SPEAKERS CONTENTS INSERTS
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93–715 PDF
2004
ANTI-TERRORISM INTELLIGENCE TOOLS IMPROVEMENT ACT OF 2003
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
H.R. 3179
MAY 18, 2004
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Serial No. 104
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
MELISSA A. HART, Pennsylvania
JEFF FLAKE, Arizona
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
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JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
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
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel
Subcommittee on Crime, Terrorism, and Homeland Security
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HOWARD COBLE, North Carolina, Chairman
TOM FEENEY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
MARK GREEN, Wisconsin
RIC KELLER, Florida
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
ROBERT C. SCOTT, Virginia
ADAM B. SCHIFF, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Counsel
KATY CROOKS, Counsel
JASON CERVENAK, Full Committee Counsel
BOBBY VASSAR, Minority Counsel
C O N T E N T S
MAY 18, 2004
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OPENING STATEMENT
The Honorable Howard Coble, a Representative in Congress from the State of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and Homeland Security
The Honorable Robert C. Scott, a Representative in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security
WITNESSES
The Honorable Daniel J. Bryant, Assistant Attorney General, Office of Legal Policy, United States Department of Justice
Oral Testimony
Prepared Statement
Mr. Thomas J. Harrington, Deputy Assistant Director, Counterterrorism Division, Federal Bureau of Investigation
Oral Testimony
Prepared Statement
The Honorable Bob Barr, 21st Century Liberties Chair for Freedom and Privacy, The American Conservative Union
Oral Testimony
Prepared Statement
APPENDIX
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Material Submitted for the Hearing Record
Letter clarifying hearing responses from the Honorable Daniel J. Bryant
Letter from Laura W. Murphy, Director of the American Civil Liberties Union (ACLU), Washington National Office
Letter from the American Civil Liberties Union (ACLU), et al.
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
Letter from the Honorable Bob Barr, including the case of Mar-Jac Poultry, Inc.
Prepared Statement of Kate Martin, Director of the Center for National Security Studies
Article submitted by the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas
Subcommittee letter to the Honorable Daniel J. Bryant requesting responses to post-hearing questions
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Subcommittee letter to Thomas J. Harrington requesting responses to post-hearing questions
Post-hearing questions for the Honorable Daniel J. Bryant from the Subcommittee on Crime, Terrorism, and Homeland Security
Post-hearing questions for the Honorable Daniel J. Bryant from the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia
Post-hearing questions for the Honorable Daniel J. Bryant from the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan
ANTI-TERRORISM INTELLIGENCE TOOLS IMPROVEMENT ACT OF 2003
TUESDAY, MAY 18, 2004
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in Room 2141, Rayburn House Office Building, Hon. Howard Coble, (Chair of the Subcommittee) presiding.
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Mr. COBLE. Good morning, ladies and gentlemen. Today the Subcommittee on Crime, Terrorism, and Homeland Security will hold a legislative hearing on H.R. 3179, the ''Anti-Terrorism Intelligence Tools Improvement Act of 2003.'' This bill strengthens existing anti-terror intelligence tools that lack enforcement or contain loopholes.
Congressman Sensenbrenner, the Chairman of the Judiciary Committee, and Congressman Goss, the Chairman of the Select Committee on Intelligence, introduced H.R. 3179 on September 25, 2003.
Viewing this legislation as almost procedural, and having heard no complaints, Chairman Sensenbrenner scheduled the bill for markup a few weeks ago. At that time the American Civil Liberties Union and the American Conservative Union requested that the Chairman delay the markup and hold a hearing. The Chairman granted this request and we are here today for that reason.
The Department of Justice and the FBI will testify as to why we need this legislation, and Mr. Barr, representing the ACU, will explain its concerns.
The concept behind H.R. 3179 is simply the laws of our Nation should be enforced, should not aid and abet terrorists by providing them intelligence-related information, and should assist in the detection and apprehension of terrorists planning to further harm Americans.
This bill works to ensure all three principles, it seems to me. For instance, I am sure that everyone agrees that the Congress and the Federal agencies have a responsibility to ensure that the laws of this country are enforced, whether those laws relate to guns, campaign finance reform, or intelligence and national security.
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The current law authorizes the Federal Government to use a National Security Letter, which is basically an administrative subpoena, to make a request for transactional records, such as billing records. These requests must be related to investigations of international terrorism or clandestine intelligence activities.
The current law, however, has no mechanism to enforce the requests. Furthermore, the current law provides no penalty for an individual who decides to tip off a target of terrorism or an intelligence investigation that the Federal Government has made a National Security Letter request concerning the target. Clearly, we do not want to tip off or alert a terrorist cell that is under investigation. Accordingly, H.R. 3179 attempts to correct these problems.
These are common sense corrections, it seems to me. The stakes are too high to ignore correcting them. These are a few examples of what is contained in the bill, and I look forward to the testimony of the witnesses today.
I am now pleased to recognize the distinguished gentleman from Virginia, the Ranking Member, Mr. Bobby Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you in convening the hearing on H.R. 3179, ''the Anti-Terrorism Intelligence Tools Improvement Act of 2003.'' I would like to join you in welcoming our witnesses, especially our former colleague, the gentleman from Georgia, Mr. Barr, and our former chief counsel, Dan Bryant, both of whom have gone on to distinguish themselves in other areas. When they were with the Committee, they often got exposure to the Subcommittee of differing points of view on legislation, and I suspect it will be no different today.
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H.R. 3179 would now criminalize any resistance to national security reference to administrative subpoenas, regardless of whether the demands of the subpoenas are unreasonable, unduly burdensome, harassing, or for any other purpose. The businessman or other target of the subpoena cannot even consult with his or her attorney or any court, or even the Attorney General of the United States, without subjecting himself or herself to criminal prosecution.
In addition to adding up to 5 years of imprisonment for wilful failure to cooperate, the bill also provides for court enforcement under pain of contempt of court. This latter part is similar to the enforcement of administrative subpoenas in 18 USC 3486 and perhaps could be justified, but I'm concerned that it would also criminalize what may be conscientious objectors by honest businesses or other organizations to administrative subpoenas.
The bill adds a so-called ''lone wolf'' or ''Moussaoui fix'' by allowing FISA to be applied to a single individual engaged in international terrorism or preparing to do so. This proposal would seem to undermine the premise of FISA, which allows extraordinary secretive powers to be exercised against foreigners if there is probable cause to believe they are agents of a foreign government organization.
If there is probable cause to believe an individual is engaging in international terrorism, or attempting to do so, why not investigate him or arrest him under the general criminal law provisions rather than dilute further the foundation of FISA? We have already diluted it enough in the USA PATRIOT Act by changing the standard from the primary purpose of being foreign intelligence gathering to that of merely being a ''significant'' purpose of the use of these extraordinary powers. If foreign intelligence gathering is not the primary reason, then we need to be worried about what the primary reason is before we dilute this provision further.
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Another provision of the bill would take a further bite out of court discretion and undermine the rights of accused persons by requiring the courts to exclude defendants from motions by prosecutors to redact information the prosecution does not wish to divulge based on alleged national security. Currently, there is nothing to prevent the prosecutors from moving the court to hear a motion to redact sensitive information ex parte and in camera, and nothing to stop the court from ordering the same. However, this bill doesn't even allow a judge to make a judgment as to whether it wishes to hear from the defense before deciding on the prosecutor's motion but requires the judge not to hear from the defense.
Moreover, it allows prosecutors to summarize orally his basis for excluding information, whereas currently the law requires a written statement to be provided by the court. It is not clear under this bill whether the defendant will even know that an ex parte hearing is occurring, or ever have a reviewable record of what was said or presented to the court.
Finally, the bill would allow secretive FISA evidence to be used in an ordinary immigration proceeding without even disclosing to the defendant that it is FISA-obtained evidence. These are extraordinary extensions of extraordinary, unchecked powers of the Executive branch, so I look forward to the testimony of our witnesses to learn what justifies such extraordinary requestive powers and what precautions have been made in considering such requests.
Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
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We also have the Ranking Member for the full Committee with us today. Mr. Conyers, did you have an opening statement you wanted to make?
Mr. CONYERS. Thank you, Mr. Chairman.
I'm going to pass on my opening statement, and our colleague from California said that she would reserve hers for later as well.
Mr. COBLE. I thank you, Mr. Conyers.
We have been joined by the gentlelady from California and the gentleman from Virginia.
We have with us today a distinguished panel, three distinguished witnesses. We are glad to have you with us. I would first like to introduce Mr. Daniel Bryant. Mr. Bryant was confirmed as Assistant Attorney General for Legal Policy by the U.S. Senate on October 3, 2003. In this capacity, Mr. Bryant is responsible for planning, developing and coordinating the implementation of major legal policy initiatives.
Prior to working in his current position, Mr. Bryant served as Senior Advisor to the Attorney General, and Assistant Attorney General for Legislative Affairs, and as majority chief counsel for this Subcommittee. Mr. Bryant received his bachelor and juris doctor degrees from the American University, and his masters from Oxford University. Mr. Bryant, it's good to have you back on the Hill.
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Our second witness today is Mr. Thomas J. Harrington. In December, 2002, Mr. Harrington was appointed Deputy Assistant Director for Counterterrorism at the FBI. In this capacity, Mr. Harrington conducts oversight of the Division, as well as managing the Foreign Terrorist Tracking Task Force, the Counterterrorist Operation Response Section, and the National Threat Center. Mr. Harrington received his appointment as a special agent in the FBI in 1984. He is an alumnus of the Mount St. Mary's College in Emmitsburg, MD, and the Stonier Graduate School of Banking at the University of Delaware. It's good to have you with us, Mr. Harrington, as well.
Our final witness today, as Mr. Scott previously indicated, is our former colleague from Georgia, Bob Barr. It's good to have you back on the Hill.
Mr. BARR. Thank you, Mr. Chairman.
Mr. COBLE. Mr. Barr represented the Seventh District of Georgia in the U.S. House from 1995 to 2003, serving as a senior Member of the Judiciary Committee, including service on our Subcommittee.
Prior to his election, Mr. Barr served as U.S. Attorney for the Northern District of Georgia. He is currently the 21st Century Liberties Chair for Freedom and Privacy and the American Conservative Union, and serves as a board member at the Patrick Henry Center, and is the honorary chair for Citizens United.
It's good to have all of you with us.
I say to the Members on the Subcommittee that I have been told that a vote will likely be scheduled on or about 11 o'clock. As each of you have been told, we like to apply the 5-minute rule here. We have read your testimony and we will reexamine it, but if you all with keep a sharp lookout on that panel that's before you, and when that amber light appears, that's your warning that the ice is becoming thin, and when the red light appears, that is your 5 minute limit.
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It's good to have you with us, Mr. Bryant. We will start with you.
STATEMENT OF THE HONORABLE DANIEL J. BRYANT, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY
Mr. BRYANT. Thank you, Mr. Chairman.
Good morning, Chairman Coble, Congressman Scott, distinguished Members of the Committee and Subcommittee. Thank you for the opportunity to appear before you today to discuss this important legislation.
Since September 11, 2001, the Department of Justice has made significant strides in the war on terrorism. We have charged at least 310 individuals with criminal offenses as a result of terrorism investigations, and 179 of these defendants have already been convicted. We have broken up terrorist cells in Buffalo, Charlotte, Portland, and northern Virginia. Due to interagency and international cooperation, nearly two-thirds of al-Qaeda's leadership, worldwide, has been captured or killed.
In the PATRIOT Act, Congress provided the Department with a number of important tools that have enhanced our ability to gather information so that we may detect and disrupt terrorist plots. The act brought down the wall that sharply limited information sharing between intelligence and law enforcement personnel, so that these officials can better connect the dots and prevent future terrorist acts.
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But while Congress and the Administration working together have markedly improved the Department's capacity to gather and analyze the intelligence necessary to prevent terrorist attacks, there is still more that needs to be done. This is why I would like to thank Chairman Sensenbrenner and Chairman Goss for their leadership in introducing this bill.
The Department strongly supports this bill, which contains a number of significant reforms that would assist the Department's efforts to collect intelligence keyed to disrupting terrorist plots.
To begin with, the bill would amend the Foreign Intelligence Surveillance Act to allow for surveillance of so-called ''lone wolf'' international terrorists. While the current definition of ''agent of a foreign power'' found in FISA includes individuals with ties to groups that engage in international terrorism, it does not reach unaffiliated individuals who engage in international terrorism.
Section 4 of the bill would plug this dangerous gap in FISA's coverage by expanding the definition of ''agent of a foreign power'' to include a non-United States person who is engaged in international terrorism, or preparing to engage in international terrorism, even if he or she is not known to be affiliated with an international terrorist group. This provision would strengthen our ability to protect the American people against terrorism.
A single foreign terrorist with a chemical, biological or radiological weapon could inflict catastrophic damage on this country. Consequently, there is no reason why the Department should not be able to conduct FISA surveillance only of foreign terrorists whom we know to be affiliated with international terrorist groups.
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The bill also includes two important provisions related to the use of National Security Letters. NSLs are used by the FBI to obtain from specified third parties discreet types of information, such as communications records, financial records and credit reports that are relevant to authorized international terrorism or espionage investigations.
In order to safeguard the integrity of these investigations in which NSLs are used, the NSL statutes prohibit persons from disclosing that they have received these requests, but these same statutes contain no explicit penalty for persons who unlawfully disclose that they received an NSL. Section 2 would remedy this defect. The bill further would specify procedures for the Attorney General to seek judicial enforcement of NSLs.
The bill also includes two common sense reforms that would better allow the Department to protect classified information in criminal trials and to safeguard sensitive intelligence investigations in immigration proceedings. First, section 5 of the bill would amend the Classified Information Procedures Act, better known as CIPA, to improve the Department's ability to protect classified information during the course of a criminal trial. Currently under CIPA, district courts have discretion over whether to permit the Government to make a request to protect classified information during the discovery phase of a criminal trial, ex parte, and in camera.
This is problematic, because in cases where the Government is unable to make a request to withhold classified information ex parte and in camera, prosecutors risk disclosing sensitive national security information simply by explaining in open court why the classified information in question should be protected. Section 5 of H.R. 3179 would solve this dilemma by allowing prosecutors to make such a request ex parte and in camera.
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Wrapping up, Mr. Chairman, we believe this bill contains a series of sensible reforms that would enhance the Department's ability to gather intelligence necessary for preventing terrorism.
Thank you for holding this hearing, and thank you for the invitation to be with you today.
[The prepared statement of Mr. Bryant follows:]
PREPARED STATEMENT OF DANIEL J. BRYANT
Good morning, Mr. Chairman and distinguished members of the Subcommittee. Thank you for the opportunity to appear before you today to discuss H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003.
