[Senate Hearing 107-947]
[From the U.S. Government Publishing Office]
S. Hrg. 107-947
THE USA PATRIOT ACT IN PRACTICE: SHEDDING LIGHT ON THE FISA PROCESS
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 10, 2002
__________
Serial No. J-107-102
__________
Printed for the use of the Committee on the Judiciary
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Committee ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ORRIN G. HATCH, Utah
JOSEPH R. BIDEN, Jr., Delaware STROM THURMOND, South Carolina
HERBERT KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RUSSELL D. FEINGOLD, Wisconsin JON KYL, Arizona
CHARLES E. SCHUMER, New York MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
MARIA CANTWELL, Washington SAM BROWNBACK, Kansas
JOHN EDWARDS, North Carolina MITCH McCONNELL, Kentucky
Bruce A. Cohen, Majority Chief Counsel and Staff Director
Sharon Prost, Minority Chief Counsel
Makan Delrahim, Minority Staff Director
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 11
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 14
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 10
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 7
Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa. 24
prepared statement........................................... 104
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 5
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona.......... 129
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 1
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 16
Specter, Hon. Arlen, a U.S. Senator from the State of
Pennsylvania................................................... 8
Thurmond, Hon. Strom, a U.S. Senator from the State of South
Carolina, prepared statement................................... 136
WITNESSES
Banks, William C., Professor of Law, Syracuse University,
Syracuse, New York............................................. 19
Bass, Kenneth C., III, Senior Counsel, Sterne, Kessler, Goldstein
and Fox, Washington, D.C....................................... 21
Halperin, Morton H., Director, Washington Office, Open Society
Institute, Washington, D.C..................................... 22
Kris, David, Associate Deputy Attorney General, Department of
Justice, Washington, D.C....................................... 17
QUESTIONS AND ANSWERS
Responses of William C. Banks to questions submitted by Senator
Leahy.......................................................... 66
Responses of Kenneth Bass to questions submitted by Senator Leahy 69
Responses of David Kris to questions submitted by Senator Leahy.. 48
SUBMISSIONS FOR THE RECORD
Banks, William C., Professor of Law, Syracuse University,
Syracuse, New York, prepared statement......................... 72
Bass, Kenneth C., III, Senior Counsel, Sterne, Kessler, Goldstein
and Fox, Washington, D.C., prepared statement.................. 84
Department of Justice, Daniel J. Bryant, Assistant Attorney
General, Washington, D.C., letter.............................. 99
Halperin, Morton H., Director, Washington Office, Open Society
Institute, Washington, D.C., prepared statement................ 112
Hatch, Hon. Orrin G., Hon. Strom Thurmond, Hon. Jon Kyl, Hon.
Mike DeWine, Hon. Jeff Sessions, Hon. Mitch McConnell, joint
statement...................................................... 116
Kris, David, Associate Deputy Attorney General, U.S. Department
of Justice, Washington, D.C., prepared statement............... 120
Specter, Hon. Arlen, letter to Hon. Robert Mueller............... 134
U.S. Foreign Intelligence Surveillance Court, Hon. Colleen
Kollar-Kotelly, Presiding Judge, letter and attachments........ 142
THE USA PATRIOT ACT IN PRACTICE: SHEDDING LIGHT ON THE FISA PROCESS
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TUESDAY, SEPTEMBER 10, 2002
United States Senate,
Committee on the Judiciary,
Washington, D.C.
The Committee met, pursuant to notice, at 9:38 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Patrick J.
Leahy, Chairman of the Committee, presiding.
Present: Senators Leahy, Feinstein, Feingold, Schumer,
Durbin, Hatch, Grassley, Specter, and DeWine.
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Chairman Leahy. We will begin. I understand Senator Hatch
has been delayed in traffic but is coming in, but Senator
DeWine, Senator Specter, and Senator Feingold are here.
Before we begin, I want to commend Senator Specter for not
only this year but for as long as I can remember, he has
highlighted this whole issue of FISA and the importance of it,
as have Senators Grassley, DeWine, and Feingold. I appreciate
this, and I mention this, Mr. Kris, because I know you have
worked so very hard on this subject.
Today in Vermont, my own State, and also in Arizona, North
Carolina, New York, Wisconsin, Maryland, and a number of other
States, Americans are making our democracy work by casting
votes in primary ballots. This Committee meets today as part of
its role in that same democratic process, focusing oversight on
one of the most important but least understood functions of our
government. We are examining how the Foreign Intelligence
Surveillance Act is working, and we are asking how it works not
just in theory but in practice.
We had begun our oversight hearings last summer, as soon as
the Senate majority shifted. After the terrorist attacks on
September 11, we focused on expedited consideration of what
became the USA PATRIOT Act, providing legal tools and resources
to better protect our nation's security. We continue our
efforts to ensure that the law is being implemented effectively
and in ways that are consistent with preserving the liberties
enshrined in the Constitution.
Much of our focus today will be on process issues in a
secret system. In a nation of equal justice under law, process
is important. In a nation whose Constitution is the bulwark of
our liberty, process is essential. In administering a system
that rightfully must operate under a shroud of secrecy,
Congressional oversight of that process is crucial.
The USA PATRIOT Act made important changes to the Foreign
Intelligence Surveillance Act, which is called ``FISA'' for
short. This law set up a secret court to review government
applications to conduct secret wiretaps and searches inside the
United States for the purpose of collecting foreign
intelligence information to help protect this nation's national
security. FISA was originally enacted in the 1970s to curb
widespread abuses by both Presidents and former FBI officials
of bugging and wiretapping Americans without any judicial
warrant--based on the Executive Branch's unilateral
determination that national security justified that
surveillance.
The targets of those wiretaps included a Member and staff
of the United States Congress, White House domestic affairs
advisors, journalists, and many individuals and organizations
engaged in no criminal activity but, like Dr. Martin Luther
King, who expressed political views threatening to those in
power.
Indeed, on our panel today is one of the victims of those
abuses, Dr. Morton Halperin, whose telephone was illegally
tapped by high-level officials in the Nixon Administration. I
point this out because I don't want anybody to think all this
is ancient history. It has happened more recently than we would
like to think.
In the USA PATRIOT Act, we sought to make FISA a more
effective tool to protect our national security, but the abuses
of the past are far too fresh simply to surrender to the
Executive Branch unfettered discretion to determine the scope
of those changes. The checks and balances of oversight and
scrutiny of how these new powers are being used are
indispensable. Oversight of a secret system is especially
difficult, but in a democracy it is especially important.
Over the last two decades, the FISA process has occurred
largely in secret. Clearly, specific investigations must be
kept secret, but even the basic facts about the FISA process
have been resistant to sunlight. The law interpreting FISA has
been developed largely behind closed doors. The Justice
Department and FBI personnel who prepare the FISA applications
work behind closed doors. When the FISA process hits snags,
such as during the year immediately before the September 11
attacks, and adversely affects the processing of FISA
surveillance applications and orders, the oversight Committees
of the Congress should find out a lot sooner than the summer
after the September 11 attacks. Even the most general
information on FISA surveillance, including how often FISA
surveillance targets American citizens, or how often FISA
surveillance is used in a criminal case, is unknown to the
public.
In matters of national security, we must give the Executive
Branch the power it needs to do its job. But we must also have
public oversight of its performance. When the Founding Fathers
said ``if men were all angels, we would need no laws,'' they
did not mean secret laws.
Our oversight has already contributed to the public's
understanding of this process. We have brought to light the
FISA Court's unanimous opinion rejecting the Justice
Department's interpretation of the USA PATRIOT Act's
amendments. That was because of requests from this Committee.
If it had not been for the prolonged efforts of the Committee--
and I want to note especially Senator Specter and Senator
Grassley--one of the most important legal opinions in the last
20 years of national security law, even though it was
unclassified, would have remained totally in secret. This is an
unclassified government document remaining secret. We brought
it out into the open.
As it is, this unclassified opinion was issued in May, but
it was not released until three months later, on August 20, in
response to a letter that I sent, along with Senator Specter
and Senator Grassley, to the court. The May 17 opinion is the
first window opened to the public and the Congress about
today's FISA and about how the changes authorized by the USA
PATRIOT Act are being used. Without this pressure to see the
opinion, the Senators who wrote and voted on the very law in
dispute would not have known how the Justice Department and the
FISA Court were interpreting it. The glimpses offered by this
unclassified opinion raise policy, process, and constitutional
issues about the implementation of the new law.
The first-ever appeal to the FISA Court of Review, which
the Solicitor General of the United States argued yesterday,
was transcribed and, yesterday, with Senator Specter and
Senator Grassley, I sent a letter asking the court to provide
an unclassified version of the oral argument and their decision
to this Committee. We need to know how the law is being
interpreted and applied.
Many of the FISA provisions are subject to a sunset.
Because of that, it is particularly important that this
Committee monitor how the Justice Department is interpreting
them, because if we don't know how they are interpreting them,
I am one Senator who would not agree to continuing the Act once
the sunset is there.
Now, let's be very clear about that. This Act has to be
renewed. If we are not going to know how it is being used, I
think there are going to be an awful lot of Senators,
Republican and Democrat alike, who will not vote to continue
the Act. The Department of Justice brief makes a sweeping claim
regarding the USA PATRIOT Act amendments. The Department
asserts that the longstanding ``purpose'' analysis adopted by
numerous courts for more than 20 years is simply wrong.
Specifically, the Department claims that using FISA for the
sole and exclusive purpose of pursing a criminal prosecution,
as opposed to collecting intelligence, is allowed.
The Department contends that changing the FISA test from
requiring ``the purpose'' of collecting foreign intelligence to
a ``significant purpose'' allows the use of FISA by prosecutors
as a tool for a case even when they know from the outset that
the case will be criminally prosecuted. They claim that
criminal prosecutors can now initiate and direct secret FISA
wiretaps, without normal probable cause requirements and
discovery protections, as another tool in criminal
investigations, even though they know that the strictures of
Title III of the Fourth Amendment cannot be met. In short, the
Department is arguing that the normal rules for Title III and
criminal search warrants no longer apply in terrorism or
espionage cases, even for U.S. persons.
I was surprised to learn that, as the ``drafter of the
coordination amendment'' in the USA PATRIOT Act, the Department
cites my statement to support its arguments that there is no
longer a distinction between using FISA for a criminal
prosecution and using it to collect foreign intelligence. Well,
had the Department of Justice taken the time to pick up a phone
and call me, I would have told them that was not and is not my
belief. Let me state that again. Even though the Justice
Department's brief cites what is my belief, let me tell you
right now they are wrong. It is not my belief. When they cite
me, they ought to talk to me first.
We sought to amend FISA to make it a better foreign
intelligence tool. But it was not the intent of these
amendments to fundamentally change FISA from a foreign
intelligence tool into a criminal law enforcement tool. We all
wanted to improve coordination between the criminal prosecutors
and intelligence officers, but we did not intend to obliterate
the distinction between the two, and we did not do so. Indeed,
if we wanted to make a sweeping change in FISA, it would have
required changes in far more parts of the statute than were
affected by the USA PATRIOT Act.
In addition, as Professor Banks points out in his
testimony, such changes would present serious constitutional
concerns. The issues relating to FISA implementation are not
just legal issues, however. Our Committee has also held closed
sessions and briefings. We have heard from many of the FBI and
Justice Department officials responsible for processing and
approving FISA applications. We cannot go over all of this in
an unclassified forum, but I can say this: before the 9/11
attacks, we discovered the FISA process was strapped by
unnecessary layers of bureaucracy and riddled with
inefficiencies. Some of these inefficiencies had to do with
legal issues that we addressed in the USA PATRIOT Act, but many
did not. They related to the same problems that this Committee
has seen time and time again at the FBI: poor communication,
inadequate training, a turf mentality, and cumbersome
information management and computer systems that date back to
the Dark Ages. Even a cursory read of the unanimous FISA Court
opinion bears that out. The FISA Court was not frustrated with
the state of the law. Instead, all seven Federal judges were
concerned about a track record marred by a series of inaccurate
affidavits that even caused them to take the extraordinary step
of banning an agent from appearing before the court in the
future. I continue to support Director Mueller's efforts to
address these problems, but the going will not be easy.
As we conduct oversight of the FBI and the Justice
Department, I have become more convinced there is no magic
elixir to fix these problems. It is tempting to suggest further
weakening of the FISA statute to respond to specific cases, but
the truth is that the more difficult systemic problems must be
properly addressed in order to combat terrorism effectively.
Furthermore, given the secrecy of the FISA process and the law
relating to the FISA, it is impossible to intelligently address
the problems that do exist without risking doing more harm than
good. As this week's mostly secret appeal before the FISA
review court demonstrates, the consequences of amending that
statute can be far-reaching and perhaps unintended. FISA was
enacted for a reason. It is even more important to the nation
today than it was a year ago, before September 11th, and we
need it to work well. It ensures that our domestic surveillance
is aimed at true national security targets and does not simply
serve as an excuse to violate the constitutional rights of our
own citizens. We must first exercise the utmost care and
diligence in understanding and overseeing its use.
I believe it was the Los Angeles Times, in an editorial
shortly after September 11th, that said the buildings may have
come down, our Constitution did not. And if we want to protect
ourselves, we should make sure that both the buildings and
Constitution have not come down.
Senator Hatch?
STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE
OF UTAH
Senator Hatch. Well, thank you, Mr. Chairman. I want to
commend you for holding a hearing on this important issue--the
Foreign Intelligence Surveillance Act, or FISA, process. The
intelligence community and the law enforcement agencies rely on
FISA to conduct critical intelligence gathering in order to
protect our country and prevent further terrorist attacks. And
let nobody miss the point. We have to be very vigilant and we
will have to continue to be very vigilant in order to prevent
any future terrorist attacks in this country. And we are very
concerned when people are willing to give their own lives in
suicide bombings. We know that that is a matter of even greater
concern to many people.
Now, I look forward to examining this important issue
relating to the FISA process today and am hopeful that we can
do this in a spirit of bipartisanship. These are complex
issues, and the Committee's constructive role is important.
The timing of this hearing--one day before the first-year
anniversary of the attack on our country--could not be more
telling. Our joint session last Friday in New York City helped
to emphasize to everyone the horrible tragedy that our country
suffered on September 11th. It reminded us of our continuing
need to be vigilant in protecting our country from further
terrorist attacks.
After last year's tragic attack on September 11th, the
administration and Congress worked together to enact the
PATRIOT Act. This is a broad package of measures that provided
law enforcement and the intelligence communities with the
necessary tools to fight terrorism worldwide and, of course,
protect our country. These reforms were critical to enhance our
government's ability to detect and prevent terrorist attacks
from occurring again. We worked together on these reforms and
passed them in the full Senate on a vote of 99 to 1.
One of the most significant issues addressed by the PATRIOT
Act was the lack of effective coordination between intelligence
and criminal investigations. This was not a new issue. The
Bellows report relating to the Wen Ho Lee investigation, as
well as the GAO Report on the subject, clearly identified the
problem of intelligence sharing and the need to address the
issue even before the September 11th attack. The issue was also
identified by the Hart-Rudman Commission and dated back to the
1990s.
