    [Senate Hearing 107-1013]
    [From the U.S. Government Publishing Office]

                                                           S. Hrg. 107-1013

          S. 2586 AND S. 2659, AMENDMENTS TO THE FOREIGN INTELLIGENCE
                                SURVEILLANCE ACT

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

                                    HEARING

                                   Before the

                        SELECT COMMITTEE ON INTELLIGENCE

                                     OF THE

                              UNITED STATES SENATE

                          ONE HUNDRED SEVENTH CONGRESS

                                   __________

                                 SECOND SESSION

                                   __________

    HEARING ON S. 2586 AND S. 2659, AMENDMENTS TO THE FOREIGN INTELLIGENCE
                                SURVEILLANCE ACT

                                   __________

                                 JULY 31, 2002

    90-301              U.S. GOVERNMENT PRINTING OFFICE
                                WASHINGTON : 2003
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                        SELECT COMMITTEE ON INTELLIGENCE

                         BOB GRAHAM, Florida, Chairman
                   RICHARD C. SHELBY, Alabama, Vice Chairman
    CARL LEVIN, Michigan                 JON KYL, Arizona
    JOHN D. ROCKEFELLER, IV, West        JAMES M. INHOFE, Oklahoma
        Virginia                         ORRIN G. HATCH, Utah
    DIANNE FEINSTEIN, California         PAT ROBERTS, Kansas
    RON WYDEN, Oregon                    MIKE DeWINE, Ohio
    RICHARD J. DURBIN, Illinois          FRED THOMPSON, Tennessee
    EVAN BAYH, Indiana                   RICHARD G. LUGAR, Indiana
    JOHN EDWARDS, North Carolina
                  THOMAS A. DASCHLE, South Dakota, Ex Officio
                      TRENT LOTT, Mississippi, Ex Officio
                                     ------
                         Alfred Cumming, Staff Director
                      Bill Duhnke, Minority Staff Director
                        Kathleen P. McGhee, Chief Clerk

                                C O N T E N T S

                                                                       Page
    Hearing held in Washington, D.C., July 31, 2002
    Statement of:
        Baker, James A., Counsel for Intelligence Policy, Department
          of Justice.................................................    22
        Berman, Jerry, Executive Director, Center for Democracy and
          Technology.................................................    41
        Bowman, Marion E., Deputy General Counsel, Federal Bureau of
          Investigation..............................................    14
        Fishman, Charles S., Professor of Law, the Catholic
          University of America......................................    47
        Manget, Frederic F., Deputy General Counsel, Central
          Intelligence Agency........................................    28
        Schumer, The Hon. Charles E., United States Senator from the
          State of New York..........................................     7
        Shelby, The Hon. Richard C., United States Senator from the
          State of Alabama...........................................     4
    Supplemental Materials:
        Letter dated August 1, 2002 from Philip Heymann..............    59
        Letter dated July 30, 2002 from National Association of
          Police Organizations, Inc..................................    63

    HEARING ON S. 2586 AND S. 2659, AMENDMENTS TO THE FOREIGN INTELLIGENCE
                                SURVEILLANCE ACT

                                  ----------

                            WEDNESDAY, JULY 31, 2002

                                           U.S. Senate,
                              Select Committee on Intelligence,
                                                         Washington, DC
        The Committee met, pursuant to notice, at 2:35 p.m., in
    Room SDG-50, Dirksen Senate Office Building, the Honorable Bob
    Graham (chairman of the committee), presiding.
        Committee members present: Senators Graham, Feinstein, Kyl,
    and DeWine.
        Chairman Graham. I call the meeting to order.
        Today we will discuss two important legislative proposals
    to amend the Foreign Intelligence Surveillance Act of 1978. We
    will hear in a few moments from the Senators who have co-
    sponsored the bill, Senators Kyl and DeWine, who are members of
    our committee, and Senator Schumer, whom we are fortunate to
    have joining us today to discuss the bill which he has co-
    sponsored with Senator Kyl.
        I note that some of the questions the Senators may ask the
    witnesses might require the witnesses to discuss classified
    information. We are prepared, if necessary, to have a closed
    session in Hart-219 at the conclusion of the open hearing,
    should the line of questioning require.
        The Foreign Intelligence Surveillance Act, or FISA,
    provides a statutory framework by which the United States
    government can secure court orders permitting an electronic
    surveillance or a physical search of a person inside the United
    States for purposes of collecting foreign intelligence. Last
    year, the USA Patriot Act made several changes to FISA to make
    it more efficient and effective as a tool in the fight against
    terrorism.
        These changes included: permitting an order to issue on a
    showing by the government that the collection of foreign
    intelligence is a significant purpose of the surveillance or
    search--the previous law had required foreign intelligence
    collection to be the primary purpose; second, permitting roving
    wiretaps under FISA as they have been available in criminal
    surveillance context--this change was designed to thwart the
    ability of a target to evade surveillance by changing hotel
    rooms or discarding a cellular phone; and finally, extending
    the duration of FISA orders against targets who are not U.S.
    persons.
        The two bills that we are here to discuss today will
    provide additional changes to FISA for the purpose of reducing
    both the nature and scope of the showing the government must
    make to obtain a surveillance order against suspected
    terrorists inside the United States who are neither citizens
    nor legal resident aliens. As we did with the changes made in
    FISA last year, the Congress must examine revisions of this
    nature to assure that they strike the proper balance between
    enhancing our ability to fight terrorism while protecting our
    privacy and liberties. That is the purpose of the hearing
    today.
        S. 286 was introduced by Senators Schumer and Kyl to
    provide an additional modification to the FISA application
    process. Under current law the government has to show the court
    that the person suspected of engaging in international
    terrorism is a, quote, ``agent of a foreign power''--in other
    words, if the target is affiliated with a terrorist group which
    operates overseas. The Schumer-Kyl bill would eliminate the
    requirement of showing that nexus, but only for potential
    targets who are neither U.S. citizens or green card holders.
    Accordingly, under the Schumer-Kyl approach, the government
    would have to show that the target of the surveillance is,
    quote, ``engaged in international terrorism or activities in
    preparation therefore.''
        S. 2659, introduced by Senator DeWine, would change the
    level of proof that has to be made in a FISA application from
    the current probable cause to reasonable suspicion. Our
    witnesses today will explain the difference in the evidentiary
    standard required. As with the Schumer-Kyl provision, the
    DeWine amendment would retain the existing higher evidentiary
    standard of probable cause for U.S. citizens and legal
    permanent resident aliens. I understand that Senator DeWine has
    made some modifications to his language and will explain those
    today.
        After the Vice Chairman, who will join us shortly, has made
    his remarks, I will ask Senators Kyl, DeWine and Schumer to
    speak about their provisions. After the Senators have completed
    their comments, I will turn to the first panel, which is
    comprised of two witnesses from the Department of Justice and
    the CIA. These will be Mr. Jim Baker who is Chief of the Office
    of Intelligence Policy and Review at the Department of Justice,
    and Mr. Marion Spike Bowman, Deputy General Counsel of the FBI.
    Representing the Director of Central Intelligence is Mr. Fred
    Manget, Deputy General Counsel of the CIA.
        The second panel will provide the perspective of experts
    from outside the United States government--Mr. Jerry Berman,
    the Executive Director of the Center for Democracy and
    Technology, and Professor Clifford Fishman, Professor of Law at
    the Catholic University Law School.
        Senator Shelby has indicated that he will be slightly
    detained in his arrival. Unless there are other opening
    statements from Members, I would suggest we turn to Senator
    Schumer and then Senator Kyl. After the completion of their
    comments on the legislation they have introduced, then Senator
    DeWine to comment on his legislation.
        Senator Schumer.
        [The prepared statements of Vice Chairman Shelby and
    Senator Schumer follow:]

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     STATEMENT OF THE HONORABLE CHARLES E. SCHUMER, UNITED STATES
                   SENATOR FROM THE STATE OF NEW YORK