Since the brutal terrorist attacks of September 11, 2001, the Department of Justice has made significant strides in the war against terrorism. We have prosecuted many cases, among them being 310 individuals charged with criminal offenses as a result of terrorism investigations. 179 of these defendants already have been convicted. We have broken up terrorist cells in Buffalo, Charlotte, Portland, and northern Virginia. Due to interagency and international cooperation, nearly two-thirds of Al Qaeda's leadership worldwide has been captured or killed. And we are steadily dismantling the terrorists' financial network: around the world, $136 million in assets have been frozen in 660 accounts.
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These successes would not have been possible without the support of Congress in general and this Subcommittee in particular. On behalf of the Department, I would like to thank you for providing us with the tools and resources that have made it possible for the Department to effectively wage the war against terrorism.
As recent events in Madrid and Saudi Arabia remind us, however, our fight against terrorism is far from over. Our nation's terrorist enemies remain determined to visit death and destruction upon the United States and its allies, and we must maintain our vigilance and resolve in the face of this continuing threat. It is for this reason that the Department of Justice's top priority remains the prevention and disruption of terrorist attacks before they occur. Rather than waiting for terrorists to strike and then prosecuting those terrorists for their crimes, the Department seeks to identify and apprehend terrorists before they are able to carry out their nefarious plans.
The success of this prevention strategy depends, however, upon the Department's capacity to detect terrorist plots before they are executed. And the key to detecting such plots in a timely manner is the acquisition of information. Simply put, our ability to prevent terrorism is directly correlated with the quantity and quality of intelligence we are able to obtain and analyze.
Following the terrorist attacks of September 11, Congress provided the Department in the USA PATRIOT Act with a number of important tools that have enhanced our ability to gather information so that we may detect and disrupt terrorist plots. To give just one example, before the USA PATRIOT Act, law enforcement agents possessed the authority to conduct electronic surveillance—by petitioning a court for a wiretap order—in the investigation of many ordinary, non-terrorism crimes, such as drug crimes, mail fraud, and passport fraud. Investigators, however, did not possess that same authority when investigating many crimes that terrorists are likely to commit, such as chemical weapons offenses, the use of weapons of mass destruction, and violent acts of terrorism transcending national borders. This anomaly was corrected by section 201 of the PATRIOT Act, which now enables law enforcement to conduct electronic surveillance when investigating the full-range of terrorism crimes.
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But while Congress and the Administration working together have made significant strides in improving the Department's capacity to gather the intelligence necessary to prevent terrorist attacks, there is still more that needs to be done. This is why I would like to thank Chairman Sensenbrenner and Chairman Goss for their leadership in introducing H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003, and to thank this Subcommittee for holding a hearing on this important piece of legislation. The Department of Justice strongly supports H.R. 3179. The bill contains a number of significant reforms that would assist the Department's efforts to collect intelligence key to disrupting terrorist plots and better allow the Department to protect that information in criminal trials and immigration proceedings. In my testimony today, I will briefly review the five substantive provisions contained in H.R. 3179 and explain why the Department believes that each one of them would assist our efforts in the war against terrorism.
To begin with, H.R. 3179 would amend the Foreign Intelligence Surveillance Act to allow for surveillance of so-called ''lone wolf'' international terrorists. Currently, the definition of ''agent of a foreign power'' found in FISA includes individuals with ties to groups that engage in international terrorism. It does not, however, reach unaffiliated individuals who engage in international terrorism. As a result, investigations of ''lone wolf'' terrorists are currently not authorized under FISA. Rather, such investigations must proceed under the stricter standards and shorter time periods for investigating ordinary crimes set forth in Title III of the Omnibus Crime Control and Safe Streets Act of 1968, potentially resulting in unnecessary and dangerous delays and greater administrative burdens.
Section 4 of H.R. 3179 would plug this dangerous gap in FISA's coverage by expanding the definition of ''agent of a foreign power'' to include a non-United States person who is engaged in international terrorism or preparing to engage in international terrorism, even if he or she is not known to be affiliated with an international terrorist group.
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The Department believes that section 4 of H.R. 3179 would strengthen our ability to protect the American people against terrorism. A single foreign terrorist with a chemical, biological, or radiological weapon could inflict catastrophic damage on this country. Consequently, there is no reason why the Department should be able to conduct FISA surveillance only of foreign terrorists whom we know to be affiliated with international terrorist groups. In some cases, a foreign terrorist may, in fact, be a member of an international terrorist group, but the Department may not be able to establish this fact. In other cases, a foreign terrorist may be a genuine lone wolf. In either of these scenarios, however, it is vital that the Department be able to conduct the appropriate surveillance of such terrorists under FISA so that we are able to effectively and efficiently gather the information necessary to prevent these terrorists from endangering the lives of the American people.
Expanding FISA to reach an individual foreign terrorist is a modest but important expansion of the statute. To be sure, under current law, the Department must show under FISA that a foreign terrorist is a member of an international terrorist group. The House Committee Report on FISA, however, suggested that a ''group'' of terrorists covered by current law might be as small as two or three persons, and the interests that courts have found to support the constitutionality of FISA are unlikely to differ appreciably between a case involving a terrorist group of two or three persons and a case involving a single terrorist. In addition, it is important to stress that this proposal would not change the standard for conducting surveillance of any United States person but rather would apply only to foreign terrorists.
The Senate has already acted in a strong bipartisan fashion to amend FISA to cover lone wolf terrorists. Section 4 of H.R. 3179 was included in S. 113, which passed the Senate on May 8, 2003, by a vote of 90 to 4. The Department urges the House of Representatives to follow suit and also pass this important proposal in order to plug this dangerous gap in the scope of FISA's coverage to cover ''lone wolf'' terrorists.
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H.R. 3179 also includes two important provisions related to the use of national security letter (NSLs). NSLs are used by the FBI to obtain relevant information from specified third-parties in authorized international terrorism or espionage investigations. NSLs are similar to administrative subpoenas but narrower in scope. While administrative subpoenas can be used to collect a wide array of information, NSLs apply more narrowly to telephone and electronic communication transactional records, financial records from financial institutions, and consumer information from consumer reporting agencies, as well as certain financial, consumer, and travel records for certain government employees who have access to classified information.
In order to safeguard the integrity of the sensitive terrorism and espionage investigations in which NSLs are used, the NSL statutes generally prohibit persons from disclosing that they received these requests for information. See, e.g., 12 U.S.C. §3414(a)(3); 12 U.S.C. §3414(a)(5)(D); 15 U.S.C. §1681u(d); 15 U.S.C. §1681v(c); 18 U.S.C. §2709(c); 50 U.S.C. §436(b). But these same statutes contain no explicit penalty for persons who unlawfully disclose that they have received an NSL. Section 2 of H.R. 3179 would remedy this defect by creating a new statutory provision imposing criminal liability on those who knowingly violate NSL non-disclosure requirements. This new offense would be a misdemeanor punishable by up to a year of imprisonment, but would carry a stiffer penalty of up to five years of imprisonment if the unlawful disclosure was committed with the intent to obstruct an investigation or judicial proceeding.
Oftentimes, the premature disclosure of an ongoing terrorism investigation can lead to a host of negative repercussions, including the destruction of evidence, the flight of suspected terrorists, and the frustration of efforts to identify additional terrorist conspirators. For these reasons, the FBI has forgone using NSLs in some investigations for fear that the recipients of those NSLs would compromise an investigation by disclosing the fact that they had been sent an NSL. To reduce these fears and thus allow for the gathering of additional important information in terrorism investigations, the Department supports the adoption of the appropriate criminal penalties set forth in H.R. 3179 to deter the recipients of NSLs from violating applicable nondisclosure requirements as well as the heightened penalties set forth in the legislation for cases in which disclosures are actually intended to obstruct an ongoing investigation.
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In addition to setting forth an explicit criminal penalty for those violating NSL nondisclosure requirements, H.R. 3179 would also specify procedures for the Attorney General to seek judicial enforcement of NSLs. The NSL statutes currently make compliance with an FBI request for information mandatory. See, e.g., 12 U.S.C. §3414(a)(5)(A); 15 U.S.C. §1681u(a)-(b); 15 U.S.C. §1681v(c); 18 U.S.C. §2709(a); 50 U.S.C. §436(c). These statutes, however, do not specify any procedures for judicial enforcement if the recipient of an NSL refuses to comply with the FBI's request. Section 3 of H.R. 3179 would make explicit what Congress indicated implicitly by making compliance with NSLs mandatory: the Attorney General may seek judicial enforcement in cases where the recipient of an NSL refuses to comply with the FBI's request for information. The judicial enforcement provision contained in H.R. 3179 is similar to the existing judicial enforcement provision for administrative subpoenas under 18 U.S.C. §3486(c) and would help the Department to quickly and discretely obtain vital information in terrorism investigations.
H.R. 3179 also includes two common-sense reforms that would better allow the Department to protect classified information in criminal trials and to safeguard sensitive intelligence investigations in immigration proceedings. First, section 5 of the bill would amend the Classified Information Procedures Act (CIPA) to improve the Department's ability to protect classified information during the course of a criminal trial. Under section 4 of CIPA, a district court, upon the government's request, may authorize the United States to delete specified items of classified information from documents to be made available to a criminal defendant during discovery, to substitute a summary of the information for such classified documents, or to submit a statement admitting relevant facts that the classified information would tend to prove, so long as prosecutors are able to make a sufficient showing, such as that the documents are not discoverable or that the defendant would not be disadvantaged by the substitution of a summary of the information for the classified documents themselves. Currently, however, district courts have discretion over whether to permit the government to make such a request ex parte and in camera.
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This is problematic because in cases where the government is unable to make a request to withhold classified information ex parte and in camera, prosecutors risk disclosing sensitive national-security information simply by explaining in open court why the classified information in question should be protected. Section 5 of H.R. 3179 would solve this dilemma by mandating that prosecutors be able to make a request ex parte and in camera to delete specified items of classified information from documents or to utilize the other alternatives for protecting classified information set forth in section 4 of CIPA. This provision would ensure that the Department is able to take appropriate steps to safeguard classified information in criminal proceedings without risking the disclosure of the very secrets that we are seeking to protect. It would also allow the Department to make a request to protect classified information orally as well as in writing.
In addition to understanding what this provision would accomplish, it is equally important to understand what this provision would not accomplish. Specifically, it would not affect in any way whatsoever the showing that the United States is required to make under section 4 of CIPA to obtain judicial authorization to withhold classified information from criminal defendants or to take other steps to safeguard classified information. Simply put, the assertion by some that H.R. 3179 would require a federal judge to permit the United States to turn over to a criminal defendant only a summary of evidence rather than classified documents themselves is demonstrably false. Rather, the bill would only allow the United States to make such a request ex parte and in camera in order to ensure that such information is not disclosed as part of the process of protecting it.
Finally, H.R. 3179 would eliminate that requirement that the United States notify aliens whenever the government intends to use evidence obtained through FISA in immigration proceedings. Current law mandates that the government provide notice to an ''aggrieved person'' if information obtained through FISA electronic surveillance, physical searches, or pen registers will be used in any federal proceeding. See 50 U.S.C. §1806(c), 1825(d), & 1845(c). In 1996, Congress carved out an exception to this requirement for alien terrorist removal proceedings, see 8 U.S.C. §1534(e), but all other immigration proceedings remain subject to this notification requirement.
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Unfortunately, however, this mandate that the government notify an alien that it is using information acquired through FISA surveillance in an immigration proceeding may jeopardize in certain situations sensitive ongoing investigations and thus risk undermining national security. As a result, the government is sometimes faced with the Hobson's choice of not using this information in immigration proceedings, and possibly permitting dangerous aliens to remain in the country, or using the information and undermining its surveillance efforts. When faced with this difficult choice, the United States has decided against using FISA information in a number of instances in an effort to preserve the integrity of ongoing investigations.
Section 6 of H.R. 3179, however, would solve this dilemma by expanding the existing notification exception for alien terrorist removal proceedings to all immigration proceedings. Significantly, the government still would be obliged to disclose to aliens any information it intends to use in immigration proceedings if such disclosure is otherwise required by law. Under H.R. 3179, the government simply would not have to reveal the fact that the information in question was obtained through FISA. The Department supports this provision of H.R. 3179 because it would allow the government to use intelligence in immigration proceedings to safeguard the American people from dangerous aliens without jeopardizing sensitive ongoing investigations.
In conclusion, I would like to thank the Subcommittee again for holding today's hearing on such an important topic. H.R. 3179 contains a series of sensible reforms that would enhance the Department's ability to gather intelligence necessary for preventing terrorism and to protect the integrity of sensitive intelligence investigations. The Department would be happy to work with the Congress in the weeks and months to come on this vital piece of legislation. Thank you once again for allowing me to appear before you today, and I look forward to the opportunity to respond to any questions that you might have.
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Mr. COBLE. Thank you, Mr. Bryant.
Mr. Harrington.
STATEMENT OF THOMAS J. HARRINGTON, DEPUTY ASSISTANT DIRECTOR, COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATION
Mr. HARRINGTON. Good morning, Mr. Chairman, and Members of the Subcommittee. Thank you for the opportunity to appear before you this morning to discuss House bill 3179, the ''Anti-Terrorism Intelligence Tools Improvement Act of 2003.''
As Mr. Bryant has just explained, the recent successes of the FBI and the Department of Justice as a whole would not have been possible without the support of the Subcommittee and the passage of the USA PATRIOT Act, which provided a number of important tools to enhance our ability to gather information to assist us in detecting, disrupting and preventing terrorist attacks.
Since 9/11, the primary mission of the FBI has been focused on the prevention of future attacks on the U.S. homeland. The FBI has spent the past two-and-a-half years transforming and realigning its resources to meet the threats of the post-September 11th environment. Director Muller has rebalanced our resources among the counterterrorism, intelligence, counterintelligence, cyber and criminal programs. This transformation has been significantly enhanced by the enactment of the USA PATRIOT Act, which has facilitated increased information sharing between the intelligence and law enforcement communities, both internationally and domestically. H.R. 3179, the bill which has brought us here today, contains several significant reforms that will assist the FBI in our efforts to collect the necessary intelligence and information to identify and disrupt future terrorist plots.
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Specifically, H.R. 3179 includes two important provisions related to the use of National Security Letters, or NSLs. NSLs are administrative subpoenas that can be used to obtain several types of records related to electronic communications, specifically telephone subscriber information, local and long distance toll billing records, and electronic communication transactional records; financial records from banks and other financial institutions; and consumer reporting records, such as consumer identifying information and the identity of financial institutions from credit bureaus. National Security Letters generally prohibit the recipient of an NSL from disclosing the fact that they have received a request for this information. Section 2 of H.R. 3179 provides for a penalty for persons who knowingly disclose the fact that they received these NSLs.
This penalty provision is important to the FBI, as critical terrorism investigations can be compromised through, for example, destruction of crucial evidence, flight of the suspected terrorist out of the country, and frustrate efforts to identify additional associates or cell members of the suspected terrorist group when a request for information is disclosed.
