that in 1995 prosecuted Sheik Omar Abdel-Rahman, the blind cleric and head of the Egyptian Islamic Group, and 11 others for conducting a war of urban terrorism against the United States. The acts of that group included among other things the 1993 bombing of the World Trade Center; the murder in 1990 of Rabbi Meir Kahane, the head of the Jewish Defense League; and a conspiracy to carry out a day of terror in New York, the planned simultaneous bombing of various New York City landmarks, including the United Nations complex, the Lincoln and Holland Tunnels, and the FBI's New York headquarters.
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I was also involved in assisting in the supervision of the U.S. Attorney's Command Post in lower Manhattan following the events of 9/11.
I am here today to support reauthorization of sections 215 and 206 of PATRIOT Act.
I'll confine my remarks this morning to section 215.
Some view it as a radical extension of Government authority that permits unprecedented snooping into the private reading habits of Americans and threatens to sweep innocent Americans into secret terrorism investigations.
My experience teaches me otherwise.
Section 215 simply and modestly is designed to permit the Government to collect standard business records from third parties relevant to foreign intelligence or terrorism investigations. These are the same records that prosecutors across the country every day routinely obtain in drug, and larceny, and fraud, and corruption investigations.
They're credit card receipts. They're bank statements. They're hotel bills. They're leases, and so on. There is nothing unusual or nothing accusatory of asking innocent third parties to produce such records in terrorism investigations.
Second, terrorists use libraries. The 9/11 Commission found that to be case that some had used Internet access in a Hamburg, Germany library. A recent espionage prosecution revealed that a spy had used computer terminals at various public libraries to send classified information. An Al-Qaeda terrorist used library computer terminals to send electronic messages.
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The Unabomber, Ted Kaczynski, in a criminal investigation, was captured in part when the police obtained his library records and learned that he had borrowed from his local library obscure books that were cited in his widely distributed Manifesto.
Third, section 215 neither targets nor exempts library records. Nor has it been used for that purpose, as the Chairman has pointed out.
This doesn't mean that section 215, however, should be amended to exempt libraries and bookstores, for their records could be critical in a terrorism investigation. Lack of use is not the same thing as lack of importance. In a terrorism case, even a single missed opportunity or misstep can have catastrophic consequences. That is simply not the case in criminal investigations.
Fourth, section 215 provisions do protect the privacy and civil liberties of Americans. It can't be used to investigate a U.S. person based solely on first amendment activities and not at all to investigate domestic terrorism. The Foreign Intelligence Surveillance Court must approve section 215 applications.
Fifth, section 215 properly expanded the type of records obtainable in terrorism investigations beyond what had been the law—simple lodging or vehicle rental or storage facilities.
This corrected the anomaly that allowed the Government to obtain a would-be terrorist's motel records, but not receipts evidencing purchases of explosives or precursor chemicals or books on how to manufacture explosives.
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Sixth, section 215 also eliminated the previous requirement that the Government provide specific articulable facts that are the subject—that the subject of the investigation was an agent of a foreign power. As a legal matter, this standard only applies where there exists some legally recognized privacy interest, and there is no such interest in section 215 records.
There may be some circumstances where such a strict standard should apply even though there's no privacy interest at stake, but national security is not one of those instances. It is where the public interest in Government access, in my view, is most urgent.
Next, the Department of Justice interprets and has endorsed amendments that would allow those getting section 215 orders to consult with attorneys and challenge the order and its scope before the FISA Court. That change protects citizens against improper use of section 215.
Lastly, there has been some concern expressed about rogue agents, agents who may be inclined to violate the civil liberties of Americans by looking for ways to circumvent the law in order to learn what we read and what organizations we belong to. The agents and translators and surveillance specialists and analysts that I worked with were dedicated, talented, and law abiding. And there are many procedures designed to prevent that from happening.
But even if you can't eliminate the occasional rogue, the empirical evidence from the Department of Justice Inspector General establishes that not a single case of abuse of civil rights or liberties from the PATRIOT Act has been documented.
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I strongly urge the committee to reauthorize section 215. I'd be happy to answer any questions.
[The prepared statement of Mr. Khuzami follows:]
PREPARED STATEMENT OF ROBERT S. KHUZAMI
Chairman Coble, Representative Scott, and members of the Subcommittee on Crime, Terrorism and Homeland Security, thank you for inviting me here this morning. It is an honor to testify before you, particularly on a matter of such importance to our national security.
I am currently a lawyer in private practice in the New York area. For nearly 12 years, I was an Assistant United States Attorney in the United States Attorney's Office for the Southern District of New York, and spent a significant amount of time working on counterterrorism cases. From shortly after the February 26, 1993 bombing of the World Trade Center through early 1996, I was a member of the team that prosecuted Sheik Omar Abdel Rahman—the blind cleric who led the Egyptian-based Islamic Group and played a key role in the 1981 assassination of President Sadat—and eleven others for conducting a war of urban terrorism against the United States. Their acts included, among other things, the WTC bombing, the 1990 murder of Rabbi Meir Kahane (the founder of the Jewish Defense League), plots to murder various political and judicial leaders, and a conspiracy to carry out a ''Day of Terror''—the simultaneous bombing of various New York City landmarks, including the United Nations complex, the Lincoln and Holland Tunnels (through which thousands of commuters travel daily between lower Manhattan and New Jersey), and the Jacob K. Javits Federal Building that houses the FBI's New York Headquarters.
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Following the events of 9/11, I assisted in supervising the U.S. Attorney's Command Post in lower Manhattan, where hundreds of law enforcement and intelligence personnel worked tirelessly to investigate that attack and to prevent another.
The changes set forth in the PATRIOT Act, as well as the events of 9/11 in general, have brought about significant public debate about the appropriate balance of civil liberties, privacy and security. That debate is undeniably healthy, a fact which Congress recognized when it sunsetted certain PATRIOT Act provisions in order to provide an opportunity for an informed evaluation of their impact.
Two PATRIOT Act provisions are being considered this morning—Section 206, the so-called ''roving wiretap'' provision and Section 215, the access to records provision.
I approach my analysis from two perspectives. The first is that of an ex-prosecutor of terrorism crimes, who believes firmly that we must fully identify and utilize every lawful tool to prevent terrorist attacks and capture those involved. The second is as an American citizen who recognizes the fundamental importance of the privacy rights and civil liberties of all Americans. Balancing these two perspectives, I conclude that, with two amendments recently embraced by the Department of Justice (''DOJ''), Sections 215 and 206 should be reauthorized.
SECTION 215
Section 215 authorizes the Foreign Intelligence Surveillance Court to order the production of ''tangible things (including books, records, papers, documents and other items)'' as long as they are ''sought for'' an ''authorized investigation to obtain foreign intelligence information not concerning a United States person or to protect against international terrorism or clandestine intelligence activities.'' In its most common application, Section 215 permits the government in terrorism investigations to obtain business records held by third parties, including those held by banks, hotels, landlords, credit card companies and, yes, libraries and bookstores. Somewhat surprisingly, Section 215 is viewed by many Americans as a radical extension of government authority that permits unprecedented snooping into the library records and private reading habits of Americans, and threatens to sweep up innocent Americans into secret investigations of terrorist activity. It has caused such angst amongst librarians that it has been labeled the ''Angry Librarians Provision.''
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Four points need to be made. First, Section 215 permits a court to order the production of standard business records from third parties. These are the same records that prosecutors across the country routinely obtain every day in drug, larceny, fraud, corruption and all manner of standard criminal investigations. They include credit card receipts, bank statements, hotel bills, leases, subscriber information for phones, and the list goes on and on. There is nothing unusual or accusatory about requiring third parties possessing these records—innocent third parties all of them—to produce them in a terrorism investigation of another person. That is all Section 215 does.
Second, Section 215 is agnostic about libraries and bookstores—it neither targets nor exempts them, and the word ''library'' is nowhere mentioned in its text. In fact, rather than aggressively use Section 215 to collect information about library patrons, as some have feared, the government recently reported that it has obtained Section 215 orders on 35 occasions, but never once for library records. Presumably, this reflects the fact that library records are rarely relevant to terrorism investigations, a fact that should assuage its critics.
Third, terrorists use libraries. The 9/11 Commission found that some of the 9/11 conspirators used Internet access through a Hamburg, Germany library. A recent espionage prosecution revealed that a spy used computer terminals at various public libraries to send classified information. An Al Qaeda terrorist used library computer terminals to send electronic messages. Terrorists and their sympathizers also create, collect and disseminate writings and speeches that train, recruit and incite others to participate in terrorist acts. In the Blind Sheik prosecution, for example, evidence consisting of bomb-making manuals, including pages containing the fingerprints of co-conspirators, was introduced at trial. In his written sermons, the Blind Sheik extolled the virtues of violent jihad against the United States with ''the sword, with the cannon, with the grenades and with the missile,'' and urged his followers to embrace the terrorist label:
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Why do we fear the word ''terrorist?'' If the terrorist is the person who defends his right, so we are terrorists. And if the terrorist is the one who struggles for the sake of God, then we are terrorists. . . . They may say ''he is a terrorist, he uses violence, he uses force.'' Let them say that.
It is for this reason that library records, writings and other literature have long been available to criminal investigators through the use of a grand jury subpoena. The ''Unabomber,'' Ted Kaczynski, was captured based on a tip from his brother, who thought he recognized the writing in the Unabomber's ''manifesto'' as that of his brother. Law enforcement corroborated the brother's suspicion in part by examining library records, from which they learned that Kaczynski had checked out little-known books referenced in the manifesto. Section 215 simply extends to terrorism investigations the same authority available to criminal investigators.
Fourth, it does not follow that because the government's has not to date used Section 215 authority to obtain library records, that Section 215 should sunset, or be amended to exempt libraries and bookstores. This would turn libraries into sanctuaries, where would-be terrorists could communicate with their cohorts without fear of detection. This is not mere speculation—an Al Qaeda terrorist reportedly used library computer terminals to send messages to his associates around the world specifically because he knew the digital records were deleted nightly, thus concealing his activity. Unfortunately, some library representatives are creating de facto sanctuaries by ordering daily shredding of library log-in and other records, in response to misplaced fears about Section 215.
This ''use it or lose it'' argument is also specious because it equates lack of usage with lack of importance. The mere fact that Section 215 has not been ''used'' historically to obtain information from libraries or bookstores does not mean that such authority could not be critically important in the next case. More so than criminal prosecutions, terrorism plots, however speculative or nascent, must be zealously pursued by investigators armed with the option of using the fullest arsenal of lawful investigative tools. That is because even a single missed investigative opportunity or misstep can have catastrophic consequences. In contrast, in criminal investigations, for example, it is unfortunate but not fatal if before a stockbroker is arrested, he executes one more stock purchase using inside information. That is not being falsely alarmist; the horrific consequences of the detonation of a dirty bomb over a major urban center, or the Blind Sheik's plan to bomb multiple New York City landmarks simultaneously, are undeniable.
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In sum, the four points establish a compelling case for Section 215 reauthorization. They show that Section 215 is not about libraries, but provides for routine document collection in terrorism cases; that as far as libraries are concerned, terrorists use them and library records can provide evidence of that; and that the catastrophic consequences of a successful terrorist attack demand that we have available all lawful investigative tools.
In addition to these points, the provisions of Section 215 should mollify critics, since they set forth a sensible framework to permit intelligence agents to obtain business records. Section 215 requires the government to certify that the records are ''sought for an authorized investigation to obtain foreign intelligence information [not against a United States person] . . . to protect against international terrorism or clandestine intelligence activities.'' The DOJ interprets this provision as requiring that the records be ''relevant'' to such investigations, and has endorsed an amendment to that effect. In recognition of First Amendment concerns, Section 215 cannot be used to conduct an investigation based solely on the activities protected by the First Amendment.
