[Senate Hearing 107-449]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 107-449

                  S. 1448, THE INTELLIGENCE TO PREVENT
                    TERRORISM ACT OF 2001 AND OTHER
                LEGISLATIVE PROPOSALS IN THE WAKE OF THE
                       SEPTEMBER 11, 2001 ATTACKS

=======================================================================

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE

                                 OF THE

                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                                   ON

  S. 1448 THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER 
  LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS

                               __________

                       MONDAY, SEPTEMBER 24, 2001

                               __________


      Printed for the use of the Select Committee on Intelligence


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                    SELECT COMMITTEE ON INTELLIGENCE

        .........................................................

                      ONE HUNDRED SEVENTH CONGRESS

                              ----------                              
                     BOB GRAHAM, Florida, Chairman
               RICHARD C. SHELBY, Alabama, Vice Chairman
CARL LEVIN, Michigan                 JON KYL, Arizona
JOHN D. ROCKEFELLER IV, West         JAMES M. INHOFE, Oklahoma
    Virginia                         ORRIN G. HATCH, Utah
DIANNE FEINSTEIN, California         PAT ROBERTS, Kansas
RON WYDEN, Oregon                    MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          FRED THOMPSON, Tennessee
EVAN BAYH, Indiana                   RICHARD G. LUGAR, Indiana
JOHN EDWARDS, North Carolina
BARBARA A. MIKULSKI, Maryland

              THOMAS A. DASCHLE, South Dakota, Ex Officio
                  TRENT LOTT, Mississippi, Ex Officio
                                 ------                                
                     Alfred Cumming, Staff Director
                  Bill Duhnke, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk


                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held in Washington, DC:
    Monday, September 24, 2001...................................     1

                            STATEMENTS

Graham, Hon. Bob, a U.S. Senator from the State of Florida.......     1
Rockefeller IV, Hon. John D., a U.S. Senator from the State of 
  West Virginia, prepared statement..............................     6
Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama     4

                            WITNESSES

Berman, Jerry, executive director, Center for Democracy & 
  Technology.....................................................    54
    Prepared statement...........................................    48
Divoll, Vicki, General Counsel, Select Committee on Intelligence; 
  accompanied by Steven Cash, Counsel, Select Committee on 
  Intelligence...................................................     6
Halperin, Morton H., chair, Advisory Board and Kate Martin, 
  director, on behalf of the Center for National Security 
  Studies, prepared statement....................................    56
Kris, David, Associate Deputy Attorney General, Department of 
  Justice; accompanied by: Larry Parkinson, General Counsel, 
  Federal Bureau of Investigations...............................    16
Martin, Kate, director, Center for National Security Studies.....    63
McNamara, Jr., Robert, General Counsel, Central Intelligence 
  Agency.........................................................    17
Smith, Jeffrey H., partner, Arnold and Porter....................    46
    Prepared statement...........................................    41

 
 S. 1448, THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER 
  LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS

                              ----------                              


                       MONDAY, SEPTEMBER 24, 2001

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 3:05 p.m., in 
room SH-216, Hart Senate Office Building, the Honorable Bob 
Graham (Chairman of the Committee) presiding.
    Committee Members Present: Senators Graham, Rockefeller, 
Feinstein, Wyden, Durbin, Bayh, Edwards, Mikulski, Shelby, Kyl, 
DeWine, Thompson, and Lugar.

  OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE 
                        STATE OF FLORIDA

    Chairman Graham. I call the meeting to order.
    This meeting of the Senate Select Committee on Intelligence 
is for the purpose of hearing testimony on legislation that was 
introduced on Friday relative to law changes as it relates to 
American intelligence and counterterrorism.
    The horrific events of September 11 demonstrate America's 
vulnerability to international terrorism. But the warning signs 
of our vulnerability have been evident for some time--the 
bombing of the U.S. Embassy and the Marine Barracks in Beirut 
as long ago as 1983; the 1993 bombing of the World Trade 
Center; the 1996 bombing of Khobar Towers in Saudi Arabia; the 
1998 bombing of the U.S. Embassies in Kenya and Tanzania; and 
last year's terrorist attack against the U.S.S. COLE in Yemen.
    These and other terrorist incidents have made it 
increasingly important for the Senate Select Committee on 
Intelligence to focus on the adequacy of the Intelligence 
Community's response to the terrorist threat.
    Our Committee has called this hearing today to discuss with 
government officials and outside experts and civil libertarians 
the provisions of S. 1448, The Intelligence to Prevent 
Terrorism Act of 2001, which Senator Feinstein and I introduced 
last Friday, along with co-sponsors Senators Rockefeller, Bayh 
and Nelson of Florida. We will also address today selected 
provisions of the proposal which was sent to the Congress by 
Attorney General John Ashcroft on Wednesday, September 19. The 
Attorney General provisions we will address today are those 
that fall within the jurisdiction of the Intelligence 
Committee.
    A number of panels and commissions in recent years all have 
made clear that any effort to improve the governmentwide 
approach to terrorism must take into account every facet of the 
issue--detection, prevention, consequence management, crisis 
management, and law enforcement, diplomatic and military 
responses. We, as a government, need to address these issues in 
a coordinated fashion so that priorities may be set, resources 
allocated, and government structures changed, if necessary, to 
serve that overall strategy. A counterterrorism intelligence 
program must be designed within that larger context of a 
government counterterrorism program. We must have a centralized 
authority for managing the intelligence components of that 
counterterrorism policy. The Director of Central Intelligence 
needs to perform that intelligence role for the U.S. 
Government.
    In the wake of the September 11 incidents, we must begin to 
act on myriad aspects of this problem. Accordingly, last 
Friday, in addition to the legislation I have already 
referenced, I introduced another bill, S. 1449 which creates a 
National Office for Combating Terrorism within the White House. 
Senator Feinstein and I and others have been working on this 
proposal for several months. We believe, along with the other 
co-sponsors--Senators Rockefeller, Durbin, Mikulski, Bayh, and 
Nelson of Florida--that for a coordinator of the forty-plus 
Federal agencies that must play a role in counterterrorism that 
the office should be with the following characteristics.
    It should be created in statute so as to support the 
Legislative and Executive branches. It should have a Senate-
confirmed director so that he will have the stature appropriate 
for the position and should have budget authority over that 
portion of the various agencies' budgets which relate to 
counterterrorism so that the director can set priorities and 
allocate the resources appropriately against those priorities. 
And finally, the director should examine the overall structure 
of the U.S. Government to deal with terrorism prevention and 
response and, if necessary, recommend restructuring or merging 
of agencies and functions.
    We believe that the President's Executive order was a 
significant step forward to achieve these objectives, and that 
the President's selection of Governor Tom Ridge is an excellent 
choice to coordinate this enormous and critical effort by the 
U.S. Government. We want to give him the authority and the 
tools he needs to be successful.
    In this hearing today we will not be discussing the 
National Office for Combating Terrorism. The Committee will 
have hearings on that bill in the near future in conjunction 
with the other committees of jurisdiction, such as the Senate 
Committee on Governmental Affairs.
    Today we want to focus on the issues that are most critical 
for immediate resolution by the Congress. The Attorney General 
has urged expedited attention to his series of proposals. Our 
action today and the Judiciary Committee's hearing tomorrow, 
which will focus on those matters in its jurisdiction, are 
indicative of the close collaboration between the 
Administration and the Congress on these critical issues.
    The bill that we will discuss today includes a number of 
statutory provisions relating to clarifying the authorities of 
the Director of Central Intelligence to combat terrorism; 
updating the laws governing electronic surveillance to collect 
foreign intelligence so as to improve collection against 
international terrorist targets; and enhancing the ability of 
law enforcement and intelligence agencies to share critical 
information relating to the plans and intentions of terrorists.
    This legislation represents the culmination of months of 
effort by many Members of this Committee and other Members of 
the Senate. I would like to particularly recognize Senator 
Feinstein and Senator Kyl for the effort that they have 
invested in this legislation.
    My colleagues and I are committed to the substance of these 
provisions because we believe that they enhance intelligence 
collection without unreasonably diminishing our civil 
liberties. We welcome the comments from the witnesses today to 
help us ensure that the language of these provisions will 
accomplish both of those goals. We hope that the experts at the 
Justice Department, FBI and CIA will work with our staff to 
make certain that we have drafted these provisions in an 
effective manner.
    In addressing these issues, we must be mindful that the 
terrorist threat to the United States is not a crisis; it is a 
cancerous condition which we will have to deal with over an 
extended period of time. Many people liken the war that we are 
now commencing against terrorism to the war that we have been 
waging over the past three-quarters of a century against 
organized crime. Much of the progress we have made in the war 
against organized crime is a direct result of changing laws to 
enhance our abilities to deal effectively with this long- term 
scourge. In a similar fashion, the legislation that we are 
considering today would allow us to more effectively deal with 
terrorism as a long-term threat.
    Many of the proposals in our bill deal with electronic 
surveillance to collect foreign intelligence inside the United 
States, as authorized under the Foreign Intelligence 
Surveillance Act of 1978. This bill will bring those collection 
capabilities into the 21st century. Wiretapping laws relating 
to criminal collection, as contrasted to foreign intelligence 
collection, have already been updated in many respects. This 
bill applies the same Constitutional and civil liberties 
protections in the Foreign Intelligence Surveillance Act 
context that we are currently applying in the criminal context.
    Vicki Divoll, our Committee's General Counsel, will walk 
through provisions of the bill in a moment.
    Later we will be asking our witnesses for their views on 
both the provisions of S. 1448, as well as select provisions of 
Attorney General Ashcroft's proposed legislative program which 
are relevant to the Intelligence Community.
    After Ms. Divoll has completed her outline of the 
provisions in S. 1448, we will turn to our first panel. But 
first Vice Chairman Shelby.

         OPENING STATEMENT OF HON. RICHARD C. SHELBY, 
             U.S. SENATOR FROM THE STATE OF ALABAMA

    Vice Chairman Shelby. Thank you. Thank you, Mr. Chairman. 
Thank you for calling this hearing. Mr. Chairman, Members of 
the Committee, I have a few observations.
    For many years, this Committee has been emphatic regarding 
the critical importance of our intelligence apparatus. It is 
our first line of defense in the war against terrorism and it 
could be our first line of offense.
    Granted, there are some things that we can do in the short 
term to improve our ability to address this threat and I 
believe we will do them. We have already provided additional 
funds and we will grant, I believe, the executive branch new 
legal authorities through legislation that we are discussing 
today.
    There is a more fundamental problem, however, that cannot 
be fixed by quickly drafted legislation or emergency funding. 
Our current national security structure is a legacy of the cold 
war. The Department of Defense and the Intelligence Community 
were organized to counter the Soviet threat and they remain in 
essentially the same form today. The failure of our national 
security institutions to transform and adapt is a direct result 
of nearly a decade of inaction and neglect in light of a 
dramatically changing world situation.
    Changing circumstances, as we all know, demand a change in 
strategy. If we fail to develop a comprehensive national 
strategy to achieve clear objectives, there is no chance of us 
organizing our Government to defeat successfully the terrorist 
threat.
    Our Nation derives its guiding principles from the 
Declaration of Independence and the Constitution. Our Federal 
Government, in accordance with these guiding principles, 
develops its objectives and strategic plans in light of the 
current world situation.
    After World War II, the United States faced an entirely new 
world situation. We went from a relatively isolated and 
disengaged player on the world stage to the central figure in a 
global clash between freedom and communist tyranny. Just as the 
growing Soviet menace and its developing nuclear capability 
gave rise to President Truman's reexamination of our national 
objectives and national security strategy, so must the attacks 
on New York and Washington give rise the to same type of 
examination.
    The result of Truman's reexamination was a document--NSC-
68--that formed the basis of our national security strategy and 
our plans to achieve it for nearly the next half century. The 
Soviet Union subsequently collapsed not only because it was 
fundamentally corrupt, but because the United States had a 
clear purpose and vision of its place in the world and a plan 
to achieve it.
    I believe we now need that same type of vision and a plan. 
There have been many commissions, studies and reports on every 
aspect of our national security policies and structure. But, 
they all have operated in the same vacuum created by the lack 
of any clear statement of our national purpose in the post cold 
war world.
    The President has already begun the reexamination and taken 
some very important steps. Now, I believe, he needs to 
memorialize his vision and assign responsibility and organize 
the Federal Government to achieve our national objectives.
    Why is this important for the Intelligence Community? We 
all know very well the debilitating effects that turf battles 
and parochialism can have on our ability to organize and 
accomplish anything at all. These same maladies have often 
paralyzed the Intelligence Community. The Intelligence 
Community is still organized in tightly controlled ``stove-
piped'' organizations that often refuse or are unable to share 
information with each other for any number of reasons.
    The new threats that we face require an intelligence 
organization that is organized and managed in a manner that 
recognizes its fundamental purpose. That purpose is to collect, 
analyze and disseminate information. Our intelligence apparatus 
is first and foremost an information enterprise. Any effective 
information enterprise by definition must be networked, be 
interactive, agile, flexible and focused.
    The agencies and elements of the Intelligence Community are 
anything but agile. They are often paralyzed by their 
bureaucratic structure. Perhaps the rigid structure was 
appropriate for monitoring the Soviet Union, but I believe it 
is antithetical to meeting today's threats. It is particularly 
ill suited for using modern information technology.
    The classic bureaucracy is designed to limit interaction 
between its people. We will never be able to defeat the 
terrorist threat without the ability to share rapidly all 
sources of information on terrorist activities and then take 
decisive action.
    As we saw in the bombing of the U.S.S. COLE, we may not get 
specific tactical warning. But, we may be able to formulate a 
clearer picture of the threat if our analysts have access to 
every available piece of information and are allowed to 
synthesize and disseminate this information. This type of 
interactive and dynamic community is possible if we have strong 
leadership guided by a clear vision. But, it will take time, 
and we don't have time.
    I believe that we need to embrace an unconventional 
approach. The terrorists think unconventionally. We need new 
thinking and new people looking at this problem. We need our 
country's most talented and capable people leading the effort.
    The old ways, I would submit, have failed us time and again 
in the new threat environment that we're in today. The examples 
continue to grow. We all know we've had some successes, but 
let's talk about the problems--the attack on Khobar Towers; the 
first attack on the World Trade Center; the attack on the 
U.S.S. Cole; the attacks on our embassies in Africa; and the 
attacks on September 11.
    We have shed enough blood and squandered enough treasure. 
We need a rapid response. And, I'm afraid that the calcified 
bureaucracies of our national security institutions are not 
capable of rapid change. I believe we need to start over with a 
national commitment of talent and resources much like 
President's Kennedy's effort to take us to the moon. We need an 
action-oriented approach where success is measured in the 
amount of terrorist cells destroyed or disabled, not on how 
many reports are issued.
    I don't know if this new approach will spawn a new 
organization, but we must begin to think, as we say, outside 
the box. The answers to this problem are out there and we need 
to bring them in, nurture and support them and let them 
flourish undeterred by the stranglehold of government 
bureaucracies. Our Intelligence Community, as presently 
constituted, is virtually incapable of such an effort. As we 
learned on September 11, the threats are immediate as must be 
our response.
    We can talk about legislative fixes and appropriating more 
money to feed our failed institutions. I've done some of both. 
What we cannot do is continue to ignore our limitations and our 
vulnerabilities. If we fail to marshal our Nation's collective 
talents and resources behind this effort, we are just waiting 
for the next attack.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Mr. Vice Chairman.
    [The prepared statement of Senator Rockefeller follows:]

  Prepared Statement of Senator John D. Rockefeller IV, U.S. Senator 
                           from West Virginia

    Thank you Mr. Chairman. I am grateful for the leadership you have 
shown over the past 2 weeks as the Congress and the American people 
have struggled to come to grips with the consequences of the September 
11 attacks. The legislative package you and Senator Feinstein 
introduced on Friday is just one example of that leadership. You have 
also provided the kind of measured, temperate analysis of the situation 
that has helped reassure the American people that the Congress is not 
only aware of the problems we face, but is working expeditiously to 
implement meaningful and well thought out solutions.
    Your legislation is an example of that forward looking, measured 
approach. This Bill, S. 1448, is the product of several months of work. 
I know you and your staff have reached out to other relevant Committees 
in the Senate and have shared language and held discussions with the 
Administration on all of these provisions. This effort, along with the 
priorities you have set for the Intelligence Committee and the funding 
included in the annual Intelligence Authorization Bill, provides the 
groundwork to have a meaningful impact on intelligence collection 
against terrorists.
    The challenge we have now is to evaluate each of these proposed 
changes, not as a response to recent events, but for how they will help 
our intelligence and law enforcement communities deal with terrorism in 
the long term. As we bolster those efforts to protect America from 
terrorist attacks, we must make sure we do not sacrifice civil 
liberties for short term security. Changes we make in the next few 
weeks will be with us long after we have vanquished Osama bin Laden. 
Therefore, those changes must be consistent with our underlying values.

    Chairman Graham. Ms. Divoll.

   STATEMENT OF VICKI DIVOLL, GENERAL COUNSEL, SENATE SELECT 
    COMMITTEE ON INTELLIGENCE; ACCOMPANIED BY: STEVEN CASH, 
        COUNSEL, SENATE SELECT COMMITTEE ON INTELLIGENCE