H.R. 3179 also provides a provision for judicial enforcement if a recipient of a National Security Letter does not comply with the mandatory request for information. The judicial enforcement provision of section 3 of the bill is similar to those already existing for administrative subpoenas and would assist the FBI in maintaining information critical to terrorism investigations.
An example of where this provision would have been helpful is a case where during an investigation into international terrorist activities analysis revealed that several subjects were using a third party Internet service provider as a potential means of communication. NSLs served on the third party service revealed that an associate of the subjects registered for the service using a free, website e-mail service. The NSLs were served on the web-based e-mail service in order to obtain electronic transactional records. The web-based e-mail service has yet to provide the records associated with this request. A judicia enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum for quick resolution of this issue and allow the investigation to move forward more expeditiously.
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Thank you for allowing me to appear here this morning to discuss this important act. It contains reforms which the FBI believes are necessary to assist us in gathering the intelligence we will need in the future to prevent terrorist attacks.
I would be happy to answer any questions at the appropriate time.
[The prepared statement of Mr. Harrington follows:]
PREPARED STATEMENT OF THOMAS J. HARRINGTON
Good morning Mr. Chairman and members of the Subcommittee. Thank you for the opportunity to appear before you this morning to discuss House Bill 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003.
As Mr. Bryant has aptly explained, the recent successes of the Federal Bureau of Investigation, and the Department of Justice as a whole, would not have been possible without the support of this subcommittee and the passage of the USA PATRIOT Act (USPA) which provided a number of important tools to enhance our ability to gather information to assist us in detecting, disrupting and preventing terrorist attacks.
Since 9/11, the main mission of the FBI has been focused on the prevention of future terrorist attacks on the homeland. The FBI has spent the past two and a half years transforming and realigning its resources to meet the threats of the post-September 11th environment. Director Mueller has re-balanced our resources among the counterterrorism, intelligence, counterintelligence, cyber and criminal programs. This transformation has been significantly enhanced by the enactment of the USA PATRIOT Act, which has facilitated increased information sharing between the intelligence and law enforcement communities, both internationally and domestically. H.R. 3179, the bill which has brought us here today, contains several significant reforms that will assist the FBI in our efforts to collect the necessary intelligence and information to identify and disrupt future terrorist plots.
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Specifically, H.R. 3179 includes two important provisions related to the use of National Security Letters, or NSLs. NSLs are administrative subpoenas that can be used to obtain several types of records related to electronic communications (telephone subscriber information, local and long distance toll billing records, and electronic communication transactional records); financial records (from banks and other financial institutions) and consumer reporting records (such as consumer identifying information and the identity of financial institutions from credit bureaus). National Security Letters generally prohibit the recipient of an NSL from disclosing the fact that they have received a request for information. Section 2 of H.R. 3179 provides for a penalty for persons who knowingly disclose the fact that they received an NSL.
This penalty provision is important to the FBI as critical terrorism investigations can be compromised through, for example, destruction of crucial evidence, flight of the suspected terrorist out of the country, and frustrate efforts to identify additional associates or cell members of the suspected terrorist, when a request for information is disclosed.
H.R. 3179 also provides for a procedure for judicial enforcement if a recipient of a National Security Letter does not comply with the mandatory request for information. The judicial enforcement provision in Section 3 of the bill is similar to those already existing for Administrative Subpoenas and would assist the FBI in obtaining information critical to terrorism investigations. An example of where this provision would have been helpful is a case where during an investigation into international terrorist activities, analysis revealed that several subjects were using a third party internet service as a potential means of communication. NSLs served on the third party service revealed that an associate of the subjects registered for the service using a free, web-based email service. NSLs were served on the web-based email service in order to obtain electronic transactional records. The web-based email service has not yet provided the records associated with the request. A judicial enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum to quickly resolve this issue and allow the investigation to move forward more expeditiously.
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Thank you again for allowing me to appear before you this morning to discuss the Anti-Terrorism Intelligence Tools Improvement Act of 2003. It contains advantageous reforms which the FBI believes are necessary to assist us in gathering the intelligence that will prevent future terrorist attacks. I would be happy to answer any questions you may have at this time.
Mr. COBLE. Thank you, Mr. Harrington.
Mr. Barr.
STATEMENT OF THE HONORABLE BOB BARR, 21ST CENTURY LIBERTIES CHAIR FOR FREEDOM AND PRIVACY, THE AMERICAN CONSERVATIVE UNION
Mr. BARR. Thank you, Mr. Chairman. It is a tremendous honor to appear before this very distinguished Subcommittee on which I had the honor of serving for many years during my service in the Congress of the United States. I appreciate the Chairman calling this hearing, and the Ranking Member lending his support to this hearing today as well.
I do hope that this will not be the end of the Subcommittee's or the Committee's deliberations on these important issues, but merely the start of a very long and searching comprehensive look at the PATRIOT Act, where we are with it, what it does, what fixes on the limitations or expansions might be necessary at some point, but that all of us resist the effort to rush into something such as what I worry the Congress may do in this particular case with H.R. 3179.
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Both the distinguished Chairman and the distinguished Assistant Attorney General used the word ''common sense'' in speaking of these proposals. What I would respectfully submit to the Subcommittee and to the Congress is that common sense really requires us, particularly those of us who consider ourselves good strong conservatives, Mr. Chairman, to not allow the Government to obtain more power based on generalized arguments such as those that have been put forward here or those that may appear on the surface to be very sound. But when you look below the surface, such as the so-called ''Moussaoui fix,'' which some of these ''lone wolf'' provisions are supposed to address, it really falls apart.
This piece of legislation is not a ''Moussaoui fix,'' so to speak. The problem with the Moussaoui investigation, as I know the Chairman and other Members are fully aware, had nothing to do with not having the power that the Government would obtain in H.R. 3179. It had to do with a misreading, a misinterpretation, of the existing FISA law.
I think there are some other instances as well, Mr. Chairman, where the arguments that the Government is putting forward to obtain these additional powers, which again I think, as conservatives, we ought to be very, very hesitant to grant the Government, without hearing from them, and common sense tells us this, without hearing from the Government very specific instances where the powers that they currently have, or had even prior to the USA PATRIOT Act's passage and signing into law in 2001, could not have been if used properly, and according to the proper criteria, could not have given them what they need.
Even if, in fact, at some point the Subcommittee recommends enactment and adoption by the House of H.R. 3179, I would certainly hope that the Subcommittee would require of the Government a much more specific rather than just generalized set of reasons why these provisions ought to be enacted.
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These provisions are not mere technical corrections, Mr. Chairman, as with much of the USA PATRIOT Act, which the Administration characterized as technical amendments or technical improvements. They were extremely substantive. In this case, for example, where we look at the so-called ''lone wolf'' provision, we find that this would reach very, very broadly and affect the fundamental underpinnings of the entire FISA structure that has been built up. By removing it from the nexus ''with a foreign power,'' you lose the entire underpinning and constitutional argument for allowing this exception to the fourth amendment requirements for specific probable cause before electronic surveillance and other types of secret monitoring can occur.
Again, Mr. Chairman, with regard to the ''lone wolf'' procedures, there has been no instance whatsoever in which the Department of Justice has come forward and explained why the provision is necessary to have, given the extensive power that the Government already has with traditional subpoenas, traditional title 3 taps, and a whole range of subpoena power and warrant power that the Government already has.
Even on the Senate side, with regard to FISA oversight just last year, I believe Senators Leahy, Grassley and Specter indicated that the Department of Justice, even at that time—and this provision has been sought by the Department of Justice for much longer than that—that the Department had laid out no cases in which existing powers were not sufficient to attack ''lone wolfs,'' and they could have gone after Moussaoui but for a misreading of the statute, not that they didn't have this power.
When one looks also, Mr. Chairman, at the expansion of the secret proceedings, this provision in sections 5 and 6 would set up basically a whole new category of evidence, sort of secret secret evidence, where the individual against whom that secret secret proceeding is being directed doesn't even know that there's a secret proceeding.
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I think we would, just as we did in the 107th Congress, Mr. Chairman, in which you and many of us joined in supporting legislation to place limits on secret proceedings, we ought to be looking very carefully at that, particularly as strong conservatives who care deeply about the Constitution, rather than going in the other direction and creating additional secret proceedings.
So I would very much respectfully urge this Subcommittee and, of course, the full Committee, to not pass this or recommend adoption of this legislation at this time. I think it's premature, Mr. Chairman, particularly in light of the lack of specific cases that the Justice Department has been unable to prosecute or investigate that they have come forward with.
[The prepared statement of Mr. Barr follows:]
PREPARED STATEMENT OF THE HONORABLE BOB BARR
Chairman Coble, Ranking Member Scott, and distinguished subcommittee members, thank you for inviting me to testify on H.R. 3179, the ''Anti-Terrorism Intelligence Tools Improvement Act of 2003,'' which expands federal secret surveillance powers under the USA PATRIOT Act.
Until January of 2003, I had the honor to serve with many of you as a United States Representative from Georgia. Previously, I served as the presidentially appointed United States Attorney for the Northern District of Georgia, as an official with the U.S. Central Intelligence Agency, and as an attorney in private practice. Currently again a practicing attorney, I now occupy the 21st Century Liberties Chair for Privacy and Freedom at the American Conservative Union (ACU) and in that capacity I am pleased to be speaking on behalf of the American Conservative Union today. I also consult on privacy matters for the American Civil Liberties Union.
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As a student and supporter of the Constitution and its component Bill of Rights, I will not concede that meeting this government's profound responsibility for national security entails sacrificing the Rights given us by God and guaranteed in that great document. Yet, unfortunately, the road down which our nation has been traveling these past two years, with the USA PATRIOT Act, is taking us in a direction in which our liberties are being diminished in that battle against terrorism.
Despite the broad concerns expressed by many grassroots conservative organizations, such as the American Conservative Union, Free Congress Foundation, and Eagle Forum—with whom I continue to work closely—the Administration has pressed on with a ill-considered proposal to prematurely make permanent all of the USA PATRIOT Act. I respectfully submit this would be a serious mistake. Along with many of you, I balked at making the PATRIOT Act's new powers permanent, insisting on a ''sunset clause'' that would allow Congress to review these new powers. Making those powers permanent now would take away any leverage Congress now has to secure cooperation from the Justice Department in its oversight efforts.
The Administration has also attempted to push forward, on a piecemeal basis, parts of the ''Son of PATRIOT'' proposal that surfaced last year. H.R. 3179 includes several of the provisions of the Justice Department's draft ''Son of PATRIOT'' bill,(see footnote 1) and the Administration is pushing other bills separately that include other provisions.(see footnote 2) Passing pieces of ''Son of PATRIOT'' this year would be a mistake.
The House Judiciary Committee has yet to convene a series of long-planned hearings to examine how the USA PATRIOT Act is being used. Are its provisions being used widely, in ordinary cases having nothing to do with terrorism? The Attorney General has said he hasn't used some powers. If so, are such powers really needed? These are just a few of the questions that the Justice Department has not adequately answered. While I have faith the Chairman will hold these promised hearings, these questions should be examined before the Committee considers new legislation.
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The question before us today is whether the USA PATRIOT Act should be expanded this year. In short, the answer is NO. Put simply, Congress should not provide more powers to an ever-growing federal government without carefully and exhaustively reviewing how it is using the powers it already has.
The Fourth Amendment is clear: ''The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized'' (emphasis added).
Note carefully—''people,'' not ''citizens.'' The Founding Fathers meant what they wrote. Conservatives do not believe that, more than two hundred years later, we should creatively ''interpret'' the Bill of Rights when the words don't suit our transitory notions of what is convenient. While the Constitution does reserve some rights exclusively to American citizens, the Founders protected certain fundamental rights for all people, including the right to due process of law and the right to be free from searches—a word broad enough to include the 18th and 19th Century physical variety, the 20th Century telephone variety, and the 21st Century Internet variety—not based on probable cause.
At bottom, the problem with the surveillance powers of the USA PATRIOT Act is that they play fast and loose with clear constitutional commands. Unfortunately, H.R. 3179 takes certain provisions of the USA PATRIOT Act that weaken the Fourth Amendment and other fundamental rights and makes them worse.
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CREATING NEW CRIMINAL PENALTIES FOR SECRET FBI LETTER DEMANDS FOR CONFIDENTIAL RECORDS
Sections 2 and 3 of H.R. 3179 add new criminal penalties to enforce a far-reaching and troubling power of the FBI—the power to demand, without a court order, that a business or individual release a broad range of highly confidential records. The records demands are secret and the recipient is barred from informing anyone that the demand has been made or that records have been turned over. Section 505 of the USA PATRIOT Act amended the so-called ''national security letter'' power to eliminate the need to assert any individual suspicion (much less probable cause) before issuing such a letter. Section 2 of the bill adds a new crime to enforce the gag provisions. Section 3 allows the FBI to invoke a court's aid in enforcing the letter demands—and punish any failure to comply as contempt.
The records subject to these FBI letters include the customer records of ''communications service providers''—such as an Internet Service Provider, telephone company, or (according to the FBI) the records of your use of a computer terminal at the local library or Internet cafe. They also include credit reports and the customer records of ''financial institutions.'' The term ''financial institutions'' was expanded and redefined by last year's intelligence authorization act to include a host of large and small businesses, including casinos, the local jewelry store, post office, car dealership and pawnbroker's store; as well as any other business the Treasury Secretary sees fit to designate.(see footnote 3)
The government does not need these records powers, also known as ''administrative subpoenas'' or ''national security letters,'' to obtain records of suspected terrorists. An ordinary search warrant or grand jury subpoena can be used in the investigation of any crime, including one alleging terrorism. National security letters are used in potentially wide-ranging ''foreign intelligence'' investigations. These records demands can be used without even the minimal oversight of the secret Foreign Intelligence Surveillance Court or any other court.
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There is no right to challenge the scope of a national security letter, and—because it was repealed by the USA PATRIOT Act—no standard for protecting individual privacy. Compliance with a national security letter—and compliance with the gag provision that muzzles a recipient from protesting such a letter—is mandatory under the law, although no specific penalties are listed.
Specific penalties aren't needed for national security letters to serve their intended function of giving cover to businesses and or individuals to cooperate with wide-ranging government intelligence investigations. The recipient can point to a legally-binding national security letter in response to any complaints from customers about turning over their confidential information to the government.
Without specific penalties, the business or individual who receives a letter still has some, albeit very limited, leverage to try to persuade the government to narrow an exceedingly broad or intrusive request. Adding criminal penalties to such letters for the first time—and to the gag provision that prevents a recipient from complaining about them—tips the balance decisively in the government's favor and away from the business or individual whose records are being demanded.
Before Congress considers adding criminal penalties to this troubling power—which has already been expanded twice since 9/11—it should hold hearings to find out much more about how these letters work in practice. The government has refused to release even the most general information about national security letters—including the type of records being monitored and whether the government is seeking to obtain entire databases.