The PATRIOT Act addressed the issue in two significant
ways:
First, Congress, with Section 218 of the Act, modified the
``primary purpose'' requirement for FISA surveillance and
searches to allow FISA to be used where a significant, but not
necessarily primary, purpose is to gather foreign intelligence
information.
Second, Section 504 of the PATRIOT Act specifically
authorized intelligence officers who are using FISA to consult
with Federal law enforcement officers to ``coordinate efforts
to investigate or protect against'' foreign threats to national
security including international terrorism.
Based on these two provisions, it is clear that Congress
intended to allow greater use of FISA for criminal purposes,
and to increase the sharing of intelligence information and
coordination of investigations between intelligence and law
enforcement officers.
At issue now is a very difficult but critical issue, and
that is, where to draw the line between intelligence gathering
and criminal investigations to ensure that our intelligence
community and law enforcement agencies are fully capable of
detecting and preventing future terrorist attacks while at the
same time ensuring that Americans' civil liberties are
preserved.
The Justice Department's interpretation of the PATRIOT Act
modifications to the FISA process is currently at issue before
the FISA Court. And I commend the Justice Department for
bringing this issue to the FISA Court for its review. In March
of this year, the Justice Department adopted revised guidelines
governing intelligence sharing and criminal prosecutions, and
then sought FISA Court approval for these revisions. The FISA
Court approved most of these modifications but rejected a
portion dealing with the role of criminal prosecutors in
providing advice and direction to the intelligence
investigations. The matter is now pending on appeal before the
Foreign Intelligence Court of Review.
We all expected the courts to review this matter, but we
cannot deny that Congress specifically intended such enhanced
information sharing to take place. We must not revert back in
this process and again risk a culture that would fail to pursue
aggressively the investigation of terrorist threats.
In reviewing the FISA process, we need to consider the fact
that there has been a dramatic change in the terrorist
landscape since 1978 when FISA was enacted. There is no
question that in response to our country's efforts to fight
terrorism worldwide, terrorists are increasingly operating in a
more decentralized manner, far different from the terrorist
threat that existed in 1978. The threat posed by a small
group--even a lone terrorist--may be very real and may involve
devastating consequences, even beyond those suffered by our
country on September 11th. Given this increasing threat, we
have to ensure that intelligence and law enforcement agencies
have sufficient tools to meet this new--and even more
dangerous--challenge.
Being now aware of the evolving terrorist threat, we also
may need to examine carefully proposals to modify the FISA
statute. This Committee's inquiry should be forward-looking and
done without exaggeration of past missteps and miscues which
have since been corrected. The stakes are simply too high for
anyone to inject politics into an area which requires careful
and studied deliberation.
Today's witnesses will help us to consider these critical
issues, and I look forward to hearing each of our witnesses
today, and I welcome you all to the Committee. We appreciate
the effort and time that you have put in to present your views
to us here today.
Chairman Leahy. Thank you, Senator Hatch.
Normally we would go right to the witnesses now, but
Senator Feinstein has asked to make a brief statement, as have
Senators Specter, Feingold, and DeWine, each one of whom has
had an interest in this subject. And so we will not follow the
normal routine, but I would ask Senators if they might be
brief.
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Well, thank you, Mr. Chairman, very much
for holding the hearing, and I appreciated the opening
statements of both yourself and the ranking member.
I was present at the hearing when the Attorney General
brought forward his concern and took an interest in it, and I
think I actually suggested the word ``significant.'' So I want
to make a couple of comments.
I have read the Attorney General's opinion of March 6, and
I have read the FISA opinion, I think it is April 17th. And I
want to go back, to the best of my recollection, to the hearing
when we made the decision.
We knew about the problems FBI agents in the Minneapolis
field office had in getting a FISA order in the Moussaoui case.
However, I do not believe any of us ever thought that the
answer to the problem was to merge Title III and FISA purposes.
Now, we felt--or I felt that that was what the
administration originally proposed when they sent legislation
to us to change the words ``primary purpose'' in the FISA
statute to ``a purpose.'' And many of us believe that such a
change would have eliminated the distinction between Title III
and FISA. Any purpose, if it was done, even a stupid or a silly
one, would have passed muster and allowed a FISA application to
proceed.
When I questioned Attorney General Ashcroft at this
Judiciary Committee hearing, he agreed that ``significant
purpose'' would represent a compromise.
Now, Webster's defines the word ``significant'' as ``having
or likely to have influence or effect: important; a significant
piece of legislation''; also, ``of a noticeably or measurably
large amount; a significant number of layoffs, for example,
producing significant profits.''
So that was the definition that we then selected, to lower
the bar slightly but not entirely, and to provide that when one
went for a FISA warrant, there had to be a significant
relationship to foreign intelligence. And the bill that
ultimately passed both House and Senate and became law included
this compromise ``significant purpose'' standard.
Now, in the Attorney General's brief in the FISA Appellate
Court, this brief argues against the balancing compromise
language that Attorney General Ashcroft accepted, I thought, at
the hearing. Under the administration's primary argument in its
brief, the administration need not show any purpose of
gathering foreign intelligence in any investigation involving
national security. The administration seems to contend that a
Federal prosecutor can direct the FISA process in a case that
is 100 percent law enforcement. I don't agree with that.
As a backup alternative argument, the administration seems
to contend that any foreign intelligence purpose need not only
be insignificant and, in any event, can still be fully directed
by law enforcement. I disagree on that. Apparently, they
believe they can get a FISA order even if a case is 80 or 90
percent law enforcement. I disagree with that.
In my view, there has been a skewing, Mr. Chairman, of what
we set up in utilizing a ``significant purpose'' must be
foreign intelligence----
Chairman Leahy. I tend to agree, and that is why I got very
concerned when I saw them quote me and what my position was on
that, which is totally different than what my position is.
Senator Feinstein. So that is my recollection of the matter
and the discussion that took place, because I think in my Q and
A with the Attorney General, we talked about various words, and
I thought it was the intend of the Committee that we wanted to
maintain the primary purpose being the gathering of foreign
intelligence, not Title III, but we wanted to slightly lower
the bar because of the particular nature of the circumstances
we were in and, therefore, came up with the words ``significant
purpose,'' meaning important, significant, noticeably,
measurably large amount.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you, Senator Feinstein.
Senator Specter?
STATEMENT OF HON. ARLEN SPECTER, A U.S. SENATOR FROM THE STATE
OF PENNSYLVANIA
Senator Specter. The application of the Foreign
Intelligence Surveillance Act, the proper application, is of
enormous importance as we are trying to deal with homeland
security and at the same time there are major challenges to
what the Department of Justice is doing with civil rights. And
the Department's actions leave a lot to be desired on both
scores.
It would have seemed logical that, after the extensive
examination of the Foreign Intelligence Surveillance Act in the
Wen Ho Lee case, there would have been an understanding of its
application. And there was a miscommunication at the highest
levels between the Director of the FBI and the Attorney
General, which we corrected by statute, and without going into
the many ramifications of Wen Ho Lee, suffice it to say that
the Department of Justice was on notice as to what FISA
required.
The failure to obtain a warrant under the Foreign
Intelligence Surveillance Act for Zacarias Moussaoui was a
matter of enormous importance, and it is my view that if we had
gotten into Zacarias Moussaoui's computer, a treasure trove of
connections to Al-Qaeda, in combination with the FBI report
from Phoenix where the young man with Osama bin Laden's picture
seeking flight training, added to that Kuala Lumpur where the
CIA knew about two men who turned out to be terrorist pilots on
9/11, plus the NSA advisory a day before 9/11, which wasn't
interpreted until September 12th, that there was a veritable
blueprint and 9/11 might well have been prevented.
And as we are working now to prevent another 9/11, there is
a continuing question as to whether the FBI is properly
applying a probable cause standard in seeking a FISA warrant.
We had a very important hearing where Special Agent Coleen
Rowley from the Minneapolis field office came in on June the
6th, and it was revealing because Agent Rowley pointed out that
the U.S. Attorney in Minneapolis looked for a 75- to 80-percent
probability before getting a FISA warrant. And Agent Rowley
herself thought that the standard was more probable than not.
And at that hearing on June 6th, there was considerable
conversation about the standard for probable cause set forth by
then-Associate Justice Rehnquist in the Gates case, which said,
in critical part, as early as Locke, which is an 1813 decision,
Chief Justice Marshall observed in a closely related context
the ``probable cause,'' according to its usual accepted
definition means ``less than evidence which would justify
condemnation...it imports a seizure made under circumstances
which warrant suspicion.'' And then the opinion goes on to say
that ``more probable than not'' has no application.
We had a closed session with FBI agents on July 9th, and it
would have been thought that when the public hearing occurred
on June 6th, with a lot of publicity, the FBI agents would have
picked up the Gates standard or that the Director of the FBI at
the hearing would have told the FBI agents the Gates standard.
But in a way which was really incredulous, the FBI agents
didn't know the standard. They didn't know it when they were
dealing with the Moussaoui case, and they didn't know it almost
a year later when we had the closed-door hearing.
And I wrote to Director Mueller the very next day--and I
ask, Mr. Chairman, that this letter be made a part of the
record--setting forth the Gates standard again and asked him to
implement it.
Again, in an incredulous way, 2 months have passed and no
response. So as of this moment, without oversight function, we
do not know whether, notwithstanding all of our pressure, they
are using a proper standard for probable cause.
Now, there have been other matters which have been of
enormous importance, such as the FISA Court disqualifying an
FBI agent. And on this state of the record, I am not sure why.
And we are trying to find out. But I believe that there has
been an inevitable effect that the FBI is gun-shy. The
testimony that we had on Moussaoui suggested that the agents
felt their best course was to do nothing because they would get
into no trouble if they did nothing. But if they did something,
they might turn up like the FBI agent who was disqualified.
And then in our closed hearings, Senator Leahy, Senator
Grassley, and I tried to find out what was going on, and we
found out that there was an opinion of the FISA Court. But,
inexplicably, the Department of Justice wouldn't give it to us,
something that just can't be understood.
So we went to the FISA Court, and at first the FISA Court
entered a plea of separation of powers. And we said that won't
wash here, Judges. We are the Judiciary Committee. We have a
right to oversight to see what is going on. And, finally, we
got the opinion, and then we understood why the Department of
Justice wouldn't give it to us: because it was highly critical
of the Department of Justice.
And then in that opinion, the court goes into some detail
about rejecting the Attorney General's request for a regulation
which would take the PATRIOT Act and turn the Foreign
Intelligence Surveillance Act on its head. It has already been
discussed, and I think very well, this morning. But just one
brief comment.
When the purpose of the FISA Act was foreign intelligence
and the court interpreted ``purpose'' as ``primary purpose,''
the change was made to ``significant purpose.'' But then the
Department of Justice came in with its regulation and said that
since the PATRIOT Act said a significant purpose was foreign
intelligence, then the primary purpose must be law
enforcement--which is just, simply stated, ridiculous.
The word ``significant'' was added to make it a little
easier for law enforcement to have access to FISA material, but
not to make law enforcement the primary purpose.
So here, Mr. Chairman, we are dealing with a situation
where, by all indications, the FBI and the Department of
Justice are not being as aggressive as they should be and can
be with an appropriate standard for probable cause, and at the
same time they are subverting the purpose of the Foreign
Intelligence Act by trying to make it much, much broader than
it was originally intended or that we made the modification
under the PATRIOT Act.
And I think it is appropriate to put DOJ and FBI on notice
that we are not going to let this matter drop. We are going to
pursue it. And we are going to find out why the agent was
disqualified, and we are going to find out what the FBI is
doing on these matters, because this is a matter of enormous
importance. Nothing is going on in Washington today, Mr.
Chairman, and I thank you for convening this hearing and
getting a proper application of the Foreign Intelligence
Surveillance Act.
Thank you.
Chairman Leahy. I appreciate it. As I said earlier, I also
appreciate the fact that you have for years been pushing this
issue in both Democratic and Republican Administrations. You
have been very consistent in that.
I do want more answers. I do feel that we have asked
legitimate questions and not gotten the answers. Again, I am
urging the Department of Justice to come back with those
answers. Otherwise, we are going to have to consider
subpoenaing answers to our questions, and I know that the
Republican chairman of the House Judiciary Committee has
expressed similar concerns at the failure to get answers, I do
not want to see a case where the House and Senate Judiciary
Committees have to issue subpoenas to get answers to legitimate
questions. And I would hope that it would not come to that, but
if it does, it does.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Chairman Leahy. And be sure and turn your microphone on.
Senator Feingold. It is on.
Thank you, Mr. Chairman, for holding this extremely
important hearing on the implementation of the PATRIOT Act and
FISA. I want to especially compliment Senator Feinstein and
Senator Specter for their very well-informed and precise
analysis of the question that is before us today.
Frankly, this abuse, in my view, by the Department of
Justice of the language of the bill and unreasonable
interpretation of the language of the bill is just the reason
why I could not in the end vote for the USA PATRIOT Act as I
feared that this kind of attempt would be made, and this is one
of several examples where I think the language, as troubling as
the language was to me in many cases, is strained even beyond a
reasonable interpretation in a way that does not comport with
the intent of even those who supported the legislation.
One year ago today, none of us anticipated, obviously, the
terrible events of September 11th. And since then I have
watched America come together in many wonderful ways,
communities uniting, people taking the time to help others, and
a Congress that is committed to protecting our country. But I
believe that in our haste to develop legislation to help
America, we went too far in some areas.
Now, the courts have played a significant role in
exercising their role of oversight. There have been important
recent court decisions prohibiting holding immigration
proceedings in secret, requiring the disclosure of the
identities of the hundreds of individuals rounded up since 9/
11, and questioning the designation and indefinite detention of
U.S. citizens as enemy combatants.
Even the most recent FISA decision we have been discussing
today, it is the court and not the Department of Justice that
has called out for appropriate restraint in our anti-terrorism
efforts.
Last fall, as the Senate debated the PATRIOT Act, there
were very few voices advocating a slower gait as we raced
towards passing some of the most radical changes to law
enforcement in a generation. And so I think that makes this
hearing even more important.
Chairman Leahy did the right thing in holding this hearing.
Congress has an important oversight responsibility and it has
to exercise that responsibility. We must carefully examine what
we have done in the battle against terrorism and also what this
Department of Justice will ask us to do in the future.
Thank you, Mr. Chairman.
Chairman Leahy. Senator DeWine?
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Thank you, Mr. Chairman. I want to thank
you, Mr. Chairman, for holding this hearing today to discuss
the Foreign Intelligence Surveillance Act. As my colleagues
have pointed out, FISA is one of the most important
investigative tools available to us in our fight against
terrorism. Bluntly, unless we effectively use the powers of
FISA, we will not be safe from terrorism. It is just that
simple.