The Foreign Intelligence Surveillance Court must approve Section 215 applications. While the level of that judicial review is not high, it is appropriate given the type of records under consideration in Section 215 proceedings. Business and library records are preexisting documents that belong, will be given, or are available, to third parties—banks, landlords, rental car agencies and even librarians—and thus persons lack a reasonable expectation of privacy in them. For that reason, they are obtainable in a criminal investigation with a grand jury subpoena alone, which is issued without judicial review or supervision. From the perspective of judicial review, Section 215 provides more protection, not less, for library patrons than they enjoy in parallel criminal proceedings involving the same records.
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To be sure, Section 215 expanded the government's pre-PATRIOT Act authority to obtain records in terrorism cases. This change was overdue, since the prior law was unnecessarily restrictive. Whereas Section 215 now permits the government to obtain with court approval all ''tangible things (including books, records, papers, documents and other items),'' the prior provision limited the government to obtaining records from lodging and vehicle rental and storage facilities. Again, criminal investigators have long been permitted to obtain the broader range of records now provided for in Section 215. Comparisons with criminal investigations aside, the expansion of authority under Section 215 makes sense in its own right, since it would be irrational, for example, to permit the government in a terrorism investigation to obtain under Section 215 a would-be terrorist's motel records, but deny it the ability to obtain receipts evidencing purchases of fertilizer or precursor chemicals, or to learn that he obtained books on how to manufacture explosive devices or detect surveillance.
Another expansion of authority in Section 215 was the elimination of the requirement that the government provide ''specific articulable facts'' that the subject of the investigation was an ''agent of a foreign power.'' Critics assert that elimination of this particularized showing allows the government to use Section 215 to obtain records from persons without showing that they relate to a real terrorist or spy. Of course, as noted above, the third-party records at issue here do not implicate a recognized expectation of privacy. The government should generally be required to make a particularized showing only in circumstances where this is necessary to overcome some legally recognized privacy interest. There may be some instances where a departure from that general rule is warranted, but national security is not one of them—it is where the public interest in government access is most urgent. Leaving that aside, this change recognizes the reality that targets of terrorism investigations are trained to operate through multiple aliases and identities. It would serve no purpose to delay obtaining what might be records critical to uncovering a terrorist plot simply because the target's real name, or associational connections, has not yet been ascertained. Evidence of the purchase of detonators is equally relevant to preventing a terrorist plot, regardless of whether the government yet knows that the purchaser has ties to Al Qaeda. Once again, elimination of the requirement that a particularized showing be made places terrorism investigations on the same footing as criminal investigations, where no such showing is required to obtain the exact same records.
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Critics cite excessive confidentiality—a ''gag order''—as another flaw in Section 215. It prohibits persons receiving Section 215 orders from disclosing to third parties those orders or that the FBI has sought or obtained them. Section 215 detractors suggest that the threat of government overreaching in Section 215 would be less troubling if the statute allowed for more transparency, such that the public could understood what records the government sought and why. Critics also contrast Section 215's confidentiality provision with the grand jury process, where they claim the recipient receives notice of the subpoena and can move to quash it in court.
It is unassailable that real and potentially catastrophic harm can result from the premature disclosure of a terrorism investigation. I agree, however, that this risk does not justify barring recipients of Section 215 orders from consulting with attorneys, and from challenging the order before the Foreign Intelligence Surveillance Court. The DOJ has publicly agreed with this position. If such consultation and challenge were permitted, it would place Section 215 proceedings on a par with grand jury proceedings, where the subpoena recipient obviously knows of its existence and can challenge it in court, but at the same time may be prohibited from disclosing its existence to others.
Beyond this amendment, however, the confidentiality provisions of Section 215 should not be disturbed. You do not want potential terrorists to know you are investigating them or are aware of their plans. A leak could cause conspirators to accelerate the plot to a point where authorities are less prepared to prevent it or protect American lives. Or terrorists might abandon the plot, destroying evidence and taking flight, which would hinder prevention, capture and prosecution. The plot might later resurface, at a point when we are less prepared and more vulnerable. Each and all of these scenarios present a missed opportunity to protect innocent Americans from harm. Premature disclosure also risks harm to agents, witnesses and undercover operatives. Against this risk of harm must be weighed the interests that are served from permitting the recipient of a Section 215 order to disclose it to persons other than an attorney. Whatever that interest is, it does not in my view outweigh the risk that flows from wrongful disclosure.
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Some Section 215 criticisms assume the existence of large numbers of ''rogue agents,'' who are characterized as inclined, given the opportunity, to violate the civil liberties and privacy rights of Americans by searching for and exploiting legal and administrative loopholes to browse through their reading materials and subscription and membership lists. This hypothetical rogue agent then becomes, so the argument goes, the justification for additional Section 215 restrictions. It is not apparent to what extent, if at all, such rogue agents exist. As Andy McCarthy wrote, agents ''generally lack voyeuristic interest in the public's reading and viewing habits . . . and voluminous information streams and finite resources leave no time for this sort of malfeasance.''(see footnote 1) The agents, analysts, translators and surveillance specialists with whom I worked were dedicated, talented and law-abiding. And the gauntlet of administrative guidelines, directives, policies, laws and committees applicable to the FBI and DOJ, as well as congressional and judicial oversight, all deter rogues by providing training, oversight, and a mechanism for redress and discipline.
Even assuming rogues present the threat identified by Section 215 critics, it hardly follows that the restrictions they suggest would have the desired effect. Those determined to break rules are not easily deterred, and the real impact of such restrictions may be to unnecessarily burden the conscientious, law-abiding agent trying to do his job effectively. In the end, the best response to the ''rogue agent'' concern is the empirical evidence—according to the DOJ's Inspector General, who was required under Section 1001 of the PATRIOT Act to investigate complaints of abuse of civil rights and liberties under the Act, there have been no documented cases of abuse of civil rights or liberties from the PATRIOT Act in the more than three and one-half years since its passage.
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In sum, Section 215 orders are useful investigative tools in combating terrorism. Most of what the statute permits is already available in criminal investigations, and any differences either make good investigative sense and, given the DOJ's willingness to consider two amendments, do not threaten the legitimate privacy and civil liberty interests of Americans.
SECTION 206
Section 206 of the PATRIOT Act provides for so-called ''roving'' wiretaps and other electronic surveillance in foreign intelligence and counterterrorism investigations. Prior to PATRIOT, once having obtained the approval of the Foreign Intelligence Surveillance Court for a wiretap, agents had to return to that Court each time the subject of that surveillance switched phones, in order to amend the order to direct the new electronic communications provider to give the technical assistance necessary to install and maintain the new wiretap. Due to concerns that targets were rapidly changing phones to avoid detection, including prior to important conversations and meetings, Section 206 eliminated the need for agents to return to the Court each time a target switched devices. It accomplished this by permitting the government, upon a showing that the subject is taking steps to thwart surveillance, to include in the original order a general directive that any electronic communications provider extending services to the target in the future must provide the necessary technical assistance.
In part because authority for ''roving'' wiretaps has long been available in criminal cases, the only serious criticism of section 206 is that it allows intelligence investigators to conduct ''John Doe'' roving surveillance that permits the FBI to wiretap every single phone line, mobile communications device, or Internet connection the suspect may use without having to identify the suspect by name. This criticism ignores hurdles that guard against overly-broad wiretapping. First, ''roving'' wiretaps are available only upon a showing that the subject is taking steps to avoid surveillance. Second, where agents cannot identify by name the target of a proposed wiretap, they must describe the subject with sufficient particularity to convince the FISA Court that there is probable cause to believe the subject is a ''foreign power'' or an ''agent of a foreign power.'' That is, the wiretap order applies only to a specific person, even if the government has not yet ascertained his or her identity. The alternative—to make wiretaps unavailable until the target is identified—is a highly risky restriction, since valuable intelligence may be lost while a person's identity is investigated, especially given that terrorists operate in a clandestine world and are trained to use multiple aliases and identities. Third, if the government wants to conduct a wiretap of a new target, it must return to the Court with a new application. Finally, agents conducting wiretap investigations must abide by ''minimization'' requirements, which strictly control the monitoring and retention of conversations by innocent persons not involved in the wrongful conduct.
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These provisions provide adequate safeguards to protect the civil liberties and privacy interests of Americans.
CONCLUSION
I strongly urge the Committee to reauthorize Sections 206 and 215 of the PATRIOT Act. These provisions strike the correct balance between homeland security and civil liberties.
I thank the Committee for its time and attention, and would be happy to answer any questions.
Mr. COBLE. Thank you, Mr. Khuzami. Mr. Nojeim.
TESTIMONY OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR/CHIEF LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION
Mr. NOJEIM. Thank you, Chairman Coble, Ranking Member Scott, Members of the Subcommittee.
It's a pleasure to testify before you today on behalf of the ACLU about certain sunsetting provisions of the USA PATRIOT Act. I will focus your attention on one of them—section 215, which deals with FISA records requests.
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I'll also focus your attention on a related provision, section 505 of the PATRIOT Act that does not sunset, but that raises many of the same concerns as does section 215.
The PATRIOT Act expanded two existing sections of law that allow the FBI to compel people in businesses to produce documents and things.
Section 215 of the PATRIOT Act expanded a provision of law to authorize the FBI to more easily obtain a court order from the secret FISA Intelligence Court requiring a person or business to turn over documents or things ''sought for'' an investigation to protect against international terrorism or clandestine intelligence activities.
This ''sought for'' standard minimizes the role of the FISA Judge in controlling abuse, because it does not require any assessment of whether the records sought pertain to an agent of a foreign power or whether specific facts support a particular conclusion.
Section 505 of the PATRIOT Act expanded National Security Letter authority to allow the FBI to issue a letter compelling Internet Service Providers, financial institutions, and consumer credit reporting agencies to produce records about people who use or benefit from their services.
This power was later expanded to include records of car dealers, boat dealers, jewelers, real estate professionals, pawn brokers, and others.
In both section 215 and 505, the PATRIOT Act removed from the law the requirements that the records being produced pertain to an agent of a foreign power; that is, a foreign country, a foreign business, or a foreign terrorist organization. This significantly expanded law enforcement access to records pertaining to Americans. In these days of data mining, one cannot ignore this stark fact: under these provisions, the Government can easily obtain records pertaining to thousands of Americans who have nothing to do with terrorism, so long as the records are ''sought for'' or are allegedly relevant to one of these investigations.
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Neither of these statutes signals the recipient of a letter or order that the recipient can challenge it in court. Both statutes indicate that the recipient can tell no one that the recipient has received the order or letter, including an attorney with whom the person might like to consult.
In common parlance, the recipient is gagged, and under the statutory language the gag stays in place forever.
We do not ask that you repeal either of these sections of law. Rather, we ask that you restore the ''agent of a foreign power'' requirement and that you amend the statute to time limit the gag, exempt attorney-client communications from it, and allow for court challenges.
If these changes are made to the NSL statutes, they would satisfy the court that struck down as unconstitutional the NSL statute that applies National Security Letters to Internet Service Providers.
We also recommend that you require the Government to report publicly about the number of times it uses these powers.
Mr. Chairman, this could be one of the most productive hearings that you've conducted to date on the PATRIOT Act, and I say that because the Government has conceded that many of these changes need to be made. The Attorney General conceded that the gag to which I refer shouldn't cover attorney-client communications. Let's put it in the statute.