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At a minimum, Congress should make explicit the right of a recipient to challenge a national security letter—just as a recipient can challenge a grand jury subpoena. Congress should require some individual suspicion before compliance with a national security letter can be ordered by a court. Finally, the recipient should be able to challenge the gag provision in court, and should be allowed to contact an attorney, congressional committee, or the Justice Department Inspector General without fear of being prosecuted for violating the gag provision.
ALLOWING SECRET GOVERNMENT EAVESDROPPING WITHOUT ANY CONNECTION TO FOREIGN GOVERNMENT OR TERRORIST GROUP
Section 4 of H.R. 3179, the so-called ''lone wolf'' provision, would eliminate the ''foreign power'' standard for one type of surveillance: non-citizens suspected of involvement in terrorism. The ''foreign power'' standard serves as a vital protection against overzealous use of the government's ''national security'' power to wiretap, and otherwise secretly monitor, private communications outside the standards of criminal investigations.
As I discussed earlier, the Fourth Amendment is clear—no searches without a warrant based on probable cause. Yet despite that clear command, the Executive Branch has long claimed an unwritten ''national security'' exception to the Fourth Amendment that allows secret domestic surveillance for foreign intelligence and counterintelligence outside criminal probable cause standards.
The carefully-crafted, compromise law that keeps this exception within reasonable bounds is the Foreign Intelligence Surveillance Act (FISA). The law permits secret surveillance outside normal criminal bounds when approved by the Foreign Intelligence Surveillance Court. The government can appeal any denials (which are exceedingly rare) to another secret court—the Foreign Intelligence Surveillance Court of Review.
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One of the most important limitations on FISA surveillance—the requirement that FISA surveillance is only allowed when foreign intelligence is ''the purpose'' of the surveillance—has already been substantially weakened by the USA PATRIOT Act, which allows such surveillance when foreign intelligence is merely ''a significant purpose.''
The Foreign Intelligence Surveillance Court of Review, in its first-ever case, approved this change against a constitutional challenge mainly because the ''foreign power'' standard remains.(see footnote 4) Although FISA surveillance may now be used even where the government's main purpose is other than foreign intelligence, the government must still show probable cause that the target of FISA surveillance is a ''foreign power or agent of a foreign power.'' The Court of Review, in line with other courts that have looked at the issue, made clear that the required connection to a ''foreign power''—and therefore to the President's national security powers—is a major reason why a separate, secret scheme of surveillance—outside the normal bounds of criminal investigation—is constitutional.
The so-called ''lone wolf'' provision eliminates this ''foreign power'' standard for wiretapping and other secret surveillance for non-citizens suspected of involvement in international terrorism. Notwithstanding its limitation to non-citizens, the provision violates the Fourth Amendment because the Fourth Amendment protects ''people,'' not citizens. Certainly we can expect that the next request will be to expand this power to citizens, as originally proposed in ''Son of PATRIOT.'' Ultimately, this provision sets a dangerous precedent for all Americans, because it severs secret national security surveillance from its constitutional moorings—the President's constitutional responsibility to defend the nation against foreign powers.
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Supporters wrongly call this unconstitutional, unwise and unprecedented provision the ''Moussaoui fix.'' They say it is needed because the government failed to seek a FISA warrant, before 9/11, to search suspected hijacker Zacarias Moussaoui and that, with this ''lone wolf'' provision, they might have done so.
In fact, this provision is not the ''Moussaoui fix.'' FBI agents did not seek a FISA warrant because—even though Moussaoui was connected to a foreign rebel group—national security bureaucrats said FISA could not be used because the rebel group was not a ''recognized'' foreign power. They were wrong. Congress' own investigation of the pre-9/11 intelligence problems found those government officials ''misunderstood the legal standard for obtaining an order under FISA.'' The ''foreign power'' standard requires only that the government show probable cause that the person is an agent for some foreign government, foreign political faction or organization, or group involved in international terrorism—which can be as few as two individuals. A group involved in international terrorism need not be formally designated as a foreign terrorist organization (as these officials mistakenly believed) to be a ''foreign power'' under FISA. Whether the foreign power is ''recognized'' is legally both irrelevant and meaningless.
Finally, the investigation found that FBI agents were so quick to leap to FISA in the case of Zacarias Moussaoui, they did not fully consider getting a plain vanilla criminal search warrant. Insofar as these problems involved a misunderstanding of existing federal power, not a lack of power, Congress' investigation recommended greater legal training for national security officials.(see footnote 5)
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How, then, should we monitor terrorists who may be acting alone? The answer is simple—with ordinary search warrants and wiretaps, based on probable cause. Criminal warrants and wiretaps have long been available for federal crimes, including terrorism. Rather than distorting foreign intelligence surveillance, the government should use the tried-and-true methods of regular criminal warrants and court orders.
Indeed, while this proposal has been pending in Congress for more than two years, the Justice Department has been unable to explain why criminal powers are not sufficient to deal with individual terrorists. In a February 2003 report on FISA oversight, Senators Leahy, Grassley and Specter said that the Justice Department was unable to provide even a single case, even in a classified setting, that explained why the ''lone wolf'' provision was necessary. As they said, ''In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.''
If Congress is determined to go forward with an unnecessary ''lone wolf'' provision, it should at least adopt a provision that gives the Foreign Intelligence Surveillance Court some discretion to deny a wiretap request where the evidence clearly shows there is no connection to any foreign threat. For example, as Senator Feinstein has proposed, Congress could establish a presumption that a non-citizen is connected to a foreign power based on evidence of involvement in international terrorism.
EXPANDING THE POWER TO USE SECRET EVIDENCE AND SECRET SURVEILLANCE INFORMATION IN CRIMINAL AND IMMIGRATION CASES
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Finally, sections 5 and 6 of H.R. 3179 also tip the balance towards the government, and away from the individual, when the government seeks to use secret evidence—classified information—against an individual in legal proceedings without revealing the information to the accused.
Section 5 takes away some of the judge's discretion in handling classified information in criminal proceedings under the Classified Information Procedures Act (CIPA). It requires a federal judge to hear a government request to delete classified information from documents made available to the defendant during discovery proceedings in camera and ex parte—that is, in secret without hearing from the other side. It also allows the government to make this request orally, rather than in writing. While it still permits the judge to deny the government request to delete classified information, or to order a more complete summary, it nevertheless represents an incremental shift of power away from the court and towards the prosecutor. Congress should hear much more from both prosecutors and defense lawyers with experience in this area before making such a change, in order to determine whether the effect may be much larger than intended.
Section 6 of the bill is a major shift in favor of greater use of secret information in immigration proceedings. Section 6 amends the Foreign Intelligence Surveillance Act (FISA) to permit the government secretly to use FISA-derived information in immigration cases. Section 6 would amend FISA to eliminate very important safeguards that are designed to ensure that when secret foreign intelligence wiretaps and other surveillance are used to put a person's liberty in jeopardy, he has notice and an opportunity to challenge whether the surveillance was lawful. Under this change, however, a person could face lengthy detention, and ultimately deportation, without ever knowing about the government's use of secret surveillance information or having the ability to challenge it.
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Mr. Chairman, this issue is, as many of you know, dear to my heart. I firmly believe it is simply un-American for our government to withhold critical information from an individual whose liberty is in jeopardy. Star chamber proceedings have been the hallmark of totalitarian governments, not our own. As a result, when I served in this illustrious body and on this Committee, I worked across party lines to author the ''Secret Evidence Repeal Act'' (H.R. 1266 in the 107th Congress), which would have ensured that individuals in immigration proceedings had the same access to a summary of classified information as those in criminal proceedings. My bill attracted the support of over 100 cosponsors and after two hearings passed this Committee with a vote of 26–2 in favor of my substitute.(see footnote 6) Unfortunately, however, the Secret Evidence Repeal Act was not passed by the full House and is not, as a result, the law of the land. While I am certainly gratified that President Bush has pledged publicly not to allow classified information in immigration proceedings, the government still claims the power to do so and a future Administration is free to reverse that policy, as is this one.
The passage of section 6 of H.R. 3179 would seriously undermine this Committee's efforts to reform the use of classified information in immigration proceedings. Put simply, section 6 goes beyond allowing the use of secret evidence. It allows the secret use of secret surveillance information. Not only would the defendant have no right to see the classified information, derived from FISA surveillance, that is being used against him in the immigration case, he would not even have the right to be notified that such information was going to be used, and obviously would have no ability to challenge it.
Amending FISA to allow the secret use of such secret surveillance information in immigration cases is an idea that simply flies in the face of the House Judiciary Committee's commendable efforts to reform the use of classified information and end the use of secret evidence.
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There is also some dispute about whether the amendment would really affect only immigration proceedings, or would affect a wide range of civil proceedings, including asset forfeiture, tax, and regulatory proceedings. I understand the drafters intended to limit the amendment to immigration proceedings. However, even with a clarification, I caution you that allowing the secret use of secret surveillance in one type of civil case—in this case, immigration proceedings—can and will be used as a precedent when the Justice Department comes back to you and asks for this exception in other types of civil cases.
CONCLUSION
As a former CIA official and federal prosecutor, I witnessed first-hand how much of our national security apparatus—even our counter-terrorism and international intelligence work—is built on very basic policing methods. From your local grifters to the Bin Ladens of the world, bad guys are generally found and punished using a system that includes basic checks and balances on government power and which militates against dragnet investigative fishing expeditions.
In many other countries, it is neither acceptable nor lawful to reflect openly on and refine past action. In America, it is not only allowable, it is our obligation, to go back and reexamine the decisions made by the federal government during the panic of an event like September 11th.
Of course, a country suffering through the immediate fallout from the worst terrorist attack on American soil ever is going to make some mistakes. To err isn't just human, it's a direct result of representative democracy.
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Case in point: myself. I voted for the USA PATRIOT Act. I did so with the understanding the Justice Department would use it as a limited, if extraordinary power, needed to meet a specific, extraordinary threat. Little did I, or many of my colleagues, know it would shortly be used in contexts other than terrorism, and in conjunction with a wide array of other, new and privacy-invasive programs and activities.
According to a growing number of reports, as well as a GAO survey, the Justice Department is actively seeking to permit USA PATRIOT Act-aided investigations and prosecutions in cases wholly unrelated to national security, let alone terrorism.
This should not be allowed to continue. As my esteemed colleague in the House, former Speaker Newt Gingrich wrote recently, ''in no case should prosecutors of domestic crimes seek to use tools intended for national security purposes.'' When we voted for the bill, we did so only because we understood it to be essential to protect Americans from additional, impending terrorist attacks, not as tools to be employed in garden-variety domestic criminal investigations.
With conservatives expressing these serious doubts about the reach of the USA PATRIOT Act, it is time to go back and review the law, hold oversight hearings and consider corrections. It is certainly not the time to consider making it permanent or expanding it.
Conservative or liberal, Republican or Democrat, all Americans should stand behind the Constitution; for it is the one thing—when all is said and done—that will keep us a free people and a signal light of true liberty for the world. Thank you again for allowing me to testify.
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Mr. COBLE. Thank you, Mr. Barr, and thanks again to all the witnesses.
Gentlemen, we apply the 5-minute rule to ourselves as well, so when we question you, if you can limit your answers as succinctly as possible.
Mr. Bryant, under FISA, a specially designed court may issue an order authorizing electronic surveillance of a physical search upon probable cause that the target of the warrant is a foreign power or an agent of a foreign power. Mr. Barr claims that this bill would eliminate the probable cause requirement.
What do you say to that?
Mr. BRYANT. That would be an inaccurate characterization, Mr. Chairman, of the effect of this bill as it relates to the provision calling for amending FISA, so as to allow FISA to be used in connection with so-called ''lone wolf'' terrorists or terrorists for whom the affiliation with an international terrorist group is unknown.
The bill would in no way affect the current FISA standards in current law. That is to say, the probable cause required with respect to the identity of the subject being an international terrorist or a spy, a foreign power or an agent of a foreign power, is in no way changed by this law. So I think that would be my initial response, Mr. Chairman.
Mr. COBLE. Mr. Barr and I were talking prior to the hearing commenced, and we agreed that the PATRIOT Act is going to be sputtering around for a long time, as well it should. So with that in mind, Mr. Barr, let me put a question to you.
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In your testimony you clearly expressed concern that the Department of Justice may well abuse its authority. Senator Feinstein pointed out at a recent oversight hearing that the ACLU could not provide her with a single instance of abuse as far as PATRIOT Act provisions are concerned.
What do you say in response to that, or do you have specific evidence of abuses?
Mr. BARR. I think, Mr. Chairman, as the cases that are being investigated and prosecuted by the Federal Government under provisions of the PATRIOT Act start to now, after a couple of years working their way through our court system, start to manifest themselves publicly in hearings and court orders and so forth—there is a case that reaches from, I think, out of D.C. or Northern Virginia all the way down to Georgia, which has to do with the scope and applicability of nationwide subpoena power under the PATRIOT Act. That case is now moving forward and I think has established a pretty clear record of abuse in that area, the use of these expanded subpoena powers for fishing expeditions. So I think we're going to see more of that as these cases finally work their way through the system.
Of course, as the Chairman is well aware, one of the reasons why it's so difficult to answer that question is because the proceedings are secret, so we don't know when, for example, a FISA warrant is served on a repository of records, perhaps a pawn shop which engages in second amendment transactions, or a doctor's office. They are gagged and they are prevented from disclosing that, so we don't know how often these powers have been used or the extent to which they may have been abused.
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I think this also is a reason to conduct a great deal more oversight before we move to even seriously consider enactment of this and other similar legislation.
Mr. COBLE. Thank you, Mr. Barr.
Mr. Harrington, the bill before us amends the law to add enforcement mechanisms for compliance with National Security Letter requests and against illegal disclosure of such a request. Explain in a little more detail why we need to enforce these requests.
Mr. HARRINGTON. Well, as I stated a little bit earlier, there have been several rare occasions where we have not had compliance with an NSL, an administrative type subpoena. In those cases we have no recourse currently to have that resolved in a quick and timely fashion. It becomes a protracted negotiation between the Government and the recipient of the NSL.
Of course, the work that we do must be kept quiet and secret, as we try to investigate enterprises. These are cells, these are groups that work together. There are relationships that are formed. By doing it in a public venue, it would alert other subjects or other coconspirators and would, of course, be detrimental toward our investigation in the long run.
Mr. COBLE. Let me get one more question in before the red light comes to either of you.
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Do NSLs violate the fourth amendment because we don't inform the terrorist or the target that they're under investigation? Any of you.
Mr. BRYANT. I would be pleased to respond, Mr. Chairman. They don't. Terrorists have no such fourth amendment right. NSLs are akin to administrative subpoenas. As you know, Mr. Chairman, Federal law currently provides for 335 different administrative subpoenas to use in a wide variety of crimes, crimes that don't rise to the magnitude of terrorism or espionage. NSLs, National Security Letters, can only be used in connection with an investigation of an international terrorist or a spy. That's it.