    Ms. Divoll. Thank you, Mr. Chairman, Mr. Vice Chairman. I'd 
like to introduce Steve Cash, who is also a counsel on the 
Committee and works on counterterrorism issues for the 
Committee.
    I'm just going to walk through briefly the provisions in 
the Graham-Feinstein bill, S. 1448. I'll start with title I, 
Clarification of Authorities of the Director of Central 
Intelligence.
    Section 101. The purpose of that provision is to put the 
DCI in his Intelligence Community hat, not his hat as head of 
the CIA, this Intelligence Community role in a position to 
manage the information collected under the Foreign Intelligence 
Surveillance Act. Currently the DCI manages the strategies for 
collecting using every other tool available to him. The FISA 
tool is a critical tool used inside the United States, but it's 
a critical tool for collecting foreign intelligence.
    The provision is designed to put the DCI at the very front 
end and the very back end of that process. Operational efforts 
would still be conducted by the FBI, because this is a domestic 
activity. The specific targeting would be done by the FBI. But 
the DCI would perform with respect to FISA the same function he 
performs in other areas, which is to set an overall strategy 
for how this valuable resource should be used, how it should be 
allocated, how it should be prioritized, and how it would fit 
in with the rest of the collection--would it be redundant, 
would it be in addition to the other types of collection that 
we have.
    So he would be responsible for setting those priorities and 
providing a strategy to the FBI for them to use in implementing 
that strategy.
    He would also find himself at the end of the process. As a 
Vice Chairman mentioned, all the information collected of 
foreign intelligence value has to get to the analysts and has 
to be analyzed as part of all the information coming in and has 
to then be processed and make it to the policymaker/consumer so 
they can act on it.
    FISA needs to be part of that process, and this would put 
the DCI in charge of making sure that the information is 
tracked to the proper analysts, is analyzed and makes it into a 
disseminated product to the community. We feel that that's an 
important role for him to play.
    The second provision is more of a technical change but also 
important in the sense that in looking at the definitions of 
the National Security Act of 1947 you see that the definition 
of counterintelligence includes international terrorism, but 
the definition of foreign intelligence does not. The purpose of 
this provision is to clarify that. The purpose is not to 
rearrange the responsibilities between the FBI and the CIA with 
respect to collection and activities. The purpose is to clarify 
in the law that of course the DCI has a role in international 
terrorism overseas.
    As you play out the National Security Act through its 
provisions, we want to make sure that that is clarified in the 
law.
    Section 103 is an attempt to deal with the much-publicized 
issue of recruitment of terrorists who have unsavory pasts, 
whether it be violent crimes or human rights abuse. Everyone 
seems to acknowledge that those are the types of people who 
would be most helpful in this effort to collect information, 
human source intelligence information. But there is a fear that 
the regulations at the Agency, the CIA, have a chilling effect 
on efforts in the field to recruit those types of people.
    The effort here is to clarify in law, if the Congress 
accepts this provision, wants to send a message to the field 
that this is lawful, to recruit such people and establish 
relationships with them. This provision does not attempt to 
dictate to the DCI or the Executive branch what types of 
approval processes they need to have to make sure the officers 
do their work appropriately. It merely is designed to State in 
law that this is a lawful activity.
    Section 104 is an attempt to give a break to the 
intelligence agencies who prepare so many reports for Congress 
on intelligence matters. Given that they are busy with other 
things now, we thought we would give them an extension until 
February 1 and they can have an extension beyond that if they 
certify to the Committee that the people who prepare those 
reports are working on counterterrorist matters.
    Title II deals with several aspects of electronic 
surveillance. Section 201 is meant to deal with the definition 
of communications under FISA. The purpose of this provision is 
to carve out of that definition communications that aren't 
really content-based, that wasn't intended when the provision 
was enacted to be part of the FISA process.
    These would be the types of communications where, for 
example, a hacker tells his computer to tell another computer 
to do something or not do something. One example we've given is 
if a hacker in a foreign country communicated with the computer 
of the Hoover Dam, for example, and told it to open the flood 
gates, that type of communication is not content based and 
really has no purpose in requiring a FISA order. So the FBI 
would be able to collect that type of communication without 
having to get a FISA order.
    Sections 202 and 203 are both provisions that we've had in 
this bill for some time but that are also part of Attorney 
General Ashcroft's package. Section 202 speaks to the duration 
of surveillance and physical search orders under FISA against 
non-U.S. persons, including terrorists operating as agents of 
foreign powers inside the United States. The current law 
requires the Department of Justice to renew those applications 
every 90 days for electronic surveillance and every 45 days for 
physical searches. This provision would extend both of those to 
1 year and would hopefully free up the lawyers at the 
Department of Justice and the FBI also to work on new FISAs 
rather than having to constantly go back and renew old FISAS.
    Section 204 is a provision that clarifies in law that 
Foreign Intelligence Surveillance Act collections can occur 
simultaneously with title III collections in the criminal 
arena. This would say that there are two courts that deal with 
those. The prosecutors would have to make the showing required 
under title III for a criminal wiretap, and the FISA lawyers 
would have to make the showing to the FISA court that it meets 
the standards of FISA.
    In some cases it makes sense, if the lawyers decide that it 
does, to do both, and as long as both standards are met, both 
courts approve it, we felt it was useful to clarify that in the 
law.
    Title III is entitled----
    Senator Feinstein. Mr. Chairman, excuse me. She skipped 
section 203, which I think is an important section.
    Ms. Divoll. Oh, thank you, Senator, yes.
    That is a provision that is also in the Ashcroft proposal. 
This is a provision that tries to get FISA up to date with the 
criminal context. In criminal wiretap law there is something 
called a roving wiretap that's been accepted as an appropriate 
approach. This would allow that same type of targeting to be 
done under FISA. If it's a situation where a terrorist target 
is trying to defeat the collection against him by throwing away 
a phone and picking up a new phone or moving or whatever method 
he would use, this would allow that FISA to continue on to the 
other technology rather than having to be re-applied to the 
FISA court.
    Thank you, Senator.
    Section 301. In law currently there is a requirement that 
officers in the intelligence community agencies in the course 
of their duties, if they come across evidence of a crime, a 
U.S. crime, they are required by law to report that to the 
Attorney General. There's an elaborate process in the agencies 
to do that. This would be in a sense a reverse crimes reporting 
requirement.
    This requires law enforcement officers in the course of 
their duties, if they come across foreign intelligence 
information, they would also have a duty to provide that to the 
DCI, again so that all-source reporting, all of the information 
available to the U.S. Government is used properly and 
effectively to counter this threat and other threats.
    Section 302, the Foreign Terrorist Asset Tracking Center. 
This is a reporting requirement. It's not a mandatory 
requirement. It asks the DCI, the Director of Central 
Intelligence, and the Secretary of Treasury to work together 
and by February 1 come up with a proposal to implement in the 
Department of Treasury or wherever they see fit an operation 
that would track terrorist financial 
networks and transactions and provide that information to the 
Intelligence Community, which would hopefully provide valuable 
information about relationships within terrorist groups and the 
communications among them and the transfers of money. So that's 
required as a report by February 1.
    Section 303 is the National Virtual Translation Center. One 
of the key problems that's been highlighted by many is the fact 
that we collect vast amounts of intelligence, both technically 
and with human sources, and that we don't have the capabilities 
to translate that quickly and efficiently get it to the 
analysts and the operators in the field who need it.
    This provision would require the establishment of a center 
that really is not a bricks and mortar kind of thing. It's a 
virtual center that would link up, through a secure data base, 
the vast translation resources available in our country. People 
who live in different parts of the country and have unusual 
translation and language capabilities could be hooked up, the 
information could be put in a data base after it's collected, 
sent to them They would process it, put it back in the data 
base. It gets to the analysts and ultimately to the consumer in 
an efficient way.
    Section 304 is a training provision that we think augments 
many of the other provisions that I've spoken about. It 
provides for training of Federal, State and local officials who 
may come across in their duties foreign intelligence 
information but wouldn't know how to recognize it. They would 
be trained to know what to look out for and who to call to get 
it into the Federal Government's hands.
    It also would train them to be better consumers of 
intelligence so in the event of a crisis such as the one we 
just had, when the Federal Intelligence Community reaches out 
to State and local they will have a point of contact and a 
frame of reference and be speaking the same language. So that's 
the purpose of that provision.
    Thank you.
    Chairman Graham. Are there any questions of Ms. Divoll?
    Senator Shelby.
    Vice Chairman Shelby. Ms. Divoll, did you go into section 
103? You mentioned that, did you not?
    Ms. Divoll. Yes.
    Vice Chairman Shelby. This deals with the establishment and 
maintenance of intelligence relationships to acquire 
information on terrorists and terrorist organizations. With 
respect to section 103 of this legislation, under applicable 
law and current CIA guidelines who can our intelligence 
officers recruit?
    Ms. Divoll. The intelligence officers recruit those that 
they feel are appropriate to meet the requirements they have 
been given, and then there's an elaborate process within the 
Agency to vet those recruitments and approve them up through 
the chain of the Agency.
    Vice Chairman Shelby. Does section 103 present any 
separation of powers issue? If so, how do you resolve them in 
favor of the legislative branch?
    Ms. Divoll. Well, that's a good question.
    Vice Chairman Shelby. I guess the first question is, do 
they present any separation of powers issues?
    Ms. Divoll. I don't think so, Senator. One approach 
recommended by some to deal with these regulations within the 
Agency--these are classified regulations but essentially 
they're an approval process to make sure that those who would 
be recruited who have difficult pasts, that there's enough 
approval process up the chain to balance the risks of working 
with someone like that against the gains.
    To just rescind those regulations by statute I think would 
present separation of powers problems because you are 
essentially telling the Executive branch what to do in their 
own internal approval processes.
    Vice Chairman Shelby. We would be telling the Executive 
branch what to do and how to do it.
    Ms. Divoll. Yes, Senator. We thought that this didn't quite 
go that far and this just states in law that this type of 
recruitment is lawful and doesn't attempt to tell the Executive 
branch what types of approvals they would need to make sure 
that it's done properly.
    Vice Chairman Shelby. But the Executive branch on their own 
could change that as they changed it one time before.
    Ms. Divoll. Yes, Senator.
    Vice Chairman Shelby. I'd like to ask, Mr. Chairman, Mr. 
Cash a question if I could on section 303, the National Virtual 
Translation Center. My question concerns the establishment of 
this center.
    Mr. Cash, as a former intelligence officer, you know how 
important language skills are in the gathering, analysis and 
dissemination of intelligence. Could you elaborate on what this 
center would do? In other words, how would it assist us in 
preventing the next terrorist attack?
    Mr. Cash. Mr. Vice Chairman, if I could answer that 
question with an example, if an intelligence officer sitting at 
Langley acquires, through whatever means, a document in a 
language like Urdu, the only Urdu translator who may be 
available right then, that day, may be living in Seattle. It's 
going to be very hard to fly him to Washington and it's going 
to be hard to take the document to Seattle.
    The idea of the National Virtual Translation Center is that 
these resources would be linked through an internet-like 
mechanism, secure of course, which would allow the translation 
to take place in Seattle, the intelligence officer in Langley 
to read the results, perhaps share it with a colleague in 
London or France or some other country, and then maybe with an 
FBI agent in New York, all in near-real time, all without 
moving any human beings anywhere.
    So instead of having to wait days to translate and read 
critical information, it could be minutes.
    Vice Chairman Shelby. I like the idea and I could see how 
it could work. Is there a projected cost for this center? As an 
appropriator, I wondered if you had talked to Senator Inouye or 
Senator Stevens about this.
    Mr. Cash. The intention here is that, given the guidance 
that this statute would contain, that the DCI in his community 
role would take a look at this problem, with the general 
guidance we've given him, which is we would like you to 
establish such a center, and then would be able to come back to 
the Congress in a relatively short amount of time and say this 
is what it takes to get it done, this is how much money I will 
need to get it done, and this is how long it will take.
    Vice Chairman Shelby. What you'd be doing really, in a 
sense, is utilizing the latest technology to take advantage of 
any weapon deficiencies you might have.
    Mr. Cash. That's exactly it--Napster for spies.
    Vice Chairman Shelby. Thank you, Mr. Chairman.
    Chairman Graham. Thank you.
    Senator Edwards. Mr. Chairman.
    Chairman Graham. Senator Edwards.
    Senator Edwards. Ms. Divoll, I wonder if you would, for all 
of our purposes, contrast the provisions in this legislation 
with respect to information-sharing between the FBI and the CIA 
with the Administration's proposals and comment on why your 
legislation is different.
    Ms. Divoll. Certainly, Senator. There are some differences 
and there are some similarities. The Administration's package 
includes express changes in title III and rule 6(e) of the 
Federal Rules of Criminal Procedure to make certain that 
information collected in those ways can make it to the 
intelligence community. It's optional, but it would remove an 
impediment in law that now exists and open that up to possible 
sharing.
    The Administration bill also has a provision that is a 
catch-all that catches everything else other than 6(e) and 
title III and says everything else also collected in the 
criminal context can be passed.
    Our provision, section 301, goes a little further in one 
respect. In current form it says ``in accord with other 
provisions of law'' this information may be shared. If the 
title III and 6(e) provisions of the Ashcroft proposal are not 
enacted, then that type of sharing would not happen under 
section 301 because it would be otherwise prohibited by law.
    If they are enacted, then this provision says that all such 
information, all such foreign intelligence information, 6(e), 
title III and all other--whether it be an FBI interview or 
collected in some other way--must be shared. It doesn't give 
them discretion.
    Senator Edwards. One other question, Mr. Chairman.
    Chairman Graham. Let me just mention that the first witness 
on the first panel will be Mr. David Kris, Assistant Deputy 
Attorney General at the Department of Justice, who will provide 
us with the same analysis of the Attorney General's provisions 
as they relate to the jurisdiction of this Committee, as Ms. 
Divoll has just done for 1448.
    Senator Edwards.
    Senator Edwards. Thank you. This is another question for 
Ms. Divoll. Under current law FISA procedures can only be used 
when the primary purpose, ``the'' purpose, is foreign 
intelligence gathering. The Administration has proposed that 
``the'' be changed to ``a,'' as I understand it, which would 
mean that it has to be a purpose, not the primary purpose.
    That provision is not in this legislation; is that correct?
    Ms. Divoll. It's not.
    Senator Edwards. I wonder if you could comment on why it is 
not included.
    Ms. Divoll. Well, we've had the Ashcroft proposals just for 
a few days now, and these proposals we've worked on for some 
months. I think that it's fair to say that the Ashcroft 
proposals, coming after September 11, have sought to really go 
quite a bit further than we felt we would be able to go in this 
provision, and we haven't looked at that provision with the 
Chairman to determine whether it would be a good change or not. 
We're still working on that.
    Senator Edwards. Have you done any work yet on the question 
of the constitutionality of making that change and broadening 
the FISA procedures? As I understand it, one of the reasons 
that they have withstood constitutional muster up until now is 
because of the limitation to foreign intelligence gathering.
    Ms. Divoll. Yes, Senator. I don't pretend to be an expert 
in the courts that have reviewed FISA, but I think it is safe 
to say that if you make a fundamental change in FISA it is 
possible that the courts would feel they would need to take a 
second look and make sure that it meets constitutional muster.
    Senator Edwards. My only comment would be I think many of 
us believe that the expansion of some of these authorities is a 
very good idea, but I think we need to make certain that we're 
doing it within the framework of what's constitutionally 
permitted.
    Thank you, Mr. Chairman.
    Chairman Graham. Senator Durbin, then Senator Kyl, then 
Senator Bayh.
    Senator Durbin. Thank you very much. Thank you for the 
presentation.
    A lot of attention has been directed toward section 103 and 
the so-called question of dirty assets and the regulations that 
were issued by the CIA in 1995, as I understand it requiring 
field officers to obtain prior CIA headquarters approval before 
establishing a relationship with an individual who has 
committed serious crimes, human rights abuses or other 
repugnant acts.
    If I recall our earlier conversation, the situation that 
gave rise to this was in Guatemala, where some of the people 
whom we were working with turned out to have been involved in 
the assassination and killing of Catholic priests and nuns, 
which gave rise to this new regulation requiring headquarters 
approval.
    If you can answer this, can you tell me, since the 
enactment of these regulations in 1995, has the Agency ever 
turned down a field request to recruit an individual in a 
terrorist organization or in any way avoided contact with 
individuals, regardless of their past, who may have had 
information about terrorist activities?
    Ms. Divoll. Senator, when the Bremer Commission on 
Terrorism came out with their recommendation a few months ago 
recommending rescinding of these internal CIA regulations, the 
Agency came forward publicly and answered that question and 
said that no proposal to recruit someone with human rights or 
other problems who had valuable information on terrorism and 
terrorist targets, none of those had been turned down.
    The approval process can be very prompt and efficient, 
particularly if there is a sense of urgency, and I think people 
in the Agency believe that it has done a good job of balancing 
the need to work with such people against the risks of working 
with such people.
    Senator Durbin. I don't know if you can answer the second 
question, but it will be my last one. Is there a belief that 
these regulations have had a chilling effect on people in the 
field in terms of those that they seek to recruit for fear of 
these regulations or a negative response from headquarters?
    Ms. Divoll. I think some believe that the people in the 
field feel that way. Some of the people in the field report 
that to Senators when they are on trips. Others of them, 
particularly those who work exclusively in the counterterrorist 
area I think say ``no.'' I think they feel that this is their 
mission, this is their duty, and that it would be career-
enhancing, if you will, to make such a recruitment. So there is 
controversy on that.
    The purpose of this provision was to make sure that, to the 
extent anyone feared Congress's reaction to those types of 
recruitments that we said clearly in law that it's appropriate 
and desirable.
    Senator Durbin. Thank you. Thanks, Mr. Chairman.
    Chairman Graham. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. I needed to ask this 
question now. It may be appropriate for the next panel too, but 
I have a commitment from 4 o'clock to 5 o'clock that was made 
before this hearing was scheduled that I must honor.
    So let me ask this panel first. This is really the reverse 
side of what Senator Edwards asked earlier. Under domestic law, 
law enforcement agencies can use pen registers and trap and 
trace devices to capture so-called peripheral data associated 
with a telephone call. The Supreme Court has ruled that that is 
fine, that there is no reasonable expectation of privacy in 
just the mere fact that one person called another. The actual 
communication is all that's protected. In other words, the 
telephone number or fact of the call is not.
    My understanding under FISA is that the existence of the 
call or the data exchange is termed a communication that must 
be protected from electronic surveillance. Did you look at the 
possibility of altering that to conform it to domestic law and, 
if not, is there any reason that you know of why under FISA the 
digital or peripheral data associated with a call has to be 
considered as sensitive as the communication contained with the 
call.
    Ms. Divoll. Senator, I understand. The provisions in the 
Graham-Feinstein bill, again as you know because you worked on 
it, were put together before September 11, and I think that the 
provision you're talking about, which is part of the Ashcroft 
proposal, will be one that this Committee will look very 
seriously at. We didn't include everything in this. We didn't 
feel that we could push too far because we weren't in the State 
we're in now. But I think people are going to look at that very 
carefully through the Ashcroft provisions.
    Chairman Graham. Thank you, Senator.
    Senator Bayh.
    Senator Bayh. Thank you, Ms. Divoll. Could you please 
expound in a little greater detail on the asset tracking 
center? It seems as if the provision focuses on the analysis 
and dissemination of foreign intelligence related to financial 
capabilities but doesn't really propose any additional action 
based upon the information, such as extending the suspicious 
activity reporting requirements or perhaps prohibiting a 
foreign entity that had been identified as a primary money-
laundering concern from doing business in the United States.
    Was there a reason for that?
    Ms. Divoll. If it's all right, sir, I'll defer to Mr. Cash 
to answer that.
    Mr. Cash. The intention here was to direct the creation of 
an entity that would allow the effective analysis of the vast 
amount of data from all different sources related to finance 
and financial transactions, analyze it, and make sure that it 
gets to the consumers. One of the very consumers that we were 
worried about are the kind of people in, for instance, the 
Department of the Treasury who make exactly the policy 
decisions or operational decisions you just referred to. So the 
intent was not to try to change the standards for, for 
instance, freezing assets or acting on a suspicious activity 
report, but rather to ensure that those policymakers are 
serviced as well as possible by the Intelligence Community.
    It addresses the concern that that wasn't happening--a lot 
of financial data not going to a central place, not getting out 
to all of the right people.
    Senator Bayh. The left hand not knowing what the right hand 
was doing.
    Mr. Cash. Exactly.
    Senator Bayh. Thank you, Mr. Cash.
    Chairman Graham. Thank you, Senator.
    Senator Rockefeller.
    Senator Rockefeller. It's possible that Senator Durbin 
asked this question, but I didn't hear it. There's a follow-up 
to his question. If one says that no requests have been turned 
down from the field for approval at a higher level in so-called 
less-than-savory assets, and then you come back and you say 
``no,'' that's a very declarative answer. The other side I'm 
looking at, of course, is that not many requests are made 
because people don't want to be hung out to dry in case their 
asset turns in some way to be nastier than anticipated.
    So my question would be, in fact, in view of the need for 
this kind of asset, have there been the numbers of requests for 
these folks that would warrant the statement ``Oh, there really 
isn't a problem because nobody's been turned down.''
    Ms. Divoll. Senator, I think one way to answer that 
question is to speak to the difficulty of this type of 
recruitment in the first place. I think that people look at--
people who are involved in the intelligence business look at 
this type of issue and they say we haven't succeeded, what's 
the problem, maybe it's these regulations, when in fact the 
target is a very difficult one and the officers are working 
hard to recruit that type of person, but that type of person 
often is not going to want to work for the U.S. Government.
    So I think it's more a reflection of the difficulty of the 
target than the procedures themselves would be my answer.
    Senator Rockefeller. OK.
    Chairman Graham. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman. I thank both of you 
for your presentations.
    I think what Senators are reflecting is a desire for some 
balance. It's obvious that we want to have new tools out there 
to protect our citizens from the threat of terrorism without 
giving up the ages-old tradition of protection for freedom and 
civil liberties. It seems to me what both bills are trying to 
do--and maybe you can clarify this--is both them seem to give 
the judiciary a pretty significant role with respect to most of 
the areas where new power is authorized. Is that correct? Maybe 
I'm missing something. I think the hacking provision may be one 
that is different, but for the most part the judiciary is given 
pretty significant powers with respect to reviewing all this. 
Maybe you could comment on that with respect to both bills.
    Ms. Divoll. Yes, Senator. The vast majority of the 
provisions in both bills are designed to expand the situations 
in which a court may order a FISA. It certainly doesn't require 
the court to order a FISA in those situations. It would, as you 
said, both in the criminal title III context and in the FISA 
context, judicial officials--the FISA court and the criminal 
courts--would be passing on these applications. They would just 
have a little bit more clear guidance from the Congress and a 
little bit more leeway on approving them, but they would still 
be reviewed.
    Senator Wyden. Thank you, Mr. Chairman.
    Chairman Graham. Are there any other questions? If not, 
thank you very much, Ms. Divoll and Mr. Cash.
    I'd like to ask our first panel if they would please come 
forward. Mr. David Kris, Assistant Deputy Attorney General of 
the Department of Justice, Mr. Larry Parkinson, General Counsel 
of the Federal Bureau of Investigation, and Mr. Robert 
McNamara, General Counsel of the CIA.
    As they are settling in, Senator Feinstein would like to 
make an introduction to the Committee.
    Senator Feinstein. If I might, there is a gentleman in the 
audience that I would like to introduce to the Committee. He is 
the brother of the pilot of the American Airlines Flight 77 
that crashed into the Pentagon on September 11. Of course all 
58 passengers and five crew members perished. The pilot, 
Charles Burlingame, was a graduate of Anaheim High School in 
California. He attended and graduated from the U.S. Naval 
Academy. He served in the Navy from 1971 to 1978, where he flew 
F-4 Phantoms and retired with the rank of Commander. From 1979 
to 1998 he served in the Naval Reserve, obtaining the rank of 
Captain. He has had a 22-year career as a pilot with American 
Airlines and he was a day short of his 52 birthday when this 
happened. He leaves a wife, Sherry, and a 26-year-old daughter, 
Wendy, as well as two brothers, Mark and Brad, and a sister, 
Deborah.
    Brad Burlingame is here today. He is the president of the 
West Hollywood Convention and Visitors Bureau. Both Mr. 
Burlingame's father and mother are buried in Arlington 
Cemetery, and the family is very desirous that Mr. Burlingame 
be buried there as well. I would like to ask Brad Burlingame if 
he would stand so that the Committee might acknowledge his 
presence.
    Senator Mikulski. Thank you very much, Senator Feinstein. 
His brother lived in Maryland, so we also wish to welcome you 
as well.
    Senator Feinstein. Thank you.
    Chairman Graham. Thank you very much, Senators Feinstein 
and Mikulski. We extend to you and through you to all of the 
families of the victims of this horrible tragedy our deepest 
sympathy.
    As indicated, Mr. Kris is prepared to not only comment on 
the proposals that are included in the introduced legislation 
but also on those provisions within the Attorney General's 
recommendation which relate to the jurisdiction of the 
Intelligence Committee. Mr. Parkinson is not going to be making 
formal testimony but will be here as a colleague of Mr. Kris.
    Mr. Kris.

  STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL, 
DEPARTMENT OF JUSTICE; ACCOMPANIED BY: LARRY PARKINSON, GENERAL 
            COUNSEL, FEDERAL BUREAU OF INVESTIGATION

    Mr. Kris. Thank you, Mr. Chairman, Mr. Vice Chairman and 
Members of the Committee. Thank you for the opportunity to 
discuss proposed legislative responses to the acts of terrorism 
inflicted on our country on September 11.
    My name is David Kris and I am an Associate Deputy Attorney 
General at the Department of Justice. My portfolio there 
includes national security policy and FISA, the Foreign 
Intelligence Surveillance Act. This is my first appearance 
before this Committee--actually before any Committee--and I 
appreciate the opportunity to present the Department's views.
    Chairman Graham. We appreciate this opportunity to be your 
first exposure to the Congress and we will try to act with 
appropriate respect.
    Mr. Kris. Thank you.
    The Attorney General and the Deputy Attorney General both 
wanted to be here today. Unfortunately, a conflicting prior 
commitment to testify before the House Judiciary Committee and 
their operational duties in connection with this investigation 
have made that impossible. But, Mr. Chairman and Mr. Vice 
Chairman, they send their apologies and they hope that you and 
other Members of the Committee will accept their heartfelt 
appreciation for your extraordinary leadership at this critical 
time.
    In particular, Mr. Chairman, I want to thank you and the 
Vice Chairman and the other Members for the Committee's 
expeditious consideration of our request for a hearing today. 
For that and for the collaborative spirit that you have shown 
throughout this process we are deeply grateful. The Department 
has long enjoyed a close working relationship with this 
Committee and we look forward to its continuation.
    We're also grateful that you have invited our views on the 
bill that you and Senator Feinstein introduced 3 days ago. I 
know you share our goal of giving the law enforcement and 
intelligence communities the tools that they need to stop 
terrorists before they can strike again.
    Mr. Parkinson and I are prepared to discuss in detail the 
specific provisions of the Administration's proposal that you 
previously identified for us based on the Committee's 
jurisdiction. That proposal obviously remains our top priority. 
Due to the short timeframe and the operational and policy 
duties that Mr. Parkinson and I must carry out, we have not had 
an opportunity to fully review all of the provisions in your 
bill, and while I believe we can endorse the substance of some 
of your bill's provisions and I know that we share common 
goals, we would like to reserve some of our comments on the 
particulars of the language as the bill is currently drafted. 
The Department looks forward to working with the Committee as 
necessary to ensure that we achieve the goals that all of us 
seek.
    We are therefore prepared to answer general questions on 
provisions of the Graham-Feinstein bill to the extent that 
there is a cleared Administration position on them, and we 
pledge to work with you on all of the bill's provisions to 
achieve our common goals of finding those responsible for the 
recent attacks and preventing future attacks.
    Again, let me thank you for your outstanding leadership and 
commitment in holding this hearing and for focusing the Nation 
on the needs of the intelligence and law enforcement 
communities to fight aggressively and consistent with the 
protection of civil liberties the threat that terrorism poses 
to us and to the world.
    Thank you.
    Mr. McNamara. Mr. Chairman, may I make a few opening 
remarks, please?
    Chairman Graham. Yes. Then, Mr. Kris, are you going to walk 
us through the Attorney General's provisions?
    Mr. Kris. Yes, sir, I will do that.
    Chairman Graham. Mr. McNamara.

