SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC20877 PDF
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 218FOREIGN INTELLIGENCE INFORMATION (''THE WALL'')
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
APRIL 28, 2005
Serial No. 10916
Page 2 PREV PAGE TOP OF DOCPrinted for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Page 3 PREV PAGE TOP OF DOCSTEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
ADAM SMITH, Washington
CHRIS VAN HOLLEN, Maryland
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Page 4 PREV PAGE TOP OF DOC
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
DANIEL E. LUNGREN, California
MARK GREEN, Wisconsin
TOM FEENEY, Florida
STEVE CHABOT, Ohio
RIC KELLER, Florida
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas
ROBERT C. SCOTT, Virginia
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ANTHONY D. WEINER, New York
JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Special Counsel on Intelligence
and Homeland Security
Page 5 PREV PAGE TOP OF DOCJASON CERVENAK, Full Committee Counsel
MICHAEL VOLKOV, Deputy Chief Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
APRIL 28, 2005
The Honorable Steve Chabot (presiding), a Representative in Congress from the State of Ohio, and Member, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
Mr. Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois, U.S. Department of Justice
Mr. David S. Kris, Vice President for Corporate Compliance, Time Warner Corporation
Page 6 PREV PAGE TOP OF DOC
Ms. Kate Martin, Director, Center for National Security Studies
Mr. Peter Swire, Professor of Law, Ohio State University
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
Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Dianne Feinstein
Letter from William E. Moschella, Assistant Attorney General, U.S. Department of Justice to the Honorable Arlen Spencer
The Use of Section 218 in Terrorism Investigations
Page 7 PREV PAGE TOP OF DOC Submission by Peter Swire entitled ''The System of Foreign Intelligence Surveillance Law,'' 72 George Washington Law Review 1306 (2004), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=586616
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 218FOREIGN INTELLIGENCE INFORMATION (''THE WALL'')
THURSDAY, APRIL 28, 2005
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
The Subcommittee met, pursuant to notice, at 2:30 p.m., in Room 2141, Rayburn House Office Building, the Honorable Steve Chabot presiding.
Mr. CHABOT This is the Subcommittee on the Constitution. We'll come to order.
[Discussion off the record.]
Mr. CHABOT. Subcommittee on Crime, I've been informed. [Laughter.]
Page 8 PREV PAGE TOP OF DOC
I'm the Chair of the Subcommittee on the Constitution. I'm so used to saying that. I apologize.
This is the Subcommittee on Crime, Terrorism, and Homeland Security. And the Chair of the Committee, Howard Coble, is unable to attend this afternoon; so he asked me to stand in his place. And I'll try to remember which Committee this is for the rest of the afternoon. So I apologize for that.
This is this Committee's second hearing today on the USA PATRIOT Act. This hearing focuses on section 218 and its effect on ''The Wall'' that prevented our law enforcement agencies and intelligence community from communicating.
The Foreign Intelligence Surveillance Act limited surveillance and physical search orders to instances where authorities certified that ''the purpose'' of the order was for foreign intelligence gathering. Subsequent case law and agency guidance interpreted the ''purpose'' requirement to mean that foreign intelligence gathering had to be the primary purpose. As a result, law enforcement and the intelligence community came to believe that sharing information or coordinating efforts would preclude the ability to obtain court approval for appropriate surveillance.
The effect of this interpretation was that the metaphorical ''wall'' was built; which prevented vital communications, that some argue contributed to the failure of Government officials to share vital information that could possibly have prevented the 9/11 attacks.
Page 9 PREV PAGE TOP OF DOC
The witnesses this afternoon will examine the effects of section 218 on the Foreign Intelligence Surveillance Act and ''The Wall.'' With this background on FISA, I look forward to hearing testimony from the witnesses; and now turn to the distinguished Ranking Member of this Committee, Bobby Scott, for his opening statement.
Mr. SCOTT. Thank you. And I thank you for chairing the hearing, and for holding this hearing on the issue that has been foreshadowing much of our discussion about the PATRIOT Act: the extent to which we have dismantled the so-called ''wall.''
We've broken down the traditional wall between foreign intelligence gatheringparticularly foreign intelligenceand criminal proceedings, in order to give Government broad authority to collect and share information, mostly secretly. And so I'm concerned that we have blurred the traditional line between protecting our privacy and freedoms.
While I agree that some lifting of traditional restrictions in this area may be justified for Government to better use the authorities it already has in many instances, I'm also mindful that those restrictions were placed there for a good reason. We have seen, with COINTELPRO, Watergate, FBI spying on Martin Luther King, Jr., and other incidents, what abuses can occur when we do not keep tight enough rein on the Government's use of extraordinary powers. We shouldn't have to experience those problems again to ensure that the abuses do not occur.
When we operate in the foreign intelligence area, we have traditionally given broad latitude for the use of extraordinary investigatory tools abroad, particularly involving non-U.S. persons. But when we turn those tools inward, we run the risk of including U.S. persons in some of the investigative sweeps that occur, unless we have sufficient barriers to prevent unwarranted extensions.
Page 10 PREV PAGE TOP OF DOC
Now, since much of the foreign intelligence side is secretive and ex-parte, with only Government participation, and with no public oversight or review, we don't have the traditional notice, challenge, and public scrutiny oversight that we have on the criminal side. So we've used ''The Wall'' as protection. That is, if you get something on the foreign intelligence side, you can't use it on the criminal side.
With ''The Wall'' gone, I believe we should focus on establishing sufficient notice, challenge, and public reporting requirements, to ensure that foreign intelligence operations do not unduly creep into the domestic activities of U.S. persons.
Now, some of our law enforcement officials seem to feel that the mere inclusion of information regarding uninvolved, innocent persons amounts to ''no harm, no foul,'' if they're not arrested or subjected to having to challenge the inclusionexcuse me, the incursion or other process; a sort of ''What they don't know won't hurt them'' philosophy. Yet if overly broad information is collected, it can also be spread all over town, greatly increasing the likelihood that any of your neighbors, who may happen to be law enforcement, military, or intelligence employees, will know private things about you that you thought were private and known only to those whom you knowingly gave the information.
So the problem with ''The Wall'' being broken down isn't just the improper acquisition and use of the information; but it's also preventing people from having it in the first place, other than those you gave it to with an expectation of privacy.
So Mr. Chairman, I look forward to the testimony of our witnesses on the extent to which our privacies and freedoms are being protected despite the dismantling of ''The Wall'' through the USA PATRIOT Act and other measures, and what safeguards are needed to prevent the creep of overly intrusive foreign intelligence operations and powers into the privacy of our homes. Thank you, Mr. Chairman.
Page 11 PREV PAGE TOP OF DOC
Mr. CHABOT. Thank you very much. And it's the practice of the Subcommittee to swear in witnesses who are appearing before it. So if you would, all please rise and raise your right hands.
Mr. CHABOT. Thank you. Let the record show that each of the witnesses answered in the affirmative.
And at this time, I'd like to introduce this afternoon's very distinguished panel. Our first witness is Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois. Prior to his appointment to this position by President George W. Bush, Mr. Fitzgerald served for 13 years as an Assistant U.S. Attorney in the United States Attorney's Office for the Southern District of New York, General, of the United States. He graduated from Amherst College, Phi Beta Kappa, with a bachelor's degree in economics and mathematics, and from Harvard Law School. We welcome you here this afternoon, Mr. Fitzgerald.
Our second witness is David Kris. David Kris joined the Department of Justice after clerking for U.S. Court of Appeals Judge Stephen S. Strott. For 8 years, he served in the criminal division in the U.S. Attorney's Office for the District of Columbia. In 2000, Mr. Kris was named Associate Deputy Attorney General, with responsibilities for managing the Justice Department's national security programs. He attended Haverford College, and Harvard Law School. In June 2003, Mr. Kris joined Time Warner Inc., as vice president in the legal department. And we welcome you here this afternoon, Mr. Kris.
Page 12 PREV PAGE TOP OF DOC
Our third witness would be Kate Martin. Ms. Martin has been Director of the Center for the National Security Studies since 1992. And prior to assuming her current role, she served as litigation director for the center. She graduated from the University of Virginia Law School, and from Pomona College, with a B.A. in philosophy. And we welcome you here this afternoon, Ms. Martin.
And our fourth and final witness this afternoon will be Peter Swire, a professor of law at the Ohio State University's Morris College of Law. I thank Professor Swire for returning. He has graciously agreed to testify for a second time in this series of PATRIOT Act hearings.
And also, coming from Ohio State, we ought to give you a special recognition for that, as well. Cincinnati's not too far from there.
Prior to joining the faculty at Ohio State University, Mr. Swire served in the Clinton Administration as chief counselor for privacy in the Office of Management and Budget. Professor Swire is a graduate of Princeton University, and Yale Law School. After graduating from law school, he clerked for Judge Ralph K. Winter, Jr., of the United States Court of Appeals for the Second Circuit.
And so we have a very distinguished panel here this afternoon. And as I'm sure you're all aware of, we have a lighting system here. We'd ask each witness to stay within the 5-minute time frame, if at all possible. There'll be a green light that'll stay on for 4 minutes; a yellow light will tell you you've got about a minute to wrap up; and then, the red light will come on. And we'll give you a little leeway, but if you could stay within that we'd really appreciate it.
Page 13 PREV PAGE TOP OF DOC
And we'll begin this afternoon with you, Mr. Fitzgerald.
TESTIMONY OF PATRICK J. FITZGERALD, UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF ILLINOIS, DEPARTMENT OF JUSTICE
Mr. FITZGERALD. Thank you, Mr. Chairman and Ranking Member Scott. I sit here now, having been working on terrorism cases in the field for about 11 years. And seven of those years, I worked as a terrorism prosecutor while ''The Wall'' was up; and four I've worked since it has been down. And I can tell you, then, 4 years ago, when ''The Wall'' was taken down, I could tell you my firm belief that that was the single most important change made, not just in the PATRIOT Act, but in any law that affected our national security. It is extremely valuable. Four years later, I believe that even more.
Let me give you a practical example of how ''The Wall'' worked. in 1996, when we had an investigation of Osama Bin Laden, there were limits on certain people who we could talk to about certain topics. When we talked to private citizens, New York City police officers, law enforcement generally, even the CIA, there were basically no limits on what we could ask and what we could learn, if we had the clearance.
When we went overseas, we could talk to foreign citizens, foreign police, foreign spies. We could ask whatever we wanted. And if they gave us the answers, we could take it.
When we dealt with Al-Qaeda members, and we didboth overseas and in the United States, as part of our investigation, we talked to Al-Qaeda members and made them witnesseswe not only could ask everything we wanted to, we did. And whatever information we got, we could use.
Page 14 PREV PAGE TOP OF DOC
The people we had limits on speaking to were the FBI agents working the intelligence investigation of Osama Bin Laden right across the street from us in New York, because of ''The Wall'': the fear we might learn what they had learned from FISA.
In other cases in many other districts, there were prosecutors who did not even know there were intelligence investigations going on, because the people who did those investigations did not even know who the prosecutors were, or never talked to them.
And let me give you a concrete example of how dangerous that could be. After the 1998 bombings of two embassies, American embassies, in Kenya and Tanzania, we had in the grand juryand it's now publica person by the name of ''Ali Mohamed,'' a U.S. citizen from California who used to be in the American military and the Egyptian military. At the time, we suspected he had a role in the embassy bombings.
He went into the grand jury; he lied. We believed he lied. We had no link then to the bombings. And we knew from him that if we did not arrest him that day, he was flying overseas. And we were afraid that we would never see him again. We also knew that a search had happened, under the FISA statute, of Ali Mohamed prior to that. We had no idea what was taken. We didn't know the contents, the results of that search.
We had to make a decision whether to arrest him or notthat night, with many of the cards in our hand unknown to us, although known to the FBI. And my prior boss, Mary Jo White, made the right decision. We arrested Ali Mohamed. He would later plead guilty and admit to us that he had been around for the training of the top Al-Qaeda leadership, including Bin Laden and Ayman Zawahiri. He had trained some of the people who would later be involved in the World Trade Center bombing. He had done the surveillance, the casings, of the American embassies in Tanzania and Kenya. He had shown photographs and sketches of the embassies to Osama Bin Laden himself. And he told us that if we had not arrested him that evening, he would have left the country and rejoined Osama Bin Laden in Afghanistan.
Page 15 PREV PAGE TOP OF DOC
Because of ''The Wall,'' we made a decision only knowing half the facts we needed to know. And we could easily have let him rejoin Osama Bin Laden in a cave, fighting our troops; rather than being in an American prison facility. That, to me, illustrates how crazy ''The Wall'' was. We could know what Al-Qaeda knew; we couldn't know what the FBI knew.
When the PATRIOT Act included section 218, that wall changed. And now, when we sit down in my district, the Northern District of Illinois, and work together with the FBI, we sit down and talk about our criminal investigations; we talk about the intelligence investigations. And we try to make sure that we're doing the right thing; that we're coordinated. And we move forward.
I, too, am concerned about civil liberties and privacy. In my view, the way we're working, we're doing things coordinated. We're talking things through. We're making sure the law is followed. I do not see abuses of privacy or civil liberties. What I do see is that the right hand knows what the left hand is doing. And I think we do a much better job. Thank you.
[The prepared statement of Mr. Fitzgerald follows:]
PREPARED STATEMENT OF PATRICK J. FITZGERALD
Page 16 PREV PAGE TOP OF DOCFitz0003.eps
Mr. CHABOT. Thank you very much.
Mr. Kris, you're recognized for 5 minutes.
TESTIMONY OF DAVID S. KRIS, VICE PRESIDENT FOR CORPORATE COMPLIANCE, TIME WARNER CORPORATION
Mr. KRIS. Mr. Chairman, Ranking Member Scott, thank you for the opportunity to testify about the FISA ''wall'' and the role of the PATRIOT Act in tearing it down.