Mr. COBLE. Mr. Barr, do you want equal time on that?
Keep in mind my red light is on, so make it quick, if you will.
Mr. BARR. Yes, sir, Mr. Chairman.
The problem is, of course, that the fourth amendment applies to persons, not just citizens, and it applies to people who have not yet been convicted. Certainly from the Government's standpoint, they may believe that these people are terrorists, but until they are proven as such through judicial proceedings, they are persons under the fourth amendment.
Insofar as provisions of the PATRIOT Act and provisions of H.R. 3179 would prevent them from knowing that there is evidence going to be used against them that has been gathered under FISA, as opposed to the standard applicable under the fourth amendment, yes, it would result in, could result in, a violation of their fourth amendment rights.
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Mr. COBLE. My time has expired. I recognize the gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman.
One hardly knows where to begin. I heard a colloquy about the terrorist. That assumes the terrorist was convicted or that he was being tried to determine whether he was a terrorist. A kind of important consideration, wouldn't you think? I mean, we're saying the terrorist and what his rights are, as if there had been a trial that determined he had committed acts of terror.
Anyway, let's begin with the recognition that right now FISA applies to immigration cases, right?
Mr. BRYANT. It applies—if I might, Mr. Chairman, it applies in investigations in connection with international terrorists and spies. Put differently, it applies in connection with investigations of foreign powers or agents of foreign powers. The FISA surveillance tools——
Mr. CONYERS. Yes or no?
Mr. BRYANT. Is the question does FISA apply in immigration proceedings?
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Mr. CONYERS. Yeah.
Mr. BRYANT. It is the case that——
Mr. CONYERS. Yes or no?
Mr. BRYANT. The law allows FISA-derived information to be used in immigration cases.
Mr. CONYERS. Mr. Harrington, FISA applies to immigration cases?
Mr. HARRINGTON. I would have to defer. I'm not an attorney.
Mr. CONYERS. Okay.
Mr. Barr, welcome to the Committee again. FISA applies to immigration cases?
Mr. BARR. It can apply to immigration cases.
Mr. CONYERS. And what this bill is doing is going beyond the present application of FISA to immigration cases, right, Mr. Bryant?
Mr. BRYANT. No, sir, that's not——
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Mr. CONYERS. It isn't going beyond?
Mr. BRYANT. No, sir. It does not affect, in any respect, the requirement——
Mr. CONYERS. Well, what does it do, then, if it's not going beyond the existing law?
Mr. BRYANT. It's improving existing law. I thought your question was, is it extending FISA in the immigration setting?
Mr. CONYERS. It's not going beyond the law; it's improving the law?
Mr. BRYANT. It's not increasing the application of FISA information in immigration——
Mr. CONYERS. And this isn't PATRIOT II. This is just enhancing PATRIOT I, right? Right?
Mr. BRYANT. This does not——
Mr. CONYERS. Yes or no.
Mr. BRYANT. No.
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Mr. CONYERS. Oh, it doesn't enhance PATRIOT I?
Mr. BRYANT. No. It is not specific to the PATRIOT Act, Mr. Conyers. These are additional provisions which speak to important counterterrorism tools.
Mr. CONYERS. It's not doing anything to the PATRIOT Act?
Mr. BRYANT. It is not——
Mr. CONYERS. Okay.
Mr. Barr, can you help us out here?
Mr. BARR. I certainly don't want to get crosswise with my friend and Assistant Attorney General, but I think that, very clearly, the intent of H.R. 3179 is to grant additional powers to those already granted under the PATRIOT Act, in the very same areas addressed by the PATRIOT Act.
Mr. CONYERS. Of course.
Now, since we're into this semi-denial mode, let me ask you about the PATRIOT Act II that's been widely known to have been drafted in the Department of Justice for months. Mr. Bryant?
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Mr. BRYANT. Yes, sir.
Mr. CONYERS. Yeah. What? What is the response?
Mr. BRYANT. I'm sorry. I didn't understand the question, Mr. Conyers.
Mr. CONYERS. I said what about the widely-known fact that PATRIOT II was being drafted in the Department of Justice for months?
Mr. BRYANT. We have not——
Mr. CONYERS. You don't know anything about it?
Mr. BRYANT. We have been working with Congress extensively over the last 2 years to——
Mr. CONYERS. Well, I'm in Congress.
Mr. BRYANT.—to provide additional——
Mr. CONYERS. They haven't been working with me.
Mr. BRYANT. We stand ready to, sir.
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Mr. CONYERS. Well, let me ask you this.
Good night, man. I'm spending a lot of time on ancient history. Everybody knows that in town. I mean, read the Washington Post. They have been drafting FISA, redrafting FISA, re-redrafting FISA.
Let me ask you this. Did you know that the PATRIOT bill that came out of this Committee was substituted by the Department that you work in the night before it went to Rules? Did you know that? You didn't know that, either?
Mr. BRYANT. No, sir.
Mr. CONYERS. And you worked in the Judiciary Committee.
Mr. BRYANT. Of course, we can't substitute legislation that this Committee——
Mr. CONYERS. Well, it happened. What do you mean you can't do it?
Mr. BRYANT. We don't have a vote on this Committee, sir.
Mr. CONYERS. Please help me control myself.
What do you mean you can't do it? You did it. The bill that we sent to the Rules Committee was replaced by another bill that nobody had seen. Was that at your request?
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Mr. BRYANT. The substitution?
Mr. CONYERS. Yes.
Mr. BRYANT. If the question is, did we support the substitution, then the answer is yes.
Mr. CONYERS. That's the question. Was it at your request?
Mr. BRYANT. Were we urging that the bill reported out of Committee be further improved? We were.
Mr. CONYERS. Right. So don't give me this business about you never can do this or—You're the one that did it.
Mr. COBLE. Mr. Conyers, your time has expired.
Mr. CONYERS. Okay.
Mr. COBLE. If you want to wrap up, Mr. Conyers——
Mr. CONYERS. No, no. I need another round.
Mr. COBLE. All right. Very well.
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The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Mr. Barr, welcome. We are very pleased to have your participation, as well as the representatives of the Justice Department.
Quite frankly, when we wrote the PATRIOT Act the first time, regardless of some view of the process, we gave it very intense scrutiny. There were a number of things requested by the Justice Department that we did not agree to and took off the list right away. Most everything else was very closely and carefully discussed and in some sense negotiated amongst Members of this Committee.
I think that the final product is a good product. The fact of the matter is, when you do something like this and you change things in a very sensitive area—and I'm sensitive to both civil liberty concerns and law enforcement concerns—you don't necessarily know the impact that you're going to get. So we added what I'm in favor of doing with more legislation, and that is sunset provisions on a great many of the provisions of the PATRIOT Act. A number of the other provisions are very much common sense, simply provisions to update things that were needed in the law, and I think that is the same approach that we should take to any new requests for changes in the law.
Mr. Barr, I'm wondering if that's your philosophy as well. In reviewing your statement, I notice that toward the end of page 1, you state, as I recall—you did, you voted for the PATRIOT Act—''with the understanding that the Justice Department would use it as a limited, if extraordinary power needed to meet a specific extraordinary threat.''
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Yet earlier in your statement, you say that the Attorney General has said he hasn't used some of the powers, which I am absolutely certain is true. This is a very lengthy piece of legislation and includes many, many provisions, some of which may not have been exercised, and quite frankly, if law enforcement doesn't need to exercise something, I don't think they should. You then question whether those powers were needed.
I'm just wondering, if the Attorney General has not, in fact, used the powers, is that good or bad that he hasn't used them?
Mr. BARR. Well, we don't know until we have more information. I think the gentleman's question goes to the heart of the need for additional oversight so that we can get answers to those questions, the answers which lie only in the breast of the Department of Justice.
I think it's important to recognize or to conclude that if, in fact, some of these extraordinary provisions which at the time the PATRIOT Act was submitted and defended by the Administration when it was brought up to the Hill were portrayed as absolutely essential to fight terrorism have not, in fact, been used, then I think there ought to be, particularly from a conservative standpoint, a presumption that they are not needed and that they ought to be taken from the Government and given back to the people, and at such time as the Government feels and can demonstrate the need for those powers, to then at that time come back to the Congress and ask for them and justify them.
Mr. GOODLATTE. Are these particular powers amongst those that would expire at the end of next year?
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Mr. BARR. Some of them, but as the gentleman from Virginia knows, unfortunately, despite our joint efforts to have the number of provisions of the USA PATRIOT Act sunsetted much broader than we wound up with, a lot of the problematic provisions such as the ''sneak and peak'' and the 215 provision are not sunsetted. This is a problem.
Mr. GOODLATTE. But the examination—and I fully agree with you, that we need to exercise a considerable oversight over the use of the PATRIOT Act to make sure that it is being used as intended, and certainly one of the questions, as always, whether something is, indeed, needed. But there have been those who advocated that we pass legislation, I think prematurely, to lift those sunset provisions and make the PATRIOT Act permanent, and on the other hand, there are those who would like to take steps to repeal portions of it, what I also think are premature. I think we ought to allow it to operate for the amount of time that the Congress designated, and then, as it approaches the sunset provisions for some of the provisions, use that as an opportunity to examine all of the provisions in the act. While some may not automatically sunset, we certainly have the ability and the authority to examine those that do not sunset and determine whether they aren't used or are not necessary or have been abused, in which case we can do that.
But I so far have not seen a tremendous amount of evidence from anybody regarding misuse of the PATRIOT Act. I wonder if you would want to comment on that, if Mr. Chairman would allow that, since my red light is on. And then I would also ask if Mr. Bryant could respond as well.
Mr. BARR. Again, in the interest of time, not to repeat my answer to a question that the distinguished Chairman raised earlier, we don't really know at this point because of the secrecy attendant to so many of these provisions and the use of these provisions by the Government. The Committee, through vigorous oversight, and the Subcommittee, certainly can get to the bottom of it, and I think should.
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But, of course, ultimately the question of whether or not a provision of the law, including those that bring us here today, are constitutional has nothing to do with how many times they are used or whether they've been abused. They are unconstitutional ab initio. That, I think, is a problem with some of what is going on here.
Mr. COBLE. The gentleman put his question before the red light appeared, Mr. Bryant, so you may answer briefly, if you will.
Mr. BRYANT. Yes, sir.
Mr. Goodlatte, in response to the question is it good or bad that certain sections haven't been used, I think we reflect on and ask the same question, is it a good or bad thing that a law enforcement officer has a firearm but doesn't have to use it. The fact that discretion is shown, restraint is shown, in connection with utilizing authorities or powers that are granted law enforcement or counterterrorism capability, we think is a good thing.
In terms of the question of the sunsets, we think Congress did a very good job in passing PATRIOT. We think the sunsets should not be realized; that is to say, we think the sunsetted provisions should not, in fact, sunset but should be continued. We support their reauthorization. We stand ready to continue working with this Committee and Congress to ensure careful oversight of how all of the authorities, including the sunsetted authorities, are being used.
We think with PATRIOT the angel is in the details, not the devil is in the details. We think that you all deserve the details, the American people deserve the details, and that that will——
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Mr. COBLE. The gentleman's time has expired. Thank you, Mr. Bryant.
The gentleman from Virginia.
Mr. SCOTT. Thank you, Mr. Chairman.
I noted, Mr. Bryant, you said that these investigations and National Security Letters were in conjunction with the investigation on terrorism, and terrorists don't have rights that others might have.
Do I understand that once you get a letter, the investigation is in connection with the terrorist investigation but they can be served on anybody?
Mr. BRYANT. NSLs can be used by the FBI in connection with duly authorized investigations of international terrorism or espionage, and can be served on third parties—specified certain congressionally-articulated third parties—who have relevant information to that investigation, that's correct.
Mr. SCOTT. Like law-abiding citizens?
Mr. BRYANT. To designated institutions, such as financial institutions or credit reporting agencies——
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Mr. SCOTT. Under the bill, a pawn shop?
Mr. BRYANT. Yes, a pawn shop, which has become——
Mr. SCOTT. A law-abiding pawn shop can be subject to one of these things. They get issued not by the Attorney General but get issued by the local guys?
Mr. BRYANT. This is a request for information that, under statute, can be issued by the FBI.
Mr. SCOTT. The local guys can do this?
Mr. BRYANT. No, it has—Congress has designated how it can be delegated, and I believe it can be delegated to the special agent in charge——
Mr. SCOTT. Local?
Mr. BRYANT. Yes, who is sometimes local, is in the region.
Mr. SCOTT. And once the local guy issues one of these things and you get one, you have to comply, you can't tell anybody, and if it's abusive, how do you complain?
Mr. BRYANT. A couple of points, Congressman. This is important, so I would like to try to get it right.
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With respect to not being able to tell anybody, it is the position of the Department that the recipient of an NSL can confer with counsel, with a lawyer, with an attorney. We believe that's an implied exception in the law, and we would be pleased to work with you as this legislation is——
Mr. SCOTT. So you are pleased to put that in the bill, that consultation with an attorney does not violate the disclosure from——
Mr. BRYANT. That's correct.
Secondly, with respect to compliance, the sanctions that currently don't exist, that this bill would call for, only apply to breaching the nondisclosure requirement. In order for there to be sanctions in connection with not complying with the request, the Justice Department would have to enforce the National Security Letter in court, and the penalty then would be sanctions applied by the court in connection with the failure to comply.
Mr. SCOTT. If you're complaining or protesting, you know, you explain it to a judge and you're on the barrel end of a 5-year sentence if you happen to lose.
Let me move on to these ex parte proceedings. How many ex parte requests have been denied by judges?
Mr. BRYANT. I don't know the answer to that, Congressman.
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Mr. SCOTT. Do you know if any have been denied?
Mr. BRYANT. It's my understanding that ex parte in connection with CIPA, the Classified Information Procedures Act, that requests for CIPA authorizations are denied.
Mr. SCOTT. Some are denied?
Mr. BRYANT. Yes, sir.
Mr. SCOTT. If this bill passes, will the defendant know that an ex parte proceeding went on?
Mr. BRYANT. The defendant might have reason to know that an ex parte in camera proceeding has occurred. The defendant wouldn't, by definition, know necessarily or would not know what occurred in that proceeding.
Mr. SCOTT. Would he necessarily know that it went on?
Mr. BRYANT. No.
Mr. SCOTT. Would there be a reviewable record of what went on?
Mr. BRYANT. The proposed change in this bill would allow the requested CIPA authorization to be made orally, so as to expedite the request and judicial determination.
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Mr. SCOTT. So if the information was misleading, you know, kind of confusing, there wouldn't be anything to review; is that right?
Mr. BRYANT. I'm unaware that there would be a record to review.
Mr. SCOTT. There wouldn't be a transcript.