Now, today the congressional spotlight is on homeland
security and defense, and that is a very good thing. That is
all well and good. And when I go home to Ohio, Mr. Chairman,
people ask me about the homeland security bill.
But I must say that at the end of the day, we can make all
sorts of improvements in our homeland defense reorganization.
We can move agencies around, departments around, box to box. We
can improve our security at airports. And we can work to
tighten our borders. But I truly believe that our success in
defeating terrorism begins and ends with effective
intelligence. And FISA is an absolutely critical part of this
intelligence-gathering operation.
So I am hopeful that today's hearing will be the
beginning--the beginning of a period of increased emphasis and
focus on the FISA process as a whole. It deserves and I believe
requires a great deal of attention from this Committee, and I
congratulate you for this hearing. It requires attention from
the Intelligence Committee and from the entire Congress.
Mr. Chairman, we simply cannot overstate the importance of
FISA warrants and the contribution that FISA surveillance makes
to the preservation of our national security. After the attacks
a year ago tomorrow, it became clear to all of us that now,
more than ever before, our intelligence-gathering agencies and
law enforcement personnel must be able to communicate and share
critical information about their investigations. We all know
that. We know that our ability to protect the Nation from
future terrorist attacks will be compromised unless we are able
to fully and effectively combine the resources of our
intelligence and law enforcement efforts. And the push,
candidly, for the PATRIOT Act was based on that understanding.
FISA, of course, does pose some challenges, and it does
create some risks, and we should not underestimate those. The
FISA statute as amended by the PATRIOT Act creates a system of
surveillance that is very powerful and, for the most part,
completely secret. Accordingly, it is vital that we effectively
balance the power of this statute and the need for intelligence
information with clear, rational, and coherent boundaries
around the government's ability to conduct these secret
surveillances.
My belief is that the PATRIOT Act brings us closer to the
proper balance. I am not as convinced as some of my colleagues
that the government's position is wrong in regard to this.
What I do think is important, though, is that this matter
be resolved so that this Congress can find out and so that
everyone who is charged with the safety and security of this
country can understand what guidelines they are operating
under.
Mr. Chairman, I do believe that we need to consider whether
current law provides for sufficient congressional oversight,
and we need to consider how we on this Committee and the
Intelligence Committee can conduct this oversight. Because
unless we fully understand how the FISA law is being
interpreted by the court, this Congress cannot fulfill its
constitutional duty--its constitutional duty of oversight and
its constitutional duty after we pass a law to see how it is
working, to see how the courts are interpreting it, and then to
make a rational public policy decision as to whether or not
that law should be changed.
With only two written FISA decisions--that I am aware of,
at least--in 24 years, that is impossible to know. It is
impossible for this Congress to know how the law is being
interpreted, and that has been true for previous Congresses.
Now, some of us believe, although we certainly cannot prove
it because of the fact of the secrecy involved, that the
interpretation of the original FISA law has become tighter and
tighter and more burdensome and more burdensome over the years
and that the relationship between the Justice Department and
the courts, meaning that relationship whereby the Justice
Department by definition has to, of course, follow what the
court says, has resulted in an interpretation of a law that has
been very strict. I believe that this interpretation may have
been stricter than Congress may have intended it or that maybe
Congress would have allowed to continue. The fact is Congress
did not know that. Congress did not know. We will never know,
frankly. I believe that that interpretation very well could
have threatened our security.
This country, candidly, no matter what your belief about
that issue, was not well served by the lack of effective
oversight for the past 24 years. I happen to believe it has
helped to create a risk-averse culture at the FBI. But, again,
that is something because of lack of information that no one
will ever know for sure.
So, Mr. Chairman, I thank you for holding this hearing. The
legal issues that have been raised and that we will discuss are
important. I am anxious to hear from our panel of experts,
including what the Justice Department believes. But I believe,
frankly, that our look at FISA must go beyond this. And what
really is important is Congress' ability to, over time, monitor
what is, in fact, happening with FISA because our national
security and liberties are at stake.
We have to devise a method to do this while at the same
time protecting the secrecy that we know is so very, very
important in regard to the FISA Court. No one should
misinterpret my comments in regard to FISA. I think FISA is and
can be a very, very effective tool, and what is going on in
FISA today is being very, very helpful in our war against
terrorism.
I just believe that we can do a better job, and the only
way that we can fulfill our obligation here in Congress to make
sure that the FISA law is finely tuned and is, in fact, serving
the needs of this country in the year 2002 and beyond is for us
to somehow develop the ability to get more information about
what is going on.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you. As the Senator perhaps knows, we
have some draft legislation circulating on changes, and I would
encourage him to take a look at it.
Senator Durbin will be the last person to speak--Senator
Durbin will be the penultimate Senator to speak.
[Laughter.]
Chairman Leahy. We will then go to Senator Schumer. There
will be no other Senators who will speak. This is such an
extremely important issue, and every member here has worked
very closely on the whole issue of the USA PATRIOT Act.
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLNOIS
Senator Durbin. Thank you, Mr. Chairman.
Mr. Chairman, let me thank you and Senator Specter, Senator
Grassley, Senator Feinstein, and others for your leadership on
this issue and for calling this hearing today.
I think this hearing is of historic importance. Behind
closed doors, with the highest level of secrecy, there is a
battle that is being waged in our country. It is a battle over
an issue as basic as the origin of our Nation: the power of a
government, the rights of an individual.
The release of the May 17th opinion by the court that
oversees the Foreign Intelligence Surveillance Act was
sobering. It was our first insight into that battle. It was our
first view behind those closed doors. And what we found as a
result of that May 17th opinion troubles me, because what we
found is that the court said that the Government has misused
the FISA law. The Government has misled the court dozens of
times. The FBI had supplied erroneous information in more than
75 applications of the FISA law. The FBI had improperly shared
intelligence information with Government prosecutors handling
criminal cases. The FBI Director himself had submitted a false
statement to the court. And one FBI agent proved so unreliable
that the court barred him from ever submitting affidavits
again.
What is particularly troubling about this May 17th opinion
is that a reflection on a decision, another historic decision
made by this Congress, after last September 11th. We were told
by our Government that the FISA law as written was inadequate
to protect America. We were asked to show faith in this
Government and to invest it with new authority to protect
America from its enemies. And so many of us decided to make
that leap of faith.
But, as we reflect now, we know that it was a faith born of
fear--fear for the security of our Nation, a legitimate fear
after September 11th.
It was also an expression of faith that our Government
would not abuse its new authority under the changes in the FISA
law. We felt confident that, given these new tools and these
new resources, our Government would defend America but not at
the cost of our basic liberties. Sadly, this May 17th opinion
from the court has told us that this administration, this
Department of Justice has abused the faith entrusted them with
this change in the FISA law.
In light of these disclosures, I am troubled by those who
would use the intelligence failures of September 11th as a
justification for even expanding the powers that Government has
to monitor individuals within the United States, but not expand
meaningful oversight of those powers. What have we learned? We
need many more opinions from this court. This Congress and the
American people need to review the progress that is being made
to make certain that the rights of individuals and the
liberties that are so central to America are not abused in the
name of national security.
We have known for some time that FBI officials were
reluctant to seek a FISA search warrant for Zacarias Moussaoui,
the so-called 20th hijacker, who was detained a month before
the terrorist attack. That fact has prompted calls from the
Justice Department and from Members of Congress for additional
government authority to obtain warrants beyond the significant
expansion of authority already granted by Congress in the USA
PATRIOT Act, which I voted for.
We now know why the FBI had its doubts about the FISA
process. Its credibility and the credibility of the attorneys
at the Department of Justice who appear before the FISA Court
have been repeatedly called into question, as the May 17th
opinion tells us so graphically.
Before we make additional changes to the law, before we
give additional authority to the Government over the rights and
liberties of individuals, before we vastly expand the power of
investigations further, we should require a full and complete
accounting of these past mistakes.
Mr. Chairman, thanks for your leadership on this issue.
Chairman Leahy. I do appreciate the fact that some of the
inadequacies were brought to the attention of the court by some
within the Department of Justice. I agree so much with the
Senator from Illinois, the problems that have come to light are
problems that can only be affected if we do have adequate
oversight.
I remember the great flap over Wen Ho Lee and whether there
was adequate probable cause to get a computer search just went
on and on until after he had downloaded everything from the
computer and left. Somebody forgot the obvious thing they
should have done, and that was simply have gone to the
administrator of computers at the Lab and said, Did he sign a
waiver, a blanket waiver to go into his computer? Of course, he
had. They didn't need the search warrant in the first place. If
somebody had just done what any 15-year-old would have known
who was computer savvy to do, what any one of our systems
administrators here in the Congress would have known to do,
they would have just gone and said, By the way, is there a
blanket release to go into computers that are used for company
business? And it was there, and they could have gotten it all.
Senator Schumer, you get the very last----
Senator Hatch. If I could just make a little short
statement?
Chairman Leahy. Well, except, of course, for Senator Hatch.
Senator Hatch. Sorry to interrupt you, Senator Schumer.
Senator Schumer. That is okay. Any time.
Senator Hatch. I look forward to your remarks. But I think
that these points have been well raised by my colleagues, but
errors in FISA applications occurred in 2000. That was under
the Clinton administration--that was one of them--and then in
2001 under this administration. Both occurred before Director
Mueller assumed his position. And the FBI has since adopted new
procedures for processing, and I think the record just needs to
show that in April 2002, Judge Royce Lamberth, who was then the
presiding judge of the FISA Court, publicly stated, ``We
consistently find the FISA applications well scrubbed by the
Attorney General and his staff before they are presented to
us.''
He also stated that the process is working. It is working
in part because the Attorney General was conscientiously doing
his job, as is his staff.
So I just wanted to make sure that record is clarified.
Chairman Leahy. Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Thank you, Mr. Chairman. I, too, join the
rest of the Committee in thanking you for this much needed
hearing.
Now, we all know that in times of war and certainly in this
post-9/11 world, one of the most difficult questions we face is
how to balance security and liberty. It is an age-old struggle.
It is one that goes back to the Founding Fathers in their
debates about freedom and democracy. And traditionally, when we
face threats such as those we face today, security waxes and
liberty wanes.
Now, I believe there has to be some give and take to deal
with the particular threats of the times. The key word is
``balance.'' It is easy to say we face security needs and let's
get rid of the Constitution. It is also easy to say we
shouldn't change a thing. You know, the Constitution is being
thrown away. Those on the hard left and hard right are good at
doing each of those, and those are clear and simple, easy ways
to go. But the real trick is the balance, and that is what is
so difficult to find. It has never been more difficult than
today.
Now, it is made difficult, more difficult by another
phenomenon. We are on all the front lines. We don't know where
or when a terrorist is going to strike. We know that some could
be American citizens who are here or non-citizens who are here,
legally or illegally, but we know that American soil is a new
battleground. And that certainly invokes, should invoke new
discussion and probably some kinds of changes.
So when it comes to FISA, we need to give the Government, I
believe, some expanded powers to strike the right balance. For
example, it doesn't make sense to handcuff ourselves by
requiring that DOJ show that a suspected terrorist is a member
of a terrorist group. There may be lone wolves out there. There
may be groups that we don't know, and if this person or group
of people is acting to promote terrorism, linking them to a
known group is not necessary.
There may be non-U.S. citizens who we can't prove are part
of a known terrorist group, and that shouldn't stop us from
getting a warrant. Senator Kyl and I have a bill that would fix
that problem.
But at the same time, of course, DOJ's powers shouldn't be
unfettered. If we blur the line too much between criminal
investigations and foreign intelligence gathering, the Fourth
Amendment may get tossed out with the bath water. It is about
finding the right balance. And one of the reasons that we
struggle here particularly to find middle ground is we know so
little about the FISA Court.
I am a big believer in the Brandeisian admonition that
sunlight is the best disinfectant. There is less sunlight on
the FISA Court than you would find in most photographers'
darkrooms, and that is why this hearing is so critical. We are
not going to come to balance until we actually know what is
going on.
In conclusion, Mr. Chairman, I have been struggling to come
up with some way to make the FISA process more open without
endangering security. I have spoken with a lot of people about
the problem and, frankly, no one yet I have spoken to has any
really good ideas. That is why I eagerly await the panel's
testimony.
Thank you, Mr. Chairman.
Chairman Leahy. Thank you.
And we will begin with that. Mr. Kris, you have been very
patient. You are the Associate Deputy Attorney General. This
Committee appreciates both your professionalism and your help
in the past, and please feel free to go ahead.
STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Kris. Thank you. Mr. Chairman, Senator Hatch, and
members of the Committee, thank you for the opportunity to
testify this morning about the Government's first appeal to the
Foreign Intelligence Surveillance Court of Review.
At the request of your staff, I have focused my preparation
on three main issues that relate to the appeal: first, and most
importantly, a description concretely of exactly what is at
stake in the appeal; second, a description of the legal issues
that are raised in the appeal; and, third, and finally, a
discussion of some of the accuracy concerns that are raised in
the opinion of the Foreign Intelligence Surveillance Court, the
FISC, from May 17th that have already been adverted to.
I know that there are many, many other FISA-related issues
in the air today, but I must say that I have not specially
prepared to address those issues this morning. At least from
where I am sitting, the appeal seems like more than enough to
tackle in one hearing.
My written statement lays out in more detail----
Chairman Leahy. A lot of the other questions have been sent
to the Attorney General. He just has been otherwise preoccupied
in being able to answer them, either to me or to the chairman
in the House. Let's hope. But we will let you keep within your
area of expertise.
Mr. Kris. Well, my statement, my written statement which
has been submitted, sort of lays out in more detail the points
that I would hope to make. Let me try to give a more sort of
user-friendly summary here.
In fact, before I turn to a discussion of what the PATRIOT
Act did change in FISA, because I think there were very
important changes, let me start just by quickly reviewing three
areas of FISA that were not changed by the USA PATRIOT Act.
First, as always, FISA requires advanced judicial approval
for almost all electronic surveillances and physical searches.
That was not changed by the USA PATRIOT Act.
Second, every FISA application must be certified in writing
by a high-ranking and politically accountable Executive Branch
official, such as the Director of the FBI or the Director of
Central Intelligence, and every FISA application must be
personally approved in writing either by the Attorney General
or the Deputy Attorney General. Again, the USA PATRIOT Act did
not change that.
And, third, the USA PATRIOT Act did not change the kinds of
persons whom we are permitted under FISA to search or surveil.
Today, as always, a FISA target must be an agent of a foreign
power, as defined by FISA, a term that, when it comes to United
States persons--that is, U.S. citizens or permanent resident
aliens--requires not only a connection to a foreign government
or a foreign terrorist group or other foreign power, but also
probable cause that the target is engaged in espionage,
terrorism, sabotage, or related activities.
Now, to be sure, the USA PATRIOT Act did change the
allowable purpose of a FISA search or surveillance, the sort of
reasons why FISA may be used. But while the USA PATRIOT Act
changed the ``why'' of FISA, I think it is also accurate to
say, although perhaps in need of some elaboration, that it did
not change the who, what, where, when, or how of FISA.