As you know, I worked on these matters when I was at the Department of Justice. And although I've been out of Government since May of 2003, I have maintained an interest in national security issues. And I need to emphasize at the very outset that, in appearing before you today, I'm doing so only as an individual, and not as a representative of any former or current employer, including the Department and Time Warner.
Page 17 PREV PAGE TOP OF DOC
My written testimony lays out in detail the legal background and the history of the FISA ''wall.'' And subject to your questions, I don't intend to repeat any of that material here. Instead, in keeping with the 5-minute rule, I would like to make two brief points.
The first is that, regardless of your views on ''The Wall'' or the PATRIOT Act, whether you think it's a good thing or a bad thing, you should do something about the upcoming sunset of section 218.
[Sound of buzzer.]
Mr. CHABOT. Go ahead.
Mr. KRIS. I thought maybe my time had run out.
Mr. CHABOT. No. That just means that the House is going back into session. So there could be votes at some point from here on.
Mr. KRIS. Right.
Mr. CHABOT. But don't worry about it.
Mr. KRIS. The reason that you should do something is because, if you do nothing and just allow the sun to set, I predict that you will thereby expand, rather than contract, Governmental power in this area. And the reasons for that are laid out in detail in my written testimony.
Page 18 PREV PAGE TOP OF DOC
Mr. SCOTT. Say that again.
Mr. KRIS. I predict that, if you allow the sun to set on section 218, you will thereby expand the Government's power in this area, for the reasons that are in my testimony. And I don't hear Mr. Fitzgerald asking for any broader authority. And indeed, even if he were, I don't think that the gains from that would be
[Repeated sounds of buzzer.]
Mr. KRIS. This is
Mr. CHABOT. Now they're just doing that to annoy us. So go ahead.
Mr. KRIS. I don't think the gains would be worth the attendant confusion. So my first point is that you should do something. And I guess that's why you're holding these hearings.
My second point is one that I think will strike you as perhaps a little strange, because it, I think, flies in the face of conventional wisdom. But nonetheless, I believe there is substantial reason to think that civil liberties are better protected with ''The Wall'' down, than they are with ''The Wall'' up.
And here's why: With ''The Wall'' down, DOJ prosecutorsand there are a lot of them; like Mr. Fitzgerald, they're smart and energeticenjoy full legal access to domestic national security investigations and matters. And from that lawyer access, if it's done right, comes lawyer oversight of these investigations. And lawyer oversight is how this country has protected civil liberties in the area of national security since at least the Church Commission report in the 1970's. And obviously, it is today the civil liberties backbone of Executive Order 12333.
Page 19 PREV PAGE TOP OF DOC
So tearing down ''The Wall'' has the effect of opening up these investigations to a substantially larger pool of lawyers. And I think that is a good thing for civil liberties.
On the other hand, if ''The Wall'' is up, DOJ prosecutors lose a substantial amount of that access and, in particular, their ability to recommend law enforcement solutions to national security problems. That, after all, is the very essence of ''The Wall.''
And yet, I think there will always be some cases in which a national security threat must be dealt with through incarceration or detention of one or more individuals. That is just the nature of the business: Sometimes you have to lock somebody up. And in those cases, ''The Wall'' has a tendency to channel the Government toward methods of achieving that kind of detention and incarceration that do not require the involvement of civilian law enforcement personnel.
And regardless of what the alternatives to civilian prosecution were in 1978, today, obviously, one of the alternatives is military detention, or tribunals. Now, I hasten to state that I am not saying there's anything wrong with military justice, one way or the other. I'm not taking any position on that matter. But I am saying, I think, that from a pure civil liberties perspective, at least after the Supreme Court's decision in Hamdi, it's clear that military justice need not involve all of the same due process protections as civilian justice. And so I think for that reason as well, there is a good basis for expecting that civil libertarians should prefer ''The Wall'' to be down.
Page 20 PREV PAGE TOP OF DOC One last caveat. I see my time has almost expired. I don't mean to raise the specter of mass enemy combatant designations if ''The Wall'' is rebuilt. That would be silly. But I do mean to say this. ''The Wall'' has a tendency to deprive prosecutors of their seat at the table when the Government comes together in an inter-agency forum to decide what to do in a caselet's say, the Moussaoui case or something like it. And anyone who has ever been through a contentious inter-agency meeting in the Executive Branch, as I have, knows one iron-clad rule of the bureaucracy. And that is that the absent agency rarely prevails. Thank you very much.
[The prepared statement of Mr. Kris follows:]
PREPARED STATEMENT OF DAVID S. KRIS
Page 21 PREV PAGE TOP OF DOC
Page 22 PREV PAGE TOP OF DOCKris0020.eps
Page 23 PREV PAGE TOP OF DOC
Mr. CHABOT. Thank you.
Ms. Martin, you're recognized for 5 minutes.
TESTIMONY OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES
Ms. MARTIN. Thank you, Mr. Chairman and Ranking Member Scott, for the opportunity to testify here before you today. I first of all want to make clear that, as civil libertarians, we're not in favor of ''The Wall''; and indeed, have never been in favor of ''The Wall.'' In the 2 weeks after September 11th, we testified before the Congress in favor of more and better information sharing between intelligence and law enforcement communities.
I do think, though, it's important to note that the effect of section 218 is slightly more complicated, I think, than simply to say that it tore down ''The Wall.'' Section 218I'm sorry, the purpose requirement, which was changed by section 218, was interpreted by the Justice Department before September 11th as prohibiting contact between prosecutors and the FBI; an interpretation, by the way, which the FISA Court of Appeals after September 11th said was wrong.
Page 24 PREV PAGE TOP OF DOC The PATRIOT Act contains another section, 504, which explicitly provides that all FISA information may be shared with all law enforcement. And one of the things that I think is necessary in the current effort to find out about the use of the PATRIOT Act is to ask the question of the Justice Department about why section 218 is necessary, given section 504. What is it that section 218 adds in dismantling ''The Wall'' that 504 doesn't already give?
And the reason why it's important to ask that question is that section 218 doesn't simply tear down ''The Wall.'' It makes FISA surveillance much more broadly available than it was before the passage of the PATRIOT Act. And it is that aspect of section 218 that I'd like to briefly focus on today.
Section 218before September 11, it was understood that if the Government started out with the primary purpose of making a criminal case against an individual, it must use the criminal surveillance authorities; not the Foreign Intelligence Surveillance Act. Section 218 changed that, and allows the Government to now use the broad and secret authorities of the FISA when its primary purpose is not to obtain foreign intelligence information.
I suggest that one of the questions we don't yet have the answer to is how and why and when the Justice Department and the FBI decide to use the secret FISA authorities instead of the regular criminal authorities. And that's an important question to obtain the answer to.
Most importantly, I think that in looking at section 218 it's important for this Committee to look more broadly at the use, and possible abuse, of the FISA authorities; especially given the recent revelations about the secret FISA search of Brandon Mayfield, the Muslim lawyer in Portland, Oregon.
Page 25 PREV PAGE TOP OF DOC
As the Committee knows, the FISA authorizes secret searches and secret wiretaps, not delayed-notice searches of the kind that are authorized under section 213 of the PATRIOT Act. It authorizes such secret searches and secret wiretaps with less probable cause of criminal activity than is authorized in the fourth amendment in criminal investigations.
But there are two additional key features of FISA surveillance. The first is that in most instances, when Americans are targeted for secret searches and secret wiretaps under the FISA, they are never informed by the Government that the FBI has been inside their house, has copied their computer drives or, in some instances, seized their DNA. They are never informed that the FBI has been listening to their telephone conversations.
The second key difference between FISA surveillance and criminal surveillance is that when individuals are indicted, after having been targeted by FISA surveillance, then they are in fact informed. That's the only time they are informed of FISA surveillance. But even then, they are never provided with any kind of opportunity to look at any portion of the original application for the FISA warrant.
And the effect of that means that there is no adversarial judicial review of the propriety of a FISA search. It is true, of course, that a FISA judge initially approves a FISA surveillance. But on the criminal side, what we rely on to make sure that the fourth amendment was in fact complied with is after-the-fact judicial review of the search and the probable cause, in which the target of the search has a fair chance to participate and challenge whether or not there was in fact probable cause to begin with. That opportunity is missing in the FISA context.
Page 26 PREV PAGE TOP OF DOC
And I would suggest that this Committee look into two possible amendments to address the problem of the searches being secret forever, and the second problem of no adequate chance to challenge the legality of the search when someone is indicted using FISA evidence.
[The prepared statement of Ms. Martin follows:]
PREPARED STATEMENT OF KATE MARTIN
Thank you, Mr. Chairman, for the honor and opportunity to testify today on behalf of the Center for National Security Studies. The Center is a civil liberties organization, which for 30 years has worked to insure that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security can and must be protected without undermining the fundamental rights of individuals guaranteed by the Bill of Rights. In our work on matters ranging from national security surveillance to intelligence oversight, we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by doing so, solutions to apparent conflicts can often be found without compromising either. The Center has worked for more than twenty years to protect the Fourth Amendment rights of Americans to be free of unreasonable searches and seizures, especially when conducted in the name of national security. For example, the Center, then affiliated with the American Civil Liberties Union, was asked to testify before Congress when the Foreign Intelligence Surveillance Act was first enacted. In 1994, when Congress amended the Act to include physical searches, we were again asked to testify about the civil liberties and constitutional implications of that legislation.
Page 27 PREV PAGE TOP OF DOC We appreciate the role this Committee has taken in connection with the USA Patriot Act, beginning with the work that was done before its enactment to build in protections for civil liberties while the government's surveillance powers were increased. Since its enactment, the Committee has vigorously pursued information from the Justice Department concerning the use of the Act, and we commend the Committee for now holding this series of oversight hearings.
However, we do not believe that the Congress yet has enough information to make permanent certain key provisions of the Patriot Act, particularly section 218 and those relating to information-sharing. (My testimony today does not address the specific provisions of the Patriot Act relating to information-sharing, sections 203 and 905, as that is the subject of another hearing. However, we do not believe that the Congress yet has adequate information about how the law enforcement community, including the FBI, determines what information about Americans should be shared with the CIA and other intelligence agencies, what specific safeguards exist against abuse, or how the agencies insure that they recognize and act appropriately on important information. For further information, please see the article on section 203 of the Act at www.patriotdebates.com.)
The subject of today's hearing is section 218 of the Patriot Act which amended the purpose requirement of the Foreign Intelligence Surveillance Act (FISA) and is sometimes described as having dismantled the ''wall'' between law enforcement and intelligence. While it is clear that more and better coordination is needed between law enforcement and intelligence on counterterrorism, it is not clear that amending the purpose requirement of the FISA was necessary to achieve that. More importantly, it is not clear whether the government is now using the extraordinary secret search and seizure powers under the FISA in ways that are both effective and consistent with constitutional requirements. The recent case of Brandon Mayfield, the innocent lawyer in Oregon jailed for two weeks, apparently because of his religion, raises serious and unanswered questions. The Committee should demand more information concerning the use of the FISA search and seizure authorities before extending section 218. If section 218 is extended, Congress should amend FISA to protect due process and Fourth Amendment rights.
Page 28 PREV PAGE TOP OF DOC
My testimony today will also discuss the separate but related issue of the relationship between law enforcement and intelligence in investigating Americans and others inside the United States, and the so-called ''wall.'' The Center has long advocated the necessity of tying domestic intelligence authorities to law enforcement to insure that government surveillance is targeted against actual wrong-doers and not against political or religious minorities. As FBI Director Mueller said, ''there are no clear dividing lines that distinguish criminal, terrorist and foreign intelligence activity. Criminal, terrorist and foreign intelligence organizations and their activities are often inter-related or interdependent.''(see footnote 1) However, the most recent proposal for further intelligence reorganization recommends consideration of establishing a new MI5-like domestic intelligence agency presumably divorced from law enforcement. The recommendation made by the Commission on the Intelligence Capabilities of the United States Regarding Weapons of Mass Destruction to move the FBI's counterterrorism and counterintelligence operations under the new Director of National Intelligence raises serious questions about moving control of domestic intelligence away from the Attorney General to the DNI. We believe that doing so would be a mistake from the standpoint of both civil liberties and effective counterterrorism.
THE ''WALL'' BETWEEN LAW ENFORCEMENT AND INTELLIGENCE
The existence of a legal ''wall'' preventing law enforcement and intelligence agencies from sharing vital information about suspected terrorists is often cited by government officials as the main reason the CIA and FBI didn't discover and stop the September 11 hijackers.(see footnote 2) The Justice Department made this argument when it sought to amend the purpose requirement of the Foreign Intelligence Surveillance Act in the Patriot Act and Attorney General Ashcroft repeated it when defending the pre-9/11 intelligence failures before the 9/11 Commission. But the existence of legal barriers to sharing information before 9/11 was highly exaggerated, and even the Justice Department has come to recognize that the real problems were bureaucratic failures of coordination and communication between and within the FBI and CIA.
Page 29 PREV PAGE TOP OF DOC
The term ''wall'' was used as shorthand for the understanding that the fundamental principles limiting government surveillance of Americans apply differently in the case of law enforcement or intelligence. Such principles include the recognition that there are important consequences for individuals depending on the government's purpose in initiating surveillance; in particular whether it intends to use the fruits of its surveillance against an individual to prosecute and jail him. They include the teaching of the Fourth Amendment that the best protection against abuse of surveillance powers is to require the government to have some evidence of criminal activity before investigating an individual. Requiring some criminal predicate for government investigations in turn helps protect citizens from being targeted based on dissent, religion, or ethnicity, and helps to insure that surveillance and intelligence powers are not used for political purposes.
The classic understanding of foreign intelligence gatheringthe collection of information that policymakers need concerning the capabilities and intentions of foreign governments and groupsis not, however, linked to a criminal predicate. The distinction between the twoinvestigating possible wrong-doing by individuals and spying on foreign powerswas the fundamental rationale for separating the functions of law enforcement and intelligence agencies. It was also understood that Fourth Amendment rules governing searches and seizures in the United States should be most protective when criminal sanctions against an individual are possible.