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The Government has conceded that—the Attorney General has conceded that the statute has a relevance requirement. Let's put a standard into the statute instead of this very loose ''sought for'' standard.
The Attorney General has conceded that a court challenge ought to be allowed. Let's put that in the statute. The Department of Justice in its sunsets report has indicated that evidence must be presented to the judge who is evaluating an application for a section 215 order. Let's put that in the statute.
And finally, the Department of Justice has implicitly conceded that the number of times section 215 has been used can be disclosed without any damage to national security, and it did that because it has twice disclosed the number of times section 215 has been used.
Mr. Chairman, I'd be happy to discuss roving wiretaps during the question and answer period, but let me sum up by saying this: We're not asking that law enforcement tools be taken away. Rather, we're asking that they be made subject to reasonable checks and balances, such as meaningful judicial oversight and appropriate disclosure to the public of the use of the power. Congress could adopt many of the reforms that I have mentioned by enacting the Security and Freedom Ensured Act, H.R. 1526. This bipartisan legislation, co-sponsored by Representative Otter, Representative Flake, Mr. Conyers, and others, contains a series of carefully calibrated adjustments to the PATRIOT Act that would go a long way toward bringing it more into line with the Constitution and advancing the goal of keeping America both safe and free. Thank you.
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[The prepared statement of Mr. Nojeim follows:]
PREPARED STATEMENT OF GREGORY T. NOJEIM
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Mr. COBLE. Thank you, Mr. Nojeim. We have been joined by the distinguished gentleman from Florida, Mr. Feeney, and the distinguished gentleman from Texas, Mr. Gohmert. But don't start me yet.
Gentlemen, we apply the 5-minute rule to ourselves, as well. So if you all could keep your responses as terse as possible and yet address the point, that would enable us to move along.
Now, what I'm about to say has nothing to do with 206 or 216. Mr.—I want to advise the Members of the Subcommittee and those in the hearing room that effective today, Mr. Bobby Vassar, who is the counsel to Mr. Scott, has become a granddaddy, a grandfather. And I told him earlier, I said, Bobby you look too young to be a grandfather, but congratulations to you, Bobby.
Mr. VASSAR. Thank you, Mr. Chairman.
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Mr. COBLE. And incidentally, I had received Mr. Scott's permission before I did that, Bobby.
He said you would not approve.
Mr. Baker, what type of library records are covered under 215 and how do these records assist or help in terrorism investigation, A; and B—and I think you touched on this—if we exempt library and book records from a 215 order, does that create a sanctuary for terrorists?
Mr. BAKER. Well, as I think you mentioned in your opening remarks, Mr. Chairman, the section 215 of the PATRIOT Act, does not discuss any particular holder of records at all. It doesn't mention libraries at all. It doesn't mention anyone else. And that's why it's an important provision. It allows the Government to go after what it needs with respect to each investigation. But it does not single out libraries or bookstores or anything else. That's point number one.
Point number two is the effect would be it would create—it would put everybody on notice, if you exempted libraries or booksellers somehow, it would put people on notice that there was a, you know, a Government free zone where investigations could not go, and conduct could be conducted there, including, for example, use of computers or, you know, checking out other types of materials that might in some instances, as it has in the past and actual investigations provided important information for investigators. So we don't support that singling out or creating a sanctuary for any type of documents at all.
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Mr. COBLE. I thank you, sir. Mr. Wainstein, some have suggested that since 215 has not been used to obtain library records, it's not needed, although I think maybe Mr. Baker probably will answer this as well. A recent commentary indicated that the 9/11 hijackers used libraries in the United States in the period leading up to September 11. Do you know whether or not, in fact, this is true?
Mr. WAINSTEIN. Yes. Some 9/11 hijackers did use libraries in the United States. Investigators have received information that individuals believed that 9/11 hijackers Wail Alshehri, Waleed Alshehri, and Marwan Al-Shehhi visited the Del Ray Beach Public Library in Del Ray Beach, Florida.
Wail Alshehri and Waleed Alshehri entered the library one afternoon in July of 2001, and asked to use the library's computers to access the Internet. After about an hour a third man, Marwan Al-Shehhi, joined the two. Waleed and Wail Alshehri were hijackers aboard American Airlines Flight 11, while Al-Shehhi was the pilot who took control of United Airlines Flight 175, both of those flights crashed into the World Trade Center on September 11th.
A witness, who recognized photos of the three individuals that ran the newspaper articles after September 11th, provided the information about the Del Ray Beach library visit. While no records exist to confirm the hijackers' visit to the Del Ray Beach Library, the timing, location, and behavior described by the witness are consistent with other information gathered in the course of the investigation.
In addition, investigators tracing the activities of the hijackers determined that on four occasions in August of 2001, individuals using Internet accounts registered to Nawaf Alhazmi and Khalid Almihdhar, 9/11 hijackers, used public access computers in the library of a State college in New Jersey. The computers in the library were used to review and order airline tickets on an Internet travel reservations site. Alhazmi and Almihdhar were hijackers aboard American Airlines Flight 77, which took off from Dulles Airport and crashed into the Pentagon. The last documented visit to the library occurred on August 30, 2001. On that occasion, records indicate that a person using Alhazmi's account used the library's computer to review September 11th reservations that had been previously booked.
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Mr. NOJEIM. Mr. Chairman, may I respond to that? May I respond to that?
Mr. COBLE. Well, I'll get to you in just a minute, Mr. Nojeim. I want to ask Mr. Khuzami a question. We're going to probably have a second round here as well. Comparing the process for obtaining records through a grand jury subpoena, Mr. Khuzami, with the process for obtaining records through section 215, which process in your opinion contains more safeguards to ensure the privacy of Americans?
Mr. KHUZAMI. Mr. Chairman, I believe that section 215 does for a host of reasons.
First, it has a much narrower scope. It only applies in foreign intelligence investigations or investigations designed to protect against international terrorism or espionage activities.
Whereas, in the grand jury process, you can investigate anything in the entire Federal criminal code, as well as terrorism and espionage cases. So the scope is much narrower in section 215.
Two, you cannot use section 215 authority to investigate a U.S. person based solely on their first amendment activities. There is no such similar restriction in the grand jury process.
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Third, and most importantly, there is judicial review of the section 215 order before it is issued. Agents can't just go out and grab your records. They have to present an application to the court and the court has to review it. It is an independent check on law enforcement that does not exist in the grand jury process.
Next, there's congressional oversight, as you well know, for section 215 orders and the Department of Justice has to report on its use of that provision.
And lastly, the Inspector General has to report on abuses in general under the PATRIOT Act. Neither of those two oversight functions exist in the grand jury process.
Mr. COBLE. Well, my time has expired. The gentleman from Virginia, Mr. Scott.
Mr. SCOTT. Thank you, Mr. Chairman. Let me follow through on that. On the grand jury you're actually investigating a crime; is that right?
Mr. KHUZAMI. That's correct.
Mr. SCOTT. And in 215, you can be investigating—you said terrorism. But you can also be investigating—is 215 limited to terrorism or crimes?
Mr. KHUZAMI. No, it can be used to collect foreign intelligence information or to investigate espionage.
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Mr. SCOTT. Whoa. Whoa. Whoa. Wait a minute. What is foreign intelligence information mean?
Mr. KHUZAMI. That is information designed to determine if there are foreign intelligence agents collecting information or acting within the United States who may pose a threat.
Mr. SCOTT. A threat? Does it have to be a threat?
Mr. KHUZAMI. Does it have to be a threat?
Mr. SCOTT. Right.
Mr. KHUZAMI. No, it doesn't have to be a threat. But you have to be very careful to make sure that you are collecting this information so that you can prevent an attack rather than prosecuting it after it happens. And that's the critical difference in 215.
Mr. SCOTT. How about getting information on trade deal negotiations in helping you conduct foreign affairs?
Mr. KHUZAMI. I'm not aware that it's ever been used for that purpose.
Mr. SCOTT. I didn't ask you—it says the code—does the code say conduct of foreign affairs, Mr. Baker. Is that what it says?
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Mr. BAKER. Yes, sir. It does.
Mr. SCOTT. Okay. Well, conduct of foreign affairs—a trade deal. Where is the threat if we don't get their low price on steel?
Mr. KHUZAMI. I'm not aware that there is a threat for those purposes?
Mr. SCOTT. Okay. But you can get 215 information if it's helping you conduct your foreign affairs; is that right?
Mr. KHUZAMI. I'm not aware that it has ever been used for that purpose.
Mr. SCOTT. Well, do you want to—can we strike it—well, how would you like us to limit this to just crimes and terrorism so we don't have to ask these questions every time we have a hearing about you getting a roving wiretap for things that have nothing to do with criminal activity or any national security of the American public?
Mr. BAKER. May I respond to that, Congressman?
Mr. SCOTT. Sure.
Mr. BAKER. We discussed this briefly the other day, and I mean one of the purposes of FISA is to provide the President of the United States with timely and accurate information about the capabilities, plans, and intentions of foreign powers and their agents across the board. And the President of the United States has broad responsibilities to protect the national security, but also to conduct the foreign affairs of the United States.
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So as in my prior dealings with the Congressman, he always challenges me, and I always have to go do my homework to make sure I know exactly what we're talking about here. So after we discussed this the other day, I went off and looked up the legislative history on this particular point, and I believe it provides some comfort in this area, because it says that the provision we're talking about here requires that the information sought involves information with respect to foreign powers or territories and would, therefore, not include information solely about the views or planned statements or activities of Members of Congress, Executive Branch officials, or private citizens concerning the foreign affairs or national defense of the United States.
Mr. SCOTT. If you have the agent of a foreign government that you're discussing a trade deal with, can you get a 215 information and can you get the roving wiretap?
Mr. BAKER. In?
Mr. SCOTT. And that's all the probable cause you got. The probable cause he's a foreign agent, and the probable cause he's going to talk about with his people back home what the low price on steel is. Can you get a roving wiretap?
Mr. BAKER. Under the statute, the answer is yes.
Mr. SCOTT. Okay.
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Mr. BAKER. But there's a limitation in that the information sought must be with respect to foreign powers or their territories, so it's different. It's not information about that U.S. person. It's information about what the foreign power.
Mr. SCOTT. Okay. Well, let's talk about this U.S. person where you say you can't get it solely for protected first amendment activities.
Mr. BAKER. Yes. That's correct.
Mr. SCOTT. And that solely invites a question. Suppose it's mostly for first amendment activities? A war protester?
Mr. BAKER. I am quite confident that my office, the Attorney General, and the FISA Court would be very concerned about any requests to conduct a FISA that was not done for a proper purpose; that was done apparently for a purpose to collect information about somebody who was merely protesting against the Government. There's——
Mr. SCOTT. What does ''solely'' mean?
Mr. BAKER. Solely means, in my mind, solely—the only reason.
Mr. SCOTT. And if it's mostly because of war protesting, but you got a little smidgeon of something else, it would be okay to get the information?
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Mr. BAKER. In theory, that's what the language says. But——
Mr. SCOTT. Well, I mean in theory. I'm talking about the English language. Is that what the words say?
Mr. BAKER. Yes, it does.
Mr. SCOTT. Okay.
Mr. BAKER. But, as I said, there are mechanisms in place and individuals in place to enforce the law, and it seems to me that the rule of law does not depend merely on writing down laws on paper. You have to have people——
Mr. SCOTT. What information do you present to the court to get a 215, to get 215 information?