Now, let me turn to the three specific issues that you
identified for me, beginning with what is at stake in the
appeal.
What is at stake here really is the Government's ability
effectively to protect this Nation against foreign terrorists
and espionage threats. And I don't sort of mean to be
melodramatic about it, but the truth is that when we confront
one of these threats, whether it be a terrorist or an espionage
threat, we have to pursue an integrated, coherent, cohesive
response to the threat. We need all of our best people, whether
they be law enforcement personnel or intelligence personnel,
sitting down together in the same room and discussing, well,
what is the best way to neutralize this threat?
In some cases, the best way to neutralize or deal with a
threat is a criminal prosecution or some other law enforcement
approach, and the recent prosecution of Robert Hanssen for
espionage is a good example of that.
In other cases--and I think even probably in most cases--
law enforcement is not the best way to deal with the threat,
and some other approach, such as recruitment as a double agent
or something like that, is called for. And, of course, in some
cases, you are going to need use both law enforcement and non-
law enforcement techniques.
What is important, what is critical to us, and what is at
stake in this appeal is our ability to sit down and have a
rational discussion in any given case about what the best way
to deal with the problem is. And let me sort of offer quickly a
medical analogy, because I think this is pretty technical stuff
not only just legally but operationally.
Imagine that a patient walks into a hospital somewhere in
the United States--let's just say California--and he is
discovered to have cancer, and that cancer represents a threat
to his survival. In some cases, the best solution to curing the
cancer and saving the patient is surgery to cut the tumor out.
And in other cases, it will be some other technique like
chemotherapy. And in some cases, it is going to be both surgery
and chemotherapy together.
But who would go to a hospital in which the surgeons are
not permitted to sit down and coordinate and talk to the
oncologists and figure out in this case, for this patient, what
rationally is the best way to stop the cancer, to cure the
cancer and keep him alive? That would be bad medicine, and
that, in effect, is exactly what we are litigating against in
the context of this appeal.
Now, I guess I see that the red light is on, and so I think
I may have breached protocol by going over my time. I can
continue or I can stop, at your preference.
Chairman Leahy. Do you want to get back to the very
specific cause? I appreciate your medical analogy, but this is
a different case.
Mr. Kris. Well, I can talk about the legal issues, which is
a little bit more technical, if you would like.
Chairman Leahy. Well, we do have your statement. We have it
in the record. I think it might be easier if we go to questions
with you, but I want to let Professor Banks get a chance to
testify first. But let's go with Professor Banks, and then I do
have a number of questions. I do want to come back to you, Mr.
Kris.
[The prepared statement of Mr. Kris appears as a submission
for the record.]
Chairman Leahy. Professor Banks?
STATEMENT OF WILLIAM C. BANKS, PROFESSOR OF LAW, SYRACUSE
UNIVERSITY, SYRACUSE, NEW YORK
Mr. Banks. Thank you. Good morning, Senator Leahy, Senator
Hatch, members of the Judiciary Committee. Thanks very much for
inviting me to participate in this morning's hearing.
In 1978, the drafters of FISA understood that intelligence
gathering and law enforcement would overlap in practice. In the
years since 1978, the reality of terrorism and the resulting
confluence of intelligence gathering and law enforcement as
elements of counterterrorism strategy has strained the FISA-
inspired wall between intelligence and law enforcement.
In addition, the enactment of dozens of criminal
prohibitions on terrorist activities and espionage has added to
the context in which surveillance may be simultaneously
contemplated for intelligence-gathering and law enforcement
purposes.
In the weeks after September 11th, the Justice Department
pressed for greater authorities to conduct surveillance of
would-be terrorists. Officials reasonably maintained that
counterterrorism investigations are now expected to be
simultaneously concerned with the prevention of terrorist
activities and the apprehension of criminal terrorists.
Surveillance of such targets for overlapping purposes is of
critical national security importance.
In the USA PATRIOT Act, Congress agreed to lower the
barrier between law enforcement and intelligence gathering in
seeking FISA surveillance. Instead of intelligence collection
being the primary purpose of surveillance, it must now be a
significant purpose of the search or wiretap.
The statutory change may not have been necessary. Whatever
its wisdom, however, this language does not mean that
prosecutors can now run the FISA show. The essential fabric of
FISA was left untouched by the USA PATRIOT Act. Its essence
remains foreign intelligence collection. Greater information
sharing and consultation was permitted between intelligence and
law enforcement officials, but law enforcement officials are
not permitted under ``significant purpose'' or any other part
of FISA to direct or manage intelligence gathering for law
enforcement purposes.
The concern expressed in the May 17 opinion by the FISC is
easy to envision stripping away the technical questions of
statutory interpretation. Prosecutors may seek to use FISA to
end-run the traditional law enforcement warrant procedures.
They gain flexibility that way, but they also become less
accountable.
The May 17 opinion, signed by all seven judges, is nuanced
but firm in its partial repudiation of the proposed 2002
minimization procedures. The Department would effectively
permit placement of supervision and control over FISA
surveillance in the hands of law enforcement teams. The
Department based its proposed revision on the USA PATRIOT Act
amendments to FISA, which they say would permit FISA to be used
primarily for a law enforcement purpose.
As the court noted, portions of the Department's procedures
would permit the coordination among intelligence and law
enforcement agencies to become subordinated, the former to the
latter officials.
It is impossible for any academic or, indeed, any outsider
to opine intelligently about what goes on in working with FISA.
Its proceedings are secret, little reporting is done, and only
rarely does any FISA surveillance reach the public eye. We
outsiders simply don't know enough to offer a detailed critique
of the procedures for implementing FISA pre- or post-USA
PATRIOT Act.
Our ignorance can be remedied in part by providing more
information about the implementation of FISA. Now that some of
the guidelines have been disclosed during this dispute, why not
assure that all such guidelines are publicly reported, redacted
as necessary to protect classified information or sources and
methods.
The reporting that now occurs is bare bones, limited to
simple aggregate numbers of applications each year, with no
further detail. Why not report with appropriate breakdowns for
electronic surveillance and searches, numbers of targets,
numbers of roving wiretaps, how many targets of FISA were
prosecuted, how many were U.S. persons? The report should also
be available to all of us more often than annually.
In addition, among the reforms that the Committee could
consider would be a formal role for the FISC in reviewing and
approving FISA guidelines. FISC is, of course, an Article III
court. The Judiciary Committee is, thus, centrally responsible
for its oversight, even if its work concerns intelligence.
I will close now and await your questions. Thank you.
[The prepared statement of Mr. Banks appears as a
submission for the record.]
Chairman Leahy. I appreciate that, and obviously, from my
earlier comments, there are a number of things I find myself in
total agreement with.
We have begun the roll call vote. If any Senators wish to
go and vote, feel free. But we will hear Mr. Bass and Dr.
Halperin, and then I will leave for the vote and come right
back and begin the questions.
Go ahead, Mr. Bass.
STATEMENT OF KENNETH C. BASS, III, SENIOR COUNSEL, STERNE,
KESSLER, GOLDSTEIN AND FOX, WASHINGTON, D.C.
Mr. Bass. Thank you. Mr. Chairman, members of the
Committee, I appreciate the opportunity to testify before you
today. I have submitted a lengthy written statement, but I want
to address some comments to remarks that the various Senators
have made that are not fully addressed in the written
testimony.
I have the perspective of having been there with Senator
Leahy, Senator Hatch, and Senator Specter at the foundation of
FISA. I was in the Department of Justice when the legislation
was moved through Congress and worked also with Mr. Halperin,
of course, in that process.
What I want to share with the Committee today is the
perspective of the views of someone who was at one time within
the tent, was responsible for implementing FISA in the 1978 to
1981 period. And I have tried to stay in touch with the process
since returning to private practice as much as possible. As we
all know, despite security classifications, there are some
leakages around the edge of the tent, and I have been the
beneficiary of some of those leakages over the years, so I
think I have a relatively informed perspective on what has
happened.
On the critical issue of the role of FISA with respect to
intelligence versus law enforcement, let me confess in the
beginning that I am a moderate. I firmly believe that the
``primary purpose'' test, as it developed and evolved in the
1995 procedures and in the wall, was absolutely wrong,
fundamentally inconsistent with the basic purpose of FISA, and
reflects a careless misreading of cases that had tangentially
commented in dicta about the so-called ``primary purpose''
test. My testimony examines that thesis at some length. I won't
repeat it here.
But the second proposition I think is equally true. The
chairman stated that the department's view of FISA post-PATRIOT
is that FISA can be used for a surveillance if the ``sole and
exclusive purpose is a criminal investigation.'' If that is
indeed the Department's position--I am not sure it is, but if
that is the Department's position--they are in my view flatly
wrong. But they are wrong not because of anything in FISA that
deals with purpose. They are wrong because of a
misunderstanding of the penumbra of FISA, the context in which
it was developed, the Keith decision that laid the
constitutional groundwork before FISA was enacted, and, most
specifically, the little noticed provision in Section
1823(a)(7).
Why do I focus on that? Very simply, because Section
1823(a)(7) requires that the certification which lies at the
heart of every FISA application must be made by an Executive
Branch official with responsibilities in the area of national
security. No one except national security officials can certify
FISA applications. To me, intentionally or not, that provision
reflects Congress' plain and unambivalent intention that FISA
was never to be used for a purely criminal investigation. It
was only to be used where there was a national security/foreign
affairs aspect to the investigation.
At the same time I am equally clear that the balance of
criminal versus traditional counterintelligence and
intelligence aspects was not a part of the original
understanding and should never have crept into the act to
create a wall of separation. The inherent nature of
counterintelligence, and obviously the inherent nature of
terrorism is that they always will share mixed purposes. The
plan will sometimes be a roll-up operation. It will sometimes
be a dangle. It will sometimes be a false flag operation in the
intelligence community. It will sometimes be a prosecution. And
you cannot, as I think the Committee unanimously feels,
effectively function in today's world with a wall of separation
between law enforcement and intelligence.
But there is no doubt in my mind that neither the original
FISA nor this Committee's action in the PATRIOT Act was
intended to provide an alternative to Title III for a purely
criminal investigation. That would pervert the entire purpose
of FISA and in my view be a very unfaithful service to the
Supreme Court's decision in the Keith case when it laid down
what the very distinction was between what they call domestic
matters and national security matters in a different time, but
with many similarities.
I would like to just briefly point out that in the prepared
remarks I have suggested a number of improvements and changes
that I think could be made and comments on some proposed
changes that I do not think should be made to the FISA
situation, but I could not agree more with Senator Schumer's
remark about the Brandeisian element of sunlight. This process
has got to be opened up. In my judgment there is absolutely no
reason why the FISA Court of Review proceeding yesterday could
not have been a public proceeding or at least mostly a public
proceeding, and I certainly believe that the proceeding needs
to be adversarial. The ex parte nature of both the application
process and the appeal yesterday leads to poor judicial
decisions, uninformed decisions, and an aura of secrecy that
undermines public confidence in the entire process. And I have
advocated for years that counsel can be appointed in certain
cases to represent the target without any compromise whatsoever
for national security.
At that point I will cease. Thank you very much.
[The prepared statement of Mr. Bass appears as a submission
for the record.]
Chairman Leahy. Thank you, Mr. Bass, and I know you have
taken that position for years. I happen to agree with you. I
feel that it is something that will be helpful. I do not care
who the administration has--I am thinking of it not only for
consistency, but also to make sure the statute is followed the
way it should be.
Dr. Halperin, please go ahead, sir.
STATEMENT OF MORTON H. HALPERIN, DIRECTOR, WASHINGTON OFFICE,
OPEN SOCIETY INSTITUTE, WASHINGTON, D.C.
Mr. Halperin. Thank you, Mr. Chairman. It is a great
pleasure for me to testify again on FISA. As you know, I was
deeply involved in the process that led to the enactment of it.
I urged the Congress to support it. I still think it is in the
national interest and plays a vital role. I do think we need to
open up the adversarial process, and I want to associate myself
with the comments of the previous witnesses, and particularly
the last comments of Ken Bass.
As you know, the fundamental starting point to FISA was
that there was a requirement to gather national security
information, and that this could not be accommodated within the
Title III procedures, and therefore we needed different
procedures. But these could be made consistent with the
Constitution, because the Government's purpose was not to
gather evidence of a crime. Congress, of course, recognized
that inevitably you would be gathering evidence of a crime and
provided procedures to use that evidence, both in national
security cases and for common crimes. But as the FISA Court's
opinion reminds us forcefully, the due process requirements in
FISA are very different, and therefore can be used only where
the Government's purpose is a different one. And I think none
of the Government's arguments, as members of this Committee
have said, can get around that fundamental logic. It cannot be
the purpose to gather evidence for the crime and still be
constitutional.
Now, I agree that 9-11 changed things, and that threats
required different balances, but I think the way to deal with
that is to focus on the new threat and to limit whatever
changes are made in FISA procedures to dealing with
international terrorist threats. Because where you have
terrorists operating at home and abroad, seeking to kill
innocent Americans, the barrier between intelligence and law
enforcement makes no sense, and the barrier between gathering
information at home or abroad makes no sense.
Now, I see nothing in the FISA legislation, either the
previous one or the PATRIOT Act, that requires those barriers,
but if there is any, I think Congress ought to make it clear
that there is nothing that prevents that intimate cooperation
up to the limit proposed by the FISA Court. That is, the
direction and control of the tap cannot be in the hands of law
enforcement officials. I think that is clear from a number of
provisions in the statute, including the one that Ken Bass
points to. But there can be intimate conversations that can be
close cooperation that can be the securing of advice,
everything the Justice Department says that it wants, while
adhering to the view that the purpose has to be to deal with
foreign intelligence purposes. Indeed, my view is that when you
are dealing with international terrorism, the primary purpose
is, as the Attorney General has said, to prevent further
terrorist attacks. You do that by gathering foreign
intelligence information about international terrorism and then
you use that information in a variety of ways, one of which
might be criminal prosecutions. But if you take that approach,
you want to break down all the barriers, but make sure that the
people in charge are the people who are dealing with this
primary purpose of preventing future terrorist attacks. And as
I say, it surely should be possible to devise procedures to do
that which are consistent with the Court's decision and with
the purposes of the statute.
I think the same is true of Senator Schumer's proposal.
While I have great sympathy with what he wants to do, I think
his proposal does not work, first because since he has not
changed the definition of either international terrorism or of
foreign intelligence information, in fact you do not accomplish
your purpose, because the Government would still have to
certify that it was gathering international terrorism
information, and that includes certifying that it is gathering
information of an international terrorist group. I think there
are other ways to deal with that problem, either by permitting
a warrant until you know which purpose it is, and then moving
it in one of two directions in the courts, or by creating a
presumption, as the Congress did, about agents of foreign
powers engaging in clandestine intelligence, when we had a
similar problem with Russian citizens within the United States.
And, Senator, I would be pleased to work with you on that.
I think this is a problem. I think it can be solved. And I
think the solution you have is neither the right one, nor one
that works.