  STATEMENT OF ROBERT McNAMARA, JR., GENERAL COUNSEL, CENTRAL 
                      INTELLIGENCE AGENCY

    Mr. McNamara. Thank you, Mr. Chairman, Vice Chairman 
Shelby, Members of the Committee. I do not have a formal 
statement for the record, but with the Chair's permission I 
would like to make a few opening remarks.
    Two weeks ago today the mood of the American people 
actually was fairly upbeat and optimistic. Summer was over, the 
fall looked promising, markets appeared to be recovering and 
moving back to that 10,000 mark, unemployment figures were at 
low levels, as were interest rates, parents were concerned 
about the beginning of the school year and the students were 
getting concerned about the beginning of football and soccer 
season.
    Less than 18 hours later, the world as we knew it changed 
forever for all of us. Terror was forever redefined, and 
September 11 became a date that none of us will ever forget. 
Not only will we never forget the pictures we saw or the cries 
that we heard or the devastation that took place. We will not 
forget the overwhelming emotions of the moment--the fear, the 
horror and the helplessness.
    If we did not know it before, we learned how vicious 
terrorists are and how vulnerable an open society can be. But 
we also had occasion to see good among evil--extraordinary 
courage and exceptional kindness. We saw clearly, perhaps as 
never before, that we are neither black nor white, neither 
Asian nor Hispanic. We are neither Jew nor Muslim or Christian. 
We are Americans and we are proud of it.
    In those first few horrible moments we may have been forced 
to our knees, but only to pray for those who had fallen. Our 
hearts may have been broken but not our spirit, and certainly 
not our resolve. As we stood together that day and as we stand 
together in the days ahead, we will take to heart the words of 
our President. Our grief has turned to anger and anger to 
resolution. Whether we bring our enemies to justice or justice 
to our enemies, justice will be done.
    To that end, the men and women of the Central Intelligence 
Agency and of our entire Intelligence Community are working 
around the clock to assist our partners in law enforcement, the 
military and diplomacy to bring to justice the perpetrators of 
these atrocities and to thwart others who would harm the 
national security of the United States.
    Mr. Chairman, I applaud your leadership and efforts to 
respond quickly and vigorously to the current and continuing 
threat of terrorism. I appreciate the opportunity to testify 
today regarding two separate legislative proposals that in many 
instances would provide needed enhancements to law enforcement 
and the Intelligence Community authorities. These enhancements 
have been carefully drafted to protect the civil liberties 
guaranteed United States citizens by the Constitution and at 
the same time to improve our ability to protect national 
security.
    The Intelligence Community's mission at its core is the 
collection and dissemination of foreign intelligence and 
counterintelligence information to those who chart our 
country's course in the world. Without robust collection 
authorities, however, the Intelligence Community cannot provide 
the important information that our Nation's leaders need to 
make the difficult decisions they face in times of peace and in 
times of crisis. The statutes that control the manner in which 
the intelligence community conducts electronic surveillance are 
currently struggling to keep pace with the rapid expansion of 
communication technologies. The Foreign Intelligence 
Surveillance Act of 1978 was drafted well before communication 
devices such as cell phones and e-mail had so permeated our 
daily lives.
    Both pieces of proposed legislation would make a number of 
sensible enhancements and clarifications to existing law 
enforcement and Intelligence Community authorities to deal 
effectively with the communication technology explosion. These 
enhancements and clarifications would also remove artificial 
barriers to information-sharing between law enforcement and the 
Intelligence Community.
    The Intelligence Community supports in one form or another 
a number of the provisions found in both pieces of legislation. 
However, we also believe that these proposals provide an 
excellent starting point for the Administration and Congress to 
discuss other needed improvements to intelligence capabilities, 
carefully balancing the interest of national security with the 
privacy rights we all enjoy under the Constitution.
    I welcome the opportunity to discuss these pieces of 
legislation or other important proposals that would further the 
ultimate goal of both Congress and the Administration, and that 
is the protection of our fellow citizens.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you very much, Mr. McNamara. Mr. 
Kris, if you could walk us through the Attorney General's 
proposals, let me state a question which will relate to all of 
the provisions. The Attorney General, when he made his 
announcement, emphasized the sense of urgency. He talked about 
trying to get this accomplished within a 2-week period. As you 
discuss the specific provisions within your ability to do so, 
if you could give us some sense of why the urgency to move 
forward on these particular recommendations.
    Mr. Kris. Yes, sir. What I would like to do, with your 
permission, is actually begin with section 151 of the 
Administration's proposal. I think as I go through I will be 
able to come back to some of the earlier sections that you 
identified--sections 103, 104 and 105--but it will ensure, I 
think, a little more thematic coherence if I do it that way.
    For each of these provisions I'll try to give a one-
sentence overview of what the amendment would do, explain the 
current law, and then show what the amendment would do to 
current law, and try to give you then finally a sense of the 
reasons that we think these amendments are needed.
    Section 151 would lengthen the period of court-authorized 
electronic surveillance and physical searches under FISA. In 
current law, electronic surveillance is authorized for 90-day 
periods, physical searches for 45-day periods for most FISA 
targets. However, for surveillance and searches of foreign 
powers themselves, as opposed to their agents, authorization 
periods for both physical search and electronic surveillance 
are 1 year.
    The amendment would change those timing provisions in two 
ways. First, it would extend from 45 to 90 days the period of 
court authorization for a physical search of an ordinary 
target, a routine target. That would bring into accord the 
period for electronic surveillance, which is currently 90 days, 
and the period for a physical search.
    The other thing that the amendment would do is it would 
expand the category of targets to whom the 1-year authorization 
periods apply. In particular, 1-year authorization periods 
would be available against officers or employees of a foreign 
power and foreign members of an international terrorist 
organization. I think the critical point to make with respect 
to that expansion of the 1-year provision is that none of the 
targets that would be subject to it under the Administration's 
proposal would be U.S. citizens or permanent resident aliens.
    The reasons for these amendments are largely to deal with 
difficulties we have had implementing the authority we got from 
the court and to improve efficiency and streamline the process.
    With respect to the 45- to 90-day expansion for physical 
searches, FISA searches are unlike ordinary criminal law 
searches in that they are conducted surreptitiously and it is 
often difficult actually to execute the authority we have from 
the court within a 45-day window. Enlarging the period to 90 
days would double our chances of successfully implementing the 
authority.
    It would also help us in cases where we are seeking both 
electronic surveillance and physical search authority 
simultaneously because the similar period would keep the 
applications in sync as we go down the line and renew them as 
necessary.
    The reason for the 1-year provision expansion is that the 
targets that we would add to that category are often here for 
long periods of time and it is difficult to continually renew 
applications to maintain coverage. I want to emphasize it is 
not a trivial thing to put together and file a FISA 
application. As the Committee is aware, a FISA application 
requires the personal certification of a high-ranking executive 
official such as the Director of the FBI or the Director of 
Central Intelligence. It also requires the personal approval 
before filing of the Attorney General or the Deputy Attorney 
General.
    Finally, depending on where the search or surveillance may 
take place, it will require an affidavit from a field agent in 
the FBI, for example, and that will require transmission of 
highly-classified material over great distances within this 
country to ensure that what we file with the court is accurate.
    It is a significant process and reducing the number of 
applications that we need to file on these non-U.S. person 
targets would aid us significantly.
    Section 152 of the Administration's proposal is what is 
commonly now referred to as a multi-point authority or roving 
wiretap authority. Under current law, when we seek authority to 
conduct electronic surveillance from the FISA court, the court 
will issue an order of assistance to a particular 
telecommunications provider to allow us to implement the 
surveillance. The amendment would allow the court to issue 
broader orders that we could use with any provider, if the 
court found that the actions of the target may have the effect 
of thwarting the surveillance.
    The reason for that amendment is effectively tradecraft and 
countermeasures that our adversaries can employ in this area. 
The adversary in a FISA situation is often a very sophisticated 
target--state-sponsored or otherwise. It is under current law 
possible for a spy or a terrorist, let's say, to simply switch 
cellphone providers just before a critical communication will 
occur. In the time it takes us to go back, spin up a new 
application, obtain the certification and approval from the 
Attorney General and file the document with the court to get a 
new secondary order, it may be too late.
    This authority, as the Committee is aware, exists already 
on the criminal side and we would like the same authority on 
the FISA side.
    Sections 153 and 154 of the Administration's proposal are 
designed to foster and facilitate greater coordination between 
the law enforcement and the intelligence sides of the 
Government. Section 153 would amend the certification provision 
in FISA to which I previously referred. Under current law, the 
DCI or the Director of the FBI, as the case may be, will 
certify that the purpose of the search or surveillance is to 
collect foreign intelligence information. The amendment would 
change that requirement from ``the'' purpose to ``a'' purpose.
    Let me also describe section 154 before I come back to the 
reasons for the amendments. Section 154 is designed to address 
the other side of the coin, and that is it will allow all 
foreign intelligence information developed in a criminal 
investigation, regardless of the method used to collect the 
information, to be passed over to intelligence and other 
appropriate authorities within the Executive branch. That would 
specifically deal with restrictions that are contained in title 
III, the domestic criminal wiretap law, and rule 6 of the 
Federal Rules of Criminal Procedure, which governs grand jury 
secrecy.
    The provision would say that notwithstanding any other law, 
foreign intelligence information--and that is a defined term--
may be passed to intelligence authorities regardless of other 
restrictions that exist. As I say, the basic animating purpose 
here is to ensure that the two sides of the Government are 
communicating well. I think this investigation is a 
paradigmatic example of the need for that greater cohesion.
    It's been reported in the press there are 4,000 FBI agents 
out gathering information, and I have spent time in the FBI's 
command center, SIOC, seeing that information being pulled in 
by any lawful means that is available to us. It is less than 
ideal, I can say, to have information coming in through a title 
III wiretap, if there is one, and have it be the case that the 
criminal investigators who are running that wiretap are simply 
unable to pass the information over to the counterintelligence 
investigators who may be performing FISA surveillance or doing 
something else on the other side.
    So the animating purpose here is to bring those two sides 
together, allow for a single unified, cohesive response, and 
avoid splintering and fragmentation.
    Now there have been questions raised about the 
constitutionality of the ``a purpose'' test. Let me say a word 
about that. I do think that's a real issue.
    We have had, as a procedural matter, our Office of Legal 
Counsel, which is the component within the Department of 
Justice whose job it is to evaluate the constitutionality of 
this kind of legislation, review the proposal here before we 
put it in our bill. They have approved its inclusion in the 
bill. Indeed, I am told that a letter is being prepared that 
will communicate the substance of our analysis on this, but let 
me give you just the sort of short version of it now.
    FISA articulates standards for electronic surveillance that 
are different from and in some ways more lenient than those 
that exist in ordinary criminal surveillance. The justification 
under the Constitution for using those different standards has 
historically in the case law been linked to the purpose of the 
surveillance, in particular that the purpose of the 
surveillance be to collect foreign intelligence information.
    The question of exactly how much purpose and what degree of 
purpose is constitutionally necessary is open to question. 
There is not a vast amount of case law on this. Some cases have 
adopted a primary purpose standard but have left open the 
possibility that the floor may be lower.
    What our amendment would do would be to eliminate any 
artificially high statutory barrier and allow the 
constitutional standard to be developed on a case-by-case 
basis. OLC has concluded that an amendment of that kind would 
not risk the statute being struck down on its face. What we 
would have to deal with is a case-by-case evaluation in each 
case of whether we have crossed the line. But that would allow 
development of the law at the constitutional level and 
eliminate the statutory barrier, and that is the gist of our 
thinking that underlies section 153.
    I want to emphasize this is a serious problem, and I think 
the example I gave--that of being in the FBI SIOC--is one 
illustration of that. We hope that this can be dealt with.
    Let me, having spoken about sections 153 and 154, talk 
about sections 103 and 104, two of the other provisions you 
asked about. Section 103 and actually section 354 as well are 
both sharing provisions that are designed to eliminate specific 
barriers to sharing information obtained from a criminal 
investigation. Section 103 deals with title III's limitations; 
section 354 deals rule 6. Both of those are covered by our 
section 154.
    If you were to enact section 154, I think sections 103 and 
354 would not be necessary because section 154 is the blanket 
approach to this problem.
    Section 105 is another provision that you identified for 
us, and it would allow the use of wiretap information obtained 
abroad from foreign governments. Effectively it provides that 
if there is no U.S. law enforcement involvement or no U.S. 
involvement at all in that electronic surveillance conducted by 
a foreign government abroad, the information may be introduced 
in an American court.
    If there is U.S. involvement, then the basic U.S. legal 
standards, such as the requirement of probable cause, would 
apply to the surveillance and that would determine its 
admissibility.
    Let me go on to sections 155 through 157, which are the 
last three provisions that the Committee asked about. Section 
155 would change the FISA pen/trap standard. There's been a 
discussion of pen registers and trap and trace devices. They 
are devices that record both digits dialed but not the content 
of a telephone communication or the routing and addressing 
information of an electronic mail message, but again not the 
content of the electronic mail.
    What this provision would do, section 155, is make the FISA 
pen/trap statute roughly analogous to the corresponding 
criminal pen/trap statute. Under current law, to obtain a FISA 
pen/trap order we must show almost as much as we have to show 
in order to get a full content, a full-blown FISA order. The 
result of that is, frankly, that we hardly ever use the FISA 
pen/trap statute. Because if we're going to go to the lengths 
required under the current law, we will go the extra 5 percent 
and get the full content order.
    Our basic position here is that it is at least ironic that 
information that is available in a routine drug investigation 
or some other routine criminal investigation is not available 
under the same standard in an anti-terrorist or espionage 
investigation. The requirement that we're proposing is a 
relevance standard, which is what applies on the criminal side. 
Here it would be relevance to a counterintelligence or 
intelligence investigation; whether there is relevance to a 
criminal investigation.
    Section 156 of the Administration's bill would eliminate 
the requirement for prior FISA court approval and expand the 
scope of FISA subpoenas to make them roughly analogous again to 
various criminal administrative subpoena provisions that 
already exist. Under current law, we must go to a FISA court 
judge or a specially designated magistrate and obtain an order 
to issue a subpoena that would apply only to four categories of 
recipients--a common carrier, a public accommodation, a 
physical storage facility, or a vehicle rental facility.
    The amendment would remove both the requirement of advance 
court approval and would expand the scope of the subpoena 
provision to include all records, not just those in the four 
categories that I mentioned. The reason that we are seeking 
that authority is effectively both speed and efficiency and 
breadth.
    Eliminating the requirement of advance court approval means 
we can get what we need quickly, with less paperwork, and the 
breadth would allow us to reach targets like schools, gyms--
you've seen some of the newspaper reporting--dry cleaners, 
information that may well be critical in one of these 
investigations. Again this would bring into parity with 
existing criminal administrative subpoena authorities the FISA 
subpoena provision. There is authority, for example, in a 
routine drug case for the Attorney General not only to compel 
the production of documents but to compel witness testimony 
without any prior court involvement. He may simply issue the 
subpoena. That statute is 21 USC 876.
    Finally, section 157 changes the standards for issuing so-
called national security letters, and it changes it in two 
basic ways. It would allow these letters to be issued by FBI 
field offices rather than by headquarters officials, and it 
would eliminate the nexus requirement to a foreign power to 
make the national security letter authority more analogous to 
corresponding criminal authorities.
    Under current law national security letter authority--and a 
national security letter is just what it sounds like. It's a 
letter issued by the FBI to either a telephone or internet 
service provider, a financial company or a credit company to 
produce documents and to keep secret the fact that they have 
been asked to produce documents in a foreign intelligence or 
counterintelligence investigation.
    What our amendment would do is allow special agents in 
charge--that is, the top-ranking FBI field agent in each of the 
FBI's 56 field offices--to issue one of these letters rather 
than requiring the letter to be sent out by an Assistant 
Director at headquarters. It would eliminate the requirement of 
a nexus to a foreign power, leaving in place only a relevance 
standard.
    That is roughly analogous to the standard that applies in 
the criminal context in a grand jury. Obviously we can't and 
don't use grand juries in most foreign intelligence/
counterintelligence investigations, both because it is a 
quintessentially criminal investigative tool and because it is 
not really part of the grand jury's historic mission to look 
into counterintelligence or intelligence issues. This would 
give us an authority that roughly corresponds to grand jury 
subpoena authority, although in a more narrow class of cases, 
and I think would be an important contribution to our efforts 
to gather information quickly, especially in a case like this 
one.
    I think that is the last of the amendments the Committee 
specifically asked about, so I will stop.
    Chairman Graham. Thank you very much, Mr. Kris.
    For the information of the Committee members, questioning 
will be on a first-arrival basis. After the Chairman and the 
Vice Chair, the next questioners will be Senator Feinstein, 
Senator Rockefeller, Senator Wyden, Senator DeWine, Senator 
Edwards.
    You emphasized in several areas such as sections 155 and 
156 of the Attorney General's recommendations that you were 
attempting to render more comparable the standards under the 
Foreign Intelligence Surveillance Act with those that are 
currently in place for criminal matters. Have the analogous 
sections to those that you are proposing for FISA been 
adjudicated in their criminal context and found to be 
constitutional?
    Mr. Kris. I think the answer to your question is yes, but 
let me be more specific. With respect to pen/trap orders, the 
Supreme Court has squarely held in a case called Smith v. 
Maryland that there is no fourth amendment privacy interest in 
the telephone numbers that you dial or the numbers from which 
you receive a call. I think the reasoning of that opinion would 
apply equally to other kinds of routing and addressing 
information.
    So I think with respect to pen/trap orders there is no 
constitutional question and there would not need to be any 
showing made at all to satisfy the fourth amendment.
    I think administrative subpoenas have also been upheld 
whenever challenged, and I don't think that there is any real 
question about the Attorney General's ability to do that. There 
are a number of such statutes on the books.
    Chairman Graham. Recognizing that the answer to this 
question may involve sensitive or classified information, are 
you at liberty to select any of the provisions in the Attorney 
General's recommendations and indicate why there is this 
special sense of urgency that the Attorney General alluded to 
when he presented these to the Congress last Wednesday?
    Mr. Kris. It is difficult to answer that question in an 
open hearing and, of course, we are all, I am sure, available 
for a closed hearing where we could go into much greater 
detail.
    If I may, let me just say something generally. The current 
investigation is really a sort of all-hands-on-deck approach 
where we do have many, many agents out there and we are doing 
everything that we can do under law to get the information we 
need to protect the public from future attack, and to give the 
President the information he needs to make the kinds of foreign 
policy and other decisions that he will have to make.
    As I say, having been in SIOC when information is just 
coming in, the embargoes that currently exist in various places 
in law make it very awkward for everybody to get together and 
share the information. When you have an investigation this 
size, you need to have coordination or things begin to fall 
apart.
    So I will say that it would be very helpful in an 
investigation like this one to have the sharing provisions, and 
I think beyond that I would defer to a closed session, with the 
Committee's permission.
    Chairman Graham. In the legislation that has been 
introduced, 1448, one of the provisions clarifies that the 
intelligence agencies would be authorized to retain so-called 
dirty assets without specifically directing them to do so and 
being sensitive to the separation of powers doctrine. Mr. 
McNamara, would you have any comment on the way in which 1448 
deals with the issue of the authority of the CIA to hire assets 
with suspect backgrounds?
    Mr. McNamara. I think Ms. Divoll has actually laid out 
quite carefully and candidly what the issue is here. As you 
heard earlier, the reason these guidelines are in place--and I 
must caution that the guidelines are still classified and I'm 
somewhat constrained about what I can say--the reason they were 
put into place is because of a genuine and a serious concern 
that Congress had in 1994 and 1995 about the way assets, CIA 
assets overseas both were being recruited and were being used, 
and whether or not there was, for lack of a better term, adult 
supervision in the entire process.
    What we have attempted to do or what the Agency attempted 
to do 6 years ago was to put in place a structure whereby both 
the Agency and the Committee and the Congress could be assured 
that somebody had looked at this to see whether or not the gain 
that we might be able to get offset whatever the person may 
have done.
    I'm a little concerned about the way the statute is 
drafted, Mr. Chairman, although I'm sure it's unintended. It 
appears in the first sentence to give a case officer, a first-
tour case officer, in wherever immunity from anything that may 
happen as a result of taking on this action. I'm not sure the 
intention, but the second part is it's also limited to only 
acquiring information, which means the officer could not direct 
the dirty asset, for lack of a better term, to engage in covert 
action, which, although the President would have authorized it, 
could have authorized it, to engage in any kind of disruptive 
activity, although clearly that's one of the things that we do 
should we be able to accomplish this objective.
    Third, I've been the General Counsel now for almost 4 
years. Either I or my senior deputy see all of these before 
they go to the DDO and upward. The entire purpose is to make 
sure that somebody else has gotten eyes on this, that people 
who are responsible and accountable to Congress and the 
American people are making a decision that does two things. It 
weighs in the balance whether or not this is someone in fact 
that we want to have our payroll, if that's what it is, or 
working as an asset.
    For instance, if the individual had killed Americans or if 
the individual had been involved in an airline hijacking or if 
an individual had been involved in some type of other terrorist 
activity, somebody needs to think about that, and a first-tour 
officer shouldn't be the one.
    The second advantage is that it really protects the first-
tour officer, or the second- or third-tour officers. So there 
is somebody who is saying to him, ``Yes, this can be done.'' 
You can go ahead and do this. I know there's been a lot of 
discussion. I know former Director Woolsey firmly believes that 
there has been a chilling effect that has had an adverse 
impact. I know the Vice Chairman has been to a number of our 
offices overseas, as have others, and talked to officers. I 
have as well. I take a chance to talk to all of our first-tour 
officers when I'm out of the country.
    All I can say is our information is different. But the 
bottom line, I think, is we're going to do whatever we have to 
do and do it right to make sure that the American people are 
protected. But at the same time we have to make sure we do it 
smartly. I don't know whether or not this would have an 
unintended consequence, and I'm sure that's one of the things 
the Committee is concerned about.
    Chairman Graham. Thank you, Mr. McNamara. When I read the 
list of questioners, I apologize. I omitted Senator Mikulski, 
who will come immediately after Senator DeWine.
    Senator Mikulski. Mr. Chairman, I don't have any questions. 
Those were answered in the discussion. Thank you.
    Chairman Graham. Senator Shelby.
    Vice Chairman Shelby. Mr. Kris, does the statutory 
authority to conduct simultaneous title III and FISA 
surveillances present the same questions that section 153 does 
in the Attorney General's bill? In other words, isn't there a 
question of purpose if we are conducting simultaneous taps?
    Mr. Kris. I think the answer to that question is yes. The 
question of whether there is a primary or other intelligence 
purpose underlying FISA is a case-by-case and highly fact-
intensive determination. I think in many cases at least if we 
were doing simultaneous title III surveillance of the same 
target it might play into the primary purpose calculus, yes.
    Vice Chairman Shelby. Mr. Kris, could you just briefly 
address the separation of powers--we alluded to this earlier--
issues raised by section 103 of the Chairman's bill?
    Mr. Kris. Yes. I will do so. However, I should say that we 
have asked OLC again to render a more formal opinion on that. 
What I will say that I think raises some separation of powers 
concerns in my mind is something that Mr. McNamara mentioned 
before, and that is the ``notwithstanding any other law'' 
provision.
    That suggests that even if the DCI or the President were to 
say to the first-year case officer don't recruit that 
particular dirty asset, the case officer would be authorized to 
do so anyway. Now I don't think--and based on what I heard 
earlier, I'm more confident--that that is the intent. We may 
have an ability to work with the staff to deal with drafting 
issues that we have. But I think that is an area in which there 
might be--and I don't want to say that there would be--
separation of powers concerns.
    Vice Chairman Shelby. Mr. Kris, what specific provisions in 
the Graham-Feinstein proposed legislation do you need right now 
in the Justice Department in order to properly prosecute the 
ongoing war on terrorism, from your perspective?
    Mr. Kris. Well, we are very, very happy with sections 202 
and 203. Indeed, those provisions may be an example of the 
principle that great minds think alike, since they are quite 
similar to provisions we have in sections 151 and 152 of our 
bill. I think those are probably the two leading provisions 
from our perspective.
    Vice Chairman Shelby. OK. Mr. Parkinson, under section 101 
of the Graham-Feinstein proposal, the DCI, I believe, would 
``manage'' employees within the Bureau and other agencies 
across the community. How would you envision this working in 
light of their existing chains of command that we have today?
    Mr. Parkinson. Well, let me say to begin with, Senator 
Shelby----
    Vice Chairman Shelby. ``Manage the analysis and 
dissemination,'' it says.
    Mr. Parkinson [continuing]. We do have some concern over 
the language that appears on page 3 of that legislation, and we 
would like to engage the Committee and staff in a discussion 
about its intent. One appearance issue is that it appears that 
it may--and we don't know whether this is advertent or 
inadvertent--put the DCI and the Agency in the domestic 
security arena. I think that's an important issue that we have 
to focus on.
    Assuming we work that out and the Congress makes the 
judgment that an expanded role for the DCI is appropriate here 
in terms of how it plays out I think I am quite confident that 
we would work very well with the Agency, as we have, in 
carrying out the authorities that are given.
    Vice Chairman Shelby. Let me just share the language with 
you as I see it on page 3.

    Establish requirements and priorities for and manage the 
analysis and dissemination of all foreign intelligence 
collected under the Foreign Intelligence Surveillance Act of 
1978, quoting the U.S. Code, including the provision of assistance 
to the Attorney General in order to ensure that information derived 
from surveillance or physical searches under that Act is used 
efficiently and effectively for foreign intelligence purposes, 
except that the Director shall have no authority to direct, 
manage or undertake electronic surveillance operations pursuant 
to that Act unless otherwise authorized by statute or Executive order.