Mr. BAKER. We would present to the court information—because of the restriction that it can't be based solely on first amendment activities. We would provide to the court in that situation and the pen register situation, where you have similar restriction, information to assure the court, as well as our office, that it is not based solely on protected first amendment activities, and we would also explain to the court why it's relevant to the investigation.
Mr. SCOTT. Are we coming back? Okay.
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Mr. COBLE. The gentleman's time has expired. In order of appearance, the gentleman from Arizona, Mr. Flake. You're recognized for 5 minutes.
Mr. FLAKE. Thank you, Mr. Chairman. I thank the witnesses. Let me just follow up. Have any—with Mr. Wainstein, if you could. Have any 215 applications been denied by a judge? By a FISA Court?
Mr. WAINSTEIN. I think actually the best person to speak to that would be Jim Baker because he actually appears before the FISA Court.
Mr. BAKER. The answer is no.
Mr. FLAKE. No?
Mr. BAKER. The answer is no.
Mr. FLAKE. Under what scenario could you see one actually being denied, given that the language actually says the judge shall issue the order.
Mr. BAKER. In my experience, I mean if the court was not obviously what we were just discussing with Mr. Scott. If the court was not satisfied that there was a legitimate basis for this investigation, a legitimate foreign intelligence or protective basis, then it would deny it, and should deny it, if we filed such an application.
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Mr. FLAKE. But it says—the words used there are ''shall.'' Do you see a problem with that, and do you think that we in Congress ought to be concerned that we would have to rely, as you put it on individuals and their discretion at the Department of Justice or prosecutors?
Mr. BAKER. Well, it's not just the Department of Justice, it's the court. It's Federal district court judges sitting especially designated as FISA Court judges, but who are appointed for life——
Mr. FLAKE. But who are told by statute shall issue an order. Shall instead of should, might, use your discretion. Rather, it says shall.
Mr. BAKER. In my dealings as a lawyer, I have never met a judge who's just going to look at a blank request from the Government and not assure himself or herself that it's consistent with the law and ask commonsensical questions about what it is the Government is trying to do, especially in FISA and especially with the history that we have with respect to how national security authorities have been misused in the past. We're all very cognizant of that, and we all work very hard to make sure that doesn't happen again.
Mr. FLAKE. But shouldn't we—I mean you're then saying that you're confident that a judge would ignore the statute that says he shall issue it, and actually defy it?
Mr. BAKER. Well, shall—I mean let me just be clear. The word shall is not just found in 215 and in no other creature of Federal law. It is found in other provisions as well, and when the Government meets the statutory requirements of that statute or other statues, it directs the court to issue the order.
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Now, having said that, my experience again with Federal judges is that they look hard at any requests from the Government to do anything, especially intrusive activities. And the court is going to look at that. That's why Congress put Federal judges into this process when they enacted FISA.
Mr. FLAKE. Mr. Nojeim, would you comment on that?
Mr. NOJEIM. What the statute says is that when the Government applies for 215 order, it must specify that the records that it seeks are sought for an authorized investigation. Once it makes that specification, the statute requires that the judge issue the order giving them access to those records. The debate ought to be about what the Government should have to prove to the FISA Court, not—and that you shouldn't allow the statute to stay in its current condition that allows the Government to get these records merely when it makes the specification. Remember what's happening here. There's one party in front of the judge. And that one party need only specify. That's it.
Mr. FLAKE. Moving on just a bit. In testimony the other day at a hearing, it seemed as if—and I want to get your opinion on this—that an individual who is not the target of probe, who is on the periphery somehow could have information on a Internet server, for example, that he could be surveilled for a long period of time without knowledge that he was under surveillance; that the notice simply has to go to the Internet provider or the server and not the individual. Is that accurate, Mr. Nojeim, first?
Mr. NOJEIM. Say it again? That the notice?
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Mr. FLAKE. That notice that surveillance is being conducted need not ever go to the individual?
Mr. NOJEIM. Oh, no. No. The individual who is being surveilled?
Mr. FLAKE. Yes.
Mr. NOJEIM. Never knows.
Mr. FLAKE. Never knows?
Mr. NOJEIM. Right.
Mr. FLAKE. And that could happen for a long period of time, over a couple of years, and under the current law, they need not be ever notified that they are under surveillance?
Mr. NOJEIM. That's right. They would never be notified.
Mr. FLAKE. Okay.
Mr. NOJEIM. And if I could just follow up on part of the discussion earlier? This notion about exempting libraries from the coverage of section 215.
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Mr. FLAKE. I was going to get to that.
Mr. NOJEIM. We have to remember that 215 and National Security Letters also apply to Internet Service Providers. The Government says that the library is an Internet Service Provider. But it can use its Internet Service Provider authority to get those records without having to go through section 215. In other words, if you exempted libraries from section 215, the FBI could still serve a National Security Letter on the Internet Service Pprovider that is serving the library and get those records using that authority, and it wouldn't even matter that the library had been exempted from section 215.
Mr. FLAKE. But you have not—just to clarify—you or your organization has not asked for an exemption for libraries? You simply asked for a more rigorous standard that's applied before appearing before a judge?
Mr. NOJEIM. That's right.
Mr. COBLE. The gentleman's time has expired. And, as I said, we'll have a second round. The distinguished gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. I appreciate the witnesses' testimony.
How many convictions based on terrorist activity have we had in the United States since 9/11? I'll start with Mr. Wainstein?
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Mr. WAINSTEIN. Yes, sir. Thank you. I don't have——
Mr. CONYERS. I understand.
Mr. WAINSTEIN.—off the tip of my tongue an exact number, but I have actually—I know this question has come up, so I had a listing of various——
Mr. CONYERS. Sure. What number?
Mr. WAINSTEIN. I came up with about a dozen or so.
Mr. CONYERS. Okay. I'd like to see you afterward to find out how your list compares to mine.
Mr. WAINSTEIN. And keep in mind, that's not a total list.
Mr. CONYERS. No. It's not.
Mr. WAINSTEIN. It's just the cases that occurred to me as being terrorism cases that I——
Mr. CONYERS. Well, I'm in the process of trying to find this out. This is probably the most elemental question that we could be talking about.
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I asked you this already once, Mr. Baker, didn't I?
Mr. BAKER. Yes, sir, last time.
Mr. CONYERS. What number do you have?
Mr. BAKER. I don't—I didn't count.
Mr. CONYERS. You didn't count.
Mr. BAKER. I was just able to come up with—you asked—I think if we—if there had been any convictions, and I think——
Mr. CONYERS. All right.
Mr. BAKER.—the answer was yes. But I believe that the Department, the Criminal Division, of the Department, would be the most likely place to have that kind of information.
Mr. CONYERS. Thank you. Mr. Khuzami, what number do you have?
Mr. KHUZAMI. I'll defer to my Department of Justice colleagues.
Mr. CONYERS. Okay.
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Mr. KHUZAMI. I do not have a number.
Mr. CONYERS. All right. Director Nojeim, how many do you have?
Mr. NOJEIM. I'd be happy to get back to you, Congressman.
Mr. CONYERS. Okay. All right.
Mr. NOJEIM. But let me just point out that it's important that when we're reporting numbers of convictions that we actually look at what the person was convicted of.
Mr. CONYERS. Well, exactly.
Mr. NOJEIM. Often the Department says that somebody was convicted of terrorism in connection with a terrorism investigation, when really the conviction is about a very minor crime.
Mr. CONYERS. Precisely. Well, I want to tell everybody and put it on the record that I've got four that I would be willing to—that's a number I would stand behind. But somewhere in our Government, and I'll take your suggestion, Mr. Baker, to check with who you referred us to.
Now, let me ask if there's any witness here that has any objection—well, I don't—I guess I know the answer to this question already. All of the witnesses except one wants to make section 206 permanent; is that right? Right?
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Mr. BAKER. Yes.
Mr. WAINSTEIN. Yes, sir.
Mr. CONYERS. Okay. Then I have to ask Mr. Nojeim what's the case for more safeguards and what would they be and why shouldn't we have, and why should we discontinue the use of simultaneously both John Doe wiretaps and roving wiretaps?
Mr. NOJEIM. We're not asking that you repeal section 206, the roving wiretap provision of the PATRIOT Act. What we ask is that you conform it to the corresponding provision in the criminal code. Doing this would entail requiring that the Government specify in its application for a wiretap either the identity of the person who's phone or computer would be tapped or to specify the facility that would be tapped.
It would also entail borrowing from the criminal code the ascertainment requirement that helps focus law enforcement eavesdropping on conversations to which the target is really a party. Doing these two things would conform the intelligence roving wiretaps to the criminal roving wiretaps and would go a long way toward protecting the privacy of Americans engaging in innocent telephone conversations.
Mr. CONYERS. Finally, we've been trying to get information about these numbers. The only time we get cooperation from the Government, namely DOJ and the FISA people, is when there's an expiration of a provision, and then we get some numbers. Other than that we get stiffed for—what is it—three years we've been trying to engage in a discussion, and it was off the charts, and I just want to put on the record that this amounts to me to misclassification, because there's been no accounting for the wiretaps, the National Security Letters, and then all of a sudden when seeking reauthorization, we can get the numbers.
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And I think, Mr. Chairman, that's an abuse of power on the part of the Executive Branch that handles this kind of activity. Does anybody want to defend the Government on that score? Mr. Baker?
Mr. BAKER. Yes, sir. I'd be happy to. On a regular, on semi-annual basis, we provide to the intelligence committees of both Houses of Congress a very lengthy report full of all the numbers you could want quite frankly. It's a very, very long report, with a lot of data in it that is available at the committees', the intelligence committees, and, as I understand it, Members of Congress and cleared staff can have access to that. So we provide those numbers. We also provide less highly classified reports, with admittedly less information in them to, I think, both the Judiciary and Intelligence Committees of both Houses of Congress.
Mr. CONYERS. Well, all somebody had to do was put it in a letter to us saying go see the right agency. We're loaded with. You got more information than you could ever use, but we get stiffed.
Now, I'll take it up with the staff and the Subcommittee as well but I'm glad you're telling us that it's really available if we can get cleared.
Mr. BAKER. And I come up regularly. I was up I think last week in front of the House Intelligence Committee to come up and do staff briefings and explain the numbers and provide additional details. So I'm happy to do that at any point in time.
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Mr. NOJEIM. Mr. Conyers? Mr. Conyers, the Department reports every year the number of full FISA wiretaps and physical searches that it does. And it does that without any risk to national security. It could—and those are much more intrusive searches than our—than the searches under section 215 and than our National Security Letter requests as well.
This is what we got when we filed a Federal Freedom of Information Act request for information about the use of National Security Letters. It is page after page after page of blanked out information that seems to suggest that National Security Letters are being used, but that you can't really tell that they are or how often they are being used.
We would suggest that more reporting could be done on National Security Letters.
And I'd like to submit this for the record, and the letters that the Attorney General—I'm sorry that the Department of Justice—has provided over the last 2 years about even more intrusive surveillance.
Mr. COBLE. Without objection.
The gentleman's time has expired.
Mr. CONYERS. Thank you.
Mr. COBLE. The gentleman—the distinguished gentleman from Texas, Mr. Gohmert.
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Mr. GOHMERT. Thank you, Mr. Chairman, and once again I appreciate the opportunity for these hearings. It's very helpful.
I was a little surprised, and I want to be sure about this, but did I understand that you know the U.S. Attorney' office knows or intelligence knows that the hijackers actually did use the library of the State college in New Jersey to make airline reservations for flight 77? Did I understand that correctly?
