[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

                              ----------                              

                    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

                              ----------                              


                      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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