Now, I would say more generally, Mr. Chairman, I think if
you look back at the FISA process, we then arrived at a bill
which properly balanced national security and civil liberties,
not only because there were extensive hearings, but there were
extensive conversations among staffs and Senators with the
administration and private citizens who cared about these
issues. And at the end of the day, we arrived at solutions that
properly balanced national security and civil liberties. That
has been lacking since last September 11th. And I think it is
time we reverted back to that process, and I think if we do, we
can find solutions to Senator Schumer's concerns, to the
Justice Department concerns about being able to have all the
people in the room and get all their advice, but do so in way
that remains faithful to the fundamental principles of FISA and
of the Constitution. Thank you.
[The prepared statement of Mr. Halperin appears as a
submission for the record.]
Chairman Leahy. What I want to do, I want to go and vote.
Senator Grassley has voted. As an accommodation to him, I
suggest he begin questions. Do not forget to turn your
microphone on. Also, in accommodation to the panel, which has
been very patient, when his questions are finished, if I am not
back, we will then stand in recess until I get back. I should
be here shortly. Thank you.
STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA
Senator Grassley. Thank you very much, and I do not think I
will take all the time allotted.
I am going to ask Mr. Kris to listen to some preliminary
comments I have leading up to four questions I would like to
ask him. This Committee, during the course of its oversight
hearings and investigative briefings and interviews, has
learned that there exists a wide variety of interpretations of
key provisions of the FISA statute among critical personnel at
the Department of Justice. We have found, for instance, that
FBI agents and attorneys on the one hand, Department of Justice
attorneys and their managers on the other, all have different
and sometimes conflicting definitions of what are key elements
of the law. These very people are occupying positions in their
organizations that are crucial to the success of the Foreign
Surveillance Intelligence Act as a meaningful tool in America's
war against terrorism.
Those people charged with moving FISA applications forward
from FBI investigative units through the Department of Justice,
it seems to me must have a uniform and correct idea of what it
takes to meet the statutory minimums required.
So I would like to ask four questions before you answer
any, so you kind of see them in a context. First, what
oversight, review, training or inspection procedures has the
Department of Justice put in place to guarantee that employees
administering the FISA application process are doing so
correctly, and effectively?
Secondly, when did the Department of Justice put these
procedures in place?
Thirdly, has the Department of Justice arrived at a
consensus definition of probable cause as it now applies to
FISA applications and shared that definition with all the
agents and attorneys involved in the FISA process?
And lastly, what other reforms to the FISA process has the
Department of Justice proposed or implemented under the
direction of Attorney General Ashcroft that will prevent the
abuses of the prior administration from occurring again? And in
regard to the prior administration, I am thinking about the
opinion that referred to 75 violations, 74 under the previous
administration, 1 that presumably was admitted to under this
administration.
Mr. Kris. Right. Okay. I think I can answer sort of those
questions together. There have been a number of unclassified
Department of Justice or FBI guidelines issued addressing any
number of FISA issues and procedures. Many of those were
provided to the Committee in connection with our appeal. I am
thinking of the July 1995 procedures, the April 6, 2001 Woods
Procedures governing accuracy--and I will actually return to
focus on that in a moment in response to your fourth question--
the Attorney General's memorandum of May 18th, 2001 on the FISA
process, the memorandum from the Deputy Attorney General on
August 6th, 2001 on the FISA process, and in particular on
coordination between intelligence and law enforcement
officials, the March 6, 2002 procedures, which are at issue in
the appeal which the Attorney General approved, but we
obviously were not able to implement in full because of the
litigation. There is also a memorandum concerning file review
in terrorism cases. There are also many classified guidelines
that I should not talk about here, but that have been at least
averted to with the intelligence Committees. So there is
actually quite a lot of internal guidance that has been issued
over the years.
With respect particularly to the probably cause question
that you raised, I know that there is in the process right now
some FBI guidance on that. I looked at a draft of that
recently--I cannot say exactly when--and actually gave some
comments on it. I expect that it will be coming out fairly
soon. I think one of the things that was clear to me in looking
at that document is that abstract and general statements about
probable cause are not always very helpful and indeed is in my
view the central holding of Illinois v. Gates, that it is a
practical common sense conception and so one of my comments was
we need to have some examples of particular cases in this
guidance where there were facts asserted, and the Court then
found yes or no probable cause, so there is that document with
respect to that issue that is in the works.
And finally, on the question of accuracy, which I did not
cover in my opening--it is in my written statement, but let me
say some words about that because I think it is very
important--there were two groups of unrelated FISA cases. The
first group arose in the summer of 2000 and the second group in
March of 2001, in which there were inaccurate statements made
in FISA applications, and that is discussed in the FISC's May
17th opinion. We basically adopted both a short term and a long
term response to those accuracy problems, and let me try
quickly to lay out what those responses were, and I will get at
the end to the most important point, which is what procedures
we now have in place, in direct answer to your question.
In the short term, of course, the first thing we did was
correct the mistakes with the FISC, with the FISA Court. Indeed
that is how the Court learned of the mistakes, because we
informed the Court. We also contemporaneously informed Congress
of the problems that had arisen, and that is in keeping with
our statutory obligation to keep both the Senate Intelligence
Committee and the House Intelligence Committee fully informed
about our use of FISA.
Third, we opened an internal OPR investigation. That is
OPR, Office of Professional Responsibility, not to be confused
with OIPR, the Office of Intelligence Policy and Review, which
is the office that represents the Department in front of the
FISA Court. And that OPR investigation is still pending. It is
mentioned in the FISA Court opinion. In keeping with normal DOJ
policy, I will not comment on that investigation except to
acknowledge its existence.
For the long run--those are the three short run--correct
the record in the Court, inform Congress, and open an internal
investigation.
Senator Grassley. This is in answer to my fourth question?
Mr. Kris. Yes. Yes, sir. And then the most important thing
that I think we did for the long run was in April of 2001, the
FBI adopted these so-called Woods Procedures, named after the
attorney who is their principal architect, and they were
provided to the Court, also provided to the Committee by
Director Mueller, I believe in connection with his June 6th
testimony of this year. Those procedures are complex and they
are quite detailed. The Committee has them. I will not go
through sort of a technical rundown of the entire thing, but
the critical aspect of the Woods Procedures is that they
require FBI field agents, who are actually engaged in these
counterintelligence investigations, to review and approve for
accuracy the FISA application, which purports to describe those
investigations to the Court.
And that is a critical improvement, and I think it actually
has been helpful in improving accuracy. And Senator Hatch
earlier quoted from the speech that Judge Lamberth gave in
April of this year, a year after those procedures were adopted,
in which he made some very complimentary statements about the
way things were going.
The reason that this coordination and that the procedures
are so vital is that a counterintelligence investigation is
fundamentally unlike most criminal investigations. A criminal
investigation is typically local or at most regional in scope.
Somebody robs a bank in Boston, Massachusetts, the FBI in
Boston will investigate. The U.S. Attorney's Office in Boston
will be involved. The Court, if there is going to be a wiretap,
would be in Boston, and everybody is right there.
In a FISA case, in a counterintelligence investigation, we
are talking by definition about cases that are both national
and international in scope because the adversary is an agent of
a foreign power or a foreign power, and they target this
country as a whole. So you may have related investigative
activity occurring simultaneously in Portland, Oregon, Los
Angeles, California, Denver, Colorado, Miami, Florida and so
forth, and they are all part of a larger investigation of a
particular foreign power and its efforts to target us in some
way.
The FISA application, in any FISA that relates to that
investigation, is of course filed here in Washington, D.C.,
because that is where the FISC is located, that is where the
Attorney General is located, that is where the Director is
located and that is where OIPR is located. And the affiant in a
FISA application is a Headquarters agent, because that is the
agent who is overseeing and coordinating the overall
investigation because these investigations need that
coordination, but the problem is, he is not, this Headquarters
agent, actually at ground level out in the field and actually
doing the investigation. He is one step removed. And no
individual field agent knows absolutely everything about up to
the minute of what the others are doing, and that is where
inaccuracies can creep in, when the Headquarters agent talks
about what happens in the investigation that is being conducted
by others, and the Woods Procedures then are designed to deal
with that problem by requiring coordination and sign-off by the
actual field agents with respect to the affidavit being filed
in the FISC in Washington. So that is the key innovation, I
think, of the Woods Procedures. The May 18th memo of the
Attorney General from 2001 goes further in the same direction
by requiring additional coordination by OIPR and the field.
That is a long answer, but I hope a----
Senator Grassley. Well, as a way of summary and not for
further discussion of this issue, but just so I think you are
saying in answers to my first, second and fourth questions,
that you have procedures in place covering oversight, review,
training and inspection, and that this administration has put
in place further procedures to prevent abuses from occurring
again. But am I right in saying then that we are still in the
process of--if that is accurate, then additionally then we
still have hanging in the balance here, an understanding
throughout all of the Department of Justice as well as FBI, of
what probable cause is. That is not settled yet from the
standpoint of its application to the FISA process.
Mr. Kris. Well, I think there is--I mean the consciousness
has certainly been raised. I think there is a common
understanding. The procedures, as far as I know, have not yet
gone out on that though, so that is right.
Senator Grassley. Okay. Not the definition of probable
cause, but the procedures to follow in regard to what is
probable cause.
Mr. Kris. That is right, yes, sir.
Senator Grassley. Then my last point would be putting the
legal issues to the side, but I would like to ask about how the
Department of Justice plans will affect FISA investigations.
Prosecutors and criminal investigators certainly have a place
in FISA investigations, and I believe prosecution is one way
and sometimes a good way to disrupt and stop terrorist attacks.
But we have to recognize that these are intelligence operations
first and foremost, and decisions should be made based on
national security and intelligence concerns. The Justice
Department wields an enormous amount of influence over the FBI
and individual investigations.
So I want to say what I worry about down the road is that
some prosecutors who do not have experience dealing with
terrorists and spies may be tempted to order an arrest for
reasons other than national security. That prosecutor may, for
instance, want a convicted terrorist on his record, even though
it is smarter to watch the suspect and learn about his plans
and conspirators. The intelligence agencies on the case may
still be looking for other terrorists in the cells, but they
get overruled by the prosecutor. I know that if there is
disagreement, the dispute can go through a chain of command,
but FBI agents know that prosecutors decide what FBI cases to
prosecute or decline day in and day out, and they may be
hesitant to protest a bad decision. What you have described as
advice for prosecutors to intelligence agency agents could end
up being direct orders. I have no problem with FISA information
being used in a prosecution as long as all rules are followed.
I am worried that prosecution is not always the best decision
in terms of national security.
So, first, is the intention of the March regulations to
have prosecutors be in charge of FISA investigations, and who
do you think should run those investigations?
And second and lastly, what assurance can you give the
Committee that prosecutors will not end up running these cases
and how will we be able to verify that through our oversight?
Mr. Kris. I think that is actually a very fair question. I
mean one of the main limits on--well, let me say first, I
completely agree with the premise of your question, which is
that in some cases prosecution is a good way to protect, and in
other cases it is a very bad way and then you can mess it up.
And there are costs associated with the prosecution of somebody
using FISA information. Chief among them, you have to reveal
publicly the fact that there has been FISA surveillance, and
that if there are others out there who are not being
prosecuted, they are then alerted to the fact that the
Government is on to the conspiracy or whatever, and that can
obviously be very, very damaging, and there are also other
concerns that arise when you prosecute an intelligence case
involving protection of source and method information, and a
variety of other concerns.
And just as a tactical matter, sometimes prosecution is not
the right way to go. Other times you just want to monitor these
people or do something else. You try to recruit one of them as
a double agent. You feed them false information. You disrupt
them using some other technique. In some cases you do want to
prosecute.
Under FISA already there is a protection against a line
attorney, line prosecutor somewhere going off and deciding that
he is in charge and he is going to bring this case to trial,
and that is because the statute already provides that before
information can be used in a law enforcement proceeding, the
Attorney General has to approve that use. That has been in the
statute since 1978, and that is only one part of a sort of a
general centralized control that exists in these cases. So
before some renegade AUSA, if that is what you are talking
about, could sort of return an indictment, he would have the
get approval from the Attorney General. So there is a
centralized mechanism in the statute I think that deals with
that.
Senator Grassley. Thank you very much.
I should probably let Senator Feingold decide what he wants
to do, but I was told when I was done that we could stand at
ease if nobody else was here.
So I thank you very much, and I thank the Chairman for
allowing me to question during the time that the vote was going
on. Thank you all very much.
Senator Feingold. [Presiding] Thank you very much, Senator
Grassley, and I will begin my round of questions at this point,
and I appreciate of course the panel being here today.
Let me first ask Dr. Halperin and Professor Banks and Mr.
Bass. It seems to me that Congress was not as clear as perhaps
it could have been or needed to be when the new FISA rules were
rapidly drafted and then passed after September 11th as part of
the PATRIOT Act.
So my question is, should Congress essentially try again,
and codify the FISA Court's May 17th decision? Mr. Halperin?
Mr. Halperin. Well, I think if that can be done effectively
and efficiently without opening up a great many other issues, I
think that might be the way to go. I think a little bit depends
on whether the Appeals Court and ultimately the Supreme Court,
if the Government goes there, upholds the FISA Court's
decision. If it does, then it seems to me that the solution to
the problem is simply to make it clear to the Government that
nothing in the FISA statute and nothing in the Constitution
prevents the kind of consultation that the Justice Department
witness talked about of getting everybody in the room who is
knowledgeable and getting their advice as long as the control
of the FISA investigation is in the hands of intelligence
officials who are using it for the foreign intelligence purpose
of preventing further terrorist attacks.
I do not think there is any reason, if that is done, to
change the statute. If the Government prevails on its appeal
and therefore is in a position to use FISA to run a criminal
investigation, then I think the Congress does need to act and
act consistent with what every member of the Committee who has
spoken has said you intended to do. And I think, frankly, the
way to do that is to legislate the ``primary purpose''
standard, which of course was not in the statute--it was
brought in by the courts--accompanied by clear legislative
findings that that does not in any way prevent the full
cooperation of law enforcement and intelligence in dealing with
the problem. I think it is clear that that is what Congress
thought it had done. If the Court accepts the Government's view
that you did something much more radical, and in my view,
unconstitutional, then I think you should fix it, and I think
the legislative fix is pretty clear.
Senator Feingold. I appreciate that answer, Dr. Halperin.
Mr. Bass?
Mr. Bass. Senator Feingold, first let me say that I do not
think the pending case is the right vehicle for answering the
questions that are really the focus of the Committee's concern.
I have indicated in my remarks that are more extensive, that
one thing that is wrong with the case is it is unilateral, it
is ex parte, there is no adversary on the other side, and it is
secret, but more importantly, as the FISA Court pointed out,
they did not rule on when it was proper to come to the Court
for a FISA surveillance. They only ruled on an aspect of
approving minimization procedures, which only apply in cases of
U.S. persons to begin with. And jurisprudentially, the issue in
the case and the issue on appeal is far too narrow to address
the issues of concern to this Committee.