        Senator Schumer. Thank you, Mr. Chairman. And before I
    begin, I just want to thank you and the entire Committee. Your
    Committee is so important to all of us and I think I don't
    speak only for myself but for the vast majority of the Senate.
    You, Mr. Chairman, have done an outstanding job in leading this
    Committee, as has the membership of the Committee. And I think
    we and the American people are thankful for that.
        Chairman Graham. Thank you very much.
        Senator Schumer. Now, to address the legislation. I'll be
    brief, and I would ask unanimous consent that my entire
    statement be placed in the record.
        Chairman Graham. Without objection, it is so ordered.
        Senator Schumer. Mr. Chairman, as we undergo a review of
    our intelligence failures leading up to September 11th, we
    should not, must not, and will not forget we're at war and that
    we have enemies who are intent on doing us harm. We have to
    remain ever vigilant in our efforts to protect America from
    future attacks.
        That means acting quickly, not just to ensure that the
    military has the means to fight the war on terrorism, but also
    to plug the holes in homeland security.
        We've learned from the disclosures regarding Zacarias
    Moussaoui, the so-called 20th hijacker, that even though the
    FBI had abundant reason to be suspicious of him before 9/11, it
    didn't act. It didn't seek a warrant to dig up the evidence
    that may--may--have been the thread which, if pulled, would
    have unraveled the terrorists' plans. And one reason the FBI
    didn't seek the warrant is that the bar for getting those
    warrants is simply set too high.
        That's why Senator Kyl and I introduced the legislation to
    amend the FISA Act. And I want to thank Senator Kyl for his
    leadership on this and so many other issues. In fact, a couple
    of the changes to FISA that you mentioned that were done in the
    Patriot Act were Kyl-Schumer endeavors. We've worked together
    on many law enforcement issues with at least some measure of
    success, and I thank him for his partnership on this one and on
    so many others.
        Now, Senator Kyl's and my goal, quite simply, is to make it
    easier for law enforcement to get warrants against non-U.S.
    citizens who are preparing to commit acts of terrorism. Right
    now the government is required to show three things before it
    can get a warrant for national security surveillance.
        First, it must show that the target of the surveillance is
    engaging in, or preparing to engage in, international
    terrorism. We keep that requirement in place. Second, it must
    show that a significant purpose of the surveillance is foreign
    intelligence-gathering. As you mentioned that was changed a bit
    by the Patriot Act, as it should have been. We don't change it
    any further. That one is working just fine.
        But, third, it must show that the target is an agent of a
    foreign power like Iraq, or a foreign terrorist group like
    Hamas or al-Qa'ida. And that's the hurdle we're removing.
        If that last requirement hadn't been in place, there would
    have been no question within the FBI about whether it could
    have gotten a warrant to do electronic surveillance on
    Moussaoui. It could have searched his computer files and
    perhaps--perhaps is underlined--come up with information needed
    to foil the hijackers' plans. And that may--underline may--have
    been enough to force someone to put two and two together to add
    the Moussaoui information with the Phoenix memo and realize
    that something truly horrible was afoot.
        I believe the Vice President, the FBI Director, and the
    Secretary of Defense when they say other attacks are planned.
    Right now there may well be terrorists plotting on American
    soil. We may have all kinds of reasons to believe that specific
    individuals in our communities are preparing to commit acts of
    terrorism, but we can't do the surveillance we need to do
    because we can't tie them to a foreign power.
        The simple fact is that in a world where the gravest
    threats to our freedom can come from a single person, or small
    group of people, our ability to tie a terrorism suspect to a
    foreign power cannot and should not be allowed to determine
    whether we can do surveillance. There may be known wolves out
    there acting without the support of Iraq or Hamas. There may be
    terrorists who we just can't link to a foreign power, and that
    shouldn't matter. If they are meeting the first two standards,
    if it's possible that they're about to engage in acts of
    terrorism, it shouldn't matter whether we can link them or not.
        In some cases they might not be linked, in some cases it
    may be a new group that we don't know of, in some cases they
    may be linked to the group but we can't prove it. But we don't
    believe that that should really matter. If you're not an
    American citizen and you don't have a green card, and we have
    reason to believe that you're plotting terrorism, the FBI
    should be able to do surveillance.
        It's important to note that if our bill becomes law it will
    immeasurably aid law enforcement without exposing American
    citizens and permanent legal resident aliens to the slightest
    additional surveillance. This law will only affect non-citizens
    and non-green card holders. And the language we're proposing is
    the same language the Administration sent up here during the
    debate over the Intelligence Authorization Bill. Attorney
    General Ashcroft has given his stamp of approval. And I look
    forward to working with Senator Kyl and perhaps Senator DeWine,
    if we end up collaborating a little further--Senator Kyl
    mentioned to me in the subway yesterday that we might be--to
    help this bill become law.
        I just want to reiterate one point, Mr. Chairman. We're
    still at war, and we're still at risk. We live in funny times
    where we are at risk but our lifestyle doesn't change a jot.
    And sometimes we forget the risk that we all face. So we must
    not only take a critical look at our intelligence failures, but
    we have to take a constructive approach immediately towards
    making this a safer America.
        And some of the proposals for expanding powers that I've
    heard floated give me some reason to pause. They may go too
    far. But in my judgment at least, Mr. Chairman, this one's a
    no-brainer. This is a fair, reasonable and smart fix to a
    serious problem. And I want to thank you, Vice Chairman Shelby,
    as well as my partner in this endeavor, Senator Kyl, for all
    their help.
        Chairman Graham. Thank you very much, Senator. Senator Kyl.
        Senator Kyl. Thank you, Mr. Chairman.
        I am aware that Senator Schumer may have to leave here
    fairly quickly, but before he does I want to say thank you to
    him. We have worked together on a variety of issues that have
    helped us to deal with criminal elements and most recently with
    terrorists. And what we find as we gain experience with the
    terrorists and work through our legal process is that, here and
    there, there are some deficiencies. Things change.
    Circumstances change.
        And last century's FISA--it seems odd now to refer to a law
    in that context--FISA and other laws were developed in the
    circumstances in which there were known identifiable enemies.
    And it was fairly easy, therefore, to conceive of a statute in
    which you would tie the suspect to a foreign power, a specific
    country, or a terrorist organization by name.
        What we've learned, especially in this Committee, is that
    these terrorists, as Senator Schumer said, are very shadowy
    figures. They don't have a membership card in a terrorist
    organization and go to their meeting every Friday night. They
    are very shadowy folks who move in and out of the United
    States, who may or may not have affiliation with different
    terrorist groups who change those affiliations, or who may
    simply be working with people who would be considered members
    of those terrorist organizations. And as Senator Schumer said,
    there are even new organizations beginning.
        And so what seemed like a reasonable requirement in the
    past that you would tie one of these individuals to a specific
    foreign government--well, very few terrorists now work for a
    specific foreign government--or to an international terrorist
    group when they are so shadowy now and they are so
    compartmentalized in the way that they work and deal even with
    members of their own group, that we find that those kinds of
    requirements are now outmoded, don't serve the interests of
    justice, don't permit us to protect American people. And we can
    change the requirement very slightly and remain very easily
    within constitutional limits.
        And we have assurances from the Department of Justice,
    which we'll get later, to this effect, and which would--as both
    the FBI Director and, I would also note, Agent Colleen Rowley
    from Minnesota, testified before the Judiciary Committee--would
    be a very helpful way to amend the statute so that we could
    deal with this problem of the individual who we have reason to
    believe, have probable cause to believe, is engaged in some
    kind of international terrorist activity or planning, but who
    we can't at this moment connect up to a specific country or
    terrorist group.
        Maybe it's a new group, maybe they don't really have a
    connection, and they are acting or that individual is acting
    literally by himself or herself. Or maybe what we'll find is
    that there is a connection but we won't know it until we
    actually secure the warrant to do the search that leads us to
    that kind of evidence.
        So this is what we're trying to achieve here. It's very
    straightforward, very narrow. And I would hope that we could
    act on it quickly.
        We could work with our friends in the Judiciary Committee,
    of which both Senator Schumer and I are members, and we could
    get it in--and Senator DeWine, I might add--and that we can
    move quickly to get the support of our colleagues and put this
    important tool into the hands of law enforcement and
    intelligence agencies here in this country so that we can add
    one more element to the protection of the American people.
        Thank you, Mr. Chairman.
        Chairman Graham. Thank you, Senator.
        Senator DeWine.
        Senator Schumer. Mr. Chairman, might I excuse myself, if
    there are no questions?
        Chairman Graham. Thank you very much, Senator.
        Senator Schumer. I will apologize to Senator DeWine. When
    they moved the schedule back a little bit, it bumped into
    something. Thank you.
        Chairman Graham. Senator Schumer, thank you very much for
    your and Senator Kyl's efforts that brought us this legislation
    to consider this afternoon. And we will try to treat your young
    child with nurturing care.
        Senator Schumer. I've met your triplet young grandchildren.
    If you treat this legislation one-hundredth as well, we'll do
    just fine.
        Chairman Graham. Thank you. But you only have one piece of
    legislation here.
        Senator DeWine.
        Senator DeWine. Mr. Chairman, thank you very much. Let me
    first congratulate Senator Kyl, Senator Schumer for the
    legislation that they have introduced. As they indicated, this
    is really legislation that brings the law up to date to deal
    with the realities of the danger facing the United States, and
    the current law really does not do that. And so I congratulate
    them and I look forward to working with them on this bill.
        Let me take a moment, Mr. Chairman, if I could, to discuss
    a separate bill that I have introduced which is S. 2659. This
    is a bill to modify the standard of proof required for a FISA
    order for non-U.S. persons. As we all know, the FISA statute
    has come under increasing scrutiny in the months since
    September 11 as citizens and the general public have struggled
    to make sense out of the terrorist attacks. My FISA reform bill
    would offer us a chance to improve our intelligence gathering
    and a chance to improve our ability to prevent future attacks.
    It would make it more likely that we could use FISA
    surveillance more often to gather the data that we need to
    fight terrorism.
        And it would address one of the concerns voiced about the
    FISA problem, and that is that its use has sometimes been
    encumbered by an overly cautious culture that had grown over
    the years and that officials responsible for implementing it
    have been, in certain circumstances, too slow to request the
    FISA order from the court.
        We have talked about the Moussaoui case. Quite frankly, no
    one knows at this point whether or not the change in the law
    would have, as I have indicated, would have had any impact on
    Moussaoui, if that case ultimately would have been moved up the
    chain as it should have been, and all of the facts are not
    publicly known. But it is that type of case at least that it
    would be helpful, I believe, if we saw this change in the law.
        In order to enhance the usefulness of FISA and attempt to
    protect ourselves as much as possible from future attacks, we
    must take steps to limit the possibility of such future FISA
    disputes. S. 2659 would do just that. Specifically, this bill
    would change the burden of proof which must be met by the
    government from probable cause to reasonable suspicion, but
    only in very specific and limited circumstances. That change
    would only apply for terrorism investigations of non-U.S.
    persons. This change would be effective for both electronic
    surveillance and physical searches.
        From an operational point of view, this would aid in
    obtaining FISA orders earlier in the investigation than might
    be possible otherwise. And, in certain circumstances, it may
    allow the government to obtain orders they might not get at
    all. By lowering the standard we hope to avoid situations such
    as we found in Moussaoui and encourage the OIPR to request FISA
    orders earlier in the process. The Supreme Court has held that
    the underlying cause requirement to authorize searches is
    dictated by the balance of governmental and privacy interests
    and the governmental interest in protecting national security
    and preventing terrorist attacks. That is obviously compelling.
    It's obvious that this is a compelling need to protect United
    States citizens from this type of attack.
        Further, there is case law indicating that the privacy
    expectation and interest of a non-U.S. person is, in fact, less
    than of a U.S. person. Lowering the standard will, of course,
    not remove all disputes. It won't make every case an easy case.
    No matter what the standard, officials will have good faith
    disputes over when it is reached. There will always be a case
    that lands right on the line. However, this legislation
    decision, like most, requires a careful balancing of the gains
    from the new standard with the possible problems.
        While the new standard will no doubt result in speedier and
    increased surveillance of potential dangerous non-U.S. persons,
    we must be cautious not to endorse an overly permissive use of
    the surveillance powers of FISA. That's why we have been very
    careful in drafting this bill. The reasonable suspicion
    standard is, Mr. Chairman, a widely recognized legal threshold
    with a great deal of history and case law behind it and one
    that makes sense under the current circumstances. I believe
    that we have an opportunity to make a change in the law that
    will improve our odds of preventing future terrorist attacks. I
    hope the members of this Committee will join me in supporting
    it.
        Thank you very much.
        Chairman Graham. Thank you, Senator.
        We can now turn to our first panel with representatives of
    the Department of Justice and the CIA--Mr. Jim Baker, Chief of
    the Office of Intelligence Policy and Review of the Department
    of Justice; Mr. Marion Bowman, Deputy General Counsel of the
    FBI. Representing the Director of CIA is Mr. Fred Manget,
    Deputy General Counsel.
        Gentlemen, do you have opening statements? Mr. Bowman.
        [The prepared statement of Mr. Bowman follows:]

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        STATEMENT OF MARION E. ``SPIKE'' BOWMAN, DEPUTY GENERAL
                COUNSEL, FEDERAL BUREAU OF INVESTIGATION

        Mr. Bowman. I'm from the FBI, sir. I have a prepared
    statement which has been furnished to your staff. So in the
    interest of economy of time, I'd like to pick up on some brief
    comments that explain some of the operational problems that the
    FBI sees in terrorism investigations these days.
        Chairman Graham. Mr. Bowman, could you pull the
    microphone--yes, thank you.
        Mr. Bowman. I'd like to thank Senator Kyl because he's said
    a number of the things that I was planning to say. So I'll pick
    up briefly from some of the things where Senator Kyl left off.
    Senator Kyl is quite correct in saying that things have changed
    over the last couple of decades and the phenomenon that we see
    today in terrorism is not the same phenomenon that we saw 20-
    some years ago. It's absolutely correct to say that we focused
    FISA and our investigations around individuals who belong to
    groups, identifiable groups. Usually they were larger ones that
    we could name.
        Through the years we started seeing smaller and smaller
    groups of individuals. But about three or four years ago we
    began to increasingly notice that we were focused on
    individuals who were doing suspicious things, who looked to us
    as if they had the makings of terrorists but who did not seem
    to have any particular allegiance to a group. And we sort of
    looked at this and traced it back and with your permission,
    Senator, I'd like to explain where we think some of this is
    coming from.
        We believe that a lot of the problem that we see today
    stems from the Afghan-Soviet war when anywhere from 10,000 to
    25,000 Muslims from 43 different countries went to Afghanistan
    to fight against a vastly superior--technologically superior--
    force there. And the training that they received there was
    primarily guerilla training, terrorist type tactics. They also
    received a lot of religious instruction and terrorist training
    camps that we're familiar with today were begun at that time.
        The war, of course, did end and when those thousands of
    Muslims returned to their home countries they went back with a
    lot of training they hadn't had before and with a lot of
    understanding of a Muslim brotherhood--a community that went
    beyond the idea of nationalism--that they took back with them.
    They also took back with them some of the successes that they
    had in Afghanistan in fighting a vastly superior force and
    those successes came about through guerilla and terrorist
    tactics. It wasn't too hard to convince or to explain how
    successful those tactics were to a number of other dissatisfied
    persons in the countries they went back to, people who began to
    believe that that kind of tactic would be a better way for them
    to develop a better life, to avoid the Western sentiments and
    so forth that they thought were invading their countries.
        If I fast forward now to the year 2002 or actually back
    around 1999 or 2000, we began to see this spreading out at the
    edges and we began to see it spreading into the United States
    as well, to the point that what we had was very much a--I
    hesitate to say a ``movement''--probably a better description
    is a ``network'' of individuals who had learned to work
    together, who had learned terrorist tactics together, who had
    traveled together, some were educated together, and they began
    to spread their ideas throughout an extremist community.
        That extremist community eventually made its way into the
    United States and whereas not too many years ago virtually all
    of the terrorists that we looked at were affiliated with known
    organizations or smaller organizations that we could identify,
    that has begun to change, to the point that today we see
    essentially three categories of individual that we look at as a
    terrorist suspect.
        The first and still probably the largest is the individual
    who is associated with some kind of group that we can identify,
    that we can see. The second is the individual who seems to have
    connections to a number of groups that we understand, but who
    owes allegiance to none of them that we can see. And the third
    is the individual who does not seem to have any allegiance to
    anyone or at least none that we can spot.
        As to the first category of individual, FISA works very
    well. As to the second category, we have a great deal of
    trouble trying to understand if the person actually is
    affiliated with one of the groups that he seems to have contact
    with, or whether he is just one of the persons who is part of a
    network of dissatisfied extremists. And as to the third
    individual, we have no possibility at the moment under the
    current FISA statute of effectively targeting him because we
    don't have any kind of affiliation for a foreign power.
        That's the situation that the FBI sees today in
    investigating terrorists. I will leave the rest of my comments
    for you in the record, you have that now, and I would be happy
    to take any questions that anybody has. But I think first you
    probably want to hear from the Department of Justice.
        Chairman Graham. Mr. Baker.
        [The prepared statement of Mr. Baker follows:]