    That's what we're talking about here.
    Mr. Parkinson. That's correct.
    Vice Chairman Shelby. All right. Thank you, Mr. Chairman. 
My time is up.
    Chairman Graham. Thank you very much, Senator.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    Mr. Kris, I think your testimony was very helpful and I 
want to thank you. I also think it was very powerful in one way 
because it really is the first time the Department has 
officially admitted that the communication issue is truly an 
issue and, as you just said, less than ideal.
    One of the problems I think working in this area is people 
will say to you one thing formally and they'll say another 
thing informally, so how you really know becomes sometimes a 
difficult task. But I think you have clarified what we believe, 
based not on something people said, because it's always been 
denied--oh, there's no problem in intelligence-sharing--when in 
fact we believe there is. So I want to thank you for that.
    I wanted to ask you a question on section 151, if I might. 
This is the period of orders of electronic surveillance of non-
U.S. persons under foreign intelligence surveillance. Is that 
there largely just because of the jurisdiction of this 
Committee being that if you had U.S. citizens covered under 
this it would come under the jurisdiction of another Committee? 
Because I have a hard time knowing why. I mean, we know there 
are cells operating in this country. It may even be that the 
U.S. citizens are participating in those cells or people here 
legally. As a matter of fact, it's very likely.
    So the question is why not give this authority across the 
board?
    Mr. Kris. OK. Before I answer that question, let me just 
respond to what you said earlier.
    Senator Feinstein. You're not going to take it back, are 
you?
    Mr. Kris. I don't want to give myself more credit than I'm 
due. If Senator Thompson were here he could tell you. He 
recently commissioned a GAO report which does discuss some of 
the long-term issues we've had with information-sharing, and we 
then wrote a letter in response to the report. So I don't want 
to give myself more than I deserve.
    With respect to section 151, I don't think that--I mean, I 
can tell you that the thinking behind section 151 has nothing 
to do with which committee would evaluate it, and frankly 
that's well beyond my ken. The concern, though, or the reason 
for limiting the 1-year authorization period is part of our 
overall approach here, which is to try to be balanced, to push 
the envelope and give ourselves more authority where we really 
need it, but to be sensitive also to the civil liberties and 
privacy concerns that this kind of surveillance will go 
against.
    We are really trying to get the authority where we need it 
most. This provision does not enlarge or change the targets 
that we can surveil. It only allows for longer periods. That, 
we have found, is a significant issue primarily for non-U.S. 
persons, especially--and I want to be careful in an open 
hearing of exactly what I say--for employees or agents of 
foreign powers who are often here for long periods of time. 
That's really the motivation here--respect for U.S. person 
civil liberties, which we think are especially important, and 
there is a difference between surveilling non-U.S. persons and 
surveilling U.S. persons, but also to focus on exactly what our 
need really is.
    I think our need is greatest with respect to non-U.S. 
persons. For U.S. persons we can still get the surveillance, 
but we'll have to come back every 90 days and have a judge keep 
looking at it.
    Senator Feinstein. In this situation you want to do that.
    Mr. Kris. Yes.
    Senator Feinstein. OK. I would think about that. But, in 
any event, let me go on to section 153. This section clarifies 
that the certification of a FISA request is supportable where 
foreign 
intelligence-gathering is ``a purpose'' of the investigation. 
It would eliminate the need continually to evaluate the 
relative weight of criminal and intelligence purposes and would 
facilitate the information-sharing between agencies.
    Now, I am told that the primary purpose test has often been 
cited as one of the reasons that FISA meets the constitutional 
requirements under the fourth amendment. Would elimination of 
this test place the entire FISA in danger of being struck down 
by a court?
    Mr. Kris. The answer to your question I think is no, and 
again I'm relying here on the analysis of our experts in the 
Office of Legal Counsel. Let me try to explain in particular 
with respect to the risk to the whole statute.
    Courts will occasionally evaluate constitutional challenges 
on an as-applied basis, where you deal with only the particular 
case, or on a facial basis, where you evaluate the statute in 
general. What we would definitely not like to see is an 
amendment to FISA that led to a facial attack and a successful 
facial attack on the statute, which would throw the entire 
statute out on constitutional grounds.
    We are confident that changing ``the purpose'' to ``a 
purpose'' will not permit a facial challenge to FISA. Because 
of the way courts evaluate these things, we are confident that 
under existing jurisprudence they will evaluate this on a case-
by-case basis. There is a case, United States v. Salerno, that 
stands for the proposition that if a statute is valid in some 
applications, as the ``a purpose'' standard clearly would be, 
there is no justification for striking down the statute on its 
face. Instead, courts deal with the challenges on a case-by-
case basis.
    I think there is a possibility, if we go too far in a 
particular case, that we would end up being suppressed in a 
subsequent attempt to introduce the evidence in court. But we 
think that's a risk that's worth taking in order to solve this 
problem that we've discussed about information-sharing. But I 
emphasize our experts--and I agree--think that the statute is 
not in jeopardy on its face.
    I've been reminded and I think I mentioned this before, we 
will be sending a letter to Congress that sort of details at 
great length our constitutional reasoning and the reason for 
the statement I've just made to you.
    Senator Feinstein. Thank you very much. Thanks, Mr. 
Chairman.
    Chairman Graham. Thank you, Senator.
    Senator Rockefeller.
    Senator Rockefeller. Thank you, Mr. Chairman.
    I just want to go back to the so-called less-than-desirable 
factor, the chilling effect, so to speak, of CIA and potential 
human rights violations. If this were carried forward and it 
were lifted, as I happen to favor, and there was not the high-
level approval every single time, is that done in part--does 
that put in jeopardy in a way for the case officer, let's say, 
on the ground in a country for the possibility of an asset 
committing an act of terrorism on the United States, in other 
words putting that person at risk?
    I put that in this context. The answer that I got when I 
previously put this forward was, ``Well, we really don't have 
that many requests.'' That strikes me as a little bit of a pre-
September 11 type of answer and that if there's anything which 
has been on the public airwaves in the last several weeks it's 
been the need for a much greater body of human intelligence, 
not all of which, I guess, can be of the most attractive sort.
    So in a sense I'd like to know is the idea of not doing 
this to protect the case officer, making the approval come from 
a higher level in case the person turns nasty toward the United 
States?
    Mr. McNamara. Senator, I think it actually has multiple 
purposes. One is to protect the officer. Especially a first-
tour officer shouldn't be going out there and making a 
determination to bring on somebody and pay him and use him as 
an asset without ever even telling the chief of station. But, 
more importantly, many times the individual officers--and in 
fact just for the record, the way this is drafted it's not just 
a CIA case officer who actually knows tradecraft. It is anybody 
who is a member of the Intelligence Community, the way it's 
drafted now.
    So somebody from NRO who has never done this could 
actually, according to the way it's drafted, be running assets 
that we wouldn't know anything about.
    The purpose is multiple. No. 1, is to protect the case 
officer. No. 2, is to make sure we're doing the right thing. 
No. 3, is to bring it back and make sure we run it against our 
data bases and traces. Is there something else we know about 
him or her? Have they been involved in something we're looking 
for? Is there an outstanding U.S. warrant for this individual? 
There are a number of things where you just really need 
headquarters to be aware of.
    I think, more importantly, this Committee should be 
insisting that we be accountable, the senior intelligence 
officers at the CIA be accountable before somebody does 
something like this. This is not slowing the process down, I 
don't think. As I said, I've only been there 4 years and these 
can be done very, very quickly.
    PDD-35 comes out and lays out everything that we're 
targeting. The chiefs of station are pushing at their people to 
try and find people who can penetrate these. They are very, 
very hard to do. Not only do they not like us, in many cases 
they hate us and will not work with us. The opportunity to get 
somebody who will do something for us, even to the extent of 
giving us some information, would be a career-enhancing 
opportunity and not a career-limiting event.
    Senator Rockefeller. It's not a question of congressional 
second-guessing which worries you on this. It's simply what you 
spoke about?
    Mr. McNamara. No, sir. I don't have any problem with 
congressional oversight. In fact, I think in many cases this 
would enhance congressional oversight. We have come to the 
Committee to tell them what we are doing when we're bringing 
dirty assets in. We wouldn't be able to do that. I think this 
Committee should know what we're doing.
    Senator Rockefeller. OK. The whole concept of the virtual 
language capacity is a very, very interesting one to me and I 
think is a very strong part of the Graham-Feinstein amendment. 
Now as I think Senator Graham indicated in his press 
conference, it's aimed at Arabic, Farsi, Urdu or maybe not 
Farsi but Pashto. But it's for the whole panoply of languages.
    That has been a concern of mine in any event in terms of 
the capability, and I've frequently referred to the fact that 
Mormons are doing many of our best language work. We are not 
teaching any longer in our schools. America is in a sense 
withdrawing from the world. Now that could have changed very 
dramatically, probably will have since September 11 in terms of 
things like teaching languages.
    But it strikes me as a very, very powerful initiative and 
one that I think we ought to undertake.
    Mr. McNamara. Senator, I think you're right. What the 
Chairman and Senator Feinstein have put together is a very 
novel and intriguing idea. My only concern or our concern from 
the Intelligence Community is there are a number of 
counterintelligence issues this raises, No. 1. No. 2, there are 
a lot of security problems. The issues of connectivity in and 
of itself are something that we are trying to deal with within 
the community, that we've already tried to approach.
    The cost could be absolutely prohibitive. I'm just 
wondering whether or not on a short-term basis we can actually 
look at this with the Committee and study its ramifications to 
see whether or not this is the framework you want to put into a 
statutory construction. The difficulty is that once it's etched 
in concrete as a statute and a requirement, we don't have the 
flexibility that I think you and Mr. Cash were talking about 
earlier on when he mentioned it in terms of what that 
capability is.
    But our translators are different than FBI translators. Our 
requirements are different than the FBI translators. Protection 
of classified information is different. The difficulty is it 
should not be paralytic. On the other hand, what it should be 
is something that is done in a way that both is effective and 
efficient and quick and gets it turned around.
    I don't know--and on behalf of the community--I don't know 
if this is exactly the right paradigm, but what we'd like to do 
is experiment and see what we can come up with and then maybe 
come back to you and say, ``Here's some of the other options.'' 
Would this satisfy it?
    Senator Rockefeller. That's fair enough. But you wouldn't 
disagree that there has to be a sharp increase in our capacity.
    Mr. McNamara. Absolutely agree.
    Senator Rockefeller. Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator.
    Senator DeWine.
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Kris, let me first say that I think the Attorney 
General has come forward with some very, very positive 
proposals. Some of these have been made in the past and 
Congress has not acted upon them. I hope that now, with this 
situation that we are in and the tragedy of September 11, we 
will. I think also that the Chairman's proposal has many, many 
very positive things in there, and I would congratulate you, 
Mr. Chairman, on that as well.
    I don't want to beat a horse that's going to be going 
around a few more times beyond today, but I want to come back, 
if I could, to section 153. I understand your explanation and 
if we do pass this I guess I hope you're right that you are 
lucky enough and we're all lucky enough to do it on a case-by-
case basis. I'm not sure you're right.
    I'm not even sure, though, if it's on a case-by-case basis 
that's what we want. It seems like to me that's going to be a 
real mess and there are going to be some real problems for us 
as a country.
    As you know, the case that really is kind of the 
intellectual underpinning of the FISA statute was United States 
v. U.S. District Court, or the Keith case. When you read that, 
as I know you have and the counsel has, it's very, very clear 
that what the Supreme Court of the United States was saying is 
there are apples and oranges, and when you're dealing with a 
criminal it's one thing, and when you're dealing with national 
security it's something else and we're going to treat them 
differently and the standards are going to be different. The 
Court elaborates in four or five different ways what the 
differences are.
    The statute today, as you know, talks about ``the 
purpose.'' That I suppose, it seems to me, is pretty much 
interpreted as ``the primary purpose.'' We might be able to get 
by with ``a primary purpose,'' maybe. But I think when you get 
to ``a purpose'' I just think what does that mean--2 percent of 
what you're trying to do is national security and 98 percent is 
criminal? Where do you draw the line?
    I just think we're getting into some real, real problems. 
I'm very sympathetic with what you're trying to do. I just 
wanted to make that statement.
    I want you to explain to me, though, one more time what 
this gets you. What does it get us in national security? I'm 
missing it. I really understand the problem about sharing 
information. I understand about the artificial walls. I 
understand the reason we have to have more cooperation. A lot 
of what's in the Chairman's bill and a lot of what's in 
Attorney General Ashcroft's bill goes to that. I have a couple 
of provisions I want to add that I think will help in that 
area, and I won't get into them today.
    Explain to me, though, what the change in the statute does 
to accomplish the breaking down of those walls and the sharing 
of that information, because it seems like it's going the wrong 
way to me on the information. But maybe I'm missing something.
    Mr. Kris. Well, with respect to the purpose inquiry that is 
conducted both by the FISA Court in the case of a U.S. person 
when it evaluates the certification of the purpose of the 
sought electronic surveillance or search and a District Court 
if under FISA it evaluates a motion to suppress, I think the 
analysis has focused concretely on two things--first the flow 
of information from the intelligence side to the criminal side 
and, second, the advice that goes back from the criminal side 
to the intelligence side.
    Senator DeWine. OK. I'm with you so far.
    Mr. Kris. So, to give you a hypothetical example, if 
prosecutors start telling counterintelligence investigators, 
``Hey, you're up on Joe Jones'', you should probably go up on 
his brother Fred because he's involved in money-laundering, 
it's not a crime that affects national security but we would 
really like to get some good surveillance on Fred, that advice-
giving can alter the perceived purpose of the surveillance of 
Fred because it is being driven by or it is perceived to be 
being driven by criminal equities and a criminal purpose.
    The concern that we have, therefore, is to allow just the 
right amount of information-sharing and advice-giving but not 
too much, so that we don't cross the line, the purpose line, 
and end up in a bad situation where we are either conducting or 
attempting to conduct unauthorized surveillance or, if the FISA 
Court agrees with us but a District Court later disagrees, we 
end up suppressed in a criminal case.
    Senator DeWine. OK. Give me another example, because I 
really didn't understand that one, or do it again--if the 
Chairman will indulge me just a minute--because I think this is 
very important. We have to understand the situation. You're 
going in to get a FISA and the factual case you have to create 
is a case where it's not ``the purpose.'' It's much less than 
that, because that's why you're making the change. You're going 
from ``the'' purpose to ``a'' purpose.
    So now we're down to you've got a lot of other reasons out 
there that you want a FISA, but one of them is, ``a'' purpose, 
national security.
    Mr. Kris. OK.
    Senator DeWine. Because that's the factual situation that 
your change in the statute leads me to. With me so far?
    Mr. Kris. I think I understand you.
    Senator DeWine. OK. Now create the case. Tell me the case 
where it's just a portion of really what I want to do.
    Mr. Kris. OK. I think that issue comes up in a number of 
both terrorism and espionage cases because terrorism and 
espionage are, by their nature, both counterintelligence 
concerns--we want to stop spies from stealing our secrets and 
passing them to foreign governments--and, because of the way 
the criminal law is today, they are Federal crimes. We see that 
in the prosecution of Robert Hanssen or Brian Regan or Ana 
Montes.
    What you face inevitably in a case like that, both in 
espionage cases and in terrorism cases, is an inquiry that's 
being conducted by courts into sort of what is driving this 
surveillance or search. Is it the desire to gather evidence so 
that we can successfully prosecute this person and lock them 
up, or is it instead the non-law enforcement concern about 
stopping espionage and preventing further harm or what have 
you.
    Now there is an argument that prosecution of spies and 
terrorists is just one more counterintelligence tool, one more 
protective measure. By surveilling them we can recruit them, 
double them, we can cut them off from access to classified 
information, we can PNG their handlers, or possibly prosecute 
them. But that argument would be, I think, new.
    So the basic concern is that in these cases there is the 
possibility of criminal prosecution and the concern is that 
that not be the driving force behind the surveillance.
    Senator DeWine. Mr. Chairman, I've gone too long and I 
apologize. I thank the Chair for your indulgence.
    Let me just say to our witnesses today I appreciate the 
testimony very much. I'm going to explore this a little more 
because I'm not, contrary maybe to what I said, I'm open. I'm 
willing to listen. If there's a compelling reason to do this, 
maybe we should do it. I guess I just don't get it yet. So I'm 
going to explore it a little more. I appreciate it.
    Mr. Kris. We're at your disposal.
    Senator DeWine. Thank you.
    Chairman Graham. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    I'd like to ask you, Mr. Kris, if I could, about electronic 
surveillance and particularly how the Administration sees 
drawing the line between what constitutes lawful online 
activity and matters that we ought to be concerned about, such 
as criminal hacking from abroad.
    Section 201 is trying to define criminal hacking, and 
clearly this is going to be an issue for the Congress. How 
would you define it?
    Mr. Kris. It's a difficult term to define. We take a run at 
it on the criminal side in section 106 of our bill and, if 
you'll permit me, I'll turn to that provision.
    We define hacking in terms of trespass and if you are a 
trespasser into a computer then effectively that is the core of 
the hacking definition that we have in section 106. I want to 
say that this is--and I'm happy to respond--I want to say that 
this is not one of the sections identified and it is not really 
within my personal area of expertise. This is a criminal law 
provision here. But that is the gist of what we are doing in 
section 106.
    I think the section 201 provision, as I understand it, is 
motivated by a similar concern. I think it's intriguing notion 
on the FISA side to take out hacking from the definition of 
FISA electronic surveillance. I think that's one that we would 
like to sit down with not only our interagency process in the 
Intelligence Community but also with the staff to sort of work 
to see if we can ensure that we're doing exactly what we want 
to do and nothing more.
    Senator Wyden. Let me, if I might, change the subject to 
the question of biological and chemical and radioactive 
materials. Your bill has a provision that makes it unlawful to 
possess a variety of materials--biological agents and a host of 
other areas that are essentially health-related. What do you 
think the major vulnerabilities are now in this area and how 
would your bill address it?
    Mr. Kris. Again I have to sort of apologize, Senator. That 
is not one of the provisions that was identified to us by the 
Chairman in advance of the hearing, and I am really very 
reluctant to set out into an explanation of something that I am 
not really prepared to discuss. We can certainly get back to 
you with the right people on that, but I don't think I am.
    Chairman Graham. Senator Wyden, I asked the General Counsel 
to screen the Attorney General's recommendations for purposes 
of identifying which of his recommendations were in the 
jurisdiction of our Committee, and it was only those that we 
submitted to Mr. Kris and asked him to be prepared to comment 
on today.
    Senator Wyden. So we can't get an answer out of any of the 
people at the table.
    Suffice it to say this is what my constituents are asking 
about today, and this is in the Justice Department's bill. I 
certainly respect you, Senator Graham, if they are not prepared 
to talk about it, but clearly there are statutes and 
regulations that apply to the possession of chemical agents and 
toxins and biological agents, and I hope we'll talk about it 
down the road.
    Mr. Parkinson. Just quickly, Senator Wyden, I assume you're 
referring to section 305 of the Administration's bill, and 
while we didn't come necessarily prepared to talk about that, 
that section does enhance the number of offenses in the 
biological weapons arena. It adds subsections to existing 
statute 175 to include additional offenses of possessing 
biological agents and toxins, and then it has a section about 
select agents within the jurisdiction of the Health and Human 
Services Department.
    The intent and the goal of those sections is to make sure 
that biological agents or toxins are only in the hands of 
authorized personnel, and it does two things. It establishes a 
new regulatory regime within the purview of HHS and it also 
adds a couple of new offenses to address it on the law 
enforcement side.
    Senator Wyden. Are there vulnerabilities that you can 
discuss this afternoon that make the need for those 
improvements necessary?
    Mr. Parkinson. There certainly are vulnerabilities. I can't 
comment about imminent vulnerabilities, but certainly at a 
larger level we and the Department and the Intelligence 
Community have been focused on biological and chemical weapons 
as a priority for several years now. I think that there's no 
question there are vulnerabil- ities, and this provision, 
section 305, is one attempt to deal with it both on the law 
enforcement side and the regulatory side.
    Senator Wyden. Mr. Chairman, obviously this is not a day to 
get into as much detail as we might in this area, but I hope we 
will turn to it, because this is something I am getting asked a 
great deal about, and it is in the Justice Department's bill 
and we're going to be anxious to talk to you.
    Thank you.
    Chairman Graham. Senator Edwards and then Senator Kyl.
    Senator Edwards. Thank you, Mr. Chairman.
    Mr. Kris, you were probably here when I asked Ms. Divoll 
some questions about the differences between the Administration 
proposals and the provisions of the bill. Let me say first of 
all that I spent part of Saturday in Charlotte with our FBI 
officials in North Carolina, and their overwhelming message to 
me was we have to bring these FISA procedures up to being able 
to deal with what we're confronted with technologically today.
    I understand the concern and I am with you. I want to make 
this work. But I also share some of the concerns that others 
have expressed and I expressed earlier. Let me just talk about 
it briefly and then get you to respond if I can.
    If I understand it correctly, the fundamental premise on 
which FISA is based is that, unlike a title III wiretap, 
because it's a foreign intelligence-gathering operation, it's 
not required to meet some of the constitutional standards--for 
example, probable cause requirements. At least that's not been 
required in the statute. You can comment on that if you would.
    But that of underlying premise has been critical in the 
analysis of why this legislation has to date been 
constitutional. Now the change from ``the'' to ``a'' of course 
is a huge change in terms of the law. It may not sound like 
much, but in terms of the law it's an enormous change. That 
change means that the primary purpose of the investigation 
could in fact be criminal, as long as a purpose was foreign 
intelligence-gathering. So I have multiple concerns, one of 
which you've already addressed.
    I was concerned about the possibility that somewhere down 
the road the U.S. Supreme Court may declare the statute 
facially unconstitutional. You've talked about that some. I'd 
like to hear more about that because I continue to have 
concerns about that. But I understand your reasoning about 
that.
    Second, the possibility that a conviction may be overturned 
or also that information gathered as a result of a FISA 
application may not be allowed into evidence, suppressed by the 
court, and, I might add, I think it goes further than that. It 
seems to me that it creates the possibility that not only that 
particular FISA would be suppressed but that others within the 
same class would be found to be unconstitutional as applied. 
Therefore you have a problem not just in the individual case, 
which I know you've talked about some here today, but you could 
have a declaration by a 
Federal district court somewhere in the country that could have 
implications for ongoing FISAs, for FISAs that are similar and 
fall within the same class, and as a result would have much 
broader implications. So I'd be concerned about that.
    I might add I know from having looked at the Supreme Court 
cases the Supreme Court has taken a particular interest, I 
think, in the last couple of years in this specific issue, not 
dealing with FISA but what the primary purpose of the search 
was. So that's a concern I have.
    Then finally I know that the U.S. Supreme Court has 
historically--you've talked about the fact that we're going to 
have the courts deal with this on a case-by-case basis. The 
U.S. Supreme Court has traditionally, in issues of foreign 
intelligence-gathering, showed deference to Congress, and 
properly so. I agree with that. But they showed deference to 
Congress. I just wonder from your perspective whether it would 
not be some abdication of our responsibility to say, ``Well, 
we're going to leave this issue to the courts on a case-by-case 
basis, where the courts are very likely to say or very possibly 
could say this is an area of foreign policy, this is an area of 
foreign intelligence-gathering, this is an area traditionally 
left to Congress.''
    That being the case, who has the responsibility for 
deciding whether in fact this is appropriate and 
constitutional?
    Just one last notion. Instead of changing the statute, 
suppose we said--and this is nothing but an idea--you expressed 
concern about having to constantly evaluate whether the primary 
purpose was a criminal investigation or the primary purpose was 
foreign intelligence-gathering. That makes sense to me. I can 
see that.
    But instead of changing the language of the statute, which 
might potentially create more problems than it cures, suppose 
we said that in your initial application you are required to 
show that the primary purpose was the FISA requirement that 
exists now--foreign intelligence-gathering--but at some point 
down the road if it changed, when you come up for renewal you 
wouldn't have to make that showing again. In other words, it 
only has to be shown in the initial application.
    I'm sorry. I went on too long. But if you could respond I 
would appreciate it.
    Mr. Kris. It's a tall order to cover all of that. I'll do 
my best. First, with respect to the probable cause issue that 
you raised, as a technical matter FISA does require a showing 
of probable cause, but it is of a different thing. In the 
criminal context it's probable cause that a crime has been 
committed; here it is probable cause that the target is an 
agent of a foreign power. But I take your larger point about 
the difference in standards.
    I guess, responding to the other point about how this would 
play out in a suppression situation, the first thing I guess I 
should say is I don't think that even under the current regime 
and under any possible regime we can avoid making case-by-case 
determinations. Whether it be a primary purpose inquiry, a 
purpose inquiry, or any other inquiry, we are and have to 
examine each one of these applications not only because I think 
they are going to be evaluated on a case-by-case basis but 
because the certification from the Director of the FBI and the 
approval of the Attorney General is made on a specific case-by-
case basis. One of the safeguards of FISA is that it requires 
that high-level involvement.
    Also, I don't know if this has been made clear, but I think 
the FISA Court, in evaluating FISA applications, would be 
entitled, and OLC is of this view as well, to evaluate the 
constitutionality of an application ex ante. So we would not 
just be in a situation where we're rolling the dice and taking 
our chances in district court.
    Senator Edwards. The evaluation would take place on the 
front end, is what you're saying.
    Mr. Kris. Yes, exactly.
    As to the sort of derivative suppression, that is a fairly 
complex body of fourth amendment law about when, assuming an 
initial constitutional violations, the fruits of that violation 
taint subsequent searches. That has got to be evaluated also on 
a case-by-case basis. But I acknowledge the issue.
    With respect to the deference and the delegation issue, I 
would like to think that the courts have recognized Executive 
authority and have paid deference to Executive determinations 
in the area of foreign intelligence, and indeed I think that's 
reflected in FISA. When the DCI or the Director of the Bureau 
makes a certification as to purpose, the FISA Court by statute 
is required, even in the case of a U.S. person--and district 
courts I think would operate under the same standard--to review 
the certification only for clear error. So there is a built-in 
deference mechanism where if the DCI or the Director of the 
Bureau makes a certification, it is to be upheld unless it is 
clearly erroneous, which is a fairly generous standard of 
review.
    I think that deference, even if not in that precise form, 
would continue to apply regardless of how the statute is 
amended and indeed even if there were no statute.
    Finally, I guess with respect to the initial application 
idea I guess I think that if we are going to allow a lower 
standard than primary purpose in second and subsequent 
applications I'm not sure that will do the trick for us. I'm 
not sure it will solve the problem, I guess more importantly, 
because we will be up on multiple renewals and if after the 
second one we are dropping down I think we will face a lot of 
the same concerns that you have. That's sort of a idea that I 
would want to give a little more thought.
    Senator Edwards. I've taken too much time already. Thank 
you for that response. Let me just make clear I want to work 
with you. I want to make this work. We appreciate the work 
you're doing. I know first-hand from my folks that what you're 
proposing is of critical importance. We just need to be sure 
that it's going to do what we want it to do.
    Mr. Kris. Yes, sir. Thank you.
    Chairman Graham. Thank you, Senator Edwards.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. I have three specific 
questions, if I could.
    The first is a situation in which at least it's my 
understanding that FISA actually presents a tougher standard 
than generally. This has to do with the--well, the best example 
is the trap and trace or the pen registers that the U.S. 
Supreme Court has held in the regular context do not present a 
constitutional expectation of privacy or constitutional issue, 
with respect to just the existence of the call or the numbers 
themselves and so on. Yet under FISA the mere existence of the 
call or the data exchange is termed a communication and must be 
protected from electronic surveillance.
    Why is that so? Why isn't that being suggested for change? 
Question No. 1.
    Question No. 2, is it the fact that FISA does only apply to 
non-U.S. citizens? Once somebody is identified as meeting the 
criteria agent of a foreign power or terrorist group and so on, 
then why should citizenship constitutionally make a difference 
here? Why should there be a higher standard?
    Finally, I wasn't here when you answered Senator Shelby's 
question, Mr. Kris, but I understand from staff that you 
expressed a concern about section 204, and I just wondered 
whether you could go into greater detail on the problems 
associated with section 204 requiring the Government to meet 
both title III and FISA standards.
    Mr. Kris. Yes, sir. With respect to the first question 
concerning pen/trap authority, there is a proposal in the 
Administration's bill--section 155--that would lower the 
standard for FISA pen/trap orders to make them roughly 
analogous to the standard for criminal pen-trap orders. You are 
right. Under Smith v. Maryland there is no fourth amendment 
privacy interest in pen/trap information, and the standard in 
criminal cases is a certification from the applicant that the 
information sought is relevant to a criminal investigation.
    We're seeking a standard in FISA that would require a 
similar certification that the information sought is relevant 
to a counterintelligence investigation. So that would be our 
section 155.
    With respect to FISA and U.S. citizens, U.S. citizens may 
be FISA targets if they are agents of a foreign power as 
defined by statute, and the statute contains two definitions of 
agent of a foreign power. The first applies to any person other 
than a U.S. person, and the statute defines a U.S. person to be 
a citizen or a permanent resident alien. So that could apply 
either to U.S. citizens or foreign persons. Then a second 
provision that defines the term for U.S. persons. It has a 
slightly higher standard--I may have misspoken. I want to make 
sure I get it clearly.
    There is a provision that applies to anyone other than a 
U.S. person, so only to foreigners, and then another provision 
that applies both to U.S. persons and foreigners. So a U.S. 
person, a U.S. citizen, can be an agent of a foreign power if 
they meet the statutory requirements.
    Finally, with respect to----
    Senator Kyl. On that, I mentioned the terrorist group. Does 
a terrorist organization fit within the foreign power such as 
to include for our purposes here today that definition?
    Mr. Kris [continuing]. Yes. Under 1801(a) of title 50, 
subsection (4), a group engaged in international terrorism--and 
that is itself a defined term--is a foreign power, and a U.S. 
person can be an agent of an international terrorist group just 
as a non-U.S. person can under slightly different standards. So 
it does cover a U.S. citizen who is a member of a terrorist 
organization and acts to further the goals of that 
organization.
    With respect to section 204, as I understand it, I think 
the gist of section 204 is to allow simultaneous title III and 
FISA surveillance of the same target. I guess the concerns I 
have about that provision--well, let me back up and just say 
this. I think it is a good idea to make clear--and we have a 
provision in here that does so--that FISA governs FISA, pen/
trap governs pen/trap, title III governs title III.
    Doing them simultaneously I think raises two concerns for 
us. The first is that under the purpose analysis that's been 
discussed quite a bit today I think when we start using 
criminal authorities to get surveillance on a FISA target we 
muddy the water. We raise an issue there. I think second, and 
this is maybe more pressing, title III does not contain the 
special secrecy provisions that FISA contains. In a FISA case 
if there is a motion to suppress it's handled ex parte and in 
camera so that the defendant doesn't get access to the 
application that led to the surveillance. That's critical to 
protect our sources and methods. The same is not true in title 
III.
    So if we were to go up title III on some of these targets 
we would risk exposing our sources and methods. That's why we 
actually use FISA for most of these targets.
    Senator Kyl. Thank you very much.
    Chairman Graham. Senator Shelby.
    Vice Chairman Shelby. Mr. Chairman, I'll try to follow up 
on what Senator Kyl's talking about in a sense.
    Mr. Kris, section 105 of the Ashcroft proposals, as I 
understand it, would allow U.S. prosecutors to use against U.S. 
persons, information obtained by foreign government wiretaps 
overseas as long as U.S. intelligence or law enforcement 
personnel were not involved in the surveillance. Is that right?
    Mr. Kris. Yes, sir, that is correct.
    Vice Chairman Shelby. How do you envision the government 
establishing at trial that no employee of the U.S. Government 
was involved in the foreign surveillance? That might be tough. 
It might not be. I don't know.
    Mr. Kris. I think it might depend on the case. I can, just 
sitting here, sort--it's been a while since I was a trial 
lawyer, but I can think of a couple ways. One is we might be 
able to call or obtain evidence from the foreign official who 
conducted the wire and have the appropriate official over 
there, wherever it may be, make a certification, or I think 
there are authorities for depositions of foreign witnesses. I 
don't want to overstate it because I'm not intimately familiar 
with those. But I think there is a mechanism for obtaining 
evidence from a foreign government official.
    The other way I guess would be to do it from the U.S. side. 
The difficulty I guess I see there is it could be anybody.
    Vice Chairman Shelby. Certification would be hearsay, 
wouldn't it, in a sense, unless there's an exception to it.
    Mr. Kris. I think--and Larry you may have more detail on 
it--there is a method of getting information from foreign 
government officials into evidence in an American court.
    Vice Chairman Shelby. Could you furnish that for the 
Committee?
    Mr. Kris. I would be happy to do that.
    Mr. Parkinson. I would say, Senator Shelby, an analogous 
situation arose in the African bombing prosecutions in New 
York. It was not electronic surveillance but the circumstances 
surrounding a statement given by one of the defendants while in 
foreign custody was a significant issue. At the end of the day 
in pretrial suppression hearings the prosecutor, who was the 
primary prosecutor on the case, actually testified about all 
the circumstances and what kinds of contact we had with the 
foreign government. So it was fully explored during pretrial 
proceedings. It actually worked reasonably well.
    Vice Chairman Shelby. And it came in?
    Mr. Parkinson. Well, yes, eventually the statement came in. 
The judge ruled that under the circumstances it was admissible.
    Vice Chairman Shelby. I'm just raising the question. I 
think it should be raised.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you very much, Senator. I wish to 
extend my appreciation to this panel for an excellent and I 
imagine not the last time that we'll be discussing these 
matters with you. I appreciate the comments that I believe all 
three of you have made that it would probably be an appropriate 
next step for your offices and our staff to continue to pursue 
some of the issues raised here.
    My goal is to achieve a blending of what the Attorney 
General has recommended and what we had been developing prior 
to September 11 so that we can present as the intelligence 
component of what is likely to be a larger piece of legislation 
a piece of legislation, multiple sections, that had as high a 
degree of consensus as possible.
    I think the question that Senator Wyden raised underscores 
that we aren't the only place that this issue is going on. As 
you mentioned, Mr. Kris, the reason that maybe you're here 
instead of the Attorney General is that he's testifying before 
a Judiciary Committee, which has jurisdiction over a number of 
other of the Attorney General's proposals, particularly those 
that are more of a criminal rather than an intelligence 
orientation.
    So we've got a lot of work to do, with a sense of urgency 
to get on with it. I appreciate your contributions to our 
progress in understanding and appreciating the Attorney 
General's proposals as well as your comments on those that we 
have made.
    Mr. McNamara. Thank you again for your leadership, Mr. 
Chairman.
    Mr. Kris. Thank you, Mr. Chairman.
    Chairman Graham. The second panel--and I appreciate your 
patience and perseverance--is comprised of Mr. Jeff Smith, 
former General Counsel to the Senate Armed Services Committee 
and former General Counsel to the CIA, and now a partner of the 
law firm of Arnold and Porter; Ms. Kate Martin, director of the 
Center for National Security Studies; and Mr. Jerry Berman, 
executive director, Center for Democracy and Technology.
    Thank you very much to all three of you. Again, I 
appreciate your willingness to testify on short notice and 
about this important and complex set of legislative proposals.
    Mr. Smith.
    [The prepared statement of Mr. Smith follows:]
                 Prepared Statement of Jeffrey H. Smith
    Mr. Chairman, it is an honor to appear before you this afternoon to 
discuss these issues of great national importance.
    You have asked me to discuss my views on how the United States 
should respond to this attack, particularly from an intelligence and 
law enforcement perspective. You have also asked for my views on the 
legislation pending before the Senate, particularly on those issues for 
which this Committee has jurisdiction.
    It is a special privilege for me to appear before this Committee, 
because I was honored to be a member of its staff for nearly 5 years. 
Mr. Chairman, Mr. Vice Chairman, I commend you for your leadership over 
the years, particularly in this extraordinarily difficult and demand 
time. I am sure this Committee and the Congress will play a great role 
in leading this Nation to victory.
    Let me also add, Mr. Chairman, a note of commendation to the truly 
extraordinary efforts being made by the men and women of the U.S. 
Intelligence Community. They are working around the clock in an 
unprecedented effort of dedication and determination to find out who 
attacked us, prevent future attacks, and support the U.S. diplomatic, 
military, law enforcement and intelligence response that is 
forthcoming. In particular, I know that George Tenet has put his heart 
and soul in this effort, and he deserves the nation's thanks.
                                overview
    Not long ago, there was much talk that we were headed toward a 
borderless world. Many believed that such factors as the revolution in 
information technology would render borders meaningless. Some even 
questioned the future of State sovereignty, although others asserted 
that the State would survive and remain the principal actor in 
international politics.
    The increased flow of capital, goods, people, technology, and ideas 
across borders has brought much to many of the world community. 
However, as the President has stated, those who stand to lose from such 
trends have lashed out in irrational fear at the freedom, progress and 
prosperity the rest of the world enjoys. These forces of fear have 
woven a network across many borders of like-minded individuals, 
organizations and governments to declare war on us and our allies.
    The very nature of this international network presents us with 
unique challenges for which we must find new and innovative responses. 
This threat comes at us from many directions and in many guises, and we 
must be prepared to respond on an equally broad front.
    The terrorists have created their own borderless world, and it is 
therefore ironic--and most appropriate--that President Bush has called 
upon all states to enforce the most basic rules of international law: 
namely, that states must exercise governmental authority within their 
defined borders. President Bush has rightly demanded that every State 
abide by the rule of law by rooting out terrorists on its territory or 
cooperating with us in doing so. Indeed, all states have a common 
interest in defeating these forces of terror and fear because these 
forces can turn on other states as surely as they have turned on us.
    How then, should the United States respond? In my opinion, five 
principles should govern our response.
    First, because this is a seamless, borderless attack we cannot have 
artificial seams or borders in our responses. In the past, we have 
approached terrorists acts by asking whether a particular act is a law 
enforcement, intelligence, or national security matter. That question 
must no longer be the first question. We must be able to collect and 
analyze information; then sort out later whether it's ``evidence'' or 
``intelligence.''
    We must see this as an integrated threat for which we must have a 
single, integrated response. There should be no artificial ``stove 
pipes'' in our responses. By that I mean we must have, as the armed 
services do, a ``joint'' response. For many years now, the Department 
of Defense has worked very hard to create joint organizations that will 
fight jointly. The same must be true not just within our military but 
across the government.
    This is easier said than done, but the President took a major step 
in this direction by appointing Governor Ridge as the cabinet-level 
coordinator for homeland security. The contours of his responsibility 
are not entirely clear at this point, but consideration should be given 
to a ``civilian CINC'' who would be responsible for coordinating the 
U.S. war on terrorists. Much as the Goldwater-Nichols Defense 
Reorganization Act of l986 gave increased authority to our CINCs 
overseas, a civilian CINC for counter-terrorism could pull together all 
of the various elements to respond to the war. Perhaps, like a military 
CINC, the various agencies should assign ``forces'' to him for the 
fight. President Bush may have intended that Governor Ridge function in 
this manner. In any event, I believe we need to continue to work very 
hard to resolve the organizational issues.
    Second, our laws and regulations must be reviewed to assure that 
they do not foster the stovepipes that have caused so many problems in 
the past. For example, we know that government agencies do not share 
information as efficiently or as quickly as they should. In some 
instances, current law prevents such information-sharing. Those laws 
should be reviewed and changed as appropriate to foster effective 
information-sharing. I am pleased to see that many of the specific 
proposals before Congress make those changes.
    In addition to legal requirements, attitudes and traditional 
rivalries continue to impair information-sharing. Nevertheless, it has 
been my experience that when U.S. officials are given a particular 
mission, they roll up their sleeves, share the information and get the 
job done. I am sure that is what has happened after this attack. It is 
now up to Congress to eliminate unnecessary impediments in the law that 
clog the machinery of government. The executive branch, too, must 
reduce or eliminate unnecessary constraints on the sharing of 
information.
    At the same time, we must recognize that many of these rules, such 
as grand jury secrecy, were enacted to protect the rights of our 
citizens. We must find a way to accommodate the Intelligence 
Community's needs without impairing the rights of U.S. citizens.
    Third, we must be as aggressive as our Constitution will permit. 
For example, we should examine whether the standards for conducting 
electronic surveillance of non-U.S. citizens within the United States 
to acquire foreign intelligence should be changed. Yesterday's 
Washington Post reports (p. A18) that the FBI wanted to initiate 
electronic surveillance against some of Osama Bin Laden's non-U.S. 
person associates in the United States prior to the attack but the 
Justice Department did not believe there was adequate authority under 
FISA to obtain a wiretap. If that's true, we should change the law.
    The basic concept underlying FISA is that a warrant is required to 
approve electronic surveillance to collect foreign intelligence in the 
United States--but that a somewhat lower standard is appropriate than 
for criminal purposes. FISA also distinguishes between U.S. persons and 
non-U.S. persons and it is, in theory, easier to obtain a warrant to 
collect against non-U.S. persons than U.S. persons.
    I have not had time to review the recent case law on surveillance 
of non-U.S. persons. But I am generally aware that courts have, over 
time, extended more Fourth Amendment protections to non-U.S. persons. I 
suspect, however, that most if not all of those cases are criminal 
cases. I believe, therefore, that Congress should take a hard look at 
the standards in FISA for conducting surveillance of non-U.S. persons 
and consider easing the standards for obtaining warrants for electronic 
surveillance against non-U.S. persons for foreign intelligence 
purposes.
    As Justice Arthur Goldberg said, the Constitution is not a suicide 
pact.
    Consideration should also be given to changing the rules on 
``minimization'' of information about U.S. citizens obtained in the 
course of electronic surveillance under FISA. It is my impression that 
intelligence analysts believe that valuable intelligence frequently is 
lost because of an overly cautious interpretation of the minimization 
rules.
    Fourth, we will win this war--but how we win it matters. We must 
not abuse the rule of law at home in seeking to enforce it overseas. We 
must be determined, and when necessary prepared to use lethal force. 
But that does not mean that we should, as some people have said, 
``throw out all the rules.'' The world has developed a body of law, the 
Law of War, governing the conduct of armed conflict. These rules are 
designed not only to reduce the horrors of war and to protect 
noncombatants, but also out of a recognition that the manner in which 
the war is fought should not cause future conflict by sowing the seeds 
of hatred.
    In that respect, we need to examine each of our proposed actions 
with respect to the rule of law and how it will be seen by others. For 
example, we should not rescind the ban on assassinations. Americans are 
not assassins. Repealing the ban crosses a line that most Americans are 
uncomfortable crossing. In any event, we have been able to conduct 
military and intelligence activities, including some using lethal 
force, to accomplish our objectives in the past. Moreover, it is not an 
effective deterrent to terror. It often creates martyrs and heroes 
among the terrorists and exposes our own leaders to increased threats 
of assassination. Finally, when this war is over, I do not believe we 
want a world in which our actions have established the assassination of 
foreign leaders as an acceptable norm of international behavior.
    Fifth, the U.S. response should mobilize all resources of the 
nation. In particular, the President should call upon American industry 
to put its genius to work to meet and defeat this threat. The President 
should support innovative, public/private cooperative efforts to ensure 
that the best minds in industry, academia and other elements of the 
private sector are marshaled against this national threat.
    However, concerning the specific legislation currently under 
consideration, I believe that the Congress should make clear that with 
respect to increased electronic surveillance, the government will not 
adopt technical mandates requiring the information technology industry 
to build their systems in such a way as to facilitate interception, to 
enhance security or to control the dissemination of encryption. 
Instead, the government should reach out to industry and harness market 
forces to achieve the necessary results.
    A national objective must be to assure that U.S. industry remains 
the world leader in these fields. Our security is much better enhanced 
by having American industry continue to lead rather than to face 
information technology and encryption produced overseas, which would 
happen if the United States exerts an overly heavy hand and interferes 
in the marketplace in the development of technology.
    I also believe, Mr. Chairman, that this committee should carefully 
review the Administration's bill from the perspective of whether it 
takes into account all of the concerns raised by the Intelligence 
Community. I appreciate that the bill was very quickly pulled together 
and I value the need for speed. But we must be careful not only on the 
civil liberties side, but also on the government's side. For example, I 
know there are concerns as to whether there has been adequate sharing 
of information from the law enforcement agencies to the Intelligence 
Community. There may also need to be minor adjustments to FISA to 
address recent or anticipated developments in technology.
    For all of these reasons, it seems prudent to me to enact those 
provisions for which there is wide support and proceed more 
deliberately on other provisions.