Mr. BRYANT. That's correct.
Mr. SCOTT. So if the judge was allowed to, there wouldn't be any transcript.
If the judge decides that he really doesn't agree that it ought to be ex parte and he would like to hear from the defendant, under this bill he can't do it, is that right?
Mr. BRYANT. Well, under current law a judge is not free to discuss any and all classified information with the defendant, absent provisions specifically made for that.
Mr. SCOTT. Or defense counsel?
Mr. BRYANT. That's correct.
Mr. SCOTT. If he decides that he would like to discuss with counsel who has a security clearance, this bill would prevent him from involving the defense counsel in the decision, is that right?
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Mr. BRYANT. That's my understanding.
Mr. SCOTT. I had one quick technical question, Mr. Chairman. Do you have the bill before you?
Mr. BRYANT. I do.
Mr. SCOTT. On page 4, line 15.
Mr. BRYANT. Mine might not have the same pages, Congressman Scott.
Mr. SCOTT. Section 6, the first sentence.
Mr. BRYANT. Uh-huh.
Mr. SCOTT. Where it says in parenthesis ''other than in civil proceedings or other civil matters under the immigration laws,'' I'm assuming that it means civil proceedings under immigration laws or other civil matters under immigration laws.
Mr. BRYANT. Yes, that's our reading of the meaning of the text of the bill.
Mr. SCOTT. Okay.
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Mr. COBLE. I thank the gentleman.
The gentleman from Indiana, Mr. Pence.
Mr. PENCE. I thank the Chairman. Thank you for holding this hearing. I want to thank the witnesses, and I apologize for arriving a little bit late. I have a couple of questions.
It's good to see Mr. Bryant here. I real with great relish the story of 310 individuals charged and 179 convicted, terrorist cells broken up in Buffalo, Charlotte, Portland, and Northern Virginia. Mr. Bryant, I would just say—and I hope you convey to your colleagues at the Department of Justice—the gratitude of the people I represent.
Mr. BRYANT. I'll be pleased to, Congressman.
Mr. PENCE. We appreciate you. I do not consider it luck that we have been without a major terrorist event on American soil in the days since September 11th.
Also, I am grateful to see my good friend and former colleague, Congressman Barr, here. I think I may actually be physically occupying what many of us call on the Committee the ''Bob Barr'' chair in the upper shelf. I appreciate your passion for civil liberties.
Mr. BARR. If you are, Mr. Pence, be aware that there's a trap door underneath, which my colleagues wanted to use frequently. [Laughter.]
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Mr. PENCE. I honestly find myself, I would say to the panel, somewhere between my good friend, Mr. Barr, and the Department of Justice on this. So I have a couple of quick questions.
I would really echo Mr. Barr's statement, prepared statement. I literally was added to this Committee, unlike some of my distinguished colleagues, I was added to this Committee 1 week before the PATRIOT Act was passed. I haven't crammed for a test like that since my law school days.
But it was axiomatic to me at that time that we were creating temporary powers and focused on confronting a specific threat to our country, so I do want ever to have Congress hold to that theory in force the temporary elements of the PATRIOT Act, where possible, and where it's prudent to do so. I also want to be very careful about expanding even in the area of, to use Mr. Barr's language, the PATRIOT Act.
But I am also intrigued, Mr. Bryant, and I would like you to speak to this ''lone wolf'' idea. It seems to me that in the days since September 11th we have gotten to know our enemy better through hard labors and confrontations, I think, of the circumstances that occurred prior to the elections in Spain, where in testimony before the International Relations Committee John Bolton told me that he did not believe al-Qaeda today was operating from a central command but rather from disparate groups and individuals.
I just would like to ask you a fairly open-end question, Mr. Bryant. Could you explain to me how the instant bill addresses that ''lone wolf'' whole, where we are relegated to dealing with issues under essentially domestic criminal law? What is the benefit in this bill for us when we can't establish a direct nexus to a terrorist organization or group of terrorists?
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Mr. BRYANT. Yes, sir. The question that we have sought to address in thinking about this ''lone wolf'' or unaffiliated terrorist circumstance is whether or not the benefits, the strengths of the FISA regime, and the protections that are built into the FISA regime, should be brought to bear in connection with a terrorist whose affiliation with a foreign terrorist organization is unknown.
We think the answer is yes, because the potential catastrophic consequences of an international terrorist—and this provision would only apply to non-U.S. persons—whether or not an international terrorist perpetrating or seeking to perpetrate a terrorist incident should be able to be pursued with the FISA tools that are currently deployable against an international terrorist whose affiliation with an international terrorist organization is known.
Mr. PENCE. Let me interrupt before my time runs out.
Mr. Barr, could you speak to that? Does the ''lone wolf'' style of terrorism, does it give you pause? Is your concern here with haste, or is it with the substance of that specific proposal?
Mr. BARR. It's with the substance. I don't think that, in my experience as a prosecutor and as a Member of this Committee engaging in oversight of the Justice Department for 8 years, I'm not aware of any instance in which failure of judges to operate quickly if the Government related to them exigent circumstances was a problem.
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What we have here, though, is the fact that—I think one thing, from a practical standpoint, Mr. Pence, that is important is the instance of a true ''lone wolf.'' That is, a suspected terrorist with absolutely no ties to anybody, that he manufactured the so-called—whatever the device was in his basement, he didn't deal with anybody outside of his own house and so forth—I think that's unrealistic. So what we're talking about from a realistic standpoint, when we talk about a ''lone wolf,'' is a person that, while perhaps the Government isn't able to link them to a formal organization, they do have contacts. And under existing FISA standards, without removing the nexus to foreign power, the Department of Justice can go after that person if they show as little as there is one other person with whom they are dealing as part of their conspiracy or their activities.
This provision is simply unnecessary to break that important link between the President's national security power and the extraordinary power of gathering evidence outside of the fourth amendment. That's why I think it's so important that we not do this, and certainly not until the Government has come forward and laid out a much stronger need for it.
Mr. COBLE. The gentleman's time has expired.
Did you have another question, Mr. Pence?
Mr. PENCE. It just appeared to me, Mr. Chairman, that Mr. Bryant wanted to react to that. I would be grateful to have him do so, if the chair would permit it.
Mr. COBLE. Is there further response? Mr. Bryant.
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Mr. BRYANT. I would be pleased to respond to Mr. Pence, Mr. Chairman, if you would permit.
Mr. COBLE. Why don't you suspend for a moment. We'll have a second round, so we will do that on the second round, Mr. Pence.
The gentlelady from California, Ms. Waters.
Ms. WATERS. Thank you very much, Mr. Chairman.
I am almost stunned at what we have already done, invading the privacy of American citizens with the PATRIOT Act, and violating the Constitution of the United States. I am absolutely amazed that we keep pushing further to do it and that the American people are not responding in a profound way.
I suspect that it is just a matter of time before this will backfire on us, just as the interrogations in Iraq are backfiring. In the name of terrorism, we have given ourselves permission to violate the Constitution, to violate privacy, to basically violate human beings in some extraordinary ways. For those who were so heady that they felt they could do interrogations and not have to think about the Geneva Convention and all of that, I think we're traveling down the same road with PATRIOT Act II, with no oversight and expansion.
Let me ask Mr. Bryant to describe to us—and you probably did it already and I'm sorry if I'm asking you to repeat. Describe to me the gag provision of the National Security Letters. Describe as accurately as you possibly can what that gag provision mandates, what does it say, what does it allow or not allow someone to do or not to do?
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Mr. BRYANT. Under current law, Congresswoman Waters, the recipient of a National Security Letter, which is akin to an administrative subpoena, limited to the context where there's a duly authorized investigation of an international terrorist or a spy, the recipient of an NSL, a National Security Letter, is obligated, under current law, not to disclose the fact that they have received that NSL.
The reason that Congress has found compelling and caused Congress to provide this nondisclosure requirement is that to not require nondisclosure is to allow the recipient to talk about the fact that the NSL, pursuant to an international terrorism investigation, has been received, to tip off others, to tip off associates.
Ms. WATERS. Okay, that's good. Let me just stop you for one moment so that I can understand.
The recipient of one of these letters could or could not be someone involved in terrorism? Anybody could get one?
Mr. BRYANT. Anyone who has been designated within the category of third parties that are eligible to receive them, so it's a limited category. Financial institutions, it's communications transactions, communications providers, it's credit bureaus——
Ms. WATERS. Libraries?
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Mr. BRYANT. Yes, they fall under the definition.
Ms. WATERS. Okay. So——
Mr. BRYANT. That is, they fall under the definition if they provided Internet services.
Ms. WATERS. So describe to me, so I can really understand, if a library receives one of these letters and they ask them for extensive information related to the checking out of books, materials, and other kinds of activities of individuals in that library, then you're saying that that library, no one associated with it, can tell anybody, they can't raise any questions about it, they can't do anything; is that correct?
Mr. BRYANT. The request has to be for relevant information. There is no——
Ms. WATERS. Who decides relevant?
Mr. BRYANT. Well, in the first instance, the FBI, which is issuing. But there is no sanction for this library in this hypothetical for not complying. The only sanction is if they disclose the receipt of it. What that means is they do not have to immediately comply with the request, in terms of its scope. They can respond to the FBI that the scope of that NSL is unreasonably broad. They are not going to be sanctioned for having that as a response. The FBI and the recipient can then discuss the proper scope of the request to ensure that it is only for relevant materials.
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The only sanction that could be brought to bear against the recipient is if the FBI sought to judicially enforce the NSL and the court were to enforce it at that point, if the recipient were to still not agree to comply, then there could be sanctions imposed by the court.
Ms. WATERS. You're asking for penalties now?
Mr. BRYANT. For nondisclosure, that's right.
Ms. WATERS. Not simply for nondisclosure.
Mr. BRYANT. The penalties would be, in the first instance, for knowing violation of the nondisclosure requirement, a 1-year penalty for a knowing violation, a 5-year penalty for a knowing violation with the intent to obstruct the ongoing investigation. Those are the two sanctions.
Ms. WATERS. Tell me about that aspect of it, where the librarian, what not, could not call an attorney, could not call in anyone to say ''what is this? What have I got here? Do I have to comply with this?'' Would that be a violation of any kind?
Mr. BRYANT. It is the position of the Department that the recipient of an NSL can confer with their attorney in connection with the receipt of that NSL.
Ms. WATERS. Who is it they cannot confer with?
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Mr. BRYANT. They can confer only with counsel in connection with the receipt of the NSL. So they would be prohibited from conferring more broadly.
Ms. WATERS. What about a relative? What about a wife? What about anybody else?
Mr. BRYANT. I think it's important to remember that we're talking about only two kinds of investigations here: an international terrorism investigation or an espionage——
Ms. WATERS. The librarian is not a terrorist. The librarian is being asked to disclose information on other people who have used that library, who have access information in some way.
What you're telling me is, in addition to failure to disclose or nondisclosure, that this gag order says you've gotten this request and you can't talk about it with anybody. You're saying they can confer with an attorney, is that what you're saying?
Mr. BRYANT. A recipient can confer with an attorney, but this is a terrorism investigation, and broadly communicating the receipt of such an NSL poses real risks to national security. So Congress, going back to 1986, when NSLs were first passed, has seen appropriate to impose——
Ms. WATERS. So what if this librarian talks with his wife about it? Then what could happen to that librarian?
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Mr. COBLE. If the gentleman will suspend, Ms. Waters, if you would wrap up, we need to hear from the gentlelady from Texas before we go to vote.
Mr. Bryant, you may respond to that.
Ms. WATERS. I appreciate that.
Mr. BRYANT. The only exception, Congresswoman, that is implicit in the statute, or that is provided for, has to do with——
Ms. WATERS. Just what would happen to the librarian if he talked to his wife.
Mr. BRYANT. If a recipient of an NSL speaks to someone other than counsel, that would be viewed as a violation of the nondisclosure requirement. Currently, there is no sanction in the law in connection with——
Ms. WATERS. So the gag would give him 5 years, could cause him to be convicted and 5 years in prison?
Mr. BRYANT. Under this bill, a recipient—we've been discussing this in the context of a librarian, but only libraries which provide Internet services could conceivably——
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Ms. WATERS. I don't care who it is. I'm talking about a human being who gets one of these letters, who talks about it with a wife, a family member, a close friend, another colleague, they could go to prison for 5 years; that's what you're telling me. Is that right?
Mr. BRYANT. Under this bill, there is a 1-year prison term, up to 1 year, provided for the knowing disclosure in violation of——
Ms. WATERS. And what triggers the 5 years?
Mr. BRYANT. The 5 years, it has to be of the wilful intent to obstruct an ongoing investigation——
Ms. WATERS. Thank you, Mr. Chairman. This is so outrageous, I don't need to hear any more. Thank you very much for the extended time.
Mr. COBLE. Folks, we are going to have a vote in just a minute, and I want to recognize the gentlelady from Texas. But did the Ranking Member of the full Committee want to be heard?
Mr. CONYERS. I would like——
Mr. COBLE. Before I recognize the gentlelady from Texas.
Mr. CONYERS. Oh, no. By all means, the gentlelady from Texas may proceed me almost always.
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Mr. COBLE. The gentlelady from Texas is recognized for 5 minutes.
Ms. JACKSON LEE. The Ranking Member ranks, and if the Ranking Member seeks to clarify and/or speak?
Mr. CONYERS. I will wait.
Ms. JACKSON LEE. I thank the Chairman very much, and I thank the Chairman of the Subcommittee.
Let me first of all thank the witnesses. Mr. Barr, welcome. It is a pleasure to see you, and I am going to start with you, and if I might, I'm not sure if you took your testimony verbatim, but I'd like to read it into the record again.
''As a student and supported of the Constitution and its component Bill of Rights, I will not concede that meeting this Government's profound responsibility for national security entails sacrificing the right given us by God and guaranteed in that great document.''
Would you share in your own words, even though your testimony might have been so, your assessment of the expanse of what we have been doing in the name of national security? You might allude to the present bill before us, but as you well know, I'm going to have some other questions, so if you can just get us right to the jugular vein, if you will, on this issue.
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Mr. BARR. I think it can be answered with two basic statements, Ms. Jackson Lee. One is we are making everybody a suspect until they can prove themselves otherwise. Secondly, we are essentially moving in the direction of gutting the fourth amendment with all of these exceptions, exceptions if you travel, exceptions if you have records that the Government believes are somehow related, however indirectly, to a terrorism or national security investigation, we are allowing so many ways, sort of reverse loopholes, for the Government to secure evidence to be used against people, including citizens in criminal proceedings, without laying a foundation that they have probable cause to suspect that person has engaged in criminal behavior, that if we go much further—and that's what we're doing today, going further in that direction—the fourth amendment will be rendered essentially meaningless.
Ms. JACKSON LEE. You took the words out of my mouth, loopholes and the expanse being gutting of one constitutional provision and that's a right of reasonable search and seizure.