Mr. WAINSTEIN. Sir, the—what I stated earlier is that two of the hijackers used computers at that New Jersey library. They did review and order airline tickets. The airline tickets they ordered were not the airline tickets for the flight on September 11th. Those were ordered on some other computer somewhere else. They did review their reservations——
Mr. GOHMERT. I see.
Mr. WAINSTEIN. The September 11 reservations on that computer in that library on August 30 of 2001, 11 days before the attacks.
Mr. GOHMERT. There had been discussion about the gag order. Would it be appropriate to have at least a one-sided gag order where the Government does not reveal, but if the individual target wishes to reveal that he or she could do so? I'm interested in each of your responses?
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Mr. BAKER. Well, I believe what the Department has supported in general is an amendment to the section 215 that would allow the recipient of the order, which remember is most likely a third party. We're unlikely to serve a 215 order on the target of the investigation, but that—we would serve it on a third party and that third party then could consult with their attorney to discuss whatever legal action they want to take or compliance of whatever other matters they want to discuss.
So we would support some kind of an amendment to address what's been referred to as a gag order in that regard.
Mr. GOHMERT. So that would basically be a one-sided gag order, where the Government would not reveal, but the recipient could; is that correct?
Mr. BAKER. The recipient could reveal to his or her attorney or to the company's attorney, whatever it is. They could have a meaningful discussion with their attorney to get legal advice on this issue.
Mr. GOHMERT. So it is currently the law you're telling me that somebody gets this order. They can not even talk with an attorney about it?
Mr. BAKER. On its face, that's what it says. The Department has already taken the position that they could talk to their lawyers with respect to this—with respect to receiving one of these items, but that is what the law says. And that's why we would support clarifying that specifically.
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Mr. GOHMERT. But your position is only that it be extended to consultation with an attorney or someone of that nature, not that they could go public with it?
Mr. BAKER. No. Certainly, I mean we don't want the target of the investigation, who is a spy or terrorist, to find out we're looking for documents about them.
Mr. NOJEIM. Mr. Gohmert, we agree with that. We would add one more thing and that is that to satisfy the court that struck down the National Security Letter statute that applies to Internet Service Providers, to satisfy that court, you would also need to time limit the gag. It would have to expire after a time certain. And I think that that could be done; that the time could be a lengthy one. In the Senate version of the SAFE Act, to which I referred earlier, has I believe a 6-month time limit on the gag.
I'd also like to submit for the record a copy of the form of a National Security Letter so that people can see exactly what these look like. They have very compelling language. You get the letter. You must turn over the documents, and you can't tell anyone that you got the letter, and we would support the amendment that was discussed earlier.
Mr. BAKER. Congressman, if I could just on this——
Mr. GOHMERT. Certainly.
Mr. BAKER. On the time limit, I mean, to me I think that's a very dangerous and bad idea quite frankly, because I mean some of the targets of our investigations, let's be quite clear, are agents of a foreign power. What does that mean? That means in some instances, they are foreign government officials who we are investigating, and we want to obtain information about them, and I don't think that anybody here thinks that they should deserve notice about what the United States Government is doing to investigate their activities. I just think that doesn't make any sense.
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Mr. NOJEIM. Should the Government concede——
Mr. GOHMERT. Excuse me. Just a moment.
Mr. NOJEIM. By the agency?
Mr. GOHMERT. Just a moment. Let me follow up on that. What if there were a time limit, some might call it a sunset provision, where you'd have to come back in and re-justify the need to extent it further?
Mr. BAKER. Well, I mean off the top of my head, that kind of—come back to the FISA Court and try to justify it—that kind of idea makes more sense because there are some times when even if you're investigating a United States person where the Government assesses that it makes more sense; we're getting more intelligence information by leaving this person in place than by trying to take them out or arrest them or something like that. And so sometimes intelligence investigations can go on for a considerable period of time, and that's appropriate and done under the scrutiny of the FISA Court.
So I think that is an idea that I'm sure the Department would be willing to work with the committee on.
Mr. GOHMERT. Mr. Nojeim, does that address your concern?
Mr. NOJEIM. It does, and it is the approach that the Senate took in its version of the Safe Act, and we would support it.
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Mr. COBLE. The gentleman's time has expired.
Mr. GOHMERT. Okay. I'm sorry.
Mr. COBLE. We'll have a second round, Mr. Gohmert.
Mr. COBLE. The distinguished gentlelady from California, Ms. Waters.
The distinguished gentleman from California, Mr. Lungren.
Mr. LUNGREN. Thank you very much, Mr. Chairman. I appreciate these hearings continuing on the oversight responsibility of the Judiciary Committee and if anybody doesn't believe that we're reviewing the PATRIOT Act, they ought to just look at the schedule of the committee and the Subcommittee.
I'd like to get one thing, though, at least my response on the record. There was a use of a phrase a little while ago about abuse of power. And the suggestion was made that you in the Justice Department have failed in your responsibility to report to us. But, Mr. Baker, you've made it clear that you on a regular basis have to do those detailed reports to the House and the Senate Intelligence Committees; is that correct?
Mr. BAKER. That's correct.
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Mr. LUNGREN. Have you discharged that responsibility in the last 4 years?
Mr. BAKER. Absolutely. I have. When I first came to OIPR as an attorney assigned to do those reports—it's very painstaking—and since then I've supervised the preparation.
Mr. LUNGREN. Has there been a time in which those reports were not done to the relevant committees as required by law, both the House and the Senate.
Mr. BAKER. No. We comply with the law in that regard.
Now, I'm going to be frank. There are times—on the big semi-annual report that I talked about that has all the details in it, we provide those on a timely basis. There's times when on some of the other reports we're slower than we should be. And we know that. We're trying to address that, and it's a question of resources within our office quite frankly.
Mr. LUNGREN. I appreciate that. It's just been experience when I served on the House Intelligence Committee that generally speaking—I'm not talking about any single member, but generally speaking the other Members of Congress don't take advantage of the opportunity they have to look at that information. So I just want to make it clear that you have reported as required in the detail as required?
Mr. BAKER. Yes, sir.
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Mr. LUNGREN. Secondly, have you ever heard of sleeper cells that they sometimes sleep longer than 6 months?
Mr. BAKER. Sleeper. Well, without going into specifics about what we know about sleeper cells, I mean that's the whole idea. They sit there until such time as, you know, the authority that has control of them activates them.
Mr. LUNGREN. I understand. See here's what I don't understand. We passed these laws in response to a specific attack on the United States by those who wish to do us harm. A fatwa that issued in 1999 that said it is the obligation of everybody who is the subject of the fatwa, the recipient of the fatwa, it is their obligation to kill every American anywhere in the world—man, woman, or child; belligerent or non-belligerent. That's what we're up against. We passed the law in that context, and sometimes I think we forget in what context we passed that law.
Now, the claim was made that a judge has no discretion whatsoever, at least the impression was made that the judge has no discretion whatsoever under section 215 in the application, because it says shall. It says upon application made pursuant to this section, the judge shall enter a next party order as requested or as modified, approving the release of records. Followed by this language if the judge finds that the application meets the requirements of this section. And what are the requirements of this section? That there be an investigation quote ''to obtain foreign intelligence information not concerning a United States person.'' Correct?
Mr. BAKER. Yes.
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Mr. LUNGREN. The judge has to make that finding. Correct? He has to check and make sure that what you say is in there?
Mr. BAKER. That's correct.
Mr. LUNGREN. Or to protect against international terrorism or clandestine intelligence activities?
Mr. BAKER. That's right.
Mr. LUNGREN. Provided that such investigation of a United States person is not conducted solely on the basis of activities protected by the first amendment of the Constitution. The judge is required to look at that, is he not?
Mr. BAKER. Yes.
Mr. LUNGREN. And you have to prove to his satisfaction that, in fact, that is the basis for the request; correct?
Mr. BAKER. Under the law, the judge has to see and assure himself or herself that the certification is there.
Mr. GOHMERT. Right.
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Mr. BAKER. But in my experience, this court, going back many years is very active in looking at and looking behind what the Government is presenting to it, and so I can assure you that that's what happens, and as we've reported publicly in the report that was mentioned earlier, last year on the full content FISAs, the FISA Court made modifications, substantive modifications in 94 applications. It's a very active court. They look at what we're doing. They're very conscientious.
Mr. LUNGREN. Now, as I understand the testimony, library records have not been accessed by resort to section 215?
Mr. BAKER. That's correct.
Mr. LUNGREN. Even though we know now in retrospect that the—some of the hijackers in 9/11 utilized public libraries, their computers, for the various reasons you've talked about?
Mr. WAINSTEIN. That's true. We have not issued any 215 orders directed at libraries. Keep in mind, however, and there has been testimony over the last week or two about this, that we have had contact with libraries, and many libraries have actually voluntarily provided information to us over the years since 9/11 in relation to terrorism and criminal investigations.
So we haven't had to resort to 215 order.
Mr. LUNGREN. See if some of the discussion I've seen in the public has suggested that somehow the Federal Government is so interested in going after libraries as if there's no context in this. And I think a lot of American citizens would be surprised to know that 9/11 hijackers utilize the libraries, and in retrospect, we wish we knew about that. In retrospect, we wish we'd been able to connect dots. Thank you.
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Mr. COBLE. I thank the gentleman from California. The gentleman from Massachusetts, Mr. Delahunt.
Ms. Waters, did you want to reclaim your time?
Ms. WATERS. Yes, I would like very much, Mr. Chairman.
Mr. COBLE. The gentlelady from California.
Ms. WATERS. I appreciate and thank you. I think we should continue on the discussion about the libraries. I just heard our witness say that you have not had to access information about people using the library. You have not had to resort to that, and you have not had to resort to informing a librarian that they cannot share that information or tell the party that maybe is being investigated. Is that true?
Mr. BAKER. That is correct. We have not used this provision, section 215 for the purpose of obtaining information from libraries.
Ms. WATERS. I see. I'm sorry. That's not my understanding, and I have to go back and do a little research about the information that was—that alarmed us when we first learned about your ability to identify individuals who use a library and the materials that they seek in that library. My friend from California, my colleague on the opposite side of the aisle, indicated that he could not understand Americans who would be concerned about that. And he thought perhaps Americans may not have heard that some of the hijackers may have used the libraries in order to access information that may have been used in the attack.
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I think that many Americans heard that that was a possibility. I am one who's adamantly opposed to librarians having to give information to law enforcement of any kind about who uses the library, when they use the library, and what subject matter they researched or read or had access to in the library. And it's not because we're not concerned about safety, and we're not concerned about terrorism. America is a very special country, with a constitution that guarantees us privacy, and to think that you would be—your privacy would be invaded in the way that this section allows is alarming to some of us.
And so I wish not to have the moment pass by having my colleague from California describe his understanding of this section and his lack of appreciation for why Americans would be concerned about this, and I wish to just share with you that I'm glad you have not had to use it. I'm going to research the information that I thought I had seen about your having used that, and I would oppose this continuously and forever because I think it is one of the most egregious violations of privacy to be targeted in the library.
Mr. CONYERS. Would the gentlelady yield?
Ms. WATERS. Yes, I will certainly yield to the gentleman.
Mr. CONYERS. One of our problems, and I'm glad you've re-raised this subject is that you don't need to use what is it—215?—to get to the libraries. You can get to the libraries through a National Security Letter, which is an administrative subpoena. And guess what? They won't tell us how many of those letters they've used. And what we think has been happening is that they've been getting to libraries, not through 215, but through this other route.
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I have not raised that. I didn't raise that question yet, and that's why I praise you reclaiming your time.
