[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
ANTI-TERRORISM INVESTIGATIONS AND THE FOURTH AMENDMENT AFTER SEPTEMBER
11, 2001
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HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
MAY 20, 2003
__________
Serial No. 35
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://www.house.gov/judiciary
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
CHRIS CANNON, Utah SHEILA JACKSON LEE, Texas
SPENCER BACHUS, Alabama MAXINE WATERS, California
JOHN N. HOSTETTLER, Indiana MARTIN T. MEEHAN, Massachusetts
MARK GREEN, Wisconsin WILLIAM D. DELAHUNT, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
MELISSA A. HART, Pennsylvania TAMMY BALDWIN, Wisconsin
JEFF FLAKE, Arizona ANTHONY D. WEINER, New York
MIKE PENCE, Indiana ADAM B. SCHIFF, California
J. RANDY FORBES, Virginia LINDA T. SANCHEZ, California
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
Philip G. Kiko, Chief of Staff-General Counsel
Perry H. Apelbaum, Minority Chief Counsel
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Subcommittee on the Constitution
STEVE CHABOT, Ohio, Chairman
STEVE KING, Iowa JERROLD NADLER, New York
WILLIAM L. JENKINS, Tennessee JOHN CONYERS, Jr., Michigan
SPENCER BACHUS, Alabama ROBERT C. SCOTT, Virginia
JOHN N. HOSTETTLER, Indiana MELVIN L. WATT, North Carolina
MELISSA A. HART, Pennsylvania ADAM B. SCHIFF, California
TOM FEENEY, Florida
J. RANDY FORBES, Virginia
Crystal M. Roberts, Chief Counsel
Paul B. Taylor, Counsel
D. Michael Hurst, Jr., Counsel
Mindy Barry, Full Committee Counsel
David Lachmann, Minority Professional Staff Member
C O N T E N T S
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MAY 20, 2003
OPENING STATEMENT
Page
The Honorable Steve Chabot, a Representative in Congress From the
State of Ohio, and Chairman, Subcommittee on the Constitution.. 1
The Honorable Jerrold Nadler, a Representative in Congress From
the State of New York, and Ranking Member, Subcommittee on the
Constitution................................................... 3
The Honorable Melvin L. Watt, a Representative in Congress From
the State of North Carolina.................................... 5
WITNESSES
Mr. Viet D. Dinh, Assistant Attorney General for the Office of
Legal Policy, Department of Justice
Oral Testimony................................................. 6
Prepared Statement............................................. 8
Mr. James X. Dempsey, Executive Director, The Center for
Democracy and Technology
Oral Testimony................................................. 13
Prepared Statement............................................. 15
Mr. Orin Kerr, Associate Law Professor, George Washington
University Law School
Oral Testimony................................................. 22
Prepared Statement............................................. 24
Mr. Paul Rosenzweig, Senior Research Fellow, The Heritage
Foundation
Oral Testimony................................................. 27
Prepared Statement............................................. 28
APPENDIX
Material Submitted for the Hearing Record
Additional questions submitted by Chairman Steve Chabot to
Assistant Attorney General Viet D. Dinh........................ 59
Letter from Assistant Attorney General Viet D. Dinh in response
to questions submitted by Chairman Steve Chabot................ 61
Legal Brief submitted by Rep. Robert C. Scott.................... 65
ANTI-TERRORISM INVESTIGATIONS AND THE FOURTH AMENDMENT AFTER SEPTEMBER
11, 2001
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TUESDAY, MAY 20, 2003
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:05 p.m., in
Room 2141, Rayburn House Office Building, Hon. Steve Chabot
(Chairman of the Subcommittee) presiding.
Mr. Chabot. The Committee will come to order. This is the
Subcommittee on the Constitution.
The Fourth Amendment provides that the right of the people
to be secure in their persons, houses, papers, and effects
against unreasonable searches and seizures shall not be
violated. Our hearing today will consider the extent to which
the implementation of the USA PATRIOT Act and some recent
changes to the FBI's investigative guidelines comport with the
Fourth Amendment and Fourth Amendment values.
In particular, the hearing will consider where and when the
Federal Government can go to search the addressing information
of electronic communications, library records, and public
settings in order to prevent terrorist attacks.