                          PROPOSED LEGISLATION

    Now let me turn to the specifics of the legislation.
    You have asked me to consider those provisions of the bill as 
introduced on behalf of the Administration that are within the 
jurisdiction of this Committee. You have also asked me to comment on 
the bill introduced by the Chairman of this Committee. I have not had a 
great deal of time to study either bill, but I am happy to provide the 
following preliminary comments.

                         ADMINISTRATION'S BILL

    Turning first to the bill as introduced on behalf of the 
Administration, I note that Section 103 amends 18 U.S.C. 2510(7) to 
permit sharing of Title III wiretaps with any officer or employee of 
the executive branch of the Federal Government.
    The proposed change in the statute includes no limitation as to 
whom it may be given. It seems prudent to limit the purposes for which 
such information may be disseminated within the executive branch, for 
example by limiting it to national security matters.
    The analysis also says that it will harmonize Title III standards 
with those of FISA. However, intelligence officers have complained that 
too frequently the Department of Justice either refuses to share 
information collected under FISA or is very slow in providing it. I 
believe this is a more fundamental question and ought to be addressed 
along the lines I suggest above. I can see no reason why information 
collected by the Department of Justice under a FISA wiretap is not 
immediately made available to a relevant agency of the Intelligence 
Community. If it concerns a U.S. person, it seems to me that the 
Attorney General could require common minimization standards to be 
followed by all intelligence agencies.
    Section 104 is characterized as a ``savings provision,'' and the 
explanation says that it provides that collection of foreign 
intelligence is governed by foreign intelligence authorities rather 
than by criminal procedural statutes. That is a noteworthy objective, 
as I discuss above. However, it is not clear to me what this proposed 
change would accomplish. I believe more detailed explanation of the 
proposed changes and its consequences are needed.
    Section 105 appears to codify the so-called ``silver platter'' 
doctrine; namely that when a foreign government provides information to 
the U.S. Government for which the U.S. Government has not asked nor had 
any role in collecting, the U.S. Government may use that information. 
However, I am troubled by the proposed language of the new section 
2514(1)(b). It would require that when a U.S. official participated in 
the electronic surveillance, the information collected may only be used 
when it ``would have been lawful if executed within the United 
States.'' That may be entirely appropriate in the case of a criminal 
prosecution, but I do not believe such limitation should apply in a 
case of collection of foreign intelligence. There may also be reason to 
distinguish between information collected on a U.S. person--for which a 
higher standard might be appropriate--and a non-U.S. person.
    Section 151 extends the duration of the time--to 1 year--that the 
FISA court may authorize search and surveillance in the United States 
of officers and employees of foreign powers and foreign members of 
international terrorist groups. This is the same provision as section 
202 of Senator Graham's bill and seems to be a sensible provision.
    Section 152 expands the obligations of third parties to furnish 
assistance to the government under FISA, particularly when the target 
moves frequently to avoid detection. This is substantially the same as 
section 203 of Senator Graham's bill and enhances the ability to 
monitor individuals who move rapidly to change the mode of their 
communication to avoid detection. It also seems sensible and should be 
adopted.
    Section 153 would change the language of FISA so that it may be 
used where foreign intelligence is ``a'' purpose of the investigation, 
as opposed to current law which limits it to instances in which it is 
the sole or primary purpose of the investigation. Consistent with my 
views as outlined above, I believe this is an appropriate change. I 
believe the government should have flexibility in deciding whether to 
initiate a FISA collection, particularly when foreign nationals are 
involved, as opposed to being forced into a Title III collection with 
its higher standards. However, the Committee should ask the 
Administration whether current law has limited its ability to conduct 
FISA in instances in which the Administration thinks it would have been 
appropriate. The Committee should be careful in endorsing this change 
because it holds out the potential that the government would seek FISA 
surveillance warrants--when it didn't have enough information to get a 
Title III order--but in which the foreign intelligence information to 
be obtained was remote or highly speculative.
    Section 154 calls for greater sharing of foreign intelligence 
information held in the hands of the Department of Justice, whether in 
a grand jury proceeding or obtained under Title III. I believe this is 
an extremely important provision but note that it does not appear to be 
codified. I believe it should be. I also note that it is similar to 
section 354 of the Administration's bill and section 301 of Senator 
Graham's bill. My first impression is that this provision in the 
Administration's bill is the most clear. In particular, the 
Administration's proposal mentions Rule 6E of the Federal Rules of 
Criminal Procedure, which has been a significant bar to providing 
relevant information from Grand Jury investigations to the Intelligence 
Community.
    Section 155 would eliminate the requirement that the government 
establish that a communications device has been used to contact ``an 
agent of a foreign power'' in order to obtain a FISA order for a pen 
register/trap and trace order. I believe this makes sense and should be 
adopted.
    Section 156 would give the Attorney General the authority to seek 
information with an ``Administrative Subpoena'' for documents and 
records similar to the authority that he has in drug investigations. 
This seems to be a sensible provision.
    Section 157 expands the authority of the FBI to issue National 
Security Letters to request certain information. Current law requires 
both a showing of relevance and a showing of links to ``an agent of a 
foreign power.'' The elimination of this latter requirement would 
permit the FBI to seek information in the same fashion as with criminal 
subpoenas. It seems to me sensible and should be adopted?
    Section 354 makes specific changes to the Federal Rules of Criminal 
Procedure, and in combination with section 154 seems a sensible 
approach.
    Although the Committee does not have jurisdiction over section 110 
of the Administration's bill, I have one comment that I believe the 
Committee should consider and perhaps recommend to the Judiciary 
Committee. That section amends Title 18 so that a provider of 
telecommunications and services, including ISPs, could provide 
information to a governmental entity, including the contents of the 
communication, if the company ``reasonably believes that an emergency 
involving immediate danger of death or serious physical injury to any 
person justifies disclosure of the information.'' Companies ought to be 
encouraged to provide such information to the government in such 
circumstances. However, I note that there is no immunity for a company 
that makes such a disclosure. There is such proposed statutory immunity 
in Section 158, which provides for disclosure of educational records. 
That section provides ``no person furnishing records or information 
pursuant to this subsection shall be liable to any other person for 
furnishing such information.'' I suggest that a similar provision be 
considered to protect those companies who voluntarily provide 
information on individuals to the government as provided under Section 
110.

                       CHAIRMAN GRAHAM'S PROPOSAL

    Turning to the bill suggested by the Chairman, I have the following 
comments.
    Section 101 would add a new provision to the responsibilities of 
the DCI to ``establish requirements and priorities for and manage the 
analysis and dissemination of all foreign intelligence collected under 
FISA.'' My inclination is that this is a good idea in that it would 
authorize the DCI to take a greater role in the use of FISA to collect 
and analyze foreign intelligence. However, I believe that the views of 
the DCI should be sought and carefully considered. It is important that 
the authority of the DCI be sufficient to assure that FISA collection 
is done in an efficient manner to support the collection of foreign 
intelligence but without giving the DCI excessive authority to direct 
the use of electronic surveillance in the United States.
    Section 102 revises the National Security Act to make it clear that 
the DCI has particular responsibilities for international terrorism. 
Again, I believe this is a good change, as there has been considerable 
debate within the executive branch as to primacy for the collection, 
analysis and dissemination of information on international terrorism. 
This is a welcome change.
    Section 103 would add a provision to the National Security Act 
stating that an officer of the Intelligence Community ``may establish 
and maintain an intelligence relationship with any person for purposes 
of acquiring information'' on a variety of terrorist targets. This is 
clearly aimed at assuring that case officers in the field will be 
encouraged to take the necessary risks associated with recruiting a 
human source in a terrorist organization, even when that individual may 
have committed murder or engaged in other serious human rights abuses 
or criminal activities.
    The current guidelines were adopted by the CIA in 1995 because of 
concerns expressed widely in the press and the Congress that the Agency 
had dealt with such individuals. The guidelines adopted a simple test: 
Does the value of the intelligence that the individual could provide 
outweigh the risks to the United States that would be associated with 
dealing with this individual? The guidelines have two purposes. First, 
to assure that Headquarters make an informed decision to authorize the 
recruitment of such an individual. The view was that the balancing test 
should be done at Headquarters, not in the field. The second purpose is 
to protect the officer involved. Once approval had been granted from 
Headquarters, the officer has a ``hunting license'' and is free to 
proceed, knowing that he or she had the full backing of Headquarters. 
This latter point was particularly important because in the mid-90's 
several officers were under investigation by congressional committees, 
the PFIAB, the CIA/IG, and, in some instances, criminal grand juries. 
Many officers, as this Committee well knows, felt it necessary to 
purchase personal liability insurance on their own to cover the costs 
of hiring outside counsel to defend themselves from the various 
investigations. I thought then, and think now, that no CIA case officer 
should ever have to purchase such insurance out of his or her own 
pocket.
    I understand that many officers in the field believe that these 
guidelines are a hindrance to recruiting sources in terrorist 
organizations. I also understand that CIA Headquarters maintains that 
the guidelines do not hinder the recruiting of sources who could 
provide valuable intelligence in these organizations. It is therefore 
difficult to know where the truth is. However, it is clear that there 
is a perception in the field that these guidelines inhibit recruiting. 
CIA case officers must know that they are encouraged to take risks and 
that when they do so, they will be backed up by CIA Headquarters, the 
rest of the National Security establishment, and the Congress.
    Therefore, these guidelines should be carefully reviewed by the DCI 
and his top leadership team, and if they are in fact inhibiting 
recruiting in the field, they should be changed.
    I do have reservations about Section 103 of this bill. First, it 
provides that an officer may maintain a relationship only ``for 
purposes of acquiring information.'' Thus, if an officer had a 
relationship with a source inside a terrorist organization, this 
language would limit our ability to direct that officer to use that 
relationship to disrupt a terrorist organization, for example by 
feeding misinformation to his source or by using his source to support 
a covert operation that would be designed to disrupt or destroy the 
terrorist organization. Second, it raises questions about CIA case 
officers dealing with persons in other groups, such as international 
organized crime or international narcotics organizations, that enjoy no 
similar provision.
    On reflection, I think the Congress could usefully order the 
Director of Central Intelligence, perhaps in conjunction with PFIAB or 
some other outside organization, to conduct a careful review of these 
guidelines and, if they are in fact hindering the recruiting efforts in 
the field, they should be changed accordingly.
    Section 104 defers submittal to Congress of certain reports and 
will surely be most welcome.
    Section 201 amends FISA to exclude from the definition of 
interception an instruction or signal that is given to operate an 
electronic device. That seems a sensible provision and should be 
adopted.
    Sections 202 and 203 are analogous to Sections 151 and 152 in the 
Administration's bill and, as noted above, should be adopted.
    Section 204 seeks to clarify the relationship between Title III and 
FISA wiretaps. The consequences of this provision are not immediately 
clear but it does not seem sensible to me to have a situation in which 
two collections efforts are being mounted in parallel.
    Section 301, as discussed above, is designed to assure that the 
Intelligence Community is given access to information held by the 
Department of Justice. This is a commendable objective but my 
inclination is to favor the provisions in the Administration's bill, as 
they seem more clear.
    Sections 302, 303 and 304 also make reasonable and thoughtful 
changes to existing law and should be adopted.
    Mr. Chairman, in conclusion let me repeat how honored I am to 
address these issues, and I look forward to answering the Committee's 
questions.

         STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD
                           AND PORTER

    Mr. Smith. Thank you, Mr. Chairman. I will be brief. The 
hour is late. I have submitted a statement which I will try to 
summarize here in just two or three moments.
    It's clearly an honor to be here and to be back in front of 
this Committee. I was Senator Nunn's designee to this Committee 
for many years, and it's an honor to be back.
    Also, on behalf of my former colleagues at CIA and in the 
Intelligence Community, they are putting forward an 
unprecedented level of dedication as we speak, and I think we 
all owe them a vote of thanks. George Tenet, also a former 
alumni of this great Committee, has put his heart and soul into 
this effort and he deserves the Nation's thanks.
    As I think about the issues you've asked me to address, it 
seems to me there are five principles that we ought to 
approach. I have taken a somewhat broader approach than just 
some of the specific questions you've asked me. This is a 
seamless attack on the United States across international 
borders, and in our response we need to have a seamless 
response as well. We need to, as you are trying to do, Mr. 
Chairman, try to create an integrated response to an integrated 
threat. There should be no stovepipes in the U.S. Intelligence 
Community that would impair our ability to respond.
    Senator Shelby mentioned that in his opening statement. We 
don't want any stovepipes. We need to get rid of those.
    Much as the Goldwater-Nichols Defense Reorganization Act of 
1986 gave increased authority to our CINCS overseas--
commanders-in-chief overseas--I'm rather attracted to the idea 
of a civilian CINC to attack counterterrorism, perhaps even 
adopting the model where forces from various U.S. agencies are 
assigned to this individual much as they are assigned an 
overseas CINC so that he or she can accomplish his mission.
    Second, our laws and regulations must be reviewed to make 
sure that they do not foster the stovepipes that have caused so 
many problems in the past, and I am pleased to see that many of 
the proposals you've put forward address those changes.
    Clearly we have to recognize that many of these rules--such 
as grand jury secrecy and so on--were enacted to protect the 
rights of our citizens, but we have to find a way to make our 
government work more effectively.
    Third, I think we should be as aggressive as our 
Constitution will permit, particularly with respect to non-U.S. 
persons. Yesterday's Washington Post reports on page A18 that 
the FBI wanted to initiate electronic surveillance against 
Osama bin Ladin's non-U.S. person associates in the United 
States prior to the attack, but the Justice Department did not 
believe that there was adequate authority, given the 
information available to them, to get a FISA tap. If that's the 
case, I think we ought to look at the law and see whether it's 
working adequately. As Mr. Justice Goldberg said, the 
Constitution is not a suicide pact.
    Fourth, we will win this war against terrorism, but how we 
win it matters. We must not abuse the rule of law at home in 
seeking to enforce it overseas. We need to examine each of our 
proposal actions with respect to the rule of law and see how it 
would be seen by others. It's beyond the scope of what you've 
asked me to think about, but, Mr. Chairman, I don't think it's 
a good idea to rescind the ban on assassinations. Americans are 
not assassins. We've been able to do everything we need to do 
without crossing that line. When this war is over, I do not 
believe we want a world in which the actions of the United 
States have established that the assassination of foreign 
leaders is an acceptable norm of international behavior.
    Fifth, I think we should mobilize all resources of the 
Nation. In particular, I think the Government ought to reach 
out to industry and harness some of the genius of our industry 
to assist in the war on terrorism. The national objective must 
be to assure that our industry remains the world leader in all 
of the fields at play here, from aviation to information 
technology.
    Finally, Mr. Chairman, I know you asked the Administration 
witnesses this, but I think particularly from this Committee's 
point of view as you move forward I urge you to consult closely 
with the Intelligence Community. To be perfectly candid about 
it, the Administration's bill was put together in a great rush, 
and I think we want to make certain that the issues that 
concern the Intelligence Community are adequately reflected in 
the Administration's bill or clearly in any bill that the 
Congress passes.
    I've given the Committee extended comments on details of 
the legislation. I'm pretty rusty in many of the ins and outs 
of how these laws work, so please forgive my conclusions if 
they are inadequate. I won't go through them at any length. Two 
or three things I want to mention very briefly.
    The first is again beyond the scope of this Committee but 
section 110 of the Administration's bill says that companies 
are encouraged to provide information to the Government even 
including the content of U.S. person communications when in an 
emergency it would risk life and limb. I think that's an 
honorable provision, but I notice that there's no immunity for 
the companies should they do that.
    The Administration has also made a proposal that 
educational universities have to turn over educational records 
of individuals, and in that instance they are proposing to give 
the educational institutions immunity. I think a similar grant 
of immunity should be considered in the case of U.S. companies 
who give to the Government information on U.S. persons 
voluntarily.
    I'm happy to talk about section 103 of your bill, Mr. 
Chairman, that would deal with the question of dirty assets. I 
do want to commend you for section 102, which gives the DCI 
increased authority over counterterrorism. When I was general 
counsel of the CIA we spent an unconscionable amount of time 
arguing with the FBI over who was going to issue the report 
prior to the 1996 Atlanta Olympics, whether that was the FBI's 
responsibility or our responsibility. Those sorts of arguments 
ought not take place.
    Mr. Chairman, I'm happy to answer your questions.
    Chairman Graham. Good. Thank you very much, Mr. Smith. I'm 
going to call in your two brethren on this panel and then we 
will ask questions to all of you together.
    Mr. Berman. We talked and tried to say could we split the 
baby in half.
    Chairman Graham. I will call on both of you collectively 
and you can allocate the time as you wish.
    [The prepared statement of Mr. Berman follows:]
  Jerry Berman, Executive Director, Center for Democracy & Technology
    Mr. Chairman, Mr. Vice-Chairman, members of the Committee, thank 
you for the opportunity to testify at this hearing on the momentous 
question of improving our nation's defenses against terrorism in a 
manner consistent with our fundamental Constitutional liberties.
    The Center for Democracy and Technology is a non-profit, public 
interest organization dedicated to promoting civil liberties and 
democratic values for the new digital communications media. Our core 
goals include enhancing privacy protections and preserving the open 
architecture of the Internet. Among other activities, CDT coordinates 
the Digital Privacy and Security Working Group (DPSWG), a forum for 
more than 50 computer, communications, and public interest 
organizations, companies and associations working on information 
privacy and security issues.
    CDT joins the Nation in grief and anger over the devastating loss 
of life resulting from the September 11 terrorist hijackings and 
attacks against the World Trade Center and the Pentagon. Like many, our 
relatively small staff had friends and acquaintances killed in those 
heinous acts. We fervently support the efforts of our Government to 
hold accountable those who direct and support such atrocities.
    It is clear that improvements need to be made in America's counter-
terrorism procedures, and it appears there are many things that can be 
done without harming civil liberties. But we know from history that 
measures hastily undertaken in times of peril--particularly measures 
that weaken controls on government exercise of coercive or intrusive 
powers--often infringe civil liberties without enhancing security. In 
the current climate, it is all the more important to act deliberately 
and ensure that our response is balanced and properly targeted. If we 
give up the constitutional freedoms fundamental to our democratic way 
of life, then the terrorists will have won.
    In that regard, Mr. Chairman, we commend you and the Committee for 
holding this hearing, and taking the time to consider the legislative 
proposals put forth by the Administration and those you have developed. 
Only through the hearing process can you and the American public 
understand what is being proposed, how it would change current law, and 
whether the changes are responsive to any deficiencies that the 
September 11 attack may have revealed. Just as President Bush and his 
military advisers are taking their time in planning their response, to 
ensure that they hit the terrorist targets with a minimum of collateral 
damage, so it is incumbent upon this Congress to avoid collateral 
damage to the Constitution.
comments on chairman graham's ``intelligence to prevent terrorism act''
    My testimony will focus on the electronic surveillance provisions 
in both Chairman Graham's ``Intelligence to Prevent Terrorism Act'' and 
the Administration's proposed ``Anti-Terrorism Act of 2001.'' My 
colleague Kate Martin will focus on several other provisions in the 
bills that need clarification. Many provisions of the Chairman's bill 
appear narrowly and approximately crafted to carefully provide desired 
intelligence capabilities; however I will also highlight at least one 
provision of the bill--Section 201--that may have broad implications 
for the Internet.
    As you well know, this Committee--and the current legal structure 
of the Intelligence Community--were established after Watergate both to 
improve intelligence and to ensure that the rights of Americans were 
not eroded by the vast and sometimes vague intelligence authorities 
that had previously existed. The legal and oversight system for 
intelligence sprang not just from a concern about civil liberties, but 
also from a concern about improving the efficacy of intelligence 
gathering. As such, the Committee mission demands a careful vetting of 
any new proposed intelligence authorities and we applaud the committee 
for holding these public hearings to do so.
    A number of the provisions of both the Chairman's bill and the 
Attorney General's bill would change provision of the Foreign 
Intelligence Surveillance Act of 1978 (FISA). As the Committee is also 
well aware, FISA gave extensive authority to the Intelligence 
Community. Under it the FBI and CIA have considerable capability to 
conduct electronic surveillance without the high standards (such as a 
showing of probable cause of criminal conduct, notice, and eventual 
adversarial scrutiny) demanded under our domestic criminal law for 
wiretapping. In exchange for these significantly lowered standards 
allowing much greater intelligence surveillance, FISA demanded a clear 
separation--a wall--between electronic surveillance conducted for 
intelligence purposes and electronic surveillance conducted for 
criminal law purposes. FISA was based on a clear understanding that it 
would not become a back door for use of foreign intelligence 
surveillance in domestic criminal investigations. FISA information that 
was incidentally collected regarding criminal matters could be shared 
across this wall but the purpose of a FISA surveillance had to be 
intelligence. This was intended to avoid a major erosion of our 
constitutional rights through the lower standards of FISA surveillance.
    As we read the Chairman's bill, we applaud what appears to be the 
committee's intent to maintain that distinction between intelligence 
authorities and domestic law enforcement provisions. We are 
particularly pleased to see that the Chairman's bill does not appear to 
intended a rewriting of the FISA authorities. As described below, 
however, we believe that the Attorney General's bill does not reflect 
this deeper understanding and would eviscerate the FISA principles, 
allowing foreign intelligence surveillance standards to be used in 
criminal investigations. (See, e.g., Administration bill, Sections 151-
157) Thus, while we have concerns about some specific provisions, we 
believe the Chairman's bill is far more narrowly crafted, and more 
appropriately targeted to the situation at hand.
    First and foremost, we note with approval Section 204's attempt to 
make it clear that the FBI could conduct both a Title III criminal 
wiretap and a FISA wiretap, intercepting the same communications for 
different purposes. If done properly, this is a more direct and 
appropriate approach to allow criminal investigations and intelligence 
investigations to go forward side-by-side. We need to explore with the 
committee the specific language of the section, but if it tracks the 
intent expressed in the section-by-section analysis, we believe it is 
an appropriate approach.
    Section 202, regarding the duration of certain FISA surveillance 
authorities, raises some concerns. FISA electronic surveillances of 
persons are already granted for periods three times longer than Title 
III surveillances. Under 202, the duration of surveillance before any 
judicial oversight would be extended from 90 days to 1 year. In the 
case of physical searches, the period would be extended from 45 days to 
1 year. Courts have only turned down one FISA application in the 22-
year history of the statute's use. Judicial review, after 45 or 90 
days, hardly seems overly burdensome; if surveillance should continue a 
judge will surely--given the history of discretion in these matters--
renew the order. The risk of this provision is that unproductive 
surveillance could continue for long periods of time without any 
judicial oversight.
    Section 203, the assistance section, may also merit more careful 
drafting. To the extent, as indicated in the section-by-section 
analysis, it is only requiring additional assistance from service 
providers that cannot be identified in advance, we believe it is a 
measured response. However, we believe the language should be reviewed 
with staff to ensure that it is not granting new surveillance 
authorities.
    Section 201 raises concerns and is one area where we should not 
legislate quickly in this complex field of electronic surveillance law. 
Frankly, we find the language to be very ambiguous and potentially very 
broad. It must undergo further discussion and more careful drafting.
    As drafted, the provision would exclude from the definition of 
``electronic surveillance'' any ``instruction or signal'' sent to a 
computer--if it was not a communication to another person, or was not 
for lawful information retrieval--thereby exempting such information 
from the reduced standards of FISA. As we read the interaction of Title 
III and FISA, this would allow the interception of such signals with no 
judicial oversight.
    While apparently intended to allow interception of communications 
``from a hacker, located abroad'' the provision also sweeps in a broad 
class of otherwise protected communications. It would appear to 
include, for example:
     commands sent remotely to a home security system;
     reminders being sent to an online calendar or alarm clock 
system;
     stock trade commands sent to an electronic trading system;
     programs or files being sent (not retrieved) to a computer 
system;

or any other commands one sends to one's own computer, Palm Pilot, or 
wireless phone. All of these sensitive communications, in which there 
is both a reasonable expectation of privacy and a warrant would be 
required for law enforcement purposes, could now be obtained under FISA 
and without judicial oversight.
    It is also unclear how the provision could be applied in practice. 
In a packet-switched data interception environment like the Internet, 
it is difficult if not impossible to know in many cases which packets 
to be intercepted contain an ``instruction or signal'' for a computer 
and are not for information retrieval, and which contain information 
that should require a judicial order. In many, if not in most, cases it 
will only be possible to see whether this provision applied after the 
communication is intercepted, read, and analyzed. Thus, if this 
provision is to be used it would appear to create a license for 
interception of numerous communications that would ultimately be 
discarded after they are read and analyzed.
    Section 201 would appear to create a giant hole in the FISA 
electronic surveillance requirements and would allow the interception 
of numerous personal communication without judicial oversight. It is in 
serious need of redrafting at the very least; if its goal is to allow 
interception of hackers attacking a computer, it seems better addressed 
by provisions that would allow target computer owners to consent to the 
interception of attacks on their computers.
    We recommend that this section be deleted or substantially 
clarified.

                  COMMENTS ON ADMINISTRATION PROPOSALS

    The Administration's Anti-Terrorism Act of 2001 goes far beyond the 
measured response of this committee. It would expand Federal Government 
authorities, including the authorities of the intelligence agencies, to 
conduct electronic surveillance and otherwise collect information on 
U.S. citizens. Some of the changes are quite fundamental. The bill 
includes numerous, complex provisions extending the surveillance laws 
(while raising many questions about how they will be implemented) and 
altering the long-standing distinction between criminal investigations 
and foreign intelligence investigations. Many of the changes are not 
related to security concerns raised by the September 11 terrorist 
attacks. Many are not limited to terrorism cases, but relate to 
criminal investigations. Some have been proposed by the Justice 
Department before, and some have even been rejected by Congressional 
committees.
    In terms of the issues within the jurisdiction of this Committee, 
these are our top concerns:
     Section 153. Foreign Intelligence Information. Allows the 
FBI to collect evidence for criminal cases under the looser standards 
of foreign intelligence investigations--an end-run around the 
relatively stringent requirements for wiretaps in criminal cases and a 
breach of the understanding that led to enactment of FISA.
     Section 155. Pen Register and Trap and Trace Authority. 
Eliminates the only meaningful statutory control that exists on use of 
pen registers ant trap and trace devices in intelligence cases.
     Section 156. Business records. Allows access to any 
business records upon the demand of an FBI agent, with no judicial 
review or oversight.
     Sec. 157. Miscellaneous national-security authorities--
Amends several key privacy laws, allowing much greater access to 
banking, credit, and other consumer records in counter-intelligence 
investigations, with no judicial review at all.
    A more detailed analysis of the Administration's bill follows 
below. Once again, we appreciate and commend this Committee's efforts 
to gather public input and to hold this hearing today. We hope the 
Committee will move forward with those provisions of its bill and the 
Administration's bill that are non-controversial and responsive to the 
tragic attacks of September 11, but will defer on the other more 
complex and divisive provisions that we have identified. We look 
forward to working with the Committee and staff to craft an appropriate 
response at this perilous moment in our country's history, and to avoid 
a rush to judgment on legislation that could ultimately imperil both 
freedom and security.

              EXTENDED ANALYSIS OF THE ADMINISTRATION BILL

    The Administration's bill has two kinds of provisions that give 
rise to concerns: those that would lower the standards for government 
surveillance and those that address the difficult question of 
information sharing.
    In terms of collection standards, our law enforcement and 
intelligence agencies already have broad authority to monitor all kinds 
of communications, including e-mail. Both the criminal wiretap statute 
and the Foreign Intelligence Surveillance Act already cover terrorism. 
For some time, it has been recognized that those standards need to 
strengthen the standards for government surveillance. We see no 
justification for the changes proposed in the Administration bill that 
weaken those standards. We are particularly opposed to changes that 
would eliminate the judicial review that can be the most important 
protection against abuse.
    The Foreign Intelligence Surveillance Act allows the FBI to conduct 
electronic surveillance and secret physical searches in the United 
States, including surveillance of U.S. citizens, in international 
terrorism investigations. FISA also authorizes court orders for access 
to certain business records. As you know, the standards under FISA are 
much lower than the standards for criminal wiretaps, and in return, the 
surveillance is supposed to be focused on the collection of 
intelligence, not criminal evidence. The FISA court, which last year 
approved more than 1000 surveillance requests, has denied only one 
request in its 22 year history.
    Distinct from the Administration's unsupportable desire to avoid 
judicial controls on its authority, perhaps the central and most 
important problem facing the Congress is the question of information 
sharing. For many years, this has been recognized as a very difficult 
question; it is one that will be especially difficult to resolve 
satisfactorily given the pressure-cooker atmosphere of this time. We 
want to work out a balanced solution. But it cannot be done by wiping 
away all rules and barriers. Any solution needs to preserve the 
fundamental proposition that the CIA and other intelligence agencies 
should not collect information on U.S. citizens in the United States.

Sec. 103. Authorized Disclosure
    Allows disclosure of information obtained from wiretaps with any 
executive branch official.--This is clearly too broad, especially in 
light of the vague language in 18 USC 2517 that allows sharing when 
appropriate to the proper performance of the duties of the official 
making or receiving the disclosure. The issue of greatest concern to us 
is that the CIA and other intelligence agencies would begin compiling 
files on U.S. persons. This provision should be narrowed, so that it 
authorizes disclosures to personnel with intelligence, protective, 
public health or safety, or immigration duties, to the extent that such 
disclosure is related to proper performance of the official duties of 
the officer receiving the disclosure, and with the proviso that nothing 
therein authorizes any change in the existing authorities of any 
intelligence agency. (Rather than amending the definition section of 
Title III, it might be better to build these concepts directly into 
section 2517.)

Sec. 105. Use of Wiretap Information from Foreign Governments
    Allows use of surveillance information from foreign governments, 
even if it was seized in a manner that would have violated the fourth 
amendment.--Section 105 makes surveillance information collected about 
Americans by foreign governments (so long as U.S. officials did not 
participate in the interception) admissible in U.S. courts even if such 
interceptions would have been illegal in the United States. Such a 
provision is ripe for abuse and provides unhealthy incentives for more 
widespread foreign surveillance of U.S. individuals.

Sec. 151. Period of Orders of Electronic Surveillance of Non-United 
        States Persons Under Foreign Intelligence Surveillance

    Allows secret searches and electronic surveillance for up to 1 year 
without judicial supervision.--Under current law, the FISA Court can 
order a wiretap of a ``non-U.S. person'' for a period of 90 days, after 
which the Government must report to the court on the progress of the 
surveillance and justify the need for further surveillance. The court 
can authorize physical searches for up to 45 days. The amendment would 
extend both timeframes to 1 year, meaning that after the Government's 
initial ex parte showing there would be no judicial review for 1 year. 
We think this is too long. We recommend that the current timeframes be 
retained for the initial approval. (After all, they are already far 
longer than the 30 days for which criminal wiretaps, including criminal 
wiretaps in terrorism cases, can be approved.) If, after 90-days of 
electronic surveillance or 45 days of physical searches, the Government 
can show a continuing justification for the surveillance or search 
authority, then we would agree that the court could authorize a longer 
surveillance. We would recommend 1 year for electronic surveillance, 
180 days for physical searches (thus preserving the current law's 
recognition that physical searches are more problematic than electronic 
searches and need to be authorized for shorter periods of time).

Section 152 Multi-Point Authority
    Allows roving taps, including against U.S. citizens, in foreign 
intelligence cases with no limits--ignoring the Constitution's 
requirement that the place to be searched must be ``particularly 
described.''--This section purports to afford the FBI ``roving tap'' 
authority for intelligence investigations similar to what already 
exists for criminal investigations. See 18 USC 2518(11). A roving tap 
allows the Government to intercept whatever phone or e-mail account a 
suspect uses, even if the Government cannot specify it in advance. 
Roving tap authority is constitutionally suspect, at best, since it 
runs counter to the Fourth Amendment's requirement that any search 
order ``particularly describe the place to be searched.'' However, the 
proposed language places no limitation on the exercise of the roving 
tap authority and offers the FBI no guidance for its exercise. The 
proposed change merely authorizes the court to issue to any ``person'' 
an order commanding them to cooperate with a surveillance request by 
the Government. If roving tap authority is supposed to focus on the 
targeted person, not on the telephone instrument, then the intercept 
authority should be limited to the target--it should only allow 
interception of communications to which the target of the surveillance 
is a party. Such limitations are absent from this proposal.

Section 153. Foreign Intelligence Information
    Allows the FBI to collect evidence for criminal cases under the 
looser standards of foreign intelligence investigations--an end-run 
around the relatively stringent requirements for wiretaps in Title 
III.--This section, which merely changes the word ``the'' to ``a,'' 
would actually make a fundamental change in the structure of the 
wiretap laws. It would permit the Government to use the more lenient 
FISA procedures in criminal investigations which have any counter-
intelligence purposes and would destroy the distinctions which 
justified granting different standards under FISA in the first place. 
Under existing law, FISA can be used only if foreign intelligence 
gathering is ``the'' purpose of the surveillance. The proposed 
provision would permit FISA's use if this is ``a'' purpose, even if the 
primary purpose was to gather evidence for a criminal prosecution. This 
is an extraordinary change in the law which has no justification.

Section 154. Foreign Intelligence Information Sharing
    With no standards, permits the sharing of grand jury information, 
Title III wiretap information, and any other ``foreign intelligence 
information'' acquired in a criminal case with many different Federal 
officials not involved in law enforcement.--This is a sweeping change 
in the law. ``Foreign intelligence information'' is not defined. The 
provision places no limits on the purpose for which the information may 
be shared, and no limit on its reuse or redisclosure. It requires no 
showing of need and includes no standard of supervisory review or 
approval. As written, a criminal investigator could share with White 
House staff information collected about foreign policy critics of the 
Administration. The provision, at the very least, should be drastically 
curtailed.

Section 155. Pen Register and Trap and Trace Authority
    Eliminates the only meaningful statutory control that exists on use 
of pen register and trap and trace devices in intelligence cases.--The 
law currently requires a showing that the person being surveilled is a 
foreign power, an agent of a foreign power or an individual engaged in 
international terrorism or clandestine intelligence activities. This 
amendment would eliminate that standard and permit the use of FISA for 
pen registers whenever the Government claimed that it was relevant to 
an ongoing intelligence investigation. Contrary to the DOJ's assertion 
in its section-by-
section, this is not the same as the standard for pen registers in 
criminal cases. There, the surveillance must be relevant to an ongoing 
criminal investigation, which is moored to the criminal law. There is 
no similar constraint on foreign intelligence investigations, since 
they can be opened in the absence of any suspicion of criminal conduct. 
This provision ignores the fact that the Government was granted the 
special rules of FISA only for situations that involved intelligence 
gathering about foreign powers.

Section 156. Business Records
    Allows access to any business records upon the demand of an FBI 
agent, with no judicial review or oversight. Traditionally, the FBI had 
no ability to compel disclosure of information in intelligence 
investigations. The compulsory authorities were limited to criminal 
cases, where the open, adversarial nature of the system offered 
protections against abuse. For example, in criminal cases, including 
international terrorism cases, the FBI can obtain grand jury subpoenas, 
under the supervision of the prosecutor and the court, where the 
information is relevant to a criminal investigation. The FBI has no 
ability to invoke the power of the grand jury in intelligence 
investigations, since those investigations are conducted without regard 
to any suspicion of criminal activity. In 1998, in an expansion of 
intelligence powers, FISA was amended to give the FBI a new means to 
compel disclosure of records from airlines, bus companies, car rental 
companies and hotels: Congress created a procedure allowing the FBI to 
go to any FISA judge or to a magistrate. The FBI had only to specify 
that the records sought were for a foreign intelligence or 
international terrorism investigation and that there were specific and 
articulable facts giving reason to believe that the person to whom the 
records pertain is an agent of a foreign power. This is not a 
burdensome procedure, but it brought the compulsory process under some 
judicial control. The Administration's bill would repeal the 1998 
changes and permit the use of ``administrative subpoenas'' rather than 
an application to a court to get any business records under FISA. An 
administrative subpoena is a piece of paper signed by an FBI agent. 
There is no judicial review, no standard of justification, no 
oversight. Particularly in intelligence investigations, which are not 
even limited by the scope of the criminal law and in which there is no 
involvement of the U.S. Attorney's Office, FBI agents should not have 
such unreviewable discretion to compel disclosure of personal 
information.

See. 157. Miscellaneous National-Security Authorities
    Allows much greater access to banking, credit, and other consumer 
records in counter-intelligence investigations.--Current provisions of 
law allow the Federal Government to obtain sensitive banking, credit, 
and other consumer records under the relaxed and secretive oversight of 
FISA--but only when there are ``specific and articulable'' facts 
showing that the target consumer is ``a foreign power or the agent of a 
foreign power.'' Section 157 would eliminate these essential 
requirement, mandating disclosure of this sensitive consumer data 
simply if an FBI official certifies that they are needed for a 
counterintelligence investigation (and with an ex parte court order for 
access to credit reports). Section 157 would eliminate the ``agent of a 
foreign power'' standard in:
     The Fair Credit Reporting Act, allowing access to records 
from consumer reporting agencies (including the names of all financial 
institutions where accounts are held, all past addresses and employers, 
and credit reports);
     The Financial Right to Privacy Act, broadly allowing 
access to financial records; and
     The Electronic Communications Privacy Act, allowing access 
to telephone and toll billing records, and, newly added, all 
``electronic communication transactional records.''
    As such, the Section would greatly increase access to the personal 
information of consumers or groups who are not agents of foreign 
powers. And in each case access the institutions granting access to 
consumer information would be prohibited from disclosing that 
information or records had been obtained.

Section 158. Disclosure of Educational Records
    Amends the law protecting education records to permit access to 
them.--While this might be justified in terrorism cases, the provision 
covers all cases involving ``national security'' and is far too 
sweeping.

Section 159. Presidential Authority
    Does not appear to permit judicial challenge to seizure of 
property. At the very least, there must be such opportunity. A second 
provision allows the use of secret evidence. Use of such evidence, if 
ever permitted, must be on a much higher standard than that the 
information is properly classified, as provided here. The Government 
must be required to persuade a court that the disclosure to the party 
would result in imminent and serious harm and the court must require 
the Government to provide sanitized information to the party.