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     STATEMENT OF JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY,
                         DEPARTMENT OF JUSTICE

        Mr. Baker. Thank you, Senator. I also have submitted a
    written statement for the record and I would just like to
    briefly summarize a few of the points that are set forth in the
    written statement that I have submitted.
        I am the counsel for intelligence policy at the Department
    of Justice and head of the Office of Intelligence Policy and
    Review, which is the office that prepares and presents to the
    Foreign Intelligence Surveillance Court, the FISA Court, all
    the applications under the FISA Act for electronic surveillance
    and physical search of foreign powers and their agents. We are
    operating under a statute and in a system created and modified
    by Congress and we execute the laws as they have been set forth
    by Congress.
        Let me just make a comment generally with respect to the
    changes that Congress made in the Patriot Act and the
    Intelligence Authorization Act for 2002. The administration has
    made full and effective use, I believe, of those changes and
    the changes set forth in those statutes have affected every
    application that has gone to the FISA Court since the Act
    became effective.
        In my view, the changes have allowed us to move more
    quickly and more effectively and to also be more focused in our
    approach in dealing with the kinds of threats that Mr. Bowman
    made reference to. So we at the Department are grateful for the
    changes that Congress made in the statute, because I believe
    they've been important and have been employed effectively.
        I'd now like to turn briefly to the two proposals that are
    before the Committee, S. 2586 and S. 2659. Those have been
    summarized already by others and I won't seek to repeat that,
    Senator. My statement makes more extensive comments on that,
    but let me just make a few comments, at least starting with
    respect to S. 2586, the Kyl-Schumer bill that amends the
    definition of a foreign power to include foreign individuals,
    non-U.S. persons who are engaged in international terrorism or
    activities in preparation therefor.
        In our view, this a change that is warranted by the facts
    that Mr. Bowman set forth and it is a relatively modest change
    that affects who would be subject to electronic surveillance
    under FISA, the Patroit Act and the Intelligence Authorization
    Act, affect how we go about obtaining FISA orders and the
    procedures for that. And this is really the first change in who
    is covered under FISA.
        As Mr. Bowman discussed and I think is fairly self-evident
    in these times, a single terrorist can present a huge threat to
    the United States' national security and can do things such as
    attack an airplane with a bomb or put anthrax in the mail, both
    of which represent great threats to the national security of
    the United States.
        The Department has reviewed the proposed bill and has
    concluded that it is constitutional, that the extension of FISA
    to include individual non-U.S. person targets is within the
    Constitution and is a relatively modest extension of the
    already existing provisions of the Act which could cover and
    were initially intended to cover groups as small as two or
    three people, so this is an extension from two or three people
    to one person and for the reasons Mr. Bowman set forth we think
    it is a legitimate and important and useful reform of FISA.
        With respect to the provisions in S. 2659, this is the
    provision that would change the standard with respect to non-
    U.S. persons from probable cause to reasonable suspicion and
    the Department has been studying Senator DeWine's proposal. But
    because the proposed change raises both significant legal and
    practical issues, the Administration is still in the process of
    evaluating the legislation.
        In the meantime, I'd like to thank the Committee for the
    opportunity to be here today and to do whatever I can to
    support your efforts in the nation's war against terrorism. And
    I would be pleased to answer any questions to the extent I can
    in an open session or, if necessary, in a closed session. Thank
    you, Senator.
        Chairman Graham. Thank you very much, Mr. Baker.
        Mr. Manget.
        [The prepared statement of Mr. Manget follows:]

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       STATEMENT OF FREDERIC F. MANGET, DEPUTY GENERAL COUNSEL,
                      CENTRAL INTELLIGENCE AGENCY