In response to the first part of your question, yes, if
Congress could act, it should, but if Congress were to act as
it did in the PATRIOT Act, I am frank to say, no, please do not
do that again.
Senator Feingold. Well, you know I agree with that.
Mr. Bass. That Act was so hastily prepared, and at least as
far as I know, nobody ever knew what it did in many of its
provisions because of its haste. The legislative history is too
sparse. And to cram congressional intent into a change from
``the purpose'' to ``a significant purpose'' to deal with all
these questions we are dealing with today is intellectually
impossible. So if you are going to do it, do it right, and come
up with something that is not the product of the usual sort of
political compromise, but in fact gives clear guidance as to
when you transition from a FISA surveillance to a Title III
surveillance.
I am cynically suspicious that that cannot be done very
easily, and certainly cannot be done in today's climate. But I
am also equally convinced that the courts will make a mess of
it if they continue to proceed the way this process has
proceeded to date, and that is with these secret unilateral
proceedings in which the FISA judges talk to the Executive
Branch both in court proceedings and in nonproceeding meetings,
but they refuse to talk to Congress, and that cannot be the way
to run the ship.
Senator Feingold. I thank you for that answer.
Professor Banks.
Mr. Banks. Senator Feingold, I agree with Mr. Halperin and
Mr. Bass, and Mr. Bass in particular about the
inappropriateness of using this case as a vehicle for restating
what FISA is about.
I do have mixed feelings about the ``significant purpose''
standard, but I doubt that it would be wise at this time to
revisit that question. I think the ``significant purpose'' rule
is not as good a rule as was in place before, but I think it
only lowered the barrier somewhat for reviewing courts in
trying to sort out the relative role of law enforcement and
intelligence in a joint or some kind of parallel investigation.
I think if Congress wished to be more clear about the
limits that were imposed in the PATRIOT Act on the information
sharing and consultation, that it is in that provision that
some attention should be paid. I think that we have all sort of
danced around the difference this morning between consultation
and information sharing on the one hand and direction and
control on the other. That is where the cleavage appears to
exist, and if there is some legislative attention, I would
devote it there.
Senator Feingold. Thank you for that answer, Professor.
Mr. Kris, the Justice Department claims that a broad
interpretation of FISA is necessary to protect our country from
terrorism. Yet this Committee has not heard an example of how
more appropriate and narrow a construction of FISA, like the
one proposed by the FISA Court would actually impair our
national security.
Could you please tell us what hurdles a reasonable
construction of FISA would place in front of our desire for
safety, and if the Justice Department prevails in their appeal,
what role the established intelligence community will have in
FISA matters when the primary purpose of using FISA is law
enforcement?
Mr. Kris. Yes, I think I can do that even in this open
forum, although perhaps not with any real case examples for
you.
Let me focus on just one aspect of the FISA Court's opinion
that I think is troubling in a--in a relatively clear way. In
addition to accepting our information sharing provisions and
rejecting in part our advice giving provisions, the Court
imposed a third element in the coordination process, requiring
what I have called, and what are brief refers to as a
``chaperone requirement.'' The essence of that requirement is
that before intelligence officials can talk to or engage in a
consultation with a prosecutor, they must first notify OIPR,
the Office of Intelligence Policy and Review, which is located
in Washington, schedule the consultation and invite OIPR to
attend or participate if it is by telephone or in person. And
for its part, OIPR is required by the Court's order to
participate in the consultation unless it is unable to do so.
And, obviously, I mean that really means unable because OIPR
has to stand up in front of that court on a daily basis, and it
cannot sort of start playing ``cutesie'' when it is
unavailable.
Well, I think the impact of that should be clear for
anybody who has experienced running sort of a complex criminal
investigation. The agents and the lawyers are talking to each
other, and should be talking to each other, all the time, by
phone or in person, many, many, many times a day, because
something occurs to you, you call up the agent, you say, ``Oh,
you have got to look into this.'' The agent calls you back,
``Oh, here is what I found.'' And there is a very dynamic
process that ought to be going forward, especially in these
very, very sensitive investigations. If every time a prosecutor
wants to talk to an intelligence agent about a case, he has to
call OIPR, and if he wants to meet in person he has to wait for
OIPR to send a lawyer to fly out there. And as I said, OIPR is
in Washington. The FISC is in Washington. These investigations
are going on all over the place.
I mean I guess I would say it is very unworkable to have to
wait for an in-person meeting for somebody to fly out. And what
that means is that really in effect it is very difficult to
have the coordination that is necessary.
Senator Feingold. Mr. Bass?
Mr. Bass. Senator, if I could be so bold as to say I am
shocked at the Department's position with respect to the role
of OIPR. This is 2002. If the Department does not yet have in
place secure, contemporaneous communication facilities for
voice or e-mail, then it is light years behind my law firm, and
that is abysmal. They have presented no justification for
objecting to the, quote, ``chaperon provision'' except
administrative inconvenience. I cannot believe that that
actually is a problem. And if it is, it is one to be solved by
allocation of resources. OIPR provides an important role, in my
view, in performing a contemporaneous oversight function in a
very difficult area that no other institution of Government can
provide.
And to me the biggest problem with the AG's proposal is
taking OIPR out of the loop and allowing criminal prosecutors
and intelligence agents to communicate directly without a third
party being there. Call it pejoratively a chaperone, if you
will. I call it a protector of liberty.
Senator Feingold. Dr. Halperin, and then I will give my
time----
Mr. Halperin. Senator, what troubles me most about this is
the judges on those courts, we all know many of them have
experience inside the Executive Branch. None of them are people
who are insensitive to the requirements of law enforcement and
national security, and that they felt obliged to impose that
kind of specific requirement on the Justice Department,
suggests to me a level of concern not to say mistrust of what
the process would be like that I find deeply troubling.
So I think it is very important for this Committee, in its
oversight role, to try to get to understand what it is that led
the Court to decide that that was the only way it could be
confident that the rules it was laying out were being enforced.
On the face of it, it seems extraordinary that the judges
would have the right to do that, and as the Government points
out, it is hard to see in FISA where they get that authority,
but it comes from their right as overseers of this process to
say what they have said in effect, ``We do not have any
confidence in this unless that happens,'' and I think that has
got to be fixed, whether by implementing this requirement or in
some other way.
Senator Feingold. I thank you all. This is an excellent
panel.
I thank you, Mr. Chairman.
Chairman Leahy. I thank you.
Senator Hatch, and then I will take my questions.
Senator Hatch. Mr. Kris, after having listened to your
colleagues here, do you have any additional comments you would
care to make?
Mr. Kris. Well, I mean I guess I agree with Dr. Halperin
that I do find it difficult to find anywhere in the FISA
statute or in Article III, authority for a Court to impose that
kind of close management of Executive Branch functions, and to
dictate who must be in the room when a consultation is going
on. I think I am inclined to agree with him that it is really
not supportable, and indeed that is our position on appeal.
I must say I disagree with Mr. Bass about the practical
limitations that such a requirement poses. Even if one can do
secure conference calls, which the technology--well, I should
not get into that. But even if one can do that, there is really
no substitute for an in-person meeting, and a free and dynamic
exchange of ideas, which is not to say that OIPR should not be
there or that the intelligence lawyer's perspective is not
valuable. But it is one thing to say as a matter of Executive
Branch management for the Attorney General to say, ``well, it
is a good idea, though not a ironclad requirement for OIPR to
be there.'' It is another thing for a Court to say that they
must be there before you can have a meeting, and I think that
is the central legal argument anyway that we are raising.
Senator Hatch. Let me focus your attention on one
particular argument the Government has made on appeal.
Specifically you argue that the primary purpose of FISA
surveillance may be law enforcement as long as ``significant,''
foreign intelligence purpose is also present. Now, what
evidence do you have that Congress understood that possibility
when it enacted the ``significant purpose'' amendment in
Section 218 of the PATRIOT Act? Was there any discussion of the
FISA surveillance being used primarily for law enforcement
purpose and only secondarily for foreign intelligence purposes?
Maybe I will go a little bit further. As you can tell, I am
asking a question that I know the answer to, but I want you to
answer it anyway. In fact, several Senators made specific
comments during the PATRIOT Act debate, indicating their
understanding that this specific change would increase criminal
use of FISA. And let me just cite with particularity. A
statement by senator Feingold. Quote: ``The Government now will
only have to show that intelligence is a 'significant purpose'
of the investigation. So even if the primary purpose is a
criminal investigation, the heightened protections of the
Fourth Amendment will not apply.''
Mr. Kris. That is correct.
Senator Hatch. Senator Wellstone said, quote: ``The bill
broadens the Foreign Intelligence Surveillance Act, FISA, by
extending FISA surveillance authority to criminal
investigations, even when the primary purpose is not
intelligence gathering.'' That was on the floor on October
25th, both of them on October 25th.
On October 11th Senator Cantwell said, ``Although the
language has been improved from the administration's original
proposal, now it would require that a significant rather than
simply a purpose of the wiretap must be the gathering of
foreign intelligence. The possibility remains that the primary
purpose of the wiretap would be a criminal investigation
without the safeguards of Title III wiretap law and the
protections under the Fourth Amendment that those will fill. I
would like to ask the Chairman of the Judiciary Committee
whether he interprets this language in the same way.''
Senator Leahy said, ``Yes, the Senator from Washington is
correct. While improved, the USA PATRIOT Act would make it
easier for the FBI to use a FISA wiretap to obtain information,
where the Government's most important motivation for the
wiretap is for use in a criminal prosecution.''
Well, you know, I do not think there is any question that
that is what we intended to do, but give us your take on it.
Mr. Kris. Well, I mean, I agree with you, Senator Hatch,
and those citations to those statements are collected in our
brief. I guess I would also say for the Department's part, that
on October 1st of 2001 we sent a rather long letter to
Congress, and to both the Chairmen and ranking members of the
House and Senate Intelligence and Judiciary Committees,
describing and defending the ``significant purpose'' amendment
that we had proposed. And that letter said, and I will quote
from that, quote, ``The Courts should not deny the President
the authority to conduct intelligence searches even when the
national security purpose is secondary to criminal
prosecution.'' So I do think that--I mean we have in our brief,
and I do rely on this evidence to say that not only is that the
inevitable consequence of the plain language of the provision,
which I think it is as a simple matter of grammar, but also
that at least some members of Congress and the Department, in
presenting the amendment, understood that that was what was at
stake whether they supported it or not.
Senator Hatch. The Chairman has been kind enough to allow
me to ask one more question.
Mr. Kris, in your written testimony you outline the
Government's argument that with the modifications of the
PATRIOT Act, and specifically Sections 218 and 504, FISA may
now be used primarily to obtain evidence for a prosecution of
foreign terrorists or spies.
Now, in support of that position, you suggest that criminal
prosecution is a ``lawful'' means to protect our country from
spies and foreign terrorists. And would you elaborate on this
argument, citing the specific provisions in the PATRIOT Act
relating to the definition of ``foreign intelligence
information'' in the FISA statute, and explain how criminal
prosecution is one of the several legitimate means to protect
our country from foreign spies and terrorist attack.
Mr. Kris. Sure.
Senator Hatch. You made that point earlier, but I would
like you to elaborate on it.
Mr. Kris. Yes, sir. FISA, as enacted in 1978 said that the
Executive Branch must certify, and in the case of a U.S.
person, the Court must find that the certification is not
clearly erroneous, that the purpose of the search of
surveillance is to obtain this category of information known as
foreign intelligence information, and ``the purpose'' was read
as the primary purpose and then later changed to a
``significant purpose.''
But what your question goes to is exactly what is this
thing that we are having some purpose to obtain? What is
foreign intelligence information? Well, it is defined in 50
U.S.C. 1801 (e)(1), to include information that is necessary to
the ability of the United States to protect against a list of
specified foreign threats to national security, including both
espionage and international terrorism. The basic thrust of our
argument on appeal is that information can be used to protect
against these threats in a variety of different ways. There are
diplomatic methods that can be used. There are military,
paramilitary, economic sanctions, intelligence methods, and
there is also law enforcement methods. It is back to that
analogy, you can do chemotherapy to stop cancer, or you can do
surgery to stop cancer, and there are a lot of different ways
to go about it.
Sometimes prosecution is the good way. Sometimes it is not.
But there is nothing in that definition in 1801(e)(1) that
discriminates between law enforcement methods of protecting
against these threats and other methods of doing so. The only
thing that FISA says about the use of information is that it be
lawful. And that would mean, for example, you could not use the
information say for some unlawful blackmail or for some other
thing that would be unlawful. Prosecution is actually a lawful
thing to do. And that really is the center of our argument on
appeal,and it is based not only, as I say, on the plain
language of the 1978 version of FISA, but also on Section 504
of the USA PATRIOT Act which is now codified at 50 U.S.C.
1806(k) and 1825(k) for physical searches, which in our view
reaffirms this original idea that foreign intelligence
information includes information that will be needed to protect
regardless of the method, law enforcement or otherwise, that is
used to achieve that protection.
Senator Hatch. Thank you so much.
Chairman Leahy. Mr. Kris, you keep using the analogy of
treating a cancer patient. I have a feeling you are probably a
far better lawyer than you are a doctor.
Mr. Kris. That is probably correct.
Chairman Leahy. And another way you could use the analogy
in making the kind of choices the Department of Justice would
want it to be, would be that the cancer patient were told,
``Well, you have a choice of going to this team of oncologists
at Johns Hopkins or to the law firm of Smith, Smith and
Smith.'' I mean, frankly, that is about what is happening,
because what you have done, you have had to stretch the
language of the FISA statute to reach a position that criminal
prosecution is a type of foreign intelligence purpose. Congress
never intended criminal prosecutors to be able to choose to use
FISA as their first choice.
In your written testimony, you cite a single sentence from
a lengthy letter that the Department wrote during consideration
of the USA PATRIOT Act in the Senate. The one sentence you
quote is in the section discussing Court-imposed constitutional
limits in FISA. What you did not cite in your testimony today
was a section of the same letter in which DOJ addressed a
meeting of the new proposed statutory language which says, ``In
light of this case law and FISA statutory structure, we do not
believe that an amendment of FISA for 'the purpose' to 'a
significant purpose' would be unconstitutional as long as the
Government has a legitimate objective in obtaining foreign
intelligence information. It should not matter whether it also
has collateral interest in obtaining information for a criminal
prosecution. As courts have observed, the criminal law interest
of the government did not taint a FISA search when its foreign
intelligence objective is primary.''
Now, how do you square that with the view you have
advocated that the amendment was intended to allow the use of
FISA for cases where the criminal interest was not collateral
but primary?
Mr. Kris. Well, as I understand what you just read, it is a
description of the primary purpose case law, which such as it
was, certainly did hold or at least indicated--the case law is
somewhat more ambiguous than maybe I am saying--but in any
event, assume that it did indicate, if it did not hold, that
the primary purpose must be something other than law
enforcement. I think that is, for example, the holding of the
Troung decision from 1980 in the Fourth Circuit.