Thus, there were separate authorities written to govern law enforcement and foreign intelligence investigations inside the United States. In particular, since 1978, wiretapping to investigate crimes has been governed by one federal statute, while the Foreign Intelligence Surveillance Act (FISA) governs wiretapping ''agents of a foreign power'' inside the United States for the purpose of gathering foreign intelligence. Similarly, the Attorney General's Guidelines governing FBI activities, written by Attorney General Levi in 1976 and since amended, provided one set of rules for criminal investigations and another for gathering foreign intelligence relating to espionage or international terrorism inside the United States. These authorities allowed the government much wider latitude in gathering information about Americans and keeping it secret for foreign intelligence purposes than that which is allowed for law enforcement purposes. They also provided much less judicial oversight of the gathering of information for foreign intelligence purposes than for criminal investigations.
Page 30 PREV PAGE TOP OF DOC
While the pre-September 11 framework assumed differences between law enforcement and intelligence, everyone, including the civil liberties community, always recognized the necessity of effective coordination between the intelligence community and law enforcement to fight terrorism.(see footnote 3) Indeed, for all the talk of a ''wall,'' the pre-September 11 legal regime acknowledged that terrorism-like espionage, and to a lesser extent international narcotics traffickingis both a law enforcement and intelligence matter. Indeed, no statutory ''wall'' prohibited sharing information between the law enforcement and intelligence communities; to the contrary, the law expressly provided for such sharing. While the Foreign Intelligence Surveillance Act was interpreted to mean that prosecutors could not direct foreign intelligence wiretaps, as opposed to criminal wiretaps, the text of FISA expressly contemplated that FISA surveillance may uncover evidence of a crime. Before September 11, FISA information had been used in many criminal cases.
Moreover, none of the 9/11 failures were caused by the inability of prosecutors to direct FISA surveillance. The reports of the Congressional Joint Inquiry and 9/11 Commission describe many missed opportunities in detail. Although there were widespread bureaucratic misunderstandings about legal restrictions on information sharing, nowhere do the reports identify any statutory prohibition on information sharing as at fault. Instead, the failures resulted from the FBI and CIA failing to know what they knew. For example, while lower level FBI agents had important information about Al Qaeda associates in the United States that they shared with Headquarters, the higher-ups failed to understand the significance of the information, much less act on it. Similarly, the CIA knew for almost two years about the U.S. visa issued to an Al Qaeda suspect who would hijack a plane on September 11, but failed to inform the FBI or appreciate the importance of the information. This was a failure of analysis and coordination; it was not caused by legal restrictions on access to information.
Page 31 PREV PAGE TOP OF DOC
THE PATRIOT ACT AND SECTION 218.
Before September 11, it was understood that if the government started out with the primary purpose of making a criminal case against an individual, it must use the criminal surveillance authorities, not FISA.(see footnote 4) In the Patriot Act, the Justice Department asked Congress to repeal the fundamental requirement in FISA that its secret and extraordinary procedures be used only when the government's primary purpose is to collect foreign intelligence. Through section 218 of the Patriot Act, the Justice Department sought to allow the use of FISA's extraordinary powers when the government targets an individual for criminal prosecution or otherwise as long as foreign intelligence gathering was a significant purpose of the surveillance. Of course, since FISA only applies when there is probable cause that the target is an ''agent of a foreign power'' or foreign power, the significant purpose requirement will always be met when the other statutory requirements are met. (FISA authorizes surveillance of all individuals in the United States, both U.S. persons and non U.S. persons who meet the definition of ''agent of a foreign power.'')
In seeking section 218, the Department complained that FISA barred the sharing of information with prosecutors and law enforcement investigators. However, even if legal rather than bureaucratic obstacles existed to sharing information, Congress could have adequately addressed the problem simply by providing that FISA information could be shared with law enforcement personnel, as it did explicitly in section 504 of the Patriot Act. This provision aloneproposed by Senator Leahy, not the Justice Departmentwould have addressed whatever confusion existed about the FISA requirements at the FBI and elsewhere.
Page 32 PREV PAGE TOP OF DOC But the Patriot Act goes much further. Section 218 repeals the requirement that foreign intelligence gathering be the primary purpose when initiating FISA surveillance. Thus, the government is now free to use the broad powers in FISA to conduct secret surveillance on Americans with the intention of bringing criminal charges against them, or simply to collect information about them as long as there is probable cause that the individual is an agent of a foreign power.
In evaluating the effect of section 218, it is important to begin with a description of FISA authorities. The FISA statute authorizes secret surveillance on less probable cause of criminal activity than is authorized by the Fourth Amendment in criminal investigations. Moreover, FISA contains many fewer safeguards against abuse because there is no post surveillance check on either the legality of the initial warrant or on how the surveillance was conducted. While the Justice Department claims that there are judicial oversight and probable cause requirements built into FISA, there is no dispute that in most instances the government will never have to inform an American that his conversations were overheard, his house searched or his DNA seized pursuant to FISA. The statute only requires the government to inform Americans targeted by FISA wiretaps or searches of those searches if they are subsequently criminally indicted and the government tries to use the fruits of the searches against them. The statute also permits, but does not require the Attorney General to determine that there is no national security interest in continuing secrecy about the search of a U.S. person's home and then to inform that individual that his house was searched. 50 U.S.C. sec. 1825(b).
Even in those few cases where an individual is informed that he or she has been the target of FISA searches and seizures, the Attorney General always blocks access to the original application for the FISA warrant. See 50 U.S.C. secs. 1806(f) and 1825(g). Thus, there is no opportunity for a target to challenge the search and obtain adversarial, rather than ex parte, judicial review of the adequacy and legality of the search, because the original application for a FISA warrant, unlike a criminal warrant application, is always withheld from the target.
Page 33 PREV PAGE TOP OF DOC
Unanswered questions concerning the use of FISA.
While the Justice Department continues to claim that the change in FISA's purpose requirement in section 218 is necessary to allow it to use FISA information in criminal prosecutions, its claims raise more questions than they answer. For example, the Department cites prosecutions of individuals based on FISA information obtained from surveillance conducted before the Patriot Act as evidence of the usefulness of section 218.(see footnote 5) The Department, however, has provided no explanation about why section 504 is not sufficient to provide full authority for sharing all FISA information with prosecutors. Section 218's change to the purpose requirement would seem irrelevant to such sharing. This would seem especially true, of course as to the sharing of FISA surveillance conducted before section 218 changed the purpose requirement.
The second unanswered question concerns the effect of section 218 to allow the government to use the secret authorities in FISA in criminal cases instead of the usual Fourth Amendment warrants which contain greater protections. The Justice Department has offered no public explanation for why and when it decides to use the secret authorities of FISA, rather than the usual criminal authorities. This question is especially important as the extraordinary procedures of FISA are available not just for matters involving international terrorism. The statute also allows the use of secret searches and seizures against Americans in investigations of ''clandestine intelligence gathering'' on behalf of a foreign government, which might well include legal activities such as preparing non-public reports for foreign governments or groups.
Similarly, the Department's description of its use of FISA surveillance pursuant to section 218 in the case of the ''Portland Seven'' again raises more questions than it answers. While the Department claims that section 218 allowed it to postpone arresting one individual in order to continue the investigation and arrest six more people, it provides no explanation about how the law worked to effect that result. To the contrary, missing from this explanation is any acknowledgement that the Department has the authority to postpone notice of criminal wiretap surveillance and physical searches and seizures until it is able to identify and arrest other conspirators. Indeed section 213 of the Patriot Actthe so-called sneak and peak authorityexplicitly codifies that authority to delay notification of criminal searches and seizures. The Justice Department has said nothing about why they could not have used the delayed notice authority in section 213 and Title III of the wiretap statute to accomplish the same result in the Portland Seven case.
Page 34 PREV PAGE TOP OF DOC
Moreover, in order to fully evaluate section 218, it is important to consider the broader context of the secret wiretap and surveillance authority in the FISA. The recent revelations concerning the secret search of Brandon Mayfield's home raise serious unanswered questions about possible abuse of the FISA authorities. Mayfield, a Muslim lawyer in Portland, Oregon was jailed for two weeks, without charges, on what turned out to be the false claim that he had material information concerning the March 11, 2004 terrorist bombing in Madrid. After he was released the FBI apologized for jailing an innocent person. In the course of investigating Mr. Mayfield, the FBI apparently obtained a warrant under the FISA to secretly search his home and seize copies of his documents, computer files and his DNA. Apparently, the FBI also secretly wiretapped his phone and e-mail. There is ample evidence that the FBI carried out the searches and seizures with the intention of jailing and prosecuting Mr. Mayfield. While the Inspector General is now investigating the case, including presumably how the FBI came up with a suspect who was Muslim based on a misread fingerprint, the Congress needs to undertake its own investigation, in particular on the use or abuse of the FISA authorities. There is no way to know how many other innocent Americans have had their houses searched or their phones tapped based on allegations resting on their religion. The search of Mr. Mayfield's home is an example of the dangers of FISA. Those dangers are increased by section 218 (regardless whether that section played a role in that particular search) because by making FISA surveillance more easily obtainable, section 218 makes it likely that a lot more people will be secretly searched. And the attendant secrecy raises the specter that the government will as it did in the Mayfield casego after an innocent American. Under current law, there is no way to know how many Americans have been subject to such surveillance, or how many more will be.
At a minimum, Congress should obtain the answers to all these questions before extending section 218. The Committee should make arrangements to review the FISA applicationsat least for U.S. personsunder secure circumstances. The Committee should investigate the use of FISA searches and seizures when the purpose of the investigation is to target individuals for criminal prosecution or deportation. The Committee should also investigate what protections exist against using protected First Amendment activities, including religious beliefs and political activities, as the basis for FISA surveillance. While the details of particular FISA applications are of course classified and cannot be publicly disclosed, there is much information concerning the law and its application which can be disclosed and needs to be publicly discussed before Congress extends section 218.
Page 35 PREV PAGE TOP OF DOC
Should the Congress determine to extend section 218 for an additional period of time, it should consider adopting two amendments to provide some minimal safeguards. The amendments are needed to protect the Fourth Amendment rights of individuals whose homes are secretly searched, and whose papers and DNA are secretly seized, but who turn out not be spies and terrorists and to protect the due process right of those the government seeks to prosecute and imprison based on the results of such secret searches and seizures.
Under current law, the government is required to notify an individual that he has been targeted under FISA only when it seeks to use the information against him. Mr. Mayfield is apparently the only individual ever notified by the government that he had been the target of a FISA search, who the government was not seeking to prosecute or deport. While it is not clear why he was informed, it is likely that the government did so only because it had wrongly imprisoned him and is now being sued for that act. While the FISA refers to the Attorney General determining that there is no national security interest in continuing secrecy about the search of a U.S. person's home, the Justice Department claims that no court may compel it to inform an individual of a search in those circumstances. See Mar. 24, 2005 letter from Justice Department to Mr. Elden Rosenthal, referring to 50 U.S.C. §1825(b).
Even when an individual is notified because he has been indicted, the government is not required to disclose anything more than the existence of the FISA surveillance unless it either seeks to introduce FISA information into evidence or the information is required to be disclosed to the defendant under the Brady exculpatory evidence rule. And then, all the government provides to the defendant is a record of his own telephone conversations or a copy of his own papers. See FISA, 50 U.S.C. §1806(c), 1825(d). (Even these minimal protections are only available to individuals not alleged to be ''alien terrorists.'' See 8 U.S.C. §1534(e). )
Page 36 PREV PAGE TOP OF DOC
The government is not required to disclose and, it appears, has never disclosed the application for a FISA warrant to anyone. Indeed, information obtained under FISA is accorded much greater secrecy than any other kind of classified information is accorded under the Classified Information Procedures Act or, in our view, than is consistent with constitutional due process requirements.
If Congress extends section 218, allowing secret surveillance when the government's primary purpose is not foreign intelligence gathering, but rather making a criminal case against an individual, Congress should consider how to bring the use of FISA information in line with basic due process requirements. One way to do this would be to treat FISA information like all other kinds of classified information by making it subject to the provisions of the Classified Information Procedures Act. Such a provision is included in the Civil Liberties Restoration Act, H.R.1502, sec. 401. Under current law, it is nearly impossible for a defendant to contest the introduction of FISA evidence against him because the government's application for the FISA search and related materials are automatically kept secret. That should be changed so that when FISA evidence is used in criminal cases, the court may disclose the application and related materials to the defendant or his counsel, with any necessary redactions, in accordance with the Classified Information Procedures Act. (Sources and methods information for example, might be withheld.) Such an amendment would offer a balanced and effective way to protect both sensitive national security information and the due process rights of individuals.
Congress should also consider amending the FISA to protect the Fourth Amendment rights of those whose homes are searched and conversations are overheard, but who turn out not to be terrorists or spies. There is no requirement under current law that the government inform innocent persons whose conversations are overheard, houses are searched and belongings are seized that the FBI was in their home and listening to their conversations. There is no after-the-fact check on the propriety of the search. An innocent individual never gets a chance to challenge the search, only one who is subsequently indicted. And with the repeal of the purpose requirement in section 218, the number of FISA searches has been steadily increasing.
Page 37 PREV PAGE TOP OF DOC
A fundamental requirement of the Fourth Amendment is that an individual be notified of the government's search and seizure and Congress should take one small step to restore this constitutional protection to those who are targeted for secret searches and turn out to be innocent. Congress should consider amending the FISA so that, if it turns out that the person whose house was searched (and whose conversations or e-mail were intercepted) was not a terrorist or a spy, the individual would be told after some reasonable period of time that the government had searched his belongings and be given an inventory of what was taken. This could be done by amending 50 U.S.C. §1825(b) to require the Attorney General when certain criteria are met to notify all those who were subject to FISA searches or seizures. Those criteria should include the passage of a definite time period and the determination that there is no current probable cause that the target is in fact an ''agent of a foreign power.'' Doing so would restore Fourth Amendment protections and provide some measure of accountability for secret searches of Americans' homes.