        Mr. Manget. Thank you, Mr. Chairman.
        For over 20 years, the Foreign Intelligence Surveillance
    Act has defined how the intelligence community conducts
    electronic surveillance and, for nearly a decade, physical
    searches that target spies, terrorists and other individuals of
    foreign intelligence interest operating within the United
    States. Since FISA enactment, however, these targets and their
    means of communication have changed. Intelligence community
    collection efforts are increasingly challenged by the shifting
    nature of intelligence targets. Sensible amendments to FISA
    will forward intelligence community efforts to collect crucial
    foreign intelligence against these nimble targets.
        Mr. Chairman, I would like to thank the Committee for a
    swift legislative action in the wake of the terrorist attacks
    of September 11th. Legislation introduced by the chairman,
    considered by this Committee and ultimately included in the USA
    Patriot Act, removes artificial statutory barriers to law
    enforcement information-sharing within the intelligence
    community and clarifies the authorities of the DCI with respect
    to FISA. The Patriot Act enhanced the ability of the
    intelligence community to coordinate with law enforcement and,
    consistent with the protection of civil liberties of U.S.
    persons, improved the ability to collect foreign intelligence
    under FISA.
        I appreciate the opportunity to represent the DCI as this
    Committee considers two pending bills that also propose
    sensible amendments to FISA. Both these bills would increase
    the ability of the U.S. government to collect information
    concerning foreign nationals of foreign intelligence interests
    within the United States. Through access to the intelligence
    collected under these proposed authorities, the intelligence
    community will be better able to inform the decisions of
    policymakers and warfighters. The DCI generally supports
    statutory changes that, consistent with the Constitution, would
    enhance our ability to use FISA as a collection tool and to
    prevent potential terrorist attacks.
        We have reviewed and support the changes proposed in
    S.2586. We understand the Administration is still studying
    S.2659 and is not prepared to take a final position on that
    bill. In addition, we would defer to our colleagues in the
    Department of Justice about the final constitutional analysis
    but, in general, we agree with the current review. Terrorists
    who would harm this nation should not be able to conduct their
    activities under the protective cloak of unnecessarily
    restrictive FISA requirements that have not kept pace with the
    change in the nature of our enemies.
        Balancing the civil liberties of U.S. persons against the
    President's constitutional authority to protect national
    security was the overriding concern of Congress when FISA was
    passed. These amendments would refine this delicate balance to
    better account for current operational realities without
    damaging important privacy equities of Americans. It's my
    understanding that the Department of Justice believes the
    amendment proposed by S.2586 conforms to constitutional
    principles and we certainly agree with that.
        Thank you again for the opportunity to testify regarding
    these proposals and we look forward to working with the
    Administration and the Committee and the Congress to discuss
    these and other needed improvements to intelligence
    capabilities, carefully balancing the interests of national
    security with the privacy rights guaranteed by the
    Constitution.
        Thank you, Mr. Chairman. I'll be glad to discuss any
    further questions or information.
        Chairman Graham. Thank you very much. I have a few
    questions. We will follow the five-minute question round using
    the first to question being the first to arrive and so that
    will be Senator Kyl, Senator DeWine and Senator Feinstein, in
    that order.
        With the foreign power requirement eliminated from the FISA
    legislation and with the two remaining requirements being
    engaged in international terrorism or preparing to engage in
    international terrorism, could a standard criminal wiretap be
    used to collect information against these persons without the
    use of FISA? I would ask that question of Mr. Baker and Mr.
    Bowman.
        Mr. Bowman. Well, what you are looking for, what you need
    as a predicate for FISA and for a Title III are two different
    things. In the Title III, you have to have a criminal act or a
    preparation for a criminal act.
        Chairman Graham. Is not international terrorism a criminal
    act?
        Mr. Bowman. Yes, sir. It would be a criminal act if it's
    carried out. So if you have enough information to show that you
    have an individual who is preparing to engage in a criminal
    act, then a criminal wiretap would most likely be available to
    you.
        Chairman Graham. What are the implications of proceeding
    against the same person on the same set of facts through FISA
    as opposed to Article III?
        Mr. Bowman. Well, that's a very interesting question,
    Senator. The purpose for Title III is to get a prosecution. The
    purpose for FISA is to gain information. And the implications
    are historically, from a case law perspective, are that you
    have to be careful that you are not using an intelligence
    technique in order to gain criminal information for
    prosecution. It's not necessarily the case, in my opinion--and
    this is my opinion, sir--that you really have to separate them
    because your purposes may be entirely different. You may have a
    purpose of foreign intelligence and a purpose of criminal law
    in looking at any particular individual or circumstance, and
    they can both stand, I think, on their own merits.
        Chairman Graham. Any other comments on that question?
        Mr. Baker. Senator, I guess would say in my experience when
    you're trying to prevent terrorist acts, that is really what
    FISA was intended to do and it was written with that in mind.
    The standards that are set forth in there and the practical
    realities of how you operate a FISA are better suited, in my
    view, to being able to understand the nature of a particular
    threat and then to be able to try to prevent it. FISA, in my
    experience, in practice is a highly flexible statute and has
    proven effective in this area. And so to my mind it is a better
    tool to use in these cases, it seems to me.
        Chairman Graham. Mr. Manget, I'd like to ask a general
    question which affects the context in which the two bills we're
    considering today will be evaluated. In the USA Patriot Act,
    section 901 strengthened the role of the DCI--not in his
    capacity as Director of the Central Intelligence Agency but,
    rather, in his community-wide responsibilities--giving him some
    additional authority in terms of prioritizing the uses of FISA
    and then disseminating the information which was gathered from
    a FISA wiretap. Could you describe what progress has been made
    by the DCI in terms of implementing these provisions?
        Mr. Manget. Yes, Mr. Chairman. In fact, I believe we have a
    classified staff briefing set up for tomorrow to go into
    further detail. But I can certainly say that the vigor with
    which the FISA tool is being used and coordinated most
    effectively, and most especially with the FBI, is
    unprecedented, higher than anyone can remember, driven
    certainly by the events of September 11th, but also by the new
    authorities.
        The Director has, in effect, ordered the coordination
    through the centers which are organized at the agency with a
    DCI authority to bring in people from different parts of the
    agency and different parts of the community to, in effect,
    direct all resources and targeting decisions, and FISA is an
    important part of that.
        As you know, Mr. Chairman, we have extensive
    crossassignments of FBI special agents with agency officers in
    the two counterterrorist operations, and they communicate on a
    daily basis. We have received, I can say--and probably tomorrow
    you'll get the exact number--a great deal of disseminations
    already from the FBI from FISA operations. And certainly the
    consensus at the center, which is the action arm directed by
    the DCI to carry this out for terrorism purposes, they're very
    happy with the progress being made to coordinate FISA
    direction, collection and dissemination.
        Chairman Graham. Thank you.
        Senator Kyl.
        Senator Kyl. Thank you, Mr. Chairman. Just to follow up one
    more aspect of the question the Chairman asked, is it true that
    another reason or one of the main reasons to use FISA is the
    fact that you can protect classified information?
        Mr. Bowman. Yes sir.
        Senator Kyl. Much more easily than in a Title III
    situation?
        Mr. Bowman. Yes, sir. And a terrorism investigation
    historically leads to--it's fairly broad because normally it
    leads from one person to another, one organization to another.
    And so it's imperative that, first of all, what we are doing be
    kept confidential.
        Secondly, a lot of the information that we receive for this
    does come from other classified sources, so the ability to
    handle the classified aspects of information in FISA is
    absolutely critical to effective investigations of terrorism.
        Senator Kyl. And just to reiterate, it is still necessary--
    instead of showing that there is a crime or the planning of a
    crime that justifies going to the court to get a warrant here,
    you're telling the court that you are looking at a situation of
    international terrorism and that is what opens the door in
    effect to ask the court for a FISA warrant . Is that correct?
        Mr. Bowman. That's correct, sir.
        Senator Kyl. And let me--and this is another question for
    Mr. Bowman--there has been a criticism that changing this FISA
    standard will exacerbate the FBI's analysis problem by flooding
    an overloaded system with lower quality information. How do you
    respond to that criticism?
        Mr. Bowman. Well, sir, the fact of the matter is that we
    have, as everybody knows, struggled with an analytical problem
    because our investigations are more or less crisis driven. We
    are looking at individuals in the United States and our efforts
    have gone primarily into the investigative part of the Bureau
    rather than the analytical part. Director Mueller is changing
    that very rapidly. We are beefing up substantially our ability
    to analyze what we are getting. We're getting substantial help
    from the DCI on that, not only with personnel but with training
    and they're lending their expertise on to how to analyze it. I
    guess my response to that, sir, is that I can't change the past
    but I think what we're doing now is the right way for the
    future.
        Senator Kyl. Obviously my question was misunderstood or
    wasn't articulated accurately. What I was trying to say is, are
    we changing the law by this bill to an extent that it's going
    to all of a sudden open the floodgates to information flooding
    into the FBI, to the point that you're not going to be able to
    handle all of this new information----
        Mr. Bowman. My apologies.
        Senator Kyl [continuing]. Given the fact that there was
    deficiency in the analytical capability in the past?
        Mr. Bowman. My apologies for misunderstanding you, sir. No,
    I actually think the answer is no. At this point in time, we're
    talking about a discrete grouping of people. We're not looking
    at thousands of people out there. Right now I can't even tell
    you we're looking at hundreds that fit into the category. But
    certainly, whatever it is, it's not going to substantially
    overload the FBI.
        Senator Kyl. Okay. And a final question and I think, Mr.
    Baker, probably primarily directed to you, but all three of you
    certainly can respond. It's actually a two-part question. First
    of all, do you see any negative or any particular negative
    impact on civil liberties--and I don't limit it to American
    citizens, but also to non-Americans who are here in the United
    States--sufficient to justify a criticism of the bill that the
    benefits to intelligence interests are not sufficient to
    justify a negative impact on civil liberties? It's really two
    part: one, is there really a negative impact on civil
    liberties; and, second, on balance, is the change that we're
    making here warranted?
        Mr. Baker. As Mr. Bowman suggested, if we expect that there
    are cases out there that would fit within this new category,
    then you would invariably have surveillances of additional
    targets. So you would be, you know, connecting electronic
    surveillance and potentially physical search of those targets
    and that raises all the same kinds of civil liberties questions
    that FISA does to begin with.
        But nevertheless, you would have had--before you get to
    that point, you would have had a finding by a neutral and
    detached magistrate, and indeed in this case a sitting federal
    judge, district court judge, that all of the requirements of
    the statute are met and that there's probable cause to believe
    that this individual is engaged in international terrorism
    activities, or activities in preparation therefor. You also
    have certifications by the Director of the FBI that this is
    legitimate for an intelligence purpose and approval by the
    Attorney General that the application meets the requirements of
    the Act. So you would have more surveillances perhaps but they
    would be done in accordance with all the other provisions of
    FISA. And FISA, as you know, when it was enacted was designed
    to carefully balance national security versus individual
    liberties.
        Senator Kyl. And--I'm sorry.
        Mr. Baker. I'm sorry. I was going to say the effect is
    probably not that much greater than already exists. And on
    balance, given the kinds of threats that we face, it would seem
    to me that the balance tilts in favor of going forward with the
    provision.
        Senator Kyl. And since Senator Feinstein was not here for
    the statement that you made with respect to constitutionality
    of the Schumer-Kyl legislation, would you reiterate what you
    said for her benefit?
        Mr. Baker. Just very briefly and right to the point, the
    Department's looked at this and it's our determination that the
    statute is fully constitutional and the Administration supports
    it.
        Senator Kyl. Thank you.
        Chairman Graham. Thank you.
        Senator DeWine.
        Senator DeWine. Mr. Chairman, thank you very much.
        Gentlemen, I realize that the Administration is not yet
    prepared to take a position in regard to the constitutionality
    of the bill that I have introduced. But in that analysis, don't
    you start with the proposition that all presidents have in fact
    asserted that foreign intelligence searches do not actually
    require a warrant at all? Isn't that the underpinning basis of
    the law? All presidents have maintained that.
        Mr. Bowman. Yes, sir. That's accurate.
        Senator DeWine. And so when you analyze this issue, it
    seems to me, from the Administration's point of view, unless
    the Administration is going to change its mind on that
    position--and that's been a position held by Democrat and
    Republican administrations--a proper analysis of this, as you
    looked at the warrant requirement of the Fourth Amendment, that
    you would at least start with that, would you not?
        Mr. Bowman. We'd certainly start, I think, with the history
    of national security surveillance under the authority of the
    executive, yes, sir.
        Senator DeWine. Let me ask maybe a general question and
    then I can get into a specific question, because I think one of
    the things that this Committee needs to know and Congress needs
    to know is what practical effect the two bills would have on
    the activity that you gentlemen are engaged in every day for
    this country. Can you tell whether or not there have been cases
    that were close cases in regard to the probable cause
    threshold?
        Mr. Bowman. Yes, sir, there have been.
        Senator DeWine. I assume some come down on one side and
    some come down on the other.
        Mr. Bowman. Yes, sir. Under the current statute, some of
    them are simply too hard. We can't get there. Some of them we
    have been able with investigation to push it over. Again, it's
    been one of those things where we take it to the Department of
    Justice. An Article III judge looks at it and the ones we've