   STATEMENT OF JERRY BERMAN, EXECUTIVE DIRECTOR, CENTER FOR 
                    DEMOCRACY AND TECHNOLOGY

    Mr. Berman. I am the executive director of the Center for 
Democracy and Technology, which specializes in communications 
and internet privacy and freedom issues. But I've been around a 
long time, and in prior incarnations I was part of the lobbying 
effort to create this Committee in 1976 and also to pass and 
help draft the Foreign Intelligence Surveillance Act of 1978 
and the Electronic Communications Privacy Act of 1986, working 
closely as a civil libertarian with Administration and Hill 
people to try and strike a careful balance between national 
security and civil liberties. I think the effort proved 
successful.
    We have to go back and remember that this Committee was set 
up after Watergate for two purposes--first, to improve our 
intelligence capabilities and monitor that and keep track of 
that; and second to make sure that the CIA and FBI and other 
intelligence agencies do not go off the rails again, as they 
had done during the Watergate era, where they were 
investigating domestic dissent and Martin Luther King.
    So we must be careful, and what we learned in that period 
is that emergency powers passed very quickly during World War 
II eventually spread out and eventually, instead of going after 
our foreign foes, which we need to do in this critical crisis, 
began to go after domestic dissent and it was not a happy 
period.
    So, learning from that lesson, I think the Chairman asked 
the right question. Why are we in a race for a multi-multi-
section bill covering the waterfront, which has provisions on 
law enforcement, intelligence and so forth? What needs to pass 
now and what needs to pass later?
    The key issue that's been discussed here deals with the 
wall that was built on electronic surveillance--let me focus on 
that--the wall between electronic surveillance for intelligence 
purposes and electronic surveillance for law enforcement. The 
standards for intelligence are lower, and we're not just 
talking about electronic surveillance; we're talking about 
black bag jobs. We're talking about secret searches which never 
get turned over to the target of the investigation. The 
standards are important to give national security a leg up, but 
they need to be carefully reviewed, they need judicial 
supervision, and they need to be carefully thought out.
    We applaud the Committee in your statute proposal. That 
wall is preserved, or at least the intent appears to preserve 
that wall by requiring that if you're conducting an 
intelligence investigation conduct it there, under FISA. If you 
also have a criminal investigation or information that leads to 
a criminal investigation, open a title III warrant. That dual 
authority maintains that wall.
    If there is a problem between our intelligence agencies, it 
is not by eliminating the primary purpose test, which may be 
unconstitutional--Mr. DeWine raised that question and a number 
of the Committee--but surgically dealing with information-
sharing that may be barred in criminal cases where you find out 
information that's of intelligence--and I would say 
investigation related to terrorism and international terrorism, 
which in a criminal wiretap ought to be turned over to 
appropriate agencies under proper circumstances.
    That's a sharing issue, not a standard issue. That's why 
the unwillingness to share and clarifying that is an important 
thing we can work on. It requires some surgery. So you preserve 
that standard.
    There are issues. You try to extend the length of a 
surveillance to a year, where foreign persons are concerned, 
and 90 days for physical surveillance. The issue there is that 
we're talking about secret searches again which never get 
disclosed. The judicial supervision is to ensure that there are 
not fishing expeditions, and the question is, since no FISA 
wiretap or extension except one has been turned down in the 22-
year history of the statute, what is the bureaucratic problem 
of continuing that supervision?
    I did not hear an explanation of why that's necessary. 
That's one section we have a concern.
    I do have a concern in your bill with the gathering of 
machine instructions to a computer. I don't know how you pick 
those bits and bytes out of the air. Dealing with the computer, 
bits are bits, and instructions that may look like maybe a non-
human communication to a computer also may contain packets 
which are communications. We need to figure out how to sort 
that out. That takes a little time.
    But still, you're on the track of trying to maintain the 
demarcation. You need to look carefully at the Justice 
Department bill because it has vast implications for your 
mission, both intelligence and protecting our civil liberties. 
It breaks down that purpose, the primary purpose test. It 
allows roving wiretap authority, which is available in law 
enforcement, but under much broader discretion. It's not tied 
to any device. You're not just following telephones, you're 
following a person. Does that mean that you can follow the 
person to any computer they are using, or can you follow them 
to a park and use electronic surveillance with a spike mike on 
whoever they are talking to?
    These need to be examined. So there are expansions that 
need. Again, in terms of maintaining your intelligence mission, 
turning over grand jury information to the White House for 
intelligence purposes and not just to intelligence agencies is 
a very serious question. Maybe it should occur in an 
intelligence investigation, but you need to look at 
compromising sources and methods, the implications of having 
that information turned over. A grand jury investigation, from 
law enforcement investigation, wiretaps, not only to the 
intelligence but the other people in the Administration, what 
is the implications of those standards being taken down.
    I want to emphasize that they are not only breaching the 
wall on the intelligence side but on the law enforcement side 
lowering authorities in the name of going after international 
terrorism which apply across all criminal investigations, not 
just terrorism investigations and then not just using 
information-sharing from the criminal side for terrorism 
investigations but in a wide range for any intelligence 
purpose. That is a very broad, sweeping change in our law.
    I could go on to business records and privacy issues that 
it raises. There is a lot to examine, and since I cannot on the 
public record find any of the sweeping authority that they 
already have having interfered with this investigation in any 
way, that it was an intelligence failure and not a restrictions 
failure, why can't we take the time and go through this in a 
careful way, maybe a couple months, but to try and have a 
statute on the President's desk in 2 weeks without floor action 
is not the appropriate way to strike the balance between 
national security and civil liberties.
    Thank you.
    Chairman Graham. Ms. Martin.
    [The prepared statement of Ms. Martin follows:]
   Statement of Morton H. Halperin, Chair, Advisory Board, and Kate 
Martin, Director, on Behalf of the Center for National Security Studies
    Thank you Mr. Chairman and Vice Chairman for the opportunity to 
testify today on behalf of the Center for National Security Studies. 
The Center is a civil liberties organization, which for 30 years has 
worked to 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 its work over the years on legislation from the 
Foreign Intelligence Surveillance Act to the Intelligence Oversight 
Act, the Center has begun 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.
    We appear before you today at a time of great mourning, when it is 
difficult to turn our thoughts and attention from anything but our 
grief and trouble. And we appreciate the enormous efforts of those 
individuals who have put their own grief aside to concentrate on 
searching for survivors, comforting those who have suffered most 
directly and finding and holding accountable the perpetrators of these 
crimes.
    It is not too soon to begin thinking about how we can improve our 
ability to prevent such unspeakable events from occurring again. 
However, as we do so we must resolve to act in a way that protects our 
liberties as well as our security and which recalls the lessons of the 
past from times when we permitted our concerns for security to accept 
erosions of our liberty that we now regret. The Alien and Sedition 
Acts, the Internment of Japanese Americans, McCarthyism, and the 
efforts of intelligence agencies and the FBI to disrupt the civil 
rights and anti-war movements were not our proudest moments. We must 
not repeat them or lay the seeds for future abuses.
    We owe it to all those innocent people who were murdered to reflect 
upon those basic principles and values which should inform our 
discussion today. What distinguishes us as a people from our fellow 
human beings who committed these terrible acts is our commitment to law 
and to individual freedom. It is a commitment to law made deliberately, 
with calm reflection and an opportunity for public debate. The genius 
of democracy is the understanding that in the noisy and seemingly 
inefficient marketplace of ideas, the wisest decisions will be made. 
And certainly there is no more important subject than how to protect 
both our liberty and security most especially at a time like this when 
both may be so at risk. The American people look to the Members of this 
Committee to make law as the founders of the Constitution envisaged 
when they set up this legislative body, after a full public debate 
informed by facts, analysis and the chance for reflection. We owe 
nothing less to those who have been killed and to our children born and 
to be born.
    We commend the Chair and the Vice Chair for their hard work and 
quick action to outline proposals intended to help prevent such 
horrific acts in the future and to focus on needed structural reforms 
in the Intelligence Community. We are grateful to this committee for 
holding public hearings and for inviting the Center for National 
Security Studies to testify. At the same time, we call upon this 
committee not to precipitously make changes to long-standing rules on 
some of the most technically complicated and difficult issues before 
the Congress.
    In urging you to proceed calmly and deliberately we speak on behalf 
of a coalition of more than 140 organizations from all ends of the 
political spectrum who last week all agreed on a Statement, which reads 
in part:

                         In Defense of Freedom

          This tragedy requires all Americans to examine carefully the 
        steps our country may now take to reduce the risk of future 
        terrorist attacks. We need to consider proposals calmly and 
        deliberately with a determination not to erode the liberties 
        and freedoms that are at the core of the American way of life. 
        We need to ensure that actions by our government uphold the 
        principles of a democratic society, accountable government and 
        international law, and that all decisions are taken in a manner 
        consistent with the Constitution. We can, as we have in the 
        past, in times of war and of peace, reconcile the requirements 
        of security with the demands of liberty. We should resist the 
        temptation to enact proposals in the mistaken belief that 
        anything that may be called anti-terrorist will necessarily 
        provide greater security. We must have faith in our democratic 
        system and our Constitution, and in our ability to protect at 
        the same time both the freedom and the security of all 
        Americans.

    I ask permission, Mr. Chairman to submit for the record as an 
attachment to my statement the full statement of the In Defense of 
Freedom coalition and a list of the organizational and individual 
signers of the statement. The danger of haste is not just to our civil 
liberties but equally to our security. We face an equal danger that in 
the understandable rush to do something, what is done will not be 
effective in making us any safer, that it will substitute for the 
difficult analysis and work that is needed to figure out just how to 
prevent such attacks in the future. This is particularly true with 
regard to widening surveillance of Americans, where extending the net 
of surveillance, rather than doing the difficult work of trying to 
figure out who should be targeted, may well lead to information 
overload, where it will not be possible for the government to 
distinguish the important from the insignificant.
    We have had the Chairman's bill since Saturday morning and the 
administration's proposals being considered by this committee for 2 
days more than that. We have done our best to provide the Committee 
with our preliminary analysis of the proposals.
    But most significantly, we urge you before acting, to hold 
additional hearings, to obtain in writing the careful analyses needed 
of what the current authorities are and what changes would be effected 
by these proposals, why such changes would be useful and what the risks 
will be. These are very technical and complicated issues, with enormous 
implications for both civil liberties and our security and we need to 
act carefully.
    If there are specific authorities immediately needed by the current 
investigators into last week's acts, those authorities could be 
separated from the rest of the proposals and considered as quickly as 
possible. But those proposals designed to prevent such intelligence 
failures in the future, can only be done wisely and effectively after 
more is known about the cause of the failure and a public discussion 
about how to fix them.
    On the subject of haste, we welcome the provision that would undo 
the hasty action of the Senate 10 days ago in repealing the DCI 
guidelines on recruitment of assets involved in terrorism or other 
human rights violations. That provision (sec. 815 in the September 13 
amendment to H.R. 2500) was apparently based on the misunderstanding 
that the existing guidelines had prevented the CIA from recruiting 
terrorist informants, when the guidelines in fact simply required 
procedures intended to insure that the appropriate high level officials 
at the agency approved the use of any such informants. They were 
adopted in response to the report by the President's Intelligence 
Oversight Board that the CIA had not kept this committee informed as 
required by law of serious human rights violations. We understand that 
Section 103 of S. 1448, the Graham-Feinstein bill is intended to 
override section 815 passed September 13 by specifically authorizing 
what is already the case, that the CIA may use terrorist informants. We 
would suggest that the section 103 simply be amended to add that agency 
officers may do so ``pursuant to guidelines or directives issued by the 
agency.''
    We have organized our discussion of the proposals before the 
Committee into three categories:
     Changes to the Foreign Intelligence Surveillance Act.
     Proposal to allow wiretap evidence obtained overseas in 
violation of Fourth Amendment standards to be introduced against 
Americans in U.S. courts; and
     Changes to the current authorities of the Director of 
Central Intelligence and rules regarding sharing of information 
gathered on Americans with the Intelligence Community.

    I. PROPOSED CHANGE TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT

    We have attempted to coordinate our testimony with that being 
presented by the Center for Democracy and Technology. Mr. Berman will 
provide you with detailed comments on the specific provisions, but 
since one of us was intimately involved in the lengthy negotiations 
which led to the enactment of FISA, we wanted to provide you with some 
general remarks relating to the structures and purposes of FISA and of 
the efforts to protect civil liberties while giving the government the 
authority it needed to conduct electronic surveillance to gather 
foreign intelligence.
    It is important to remember that FISA was a grant of authority to 
the government to conduct surveillance, which the Supreme Court had 
held was clearly within the ambit covered by the Fourth Amendment. The 
Court had suggested that the warrant requirements of the Fourth 
Amendment might be different in national security matters and Congress 
and the Administration worked together, with the active involvement of 
outside groups and scholars, over a period of several years to craft 
the careful compromise incorporated in FISA.
    At the heart of FISA was this trade. Congress would authorize 
electronic surveillance of foreign powers and their agents within the 
United States under a standard different and less stringent than 
required for national security wiretaps and it would authorize the 
government never to tell the targets that their conversations were 
intercepted. In return the government accepted greater judicial 
involvement and oversight of the process (carried out in an ex parte 
rather than adversarial manner however) and a wall to insure that it 
did not use these procedures to gather information for criminal 
prosecutions.
    Proposals to alter FISA need to be understood in this context. It 
is not an anomaly that the government has to go back to court more 
often than under Title III to get authority to continue surveillance of 
a private person lawfully resident in the United States. Since the 
person will never be told of the surveillance nor have an opportunity 
to move to have the surveillance records purged, it is important that a 
judge check regularly, at least as a surveillance begins, to be sure 
that the government's suspicion that the person was acting as the agent 
of a foreign power was correct and that the surveillance was producing 
foreign intelligence information while minimizing the collection of 
other information.
    We urge you to keep this basic structure in mind as you consider 
objections to specific provisions. We urge also that you remember the 
care with which FISA was enacted and maintain the same spirit of 
skepticism and openness as this committee considers the proposed 
amendments.
    In this connection, it is also important to remember that 
investigations of terrorism pose particularly difficult problems 
because of the intersection of First Amendment, Fourth Amendment and 
national security concerns. Unlike international narcotics 
investigations, it is important to distinguish between those engaged in 
criminal terrorist activity and those who may share in the religious or 
political beliefs of the terrorists, or even their ethnic background, 
without engaging in any unlawful acts.
    Regarding specific proposals on both FISA and changes to other 
statues permitting national security investigations of financial 
records and other information, we refer you to Mr. Berman's testimony 
in addition to our comments below.

Elimination of the Primary Purpose Requirement, Administration Bill 
        Sec. 153
    We want to stress our concern, as spelled out by Mr. Berman, about 
the administration's proposal to eviscerate the original premise of the 
FISA, that its procedures would only be employed when the primary 
purpose of the surveillance was to gather foreign intelligence. The 
administration's proposal in section 153 would turn the statutory 
scheme on its head by allowing the use of FISA surveillance when the 
government's primary purpose is to bring criminal charges against an 
individual, a change which we believe would violate basic Fourth 
Amendment guarantees.

Duration of Authority to Conduct Surveillance and Searches of Non-U.S. 
        Persons Under FISA. Graham-Feinstein Bill, Sec. 202, 
        Administration Bill, Sec. 151
    These sections would extend the period allowed for the conduct of 
FISA surveillance and searches of non-U.S. persons from 90 days and 45 
days respectively, to 1 year for both surveillance and searches. For 
the reasons outlined above, the current limitations are an integral 
part of the balance intended to provide judicial supervision of the use 
of secret wiretaps and secret searches targeted against individuals, 
who, while not permanent residents or U.S. citizens may well be long-
time legal residents and are protected by the Fourth Amendment. The 
statute currently provides 1-year authorization for surveillance and 
searches of embassies and similar establishments, because the Fourth 
Amendment does not apply to foreign embassies. If there is some 
necessity, other than to avoid inconvenience, for longer authorizations 
for individuals, we would suggest considering an amendment that would 
allow extended authorizations on a second application if the government 
made a showing that the initial surveillance or search did in fact 
obtain foreign government information. In such a case, the second order 
could authorize electronic surveillance for an additional 6 months, 
rather than the current 90 days, and authorize physical searches for 90 
days rather than the currently allowed 45 days.

 II. PROPOSAL TO ALLOW WIRETAP EVIDENCE OBTAINED OVERSEAS IN VIOLATION 
  OF FOURTH AMENDMENT STANDARDS TO BE USED AGAINST AMERICANS IN U.S. 
                COURTS, ADMINISTRATION BILL, SECTION 105

    As described by the administration, section 105 of its bill would 
provide that United States prosecutors may use against American 
citizens information collected by a foreign government even if the 
collection would have violated the Fourth Amendment. As the 
administration points out, as criminal law enforcement becomes more of 
a global effort, such information will come to play a larger role in 
Federal prosecutions and indeed other provisions of the administration 
bill would extend the extraterritorial reach of U.S. criminal law to 
even more crimes than are currently covered today.
    Section 105 would for the first time codify the extraordinary view 
that as the United States works to promote the rule of law throughout 
the world and to extend the reach of U.S. criminal law, it should leave 
the Bill of Rights behind. Implicit in this approach is the view that 
the Constitution is merely an inconvenience to law enforcement rather 
than acknowledging it as the best instrument yet written to govern the 
relations of a government to the governed.
    Certainly, it is not obvious how to implement the protections of 
the Fourth Amendment against unreasonable searches and seizures in a 
new era of global law enforcement. It is an issue that has just begun 
to be examined by the courts. While a bare majority of the Supreme 
Court has held that the Fourth Amendment does not apply to the search 
and seizure of property owned by a nonresident alien and located in a 
foreign country, (United States v. Verdugo-Urquidez, 494 U.S. 259) it 
has affirmed that the Fifth and Sixth Amendments do protect Americans 
overseas. Reid v. Covert, 354 U.S. 1 (1957). The question must also be 
considered under international human rights law, as it is quite likely 
that unreasonable searches and seizures that don't meet Fourth 
Amendment standards also violate existing human rights treaties signed 
by the United States. The question of how to implement Fourth Amendment 
protections for overseas searches will probably at some point require 
congressional action, but it is a difficult and complicated issue that 
cannot be adequately addressed in the context of an emergency response 
to last week's terror attack.

   III. CHANGES TO CURRENT LAW CONCERNING SHARING OF INFORMATION ON 
               AMERICANS WITH THE INTELLIGENCE COMMUNITY

    Several provisions of both bills would significantly change current 
statutory authorities and responsibilities for conducting terrorism 
investigations involving Americans or other U.S. persons inside the 
United States. The problem of effective coordination between such 
investigations and overseas intelligence activities is certainly one of 
the most important ones before this Committee. It is also one of the 
most difficult, both in terms of actually insuring effective 
investigations and making sure that the unintended consequences are not 
to repeal crucial protections for individual rights.
    Since the creation of the CIA in the 1947 National Security Act, 
there has been an attempt to distinguish between law enforcement, the 
collection of information on Americans and others to be used in 
criminal prosecutions of individuals, and foreign intelligence, the 
collection of information about the plans, intentions and capabilities 
of foreign governments and organizations. When the CIA was created, its 
charter specifically prohibited the agency from any ``law enforcement 
or internal security functions'' 50 U.S.C. 403-3(d)(1). As was 
documented in the Church committee report, it was the blurring of the 
distinction between law enforcement and foreign intelligence national 
security investigations that led to the abuses by the intelligence 
agencies outlined in that report. Many of the reforms intended to 
prevent such abuses from happening again, were explicitly predicated 
upon recognizing the differences between law enforcement and 
intelligence, they have different objectives and require different 
means and different rules should apply in order to protect individual 
liberties. The most obvious examples are the different rules for 
criminal wiretaps set out in Title III and for foreign intelligence 
wiretaps in the Foreign Intelligence Surveillance Act, as well as the 
two sets of Attorney General guidelines governing FBI investigations, 
one for General Crimes, including domestic terrorism, and a different 
set for Foreign Counter-Intelligence investigations.
    At the same time, it has always been recognized that some matters, 
most particularly internationally-sponsored terrorism and espionage on 
behalf of foreign powers implicate both law enforcement and foreign 
intelligence concerns. In the past few years, there has been an 
increasing number of situations where intelligence and law enforcement 
interests coincide and there are a substantial number of executive 
branch regulations, directives, working groups and practices that have 
been developed to address the myriad specific issues that are involved; 
for example reconciling the need for intelligence agencies to keep the 
identities of their human sources a secret with due process 
requirements that a criminal defendant be informed of the evidence 
against him and allowed to cross-examine his accusers.
    The threat of terrorism obviously requires effective and close 
coordination between the Intelligence Community and law enforcement. We 
welcome these proposals as the first step toward examining whether 
statutory changes are now needed. However, we urge the Committee to 
take the time to examine the issue in depth beginning with an analysis 
of existing rules and practices. Nothing is more central to the 
protection of the liberties of Americans from the abuses of the past 
than the distinction between law enforcement and intelligence. The 
current proposals would be a sea change in laws that have been on the 
books for 30 years. Before that is done, we urge the Committee to act 
slowly and deliberately. We would welcome the opportunity to sit down 
with you and the Judiciary Committee together to work on solutions that 
will ensure an effective anti-terrorism effort without sacrificing 
individual liberties.
    The specific provisions at issue include the following sections in 
the Department of Justice draft:
    Section 103, repealing the present prohibition on disclosing Title 
III intercepts of Americans' conversations to the Intelligence 
Community, other than the FBI.
    Sections 154 and 354, repealing the present prohibitions on sharing 
grand jury information and other criminal investigation information 
with the Intelligence Community, other than the F1BI.
    The provisions in the Graham-Feinstein bill on this subject, are 
much narrower. However, they would also effect an important shift in 
current responsibilities that needs much more extensive discussion and 
analysis, before being acted upon. Specifically, Section 101 would 
shift from the Attorney General to the Director of Central Intelligence 
the responsibility for determining which Americans should be targeted 
for FISA surveillance.
    Section 102 of the Graham-Feinstein bill would also change the 
foreign intelligence definitions in the National Security Act of 1947.
    This provision would change the definitions in the National 
Security Act of 1947 so that ``international terrorism'' is included in 
the definition of ``foreign intelligence'' rather than 
``counterintelligence.'' While, this may be a wise idea, it requires an 
extensive reading of the many and various laws and regulations which 
incorporate the current definitions in the Act to determine what the 
effect of the change would be, which we have not had an opportunity to 
do.

    MISCELLANEOUS. SEC. 104 TEMPORARY AUTHORITY TO DEFER REPORTS TO 
                                CONGRESS

    This seems like a good way to insure that adequate resources may be 
directed to the September 11 attack while also insuring that the 
Congress continue to receive the information required by the 
Intelligence Oversight Act on all intelligence activities. In this 
connection, we note that paragraph (c) entitled ``Exception for Certain 
Reports'' should refer to section 501 of the National Security Act (50 
U.S.C. 413) as well as to sections 502 and 503 (50 U.S.C. secs 413a and 
413b).
                                 ______
                                 
               In Defense of Freedom at a Time of Crisis

    1. On September 11, 2001 thousands of people lost their lives in a 
brutal assault on the American people and the American form of 
government. We mourn the loss of these innocent lives and insist that 
those who perpetrated these acts be held accountable.
    2. This tragedy requires all Americans to examine carefully the 
steps our country may now take to reduce the risk of future terrorist 
attacks.
    3. We need to consider proposals calmly and deliberately with a 
determination not to erode the liberties and freedoms that are at the 
core of the American way of life.
    4. We need to ensure that actions by our government uphold the 
principles of a democratic society, accountable government and 
international law, and that all decisions are taken in a manner 
consistent with the Constitution.
    5. We can, as we have in the past, in times of war and of peace, 
reconcile the requirements of security with the demands of liberty.
    6. We should resist the temptation to enact proposals in the 
mistaken belief that anything that may be called anti-terrorist will 
necessarily provide greater security.
    7. We should resist efforts to target people because of their race, 
religion, ethnic background or appearance, including immigrants in 
general, Arab Americans and Muslims.
    8. We affirm the right of peaceful dissent, protected by the First 
Amendment, now, when it is most at risk.
    9. We should applaud our political leaders in the days ahead who 
have the courage to say that our freedoms should not be limited.
    10. We must have faith in our democratic system and our 
Constitution, and in our ability to protect at the same time both the 
freedom and the security of all Americans.
    Endorsed by:

Al-Fatiha Foundation, Washington, DC
Alliance for Justice, Washington, DC
American-Arab Anti-Discrimination Committee, Washington, DC
American Association of Law Libraries, Washington, DC
American Association of University Women, Washington, DC
American Civil Liberties Union, Washington, DC
American Conservative Union, Alexandria, VA
American Federation of State, County and Municipal Employees, 
    Washington, DC
American Friends Service Committee--Washington Office, Washington, DC
American Humanist Association, Washington, DC
American Immigration Lawyers Association, Washington, DC
American Liberty Foundation, Alexandria, VA
American Muslim Alliance, Newark, CA
American Muslim Council, Washington, DC
American Policy Center, Warrenton, VA
Americans for Democratic Action, Washington, DC
Americans for Religious Liberty, Silver Spring, MD
Americans for Tax Reform, Washington, DC
Amnesty International--USA, Washington, DC
Arab American Institute, Washington, DC
Asian American Legal Defense and Education Fund, New York, NY
Asian Pacific American Labor Alliance, Washington, DC
Association for Competitive Technology, Washington, DC
Association of American Physicians and Surgeons, Tucson, AZ
Baptist Joint Committee on Public Affairs, Washington, DC
Benton Foundation, Washington, DC
California First Amendment Coalition, Sacramento, CA
Campaign for America, Washington, DC
Catholic Vote.org, Washington, DC
Center for Democracy and Technology, Washington, DC
Center for Digital Democracy, Washington, DC
Center for Economic and Social Rights, Brooklyn, NY
Center for Media Education, Washington, DC
Center for National Security Studies, Washington, DC
Chinese for Affirmative Action, San Francisco, CA
Citizens and Immigrants for Equal Justice, Mesquite, TX
Citizens Committee for the Right to Keep and Bear Arms, Bellevue, WA
Citizens' Commission on Civil Rights, Washington, DC
Civil Rights Forum on Communications Policy, Washington, DC
Common Cause, Washington, DC
Common Sense for Drug Policy Legislative Group, Washington, DC
Competitive Enterprise Institute, Washington, DC
Consumer Action, San Francisco, CA
Council on American Islamic Relations, Washington, DC
Criminal Justice Policy Foundation, Washington, DC
Democracy Foundation, Ballwin, MO
Doctors for Disaster Preparedness, Tucson, AZ
Drug Reform Coordination Network, Washington, DC
Eagle Forum Washington, DC
Eagle Forum of Alabama, Birmingham, AL
Electronic Privacy Information Center (EPIC), Washington, DC
Ethics & Religious Liberty Commission of the Southern Baptist 
    Convention, Nashville, TN
Families Against Mandatory Minimums Foundation, Washington, DC
Family Violence Clinic, Columbia, MO
Federation of American Scientists, Washington, DC
First Amendment Foundation, Washington, DC
Free Congress Foundation, Washington, DC
Free the Eagle, Fairfax, VA
Freedom of Information Center, Columbia, MO
Friends Committee on National Legislation, Washington, DC
Fund for New Priorities in America, New York, NY
Fund for the Fourth Amendment, Washington, DC
Global Strategic Management, Annapolis, MD
God Bless America, http://myweb.ecomplanet.com/GOBA1953/defauft.htm
Government Accountability Project, Washington, DC
Gun Owners of America, Springfield, VA
Harvard Information Infrastructure Project at Harvard University, 
    Cambridge, MA
Health Privacy Project, Georgetown University, Washington, DC
Human Rights Watch, Washington, DC
International Religious Liberty Association, www.irla.org
Independent Institute, Oakland, CA
Islamic Institute, Washington, DC
James Madison Project, Washington, DC
Japanese American Citizens League, San Francisco, CA
Latina and Latino Critical Legal Theory, Inc., Coral Gables, FL
Lawyers Committee for Human Rights, Washington, DC
Leadership Conference on Civil Rights, Washington, DC
Lindesmith Center--Drug Policy Foundation, New York, NY
MoveOn.org, Washington, DC
Multiracial Activist & Abolitionist Examiner, Alexandria, VA
Muslim Public Affairs Council, Washington, DC
National Asian Pacific American Bar Association, Washington, DC
National Asian Pacific American Legal Consortium, Washington, DC
National Association for the Advancement of Colored People, Board of 
    Directors, Washington, DC
National Association of Criminal Defense Lawyers, Washington, DC
National Black Police Association, Washington, DC
National Coalition to Protect Political Freedom, Washington, DC
National Committee Against Repressive Legislation, Washington, DC
National Consumers League, Washington, DC
National Council of Churches of Christ, Washington, DC
National Council of La Raza, Washington, DC
National Gay and Lesbian Task Force, Washington, DC
National Lawyers Guild, New York, NY
National Legal Aid and Defender Association, Washington, DC
National Native American Bar Association, Birmingham, AL
National Youth Advocacy Coalition, Washington, DC
Net Action, San Francisco, CA
Network: A National Catholic Social Justice Lobby, Washington, DC
Nuremberg Legacy Project, Washington, DC
North American Council for Muslim Women, Great Falls, VA
OMB Watch, Washington, DC
Patrick Henry Center for Individual Liberty, Fairfax, VA
People for the American Way, Washington, DC
Philadelphia II, Washington, DC
Physicians for Human Rights, Washington, DC
Privacilla.org, http://www.privacilla.org
Privacyactivism.org, Bellevue, WA
Privacy International, Washington, DC
Privacy Rights Clearinghouse, San Diego, CA
Privacy Times, Washington, DC
Project On Government Oversight, Washington, DC
Research & Policy Reform Center, Washington, DC
Rutherford Institute, Charlottesville, VA
Second Amendment Foundation, Bellevue, WA
Sentencing Project, Washington, DC
Seventh-Day Adventist Church, World Headquarters, Silver Spring, MD
Sixty Plus Association, Arlington, VA
Society of American Law Teachers, Minneapolis, MN
Sovereign Society, Ltd., Baltimore, MD
Square One Media Network, Seattle, WA
Strategic Issues Research Institute, Arlington, VA
Unitarian Universalist Association of Congregations, Washington, DC
United Church of Christ, Justice & Witness Ministries
United States Committee for Refugees & Immigration and Refugee 
    Services, Washington, DC
USAction, Washington, DC
Washington Lawyers' Committee for Civil Rights and Urban Affairs, 
    Washington, DC
WILD for Human Rights, San Francisco, CA
Women's International League for Peace and Freedom, U.S. Section, 
    Washington, DC

    STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL 
                        SECURITY STUDIES

    Ms. Martin. Thank you, Mr. Chairman and Mr. Vice Chairman, 
for the opportunity to testify here today on behalf of the 
Center for National Security Studies, an organization which has 
for 30 years worked to protect civil liberties from being 
eroded in the name of national security.
    We appear today before you at a time of deep mourning, when 
it is in fact quite difficult to turn our attention to this 
kind of issue and to anything other than our grief and sorrow 
at the losses that we all suffered. At the same time, we 
recognize that it is not too soon to begin thinking about how 
we can improve our ability to prevent such unspeakable events 
from occurring again. However, as we do so we must resolve to 
act in a way that protects our liberties as well as our 
security and which recalls the lessons of the past from times 
when we were permitting our concerns for security to accept 
erosions of our liberties that we now regret.
    What distinguishes us as a people from our fellow human 
beings who committed these terrible acts is our commitment to 
law and individual freedom. It is a commitment to law made 
deliberately, with calm reflection and with opportunity for 
public debate. Certainly there is no more important subject 
than how to protect both our liberty and our security. The 
American people look to the Members of this Committee to make 
law as the founders of the Constitution envisioned when they 
set up this legislative body, after a full public debate 
informed by facts, analysis and the chance for reflection.
    We commend the Committee for its hard work and quick action 
to outline proposals intended to help prevent such horrific 
acts in the future and to focus on needed structural reforms in 
the Intelligence Community. We are grateful to the Committee 
for holding these public hearings and for inviting 
representatives of our community to testify.
    At the same time, we call upon this Committee not to 
precipitously make changes to longstanding rules on some of the 
most technically complicated and difficult issues before the 
Congress, with enormous implications for civil liberties. In 
urging reflection and time for calm deliberation, we speak on 
behalf of a coalition of more than 140 organizations from all 
ends of the political spectrum who last week agreed upon a 
joint statement to the Congress urging such calmness. That 
statement I have attached to my prepared remarks.
    I want to mention that the danger of haste of course is not 
just to civil liberties but equally to our security. We face an 
equal danger that in the understandable rush to do something 
what is done will not be effective in making us any safer, that 
it will substitute for the difficult analysis and work that is 
needed to figure out just how to prevent such attacks in the 
future. This is particularly true with regard to widening 
surveillance of Americans where extending the net of 
surveillance rather than doing the difficult work of trying to 
figure out who should be targeted may well lead to information 
overload where it will not be possible for the Government to 
distinguish the important from the insignificant.
    We have had the Chairman's bill since Saturday morning and 
the Administration's proposals being considered by this 
Committee for 2 days longer than that. We have done our best to 
provide the Committee with our preliminary analysis of the 
proposals and it is attached in our written statement. But most 
significantly, we urge you before acting to hold additional 
hearings to obtain in writing the careful analyses needed of 
what the current authorities are and what changes would be 
effected by these proposals, why such changes would be useful, 
and what the risks will be.
    If there are specific authorities immediately needed by the 
current investigators into last week's acts, those authorities 
could be separated from the rest of the proposals and 
considered as quickly as possible. But those proposals designed 
to prevent such intelligence failures in the future, as Senator 
Shelby mentioned, can only be done wisely and effectively after 
more is known about the cause of the failure and we have a 
public discussion about how to fix them.
    I just wanted to mention on the subject of haste we applaud 
the Chairman's bill in undoing what the Senate did on September 
13 when it overruled the DCI guidelines on the recruitment of 
assets and we suggest that the provision about the recruitment 
of assets that's contained in the Chairman's bill is the 
appropriate way to deal with that issue, and we would only 
suggest that, in line with some of the comments made by earlier 
witnesses, that the section could be amended to add that Agency 
officers may recruit terrorist informants ``pursuant to 
guidelines or directives issued by the Agency.''
    I want to basically, I think, second Mr. Berman's remarks 
about particular changes to the Foreign Intelligence 
Surveillance Act and to the information-sharing authorities and 
just make a couple of brief comments about those.
    I think it's important to keep in mind that what the 
Foreign Intelligence Surveillance Act does is authorizes secret 
surveillance and secret searches of the houses of Americans, 
and it does so in the context of a carefully drafted statute 
which many individuals in this room spent some number of months 
and years working out. We urge you to keep this in mind as you 
consider amending the statute and that you remember the care 
with which FISA was enacted. We especially urge you to remember 
that investigations of terrorism, while perhaps the most 
important undertaking for the Intelligence Community in the 
near or perhaps long-term future, at the same time pose the 
most difficult constitutional problems with regard to 
collection of information and investigations of Americans.
    That is because of the unique intersection of first 
amendment, fourth amendment, and national security concerns 
involved in the investigation of Americans for terrorist 
activity. Unlike international narcotics investigations, for 
example, it is important to distinguish between those engaged 
in criminal terrorist activity and those who may share in the 
religious or political beliefs of the terrorists and even their 
ethnic background without, however, engaging in any unlawful 
acts. For 30 years we have had on the books a set of statutes 
and an even more extensive set of Agency guidelines, some 
classified and some public, all of which are designed to 
address the problem of effective investigation of terrorist 
activity while not infringing on first amendment rights and not 
targeting individuals based on their ethnic background.
    Before those provisions are changed, we urge the Committee 
to take the time to sit down and look at what the perhaps 
unintended consequences might be of basic statutory changes.
    I think I won't talk at the moment about the primary 
purpose requirement. I do believe, however, that this Committee 
has a constitutional responsibility itself to determine whether 
or not in your view the lower standards of FISA authorizing 
secret searches and secret surveillance would be constitutional 
if the primary purpose requirement were to be eliminated. I do 
not think it is an answer to say that the court will not 
address that question except on a case-by-case basis. I think 
this Committee and this body has a constitutional obligation to 
make that determination, not only in terms of its national 
security responsibilities but even more so in terms of its 
responsibility to protect individual liberties.
    I want to just mention that we have serious concerns about 
the proposal that would allow wiretap evidence obtained 
overseas in violation of fourth amendment standards to be used 
against Americans in the U.S. courts. This is also a new and 
very difficult legal issue that comes about as part of the 
ever-increasing globalization of U.S. law enforcement. Without, 
I believe, adequate thought or adequate development of the law 
in the court, the Administration proposal would for the first 
time codify the extraordinary view that as the United States 
works to promote the rule of law throughout the world and to 
extend the reach of our criminal law it should leave the Bill 
of Rights behind.
    Implicit in this approach is the view that the Constitution 
is merely an inconvenience to law enforcement rather than an 
acknowledgment of it as the best instrument yet written by 
human beings to govern the relations of a government to the 
governed. Certainly it is not an easy question as to how to 
apply fourth amendment standards to searches and seizures of 
evidence gathered overseas to be used in the U.S. court. We 
suggest that it is an issue that at some time will most likely 
require congressional action and congressional determination. 
We suggest that in the terrible days following last week's 
tragedy is not the time to address that problem.
    Finally, there is the question of the changes to the 
authorities and the responsibilities for information-sharing 
between the Intelligence Community and the law enforcement 
community about terrorism. This is, I believe, one of the most 
serious and difficult problems facing this Committee and this 
country at this moment. There is no doubt about it that the 
threat of terrorism requires effective and close coordination 
between the Intelligence Community and law enforcement. It is 
also true, though, that since the creation of CIA, when the 
National Security Act provided explicitly that the CIA would 
have no law enforcement or internal security functions, that we 
have recognized that the division and the distinction between 
law enforcement and intelligence is very important in 
protecting civil liberties.
    At the same time, of course, we have recognized that there 
are areas like terrorism and espionage which overlap both 
intelligence and law enforcement. Nevertheless, we have a whole 
series of both statutes and present guidelines and directives 
on the books that recognize the distinction and in fact are 
premised on that distinction--for example, the FISA and Title 
III or the Attorney General guidelines for the conduct of FBI 
investigations, one of which is classified and covers foreign 
intelligence matters and one of which covers general crimes.
    Before we change the authorities set forth in the National 
Security Act we believe it's important to have a careful and 
cautious examination of what the effect would be of changing 
those longstanding authorities, with an eye again, let me 
stress, to improving the needed coordination between the two 
communities to provide the most effective kind of both law 
enforcement and intelligence against terrorist organizations, 
but to do that in a way that is respectful and protects the 
liberties in this country.
    Thank you.
    Chairman Graham. Thank you very much, Ms. Martin, and thank 
you to each of the panelists.
    In your three comments the importance of our appreciation 
of the wall, as you described it, Mr. Berman, between using 
intrusive surveillance for foreign intelligence purposes and 
using intrusive surveillance for criminal purposes is a caution 
that is well placed and that we do need to keep very much in 
the forefront.
    One of the areas in which this is raised with particular 
stark impact would be if we were to amend the law to say that 
you could get a FISA wiretap with something less than foreign 
intelligence being the primary purpose. As I gather, the 
recommendation of the Attorney General is that we eliminate 
that standard and then leave it up to the FISA court on a case-
by-case basis to make judgments of if it's not the primary 
purposes, if it's 50/50 or if it's 40/60, where do you reach 
the point where you do lose the constitutional basis for a FISA 
tap.
    To put that into its context, and if you feel, Mr. Smith, 
based on your previous background and current understanding, 
especially your role at the CIA, what is the problem that is 
raised by using the primary purpose standard as the basis of 
getting a FISA wiretap? What are the kind of cases that are 
compromised or threats to our security that are tolerated 
because we use this high standard for getting a FISA wiretap?
    Mr. Smith. In my experience, Mr. Chairman, what happens is 
that oftentimes it's not clear at the outset of an 
investigation whether this should be pursued as a law 
enforcement matter and ultimately possibly prosecution or 
simply to collect foreign intelligence and take action later 
on. Oftentimes you'll start down one road and find that you 
have to shift to another.
    The question as I understand it with respect to ``a'' 
versus ``the'' is whether or not, particularly in the case of a 
U.S. person, the courts would ultimately hold that the test had 
been met under the fourth amendment to engage in this intrusive 
surveillance.
    I'm not sure I know what the right answer is. My guess is 
that the folks in OLC at the Justice Department are right, 
namely that, depending on the facts of the cases as they come 
along, the courts would be willing to give a considerable 
deference if, for example, the first criminal cases that go to 
court are foreign nationals who presumably have fewer fourth 
amendment rights than Americans. They might not be so troubled 
if it's just ``a'' purpose and it then turns into a 
prosecution. In the case of a U.S. person, it may come out 
quite differently.
    I think my colleagues on the panel are right. This is a 
hard issue and needs a lot of careful thought, and I think the 
Administration ought to be asked quite directly why do you need 
this. Why can you not proceed under the current procedures? I 
don't know the answer to that one.
    Mr. Berman. I think the record is they haven't had 
difficulty here, and if you turn up in your intelligence 
investigation that you've got a money-laundering case, your 
bill says go get a title III warrant. Again I come back and say 
that if there is a wall between a criminal investigation with 
wiretapping, sharing relevant information in the middle of an 
investigation of money laundering it turns out that someone's 
laundering money for bin Ladin and that comes up in a criminal 
wiretap, there's the grounds for a FISA tap, which I think is 
probably already on, but there ought to be some way to turn 
that information over to an intelligence agency.
    There's an information-sharing issue which may be a 
restriction in both statutes that could be worked on. But it's 
not the standard; it's the sharing of the data.
    I also think that if you went on a fast-track/slow-track 
that you could take the most troubling issues of when you might 
get information about a terrorist investigation in a grand 
jury. I think that the Justice Department and the CIA will make 
strong cases that there are circumstances when use of illegal 
wiretap information may be critical in such a case. But rather 
than amending the criminal statutes across the board to provide 
that kind of information for any intelligence purpose, why 
don't we try and craft a terrorism section that deals with this 
crisis and the special circumstances of a new kind of enemy, 
one that we've got to be careful. Kate's absolutely right that 
this is an intersection between national security, law 
enforcement and civil liberties.
    The new terrorist target is someone who drinks Bud, has a 
college education, goes to work at some company that Jeff may 
be representing, and lives in Laurel. How do we do that kind of 
targeting and not be over broad and at the same time, while 
we're worrying about collateral damage in Afghanistan, so we 
don't prevent our ability to penetrate those organizations by 
making everyone hate us across the whole Islamic world, you 
don't want the same thing to happen here.
    Over-surveillance, the sense that there is an agent behind 
every bush, will make innocent people of that community stop 
talking to our agents. That's what happened in Watergate and 
you don't want it to happen here. It will be counterproductive 
not just to civil liberties but to your intelligence mission.
    Vice Chairman Shelby. Mr. Chairman.
    Chairman Graham. Yes, Senator.
    Vice Chairman Shelby. I appreciate all of your testimony, 
and, Jeff, we welcome you back here.
    As I understand it--and I'll direct this to all of you, my 
observation first and then a question--under the criminal 
investigations you have today do the statutes afford the FBI 
roving tap authority for intelligence investigations? In other 
words, they would like what they now have for criminal 
investigations; is that right, Mr. Berman?
    Mr. Berman. They have it for criminal investigations. It's 
always with a shudder. I'm not saying we like it, because you 
particularize things. I think that following telephones under 
FISA may make sense, but the way that it's drafted it's not 
clear that it's tied to devices any more; it's tied to the 
person and wherever that person is. We need some explanation of 
what they mean by that.
    Vice Chairman Shelby. As we discuss this matter, we're 
mindful of the Constitution, which grants us our rights. But we 
are also mindful here today of a heck of a challenge to our way 
of life, and what we want to do is have some balance. We do not 
want to destroy our constitutional rights for our citizens, but 
at the same time we want to give, if we can, under the auspices 
of the Constitution, the tools to the Justice Department and 
the FBI to fight this and win this without doing damage to the 
rest of us. Isn't this what we're trying to achieve?
    Mr. Berman. I think we can do that. It doesn't require 
meeting the content standard. It can be a lower standard. But 
it needs to be more carefully drafted.
    Vice Chairman Shelby. The precision of language is very 
important, as we all know, and words have meanings, and 
whatever we do we ought to do carefully. But I believe we've 
got to do something to help the FBI, to help the Justice 
Department, because we cannot sit back and do nothing. None of 
us would want to do that. But we can be wise in what we do, if 
we're careful in what we do, can't we, Jeff? Isn't that your 
basic message here today?
    Ms. Martin. Definitely.
    Vice Chairman Shelby. Thank you, Mr. Chairman.
    Chairman Graham. To follow on with what Senator Shelby was 
just saying, it seems to me prior to September 11 we had been 
aware of the fact that many of our previous laws had been 
developed with a certain expectation of what the technology was 
going to be. It was that telephone that sat on your desk or 
your night table, and that was how you communicated. Now, if we 
could step back and say what was the philosophical context, 
rationale, and constitutionally acceptable basis for allowing 
that telephone sitting on your desk to be wiretapped, then ask 
the question, now, in the new technology, where the same act, 
communication from human being to human being, is being carried 
out but the technology is substantially different, how do we 
adapt the laws to be consistent with the philosophy that 
allowed the static telephone to be wiretapped to now allow the 
computer or the cellular phone or the other forms of 
communication to be similarly accessed under the same 
circumstances that we tolerated before.
    Mr. Berman. As I work a lot on the internet I've been 
talking to a lot of staffs about on a pen register all you're 
saying is, ``Well, all we want from the internet is the same 
information from a computer that we get from a telephone, the 
pen register,'' which is the dialed digits. There is no 
equivalent on the internet. The transactional information that 
follows an e-mail has a name, it has a subject line, often with 
the subject line having the whole content of the message in it, 
which is, ``Hey, Joe, join the meeting,'' and several messages 
like that tell you as much as what's in the content of the 
message.
    I'm not saying that you don't provide pen register 
authority for advanced technologies and give the computers a 
pass, but you have to look at what's the equivalent. You've got 
a very low standard because you think you're only getting 
telephone numbers. If you're getting the content of the 
communications in many cases, shouldn't we be more circumspect 
and have a higher review. So that's the kind of technology 
issue we're prepared to address, but we need some dialog.
    Chairman Graham. I'm going to recognize Senator Shelby, but 
maybe I'm expressing a personal frustration. I thank you for 
your comments about having this open hearing and I look forward 
to having more as we focus on these issues. On the other hand, 
sometimes the factual predicate for needing these changes is 
stated to be classified. So we then have to go behind closed 
doors to hear what it is that is making it necessary to propose 
these changes.
    Then we come back in a public hearing and we can't be as 
candid as we are being today in terms of a discourse between 
different points of view.
    Mr. Berman. Just back on the process of FISA, this dialog 
between public and private, there was all classified 
information that we were dealing with in trying to craft the 
warrant requirement for FISA. It was done with dialog between 
the Justice Department and industry and civil liberties. All 
they did was they would present us, instead of classified 
documents, hypotheticals that were not related to and would not 
blow a source and method, and we would try and wrestle with 
what they thought were problems and see whether we could fit 
them into statutes. And you can do that. You have to do that 
because not everyone's going to be under a clearance.
    But there is a lot that can be discussed in an open session 
or not in a classified room, where people can be brought 
together to explore these issues and work toward solutions.
    Ms. Martin. I just want to second that. I think that this 
Committee has over the years many examples of crafting very 
complicated law in a public manner, with lots of public 
hearings, and that it's important to do so for another reason 
that hasn't really been talked about at great length, which is 
the public confidence in the process.
    I think that while on the one hand the American public is 
very eager for you to do what's necessary to protect it, I 
think that we have to not forget that the suspicion of the 
secret intelligence agencies is just below the surface and 
that, as Jerry mentioned, it is important that that not become 
a cancer, especially in our minority communities in the United 
States and that if you're talking about expanding intelligence 
authorities that that be done in a way that people come to 
understand why it's necessary and what built-in protections are 
in there against abuses. That is very important.
    That's the role I think this Committee has played over the 
years with us in having these dialogs.
    Mr. Berman. I also point out that there are many 
authorities in the Justice Department bill where the authority 
is being delegated down, to a magistrate in any town. They are 
making decisions about nationwide searches involving terrorist 
activity. That is a prescription for real mischief because it 
ought to go to people who have some understanding. That's the 
same argument the Intelligence Community would make if we said 
why don't we just let any District Court judge approve these 
FISA taps. There's a special court sitting there.
    Maybe it ought to have more appointees than just made by 
the Chief Justice of the United States, but there is expertise 
that ought to be involved and you've got to worry about how 
that process is played out. I don't think the bill that's on a 
fast track has been drafted carefully.
    Vice Chairman Shelby. Mr. Chairman, just a few 
observations. I think we all believe--I hope we do--that the 
security of our people, our Nation is very, very important. 
That's one of our highest priorities. We also believe strongly 
in the Bill of Rights, as well as in our constitutional rights 
apart from the Bill of Rights.
    Now, I think one of the problems is going to be to make 
sure that we move but that we move wisely and that whatever we 
craft and whatever we pass and the President signs into law, 
one, will give the tools to the Justice Department to do its 
job. I think that's paramount. Also, we should be careful in 
our language because if we pass something that's 
constitutionally questionable or suspect, it will be 
challenged. If we use all of this and develop great cases and 
prosecute the terrorists, if we find them--and I hope we will--
and then ultimately the courts throw out some of this because 
of some laws that we haven't thought out, we're back to square 
one, if not in a hole, aren't we?
    Mr. Berman. Yes.
    Vice Chairman Shelby. Jeff, you've been the General 
Counsel.
    Mr. Smith. You are absolutely right, Senator. You're very 
wise to do this.
    I want to pick up on something that Jerry said that fits 
right here. We need to be very careful about this. Drafting 
FISA, I was involved on the Government side at the time. It 
was, I think, a very good exercise where we all sat down at the 
staff level in what seemed endless meetings to hammer this out. 
Jerry mentioned the role of industry. Let me encourage you and 
others to bring in industry, particularly the high tech 
industry whose equipment and technology is involved here. They 
were very much involved in 1978 when we were working on FISA, 
and I think they can bring a lot to the table because they 
understand precisely in ways that I certainly don't as to how 
the technology works, No. 1, and No. 2, perhaps equally 
important, they can tell you where it's headed.
    Because a year from now we may be facing new technology and 
new challenges that we cannot now anticipate, and this is an 
opportunity to legislate and get it right. The old carpenter's 
adage of measure twice and cut once seems to be appropriate 
here.
    Vice Chairman Shelby. Thank you.
    Mr. Berman. We did receive a letter from Senator Leahy to 
CDT's Digital Privacy and Security Working Group, in which Jeff 
has participated many times. It has civil liberties 
organizations, but it has a very broad cross-section of 
communications industry--telephone companies, Microsoft, AOL--
working and asked to give advice on the communications 
infrastructure impacts of these proposals. I think that's worth 
having. We'd be glad to provide it to this Committee also.
    Vice Chairman Shelby. Well, let's win this war against 
terrorism.
    Mr. Berman. Absolutely.
    Vice Chairman Shelby. Protect our liberties too.
    Chairman Graham. If I could close with a reference to 
American history, I have almost finished the biography of John 
Adams, and clearly the low point in John Adams' personal and 
political life was his signing the alien and sedition laws, 
which were a response early in our Nation's history to what was 
perceived to be a serious security attack.
    Those laws proved to be not only unacceptable legally but 
they turned out to be unacceptable politically, as John Adams 
became the first incumbent President in our Nation's history to 
be defeated, in large part because of his role in the alien and 
sedition laws. Then they were subsequently repealed by his 
successor, Thomas Jefferson.
    So the American people also have a history of concern about 
precipitous actions and there is a potential political price to 
be paid as well as the other concerns that you've discussed. So 
I would hope that we would be cognizant of all of those warning 
signals. Yes, we want to give to our security agencies the 
powers that they need to protect our citizens. We also want to 
do it in a way that does not cause the United States to become 
like those very people that we are trying to protect our 
citizens against. It would be the ultimate victory of the 
terrorists if they were to force us to become like them by our 
surrendering of our individual freedoms and liberties, which so 
distinguish us as Americans.
    So, with those thoughts, I want to extend again my thanks 
and appreciation. Please be receptive if and, I expect, as we 
call upon you over the next few days and weeks for your further 
counsel on these issues.
    Mr. Berman. We applaud you for holding this hearing.
    Chairman Graham. Thank you.
    [Whereupon, at 6:17 p.m., the Committee adjourned.]
  

                                
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