DOMESTIC INTELLIGENCE REORGANIZATION PROPOSALS
In enacting the recommendations of the 9/11 Commission regarding the reorganization of U.S. intelligence agencies, the Congress accepted its conclusion that a new domestic MI5 or CIA should not be created. There has been a broad consensus among both civil libertarians and intelligence officials that the responsibility for intelligence activities inside the United States should ultimately remain with the Attorney General as the chief law enforcement officer rather than with an intelligence official. As former intelligence and national security officials, including former DCI Robert Gates, John Hamre and Sam Nunn urged, ''[e]ven as we merge the domestic and foreign intelligence we collect, we should not merge responsibility for collecting it . . . exclusive responsibility for authorizing and overseeing the act of domestic intelligence collection should remain with the Attorney General. This is the only way to protect the rights of the American people upon whose support a strong intelligence community depends.''(see footnote 6)
Page 38 PREV PAGE TOP OF DOC
In the Intelligence Reform and Terrorism Prevention Act of 2004, the Congress set up a National Counterterrorism Center to insure sharing of information and coordination of plans, but agreed that ultimate responsibility for domestic operations should remain with the Attorney General. However, the most recent review done by the Silberman-Robb Commission has recommended that the counterterrorism and counterintelligence operations of the FBI be moved under the direct supervision of the new Director National Intelligence. Such a recommendation, if adopted, would make use of counterterrorism's most effective domestic toolthe ability to prosecute and jail terrorists more difficult. By separating domestic terrorism and counterintelligence from law enforcement, it could create new and more difficult coordination problems. Indeed the Commission also recommends the reorganization of national security responsibilities at the Justice Department, but does not explain how those prosecutorial efforts under the supervision of the Attorney General would be coordinated with a reorganized FBI carrying out the intelligence and investigations necessary to bring prosecutions under the supervision of the new NDI rather than the Attorney General. In making its recommendation, the Commission also overlooks the fundamental differences in intelligence at home and abroad and risks resurrecting all the bureaucratic difficulties attributed to the ''wall'' that law enforcement and intelligence agencies have been working to dismantle since September 11. Such a change is likely to threaten civil liberties.
Differences between intelligence at home and abroad. The Attorney General, unlike an intelligence director, has an institutional responsibility to protect constitutional rights and is subject to closer and more transparent congressional scrutiny. As William Webster, former director of both the FBI and CIA, testified last August concerning proposals to transfer the FBI's domestic intelligence authorities from the Attorney General to an intelligence official, ''the FBI should take its guidance from the Attorney General on its dealings with U.S. persons and the manner in which it collects information in the United States. This has been an important safeguard for the American people, should not be destructive of effective operations, and avoids the risks of receiving vigilante-type instructions, whether from the intelligence community or the White House.''(see footnote 7)
Page 39 PREV PAGE TOP OF DOC
Historically, overseas intelligence was largely carried out by the CIA (and Defense Department agencies) while the FBI was largely responsible for domestic intelligence because there are important differences between the missions and methods that are necessary and appropriate abroad and at home. These differences should not be disregarded by the simplistic device of labeling these different activities in the U.S. and abroad as ''intelligence.'' Generally, the CIA has been confined largely to gathering foreign intelligence abroad for policymakers regarding the intentions and capabilities of foreign powers or groups. The FBI has had both law enforcement and intelligence responsibilities inside the United States, for both counter-espionage and international terrorism matters. While both involve intelligence, the difference in functions is important from the standpoint of civil liberties.
The CIA acts overseas, in secret, and its mission includes violating the laws of the country in which it is operating when necessary. It is charged with collecting information overseas without regard to individual privacy, rights against self-incrimination, or requirements for admissibility of evidence. It is also tasked with carrying out covert actions to influence events by whatever means the President authorizes. The agency gives the highest priority to protection of its sources and methods.
In contrast, the FBI, as an agency with both intelligence and law enforcement responsibilities, must always operate within the law of the jurisdiction in which it is operating, even when outside the U.S. It must respect the constitutional limits set by the First Amendment, the Fourth Amendment and due process on government activities inside U.S. borders, which limits have not (yet) been extended to aliens overseas.(see footnote 8) While the task of foreign intelligence is to learn as much as possible to provide analyses to policymakers, deepseated notions of privacy rooted in the Constitution limit the information the government may collect and keep about Americans. There is much greater transparency of the FBI's operations, in part because they affect Americans and in part because they are likely to lead to prosecutions, with the result that information which is collected must generally be admissible as evidence at trial and the methods and informants used are quite likely to be publicly identified.
Page 40 PREV PAGE TOP OF DOC
Examining how intelligence information is actually used in counterterrorism demonstrates the necessity of tying intelligence activities inside the U.S. to a law enforcement agency. The first use of ''intelligence'' information is to identify and locate individuals involved in planning terrorist acts. This information must then be used to prevent the attack, in ways that are legally permissible. Potential terrorists found in the United States may be placed under intensive surveillance. They may be apprehended if there is probable cause that they are engaged in criminal activity or are in the United States in violation of the immigration laws. They may be arrested not only for plotting terrorism, including attempt or conspiracy, but for any crime or visa violation. The government may also attempt to turn them into informants on their associates (with or without arresting them), but may not blackmail them to do so. Ultimately, in order to disable individuals from future terrorist activity, they have to be arrested and prosecuted. (They may also be deported.) Such ''prevention'' through prosecution has remained one of the government's major anti-terrorism tools even since September 11. Such an approach focuses on individuals involved in planning criminal activities and ultimately relies on law enforcement authorities.(see footnote 9)
Whereas the FBI must arrest and charge individuals in the U.S. consistent with due process, the CIA and DoD intelligence agencies operating overseas are free to employ methods such as disinformation campaigns, secret kidnappings, and interrogations. The methods used by the CIA and foreign intelligence agencies to ''disable'' terroristspredator drones shooting missiles at a car crossing the desert; turning individuals over without any legal proceedings to intelligence services infamous for coercive interrogations; or indefinitely detaining individuals incommunicado without any legal processhave never been deemed constitutional or appropriate to use against individuals in the United States. Even absent military hostilities, overseas intelligence methods include disruption of groups and harassment of individuals using agent provocateurs, blackmail or other means, which have not been allowed in the United States.
Page 41 PREV PAGE TOP OF DOC
Moreover, counterterrorism intelligence inside the United States poses special risks to civil liberties. It is always difficult to investigate planned terrorist activity without targeting those who may share the religious or political beliefs or the ethnic backgrounds of the terrorists, but do not engage in criminal activity. It is easier for an agency to identify those who share the political goals or religious fanaticism of terrorists than to identify and locate those actually plotting harm. It is therefore crucial to structure bureaucratic rules and incentives to discourage investigations based on political and religious activities and to require focusing on finding actual terrorists. An important means for doing this is to require agencies to focus on criminal activity, which encompasses all terrorist plotting and financing, rather than authorizing an intelligence approach that absorbs all available information about thousands of individuals in the hope of finding something useful. A second important safeguard is the transparency inherent in a law enforcement agency ultimately answerable to the courtstransparency to which the CIA, as an intelligence agency, has never been subjected.
While questions have been raised concerning the effectiveness of various FBI efforts, those issues do not undercut the importance of tying domestic intelligence efforts to a law enforcement agency. Similarly, the fact that it is important to assure effective coordination between intelligence activities overseas and those in the U.S. does not argue for any separation of domestic intelligence activities from related law enforcement activities. Indeed, even as the 9/11 Commission recommended new structures to insure coordination, it agreed that the FBI, not the CIA, should retain domestic intelligence responsibilities. ''The FBI's job in the streets of the United States would thus be a domestic equivalent, operating under the U.S. Constitution and quite different laws and rules, to the job of the CIA's operations officers abroad.''(see footnote 10)
Page 42 PREV PAGE TOP OF DOC
Given the importance of maintaining different laws and rules for the collection of intelligence on Americans than for the collection of intelligence overseas, the Attorney General should remain ultimately responsible for the FBI's operations. Putting an Intelligence Director or Office in charge of domestic intelligence will exacerbate the difficulties in reconciling the different approaches that are required in the U.S. and overseas. We note that the Silberman-Robb Commission did recommend that the rules for domestic intelligence should still be written by the Attorney General, but we suggest that such a division of responsibilitybetween an Attorney General who writes rules for intelligence and counterterrorism operations, but has no responsibility for how those rules are carried out and a Director of National Intelligence who has responsibility for how operations are carried out, but no responsibility for writing the rulesmakes no sense. We respectfully suggest that the DNI should have responsibility for insuring coordination between domestic and foreign collection and for setting overall strategic priorities for domestic intelligence collection, while domestic intelligence operations should remain operationally tied to law enforcement.
In conclusion, let me reiterate our appreciation for the Committee's hard work on these difficult problems that are important for both our liberty and our security. We look forward to working with you in the future and stand ready to provide whatever assistance we can.
Mr. CHABOT. Thank you very much.
And Mr. Swire, you're recognized for 5 minutes.
TESTIMONY OF PETER SWIRE, PROFESSOR OF LAW, OHIO STATE UNIVERSITY
Page 43 PREV PAGE TOP OF DOC
Mr. SWIRE. Thank you, Mr. Chairman, and thank you for the kind words from Ohio. Thank you, Mr. Ranking Member, for being here today and for you inviting me back to testify this week. Your Committee is doing an exemplary job, I believe, of developing a record for what to do next on the PATRIOT Act.
The topic of today's hearing, FISA and ''The Wall,'' has been the focus of my biggest single research project since I left the Government 5 years ago. My testimony today is drawn from a Law Review article(see footnote 11) that has been placed in the hearing record and is available online. Research for that article included many interviews, often on background, with Government officials who have worked with FISA over the decades.
I have one over-arching point today, as well as four specific points. The over-arching point is this: ''The Wall'' has been our chief protection against a slippery slope, against permitting secret FISA surveillance from expanding deep into normal law enforcement activities. If ''The Wall'' stays down, then it is the job of this Committee and the Congress to create a new set of checks and balances against abuse.
These hearings are the single biggest reexamination of FISA since it was passed in 1978. I therefore attached to the testimony a set of oversight questions, to try to clarify law and practice. I've also attached a list of concrete possible reforms that can, taken together, I hope, create the checks and balances needed to replace ''The Wall.'' In 2001, a wall was taken out of the structure of FISA. It's up to Congress to build a sound structure for the future.
Page 44 PREV PAGE TOP OF DOC
My four specific points: First, supporting Kate Martin's proposals in her written testimony; second, talking about ''agent of a foreign power'' definition; third, talking about the words in section 218, itself; and fourth, a brief comment on one other provision.
Turning to the next point, the definition of ''agent of a foreign power,'' this is absolutely crucial to defining the scope of FISA. For law enforcement investigations, a wiretap means probable cause of a crime. For FISA, it's just probable cause the person is an agent of a foreign power.
Think about an individual who works in the United States for the Cali drug cartel. Is that person an agent of a foreign power? The Cali cartel is very organized. It physically controls a lot of land in Colombia. It may well be more of a foreign power than Al-Qaeda is, that doesn't own a big territory. So if one accepts that the Cali cartel is a foreign power, and a major smuggler is an agent of a foreign power, what about a street-level cocaine dealer? Is that an agent of a foreign power? Is that a FISA wiretap because that person is part of narco-terrorism?
To take another example, what about the activities of the so-called ''Russian mafia''? Many organized crime groups have links to overseas operations. How small can the links back home be to still qualify that group's actions as part of a foreign power's operations?
My second specific point concerns a proposal for partially mending ''The Wall.'' The Law Review article explores in detail the reasons for and against having ''The Wall.'' Based on my research, the greatest problem with the old ''primary purpose'' test is that investigators genuinely don't know in the early stages of an investigation whether the case will primarily end up being for intelligence or law enforcement. The early wiretap order is a dual-use technology. It's for both intelligence and law enforcement, depending how things turn out.
Page 45 PREV PAGE TOP OF DOC
My article argues that the missing legislative piece is a requirement within FISA that the surveillance, one, be important enough and, two, be justifiable on foreign intelligence grounds alone. It has to really be a foreign intelligence wiretap.
One way to go could be to say that a principal purpose, ''a principal purpose,'' is foreign intelligence. Another way would be to amend FISA to include a new certification in the FISA application. The certification would say that, ''The information sought is expected to be sufficiently important for foreign intelligence purposes to justify the order.'' It really has to be for foreign intelligence; maybe also it turns out to be for criminal.
In concluding, I note that the article goes piece by piece through FISA, suggesting ways to update many of its provisions in light of our experience since 1978 and since 2001. A special focus of the article is the so-called ''gag rule'' that applies to section 215 orders and national security letters. The Senate version of the SAFE Act has included one of my recommendations, which is to put a 6-month limit on the gag. You can't talk about the search; but 6 months later, ordinary people can. That limit would be extendable by order of the FISA court. I hope very much this Committee will follow along with the Senate, and include the same limit in the bill this year.
To return to my over-arching point, ''The Wall'' probably deserves to be lowered somewhat in our globalized world, where information sharing is vital to fast-moving interrogationsinvestigations. ''The Wall,'' however, was our chief bulwark against the creep of the FISA system into ordinary law enforcement. If ''The Wall'' comes down, this Committee should erect new safeguards against the abuses that do come from secret surveillance. Thank you.
Page 46 PREV PAGE TOP OF DOC
[The prepared statement of Mr. Swire follows:]
PREPARED STATEMENT OF PETER P. SWIRE
Mr. CHABOT. Thank you very much. And the Members now will have 5 minutes to ask questions of the witnesses, and I'll recognize myself for that purpose at this time.