    managed to push over, an Article III judge has determined
    they're okay.
        Senator DeWine. And you'd also agree that reasonable
    suspicion is a standard that is a somewhat lower standard
    although it's a standard that has been defined by law. Do you
    agree with that?
        Mr. Bowman. Yes, sir.
        Senator DeWine. Let me give you a couple of hypotheticals,
    if I could and we'll see if you want to tackle these in regard
    to the Kyl-Schumer amendment and in regard to the DeWine
    amendment.
        Let me start with this one. A philosophy student from Japan
    comes to the United States and begins purchasing quantities of
    ammonium nitrate and fuel oil and he also belongs to an obscure
    religious cult not known to have been involved in terrorist
    activities before. I think it's pretty clear that Kyl's
    amendment would change how you approach it. Any comment about
    how our amendment would? Or maybe those are not enough facts,
    Mr. Baker, I don't know.
        Mr. Baker. I was going to say, Senator, I think I would be
    generally reluctant in an open session to discuss
    hypotheticals, just for concern of what it might reveal. So
    that would be my sort of gut reaction to dealing with
    hypotheticals in general, sir.
        Senator DeWine. You and I have had these discussions in
    closed sessions and we will continue that discussion.
        Thank you, Mr. Chairman.
        Senator Feinstein [presiding]. I think it's my turn next.
    I'm inclined to support the Kyl-Schumer bill but as I
    understand it, gentlemen, in some cases the government can show
    probable cause that an individual is in fact engaged in
    international terrorism or preparation for acts of terrorism.
    But the government may be unable to show that the individual is
    affiliated with a particular foreign power. And as I understand
    the bill, the need to show this is reduced. Now, the question
    is, this solution may well eliminate a fundamental
    justification for the original FISA legislation that the United
    States government as a sovereign state should be able to probe
    the secrets of nations, groups and organizations who are
    dangerous to its security.
        Can we accomplish the same end without impacting the
    philosophy behind FISA by building into the law the same
    presumption that we adopt in everyday life for ourselves--that
    individuals who are planning or engaged in acts of terrorism
    are almost certainly working with or on behalf of a group, an
    organization or a nation, no matter how small that group might
    be. If you have two or three, it is a group. That presumption
    is in accord with all the open source and classified
    intelligence I'm familiar with. What would your views be of
    such a compromise solution?
        Mr. Baker. One thing that leaps to mind, Senator, is I
    think I would be concerned that still the FBI might be faced
    with cases where all the evidence seems to indicate in fact
    that the person was not connected. We might have affirmative
    evidence indicating that the person was not connected to any
    group and was a true, quote/unquote, ``lone wolf.'' And even
    with the presumption in those cases--and they would probably
    few in number but they would still exist--we would still have
    the same problem and still perhaps be stymied from being able
    to go forward on those kinds of cases.
        Senator Feinstein. Let me put it a little differently.
    We're taking two steps here. One, we're eliminating the need to
    establish the link with a foreign government and, second, we're
    reducing the burden of proof for the warrant. I wonder, do you
    all believe that both of those are necessary, or that just the
    first might work?
        Mr. Baker. Well, the Administration, as I mentioned
    earlier, has determined that it supports the first bill, the
    Kyl-Schumer amendment to decouple or delink the requirement
    that the person be engaged in or be connected to an
    international terrorist group. But we are still evaluating the
    second provision in terms of lowering the standard with respect
    to a non-U.S. person. So for right now we are only prepared to
    support the first part.
        Senator Feinstein. Mr. Chairman, the question that I had
    was it might be well to do the first and hold up on the second
    and see how the first functions, and that is the first being
    the Kyl-Schumer bill, and wait before we lower the burden of
    proof for the warrant. I don't know if you have a view on that.
        But how soon will the Administration have a position on the
    second?
        Mr. Baker. I'm not sure, Senator. We're moving forward with
    it. We believe it requires a thorough analysis of all the legal
    and practical implications of the amendment. So I would hope it
    would be as soon as possible, Senator.
        Senator Feinstein. Thank you. Thank you, Mr. Chairman.
        Chairman Graham [presiding]. Senator Kyl.
        Senator Kyl. Mr. Chairman, since Senator Feinstein still
    has a green light, would it be appropriate for me to ask the
    witnesses a follow-up question to Senator Feinstein's question?
    I might have misunderstood. But Senator Feinstein may have
    implied in the question that even the Kyl-Schumer bill was
    moving away from the underlying philosophy of FISA of a
    connection to a foreign situation. You do have to have the
    foreign situation. It is the Foreign Intelligence Surveillance
    Act. Is it not true that we still retain--in fact, you have to
    have by probable cause the elements of non-U.S. or foreign
    persons, number one, and, two, international terrorism, even
    with the Kyl-Schumer legislation? So that the underlying
    philosophy of foreign intelligence is still maintained with our
    amendment; is that not correct?
        Mr. Baker. I think that's right, Senator. If you go back
    and look at some of the considerations that went into the
    enactment of FISA in the first place, trying to deal with
    foreign threats from outside the United States, where the
    ability of the government to investigate things that are
    happening outside are more difficult. The types of information
    that you want to obtain with a foreign intelligence
    surveillance are different from, say, law enforcement. You are
    going to be longer range in your scope to try and obtain
    information to really understand what's going on here and
    understand the nature of the threat, the focus on prevention,
    as I mentioned earlier, and the need to protect the sources and
    methods as you mentioned. All those still exist with respect to
    your bill and I think those were the same kinds of
    considerations that were in play when FISA was first enacted.
        Chairman Graham. Thank you. I'd like to ask just a couple
    of concluding questions. In reference to particularly Senator
    DeWine's bill, it's been my understanding that a very high
    percentage of the applications for FISA warrants are in fact
    granted by the FISA court. Is that correct, and can one of you
    provide me with what is the statistical level of approval of
    FISA applications by the court?
        Mr. Baker. Senator, the FISA court has approved all of the
    applications that the government has submitted to it. There was
    one exception for sort of a technical reason many years ago but
    they've all been approved.
        Chairman Graham. I don't want to nag about perfection, but
    one of the concerns is that whenever you are hitting a
    thousand, that may mean that you're only coming to bat when you
    have a relatively inept pitcher. And I'm concerned as to
    whether we're being aggressive enough under the current law in
    pushing for FISA applications--and the Moussaoui case may be a
    good example of that--where we might lose one occasionally but
    we are pushing what we think are the legal limits of what is
    available under FISA. A, is that a legitimate criticism? Are we
    being risk-averse. in the requests that are being made? Is
    Moussaoui an example of that risk averseness, and how would the
    two pieces of legislation that are being considered today
    affect that?
        Mr. Baker. Senator, if I could comment on some part of that
    and then defer to my colleagues, first of all, I see all the
    FISA applications before they go to the Attorney General and I
    would submit to you that we are being appropriately aggressive
    in our use of FISA. I can't say any more in an open session
    with respect to that but I submit that that is the case.
        Secondly, I believe Judge Lamberth, the former presiding
    judge of the FISA court, has spoken on a couple of occasions in
    public with respect to the interaction between the court and
    the Department and I believe, as he said, that they ask
    questions, they probe, they try to get the nitty gritty of
    what's going on with the case and ask us for additional
    information. So there is an interchange between the court and
    the Department during the process of which additional
    information is provided to the court to satisfy the court that
    we are, you know, justified in seeking the coverage that we
    are.
        With respect to the Moussaoui case, I'll defer on that
    because the Moussaoui matter never made it across the street to
    my office. So I'd leave my comments at that then, Senator.
        Mr. Bowman. Senator, I think that one of the things that we
    have to keep in mind is--well, two things really.
        One is when FISA was passed the Congress told us that we
    should be scrubbing these things very carefully before it ever
    gets to the Article III judge. And I think that between the
    intelligence agencies and the Office of Intelligence Policy and
    Review we have done that. It is not always easy to get an
    application up to a standard for the court, but we work at
    them. And we don't just walk away from something because we
    think we might have a problem. Frankly, it would not bother me
    a bit to lose a case in front of the FISA court.
        But we do work them extremely hard and sometimes, working
    with Mr. Baker's office and mine, it takes us a fair amount of
    time to put together a FISA that meets the standard. We are,
    after all, dealing with persons who are trying to hide their
    activities and hide their associations and so forth and
    sometimes it just takes a little extra gumshoe work on the part
    of special agents to dig up the information that's necessary.
    But I don't think it would be fair to say we are risk averse.
        Senator DeWine. Mr. Chairman.
        Chairman Graham. Are there any other questions?
        Senator DeWine.
        Senator DeWine. Mr. Chairman, I would just like to follow
    up on that, not with a question but maybe just an additional
    comment. First of all let me just say, gentlemen, that I
    appreciate the work that all of you do. This is very, very
    difficult work. I can't think of anything more important in
    government that is being done than the work that you are doing,
    and all of us I know on this Committee appreciate it very much.
        The subject of this hearing, though, really is whether or
    not the law that we have been operating now for better than two
    decades does in fact need to be changed. Congress on several
    occasions has made some changes, generally at the request of
    the Administration, at the request of the Justice Department.
        For Congress to exercise its obligation to determine
    whether or not the law should be changed presents in the case
    of FISA a unique problem. The problem is that we have, as a
    country and Congress, created a court that is by definition a
    secret court. And it's a situation where what you do every day
    is not done in public. What you do every day is in private. It
    is unique in our jurisprudence, this ex parte relationship, a
    relationship that you and the court are going back and forth,
    you are supplying them information, they are supplying you with
    direction.
        I share Senator Graham's questioning at least about whether
    or not if you bat 100 percent you are taking enough cases
    there. I appreciate your answer that you were getting guidance
    from the court. That does not though answer the question that
    we have to answer to the American people, and that is whether
    or not the current law, as it is being interpreted by the
    court, is protecting the American people. Is it doing what it
    should be doing? I have no doubt you are following the
    direction of the court and I have no doubt the court is trying
    to follow the direction of Congress as they think Congress laid
    down the law over 20 years ago. But the question that I have is
    whether or not the court has strayed from that, whether the
    court is interpreting it differently than we presently today
    think it should be interpreted, because we have the obligation
    under our system of justice and our checks and balances to
    write the law.
        So that's the only reason that we are looking very closely
    at this. It's the reason that I am looking at it and I'm going
    to continue to do that and continue to try within the confines
    that we have, where it is difficult to get answers,
    understandably, in open session, but where it's even difficult
    to get answers in closed session to find out exactly what is
    going on inside that court.
        And I think it is a matter of national security. And this
    is one member of this Committee and one Member of Congress that
    is going to continue to try to get answers because I don't
    think we can ask our colleagues to vote on any proposed
    changes, to determine whether any changes are needed at all,
    unless we have really the opportunity to know what is going on,
    better than we do today, inside that court.
        Thank you, Mr. Chairman.
        Chairman Graham. Are there any other questions of this
    panel?
        Yes, Senator Kyl.
        Senator Kyl. Mr. Chairman, just not a question but if I
    think I take one thing from this hearing it kind of started
    with what Mr. Bowman testified. We have a statute that talks
    about foreign power and foreign intelligence organizations. And
    that just isn't the way the world operates any more. We now
    have a sort of amorphous cause, a philosophical/religious cause
    out there in the world today with a lot of people of different
    affiliations supporting to one degree or another that cause and
    acting in furtherance of that cause. Some of them are tied to
    each other in different ways, some are not.
        But because that's the new circumstance, at a minimum we
    need to make the change that Senator Schumer and I have
    suggested to recognize that reality. They no longer get their
    membership card in an organization and pay their dues, so
    that's an exaggeration, of course. But they're really not
    acting, necessarily, on behalf of an organization to which
    they've ever affiliated or a country but rather on behalf of an
    idea. And they're probably dealing with some people in
    connection with that.
        But to try to tie all of that up into an organization in
    some cases simply isn't--not only is it difficult and not
    possible but it may not be actually the fact, it may not be the
    case. And that, I think, more than anything, is what really
    justifies the change that Senator Schumer and I are seeking to
    make here. And since it clearly, I believe, does fall within
    the constitutional parameters here, as I said, I hope we can
    move our legislation quickly.
        And I, by the way, am very intrigued by the question that
    Senator DeWine asked here as well, and I think we need to
    pursue that as well.
        Chairman Graham. Thank you very much, gentlemen. We
    appreciate your information, your experience and your insights
    and sharing those with us this afternoon. Thank you.
        Panel number two will be Mr. Jerry Berman and Professor
    Clifford Fishman of Catholic University.
        Mr. Berman is currently the Director for the Center for
    Democracy and Technology. He formerly was chief legislative
    counsel for the ACLU and helped draft the FISA legislation. He
    currently serves as the chair of the Advisory Committee to the
    Internet Caucus.
        Professor Fishman is Professor of Law at the Catholic
    University's Columbus School of Law, where he teaches criminal
    law, criminal procedure and evidence. A graduate of Columbia
    University Law School, his professional career includes service
    as an assistant district attorney in New York, and as chief
    investigating assistant district attorney in the Special
    Narcotics Prosecutor's Office of the city of New York. He has
    extensive trial experience and is a published author on issues
    of evidence and wire-tapping.
        Mr. Berman.
        [The prepared statement of Mr. Berman follows:]