Mr. NOJEIM. If I could just put a little fine point on that? The Government could use a National Security Letter to get the records of a person's use of the library computer, but they couldn't use the National Security Letter to get records about what books the person checked out. So they could find out where the person went on the Internet, but not use it to get records about what they checked out of the library.
Here's where the real debate ought to be on this section. If the Government believes that Mohammad Atta has gone into a library, checked out a book, and that he's an agent of a foreign power or foreign terrorist organization, they ought to be able to get records about that if they can show that they're relevant to an investigation. They ought to be able to do that.
The real debate is about whether they can go to the library and say, ''Give us the records about what everybody checked out, because in that—inside of those many records will be information that's relevant to our investigation.'' And what we're saying is focus on the agent of the foreign power, but leave the records that pertain to innocent people alone.
Mr. COBLE. The gentlelady's time has expired.
Ms. WATERS. All right. All right.
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Mr. COBLE. The gentleman from——
Ms. WATERS. Thank you. Thank you very much.
Mr. COBLE. Mr. Wainstein may respond if you wanted to very—do you want to respond?
Mr. WAINSTEIN. I just wanted to point out that the Department has taken the position that the recipient of a 215 order can, in fact, challenge it if they think that it's overly broad and oppressive, and, in that case, a library, if they really thought that we were overly broadly asking for all the records—the records of all of the readers in the library could, in fact, consult with their attorney and then challenge it in court.
Mr. COBLE. Very well. The gentleman from Ohio is recognized for 5 minutes.
Mr. CHABOT. I thank the gentleman for his recognition. I'd just like to start out by reiterating something that my colleague from California, Mr. Lungren, mentioned before, and that's that I sometimes read articles and hear my colleagues sort of loosely state that after we passed the PATRIOT Act, there has been essentially no oversight; that we've kind of turned the Federal law enforcement forces loose on the American public and all kinds of kind of wild allegations, but clearly Congress has been getting the reports. Now, who's been reading these reports and whether we've been following up with our responsibilities in doing that is another matter.
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But we were pretty careful in crafting this legislation. We also put in that legislation the requirement that we come back and revisit this to see how this has actually been carried out over the past 3, 4, 5 years, and that's what we're doing now. And I want to commend the Chairman for holding these hearings, and we've had a significant number of these hearings; and I think the attendance has been pretty good on both sides of the aisle. Both Republicans and Democrats who have been here I want to commend them for doing that.
But this is part of that oversight process, and I think when we passed the PATRIOT Act, we were very serious about exercising this oversight, and this is all part of that procedure and process.
Mr. Nojeim, let me start with you. In your testimony, you point out that prior to the passage of the USA PATRIOT Act, roving wiretaps were available in criminal investigations, but not, of course, in FISA investigations.
Leaving aside for a moment the two particular criticisms of section 206 contained in your testimony, do you agree with the other witnesses on the panel that roving wiretap authority should be available in FISA investigations?
Mr. NOJEIM. We believe that roving wiretaps are potentially particularly intrusive and that for that reason, if Congress decides to make them available in intelligence investigations, it ought to include the same kinds of protections that it put for roving wiretaps in criminal investigations.
Mr. CHABOT. Okay. Thank you.
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Mr. Baker, let me go to you next. In Mr. Nojeim's testimony, he alleges that the Government can now issue John Doe roving wiretaps that fails to specify a target or a telephone. It's my understanding, however, that a roving wiretap order issued be the FISA Court must specify a particular target, and that this target must either be identified or described.
And furthermore, I've been told that the FISA Court must find that there is probable cause to believe that the identified or described target is a foreign power, agent of a foreign power, and may take action to thwart surveillance. Am I accurately describing the requirements set forth in FISA or is Mr. Nojeim's allegation correct?
Mr. BAKER. No. You're actually—you're accurately describing the requirements of FISA. We must provide the identity, if known, of the target or a description of the target, and then—and we have to establish probable cause to believe that that target is a foreign power or an agent of a foreign power.
As I said earlier, those two terms are defined. It's not—we don't just make it up. They're specifically defined in the statute, and when you come to a U.S. person, all of those definitions have a link to the criminal law of the United States.
And in addition to that, then the court has to make the specific finding, as you suggest, that that target, that target, is engaging in activities that may have the effect of thwarting surveillance.
Mr. CHABOT. And in Mr. Nojeim's testimony, he also suggests that the section 206 of the USA PATRIOT Act lacks sufficient privacy safeguards, but he doesn't mention the statutory requirement that each roving wiretap order issued by the FISA Court contains specific minimization procedures in order to limit the Government's acquisition and retention and dissemination of information about Americans.
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Could you please discuss what minimization procedures are, and why they're important, and whether you feel that these procedures adequately protect the privacy of our citizens?
Mr. BAKER. In order to obtain a FISA Order in the first place, each application must include within it minimization procedures that are specifically approved by the Attorney General and that are reasonably designed in light of the purpose and technique that's going to be used to protect against the acquisition, retention, and dissemination of non-pertinent communications by Americans. And these procedures have to be specific. They have to be reasonably designed in light of the need for the Government to obtain, collect, and disseminate foreign intelligence information, and then the court makes a finding, when it's reviewing our application, that those minimization procedures meet the definition set forth in the statute by Congress.
Once the court has made that assessment and the other assessments under the statute and determines that the order can be lawfully issued, the court grants us the authority and then it orders us to follow the minimization procedures.
The minimization procedures are—there are standard procedures that exist that we use in just about every case. And then for particular circumstances, the court or the Government or both will craft specialized minimization procedures to address situations that come up where the intrusion in privacy might be higher, and you have to adjust accordingly. And so the court is very active in assuring itself before it issues an order that the minimization procedures are appropriate.
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Mr. COBLE. And the gentleman's time has expired. And consistent with what the gentleman—Mr. Delahunt, I'll give you just a minute. I just want to follow up on what the gentleman from Ohio said regarding our oversight.
And the other day, at our hearing, Mr. Delahunt, you commented about the accelerated path that we are now pursuing. I hope that if any of these provisions are subsequently sunsetted, I would like to see the sunset occur at the conclusion of the calendar year of the second year of the Congress rather than the first year. That might, Mr. Delahunt, preclude our having to do this exercise again.
The distinguished gentleman from Massachusetts, Mr. Delahunt.
Mr. DELAHUNT. Thank you, Mr. Chairman. Just to follow up on that point. I think it was you, Mr. Wainstein, that said you encouraged this committee to make these provisions permanent. This really does go to the issue of oversight. I don't want to get into the details of the various provisions at this point.
But, Mr. Chairman, you know, as I participate in these various hearings, I'm becoming—I'm reaching the conclusion that if they're not to be sunsetted, if they're to be modified, if there are to be changes, or if there are—if they are just reauthorized as is, I think it's very important that they not be made permanent; that these kind of hearings are positive and are absolutely integral in terms of our role as far as oversight is concerned. It gives us—I can—I dare say the gentleman from Justice would not be here but for the fact that there is a sunset provision. And maybe, just maybe, we ought to expand the sunset aspect of the PATRIOT Act to other provisions to give us a more—how shall I say—leverage in terms of our oversight function, and that is if nothing with that act changes.
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But the reality is, with all due respect, you know, dealing with the Department in terms of securing information without the leverage of the sunset is extremely difficult. It isn't easy. And I think that is a sentiment that is shared on both sides and in other committees. And I have no doubt, Mr. Baker, that, you know, you take your role very seriously, and I'm sure that the career people that are working under your direction are people who act in good faith. But the system itself requires more than just checks and balances within the Executive Branch.
And that's why I put this idea out about as we reauthorize or as we address the sunset provisions to expand the sunset to the entire PATRIOT Act, to allow us to have a more significant role in terms of our responsibility and our review.
Mr. BAKER. May I just respond briefly to that?
Mr. DELAHUNT. Sure.
Mr. BAKER. And I thank you for your comments. We do take our jobs very seriously.
Mr. DELAHUNT. I know that.
Mr. BAKER. And we do conduct—ourselves we conduct oversight of the activities of the FBI and the——
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Mr. DELAHUNT. I understand.
Mr. BAKER.—the intelligence committees. I mean intelligence community. And oversight it seems to me—effective oversight to do it—it's a hard job—it's a really hard job. You really got to roll up your sleeves and dig in and do a lot of work——
Mr. DELAHUNT. Right.
Mr. BAKER.—and push, and get the information you need to satisfy yourself that what's being done is appropriate and consistent with the law.
I will tell you that even though I don't agree with all their conclusions, the Senate Intelligence Committee audit staff conducted a very lengthy oversight or audit of the FISA process, and they're finishing the report, and it was referenced yesterday, and that, I mean, I myself spent many, many, many hours with them discussing the process and so on.
Mr. DELAHUNT. Right.
Mr. BAKER. And they had access to everything. And that——
Mr. DELAHUNT. I'm running out of time. Here's part of my problem, too, Mr. Baker, is that you reference the, you know, the reports to the Intelligence Committee. I don't know, but does the Judiciary Committee that has, you know, jurisdiction over the Department of Justice—do we get those same reports?
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Mr. BAKER. I don't pretend to understand all the rules of Congress, but——
Mr. DELAHUNT. Neither do I.
Mr. BAKER.—as I understand it, those kinds of reports are available to Members of other committees. You go up and read it in the secure space of the Intelligence Committee, and then staff members who have appropriate clearances——
Mr. DELAHUNT. Okay.
Mr. BAKER.—can go——
Mr. DELAHUNT. Well, again, another suggestion would be, Mr. Chairman, is when the time comes to have—that Justice report directly to this committee as well as the Intelligence Committee since we do have oversight.
Part of the problem, Mr. Baker, is that the FISA Court—and I'm sure again—that these judges—you know, they're really title III judges I understand that move over to the FISA Court—but there again everything is done in secret, obviously by necessity. But, as I said earlier in the week, part of the problem here is balancing the need for transparency versus the need for secrecy because of national security and the concerns that people have expressed about privacy and libraries, et cetera are part of that balance. And, you know, let me just ask one more question.
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I think the suggestions and the recommendations by Mr.—is it Nojeim?
Mr. NOJEIM. Nojeim. Thank you.
Mr. DELAHUNT. Nojeim. Are really reasonable. I don't see the heavy burden that the adoption of those recommendations would put on the Government, and yet would, you know, accrue to the benefit of the American people in terms of their concerns about what's happening behind closed doors, because it is happening all behind closed doors. We've got to provide more information and become more transparent. That's difficult. I understand. But that's the—I think the role of this committee working with the—you know, with the Department, and really thinking this thing through in a responsible way. Thank you.
Mr. COBLE. The gentleman's time has expired. We'll get back on the second round, Mr. Baker. We're going to have a second round. The gentlelady from Texas has joined us. Ms. Jackson Lee, you're recognized for 5 minutes.
Ms. JACKSON LEE. Thank you very much, Mr. Chairman, and, Mr. Nojeim, I'm going to pose a series of questions for you, so ask mine, and then you can weave in your commentary.
Let me first of all thank both the Chairman and Ranking Member of the Subcommittee. I know this is leading to the potential of the reauthorization of certain aspects of PATRIOT Act One, and, of course, also moving into PATRIOT Act Two.
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I am on record—I might as well as they say share it all for opposing PATRIOT Act One, and considering where we are today, on any aspects that are now being called to be reauthorized.
As it relates to the next step, I'm on record for being enormously skeptical to the extent of moving past the 90 percent radar screen. It's fair to make that acknowledgement.
Let me share with you just a few comments and if you can point right back to libraries and access and the clear equation of invasion of privacy equals excellent security or absolute security.