Page 47 PREV PAGE TOP OF DOC
Mr. Fitzgerald, let me refer to you first. Mr. Swire referred to the Mayfield case. And is the Mayfield case evidence of abuse of FISA, or is it evidence of abuse due to the PATRIOT Act? Or wasn't the Mayfield case a result of erroneously read fingerprints by the FBI and Mr. Mayfieldor Mr. Mayfield's own expert?
Mr. FITZGERALD. I'm not handling the Mayfield case, but from my understanding of the public record, that was a situationa terrible situation that arose out of mis-identification of fingerprints, both by the FBI mis-identifying Mr. Mayfield's fingerprint as matching the exemplar they had, and by an expert selected by the defense and paid for by the courtmade that same mistake. And I think the lesson of the Mayfield case is we have concerns about the fingerprint science.
With or without the amendments to the PATRIOT Act, the actions taken under FISA could have been done, and should be done if you thought that the person's fingerprint actually matched the materials involved in a bombing. So the problem we have is not with the PATRIOT Act, which didn't facilitate what happened. The law provided for it anyway. It was bad information on the fingerprints. And I don't see how the Brandon Mayfield situation casts section 218 in doubt. The Brandon Mayfield situation casts fingerprint science as something we ought to examine, but not the PATRIOT Act.
Mr. CHABOT. Thank you. Mr. Kris, let me follow up with you here. In Mrs.in Ms. Martin's written testimony, she suggests that we amend FISA so that, if it turns out that the person who was under surveillance was not a terrorist or spy, the individual would be notified of the surveillance after some reasonable period of time.
Page 48 PREV PAGE TOP OF DOC
I'm concerned, however, that such a requirement could jeopardize sensitive investigations. For example, were the associate of a terrorist notified that he'd been under investigation, that associate would almost certainly tip off the terrorist that the Government was probably onto him as well. Do you share that concern? Or what comment might you like to make on that?
Mr. KRIS. Well, I share your concern about the case you just described. If they mistakenly go up on someone who is connected with, but not himself, a terrorist, and then he tips off the other target, I think that would be very dangerous.
I guess my basic sense of this is that notification is acceptable, except when it's not. And right now, FISA has a provision under whichI think it's 1825(b), under which, if there's a search of a U.S. person home, and the Attorney General determines that there is no national security basis for maintaining the secrecy, then he shall inform the target. And I believe that provision
[Sound of buzzer.]
Mr. KRIS. Every time I talk. And I believe that provision is involved in the Mayfield case; although I'm not absolutely sure. To expand it to reach all forms of searches or surveillance, not just U.S. person house searches, I think conceptually would be okay, if you could figure out what the right standard was. Maybe it would be when probable cause is found to be lacking under Franks v. Delaware.
Page 49 PREV PAGE TOP OF DOC But administratively, it would impose a pretty significant burden. I think there were some 15, 17 hundred FISAs last year. And it would, I guess, mean that the Government would need to review each and every one of those to determine whether it met the standard. So I have some concerns about that, on that theory, as well.
Mr. CHABOT. Thank you. Professor Swire, do you agree with those you interviewed at the Department of Justice, that the greatest problem with the ''primary purpose'' test is that investigators generally don't know in the early stages of an investigation whether the case will be primarily for intelligence or instead for law enforcement? And do you agree that ''The Wall'' did prevent sharing of vital information?
Mr. SWIRE. Yes.
Mr. CHABOT. Okay.
Mr. SWIRE. I mean, I think that one of the questions comes up later on. So you've done your first wiretap. You didn't know which way it was going to go; but now it's up for renewal, and you really know it's turning into a law enforcement investigation. And I think it makes sense for the law to push things toward law enforcement at that point, if that's what's really happened. Among other things, that means that it will get notice to people after the fact of the wiretap.
Mr. CHABOT. Okay. And finally, Mr. Kris, in your written testimony, you suggest that keeping ''The Wall'' down will enhance the protection of civil liberties. And you stated this and described it to some degree in your opening statement.
Page 50 PREV PAGE TOP OF DOC
Could you say again why you believe that coordination between law enforcement and intelligence officials helps to safeguard constitutional rights? And I know you went into that, but I'd like to hear about it again.
Mr. KRIS. Sure. I mean, I think there are two reasons to believe that it will be helpful in protecting civil liberties. The first is that it opens up these cases, these investigations, to a large number of energetic lawyers inside the Department of Justice, who previously really were limited in their access. And lawyers, I mean, for all their faults, you know, do have an awareness of and a respect for rules and laws. And it is for that reason, I think, that this country uses lawyer oversight to safeguard civil liberties in the area of national security.
And so, if it's done right, I think the opening up of these cases to many, many more lawyers will be a good thing, because they will be able to spot potential abuses early on and maybe put a stop to them.
The other reason that I articulatedand I say it with some hesitation, because I'm afraid it will be misconstrued and misusedbut there are cases, and I think there always will be, where somebody needs to get locked up, if you're going to keep the country safe from terrorism. And today, if you can't do it using traditional law enforcement because of ''The Wall,'' then I think you have to go to the alternatives. And one of those alternatives is military detention; which I believe, after Hamdi, civil libertarians do not smile upon.
Page 51 PREV PAGE TOP OF DOC And so, for that reason as well, I think, if compared to the alternatives, prosecution in an open court, with a jury of 12, court-appointed lawyer, public access, and so forth, is not something that we need to be afraid of.
Mr. CHABOT. Thank you. My time's expired. The gentleman from Virginia is recognized.
Mr. SCOTT. I think Ms. Martin and Mr. Swire pointed out that when you run these investigations where the primary purpose is something other thanwhen you get a FISA wiretap with the diminishedwith no probable cause of a crime even required, you're running a criminal investigation without probable cause. And when we changed ''primary purpose'' to ''significant purpose,'' it invited the question: What is the purpose of the wiretap, if the primary purpose wasn't foreign intelligence? What was the purpose of the wiretap?
And the Attorney General answered the question for us. He said it's a criminal investigation, and then you kind of put in parentheses, ''without having to fool with the probable cause.'' Now, I supposeis ''probable cause'' the problem, Mr. Fitzgerald? I mean, is the requirement that we get probable cause the problem? I mean, if we didn't have to fool with probable causeif we could start listening in and searching without probable cause, we could probably do a better job for law enforcement.
Mr. FITZGERALD. I'd love to answer that question. It's not the problem. There's two misconceptions, I think, that are going on in the public debate. The first is that there's no probable cause requirement in FISA. Let me speak from the perspective of a terrorism investigation.
Page 52 PREV PAGE TOP OF DOC
To get a probableto get a FISA for a terrorism investigation, you have to have probable cause that the person is the agent of a foreign power; which means that they knowingly engage in activityin sabotage or international terrorism, or activities that are in preparation thereof, on behalf of a foreign power
Mr. SCOTT. Wait a minute. Keep reading.
Mr. FITZGERALD. Okay. Or they knowingly aid or abet any person in the conduct of activities, or they knowingly conspire.
Mr. SCOTT. Keep reading.
Mr. FITZGERALD. That's the endOr as described in Subparagraph (a), (b), and (c). I'm talking about terrorism.
Mr. SCOTT. Oh, oh. Oh, you're talking about terrorism
Mr. FITZGERALD. That's what I said.
Mr. SCOTT. as far as the FISA.
Mr. FITZGERALD. I said ''terrorism.''
Page 53 PREV PAGE TOP OF DOC Mr. SCOTT. Well, what about the foreignforeign intelligence? You have probable cause you can get some foreign intelligence. What about foreign affairs?
Mr. FITZGERALD. Okay, it's not probable cause you can get foreign intelligence. It's probable cause that the person is an agent of a foreign power.
Mr. SCOTT. Right.
Mr. FITZGERALD. You have to certify, in addition, that you're going to gain foreign intelligence, my point being
Mr. SCOTT. Wait, wait, wait. Whoa, whoa. What is foreign intelligence?
Mr. FITZGERALD. Foreign intelligence, that's one of the things you have to get. But before you can even certify that you're getting foreign intelligence, you have to establish that the person is an agent of a foreign power. Under the terrorism statute, there is no
Mr. SCOTT. Well, wait, wait a minute. Wait a minute
Mr. FITZGERALD. Let me just
Mr. SCOTT. Well, no, no, because people keep coming here, time and time againthis isn't the first hearing we've had.
Page 54 PREV PAGE TOP OF DOC
Mr. FITZGERALD. I know.
Mr. SCOTT. They come and say you need a FISA to protect from terrorism.
Mr. FITZGERALD. Yes.
Mr. SCOTT. And then you point out that you can get a FISA warrant for thingshave nothing to do with crimes, have nothing to do with terrorism, if you can get foreign affairs. The example I've used is
Mr. FITZGERALD. And I disagree with that. And if you could let me explain, because you do need
Mr. SCOTT. Okay, okay, well, let me make my point
Mr. FITZGERALD. Okay.
Mr. SCOTT. so you know what you're disagreeing with.
Mr. FITZGERALD. Okay.
Mr. SCOTT. If I've got probable cause that somebody's an agent of a foreign government, and we're about to negotiate a trade deal, and I can get their bottom price on steel, can I get a FISA wiretap?
Page 55 PREV PAGE TOP OF DOC
Mr. FITZGERALD. That answer? I'll be blunt. I don't know.
Mr. SCOTT. Okay.
Mr. FITZGERALD. Because Iwhat I'm saying is I don't
Mr. SCOTT. The answer everybody else has given is ''Yes.'' And that's how easy it is, and how unrelated to crime and terrorism these FISA wiretaps are. And if you canif that's all you've got to get, to get into somebody's home, to get a wiretap and all this, then it's a lot easier to run a criminal investigation without having to fool around with whether a crime is actually being committed.
Mr. FITZGERALD. Except that, if that's what you are doing, you'd be lying and making a false statement when you certified that the purpose of the investigation was to gather foreign intelligence. And when you try to bring that person into court for some drug crime and say, ''We had a FISA wiretap,'' and show it to the judge, for something else, it would be out of it. Let me make this point
Mr. SCOTT. A significant purpose was getting the bottom price on steel, and you tripped over a drug deal. Or you knew the drug deal was happening, and you knew he was negotiating a trade deal.
Mr. FITZGERALD. Sir, all I can tell you is this. In Chicago, we spendI spend a lot of my time prosecuting drug cases and gang cases. We have never contemplated, much less done, anyone going near a FISA court to get a drug wire. We've got plenty of other
Page 56 PREV PAGE TOP OF DOC
Mr. SCOTT. Then what was the Attorney General talking about when he said, if the primary purpose of the FISA wiretap wasn't foreign intelligence, what was it? Why did he say ''criminal investigation''?
Mr. FITZGERALD. And if I could get to the second part of what I wanted to say, it's most of those predicates require probable cause of activities which themselves are crimes when people commit terrorist acts. The point being, I think that the primary purpose itself is a fiction. And I'd like to explain that, because I think it's important.
It may be that people say early on you don't know what the primary purpose is. Let me give you an example. If a CIA officer came into my office tomorrow and said, ''We have sensitive information coming from overseas that someone's going to put a bomb in the middle of Chicago next week, and take lives,'' we would have the CIA in the room sharing their information. We would put the FBI in charge. We'd have severallots of agents in Chicago. We'd have the Chicago Police Department. And we'd say, ''Let's stop this bombing. Let's get the information, and let's go prevent it.''
If you ask the CIA officer under truth serum what is the primary purpose in what he's doing, I have no doubt that he or she would say, ''This is an intelligence operation to stop a bombing.'' If you ask the Chicago Police Department, ''What is the primary purpose of this operation?'' he no doubt, or she no doubt, would say, ''We are trying to prevent the crime of a bombing that''
Mr. SCOTT. You can't get a criminal warrant on something like that?
Page 57 PREV PAGE TOP OF DOC
Mr. FITZGERALD. If it's coming from overseas, it might be a FISA. It may not be a criminal warrant, if it was classified information that we could not use. If it was an Al-Qaeda operation doing this bombing on behalf of a terrorist group, that is appropriate for a FISA.
My point being, different people involved in the same operation may haveone may have an intelligence purpose; one may have a criminal purpose. And if I, as the prosecutor, have to sit there and figure out, ''How will a court review this later?'' if there's a bombing prevented and people are arrested, and have to decide, ''I can't use FISA, I can't use title III, I'm paralyzed''we need to know that there's a legitimate intelligence purpose in trying to prevent a terrorist group from bombing a major metropolitan city, and we go forward.
We can't sit around having a philosophical discussion, saying, ''Who thinks it's intelligence? Who thinks it's law enforcement? Where does the balance go?'' We can't do that. And that's what we used to do.
The fellow in the back who testified this morning, Rob Khuzami, and I worked a case together in New York in 1994, where people were plotting to blow up the bridges and tunnels in New York. And no one wanted to bring the prosecutors in until the end because they were afraid that, by talking to prosecutors, it would look like a law enforcement matter, and the FISA may later be thrown out.
We can't go through a world where we don't bring in the cops and the prosecutors to decide what to do because we're afraid the consultation will color how a court looks at it later. So I think it's a fiction that a primary purpose exists. There are purposes. And if you have a legitimate intelligence purpose, I think we need to be able to proceed.
Page 58 PREV PAGE TOP OF DOC
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Indiana, Mr. Pence, is recognized for 5 minutes.
Mr. PENCE. Thank you, Mr. Chairman. And thank you for holding this hearing. I hadand I want to thank the panel. This is an extraordinary panel of experts and public servants. And I'm most especially pleased to have the opportunity to hear from and to meet Mr. Fitzgerald, whose reputation in law enforcement is highly regarded in this nation. And I'm grateful for your insights.
Two questions specifically for the panel. I'm very intrigued in reading your statement, Mr. Fitzgerald. I was literally added to the Judiciary Committee a week before we wrote the PATRIOT Act. I haven't crammed like that since law school. But I've been a defender of this act, believing that it has balanced our civil liberties in this country with positive advances in our ability to confront the enemies in our midst.