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

        Mr. Berman. Thank you. I appreciate again the opportunity
    to testify before the Senate Select Committee on Intelligence.
    After many, many hearings 20 years ago or so, I did not expect
    to be back reviewing and revising and thinking about FISA. But
    I think it's necessary given our new circumstances and our new
    war on terrorism and the threats that confront us.
        But it is important that we understand the context of how
    FISA came about and that when we consider changes to it that
    they be carefully thought about and deliberated and be done
    with great care. I believe that the two statutes, both the
    statute proposed by Senator DeWine and the statute proposed by
    Senator Schumer and Mr. Kyl, we've worked together on many
    issues, and however well meaning I believe that both statutes
    raise significant constitutional questions and significant
    questions about whether they will improve or hinder or make any
    difference in our intelligence mission as we go forward.
        We must understand that even if the courts upheld these
    proposals that FISA was a major departure from our traditional
    probable cause law. It was a special court. It's a secret
    court.
        The nine judges are not picked by the 9th Circuit in a
    lottery; they're picked by the chief justice of the United
    States Supreme Court. I considered him a conservative jurist,
    and concerned about national security. So when that court, and
    how it works, it's very important that we look at it. It's a
    departure already from probable cause. It's probable cause that
    you're an agent or a foreign power and you may be engaged in
    criminal activities, so it's already a reasonable suspicion
    standard.
        I understand that it only covers aliens, and an attempt to
    limit it to aliens. But there are many aliens in this country,
    and most of us began as aliens in this country. And it's
    important that that is a community, that you want to make sure
    that you're both wanting to make sure to catch the terrorists
    within it, but you're also asking for a great deal of
    cooperation from it. And you want to make sure that they don't
    feel they're under a great and unjustified intelligence net.
        The changes are being proposed to deal with--I think we are
    talking about all across America, and all across the Congress,
    with the creation of a new Department of Homeland Security,
    that we need better intelligence analysis. The FBI Director sat
    up here and said we're three years behind in our information
    technology, and that we need better analysis, better means and
    smarter intelligence.
        The question is whether the FISA standards, as enacted 25
    years ago, are in our way. And my argument is I have--of
    course, I'm not privileged to the investigation that you're
    conducting, and I would very much hope that we wait to pass
    legislation to get the results of that investigation. But there
    are several factors which would argue that the current, the
    FISA as existed prior to 9/11 may have been sufficient, but
    that there are problems elsewhere.
        Inspector Rowley came, said they had a guy trying to fly an
    airplane, you know the facts, without trying to land it. But no
    one put it together with the facts in Phoenix where 12 Arab
    foreigners were trying to learn to fly, or with the President's
    briefing in August that they were going to use airplanes for
    sabotage or hijacking purposes, or a memo that was out there
    from Mr. Kenneth Williams from the radical fundamentalist unit
    that airplanes and hijackings might be used.
        And there was also information from the French, how
    reliable I do not know, but that Moussaoui was a part of a
    terrorist organization. If that information existed and had
    been brought together, why wasn't an application tried? And I
    have talked to people who say that the problem wasn't the
    standards, the problem was the failure to bring that
    information together. And that there was a second problem which
    is a committee factor running around within the Justice
    Department, partly brought on by filing false affidavits in a
    prior case, wanting to have a 1,000 batting average, not liking
    terrorist cases. Nothing that you change in terms of standards
    is going to do anything about that.
        Let's come back quickly, and I know time is limited, to the
    standard changes. Creating a lone wolf or individual foreign
    power turns FISA upside down. It was to study foreign
    governments, foreign threats, major threats, and it added
    terrorist organizations because they were a new kind of threat.
    But they're in there and if you're an agent or connected to
    them, you're covered.
        But to say that an individual is a foreign power turns
    intelligence upside down, which is trying to connect the dots
    between organizations and within organizations. I think that if
    you have information on Moussaoui that doesn't meet a FISA
    court warrant, you might have met a Title III warrant. But to
    try and change FISA and lower it by changing that standard I
    don't think may help you. You still have to prove, as Mr. Kyl
    pointed out, that the person is engaged in international
    terrorism activities. And I believe that in 99 percent of the
    circumstances you are going to have to say that he's a member
    of a group. So the court is, in looking at an order under the
    Kyl-Schumer bill, I think, is back in the same place with the
    Justice Department saying we ain't got the evidence, not
    without the connections.
        And the second point that I would make is that if we put
    the two together and lowered the standard to reasonable
    suspicion, as Mr. DeWine proposes, I believe that is clearly
    unconstitutional. One: the Abel case says the Constitution
    applies to aliens. The Keith case, which ruled that
    intelligence--that wiretaps--can be applied to domestic cases
    said lower standards can be used. But we are talking about a
    new mixed statute, which is not only intelligence but criminal
    and can be used for criminal prosecution purposes.
        And if the court finds that you're using FISA to get
    criminal prosecutions, there will be great questioning of the
    basis on which you gather that information and the
    Constitution, Fourth Amendment, says ``probable cause'' and I
    agree, in final, with the Attorney General said it is the
    Constitution is getting in our way and that's the point. And
    that's the point--the Constitution here--and it is in your way.
        Thank you very much.
        Chairman Graham. Thank you very much, Mr. Berman.
        Professor Fishman.
        [The prepared statement of Mr. Fishman follows:]