My next question to you then, and taking into account this Committee's posture when we worked in a bipartisan way to produce I think a PATRIOT Act that we all could have lived with and would have been a very effective tool of fighting terrorism. You recall those days after 9/11 the unity that was in this House was probably more than we had ever seen. The unity in this congressional Judiciary Committee was superior, but of course, that did not prevail.
Can you tell me what light this particular legislation brings to the question of fighting terrorism? Following along the lines of my colleague's inquiry, which is my concern, this looks like a fishing net, not a fishing pole, but a fishing net, where we are throwing out a net, and we may gather in it a number of innocent persons who through their own sense of freedom, meaning that we are used to being free in this country and may offer a conversation that is not in any way undermining national security, but is this legislation before us the kind of legislation that can in essence be a fishing net drawing in innocent persons, leaving them with little defense mechanisms in terms of their own defense?
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Mr. BARR. I think the gentlelady is correct. And in addition to that, for example, following on the discussion that the gentlelady and the gentlelady from California were just having with the distinguished Assistant Attorney General about the gag order and the penalties and so forth, if the Government of course is able to extract penalties, that is, prosecute criminally people who have disclosed beyond their attorney, which is very limited disclosure certainly, then there's no incentive whatsoever and no way to hold the Government to narrow its requests under the FISA provisions.
Secondly, such a provision that the Government seeks is unnecessary. The Government can under existing law, long-established existing law, seek a subpoena under seal if it believes that disclosure to third parties, that is other than the recipient of the subpoena to secure the evidence, would harm national security or would harm an ongoing investigation, they already have a tool to do that. That's why it's somewhat mystifying to me why the Government is now saying that it has to have this additional power, which they were not granted in the initial PATRIOT Act, and one reason they weren't is because they already had the power then and they have it now.
Ms. JACKSON LEE. Interestingly enough, I remember your debate in this Committee, and a number of times you recounted, with your past experience, the fact that the Government already had some of the powers that we were even discussing at that time. That's why we tried to balance that bill at the time that we were discussing it.
Mr. Bryant, welcome back, and I thank you for your leadership. Thank you very much, Mr. Barr.
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He makes a very valid point, and I would just like to explore it with you very briefly. Section 5 of this legislation takes away a defendant's right to challenge secret evidence that the Government has against either—against him. My concern is can you provide an example, one example where a defendant has jeopardized a case because he or she was allowed to just petition the court to have access to this secret evidence. I say that in the context again of the idea of a fishing net and the idea that this Committee, this Congress, and I think the Government, should be problem solvers. We should not, if you will, undo or to make wrong what is already okay and right.
In this instance it appears to me that the Government is coming forward with advocacy for a position where there has not been sufficient problems that have been discovered, and/or that you have presented to this Committee, or as I understand, to anyone.
so what is the basis of having—thwarting a defendant's right to understand what is going on and to give them an able defense? It seems to be a simple right that we have.
Mr. BRYANT. Thank you, Congresswoman. CIPA, the Classified Information Procedures Act, sets up a mechanism whereby the Government can seek to protect classified information in a trial setting by petitioning the Court to explain ex parte and in camera why that information should not be disclosed. The judge is then in a position to redact or summarize that information for purposes of trial.
To not allow the Government to seek that ex parte in camera opportunity with the judge and to not allow redactions or summaries of that information, is to risk disclosing classified, sensitive, national security information in an open court setting. That's the concern that CIPA for many years has addressed and that this bill further addresses.
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Ms. JACKSON LEE. Do we have examples of defendants who have misused any access to secret evidence if they've ever gotten access to it? Do you have a record of such?
Mr. COBLE. Mr. Bryant, if you would be brief, the gentlelady's time has expired, but you may answer.
Ms. JACKSON LEE. I thank the Chairman.
Mr. BRYANT. I am aware of examples where Government has had real struggles in a trial setting presenting information, given the fact of it being classified, and what this does is it allows the Government simply to get to a judge, who can then decline the request to seek redactions or summaries of that classified information.
Ms. JACKSON LEE. Mr. Chairman, if you will just yield for me to have a final sentence, I would just say that justice and democracy is a struggle, and the problem is, is that the struggle seems to be heavily burdening the defendant who is now increasingly not having the opportunity for a fair trial under this new legislative initiative and certainly the PATRIOT Act.
Mr. COBLE. I thank the lady.
We have been joined by the gentleman from Ohio, Mr. Chabot. Do you have any comment to make?
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Mr. CHABOT. No.
Mr. COBLE. Colleagues, let me think aloud for a minute. We have proposed three votes upcoming, and you are talking about close to an hour. So what I propose to do is to start a second round, and when that bell rings we will adjourn for the day, but the record will remain open for 1 week, so if Members have questions to put to the witnesses that they have not had a chance to orally submit, if all are in agreement with that.
Mr. CONYERS. Mr. Chairman, could we ask for a 2-week response on the questions that might be sent to any of the witnesses?
Mr. COBLE. Two-week response, without objection, 2-week response will be in order.
I will start a second round now.
Mr. Harrington, we have gone here, there and yonder, and appropriately so. Let me put two questions to you that can maybe bring us back into the deep water away from the shoals and the rocks. What is a national security letter? When can it be used and who can use it, (A)? (B) Why is a national security letter preferred over other types of subpoenas or court orders? These are two rather simple questions.
Mr. HARRINGTON. I think Mr. Bryant's laid it out very nicely a little while ago, but the national security letters can only be used in a counterterrorism or an intelligence investigation, a spy type investigation. Those letters are directed toward three groups primarily for electronic communication response, financial records, and consumer reporting records. Those are the only three areas that it can be used in.
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Why NSLs versus others? Our whole approach has changed since 9/11. The walls between criminal and intelligence investigations have basically been taken down, as the Congress has worked with us to do that. All of our investigations now in counterterrorism start off as an intelligence investigation. Criminal provisions are just one tool in our tool belt basically to attack the particular organization or terrorist group that we're trying to pursue. Certainly is it easier for the investigators to be able to go locally to their Special Agent in Charge, show that they have a pending investigation and that the NSL is warranted to obtain this information. It's an abbreviated process.
Mr. COBLE. Mr. Barr, I will give you a chance since you are on the, quote, other side of this issue. You want to respond to that?
Mr. BARR. Thank you very much, Mr. Chairman. I think it's important to recognize that the PATRIOT Act, in Section 505, dramatically weakened the—or dramatically strengthened the ability of the Government to secure information without that individualized suspicion, those specific and articulable facts that are so vitally important to ensure that the fourth amendment's mandate is kept in mind. That's why the Government is relying more and more on national security letters as opposed to judicial subpoenas or grand jury subpoenas, one, because they're so easy to get, and especially with a gag order there's no check whatsoever on what the Government is doing. And all they have to do, contrary to the traditional fourth amendment standard which requires that specific link for the Government to show between the information and the individual against whom the information is being sought, it removes that. That's why we ought to tread so very carefully in seeking to or granting the Government the power to expand that. They already gained a tremendous expansion of power already under the PATRIOT Act section 505.
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Mr. COBLE. I thank you.
The gentleman from Virginia. The gentleman from Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. Now that I am feeling much better and have digested Mr. Bryant's comments earlier, let us continue on.
Mr. Bryant, how long have you served on the Judiciary Committee before your ascension to the Department of Justice?
Mr. BRYANT. It would have been for a period of approximately 6 years.
Mr. CONYERS. Six years. Okay. Now, has there, to your knowledge, been any oversight of the PATRIOT Act?
Mr. BRYANT. Extensive, sir.
Mr. CONYERS. Oh? Well, would you enlighten us? Did the Judiciary Committee conduct it?
Mr. BRYANT. I think both the House and the Senate Judiciary Committees have had the Attorney General testify before them since the passage of the PATRIOT Act——
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Mr. CONYERS. That is not the same thing.
Let me ask the Chairman of the Subcommittee. Have we conducted any oversight, sir, of the PATRIOT Act, to your knowledge?
Mr. COBLE. I think we have, Mr. Conyers. There was——
Mr. CONYERS. Well, when?
Mr. COBLE. June the 5th of 2003, May the 20th of 2003. That was the Subcommittee on the Constitution. Witnesses for—those 2 days come to mind, John.
Mr. CONYERS. We will clear this up. Let me get to the point. I notice that nobody, none of the witnesses, or at least my favorite witnesses, have used the term ''libraries'' or ''bookstores.'' You prefer the euphemism ''communications providers.'' And I think I know why you do that. But here's the problem that we're having. We do not feel that there is any necessity to go beyond where we are now. You mentioned 179 convictions, Mr. Bryant, right? and what were those convictions for?
Mr. BRYANT. A variety of terrorism-related offenses including material support for terrorism.
Mr. CONYERS. Oh, yeah? Well, would it be offensive to the secrecy of the Department of Justice that the nature of those convictions be revealed to the Subcommittee that has jurisdiction over this subject?
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Mr. BRYANT. They're a matter of public record. We'd be pleased to pull it together and make sure the Subcommittee has it.
Mr. CONYERS. Right. But what about all the ones—weren't there more people convicted for petty offenses and minor immigration violations and other things than there were for terrorist offenses, if there were any terrorist offense convictions?
Mr. BRYANT. Respectfully, Mr. Conyers, I think that's a false dichotomy. Immigration law is an essential tool in our effort against terrorism.
Mr. CONYERS. I see. So Immigration procedures of any kind that result in convictions like not having a green card could be terrorist related, right?
Mr. BRYANT. It could be if the individual was involved in terrorism.
Mr. CONYERS. Which is why we took the Immigration and Naturalization Service and put it in Homeland Security, right?
Mr. BRYANT. I don't follow the question, sir.
Mr. CONYERS. Well, it was pretty simple, a sentence with a subject and a verb and—I mean what's the problem with what I asked you? What don't you understand?
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Mr. BRYANT. The agency historically known as the INS is now part of the Department of Homeland Security.
Mr. CONYERS. Yes. You understand that. Isn't it true?
Mr. BRYANT. That's correct.
Mr. CONYERS. Well, then what was so hard about that? Now, how many people have received letters since September 11, 2001, national security letters have been issued?
Mr. BRYANT. I'm unaware of the number, Mr. Conyers.
Mr. CONYERS. What about Mr. Harrington? You are the one that issues them.
Mr. HARRINGTON. Yes, sir, and we do report to Congress routinely as far as——
Mr. CONYERS. Yeah. How many?
Mr. HARRINGTON. I believe that number's classified, sir.
Mr. CONYERS. Classified?
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Mr. HARRINGTON. Just as the number of FISAs are classified, yes.
Ms. WATERS. Put him under oath.
Mr. CONYERS. Well, he's already under oath. I mean when you testify you're under oath here.
Ms. WATERS. Make him raise his hand.
Mr. CONYERS. No, that's all right.
You can't tell us because that's classified. Well, let me ask you, when you hold a trial on terrorism, is that information classified too?
Mr. HARRINGTON. No, sir.
Mr. CONYERS. Has anybody over there been thinking about classifying the trials where this kind of information is routinely sought and answered under oath in public, just like you are?
Mr. COBLE. Mr. Conyers, if you will spend just a bit—Mr. Bryant, if you will answer that, and then there is a vote on, so we need to—if you want to respond to that, Mr. Bryant.
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Mr. CONYERS. What do you know about that, Mr. Harrington?
Mr. COBLE. Oh, Mr. Harrington.
Mr. HARRINGTON. Yes, sir. There's—of course in a trial it's open to the public and it is a public record.
Mr. CONYERS. In other words, this Committee would have to go into a secret hearing to get the answer to my question from you.
Mr. HARRINGTON. I believe so.
Mr. CONYERS. Would you provide it then?
Mr. HARRINGTON. Yes, sir.
Mr. CONYERS. All right. Mr. Chairman, I would like to seek immediately, next week, a hearing in which I could get a civil response to this question.
Mr. COBLE. Well, I cannot give you assurance on that right now, John. I will talk to you after we adjourn here.
Mr. CONYERS. All right.
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Ms. JACKSON LEE. Will the gentleman yield for one moment, please?
Mr. CONYERS. Yes.
Ms. JACKSON LEE. Mr. Chairman, I would like for you to give the gentleman another opportunity to answer Mr. Conyers. He said that the pure number was classified information. Is he sure about that? Does he want to leave this Committee with that as a fact?
Mr. HARRINGTON. I believe I am correct, that this is a classified number, and that we would be happy to make it available to Congress——
Mr. CONYERS. Okay, Mr. Harrington. Are there any numbers we can ask you about, the letters being sent that you could tell us about? I mean like if I ask you how many people work over there in your department, is that a classified number?
Mr. HARRINGTON. Yes, it is.
Mr. CONYERS. It is?
Mr. HARRINGTON. Yes, sir.
Mr. CONYERS. If I ask you who the head of the department was, would that be classified?
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Mr. HARRINGTON. No, it would not.
Mr. CONYERS. Well, we are making progress.
Mr. COBLE. The gentleman's time has expired. I hate to cut you off, John, but we have to go vote.
I thank the witnesses for your testimony. The Subcommittee very much appreciates your contribution.
This concludes the legislative hearing on H.R. 3179, the Anti——
Ms. JACKSON LEE. Mr. Chairman, I have something to put in the record.
Mr. COBLE. Let me finish, and then I will recognize you.
The record will remain open for 2 weeks.
The gentleman from Virginia.
Mr. SCOTT. Two letters.
Mr. COBLE. For the record, without objection.
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The lady from Texas?
Ms. JACKSON LEE. Yes, I have, I would like to submit an article in USA Today, dated May 17, 2004, ''The Ordeal of Chaplain Yee.'' I'd like to submit that into the record.
Mr. COBLE. Without objection.
The Subcommittee stands adjourned, and thank you again, gentlemen, for your appearance.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
A P P E N D I X
Material Submitted for the Hearing Record
LETTER CLARIFYING HEARING RESPONSES FROM THE HONORABLE DANIEL J. BRYANT
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LETTER FROM LAURA W. MURPHY
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LETTER FROM THE AMERICAN CIVIL LIBERTIES UNION (ACLU), ET AL.
PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
LETTER FROM THE HONORABLE BOB BARR, INCLUDING THE CASE OF MAR-JAC POULTRY, INC.
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PREPARED STATEMENT OF KATE MARTIN
This Statement is being submitted on behalf of the Center for National Security Studies, a a civil liberties organization, which for 30 years has worked to ensure 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 must and can 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 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 more than twenty years. 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, Kate Martin, Director of the Center was again asked to testify about the civil liberties and constitutional implications of the legislation. Since September 11, 2001, the Center has been actively involved in evaluating the many changes to these authorities.
SUMMARY.