My recollection is that one of the reasons of the Founding Fathers fleeing from their previous nation site was this question of freedom. We did not devise the Bill of Rights in the 20th century. It was devised by early founders of this nation. And so it must have been something keenly part of the cornerstone of America. And that is unfortunately other than the recognition of the dignity and the humanity of slaves and women, freedom was a very, very serious in-depth infrastructure or fabric of our society. And we were willing to die for it.
I recall after 9/11, one of the tools of so-called freedom or security was the registration of Pakistani males and others. My knowledge is that not one or barely one terrorist was found during that registration period, and quietly we ended it. So the question is, as we look toward our security, I happen to focus more on technology, security of the borders, preventing people who have untoward desires from coming into the United States, and also giving law enforcement the appropriate tools.
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Would you answer for me the fact of whether or not the complete invasion of one's private e-mails, technology, library usage, et cetera is preventative of terrorism or is it simply a tool to make a case that you have the intent or the inclination or the background or the previous thought processes that might make you a terrorist?
Mr. NOJEIM. We believe that when the Government has strong evidence that a person is up to no good, that they're a terrorist, that they can get access to very private information about that person to help prove their case.
Ms. JACKSON LEE. Already? Now?
Mr. NOJEIM. That then can do it now and that they ought to be able to do it. When the Government has, for example, probable cause of crime that there's—that a person is involved in crime and that in their house is evidence of that crime, they should be able to get a warrant and go into their house and find that evidence. The important thing to remember is that there are safeguards, and what the PATRIOT Act did was erode the safeguards.
Our advocacy today and our advocacy throughout this debate has been about restoring some of those safeguards. One of the safeguards that we want to restore, besides judicial review and meaningful judicial review, is openness to the public about how particular powers are being used. And Mr. Delahunt was asking whether the committee gets reports about section 215. Indeed, the statute requires that the Attorney General provide to the Judiciary Committee a report setting forth the total number of section 215 orders that it has applied for and the total number of such orders either granted, modified, or denied.
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It also has to provide similar information to the general public about FISA Orders—those full probable cause ''that-the-person-is-an-agent-of-a-foreign-power'' orders that allow them to wiretap or break into a person's home. It has to provide that same information about much more intrusive searches to the entire public, and we see no reason why the Government couldn't provide that same information about the less intrusive section 215 searches to the entire public, especially given that the Attorney General has twice disclosed exactly that same information.
Ms. JACKSON LEE. Mr. Baker, if I might just get an answer. What about those safeguards? Can you not live with the safeguards that the witness has just spoken about?
Mr. COBLE. Would the gentlelady suspend just for a moment, Ms. Jackson Lee? Mr. Baker, if you would answer that very quickly. We have a vote on the floor, and we will come back, Ms. Jackson Lee.
Ms. JACKSON LEE. Thank you, Mr. Chairman.
Mr. COBLE. We will come back for—Mr. Baker, if you will respond very quickly.
Mr. BAKER. FISA—excuse me—FISA includes a number of reporting provisions, and I think that the Department has expressed a willingness to work with the committee to discuss whatever additional requirements might be appropriate, but we need to remember that we're dealing with the national security, and so we have to always be consistent with that.
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Ms. JACKSON LEE. We'll carry that on further.
Mr. COBLE. The gentlelady's time has expired.
Ms. JACKSON LEE. Thank you very much.
Mr. COBLE. And the panelists, if you all will just rest ways. Hopefully, we'll be back imminently. I'm thinking 10 minutes probably at the most. Thank you.
[Recess.]
Mr. COBLE. I apologize to the panelists. Sometimes these best laid plans of mice and men, you know, sometimes go awry. And to compound the confusion, as I told you all earlier, this—we must make this hearing room available to the Courts and Intellectual Properties Subcommittee. So we're going to have to adjourn about quarter 'til twelve to let them wrap up. So but for everyone's information, we will keep the record open for 7 days. And we can communicate with you all. You all can communicate with us.
So we'll start our second round, and maybe try to make the 5-minute rule, maybe a 2-minute rule just to get around.
Mr. Nojeim, you wanted to respond to Mr. Wainstein. Did you ever do that after the first round? If you did not, I'll let you do that now.
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Mr. SCOTT. I think he did. He did.
Mr. COBLE. All right. Bob—Mr. Scott says that he thinks that you did.
Mr. NOJEIM. Okay.
Mr. COBLE. Did you want to respond to what he said, Mr. Wainstein. I don't remember.
Mr. WAINSTEIN. I don't remember what he responded to——
Mr. COBLE. Okay.
Mr. WAINSTEIN.—to whatever I said.
Mr. COBLE. Well, we're being fair and balanced here in any event. Let's see what we do here.
Mr. Baker, even if the Government is not sure of the actual identity of the target—I'm talking roving now—does FISA, nonetheless, require the Government to provide a description of the target of the electronic surveillance to the FISA Court, A. And, B, how difficult is it to identify international terrorists and foreign intelligence agents by name?
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Mr. BAKER. Yes. The statute requires us to either provide the identity or a description of the target, and based on whatever we provide, on that factual basis, the court has to be able to make the other findings that the statute requires, including probable cause to believe that the target is an agent of a foreign power. So the answer is there has to be a target, and the court has to be able to make some findings with respect to that target.
Mr. COBLE. I want to thank you, sir. Mr. Khuzami, do you believe that with section 206 of the USA PATRIOT Act, foreign intelligence investigations can be more—can more effectively gather critical information with the purpose of preventing a massive disaster not unlike September 11th, and how would the antiquated requirement of 1986 impede the successful prevention of terrorist attacks today?
Mr. KHUZAMI. Well, I think it's——
Mr. COBLE. Your mike is not on, Mr. Khuzami.
Mr. KHUZAMI. Sorry. Yes. I—you know, the roving wiretap authority is critical because you don't always have the ability to identify in advance what communications facility the target might use, and you can lose very valuable intelligence and information in that interim period, either before you know what facility is going to be used or before you can ascertain their identity. And I frankly think that given the remainder of the protections in that statute that not making those requirements is an entirely proper balance of individual rights, but at the same time ensures that we protect national security.
Mr. COBLE. I thank the gentleman. Mr. Scott.
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Mr. SCOTT. Thank you, Mr. Chairman. First, did somebody say that no part of the PATRIOT Act has been found unconstitutional?
Let me ask it another way. Has any part of the PATRIOT Act been found unconstitutional.
Mr. BAKER. I believe the answer to that question is no. I—specifically a provision of the PATRIOT Act. Material support. I take that back. There's a material support provision.
Mr. SCOTT. That's been found unconstitutional?
Mr. BAKER. Mr. Wainstein can speak on that. Yeah.
Mr. SCOTT. Any other part?
Mr. NOJEIM. There are two provisions.
Mr. SCOTT. Wasn't 505(a)?
Mr. NOJEIM. There are two provisions that have been found unconstitutional. The first is the material support provision as it relates to expert advice and assistance. And the second is section 505(a), National Security Letter provision, as it applies to Internet Service Providers.
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And I'd like to illustrate that if I could. Section—what the PATRIOT Act did was to amend section 505(a), and the first poster that I'll show here shows what—I'm sorry. What the PATRIOT Act did in section 505(a) was amend 18 U.S.C., section 2709, which is the National Security Letter provision that applies to Internet Service Providers. This is 18 U.S.C., section 2709 before the PATRIOT Act.
This is how section 505(a) of the PATRIOT Act amended section 2709. That which is in yellow was added. That which is crossed out was deleted.
As you can see, it rewrote this statute. And the last poster shows what's left of this statute after the court in Doe v. Ashcroft struck it down. It stuck down not only what was in the statute before the PATRIOT Act, but it struck down every single word of section 505(a) of the PATRIOT Act.
So we believe that this illustrates how that particular section of the PATRIOT Act was ruled unconstitutional. And I should add the changes that we're advocating to section 505 of the PATRIOT Act would bring into line with that court decision so that it could—National Security Letters could again be used.
Mr. SCOTT. Okay. Now, we—on section 215 you've got to get a warrant, but we've ascertained that this is not limited to crimes or terrorism. It includes foreign intelligence as well as terrorism and everything else so that you don't need probable cause of a crime. When you get the records—a suggestion has been that if it's overly broad, somebody can challenge it, but the target doesn't know you're going after, and there's no real challenge from the recipient of the warrant because after there's a specification—I think we've ascertained that the judge doesn't have a whole lot of discretion—doesn't have any discretion. Once the specification has been made, the judge shall enter the warrant. The person who gets the warrant is gagged, so they can't—I mean there's not a whole lot they can do.
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So is there any meaningful challenge that a recipient, the one that gets the warrant and has to turn over the records, is there any meaningful challenge that they can muster up?
Mr. WAINSTEIN. Yes, sir. As has been stated here and in other hearings with Department witnesses, the Department has acknowledged that the recipient of a 215 order can consult with an attorney despite the non-disclosure requirement, and can challenge that order——
Mr. SCOTT. Wait a minute
Mr. WAINSTEIN. Order and process.
Mr. SCOTT. You mean you're not enforcing that part of what's written in the law?
Mr. WAINSTEIN. The non-disclosure requirement?
Mr. SCOTT. Right.
Mr. WAINSTEIN. We—the Department has taken the position in litigation that as written that means that a person, though he or she cannot disclose it to anybody else, can disclose the fact of the order to an attorney.
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Mr. SCOTT. It's not written that way. We're just interpreting it that way.
Mr. WAINSTEIN. Yes. And the Department has stated that it would agree with the clarification to that effect. But that person can, in fact, challenge. The recipient of that order can challenge it before an article III judge.
Mr. SCOTT. Now——
Mr. COBLE. Mr. Scott, would you suspend just a minute? Since the gentleman from Texas and the gentleman from California have gone to the trouble to come back, if you could wrap up, Bobby, then we'll recognize them. We're going to have to blow out of here at quarter 'til twelve.
Mr. SCOTT. Okay. Let me just stop right there.
Mr. COBLE. I appreciate that. Since you all came to the trouble, I want to recognize Mr. Gohmert.
Mr. GOHMERT. Okay. Thank you, Mr. Chairman. I'll be quick, as quick as I can be.
Let's see——
Mr. COBLE. Thank you, Bobby.
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Mr. GOHMERT. Mr. Wainstein, I believe you were the one that indicated earlier the Department has taken a position that a recipient under 215 order could challenge, I believe, the breadth of the request or the scope of the request; is that correct?
Mr. WAINSTEIN. Yes, sir.
Mr. GOHMERT. Well, and it left me wondering. You said that's the Department's position because of the language. In your opinion could the next Department of Justice take a different position?
Mr. WAINSTEIN. Well, my understanding is the Department has taken that position consistent with all the witnesses who have appeared over the last few weeks, and I believe we've stated on the record that we would be supportive of a clarification of the law to that effect.
Mr. GOHMERT. Okay. That's what I wanted to be sure of. It was my concern that that might not be the case with another Administration if we did not clarify, and having signed orders or had hearings myself as a judge, when people came back and you saw that the scope was going too far a field, it seems to me pretty important that that be there for future Justice Departments that we may be concerned about. So you don't have a problem with that, either—clarifying the scope—that the scope could be challenged?
Mr. WAINSTEIN. The—It could be challenged. Yes, I think there's a variety of different challenges they could bring—it could be challenged in terms of the actual language. I don't know that that's been determined yet.
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Mr. GOHMERT. Okay. Do you have anything further on that?
Mr. NOJEIM. Just that I think we should codify the person's right to challenge, and I should also add that the Department of Justice didn't always take the position that a person could consult with the attorney. They took that position after we sued them because people were wanting to consult with ACLU attorneys about a National Security Letter that was received.