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        STATEMENT OF CLIFFORD S. FISHMAN, PROFESSOR OF LAW, THE
                     CATHOLIC UNIVERSITY OF AMERICA

        Mr. Fishman. Thank you, Mr. Chairman.
        I thank the committee for giving me the opportunity to
    testify today about these two bills. S. 2586 is a useful
    proposal which closes a gap in FISA by permitting surveillance
    of an individual whom the government can show came to this
    country to commit an act of terrorism even if it lacks evidence
    connecting him to a foreign country, terrorist organization or
    other group. Even a lone wolf might use his computer or
    telephone, for example, to obtain from innocent people the
    information or materials he needs to be able to kill, destroy
    or disrupt. S. 2586 would make it easier for the government to
    find out whether the suspect is in fact a terrorist and, if so,
    to stop him and to identify his accomplices, if any.
        As to its constitutionality, I can think of no theory why
    surveillance that would be lawful where two or more people are
    suspected should be unlawful when an evil man is acting alone.
    And if the committee wishes later, I could spell out the
    differences in a situation like that between FISA and Title III
    and why FISA might be necessary even though Title III is
    available.
        S. 2659 is a bit more problematic. Currently FISA
    surveillance is permissible only if the government has probable
    cause--the same quality of information required for a search
    warrant or to make an arrest--that the target is an agent of a
    foreign power or international terrorist organization or group.
    U.S. persons would continue to be protected by the probable
    cause requirement but only reasonable suspicion, the same
    quality of information needed to stop someone temporarily,
    question and frisk him for weapons, would be needed to tap or
    bug or search a non-U.S. person.
        The bill appears to address the Zacarias Moussaoui case. As
    we now know, FBI agents in the field believed they had what was
    necessary for a FISA warrant. They were turned down by FBI
    headquarters. If the legal standard had been reasonable
    suspicion, perhaps the FBI would have gotten the order and the
    outrage of September 11 might have been prevented. And that is
    the first and main reason why, despite my qualms, I am in favor
    of S. 2569 because it could significantly help the government
    interdict terrorism. Still, I acknowledge the potential for
    substantial intrusion into privacy that bill presents and that
    some doubts exist about its constitutionality.
        It is a well established principle that people who are in
    the United States illegally or only temporarily enjoy somewhat
    less legal protection than citizens and green card holders.
    This supports the constitutionality of requiring less
    information--that is, only reasonable suspicion--to authorize
    surveillance of such people than is required to surveil U.S.
    persons. But I would want to study the question further. I've
    been studying and practicing and writing about the Fourth
    Amendment for 30 years. My gut reaction is that S. 2659 would
    be constitutional but I'd be much more comfortable if I could
    study it more extensively before expressing a final opinion.
        We must remember moreover that such electronic surveillance
    and physical searches inevitably would intrude into the privacy
    not only of the non-U.S. person who was the target but of many
    U.S. persons as well--anyone the target talks to on his
    telephone or shares space with or communicates with by
    computer, depending upon the type of surveillance. Until now
    the law has not permitted that degree of intrusion into anyone
    without a search warrant or interception order based on
    probable cause. Thus, this proposal boldly goes where no law
    has gone before.
        I support S. 2659 for a second reason. It reduces the
    likelihood that courts will be tempted to define probable cause
    down to help fight terrorism. Theoretically, probable cause
    means the same thing--a ``fair probability'' that evidence of
    wrongdoing will be uncovered--regardless of what the
    authorities are looking for--a single marijuana cigarette, a
    videocassette shoplifted from a local store or evidence of a
    conspiracy to blow up buildings or poison an entire city.
        But it is simple common sense that a judge will view the
    government's showing more liberally in the latter situation. If
    there is anyone here in the room who volunteers to be the judge
    who turns down a warrant that could prevent the next September
    11, please raise your hand. But if judges take a more liberal
    approach to finding probable cause in terrorism investigations,
    this could spill over into probable cause determinations in the
    normal law enforcement context, which might have a more serious
    impact on privacy than the creation of the narrow, tightly
    tailored exception to probable cause requirements proposed in
    S. 2659.
        I support S. 2659 for a third reason. I am confident that
    existing legal protections and practical pragmatic
    considerations provide sufficient guarantees against excessive
    wide-ranging invasions of privacy. The primary legal protection
    is FISA's minimization provision. Investigators are required to
    minimize the interception, retention or distribution of
    evidence that does not reveal foreign intelligence information
    or evidence of crime. And from a pragmatic and practical
    perspective, the government lacks the resources or the desire
    to engage in broad wholesale surveillance of non-U.S. persons.
        In sum, despite my reservations, I believe S. 2659 is a
    sound proposal and will ultimately be upheld as constitutional
    because it is narrowly tailored to fill a compelling need and
    because it passes the ultimate constitutional test: the
    surveillance authorized by the proposal is reasonable under the
    circumstances.
        Thank you.
        Chairman Graham. Thank you, Professor.
        Mr. Berman, if it could be shown to the FISA's court
    satisfaction under either the current standard or the standard
    suggested by Senator DeWine that a non-U.S. person is engaging
    in international terrorist activities or is preparing to do so,
    what, in your opinion, does the additional requirement in the
    current FISA law that the person must also be an agent of a
    foreign tourist group add to the protection of the civil
    liberties of the potential target?
        Mr. Berman. What it adds to is, first of all, there is a
    limitation on whether preparation can be merely First Amendment
    activity. There is--the question I think is whether we are
    going to change our intelligence investigative authority away
    from surveillance of organizations and into surveillance of
    individuals. And I think that is a major change and it is
    actually the beginnings of creating a domestic intelligence
    agency. We've never had one. It is the potential use of the
    lower standards for criminal investigative purposes that I am
    concerned about.
        Chairman Graham. Professor Fishman, could you give us your
    opinion on that question?
        Mr. Fishman. I don't see any significant deterioration of
    civil liberties by allowing security officials to go after a
    lone wolf the way they are now allowed to go after a group of
    two people.
        Mr. Berman. Excuse me. Under our----
        Chairman Graham. Excuse me.
        Mr. Berman. I'm sorry.
        Chairman Graham. Professor, did you have any further
    comment?
        Mr. Fishman. No.
        Chairman Graham. Mr. Berman.
        Mr. Berman. If there's a lone wolf and he's engaged in
    terrorist activities in the United States, he should be a Title
    III warrant and he should be investigated by a criminal
    investigative authority so he can be brought to justice and
    arrested and stopped from doing a terrorist act. That is what
    should happen when it's an individual. That is well within the
    authority of the FBI. It's well within their
    counterintelligence mission and it's what I think the American
    public wants to see happen. Why are we changing this into an
    intelligence focus? What is wrong with the authority of our
    criminal laws to bring someone to justice and get them off the
    streets and prosecute them? If you have probable cause of a
    crime, arrest them.
        Chairman Graham. Yes. Mr. Fishman.
        Mr. Fishman. Quite often, I think Title III would be the
    way to go in this case. But there are many circumstances in
    which Title III might not be appropriate. Title III
    applications and orders are processed in the normal court
    system. In matters concerning foreign intelligence and
    antiterrorism, greater security is called for. The FISA court
    provides that.
        FISA and Title III have very different minimization
    procedures. Under FISA, it is lawful to capture everything and
    then weed out what is to be retained. Title III, by contrast,
    generally requires minimizing at the time the communication
    occurs. If we're talking about national security, the more
    inclusive approach authorized by FISA is appropriate.
        Finally, Title III requires eventual disclosure of the
    suspect of the fact that an order was obtained and that
    surveillance was conducted, whether or not any criminal charges
    are filed against him. Normally, that is as it should be.
        Under FISA, by contrast, unless the surveillance results in
    criminal charges, the target does not have to be notified about
    the surveillance; and even if charges are brought, the target
    is entitled to much less information under FISA than under
    Title III. S. 2586 gives national security officials the option
    of avoiding any disclosure to the target where national
    security interests outweigh the importance of bringing criminal
    charges.
        Now, wholesale wiretapping without ever disclosing what's
    going on clearly does impinge or threaten civil liberties. But
    I don't think there's any record of that being done regularly
    under FISA now, nor do I think that is likely to occur if the
    Kyl-Schumer bill is enacted.
        Mr. Berman. May I respond for just one moment? I think it's
    interesting that you propose this in extraordinary
    circumstances, there may be cases where might what proceed
    under Title III is of such importance to national security that
    we ought to track it under FISA when an individual is
    concerned. That might be an--that's not part of legislation
    that's pending. It's interesting.
        What is also interesting is you don't want to--I think you
    said, you do not want a routine use of FISA where the normal
    due process rules of disclosure to an attorney in a case if a
    prosecution is brought, rules of evidence that apply,
    minimization is--doesn't apply under FISA--those are
    extraordinary circumstances and they ought to apply. And
    particularly if you're beginning to use FISA as a criminal
    investigative standard, which has happened under the Patriot
    Act. It now has a dual purpose. And we civil libertarians and I
    think many of you and the Congress are worried about are we
    helping our intelligence agencies but also creating a back door
    around our due process requirements in our criminal justice
    system.
        Chairman Graham. Thank you, Mr. Berman.
        Senator Kyl.
        Senator Kyl. Thank you, Mr. Chairman.
        This is a good discussion; I appreciate both of you being
    here. I especially appreciate Professor Fishman's response to
    your concern, Mr. Berman, about--I mean, it seemed to me you
    were kind of attacking the fundamental premise of FISA
    altogether, that you prefer we just not even have it, if you
    had your druthers.
        Mr. Berman. I honestly didn't say that. I helped to draft
    it and I was very much in support of it.
        Senator Kyl. So you still think FISA is a good idea then?
        Mr. Berman. FISA?
        Senator Kyl. Yes.
        Mr. Berman. Absolutely.
        Senator Kyl. Okay. I was beginning to wonder.
        Mr. Berman. Go back, I got a pen.
        Senator Kyl. I accept what you say. [Laughter.]
        But out by saying that we need better intelligence analysis
    and that the problem, as Agent Rowley pointed out was a problem
    of follow-up and so on and the change in statute won't help
    that, and that's all true. There are many problems, one of
    which is a substantial change in circumstances about how
    terrorists operate. So all of the other red herrings, I would
    assert, are not really relevant to our inquiry here. We have to
    solve those problems too. But this is another problem we have
    to solve.
        Mr. Berman. Let me--may I make----
        Senator Kyl. Let me just finish because I have a question
    for you here. You said that the lone wolf aspect of Kyl-Schumer
    turns FISA upside down, and it changes from a look at an
    organization to an individual and that's why it changes it
    upside down. You know, if we said we have to look at the KKK or
    organizations and we could never look at a Timothy McVeigh, for
    example, then I think we'd have the analogy in the Title III
    situation.
        But taking it right back to FISA situation, you've got this
    shoe bomber, Richard Reed. I don't know all the circumstances,
    we can't discuss them in this situation. But here's a guy who
    appeared--he was a non-U.S. person coming from a foreign
    country, he was obviously intending to blow up an international
    flight--in other words conducting terrorism, internationally--
    but I'm not sure that we can connect him up to an organization,
    a terrorist organization. He attended a mosque in London with a
    bunch of other shady characters; doesn't necessarily mean that
    he's connected to a specific organization. Should we be
    precluded because of those facts from looking at him, where, if
    we could prove that he was talking to one other guy, then we
    could look at him? You see, it didn't seem to me that that
    rationale is a valid one.
        Mr. Berman. I'm sorry. It doesn't mean when you can't open
    a FISA investigation or an intelligence investigation that you
    don't open an investigation. Presumably, our criminal law
    enforcement people are following around, collecting
    information.
        Senator Kyl. Let me be more precise about my question,
    then. If we are warranted, where there are two or more.
        Mr. Berman. Yes.
        Senator Kyl. Under FISA, which you helped to write and
    support.
        Mr. Berman. Yes.
        Senator Kyl. Then why wouldn't we be warranted as long as
    there has to be probable cause of the international terrorism
    connection with an individual, not using the FISA process to
    further investigate him?
        Mr. Berman. I just think again, it was meant to--the
    purpose of giving broad search and secret search and very broad
    authority was to allow intelligence agents to make very serious
    connections between the members, the purposes of organizations,
    so it's like organized crime. And it's a very different, far
    more intrusive investigation and that's why it applies to
    groups.
        And I'm just going to insist on that line, that maybe two
    or more people, and I might want it to be 10 or more people,
    but it has a justification in that--because of the leeway that
    we give to that--those investigations. And I don't think that
    we're talking about not investigating. We're talking about----
        Senator Kyl. Using the FISA process.
        Mr. Berman. We're also talking about the lower you make
    that process, I think the more you rely on wiretapping.
        Senator Kyl. What's the rationale for distinguishing
    between the individual who is doing something just as heinous
    as the individual talking to a buddy of his about doing that
    same act?
        Mr. Berman. I'm making no distinction except in which
    investigative bucket do you put that.
        Senator Kyl. I don't think you can make--in other words, if
    FISA is warranted in the first, I don't understand why FISA is
    not warranted in the second. Professor Fishman, what's your
    view on that?
        Mr. Fishman. As I've said, I think that what the law says
    is lawful for two or more people ought to be lawful in
    investigating one person.
        Mr. Berman. Well, then, we shouldn't have a criminal
    investigative rule at all. I mean, we just ought to have just a
    large intelligence investigative operation operating under less
    than probable cause or evidentiary rules.
        Senator Kyl. In matters other than in international
    terrorism?
        Mr. Berman. The discussion about----
        Senator Kyl. You don't really believe that, do you? I mean,
    you are being facetious.
        Mr. Berman. Excuse me?
        Senator Kyl. Are you being facetious? Or do you really
    believe that?
        Mr. Berman. Believe what?
        Senator Kyl. That we shouldn't have a Title III situation
    then.
        Mr. Berman. No, I believe we should have a Title III
    situation. But I do believe that the intelligence authority and
    the intelligence investigations should belong to group
    organizations. And you can't--I think when people hear that
    you've defined an individual, that Moussaoui is now a foreign
    government or a foreign power, that there will be a lot of head
    scratching by many people who try to think about intelligence
    investigations and what they're about.
        Senator Kyl. Professor Fishman.
        Mr. Fishman. In a safer world I would agree with Mr.
    Berman. Unfortunately, that's not the world we live in now. We
    have to take reasonable measures to protect ourselves and our
    institutions. I think this is a reasonable measure.
        Senator Kyl. Thank you.
        Chairman Graham. Thank you, Senator.
        Senator Kyl.
        Senator DeWine. Thank you, Mr. Chairman.
        Chairman Graham. I'm sorry, Senator DeWine, I apologize.
        Senator DeWine. Thank you, Mr. Chairman.
        Mr. Chairman, I think we've had a very enlightening and
    very good discussion with two scholars. I'm not sure that I can
    add a lot. I think that their willingness to engage each other,
    which always livens things up a little bit and makes our job a
    lot easier, was very good.
        Let me just say that I have been in touch, Mr. Chairman,
    with Professor Phillip Heymann, a former Deputy Attorney
    General, who would like to submit testimony for the record in
    support of S. 2659. That testimony is forthcoming. I would now
    ask the Chairman to keep the record for a few days so we can
    accept that testimony.
        Chairman Graham. Without objection, so ordered.
        [The statement for the record of Mr. Heymann follows:]