This Committee is currently considering H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003. The bill contains two amendments to the Foreign Intelligence Surveillance Act (''FISA'') 50 U.S.C. §1801–1863, which amendments raise the most serious civil liberties concerns in the bill and which will be the focus of this Statement. Both amendments are of dubious constitutionality and would be counter-productive in the fight against terrorism. Both amendments must be analyzed in light of the USA Patriot Act's substantial expansion of FISA authorities, in particular the Patriot Act's elimination of the requirement that secret FISA surveillance be limited to circumstances where the government's primary purpose is the gathering of foreign intelligence and not making a case against an individual. We commend this Committee for its commitment to vigorous oversight of the effect of those Patriot Act changes and urge that consideration of further expansions of FISA authority, such as are contained in HR 3179, await the Congress' examination of those sunsetted provisions of the Patriot Act next year.
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A. LONE WOLF AMENDMENT (HR 3179 SEC. 4).
The first such amendment would authorize FISA surveillance against non-US persons with no showing that they are acting on behalf of a foreign terrorist organization or government. This amendment tracks the first section of the leaked draft of the Justice Department's Domestic Security Enhancement Act of 2003 (Patriot II), although that draft would extend the provision to citizens. The provision is unconstitutional and unnecessary. While this provision has been described as the ''Moussaoui fix,'' that rationale has been discredited by the Joint Inquiry of the Intelligence Committees. Nor is the amendment needed to allow surveillance of ''lone wolf terrorists.'' As FBI officials have admitted, the government already has all the authority it needs to conduct surveillance of the individuals described as ''lone wolf'' terrorists.
Eliminating the foreign power nexus will render FISA surveillance unconstitutional. The amendment is fundamentally inconsistent with the Constitution because it would authorize FISA surveillance against individuals with no showing that they are acting on behalf of a foreign terrorist organization or government. In doing so, the amendment would eliminate the constitutional requirement that the lesser standards and privacy protections authorized for FISA surveillance be limited to use against foreign powers and their agents.(see footnote 7) See In re Sealed Case No. 02–001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002). While FISA requires no showing of probable cause of crime, it is constitutional in part because it provides ''another safeguard . . . that is, the requirement that there be probable cause to believe the target is acting 'for or on behalf of a foreign power.' ''(see footnote 8) Indeed, adoption of the amendment could undermine criminal prosecutions of terrorists because the information obtained from a FISA surveillance under these procedures may well be ruled inadmissible.
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Not a ''Moussaoui Fix'' or otherwise necessary. This amendment has been described as necessary to provide a so-called ''Moussaoui fix.'' Zacarias Moussaoui was detained three weeks prior to September 11 on suspicions of terrorist activity, but FBI field agents were rebuffed by headquarters in their efforts to obtain a FISA warrant to search his computer. Initially, the FBI claimed that they were not able to obtain a warrant because of the requirement to demonstrate a link to a foreign power. However, the Joint Inquiry of the Intelligence Committees concluded that the failure to seek a warrant to search Moussaoui's computer was the result of FBIHQ personnel misunderstanding the law.(see footnote 9) Since the problems that the FBI experienced during the FISA application process resulted from ''misunderstanding'' the law, there is no need for a legislative ''Moussaoiu fix.'' Current law does not require that an individual be connected to a recognized terrorist group, but only to at least one other individual engaged in planning terrorist activities in order to meet constitutional standards. Even if a legislative clarification of the ''agent of a foreign power'' requirement were deemed advisable, this amendment performs surgery with a butcher knife instead of a scalpel.
As pointed out by Senators Leahy, Grassley and Specter, the Justice Department has not provided a single case, even in classified form, where the absence of this provision resulted in the FBI being unable to conduct necessary surveillance. As those Members said, ''In short, DOJ sought more power but was either unwilling or unable to provide an example as to why.''(see footnote 10)
Lone Wolf Terrorists Can Be Investigated With Existing Criminal Authority. Lone wolf terrorists are a problem that can be handled by the criminal justice system. If investigators possess reliable information that an individual is preparing to commit an act of terrorism, they have all the authority they need to get a criminal surveillance warrant. There is no need to use FISA. As Senator Rockefeller has pointed out:
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''If we know for certain a person really has no foreign connections, if he or she is a true 'lone wolf'—a foreign 'Unabomber,' for example—then it is a straightforward criminal investigation. There is no foreign intelligence to be gotten at all, and that person is not a valid target under FISA.''(see footnote 11)
Indeed, the FBI has admitted that that they do not need this change to get the warrants they need to protect against lone wolf attacks.(see footnote 12)
This violation of Fourth Amendment standards could soon be made applicable to citizens. The Fourth Amendment's protections apply to searches and seizures in the U.S. and protect those who are voluntarily here without regard to their citizenship.(see footnote 13) If the lesser standards for secret searches and surveillance embodied in this amendment were to be deemed constitutional by the Congress and the Executive, they would be deemed constitutional when applied to citizens. Indeed the Justice Department proposed applying the lone wolf amendment to citizens in the draft of Patriot II.
Treating ''Lone Wolfs'' as National Security Threats is Counter-Productive. Finally, encouraging the use of valuable and already scarce investigative resources under FISA to target individuals acting alone increases the risk not only of increased surveillance based on religious or political activities, but also that once again, the FBI will miss those truly dangerous individuals, who because they act in concert with other terrorists are thereby capable of inflicting grave damage to our national security, rather than ordinary, even though murderous crimes.
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Alternative amendment. In the Senate, Senators Feinstein and Rockefeller, introduced an amendment, that would, in our view, address the concerns that have been raised by the government, while leaving in place the agent of a foreign power requirement that is essential to the constitutionality of the statute. The Feinstein-Rockefeller substitute states that when considering an application for surveillance of a non-US person, ''the court may presume that a non-United States person who is knowingly engaged in sabotage or international terrorism, or activities that are in preparation therefor, is an agent of a foreign power under section 101(b)(2)(C).'' This language would preserve the requirement that the FISA only applies to agents of a foreign power and provide the court with some discretion regarding the designation of individual terrorists as agents of a foreign power.
B. SECTION 6: ALLOWING SECRET USE OF THE FRUITS OF SECRET SURVEILLANCE IN IMMIGRATION PROCEEDINGS.
The second amendment to FISA included in HR 3179 would allow the government to introduce in evidence or otherwise use the fruits of secret FISA surveillance in any immigration proceeding without telling the individual that he had been overheard or subjected to a secret search, in violation of basic due process requirements. The government already has this authority in cases of alleged ''alien terrorists'' per the 1996 Alien Terrorist Removal Proceedings provisions. This proposed amendment would extend those provisions—deemed constitutionally suspect by this Committee in the past—to all immigration proceedings against anyone including permanent residents and others lawfully here.
Section 6 would eliminate the current requirement in FISA that the government notify individuals whenever it intends to use evidence obtained through FISA in immigration proceedings. It would allow the government to use the fruits of secret electronic surveillance, physical searches or pen registers to deport individuals without ever informing them that they have been subject to such surveillance or searches, without allowing any opportunity to challenge the legality of the surveillance, and most importantly deprive individuals of the right to challenge the veracity and validity of the information through cross-examination. The government already has the authority to do all this in the case of individuals alleged to be alien terrorists, under the 1996 amendments establishing the Alien Terrorist Removal Proceedings. 8 U.S.C. sec. 1531–1537. HR 3179 would extend this authority, of dubious constitutionality even when applied against suspected terrorists, to any individual, including legal permanent residents, without even the minimal safeguards provided in the 1996 law.
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In doing so, the amendment would violate fundamental due process rights. As the Judiciary Committee recognized in passing the Secret Evidence Repeal Act in 2000, the Supreme Court has ruled that ''There are literally millions of aliens within the jurisdiction of the United States. The fifth amendment, as well as the 14th amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary or transitory is entitled to constitutional protection.'' Matthews v. Diaz, 426 U.S. 67, 77 (1976).(see footnote 14)
It is important to note that current law already provides only minimal procedural protections whenever the government intends to ''enter into evidence, or otherwise use or disclose'' information obtained from FISA electronic surveillance or physical searches in any court proceeding against a person whose conversations were overheard or whose house or office was searched pursuant to FISA, 50 U.S.C. sec. 1806(c), 1825(d) and as noted above, these minimal protections are only available to individuals not alleged to be ''alien terrorists.'' 8 U.S.C. sec. 1534(e).
Indeed, rather than further eroding existing minimal due process protections, especially in light of the Patriot Act's substantial expansion of FISA authorities to allow secret surveillance when the government's primary purpose is not foreign intelligence gathering, but making a case against an individual, Congress should consider how to bring the use of FISA information in line with basic due process requirements in all proceedings, both civil and criminal. One way to do this would be to insure that FISA information is treated like all other kinds of classified information and make the provisions of the Classified Information Procedures Act applicable to FISA information, instead of the much less protective provisions currently in FISA.
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But, allowing the government to introduce in evidence or otherwise use the fruits of FISA surveillance in any immigration proceedings without telling the individual that he had been overheard on electronic surveillance or subjected to a secret search, as proposed in HR 3179 would be a fundamental violation of both the Fourth Amendment and constitutional due process requirements. FISA wiretaps and physical searches are at the core of the Fourth Amendment's protection against unreasonable searches and seizures and that protection applies to all persons found within the U.S.(see footnote 15) The law has never permitted the government to conduct secret wiretaps or searches of individuals and then secretly use the fruits of such secret surveillance and searches against him without even informing him that he has been overheard or searched.
There is no need to exempt immigration proceedings from the current rules regarding the use of FISA information because those rules already protect against the disclosure of sensitive information, even in proceedings not involving alleged alien terrorists. Current FISA law requires the government to notify an individual that he has been targeted under FISA only when it seeks to use the information against him. 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. Even then, of course, all the government provides to the defendant is a record of his own telephone conversations or a copy of his own papers. 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).
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It is especially important that the existing minimal protections are available when the government seeks to use FISA information to deport an individual. There are many fewer due process protections available in immigration proceedings than in criminal proceedings, even though immigration proceedings may result in substantial deprivations of liberty. Given the relaxed hearsay and due process requirements already existing in immigration proceedings, this amendment would enable the government to use FISA information against an individual with no check as to whether the information was illegally obtained and, even more significantly, absolutely no check as to the accuracy or reliability of the information itself.
ARTICLE SUBMITTED BY THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS
SUBCOMMITTEE LETTER TO THOMAS J. HARRINGTON REQUESTING RESPONSES TO POST-HEARING QUESTIONS
Coble1.eps
SUBCOMMITTEE LETTER TO THOMAS J. HARRINGTON REQUESTING RESPONSES TO POST-HEARING QUESTIONS
Coble2.eps
POST-HEARING QUESTIONS(see footnote 16) for the Honorable Daniel J. Bryant from the Subcommittee on Crime, Terrorism, and Homeland Security
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POST-HEARING QUESTIONS(see footnote 17) for the Honorable Daniel J. Bryant from the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia
POST-HEARING QUESTIONS(see footnote 18) for the Honorable Daniel J. Bryant from the Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan
(Footnote 1 return)
The ''Domestic Security Enhancement Act of 2003'' (DSEA) was leaked early last year. Although never introduced, several of its sections are contained in H.R. 3179. Sections 2 and 3 of H.R. 3179 are identical to section 129 of DSEA. Section 4 of H.R. 3179 is a modified version of section 101 of DSEA (section 101 of DSEA would have eliminated the ''foreign power'' standard for citizens as well as non-citizens). Section 5 of H.R. 3179 is identical to section 204 of DSEA. Section 6 of H.R. 3179 appears to be new.
(Footnote 2 return)
These include H.R. 3037, ''The Antiterrorism Tools Enhancement Act of 2003,'' (administrative subpoenas); H.R. 3040 and S. 1606, ''The Pretrial Detention and Lifetime Supervision of Terrorists Act of 2003,'' (presumptive denial of bail); and H.R. 2934 and S. 1604, the ''Terrorist Penalties Enhancement Act of 2003'' (new death penalties).
(Footnote 3 return)
Intelligence Authorization Act for FY2004, Pub. L. No. 108–177, at §374 (providing that definition of ''financial institution'' at 31 U.S.C. §5312(a)(2) applies for national security letters).
(Footnote 4 return)
In re Sealed Case, 310 F.3d 717 (For. Intel. Sur. Ct. Rev. 2002).
(Footnote 5 return)
Joint Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks of September 11, 2001, Report of the U.S. Senate Select Comm. on Intelligence and the U.S. House Permanent Select Comm. on Intelligence 321–323 (December 2002).
(Footnote 6 return)
H.R. Rep. No. 106–981, Secret Evidence Repeal Act of 2000, 106th Cong., 2nd Sess. (Oct. 18, 2000). The bill, as amended, passed on a voice vote. Three members filed dissenting views.
(Footnote 7 return)
''Such (FISA) surveillance would be limited to a 'foreign power' and 'an agent of a foreign power.''' Senate Report (Judiciary Committee) No. 95–604 (I and II), November 15, 22, 1977 [To accompany S. 1566], at 16.
(Footnote 8 return)
This holding was essential to the review court's holding that ''FISA as amended is constitutional because the surveillances it authorizes are reasonable.'' In re Sealed Case No. 02–001, slip op. at 56. Even a court with the broadest view of the government's surveillance power has found the requirement that the government show probable cause that a target is acting for a foreign power to be constitutionally based.
(Footnote 9 return)
''However, personnel at FBI Headquarters . . . misunderstood the legal standard for obtaining an order under FISA.'' Final Report, Inquiry of the Joint Intelligence Committees, Finding 5f.
(Footnote 10 return)
Sens Leahy, Grassley and Specter, Interim Report on FBI Oversight in the 107th Congress by the Senate Judiciary Committee: FISA Implementation Failures, Feb. 2003 at 11 n. 4.
(Footnote 11 return)
Consideration of S. 113, United States Senate, May 8, 2003.
(Footnote 12 return)
''In private briefings, even FBI representatives have said that they do not need this change in the law in order to protect against terrorism. They are getting all the warrants they want under the current law.'' Senate Report 108–40, at 12, Additional views by Senators Leahy and Feingold. See also exchange between FBI Deputy General Counsel Bowman and Senator Graham, Hearing of Senate Select Intelligence Committee, July 31, 2002.
(Footnote 13 return)
See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court applied the Fourth Amendment to the government's search of a KGB colonel, who came to the U.S. as a Soviet spy.
(Footnote 14 return)
See H.R.Rep. No. 106–981, Secret Evidence Repeal Act of 2000, 106th Cong., 2nd Sess. (Oct. 18, 2000).
(Footnote 15 return)
See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court applied the Fourth Amendment to the government's search of a KGB colonel, who came to the U.S. as a Soviet spy.
(Footnote 16 return)
Responses to these questions had not been received at the time of the printing of this hearing.
(Footnote 17 return)
Responses to these questions had not been received at the time of the printing of this hearing.
(Footnote 18 return)
Responses to these questions had not been received at the time of the printing of this hearing.