But the idea was actually to change that, and--so I think
the one part of the letter is describing the law and the other
is describing what the amendment would do to the law, and I
think really it is quite inevitable as just a matter of common
English.
Chairman Leahy. Is this a new argument for the Department
of Justice?
Mr. Kris. No, it is an old argument, Senator. I mean it is
in our brief.
Chairman Leahy. But has it been advanced before in the
courts?
Mr. Kris. Oh. No. In that respect, yes, it is a new
argument. This is not an argument----
Chairman Leahy. Is this saying that for 20 years the courts
have been deciding these things wrongly?
Mr. Kris. Well, in effect, yes, it is saying that. I mean,
I think as I said, you can quibble and reasonable minds can
differ about exactly to what extent the courts actually held
this rather than just assuming it, and there is not that much
published case law here.
Chairman Leahy. Well, we have a hard time finding much
published because probably Justice does not want to answer our
questions. I read in CQ, I think it was today, that the
Republicans for the House Judiciary Committee wants to start
subpoenaing these answers. If the Department is correct, if
criminal investigators and prosecutors may actually direct or
control a FISA wiretap, does that mean that the information
sharing consultation provisions that we wrote into the USA
PATRIOT Act that are directed at intelligence officials are
sort of moot or superfluous?
Mr. Kris. I am not sure I follow your question. I mean----
Chairman Leahy. Well, you cannot share with yourself. See,
this is what I do not understand. I mean basically what you are
trying to do is change 20 years of a way of doing things.
Mr. Kris. Yes.
Chairman Leahy. And we find from the courts that some of
the mistakes made by the Department of Justice coming before
them, I guess even to the extent that one person was probably
Justice has been banned from the courts. Are you trying a new
interpretation to cover your mistakes, or a new interpretation
because you think that is what the law is?
Senator Hatch. The law has changed.
Mr. Kris. Well, yes. I mean----
Chairman Leahy. Well, that is why I am asking the question.
Mr. Kris. Senator Leahy, I do think we are trying to
change, and I think we are pretty overt about it, 20 plus years
of practice, and I do think that is what the PATRIOT Act
represented, was a paradigm shift in this area. And you have
cited----
Chairman Leahy. Then you would say the court is wrong in a
unanimous opinion when they say the Attorney General's proposed
procedures for the FISA, quote, ``appear to be designed to
amend the law and substitute the FISA for Title III electronic
surveillances and Rule 41 searches. This may be because the
Government is unable to meet the substantive requirements of
these law enforcement tools or because the administrative
burdens are too onerous. In either case these procedures cannot
be used by Government to amend the Act in ways Congress has
not.''
You disagree with the court?
Mr. Kris. Yes, I disagree.
Chairman Leahy. You disagree with the unanimous opinion of
the court?
Mr. Kris. Yes. I mean we disagree respectfully, and we have
a lot of respect for that Court, but I mean that is what it
means when you--I mean we are appealing because we think they
got it wrong.
Chairman Leahy. I have argued a few appeals myself. I
understand what appeals are. Thank you. Although I have never
been in a case where I could argue the appeal in secret and be
the only person appealing even when I represented the
Government, I was never able to argue in a secret hearing
before a court that meets in secret and where the other side
cannot be heard. From a government attorney's point of view, it
must be a lot of fun.
[Laughter.]
Mr. Kris. That is not the word I would use to describe the
process, and I have--I want to apologize. I did not mean to
be--I know that you have law enforcement experience as a
prosecutor, and I do not mean to be disrespectful.
Chairman Leahy. No, and you were not, Mr. Kris.
Mr. Kris. I mean we do disagree with the Court and we are--
we will see what happens in the appeal. If we are right on the
law, then I guess the Court will tell us, and if we are wrong
on the law, then I am sure the Court will tell us that too, and
we will have to see.
Chairman Leahy. Well, if the Justice Department is now
wanting to use FISA as a tool in matters brought primarily for
law enforcement purposes, should we consider importing some of
the procedural protections applied at criminal wiretaps to FISA
wiretaps?
Mr. Kris. Actually, that issue did come up in one of the
briefings I did for the staff. I think that we would be
prepared to discuss some other reforms in FISA. I think some of
the requirements at least that existed on the Title III side
are not a good fit for FISA. There may be some things that we
can do. I guess what I would say is an intelligent discussion
of additional changes in this area I think ought to await the
implementation of--well, first the decision of the Court of
Review. We will have to see. We may be all mooted out by a
decision that affirms, in which case none of this will be in
play.
If we prevail in the appeal, then I think there will be a
period of the mandate going to the FISC and the FISC and us
interpreting the Court of Review's decision, and then a period
of education of our people because if our arguments are
accepted, it is a big change. And we are certainly not hiding
from that. It would be a big change, but that is going to take
some time to get the word out and educate our line attorneys
and agents. And then I think what you will see is as that
happens, cases developing in a different way, and one might see
public prosecutions that occur using FISA under a different
pattern. And I think it would be useful to see what happens in
that respect.
Chairman Leahy. Let me ask this last question, and I ask it
of the whole panel.
We were talking about development of the secret body of
laws without public scrutiny, and that is very unusual, not
only in our democracy but any democracy. The Department is
urging broader use of the FISA in criminal cases. And you are
going to lose, ultimately lose public confidence both in the
Department and in the courts, unless you can, by public
reporting or otherwise show this is being used appropriately.
Right at the moment, as we worry about terrorist attacks, there
is a certain amount of freedom given you, but people are
beginning to worry more and more from across the political
spectrum. So, do you see any problem with public reporting of
the number of times FISA is used on U.S. persons, the legal
reasoning used by the FISA Court, or the number of times FISA
information is used in criminal cases?
I ask that question because the answer and what happens is
certainly going to reflect the debate which is coming up
actually, in congressional terms, fairly soon, about whether we
sunset all these provisions.
So what would you say, Mr. Kris? Then we will go to the
other members.
Mr. Kris. Yes. I mean they do sunset at the end of 2005. We
are very acutely aware of that. I think that part of what you
said might be possible, part I think is not a good idea.
Chairman Leahy. Tell me what part is possible and what part
is not.
Mr. Kris. I think, for example, disclosure of the number of
``U.S. person'' cases involving FISA to the public could pose
some operational risks for us. I do not want to--not in this
hearing anyway--get into them. We do report that kind of data
and more to the intelligence Committees on a twice-annual
basis, and it is quite an extensive written document that is
produced to them, and I know that--well, there are members of
this Committee that are also on the other Committee, so they
know what I am talking about. I worry about disclosure of
certain operational information that might be useful to the
adversaries in avoiding coverage. We do not want to give them
too much of a road map of how we go about doing this.
Chairman Leahy. How about reporting the number of times
that FISA information is used in criminal cases? I would assume
these criminal cases are open and public.
Mr. Kris. Yes. Indeed we already report, under a relatively
recent amendment to FISA, we already report exactly that
information to the intelligence Committees.
Chairman Leahy. You do a classified report about what was
done in an open public court. I am asking what do you think
about reporting the number of times this information is used in
criminal cases, assuming those criminal cases have been in an
open court with the press and everybody else available?
Mr. Kris. Well, I will say that I agree with you that the
information that reveals the use of FISA in a criminal trial is
public. The trial is public and notice is given to the target
or any aggrieved person against whom the information is used.
So at that point you are not hiding the fact any longer of the
existence of a FISA. And I will--I am not authorized to commit
the Department, obviously, but I will take it back and we will,
I think, look forward to working with you as the--I mean we
will be----
Chairman Leahy. But I might not be following what happened
in the Western District of Pennsylvania or the Southern
District of New York on all these hundreds of cases, but you
certainly have to know. And it has been publicly disclosed, and
it would be interesting to know, because obviously, if you have
a huge increase in the number of criminal cases that turn out
to be things like mail fraud and so on, then we might want to
know. And we all want to think that our priorities are
counterintelligence and protecting us, but we also now that
investigations go on in such things as, as was brought out in
one of these hearings: the amazing discovery by the Department
of Justice that there were some prostitutes in New Orleans,
something that nobody ever would have known about if they had
not done that.
[Laughter.]
Chairman Leahy. Professor Banks.
Mr. Banks. As you said, Senator, the secrecy in the process
is ultimately corrosive, and anything that the Department and
the Congress can do to reduce the amount of secrecy that
attends a necessarily secret process is a good idea.
I think your two specific suggestions are good ones. I do
understand the operational sensitivity of a ``U.S. persons''
disclosure, and perhaps there is a middle ground there. I made
several other specific suggestions in my written remarks about
oversight mechanisms that could open up the process to some
degree.
Chairman Leahy. Thank you.
Mr. Bass?
Mr. Bass. Senator, the specific proposals would only
enhance national security if they were enacted. The only
legitimate security concern about disclosing publicly the
number of U.S. persons was theoretically in the early years
when that number may have been two that we would disclose,
having prosecuted two, people that we weren't targeting.
I can't believe the number is that small in the present
circumstances, but at the same time I am absolutely confident
that the number of U.S.-person-targeted surveillances in the
FISA environment is so small compared to the total volume that
the United States public and this Committee could only feel
more comfortable about our national security, which for me
includes liberty as well as counter-intelligence and counter-
terrorism, if that number were publicly known.
If I could briefly comment, though, on one point about the
statement that was made about the Department understanding the
PATRIOT Act as trying to reverse 20 years of judicial history,
that is not the way I viewed what the Congress did.
I won't elaborate on it because it is in my prepared
testimony, but in the early days the original understanding of
the Act did not include a primary purpose test and did not
include a wall. The primary purpose test and the wall developed
largely in 1995 as a result of things this Committee knows
better than I do, but can certainly find out about.
I read the PATRIOT Act as saying tear down the wall. I read
the PATRIOT Act as saying go back to the original
understanding, not to go beyond the original understanding and
to transform FISA into an alternative Title III, which is what
I hear the Department saying today.
Chairman Leahy. Thank you.
Mr. Halperin?
Mr. Halperin. Well, first, if I can comment on that very
briefly, the fact is that the paragraph that you read, Mr.
Chairman, is not in the section of the letter that Mr. Kris
said it is in. It is in the section of the letter precisely
interpreting what would be the meaning of the new ``significant
purpose'' section. So I think the Justice Department has
created a legislative history for itself which supports the
Committee's interpretation, and the letter speaks for itself
and where it is in the letter speaks for itself.
On the issue of how to make it more open, I do want to say
that I find it somewhat strange that this is always referred to
as a secret court issuing secret warrants, because, of course,
all search warrants are done ex parte in secret just with the
government. So in that sense, this isn't any different.
But I do think that nobody contemplated that decisions of
law which were unclassified would not be made public, and I
think nobody contemplated that appeals which dealt with legal
issues would be non-adversarial and in secret. And I do think
that Congress needs to make it clear that if the court issues
unclassified opinions, they need to be published. You don't
have to wait until you somehow find out about them and ask for
them.
I also think that what happened yesterday was disgraceful:
a hearing on legal issues in which there was no adversarial
process, in which the public was not allowed to be present. If
the Government thought it needed an additional session in
camera to present some information, as it did in its brief,
that could have been decided by the court and would have been
appropriate.
But the notion that you have a public opinion, you have a
public Government brief, and you have a secret non-adversarial
hearing goes against, I think, every fundamental element of
what we understand to be the way to protect individual rights
in a constitutional process. And I think if the court doesn't
correct that, Congress needs to do so.
Chairman Leahy. Thank you.
Senator DeWine.
Have you asked questions?
Senator Specter. No.
Chairman Leahy. I am sorry. I thought you had asked
questions. I apologize.
Senator Specter. No, I have not.
Chairman Leahy. Senator Specter. I do apologize.
Senator Specter. Mr. Kris, taking up the issue of standards
for probable cause on warrants under the Foreign Intelligence
Surveillance Act, I know you have the case of Illinois v. Gates
because you showed it to me when I walked by to greet you
before the hearing started. I had thought that the Gates case
was prohibited reading for the Department of Justice and the
FBI.
Is there any doubt in your mind that the appropriate
standard for the issuance of a warrant under the Foreign
Intelligence Surveillance Act? It does not require
preponderance of the evidence?
Mr. Kris. There is no doubt in my mind on that score.
Senator Specter. Or any higher standard?
Mr. Kris. Certainly not higher.
Senator Specter. And the definition which then-Associate
Justice Rehnquist articulated, going back to the opinion by
Chief Justice Marshall all the way back to the Cranch case in
1813, turns essentially on suspicion and a totality of the
circumstances?
Mr. Kris. I completely agree.
Senator Specter. Do you know if there has been any effort
since the June 6 hearing with Special Agent Rowley and FBI
Director Mueller where this Committee took up in great detail
that question--whether there has been any effort to educate the
agents of the FBI about that standard?
Mr. Kris. Yes, sir, there has been, and indeed I think this
came up in my earlier answers to Senator Grassley's questions.
I know the Bureau is preparing some guidance on the probable
cause.
Senator Specter. Who is preparing it?
Mr. Kris. The FBI, and I myself actually reviewed a draft
of that guidance, I don't know, a week or two ago.
Senator Specter. Well, had that been done before we had the
closed session with the FBI agents on July 10?
Mr. Kris. I don't know the answer to that. I certainly
don't think I reviewed a draft until after July 10. I couldn't
tell you whether it was----
Senator Specter. Why does it take so long, when these
warrants are so important to find out what is going on with
possible subversion or possible terrorism?
Mr. Kris. I really can't answer that fully. I can say that
when I saw the draft, the suggestion I had was because probable
cause is such a fact-intensive inquiry, because it is a
pragmatic, fluid concept, you can't actually say much that is
meaningful and actually helpful in the abstract.
What you need to focus on are some examples of real cases
with real facts in which the facts are such and such, and the
court rules yes or no, there is or is not probable cause. So I
think maybe the crafting of the guidance has taken some time.
They want to get it right, they want it to be helpful, they
want it to be useful and good. So sometimes that takes some
time, but I am not really intimately part of that process. I
just reviewed this draft recently.
Senator Specter. Well, I do not agree with you that
definitions in the abstract are not helpful. They may not be
conclusive, but when the court articulates a standard for
probable cause, they cannot start to run out a whole string of
examples; they have to generalize.
When you have Associate Justice Rehnquist, now Chief
Justice, articulating that standard, isn't it minimal that the
FBI agents would know the case? It may not provide all the
answers, but it is a start, isn't it?
Mr. Kris. I mean, I maybe overstated in my prior answer. I
don't mean to say that there is nothing useful to be said in
the abstract, but saying something like it is not a
preponderance or a ``more likely than not'' standard is a good
start--I will take your point on that, but I think that good
guidance here would actually trot out a series of examples
because, at ground level, I think the central teaching of Gates
is that it is such a fact-intensive question and it is such a
pragmatic standard that at least you can't just describe these
things in abstract terms. You need to get down in the weeds and
dig in.
So maybe I will retract my statement to the extent I said
abstract is no good. It is just not the whole picture.