And I'm struck in your testimony by a variety of examples that you use; even one, I believe, that had to do with the '93 bombing of the World Trade Center and one Sheikh Omar Abdel Rahman who there wereaccording to your testimony, that there were criminal and intelligence investigations, but that prosecutorsbecause of ''The Wall'' that we're talking about in this hearing, prosecutors didn't have that information.
And it isis it accurate to say in that case that prosecutors were in the dark about the details of a plot that our intelligence officials knew about by Sheikh Rahman to bomb the Holland and Lincoln Tunnels, the FBI Building, the UN, the George Washington Bridge, until very late invery late in that investigation; and that that's materially changed by the section of the PATRIOT Act we're here to debate?
Page 59 PREV PAGE TOP OF DOC
Mr. FITZGERALD. Yes. My understanding is that the first time a prosecutor was told about it, they were told very little, other than that it was an operation going on. And because FISAs were up, they were very concerned about contacts with prosecutors making it look like it was a primarily criminal purpose. And so they were brought in very late in the day, and decided when things had to be taken down, so to speak.
And a similar experience happened around the millennium, when there were threats to our country. And myself and my partner, another lawyer, sat by the phone for many days going up to the millennium eve, waiting for a phone call, if there was anything we could be told; while people on the intelligence side dealt with the case.
After the PATRIOT Act, if there were a threat like that, we'd be sitting down at meetings with the FBI, CIA, and exchanging information and deciding what we ought to be doing appropriately that is lawful and that will best protect our country.
Mr. PENCE. Thank you. It's just amazing to me. I think any Americans looking in on television at this hearing would be astounded at what used to be the practicethe left hand not knowing what the right hand is doingbetween intelligence and domestic law enforcement.
Mr. Kris, you testified that you thought that if section 218 sunsets, that law enforcement would have greater authority.
Mr. KRIS. Yes.
Page 60 PREV PAGE TOP OF DOC
Mr. PENCE. Which flies in the face of many of the critics of ''The Wall.'' Now, I know you discussed this in your written testimony. I'm looking at page 12 of your written testimony andbut I'd love for you to elaborate on that, because I think it's an intriguing point. Because as a limited-Government conservative, I'm always interested in how do we advance national security
Mr. KRIS. Right.
Mr. PENCE. and do that in a way that's consistent with limiting Government intrusion.
Mr. KRIS. Right. Well, I think the answer to your question really depends on an understanding of the decision of the Foreign Intelligence Surveillance Court of Review.
Mr. PENCE. Uh-huh.
Mr. KRIS. What that court held was that, as enacted in 1978, FISA did not discriminate between law enforcement methods of dealing with or protecting against terrorism and espionage and other foreign threats to national security, and any other methoda traditional intelligence method, diplomatic method, and so forthof dealing with those threats.
So, the court basically held that, as enacted in 1978, FISA would have allowed surveillance even where the sole purpose was to prosecute a terrorist or a spy. The distinction, the court said, was not the nature of the method used to address the threatlaw enforcement methods or some other methodbut rather, the nature of the threat that was being addresseda terrorist threat, as opposed to, say, a routine domestic crime, bank robbery or what have you.
Page 61 PREV PAGE TOP OF DOC
But the court recognized that for 23 years everybody misread the statute in all three branches of Government. And until the Department figured it out and advanced the argument in the appeal, and the court agreed, nobody knew. Which meant that at the time the PATRIOT Act and section 218 in particular was enacted, the misunderstanding prevailed. And so the court held, section 218, in effect, codified that misunderstanding and created this false distinction between law enforcement methods of dealing with these threats and all other methods.
Now, if 218 were to sunset, I think the misunderstanding would sunset, too. Or at least there's a substantial argument to that effect.
Mr. PENCE. Well, you would lose that element of the statute that would clarify what the significant non-law enforcement purpose standard.
Mr. KRIS. And so I think you would probablyand again, I haven't done the really heavy lifting that would be necessary to determine this authoritatively. But I think you can see the logic of the argument that if 218 sunsets, you revert to the originalalbeit newly discoveredmeaning of the statute.
Mr. PENCE. Uh-huh.
Mr. KRIS. And that is why I believe if 218 sunsets without more, the Government may have more power than it does today.
Mr. PENCE. So
Page 62 PREV PAGE TOP OF DOC
Mr. CHABOT. The gentleman's time
Mr. PENCE. Americans' privacy rights were strengthened by the PATRIOT Act, in that regard.
Mr. KRIS. The PATRIOT Act cut back on Government power. That is what the court of review said.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from Ohio seems to be chomping at the bit there, so go ahead, if you have a quick point.
Mr. SWIRE. Well, I think another way to look at it is there's a circuit split between the five or six circuits that went one way, and the FISA Court of Review that went the other way. Because there were numerous circuit court judges that had what the Justice Department found was a misunderstanding.
Mr. CHABOT. Thank you. We were just getting ready to go to a second round. Two Members have just gotten here. Did you want to get in on the second, or you still want to get in on the first?
Ms. JACKSON LEE. First.
Page 63 PREV PAGE TOP OF DOC Mr. CHABOT. You want to get in on the first. Okay. The gentlelady from Texas is recognized for 5 minutes.
Ms. JACKSON LEE. Thank you, Mr. Chairman. We have seemingly been patriotic now for a couple of days, and we've lived with the PATRIOT Act for a longer period than that. I want to thank the witnesses for their testimony, and the Ranking and Chairman for this hearing.
I was just meeting with some constituents, and one of their chief issues was the question of civil liberties. Isn't it interesting, in 2005, that that doubt of having civil liberties is being raised by Americans really across the land.
I think the important point to be made possiblyor for those of us who sit on this side of the panel is that there is not a divide in wanting to make sure that the homeland is secure; or, frankly, that there are not the basic and enhanced resources for law enforcement. But we have to be, in essence, the wall, the divide, the protector of excessiveness, and the representation that the present state of the law is not adequate.
So I simplyI appreciate the U.S. Attorney in his deciphering ''primary'' and ''significant'' and I willMr. Fitzgerald, I want to raise some questions with you. But Mr. Swire, if you could let me know, I know that there have been mistakes that the Department of Justice has madesome 70 of them, as I understand itabout information sharing, unauthorized dissemination of information. In fact, I think Attorney General Janet Reno first interjected into trying to give guidelines of where the FBI could begin to share information with the U.S. attorneys.
Page 64 PREV PAGE TOP OF DOC
My question to you is to pick up where my colleague, Congressman Scott, was as I was listening to his inquiry about this ''significant'' and ''primary'' question. But also, have we even fixed some of the problems that are generated from the misrepresentations of information sharing, unauthorized dissemination of information? And how do we know that the Department has any knowledge of these misrepresentations and has any ability to account for them?
And let me make this other point. We learned in an earlier hearing today that we have the right to get certain information, the Congress does, under FISA. And I'm wondering whether we are even getting that information. Not only do we have the right to get information, but the public has a right to have pronouncements being made.
In your profession, or as you have traveled the highways and byways, are we fulfilling our responsibility? Are you getting pronouncements from the DOJ, or local DOJ, about anything dealing with FISA? I yield to the gentleman. And I may interrupt you because my green light may go and I may want to deal with Ms. Martin or Mr. Kris and Mr. Fitzgerald.
Mr. SWIRE. Thank you, Congresswoman
Ms. JACKSON LEE. Yes, sir.
Mr. CHABOT. The green light just went so
Ms. JACKSON LEE. I'm on a beige light now, but that's all right.
Page 65 PREV PAGE TOP OF DOC
Mr. SWIRE. A couple of points. One is attached to my testimony are possible oversight questions, to try to ask some questions that maybe the Committee would find useful to ask the Department of Justice. I think that having a greater oversight by the Judiciary Committees going forwardif this turns out to be really a criminal statute so often, maybe the Judiciary Committee should get the same oversight information that the Intelligence Committee
Ms. JACKSON LEE. But do you know if they've answered any of the problems dealing with the question of 70 misrepresentations?
Mr. SWIRE. Well, it points out that there's no adversary process in the FISC courtin the FISA court. And the court there was able to discover that more or less on its own. And so we need to figure out how that oversight is going to happen in the future.
Ms. JACKSON LEE. Ms. Martin?
Ms. MARTIN. Well, I'd like to make the point that I think there are really two separate issues being talked about here. One is sharing and the failure to be able to share before September 11th, described by Mr. Fitzgerald. And I think we all recognize that that was a mistake and that it shouldn't happen again; that we don't want to write in a legal prohibition on that kind of sharing.
But the question I think that the Committee faces in connection with 218 is not a sharing question, but is the question of when are the FISA authorities going to be allowed to be used? The FISA authorities allow the Government to secretly search Americans' homes and secretly wiretap their telephones.
Page 66 PREV PAGE TOP OF DOC
And those are extraordinary powers, going to the core of the fourth amendment. One of the core fourth amendment protections has been that when a person's home is searched and their telephone conversations are tapped, after the fact they're told about it. FISA isthe whole point of FISA is that you don't have to tell the person that that happened.
Section 218 broadens the circumstances under which the Government can use those extraordinary powers. And I think that the question the Committee needs to focus on is, given that we are going to have those extraordinary powers, given that we of course want the information collected by FISA to be freely available to law enforcement and prosecutors, what kinds of protections are we going to have against abuse of those secret powers? And the Mayfield case is an example, I think, of that problem; which I'd be glad to talk about.
Mr. CHABOT. The gentlelady's time has expired. I think the gentleman on his time is going to ask for a follow-up, because we're already on 7 minutes on yours.
Ms. JACKSON LEE. If Mr. Kris and Mr. Fitzgerald can answer, I'd appreciate it.
Mr. CHABOT. Well, they will, but I don't want to drag this out too long. The gentleman from California is recognized at this time.
Mr. LUNGREN. Thank you, Mr. Chairman. And I would ask Mr. Fitzgerald and Mr. Kris to please respond to the last comments made by Ms. Martin with respect to the fact that thethat 218 expanded in these areas these kinds of searches, and does not give adequate notice; and seemed to suggest that therefore it is inappropriate.
Page 67 PREV PAGE TOP OF DOC
Mr. KRIS. I'll speak to the 218 question, because I'm actually prepared to say that it is essentially the case that 218 and the provisions that tear down ''The Wall'' don't affect the ''who,'' the ''what,'' the ''where,'' the ''when,'' or the ''how'' of FISA surveillance. What they really do is permit the two hands of the Governmentlaw enforcement and intelligenceto talk and communicate in a normal way, one to the other.
When ''The Wall'' is up, the Government is free to do any surveillance that it can do when ''The Wall'' is down, with one condition; and that is, the prosecutors have to be kicked out. And there is no change connected to ''The Wall'' in the probable cause standards or the definitions of ''agent of foreign power'' or ''foreign power.'' And so the same people can be targeted to the same extent on the same facilities.
The difference is that law enforcement officials can be involved and coordinate with the intelligence officials. The Government is essentially no longer put to that very difficult choice between either, A, coordinating or, B, conducting the surveillance. They can now do both. So I guess that's my basic response on that.
Mr. LUNGREN. Mr. Fitzgerald?
Mr. FITZGERALD. He said it better than I would have, so I agree.
Mr. LUNGREN. All right, you're not going to get off that early. Mr. Fitzgerald, in Ms. Martin's testimony, her written testimony, she suggests that Congress should take the opportunity to bring the FISA information in criminal proceedings ''in line with basic due process requirements.'' It's my understanding that the current procedures governing FISA in criminal cases have been upheld as constitutional in Federal courts across the country. Are you aware of any Federal court that has held that the current procedures are unconstitutional?
Page 68 PREV PAGE TOP OF DOC
Mr. FITZGERALD. No, and in the several times it's been litigated in cases I've participated in, it's always been held to be constitutional and to comport with due process.
Mr. LUNGREN. Even in the event that no courts have found it unconstitutional, do you see any reason for reforms? And if so, what reforms would you suggest?
Mr. FITZGERALD. I, personally, don't. I think that when judges review these materials they do review them to make sure that they're in order. And I think thatI think it's appropriate, given the sensitive nature of the material that goes into applications, often which can come from very sensitive sources or foreign governments who do not wish what they contribute to be exposed and the sources and methods.
Mr. LUNGREN. You talked in your testimony about the investigation of Osama Bin Laden in the 1990's. Based on that experience, how damaging do you think ''The Wall'' was to our nation's counterterrorism efforts during that time?
Mr. FITZGERALD. I think it was extremely damaging and
Mr. LUNGREN. Why?
Mr. FITZGERALD. I would describe it this way. National security and civil liberties are both extremely important, so I'm going to make an analogy to a game; not because I don't think life and liberty and privacy aren't serious. But if you played football and you were on defense, and your job was to make sure no one attacked you, and where the risk were lives, you would not tell the defense that they have to separate into two huddles and can't talk to each other; which is what ''The Wall'' did.
Page 69 PREV PAGE TOP OF DOC
And if you went and played a game like that, where two separate huddles couldn't collaborate, and one day they finally said, ''You know what, you could actually talk before the other team tries to score a touchdown,'' where the price of a touchdown is lives, you would recognize that there's no way we should go through a dysfunctional system where we're not talking to each other, trying to defend against a lethal threat.
Mr. LUNGREN. Do you understand the concerns that some people have, that tearing down ''The Wall'' would in some way jeopardize our protections of individuals' privacy rights?
Mr. FITZGERALD. I do. I absolutely understand that, for two reasons. I understand privacy rights are very important. I want my privacy rights protected, so I don't at all cast any doubt on why people would be concerned about their privacy rights. And I understand the history from the '60's and '70's, why people would be concerned about that.
From a pragmatic point of view, I agree with David Kris. I think we do our best job, not just of protecting national security, but protecting privacy rights and civil liberties, if we have the law clear, and we put lawyers and others in the room and say, ''These are the rules of the road,'' and we work together and make sure people don't make mistakes.