Mr. COBLE. The gentleman——
Mr. GOHMERT. Okay.
Mr. COBLE. Well, very quickly, Mr. Gohmert, and then I want to——
Mr. GOHMERT. All right. So——
Mr. COBLE.—and then I want to recognize Mr. Lungren.
Mr. GOHMERT. It sounds like Catch-22. They consult you about getting an order that they were not supposed to consult you about so it could be challenged.
Mr. NOJEIM. That was the issue. I mean they didn't know whether they could talk to anybody about it, and it was only after the litigation started that the Department of Justice started publicly taking this position.
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Mr. GOHMERT. So obviously, they did let somebody know, even though that was a concern. But I understand your position. Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman. Mr. Lungren, we have to vacate this room in about 3 minutes, and you're recognized as the final examiner.
Mr. LUNGREN. Well, that's a lot of pressure, Mr. Chairman. I just wanted to mention for the record that when we were talking about libraries, not only are we talking about those that use libraries that have already been mentioned, but the 9/11 Commission Report talked about Marwan Al-Shehhi and other members of the group that quote ''used to frequent a library in Hamburg, Germany, to use the Internet.'' A Washington Post article, September 30, 2001, explained that another hijacker came from a poor Saudi family, but said quote ''was facile enough with computers so he could use the Internet at a Del Ray Beach public library.'' I mean there is testimony that Deputy Attorney General James Comey before the Senate Judiciary Committee indicated the use of the New York Public Library by one of the hijackers.
So the only point I'm trying to make is that we didn't create this out of whole cloth. We have utilized investigative techniques for the purpose of trying to respond to the threat that is out there. And while we may tweak this law with respect to some of the suggestions that have been made here, the underlying law it seems to me is appropriate. So long as Congress continues with oversight, it is something that is necessary for the protection of this country. And I just hope that some of the—sort of the general gloom and doom that I see surrounding some of this is out there, and also some of the hyperbole utilized by some of the people in the library profession I don't believe is very helpful.
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And when I read something such as a comment by Cindy Czesak, the director of New Jersey's Paterson Free Public Library, where she told Fox News that her institution collects every complete computer sign-up sheet. After that, it's removed and destroyed. We bought a new shredder. We're quite rebels.
Rebels from what? Thank you, Mr. Chairman.
Mr. COBLE. I thank you. And, Mr. Scott says he wants to be the final examiner, so I'll let him put a couple——
Mr. SCOTT. Well, I think since we're pressed for time, let me just articulate some concerns—back to the 215.
One of the problems we have is information obtained is not, as Mr. Nojeim indicated, not just information on the target. You go into the library. If Mohammad Atta had used the library, you can go and get everybody's library records as I understand it. You can get massive amounts of information. I understand in one situation somebody got—I don't know whether it was under 215 or some other—you got 300,000 records of people visiting Las Vegas.
Now, some of this kind of information may be relevant. If you got certain cities somebody's been in, it would be nice to know who has been in these five cities, on these specific dates, that could be a fairly small list, if you get millions of pieces of data. What happens to the information after you've used it? After you've run the tape, what happens to the information, and particularly when you have in here that it could be mostly in violation of first amendment rights? If it's not solely because of first amendment violations.
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So if you got a list of the war protesters, you want to—that's a bit troublesome.
On the roving wiretap, we know that you can start this thing out without probable cause of a crime. There's no ascertainment requirement, and the Attorney General didn't want to agree to ascertain that the target was actually in the place where your listening in. And I think we're hearing that there is some judicial discretion as to whether or not the roving wiretap can be issued. I'm not sure how much of that discretion is related to the minimization, but that might be something we would look to.
But, Mr. Chairman, because we—and I keep harping on this—these—foreign intelligence is not just criminal terrorism activity. It can be anything that will help us in the conduct of our foreign affairs, which doesn't have to be anything relating to crimes at all. So we still have some concerns, and we'll pursue this in our additional hearings.
Mr. COBLE. I thank the gentleman. Folks, the bad news is that we are irregular in our scheduling today because of the next meeting. The good news is the record will be open for 7 days, and you all feel free to communicate with us as we will with you all.
We thank the witnesses for their testimony today. In order to ensure a full record and adequate consideration of this important issue, the record will, as I said, be left open for additional submissions for 7 days. Written questions that any Member wants to submit should also be submitted within that same 7-day period.
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This concludes the oversight hearing on the implementation of the USA PATRIOT Act, Foreign Surveillance Intelligence Act (FISA) Part II. Thank you for your attendance, and this Subcommittee stands adjourned.
[Whereupon, at 11:45 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
Thank you, Mr. Chairman, for holding this hearing on the issues before us today. In a context where we have broken down the traditional wall that existence foreign intelligence gathering, particularly foreign intelligence, and criminal proceedings, to give the government broad authority to collect and share information, mostly secretly, I am concerned that we have also blurred the traditional line of protection for our privacy and freedoms.
While I agree that some lifting of the traditional restrictions in this area were justified, to induce the government to better use the authorities it already had in many instances, I am also mindful that those restrictions were placed there for a very good reason. We have seen with ''COINTELPRO,'' Watergate, the FBI spying on Dr. Martin Luther King, Jr., and with other incidents, what abuse can occur when we do not keep a tight enough reign on the government's use of extraordinary powers. We shouldn't have to experience those problems again to ensure that such abuses do not occur.
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Some of the provisions today reflect a trend that is troubling to me—the trend of the government to justify an ever increasing extension of extraordinary powers based on its convenience. We are considering time frames for surveillance operations that we have been extended even more since their PATRIOT Act extensions, all because the government says it is too costly for it to have to justify extensions to a court, even under the low burden of the FISA Court. If we can commit to speed billions of dollars in prison and other law enforcement costs just to codify sound bytes urged by the Department, we can certainly spend the time and expense it takes to assure that our privacy and freedoms are not unduly abridged.
Mr. Chairman, I believe that it is important that we be AND maintain our privacy and freedoms. I don't believe we should operate under the premise that we have to give up or balance one against the other. So, Mr. Chairman, look forward to the testimony of our witnesses on the provisions before us to learn more about what use is being made of the extraordinary powers authorized and whether sufficient oversight is being undertaken such that the powers are used in a way to protect our safety as well as our privacy and freedoms. Again, I thank you for putting together this hearing on these important matters.
PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
The provisions we're discussing today, like the PATRIOT Act itself, range from nonpolitical technical amendments to questionable infringements on court authority. I look forward to hearing from the witnesses about all of them.
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I look forward to hearing from the Justice Department about why Section 207 should be reauthorized and allow secret surveillance for up to a year. Part of 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 facts have expired. While the paperwork may be burdensome, a violation of a person's very privacy is more so.
I also look forward to hearing why Section 214 should be reauthorized. Pen register and trap and trace orders no longer need to be aimed at a 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 emails he sends and receives.
Also, I hope this hearing thoroughly discusses the lone wolf provision, also set to expire this year. 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 foreign powers starts our law enforcement down a slippery slope. There is no telling where it might end.
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
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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
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
Thank you, Mr. Chairman, for holding this hearing on Sections 206 and 215 of the USA PATRIOT Act. These are some of the more controversial sections of the bill that up for renewal consideration. They are controversial because of the extraordinary extent of virtually unchecked powers they allow the government to use to invade the privacy of individuals. Section 215 is particularly disturbing, given its breadth of authority it allows for law enforcement officers to obtain private records on no more that representation that it is relevant to foreign intelligence or international terrorism for espionage.
And even though section 505 of the PATRIOT Act is not under a sunset, you really can't talk about the problems with 215 without discussing the same problems with 505. Section 505 allows a host of private records and information to be obtained through the issuance by line level officers of National Security Letters (NSL's)on the mere representation they are relevant to an investigation of foreign intelligence, international terrorism, or espionage. There need be no crime, no probable cause, no reason to believe, no credible or particular facts—just a representation in the case of 215, and the FISA court has no choice but to issue the order for the production of the records. And in the case of NSL's, there is no court issuance or oversight—just the line officer's issuance, in terms of the requirements of the law.
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For both 215 and 505, all of this is done in secrecy with no explicit right to challenge the orders and with permanent gag orders on the keepers of the records sought, even to the extent of consulting with an attorney. And with our liberalized information sharing rules, the information obtained can be distributed all over town. This means your neighbors who are law enforcement agents may know a lot more about your private medical, organizational affiliation, reading and video viewing activities than you ever imagined.
With respect to section 206, FISA roving wiretaps, I have often noted the difficulties I see. Again, under the law, no crime need even be alleged, and under the ''John Doe'' wiretap, no person or particular device need be shown, and in either case, no effort has to be made to ascertain whether the target is actually using the device before communications can be intercepted. And, again, all of this is in secret in a secret court with limited oversight and reporting requirements when compared to criminal wiretap processes. Department of Justice witnesses often use the powers extended on the criminal court side to justify the same powers on the FISA side. However, they don't call for the same oversight and reporting requirements as on the criminal side, and I think that's where we need to pay a lot more attention in considering renewal of these powers.
So, Mr. Chairman, I look forward to the testimony of our witnesses for enlightenment on why we should consider renewing these extraordinary powers and under what circumstances and conditions. And I look forward to working with you on implementing their recommendations. Thank you.
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PREPARED STATEMENT OF THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN, AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
Today we will hear testimony on two of the most controversial sections of the PATRIOT Act. I look forward to hearing why the Justice Department must have these provisions reauthorized wholesale without any safeguards put in place to make sure that rights of suspects are not abused.
Section 206 creates roving ''John Doe'' wire taps. We will most likely hear testimony today that this provision is already widely used in criminal investigations. However, I am unaware of a court sanctioning a roving wiretap without a clearly identified target. I hope to hear where exactly this authority is coming from to better understand how the Justice Department is using its new authority. I also expect the Justice Department to explain why it believes it should be able to use criminal investigation techniques in intelligence investigations, without supplying the parcel of rights and procedures that have always gone along with those techniques.
Section 215 allows the government to secretly get any thing from any business only upon the showing of relevance to a terror or intelligence information. The Justice Department, in its usual shroud of secrecy, refuses to explain how this section has been used. It will only confirm that it has been used 35 times, and not against libraries. This information comes on the eve of the sunset, after three years of pressing national security that required a secret classification. Without more information, I say: too little, too late.
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While National Security Letters have been suspiciously left off this Committee's oversight list, I hope to hear from our panelists today about their use. It appears from a redacted FOIA request that this provision has been used hundreds of times. The less-famous brother of Section 215, national security letters are unusually dangerous because in addition to adding a complete gag order on the recipient, they are issued without any oversight from even the FISA court. Because the Justice Department admits to getting information from libraries, I suspect that National Security Letters may be the source, and must have more information about their use as we look at the PATRIOT Act.
Finally, I would like to publicly reiterate my concern that the Judiciary Committee has left many important terror-related policies off its oversight schedule this year. From the practice of rendition, to the abuse of the material witness statute, to unsuccessful racial profiling, this Committee is ignoring the most pressing matters within its jurisdiction. We cannot limit our oversight to the few sections of the U.S. code that will expire at the end of the year. Clearly, the Justice Department has shifted the weight of its terror pursuit to other authorities, or even in the absence of lawful authority at all. If we are truly going to do our constitutional duty of overseeing the executive's use of criminal and intelligence laws, we must look at these issues.
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
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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
(Footnote 1 return)
Patriot Debates: A Sourceblog for the USA PATRIOT Debate (available at http://www.patriotdebates.com/214-and-215)