Senator Specter. Well, would you find out for this
Committee when the standards were propounded and would you
furnish this Committee with a copy of the standards, and would
you seek to provide an answer as to why it has taken so long?
The generalizations that you have given I consider
inadequate if it wasn't done by July 10. We will find out when
it was done, and I would prefer to ask Director Mueller these
questions, but he is not here and he hasn't responded to
correspondence.
We had a lengthy session with Attorney General Ashcroft on
this matter during the oversight hearing and it got me a
luncheon invitation to meet with him and his top deputies at
the Department of Justice. Frankly, I wasn't interested in
lunch, but I was interested in an answer. So I went to lunch
and then I finally got an answer.
But to say that it is disquieting is an understatement. To
say that it is disrespectful to the Judiciary Committee is an
understatement. But the real point is that it puts Americans at
peril if the Department of Justice and the FBI don't know what
the standard is, if they are applying a standard which is too
high.
So we have the converse here of the FBI and the Department
of Justice being uninformed about the standard and applying the
wrong standard. And you have a public hearing on June 6, widely
publicized. Agent Rowley was all over the newspapers, all over
television, and by July 10 the FBI agents still don't know what
the standard is, and then my letter to the Director the very
next day to try to get some motion.
So let us know the specifics as to when they acted and the
specific instructions which were given and an explanation, if
you can provide one.
And just for a moment, having not been as vigorous as the
Department ought to be, is there some effect on being gunshy by
the FBI as a result of one agent being disqualified from
applying for warrants to the FISA Court?
Mr. Kris. I don't--and I have said this before in
briefings--I don't see a connection between concerns about the
accuracy of FISA applications and the facts reported in them
and the adequacy of those facts to establish probable cause.
The accuracy principle requires us to tell the truth to the
court and give the facts, good, bad and ugly, such as they are,
and not to omit material facts and not to misstate material
facts. That is an obligation the Government always has in
dealing with any court, but it is particularly potent with
respect to this court, in part because of the nature of the
proceedings.
Senator Specter. So your answer is no?
Mr. Kris. I don't see a connection between that and what
you call being gunshy about facing up to the facts such as they
are and then pushing them to probable cause.
Senator Specter. My red light is on, so I want to conclude
this. The Committee intends to go into detail as to why the
agent was disqualified. I think that is a very severe
consequence for the court to disqualify an agent and we intend
to look at it.
If the court disqualifies him from being an agent, he still
is an agent. He appeared in our closed session.
Mr. Kris. Yes.
Senator Specter. Then there is a question about whether he
ought to be an agent. Speaking for myself, I don't think the
FBI ought to sit back and let an agent be disqualified unless
there is really a basis for it. They ought to protect the
agent, but that is an oversight function for this Committee. We
will take a look at what the court has done and what the FBI
has done.
Mr. Halperin, just one question for you. You are a veteran
of this line and have special insights, having been the subject
of illegal eavesdropping over wiretaps yourself. Do you have
any reason to challenge what the FBI or the Department of
Justice is doing under the Foreign Intelligence Surveillance
Act or Title III wiretaps at the present time?
Mr. Halperin. Well, of course, the problem is that we don't
really know because we don't learn until much later. I was
frankly very disturbed by the court's decision. That is, as I
have said, a group of very distinguished judges. Many of us
have worked with Royce Lamberth when he was in the Justice
Department, know of his decisions on the court.
Senator Specter. Why were you disturbed with the decision?
I would have thought you would have liked it.
Mr. Halperin. I liked the outcome. What I was disturbed by
was the clear indication that the judges, not only on the issue
of the incorrect facts, but in their view that the Justice
Department had misinterpreted the intent of Congress in the
statute--that the Government was, in fact, doing things that it
should not be doing. I was pleased that the judges ruled the
way they did. I think their decision was correct.
But I think it underscores the fact that oversight by this
Committee, by the Congress as a whole, making the court
procedure more open to the degree that we can and more
adversarial is necessary because otherwise there is no way to
find out what is to be done.
It is also, I think, a problem, in my view, that the courts
have misinterpreted the provisions of the statute that deal
with what happens when the Government uses FISA information in
a criminal prosecution. As I understand it, there has not been
a single case in which the defendant has been given the
justification for the wiretap so that there could be an
adversarial confrontation as to whether there was, in fact,
probable cause.
The statute says that needs to be done when due process
requires it, and I think the courts have misinterpreted it to
say that a non-adversarial, in camera hearing is always
sufficient. That increases the sense that we can't really know
what is going on because even people, where it is used against
them in a criminal trial, don't have what I think is the
necessary opportunity to challenge that.
Senator Specter. Well, I would like to go further, but
Senator DeWine has been waiting a long time. In conclusion, I
would just say we intend to pursue it. This oversight is going
to be pursued, but I have to tell you it is like pulling teeth,
with all due respect, Mr. Kris, dealing with the Department of
Justice, like pulling bicuspids dealing with the FBI. And it is
pretty hard to deal with the court, telling us separation of
powers, when we are looking for an opinion. That is not
separation of powers, to read an opinion.
Thank you, gentlemen, for being here. Thank you, Mr.
Chairman.
Chairman Leahy. Well, thank you, Senator.
Senator DeWine.
Senator DeWine. Well, Mr. Chairman, let me just reiterate
what I said earlier in my opening statement, to follow up on
what Senator Specter just said, that it is impossible for this
Judiciary Committee and for the Intelligence Committee and for
Congress to have proper oversight because we don't know what
the court has been doing. It is one of the only times that we
have passed a law that we don't have any really good indication
of its effectiveness.
You know, it is obvious from this panel and this Committee
that we are probably divided on how we look at this and which
way we should be going. But without the ability to get the
information, it is just very, very difficult.
Mr. Kris, let me get back to you one more time. I know you
are having a great day today. Thank you for being with us, and
all the panelists. It has been a good panel. Mr. Bass said a
few minutes ago that he believes that you at the Justice
Department look at FISA as an alternative to Title III, and I
want to kind of explore that with you because I am still not
clear and I don't think it is clear how far you all think the
law does, in fact, go.
The PATRIOT Act, in Section K, talks about coordination
with law enforcement and I will read part of it. ``Federal
officers who conduct electronic surveillance to acquire foreign
intelligence information under this title may consult with
federal law enforcement officers to coordinate efforts, to
investigate or protect against,'' and three things are listed.
Then it concludes: ``Coordination authorized under paragraph
(1) shall not preclude the certification which is required by
section,'' et cetera.
How far does this go and what is your position? I mean, do
you believe that the correct interpretation of the law is that
Justice can, in fact, direct FISA investigations, or that law
enforcement can? It is not clear how far that goes. I know what
the statute says. I have looked at your guidelines.
``Consultations may include the exchange of advice and
recommendations on all issues necessary to the ability of the
United States to investigate or protect against foreign
attack.'' And then it goes on later on: ``initiation,
operation, continuation, or expansion of FISA searches or
surveillance.''
Mr. Kris. There is a very long answer to your question
which I will avoid for now, and then there is a shorter answer.
So let me start with the shorter one, and that is I think that
direction or control by law enforcement----
Senator DeWine. Well, let's start with my first question,
though, whether or not you really think that this is an
alternative to Title III and you can just kind of pick and
choose, which is the inference from Mr. Bass.
Mr. Kris. Yes, I mean I guess I would say that is right at
least to a certain extent, or at least to the following extent.
If we are faced with a case in which we satisfy the standards
of Title III and we also satisfy the standards of FISA, then it
would be a matter of choice which avenue----
Senator DeWine. Okay. I would interpret that as a ``no,
but,'' but you can say it however you want to.
Mr. Kris. I mean, I do think it is an alternative.
Senator DeWine. You are saying you have to meet the
requirements of FISA?
Mr. Kris. Yes. So in that sense, of course, it is an
alternative. I mean, I think maybe what Mr. Bass is getting at
is that our interpretation of FISA makes it available even when
prosecution is the purpose of the surveillance, and with that I
certainly do agree. Our fundamental----
Senator DeWine. Agree in what way?
Mr. Kris. I agree that prosecution--when you are dealing
with spies and terrorists and those listed threats that you
mentioned that are cited not only in the definition of foreign
intelligence, but also in the----
Senator DeWine. Which the law says you can cooperate with.
Mr. Kris. Right. When you are talking about those threats,
I say that FISA does not discriminate among law enforcement
methods and other methods of protecting against them. So it
doesn't matter for purposes of FISA whether the goal is to
protect against espionage by prosecuting Robert Hanssen or
whether the goal is to protect against espionage by flipping
him and turning him into a triple agent and running him back
against his handlers. That difference is not a difference that
has traction in FISA. That is the Government's position.
Senator DeWine. But you would qualify that, I guess, by
what you said a moment ago that if you are proceeding under
that, you still have to qualify under both. Is that right?
Mr. Kris. Under--I am sorry--both what?
Senator DeWine. Title III and FISA.
Mr. Kris. No. If you file a FISA application, you need only
satisfy FISA. You don't need to worry about Title III, and vice
versa.
One other point I should make is it is easy to take these
``purpose'' provisions in isolation from the rest of the
statute. I think it is important to point out one very key
difference between Title III and FISA which does make a
difference about their availability apart from the law
enforcement purpose, and that is who can be a target.
Title III can basically apply to any felon in the case of
electronic communications and to anybody who commits a long
list of predicate felonies set forth in Section 2516 for wire
and oral communications. It doesn't say anything about who the
target is, other than that it be somebody who is committing
these list of crimes.
FISA, by contrast, is confined to persons who qualify as
agents of foreign powers. So if there is an investigation of
Bonnie and Clyde for bank robbery, or even John Gotti, that is
not a FISA--you can't do that under FISA.
Senator DeWine. My time is up, but let me just close, with
the chairman's permission. In the Attorney General's
guidelines, the term ``direct'' is not used, and so I would
like to understand whether Justice intended to have prosecutors
direct FISA investigations.
Mr. Kris. Well, I would say that the term ``direction and
control'' is not in our procedures, nor is it anywhere to be
found in FISA. Direction and control--I mean, I don't even know
exactly what that is. If it means advice-giving, I think there
is a lot of advice-giving.
If, however, direction and control were exercised by
prosecutors, if they started bossing around the intelligence
agents to the point that there was no significant foreign
intelligence purpose for the surveillance, then, of course, we
would be over the line. There must be a significant foreign
intelligence purpose for the surveillance.
I think direction and control is just a proxy that has no
textual anchor in FISA, and it is a bad proxy. The test that
matters always is, is there a significant foreign intelligence
purpose for this surveillance. In some cases, there will be
direction and control and there still will be a significant
foreign intelligence purpose. In others, there wouldn't be. It
would depend on the facts, but I think we need to focus on what
the statute actually says and not some formula that was created
as a proxy. And it appears in the 1995 guidelines--I don't mean
to cast aspersions on others, but I don't think it is rooted in
the text of the statute. So I don't think it ought to be used
instead of the actual text of the statute.
Senator DeWine. Thank you. Thank you, Mr. Chairman.
Chairman Leahy. Thank you. Well, I thank you gentlemen for
this.
Mr. Bass, you know, I couldn't help but think when Mr. Kris
was answering that that your eyebrow went up a bit.
Mr. Bass. It did.
Chairman Leahy. Was I reading that correctly?
Mr. Bass. You did. Let me put a specific hypothetical to
the Committee and to Mr. Kris that I think highlights the
concern at least that I have.
If we had in the beginning been presented with an FBI agent
from the Southern District of New York who came in and said we
have uncovered evidence of securities fraud being engaged in by
this U.S. citizen who is an employee of Deutschebank and we
want to do a FISA surveillance, it would not have taken us two
minutes to say go down to the Criminal Division, don't come to
us, despite the fact that I think legally we could have worked
that surveillance into the text of FISA.
But the critical difference would have been that in that
sort of case, there was absolutely no intention in anybody's
mind of using it as part of a national security policy concern.
It would not have gone to the NSC, it would not have gone to
State, it would not have gone to the White House. It would have
remained a purely domestic law enforcement matter.
I haven't heard the Department of Justice publicly confront
that sort of hypothetical and tell us what they think the
PATRIOT Act did to that calculus. I hear some overtones that
say, well, we think if we could squeeze it under the language
of the Act and make that a matter of statutorily defined
foreign intelligence, we could do that surveillance even if we
had no intention from day one of ever doing anything except to
conduct a criminal investigation.
If that is their view, I think they are dead wrong with
respect to congressional intent, to the extent I can divine
some intent from the PATRIOT Act, and I think they are dead
wrong as a matter of public policy. But that is the issue for
me that we are still waltzing around.
Senator DeWine. Mr. Chairman, just one last comment. The
chairman has been very indulgent.
Chairman Leahy. Always.
Senator DeWine. I know. I appreciate it, Mr. Chairman.
We are going to have this debate, and I am glad we are
having this debate. I think it is very proper and I think a lot
of good points have been made, but it seems to me that the
bottom line is going to come down to a common-sense approach,
however we craft it, and that is the question why are we after
this guy, why do we want him?
It seems to me that is what Mr. Bass was saying, and I
think it was frankly what Mr. Kris was saying. The public would
pretty much understand that. Why do we really want this guy? Is
it a national security issue or is it because he is a no-good
bum and he is violating the law and we have to go get him? It
seems to me that is what it is going to boil down to.
Chairman Leahy. Yes, but we should never forget the history
of how this all got put into place.
Senator DeWine. Well, we are not going to forget that.
Chairman Leahy. No. I mean, in a society like ours we do
have these checks and balances. The Senator from Ohio is a
former prosecutor. We both used to hear people say, boy, we
have got to get rid of all these technicalities so we can get
at the criminals. We tended to be able to work pretty well with
the technicalities, from Miranda to search and seizure, because
we knew it did give a check and balance.
I don't want to go back to the days in the past when we
started going into these investigations because we didn't like
somebody's political views or religious views, because that is
a sword that can cut too many ways.
Somebody had answered about the Woods Procedures. We got
those declassified and released at our June 6 hearing. I
believe it was you, Mr. Kris, who mentioned it. I am glad they
are working to increase the accuracy of affidavits given to the
FISA Court.
I think we are going to have to have a lot more hearings on
this. I would urge the Department of Justice to listen--this is
not a partisan call to the concerns being expressed by both
Republicans and Democrats of both the House and Senate
Judiciary Committees.
Obviously, on this Committee, and I have been on it for
nearly a quarter of a century, we try to work with whatever
administration there is and to try to get things cooperatively.
We also have subpoena power. Cooperation is always more
satisfactory to everybody. Subpoena power is always there.
Senator Thurmond has submitted a statement and it will be
included in the record.
[The prepared statement of Senator Thurmond appears as a
submission for the record.]
Chairman Leahy. We also have a FISC opinion, of May 17,
2002; a letter from myself, Senator Grassley, and Senator
Specter to the FISC; and a chart that we will include in the
record at this point.
Thank you, gentlemen, for taking the time.
[Whereupon, at 12:22 p.m., the Committee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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