So I think that ''The Wall,'' while it protects national security, doesn't jeopardize civil libertieswe want a system where we're all operating on the same set of laws and rules, and follow them, and make sure that people who are responsible, and have law degrees that they want to keep and jobs they want to keep, follow the rules and make sure that everyone around them follows the rules.
Page 70 PREV PAGE TOP OF DOC
Mr. CHABOT. The gentleman's time has expired. We are going to go to a second round at this time, so I recognize myself for 5 minutes.
Mr. Kris or Mr. Fitzgerald, let me ask you this question. Do terrorist organizations work with other criminal elements, such as drug dealers and street gangs and other violent criminals of that nature? And if so, can you give some specific examples of that? And how common is this cooperation or association between terrorists or terrorist organizations and other criminal elements?
And prior to enactment of 218, how would the law enforcement agency in charge of the criminal investigation coordinate with the foreign intelligence agency in charge of the terrorist investigation? And how cumbersome was that process? And again, some of these things we've already touched on time and time again.
Mr. FITZGERALD. I will give you my limited perspective. I do know there have been occasions in the past where gangs and terrorists have linked up. I think going back to the late '80's, there was a Chicago gang that tried to get shoulder-fired missiles for a foreign countryI think Libyaand that was exposed and later prosecuted. So that has happened.
In my personal experience, I've more seen more incidental involvement of gang members or street criminals. For example, the plot where they were trying to blow up the bridges and tunnels in New York City: they had to get stolen cars; they had to get guns; they had to get things like that; where in the course of an investigation they were dealing with street-level criminals, just because they needed fake passports; they needed cars; they wanted to get detonators. So they got into this with the criminal underworld because they needed to get logistics. But it was more of athe plan was being done by the terror ring, and they were reaching out to other people just to get logistics.
Page 71 PREV PAGE TOP OF DOC
I don't see us using FISA to go after a gang problem, at all. What I do see is if FISA's going after a terrorist problem, we may incidentally pick up someone if they turn to a gang member or street criminal as part of their effort to get a, you know, weapon or a detonator, that sort of thing. But I haven't seen yet a situation where we haven't been able to just deal with it as a terrorism issue where you might incidentally come across street-level criminals. And I hope it stays that way.
Mr. CHABOT. Thank you. Mr. Kris, anything you want to add to that?
Mr. KRIS. I'm not going to say anything about any particular cases, I don't think, in an open hearing; and as a former Government lawyer, not a current one.
I will say that there are cases that I know of that are public, in which terrorist organizations or other national security threats have used what would otherwise be sort of more traditional kinds of crime, to finance or facilitate their terrorist acts. We had cigarette smugglers, for example, who were raising money to buy weapons. And that can happen.
I think, legally, those kinds of crimes are treated like foreign intelligence crimes, under the new law tearing down ''The Wall.'' And FISA could be used to gather evidence of those kinds of crimes. It can't be used to gather evidenceor primarily to gather evidence of ordinary crimes that are not being committed to facilitate those kinds of national security threats.
Page 72 PREV PAGE TOP OF DOC Mr. CHABOT. Thank you. Ms. Martin, you stated in your written testimony, and I think today orally as well, that the FISA statute authorizes secret surveillance on less probable cause of criminal activity than is authorized by the fourth amendment in criminal investigations. Some have claimed that FISA has no probable cause requirement. Is it your opinion that FISA has a probable cause requirement, or not? Would you comment on that, please?
Ms. MARTIN. Yes. It's clear that it does have a probable cause requirement, and the probable cause requirement is, as Mr. Fitzgerald stated, that someone be an agent of a foreign power. There are then paragraphs defining what an agent of a foreign power is.
In the terrorist context, it's pretty clear that that would be the equivalent of probable cause of criminal activity. But in the clandestine intelligence gathering context, which also applies to FISA, it's also clear thatif you read the FBI's own memo on the use of FISA, that the probable cause required is less than the probable cause required for a purely criminal warrant in that context. Which is not to say there's no probable cause and that there is a criminal nexus, but theAnd I see Mr. Kris agreeing with me, so I'll just end
Mr. CHABOT. Okay.
Ms. MARTIN. before I say anything else.
Mr. CHABOT. Okay. My time is about ready to expire. Let me ask one more question, if I could. Either Mr. Kris or Mr. Fitzgerald, would you explain why the FISA Court of Review concluded back in 2002 that section 218 of the USA PATRIOT Act is constitutional? And as the Chairman of the Constitution Subcommittee, I'm particularly interested in that.
Page 73 PREV PAGE TOP OF DOC
Mr. KRIS. I'll try toI'll try to tackle that. The court basically held that FISA is constitutional because it is reasonable, and reasonableness is the touchstone of analysis under the fourth amendment.
The court specifically relied, I think, on two prior Supreme Court decisions. First, the Keith case, United States against the United States District Court, from the 1970's; and the more recent decision of City of Indianapolis v. Edmond.
Keith held that in the case of surveillance involving domestic terrorists, standards different than and lower than those in title III would be permissible, because of the special nature of the threat that those kinds of domestic terrorist cases present. And I think that reasoning applies, a fortiori, to FISA, which involves foreign threats to national security, which are even more dangerous and more difficult to investigate.
In Edmond, the Supreme Court drew a distinction between ordinary and special kinds of law enforcement in its analysis and discussion of a checkpoint. And so I think the basic reason that the Court upheld FISA is that, like the statute which distinguishes between kinds of threats, rather than kinds of responses to threats, so, too, the fourth amendment ultimately draws that distinction. And surveillance is lawful under FISA if it is addressing the kind of threat that the statute deals with, regardless of the kind of method being used to deal with the threat.
Mr. CHABOT. Thank you very much. My time has expired.
Page 74 PREV PAGE TOP OF DOC The gentleman from Virginia is recognized for 5 minutes.
Mr. SCOTT. Thank you, Mr. Chairman. Mr. Kris, did I understand you to say that domesticinvestigation of domestic terrorism did not require the same level of probable cause as other criminal warrants would require?
Mr. KRIS. Under current statutory law, that is not correct. Those would proceed under title III, the conventional criminal statute. But under the Constitution, the Supreme Court held in Keith, standards lower than title 3 maybeor maybe not, in the probable cause areawould be tolerable.
Congress has never taken up the Court on that invitation in Keith, and has not enacted a special statute governing domestic terrorism. But Keith indicates that it could do so.
Mr. SCOTT. But the present state of the law is that domestic terrorism cannot be investigated with a lower probable cause standard than other crimes? That's the state of the law today?
Mr. KRIS. Yes.
Mr. SCOTT. Ms. Martin, you indicated about a criminal nexus to titleto FISA once. Did you say you needed a criminal nexus, or could have a criminal nexus?
Ms. MARTIN. Well, when you're investigating ''clandestine intelligence gathering,'' as opposed to terrorism, it's not defined to equal criminal activity. It's defined to include activity that might be criminal. So you could say
Page 75 PREV PAGE TOP OF DOC
Mr. SCOTT. And it could
Ms. MARTIN. that it's connected to, but it's not a criminal probable cause standard.
Mr. SCOTT. It could be connected to the conduct of foreign affairs of the United States.
Let me ask Mr. Fitzgerald. Your readingWhat code section were you reading off of when you were responding to the other question?
Mr. FITZGERALD. FiftyTitle 50, United States Code, Section 1801. When I talked about the agent of a foreign power, I was reading from section ''b,'' and when I read from international terrorism, I think I read ''b,'' and the terrorism parts were subsection ''c'' and ''e.'' They also have in there the sections about clandestine intelligence activity.
Mr. SCOTT. Okay. Because I'm reading Title 1, section 101. When you talk about getting a FISA warrant, you can get it if you're getting foreign intelligence. And foreign intelligence information includes the conduct of foreign affairs of the United States; which may or may not have anything to do with a criminal activity.
Mr. FITZGERALD. And you're reading from subsection ''e.'' And my point being, you have to satisfy the standard earlier that the person is an agent of a foreign power. If you satisfy thatand to be an agent of a foreign power, to engage in clandestine intelligence activity, that is a crime. To be an unregistered agent of a foreign power is a crime in itself.
Page 76 PREV PAGE TOP OF DOC
Mr. SCOTT. Well, if you are a registered agent of a foreign power.
Mr. FITZGERALD. If you are a registered agent? Okay.
Mr. SCOTT. Yes.
Mr. FITZGERALD. Okay. Then if you're a registered agent of a foreign power, then that may not be a crime, because you're obviously notyou've registered. But if you're engaged in clandestine intelligence activities, you're a spy.
Mr. SCOTT. Well, if you are a registered agent of a foreign power
Mr. FITZGERALD. Engaging in clandestine intelligence activity.
Mr. SCOTT. No. No, we're going to get some information from you. And the ideayour bottom price on a steel deal we're going to negotiate tomorrow afternoon. If I know you're going to be talking to people back home, I can wiretap your phone and listen in to get that information. And that's a FISA wiretap. No crime; just getting information. Right?
Mr. FITZGERALD. And as I told you before
Page 77 PREV PAGE TOP OF DOC Mr. SCOTT. You don't know.
Mr. FITZGERALD. That part of it, I'm less familiar with. I could just read the statute
Mr. SCOTT. Okay, well, see, we've got to deal with the whole thing. You're dealing with terrorism, and we're dealing with the code and determining whether we're going to allow this to continue. And the idea is, since we changed that primary purpose to a significant purpose, the Attorney General told us that you can run criminal investigations out of FISA on these lower standards.
Mr. FITZGERALD. And I could just add that the PATRIOT Act did not change that definition. The FISA statute, it didn't change the
Mr. SCOTT. That it changed to say ''primary purpose'' to ''significant purpose''; which invites the question, if it's not the primary purpose, what is?
Mr. FITZGERALD. And my only point being that if it's lawful to listen in on those trade negotiations, it was lawful before the PATRIOT Act, and afterwards.
Mr. SCOTT. Yes, but you can't run a criminal investigation. You can't use it as an excuse to running a criminal investigation if that wasn't your purpose.
Mr. FITZGERALD. And you can't do it here, if your primary purpose isn't to gain foreign intelligence. You have to certify that. That would be false if your
Page 78 PREV PAGE TOP OF DOC
Mr. SCOTT. Well, that's why we changed the law, so you could run a criminal investigation without probable cause. Let me ask a quick question, before all my time runs out. How do you challenge a FISA wiretap that was inappropriate? In criminal investigation, you challenge it using the exclusionary rule. How do you challengeif they shouldn't have gotten the wiretap to begin with, if it was really a ruse, how do you challenge it?
Ms. MARTIN. It's impossible. Not only would you not be able to challenge it, you would never know about it. And that's the whole difficulty. And that's what Brandon Mayfield's case illustrates. There they got a secret FISA search of his home, and it turns out he's innocent. There's nothing in the statute that required the Attorney General or the Justice Department to inform him that the FBI had been inside his house. And the Justice Department made that clear when they did inform him, because they said, ''We're going to tell you that, but we didn't have to tell you we were inside the house.''
And the reason, apparently, they told him that they had been inside the house was only because he had been mistakenly jailed. So if he hadn't been jailed, he never would have been told that they had a wiretap or a physical search of his house, when it turned out it was a mistake.
And that's the problem that I think this Committee needs to look at. And that problem did pre-exist section 218 of the PATRIOT Act. There's no doubt about that. But it's been exacerbated.
Mr. CHABOT. The gentleman's time has expired, but if you want to follow up just for a minute
Page 79 PREV PAGE TOP OF DOC
Mr. SCOTT. I do want to follow up. I wanted Mr. Swire to comment.
Mr. SWIRE. The simple point I wanted to make is that in Kate Martin's testimony, she proposes legislative fix that's based on CIPA, classified procedures act, which came after 1978, and is a better way for handling those challenges than the '78 law had. Basically, we should update our 1978 version of FISA to the things we learned over time for how to handle the classified information and have those challenges done better.
Mr. SCOTT. Okay.
Mr. CHABOT. The gentleman's time has expired.
The gentleman from California, Mr. Lungren, is recognized for 5 minutes.
Mr. LUNGREN. Thank you, Mr. Chairman. Mr. Kris, I'd like to direct this to you, because listening to the comments and the questions of the gentleman from Virginia prompts this question; which is when we're talking about FISA and he's talkingand we're talking about a non-criminal actwe're talking about the position another country may have on tradeFISA can only come into effect if the individual involved is a foreign agentan agent of a foreign government; is that not correct?
Mr. KRIS. Yeah. I mean, I think there's two separate legal requirements here that may be getting a little bit mixed.
Page 80 PREV PAGE TOP OF DOC
Mr. LUNGREN. Yes.
Mr. KRIS. And maybe I can try to differentiate. To be a FISA target, you have to be an agent of a foreign power, or a foreign power, and the Government has to establish probable cause, the court has to find probable cause. And that's a requirement that, just as Ms. Martin says, in some cases, particularly where it's a terrorism case involving a U.S. person, it's essentially the same probable cause standard as in a criminal case, plus some additional requirements.
But in the espionage context, it's a slightly different standard. It is activities that involve, or may involve, or are about to involve a crime; which isand the legislative history is very clear on thissomewhat lower than the traditional criminal probable cause standard. That is what the statute says.
The other requirement in a FISA application is a certification from some high-ranking Executive Branch official, like the FBI Director, that now a significant purpose is to obtain foreign intelligence information. There are two kinds of foreign intelligence information. There's the kind that is normally at issue in these kinds of ''Wall''-related cases, what I will call counter-intelligence, or protective intelligence, information that is relevant or necessary to protect against a series of specified threatsterrorism, attack, so forth.
There is also a second definition in foreign intelligence information, and I'll call that affirmative, or positive foreign intelligence. And that is information with respect to a foreign power or foreign territory that relates to or, if concerning a U.S. person, is necessary to the defense or security of the United States or the conduct of foreign affairs.