        [GRAPHIC] [TIFF OMITTED] T0301A.029

        [GRAPHIC] [TIFF OMITTED] T0301A.030

        [GRAPHIC] [TIFF OMITTED] T0301A.031

        Senator DeWine. In addition, Mr. Chairman, I would like to
    submit at this time a letter of support from the National
    Association of Police Organizations for S. 2659.
        Chairman Graham. Without objection, so ordered.
        [The statement for the record of the National Association
    of Police Organizations follows:]

    [GRAPHIC] [TIFF OMITTED] T0301A.032

        Senator DeWine. Thank you very much, Mr. Chairman.
        Chairman Graham. Senator Feinstein.
        Senator Feinstein. Thank you, Mr. Chairman.
        I agree this has been very interesting. Let me just kind of
    informally talk with you for a couple of minutes because it
    seems to me that when FISA was written the world was very
    different. The Berlin Wall wasn't down. We were talking about
    Soviet spies. We were talking about KGB. And the entire
    intelligence apparatus was extraordinarily different because
    there there was a direct connection to a government. Senator
    Kyl, I think, spoke correctly. The world is very different now.
        Let me ask you this question, Mr. Berman. Right now--and
    this is hypothetical--right now in flight schools we learn that
    there are people who fit the definition of foreign, that one or
    two of them have visited al-Qa'ida facilities, another might
    have been a product of a radical madrassa in Peshawar. Should
    the United States government be able to get a FISA warrant?
        Mr. Berman. I have a proposal, which is----
        Senator Feinstein. No, no, answer my question.
        Mr. Berman. It's too--give me your example again.
        Senator Feinstein. I just gave you the example.
        Mr. Berman. It's two are at a flight school--I'm sorry, I--
    --
        Senator Feinstein. All right, you have a couple of
    foreigners at a flight school today, and we learn or the
    government learns about them that one or two of them have
    visited or been part of an al-Qa'ida training camp.
        Mr. Berman. Yes.
        Senator Feinstein. Should the government be able to get a
    FISA warrant?
        Mr. Berman. They should be able to get a FISA warrant.
        Senator Feinstein. Supposing you have an individual that's
    been schooled in a radical fundamentalist madrassa who is in
    this country trying to buy a precursor chemical, should you be
    able to get a FISA warrant?
        Mr. Berman. You may not have enough probable cause because
    you can't connect him to a group. You may--but you can
    investigate them. But I don't know whether you'd have enough
    for probable cause.
        Senator Feinstein. See, that's where I think the world has
    changed, because these are the very threats. You can't prevent
    it from happening if you can't get enough ahead of it. And
    that's what the FISA warrant allows you to do that the civil
    side does not.
        Mr. Berman. But if we bring the standard down to reasonable
    suspicion so that we can take care of cases like this----
        Senator Feinstein. I'm not talking about that. I'm just
    talking about the one bill. I'm just talking about the Kyl-
    Schumer bill, which takes out foreign power, because none of
    these people are connected to a foreign power.
        Mr. Berman. But if you look at the definition, this is one
    of the things that I've been trying to talk over with your
    experts on your Committee. The definition of a foreign power in
    this section is someone engaged in international terrorism. And
    since it falls under the probable cause that someone is a
    foreign power do you have to show probable cause that they are
    engaged in terrorist activity.
        Senator Feinstein. Well, of course, isn't that probable
    cause right then and there? I mean, I think, it's interesting
    to me that with Moussaoui the Department did not pursue a FISA
    warrant.
        Mr. Berman. I'm just saying that----
        Senator Feinstein. So they didn't take this step----
        Mr. Berman [continuing]. If it's probable cause----
        Senator Feinstein [continuing]. Because they didn't believe
    they could satisfy it. It's also very interesting to me that
    their batting average is so high. I'm amazed at that, which
    indicates to me they haven't brought all that many warrants,
    frankly. And I mean if you believe there's a problem out there,
    and I happen to believe there is a problem out there, I happen
    to believe there are people that want to----
        Mr. Berman. Let me just----
        Senator Feinstein [continuing]. Wreak terrible damage on
    American citizens.
        Mr. Berman. I'm now going to play on the lone wolf side for
    a second. But what I want to understand is why that changes the
    analysis that the Justice Department applied to it, which is
    they needed probable cause that Moussaoui was engaged in
    international terrorist activities. They said, we didn't have--
    there's two different stories. And you have the facts. We had
    probable cause to believe that he was engaged in terrorist
    activity, but we couldn't tie him to a specific foreign power
    on our list. There's another side which is that, hey, we just
    didn't have probable cause, but he was engaged in terrorist
    activity. All we knew is that he was at a flying school, and we
    didn't have more.
        Why would, if they had to have the evidence of a crime and
    not just that they could name the group, what evidence--the
    Schumer-Kyl bill is still requiring evidence that the Justice
    Department may not have granted--may have said, we don't have
    the evidence to grant this warrant, even with their change. So
    would the change change the situation? That's my question to
    you.
        Senator Feinstein. Appreciate that. Mr. Fishman, do you
    have a comment?
        Mr. Fishman. I think in a limited number of cases the Kyl-
    Schumer bill would, in fact, give the government the
    opportunity to do what it otherwise could not. Take for example
    the situation of a foreigner who looks like he's trying to put
    together the same materials as Terry McNichols used to blow up
    the building in Oklahoma City. He's a foreigner. He's from,
    let's say, the Mideast. But no evidence connects him to any
    organization. In that situation one currently now could not use
    FISA to obtain a surveillance order against him.
        And there may be reasons why Title III simply would not be
    the way to go for the reasons I discussed earlier. So I think
    that's the sort of rare situation that Kyl-Schumer would, in
    fact, give the government the opportunity to do what needs to
    be done that under current law it could not.
        Senator Feinstein. Thank you. Thank you, Mr. Chairman.
        Mr. Berman. May I ask one more question for your Committee
    to ask the powers that be?
        Senator Feinstein. Sure.
        Mr. Berman. The standard is agent of a foreign, which is
    where changing the law in this area--so an agent is now an
    individual or a foreign power is now an individual is engaged
    in international terrorism or activities in preparation
    thereof. In the U.S. section, it says, provided solely that
    none of that should involve simply First Amendment activities.
        The question is, does this pick up a visitor who makes a
    speech, you know, I hate the United States, in London or in
    Palestine. They come to the United States. Are they now engaged
    in international terrorism or activities in preparation thereof
    and therefore every American that may talk to them on the
    telephone is now under surveillance or potentially on a watch
    list?
        Senator Feinstein. I don't know if in preparation--I don't
    think so but I don't know that ``in preparation of'' means
    raising money for. If it does, my answer would be, I think,
    yes. If you're doing that to raise money to commit a terrorist
    act, I think that's a bona fide issue.
        Mr. Berman. One thing that was, when FISA was enacted,
    however it was done, there was--it's a very complicated statute
    and there was a complicated legislative history to support it.
    One of the things I found most troubling, not about the changes
    that have been made in Patriot and so on, although I've got
    some problems, but the unwillingness where there are hard
    questions of this Justice Department to be willing to state in
    legislative history what they mean about certain things so that
    courts and reviewers can look at it. This opposition to
    legislative history leaves you with a plain text definition,
    which is very unsatisfying in very complicated policy areas
    like this.
        I would urge a legislative history accompanying any
    legislation that you mark.
        Senator Feinstein. Thank you. Thank you, Mr. Chairman.
        Chairman Graham. I'd like to ask another question relative
    to Senator DeWine's bill. What is the practical difference in
    what the requesting agency, the FBI for instance, would have to
    show in order to be able to meet the current standard of
    probable cause or the standard that's being suggested, which is
    reasonable suspicion?
        Mr. Fishman. We're talking about shades of gray, Senator.
    It's difficult to define other than if you've studied the cases
    enough, you develop an instinct for what satisfies which
    standard and which does not. That's not a satisfactory answer,
    I realize. Probable cause is a darker shade of gray than
    reasonable suspicion. That's the best answer I can give. It's
    not a good answer at all.
        Chairman Graham. Let's say if this were a 100-yard track
    and probable cause to get to the end would require you to get
    to 80, where would reasonable suspicion--how close is
    reasonable suspicion? Is it a 60 or is it a 78?
        Mr. Fishman. I'd say it's probably closer to 30 or 35.
        Chairman Graham. It's that far below probable cause?
        Mr. Fishman. We're talking abstractions but all that
    reasonable suspicion requires is the officer has to be able to
    say, this is what I've seen, this is what I've learned.
    Applying my experience and expertise, this is why I suspect
    this person might be about to do something wrong. Probable
    cause requires a fair probability that something illegal is
    being done or incriminating evidence will be found. ``Fair
    probability'' sounds like it means ``more probable than not.''
    But it does not mean that. It means less than preponderance of
    the evidence. That's the difficulty.
        It's fascinating. Probable cause, that phrase, is in the
    Constitution. Several Supreme Court decisions and tens of
    thousands of lower court decisions have focused on probable
    cause since the Fourth Amendment was ratified. Yet we still
    don't know for sure what it means. The best the Supreme Court
    has come up with is, based on all the circumstances, is there a
    fair probability of criminality or that incriminating evidence
    will be found. That's the best the courts have come up with.
        Mr. Berman. It has a kind of Stevens talking about
    pornography quality to it. We know it when we see it, but I
    think it's--Terry or reasonable suspicion has been we have
    enough to make a Fourth Amendment intrusion, which means we
    stop, frisk, look around. But that's based a lot on appearances
    and informant information and so on. In order to conduct a more
    intrusive search--home, telephone--we want something more
    concrete and articulable than just the facts and circumstances
    which say, I think a crime is happening. We think that it has
    to be facts which say, we are reasonably not certain, but we
    have reasonable grounds to believe that if we keep pursuing, we
    are going to find the crime is real.
        Mr. Fishman. The reason the Supreme Court more or less
    invented the reasonable suspicion test in Terry is because the
    police procedure involved in Terry, ``stop and frisk,'' is much
    less intrusive than the types of procedures normally requiring
    probable cause. A stop or a frisk, a brief questioning, a
    patdown, however upsetting it is to the individual, is nowhere
    as intrusive as a search of the home or an arrest, or a search
    of a person's pockets and so on.
        What's unusual, perhaps even radical, about Senator
    DeWine's proposal is that it would take the reasonable
    suspicion standard and apply it to an extremely intrusive form
    of surveillance. There's nothing more intrusive than
    surreptitious electronic surveillance of communications. It
    would be a radical change from the current state of the law. I
    think it would nonetheless be upheld as constitutional because
    it is very tightly drawn and because of necessity in which we
    find ourselves, given the sick and dangerous world that we
    exist in. But it clearly is a significant departure from the
    entire range of reasonable suspicion jurisprudence the Supreme
    Court has given us to date.
        Mr. Berman. And my last comment, if it's the last comment,
    is that I don't think a case has been made how this standard if
    applied, would put us in any real different factual
    circumstances than we were in the cases that we're looking at.
    And if you can't show a major pay-off, why risk the
    constitutional uncertainty and increase the pool of people that
    may end up on a watch list, and we don't know where we're going
    with all of this, how far the intrusion is going to be, whether
    you're going to be stopped, whether you're going to be
    searched, whether you're going to be followed. I understand our
    country is under a serious threat but the pressure on civil
    liberties is also going to be serious and we want to maintain
    that balance.
        Chairman Graham. Senator Kyl.
        Senator DeWine.
        Senator DeWine. Just a follow-up, if I could. Mr. Fishman,
    you have pointed out in your testimony that under our bill we
    are talking about non-U.S. persons. We're not talking about
    U.S. citizens. We're not talking about resident aliens, legal
    resident aliens. We are talking about non-U.S. persons. And
    you've also in your testimony--Mr. Berman disagrees with you in
    his written testimony--have said that the courts have made some
    distinction between the way non-U.S. persons and U.S. persons
    can be treated. Is that correct?
        Mr. Fishman. Particularly non-U.S. persons who are here
    unlawfully. Yes.
        Senator DeWine. Unlawfully. Let me, if I could, quote from
    Terry and ask you if this is--not if it's a correct quote, I'm
    reading directly from the Supreme Court, but is this the
    essence of it. If it's not, then you can add something to it.
        Mr. Chairman, I think when we look at reasonable suspicion,
    it is helpful to look at this part of Terry. The court says,
    ``In justifying the particular intrusion, the police officer
    must be able to point to specific and articulable facts which,
    taken together with rational inferences from those facts,
    reasonably warrant intrusion.''
        Is that basically the essence of it?
        Mr. Fishman. Yes, Senator. That's the standard that the
    Court enunciated in Terry and has stuck to ever since. It's not
    enough to have a hunch. It's not enough to have an
    inarticulable feeling. There has to be some evidence put
    together with other circumstances and experience which justify
    the reasonable suspicion. That's correct.
        Senator DeWine. Then it goes on to say, ``It is imperative
    that the facts be judged against an objective standard. Would
    the facts available to the officer at the moment of the seizure
    or the search warrant a man of reasonable caution to believe
    the action taken was appropriate?''
        Mr. Fishman. Precisely, Senator.
        Senator DeWine. That it is in fact an objective standard as
    well?
        Mr. Fishman. Yes, it is. The Court has insisted on that
    throughout, yes.
        Senator DeWine. We've finally found, Mr. Chairman,
    something that both our witnesses can agree on as far as what
    the law is.
        Mr. Fishman. Absolutely.
        Mr. Berman. We agree on that.
        Senator Kyl. Mr. Chairman, could I just ask one more
    question.
        Chairman Graham. Okay.
        Senator Kyl. One of the ideas that I originally had--and
    I'm not proposing this right now because it would require
    Senator DeWine's concurrence and we haven't had a chance to
    visit about it--but one possibility here is to take the Kyl-
    Schumer as one change to reduce the requirement of the
    organizational connection but maintaining the probable cause
    requirement to international terrorism. And then flip the coin
    over and say, however, if you have reasonable suspicion--if you
    can prove--if there is probable cause to believe that the
    individual is acting in concert with known terrorists as part
    of an international terrorist organization or is an agent of a
    foreign power--in other words, you've got a probable cause
    requirement to establish that, which is the existing law--then
    you could reduce the evidence of the planning to commit or is
    in the process of committing an act of terrorism to the
    reasonable standard test that Senator DeWine has suggested.
        The idea behind that being that, if you can demonstrate the
    connection to an agent of a foreign power or to a terrorist
    organization, then it would warrant a lower standard to get in
    and find out what's on this person's computer or what's in his
    home. But if you can't establish by probable cause the
    connection to the foreign government or terrorist organization,
    then you're going to have to have the existing probable cause
    standard.
        Mr. Fishman. In other words, probable cause of the
    connection to the group would be enough, plus reasonable
    suspicion that this particular individual is engaged in
    terrorist activities?
        Senator Kyl. Correct.
        Mr. Berman. There's another formulation of that which if
    you want to drop the--if you lower the probable cause prong of
    whether someone is an agent of a foreign power. In other words,
    we're not sure, rather than playing with the individual versus
    is a foreign power, then you might raise the evidentiary prong
    of the second part which is if we don't know, that we don't
    have probable cause that it's a terrorist group, we have to
    have something more like probable cause of a crime as a second
    prong of the test.
        Senator Kyl. Well, that's exactly what I was saying though.
    I mean that's the Kyle-Schumer provision. You still have to
    have the probable cause of the crime or the terrorism, you
    know, but you don't have to have the probable cause with the
    connection of the foreign country because maybe there isn't
    one. But there is still--and I understand the confusion because
    of the way we're doing this. We're changing a definition and I
    would agree with you, Mr. Berman, about one thing. It's not
    done in the most clearcut way. You know, you're your own agent,
    but you're a foreign person and therefore you could be
    connected to an act of international terrorism if we can prove
    that you're engaged in a terrorist activity.
        Mr. Berman. Right.
        Senator Kyl. So you get there but you have to connect the
    dots to get there and I understand that that does make it a
    little bit more confusing. But, if there is no probable cause
    nexus to foreign government or terrorist organization, then it
    seems to me that our bill is warranted, that you can focus on
    the individual but would have to have probable cause of the act
    of terrorism. Whereas, if you can make that connection to the
    foreign country or terrorist organization, then that would
    warrant you in applying a lesser standard--the DeWine
    standard--with respect to the terrorist activity that you're
    focused on. Wouldn't that be a possible way to approach this?
        Mr. Berman. I'd like to meet and talk about what we mean
    here because I've always read the second prong of the statute
    as a quasi-reasonable suspicion standard already. It is
    probable cause to believe that you are an agent of a foreign
    power and then it is who may be engaging in terrorism or
    activities. It's not who is--where we have probable cause to
    believe that he is engaged.
        Senator Kyl. See, I think you're correct and that's why I
    don't think that Senator DeWine's change really does that much
    damage to the intent of FISA to begin with. Do you have any
    comment on that, Mr. Fishman?
        Mr. Berman. You don't want to say it that--you want to make
    sure that it does some--if it doesn't affect the statute then--
    --
        Senator Kyl. Then why proceed, is what you're saying, yes?
        Mr. Fishman. I hate to come on like a law professor but
    what can I do? That's what I am. I'd feel much more comfortable
    looking at the language rather than giving an off-the-cuff
    reaction, although it's an intriguing idea.
        Senator Kyl. That's fair. Thank you, Mr. Chairman.
        Chairman Graham. Are there any further questions?
        Again, I want to thank both of you. I share the opinion
    that's been expressed by the Members of the value of having two
    thoughtful, knowledgeable individuals give us the benefit of
    their evaluation of the other's comments. That helps to sharpen
    the issue, for which we are both appreciative and the
    beneficiary.
        If there's no further discussion or questions, this hearing
    is closed.
        [Whereupon, at 4:33 p.m., the hearing was adjourned.]