Page 81 PREV PAGE TOP OF DOC
And it is absolutely correct that information that is relevant to a trade negotiation would be, I think, or could be foreign intelligence information, under this second definition. However, I will also say that information is foreign intelligence information under that second definition only if it is with respect to a foreign power or a foreign territory.
And if you read the legislative history there, they contrast that ''with respect to'' language. On the one hand, with respect to a foreign territory or power; on the other hand, not about a U.S. person. And so it really is, I think, if you read the legislative history, the kind of information that you would get from monitoring visiting foreign trade delegations, if that's what you were going to do. And I'm not saying we do it or not.
Mr. LUNGREN. As opposed to an American citizen.
Mr. KRIS. Right. And the two requirements are, in any event, independent. Because even ifit would be a very strange case, I must say, in which the Government would assert, on the one hand, there is probable cause that this U.S. person is a terrorist, or is knowingly engaged in international terrorism or activities in preparation therefor; and yet, our primary purpose is to gather information about a trade negotiation. That would be a very odd disjunction.
And I thinkI don't say you should rely on the good faith of the Government officials involved. Having been one, I know better than that. But it would certainly be a difficult articulation for the FBI Director to make.
Page 82 PREV PAGE TOP OF DOC Mr. LUNGREN. Well, see, what I'm trying to do is figure out if we've been hearing about a straw man for quite a bit of time in various questions, or whether this is a serious problem. I mean, I'm aware of no abuse in this area. But is it a serious problem, where an American citizen has to worry about somehow FISA being used to invade their privacy under some tortured version of these terms? I'm just asking
Mr. KRIS. Yes.
Mr. LUNGREN. for your help on this, looking at this statute.
Mr. KRIS. I think my basic answer to that question is ''No,'' because the probable cause requirements in 1801 of Title 50 remain the same, both before and after the PATRIOT Act, and still require the Government to make a substantial showing of criminality in clandestine intelligence cases, and what amounts to a full-blown traditional criminal showing of probable cause in a terrorism case, regardless of what prong of the foreign intelligence definition they are proceeding under.
Mr. LUNGREN. Thank you.
Mr. CHABOT. Does the gentleman yield back? The gentleman's time has expired.
The gentlelady from Texas is recognized for 5 minutes.
Page 83 PREV PAGE TOP OF DOC Ms. JACKSON LEE. I'd like to go back to Ms. Martin. But before I briefly turn to you, I just want to state for the record, to make it very clear, you were delineating two very horns of the dilemma that Members of this Committee and Congress have. And that is, of course, to recognize the vitality of information sharing, i.e., thefor lack of a better word, the sort of ''Three Stooges'' approach pre-9/11. And I don't say it unkindly. But I think many of us were sort of aghast about the lack of sharing that we thought might have been helpful. And of course, that was a combination of domestic and international only because the individuals came into the country. But there were some that were there in the country doing activities that did not seem to funnel in one place. So I don't disagree with you. And I think I don't even glean that we would not be concerned that we can't do a better job at information sharing.
I think there's some question of whether or notwe have this national intelligence director, which we now have, and, you know, whether that bridges any necessary intelligence necessities because of the CIA, because of the FBI and other elements, that need to cooperate.
But the other part of it isand these are my wordsthe broadness, the depth, of the power of the Government in utilizing FISA, and when to use this broad-based power; which is what my concern is. I've seen some looking maybe aghast or shocking from Mr. Kris when I mentioned the ''Three Stooges,'' but this iswe're all big boys and girls up here and we can face conversation that may be somewhat pointed.
Again, it's not a personal commentary. It is just a commentary of what we've found ourselves. And when I say that, let me put everybody in the same boat together. Everybody was equally shocked that maybe there were not procedures in place.
Page 84 PREV PAGE TOP OF DOC
As I look at your testimoniesso my interest is really to do as you've noted. In fact, I've noted in your testimony that the national security study deals with the question of protecting us and civil liberties. And I assume you're consistent in your work. And I think that's a fair balance. Maybe we're notwe probably won't agree on many issues. I happen to be on Homeland Security. I say thatI've said that before. But I think that you wouldn't ask a Member of Congress that they are not interested in that part of securityof securing the homeland. But it's the use of this power that concerns me.
And I circled something here: ''The center has long advocated the necessity of tying domestic intelligence authorities to law enforcement to ensure that Government surveillance is targeted against actual wrongdoers, and not against political or religious minorities.'' However, if, for exampleand I'm on the domestic sidea religious minority had as its philosophy and also its action the bombing of abortion clinics; its faith or its views were that they are absolutely abhorrentabhor them, but then the next step was that they planned bombingbombings. You don't include that in protections of civil liberties; is that correct?
Ms. MARTIN. No. That's actually an issue that we worked on to a great deal before September 11. Because we were concerned about two things: that the Government adequately investigate and stop abortion clinic violence; but that it not target groups who opposed abortion, or conduct surveillance of groups who opposed abortion, simply on the excuse that it was trying to stop abortion clinic violence.
And that linebetween investigating and targeting politically motivated violence, while being careful to respect the first amendment rights of those who might share the political views of the violent actorsis an extremely important and difficult problem.
Page 85 PREV PAGE TOP OF DOC
Ms. JACKSON LEE. Right. Let me take you up on that. Lights go out quickly here. Let's take that on the international basis, or at least the basis of groups that have gotten profiled: Muslims who gather in a mosque here in the United States; Pakistanis; people from Iran who live in the United States. Then how would the center expand on where you're going with the protection of the civil liberties and to avoid this expansive use of this procedure and stillwhere would we begin, or where would we take this hearing to really respond to that?
Because that, I think, as much as this is such a wonderful panel that talks about the necessity of security, and the U.S. Attorney, but we have in here the makings of the broad use of this procedure. How would you answer, a good way of providing that protection?
Mr. CHABOT. And the gentlelady's time has expired, but you can answer the question.
Ms. JACKSON LEE. You can answer the question, thank you. Thank you, Mr Chairman.
Ms. MARTIN. Well, I think it's an extremely important and extremely difficult question to answer, that has to be answered in many different specifics. But I think that, given where we are, that we are going to continue to have the use of what are basically completely secret surveillance authorities; and which we tried to write in all of these detailed protections so that people wouldn't be spied on because they were Muslim. But as you can tell from all of the lawyers sitting here, it's a complicated statute. And whether or not those details in the statute in the end are going to be sufficient to protect people is notno longer clear to me.
Page 86 PREV PAGE TOP OF DOC
I think that we have to come up with some new ways to look at what the Government is actually doing. And it's a hard problem because, of course, they have to operate in secret here. But I think I've made a couple of suggestions.
I think another suggestion we haven't talked about is that this Committee go look at the actual FISA applications, the warrants, and the returns, especially of U.S. persons, and see who's being surveilled and what they found when they've done the surveillance, and actually look at that. And that's another way to look at this problem.
Ms. JACKSON LEE. I thank the gentlelady. We'll take you up on that. At least, I will. Thank you.
Mr. CHABOT. Thank you. The gentlelady's time has expired. That concludes the second round of questioning.
And at this time, I'd like to ask unanimous consent to include in the record the Department of Justice's response to a letter from Senator Feinstein alleging abuses under the PATRIOT Act. And I understand that this indicates the absence of those abuses.
I'd also like to thank the witnesses for their testimony here this afternoon, which I really thought was excellent. The Subcommittee very much appreciates your contribution to this important effort. And in order to ensure a full record and adequate consideration of this important issue, the record will remain open for additional submissions for 7 days. Also, any written questions that a Member wants to submit should be submitted within the same 7-day period.
Page 87 PREV PAGE TOP OF DOC
That concludes the Oversight Hearing on the ''Implementation of the USA PATRIOT Act: Section 218Foreign Intelligence Information. ('The Wall')'' I want to thank all the Members for their attendance and their participation this afternoon. We want to especially thank the witness panel for being here and answering our questions. And if there's no further business to come before the Subcommittee, we're adjourned. Thank you.
[Whereupon, at 4 p.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
PREPARED STATEMENT OF THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY
Thank you, Mr. Chairman, for holding this hearing on the issue that has been foreshadowing much of our discussion about the PATRIOT Actthe extent to which it dismantled ''the wall.'' Given that where we have broken down the traditional wall between foreign intelligence gathering, particularly foreign intelligence, and criminal proceedings, to give the government broad authority to collect and share information, mostly secretly, I am concerned that we have also blurred the traditional line of protection for our privacy and freedoms.
While I agree that some lifting of the traditional restrictions in this area were justified for the government to better use the authorities it already had in many instances, I am also mindful that those restrictions were placed there for a very good reason. We have seen with ''COINTELPRO,'' Watergate, the FBI spying on Dr. Martin Luther King, Jr., and with other incidents, what abuses can occur when we do not keep a tight enough reign on the government's use of extraordinary powers. We shouldn't have to experience those problems again to ensure that such abuses do not occur.
Page 88 PREV PAGE TOP OF DOC
When we operate in the foreign intelligence arena, we have traditionally given fairly broad latitude for use of extraordinary investigative tools abroad, particularly involving non-U.S. persons. But when we turn those tools inward, we run a greater risk of including U.S. persons in some of the investigative sweeps that occur, unless we have sufficient barriers to prevent unwarranted extensions. Since much of the foreign intelligence side is secretive and ex parte for the government with no public oversight and review, we don't have the traditional notice, challenge and public scrutiny on the criminal side. We used to have the ''wall'' as a protection. With the wall gone, I believe w should focus on establishing sufficient notice, challenge and public reporting requirements to assure that foreign intelligence operations do not unduly creep into domestic activities of U.S. persons.
Some of our law enforcement officials seem to feel that the mere inclusion of information regarding uninvolved, innocent persons amounts to ''no harm, no foul'' if they are not arrested or subjected to having to challenge the incursion or other processa sort of ''what they don't know won't hurt them'' philosophy. Yet, if overly broad information is collected, it can be spread all over town, greatly increasing the likelihood that your law enforcement, military or intelligence agency neighbor will know private things about you that you thought were private and known only by those to whom you knowingly gave the information. So, the problem with the ''wall'' being broken down isn't just improper acquisition and use of private information, but one of preventing people from having it the first place, other than those you gave it to with an expectation of privacy.
So Mr, Mr. Chairman, I look forward to the testimony of our witnesses on the extent to which our privacies and freedoms are being protected despite the dismantling of the ''wall'' through USA PATRIOT and other measures, and what safeguards are needed to prevent the creep of overly intrusive foreign intelligence operations and powers into the privacy of U.S. persons.
Page 89 PREV PAGE TOP OF DOC
LETTER FROM WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE DIANNE FEINSTEIN
LETTER FROM WILLIAM E. MOSCHELLA, ASSISTANT ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE TO THE HONORABLE ARLEN SPENCER
THE USE OF SECTION 218 IN TERRORISM INVESTIGATIONS
SUBMISSION BY PETER SWIRE ENTITLED ''THE SYSTEM OF FOREIGN INTELLIGENCE SURVEILLANCE LAW''
Page 90 PREV PAGE TOP OF DOCPPS0001.eps
Page 91 PREV PAGE TOP OF DOC
Page 92 PREV PAGE TOP OF DOCPPS0026.eps
Page 93 PREV PAGE TOP OF DOC
Page 94 PREV PAGE TOP OF DOCPPS0051.eps
Page 95 PREV PAGE TOP OF DOC
Page 96 PREV PAGE TOP OF DOCPPS0076.eps
Page 97 PREV PAGE TOP OF DOC
Page 98 PREV PAGE TOP OF DOCPPS0101.eps
(Footnote 1 return)
Oversight of the USA Patriot Act, Hearings Before the Senate Comm. On the Judiciary, 109 Cong. (Apr. 5, 2005).
(Footnote 2 return)
Parts of this testimony were adopted from my article on ''Domestic Intelligence and Civil Liberties,'' SAIS Review of International Affairs Winter-Spring 2004, Volume 24, No. 1, available at http://www.saisreview.org/PDF/24.1martin.pdf.
(Footnote 3 return)
See, for example, Kate Martin's September 24, 2001 testimony before the Senate Select Committee on Intelligence on the Legislative Proposals in the Wake of September 11, 2001 Attacks, including the Intelligence to Prevent Terrorism Act of 2001, available at www.cnss.org/kmtestimony0924.pdf.
(Footnote 4 return)
But see In re: Sealed Case No. 02001, Foreign Intelligence Surveillance Court of Review, 18 November 2002.
(Footnote 5 return)
See Justice Department, USA Patriot Act: Sunsets Report, April 2005, in particular concerning the case of Sami Al-Arian.
(Footnote 6 return)
Center for Strategic and International Studies, Guiding Principles for Intelligence Reform, at 2 (Sept. 21, 2004), at http://www.csis.org/0409intelreformprinciples.pdf.
(Footnote 7 return)
Testimony of William H. Webster before the Senate Committee on Governmental Affairs, Reorganizing America's Intelligence Community: A View From the Inside (Aug. 16, 2004), at 8, available at http://hsgac.senate.gov/files/081604webster9934.pdf.
(Footnote 8 return)
While international human rights law provides many of the protections recognized in the Bill of Rights and is not limited by national borders, its applicability to intelligence activities in times of emergency or war is less developed.
(Footnote 9 return)
As the 9/11 Commission recognized: ''Counterterrorism investigations in the United States very quickly become matters that involve violations of criminal law and possible law enforcement action. Because the FBI can have agents working criminal matters and agents working intelligence investigations concerning the same international terrorism target, the full range of investigative tools against a suspected terrorist can be considered within one agency.'' National Commission on Terrorist Attacks Upon the United States, The 9/11 Commission Report 424 (2004).
(Footnote 10 return)
9/11 Commission Report, at 423.
(Footnote 11 return)
The information referred to is located in the Appendix.