The attacks on September 11 had a profound impact on our
Nation and, in 1 day, changed the country's views on terrorism
in many ways. In the wake of these tragic events, Congress
stepped in and updated the law to fully engage in combatting
terrorism by passing the USA PATRIOT Act. Changes to the law
are still ongoing as current events unfold across the globe.
Today, the threat of danger remains despite our military
accomplishments in Afghanistan and Iraq. The recent deadly
bombings in Israel, Morocco, and Saudi Arabia, and the raised
terror alert in our country, show the need for law enforcement
to be equipped with the tools to combat the threat of
terrorism.
During the debate over the PATRIOT Act in the House, many
of us in Congress, including myself, raised concerns about
infringing on the civil liberties of the American people and,
therefore, supported protective measures, such as the sunset.
As we move forward in the process of providing the strong
measures that are necessary to combat terrorism, we must also
keep in mind the importance of protecting civil liberties
Americans hold dear.
The Constitution Subcommittee gathers today to join the
public debate regarding the balance between effective anti-
terrorism measures and civil liberties, keeping in mind that
one need not be the enemy of the other, while terrorism is the
enemy of both.
Today, we meet to address several recent developments.
First, prior to the enactment of the USA PATRIOT Act, the
Federal Government was allowed to access the numbers dialed on
a telephone line if a Government attorney certified to the
court that the information likely to be obtained is relevant to
an ongoing criminal investigation. Although this authority
allowed Government access only to numbers dialed on a telephone
line, it has been used by the Department of Justice to obtain
e-mail addresses, even if they contained only letters, names,
or words, and no numbers.
The Department was doing so on the theory that while e-mail
addresses are commonly referred to by names, such names are
viewed by the computers as numbers because of the binary system
of zeros and ones. Recognizing that such an argument could by
its internal logic make the full substance of electronic
communications accessible to the Government as digits, many
were concerned at the time that the Government's retrieval of
e-mail addresses was an unreasonably broad reading of the
statutory terms.
The changes made by the USA PATRIOT Act made clear that
addressing information of electronic communications could be
obtained by the Government by explicitly authorizing the
retrieval of dialing, routing, addressing, and signal
information. However, the USA PATRIOT Act also strengthened
privacy protections by clarifying that such addressing
information obtained shall not include the contents of any
communication. Further, the USA PATRIOT Act added new
conditions on the use of so-called data-sniffing programs used
by the FBI to gather electronic communications, including a
requirement that records be maintained regarding how such
programs are used, when they're used, how often they're used,
and what they collect. Today we will examine whether the
changes made by the USA PATRIOT Act regarding the Government's
access to electronic addressing information have struck the
proper balance.
Second, several of the September 11 terrorists used
computers at public libraries to access the Internet. The USA
PATRIOT Act updated the laws to make it more difficult for
terrorists to use public places, including public libraries, to
plot and carry out terrorist attacks. Prior to passage of the
USA PATRIOT Act, FISA, the Foreign Intelligence Surveillance
Act, empowered FISA courts to grant the FBI access to only
certain business records, namely those in the custody of common
carriers and businesses that provided public accommodations.
The USA PATRIOT Act amended FISA such that any tangible item
could be obtained with a FISA order--a term that can include
library records. Today we will examine whether the changes made
by the USA PATRIOT Act to the FISA law in this regard have
struck the proper balance.
Third, terrorist organizations operating in this country
have also used public places, including places of worship and
public websites, as recruiting grounds and gathering places.
Last year, changes were made to the FBI's internal guidelines
that authorized FBI agents to visit any place and attend any
event that is open to the public on the same terms and
conditions as members of the public generally. These changes
have made information available to FBI agents on a par with
local police and even young children accessing the Internet.
Others, however, have argued that the knowledge that political
activity at public events could be monitored by the Government
will chill free speech without significant benefits. Today,
we'll also examine whether these changes made to the FBI's
internal guidelines have struck the proper balance.
When Congress was debating the USA PATRIOT Act, which would
give law enforcement new tools to combat terrorism, we promised
to conduct vigilant oversight over the implementation of these
laws. This hearing today is a continuation of this important
oversight, and we look forward to hearing from our witnesses
here this afternoon.
I'll now yield to the gentleman from New York, Mr. Nadler,
for his opening statement.
Mr. Nadler. Thank you, Mr. Chairman.
Today, we review the USA PATRIOT Act, legislation that was
rushed into law in a manner that was, to say the least, not
conducive to careful and thoughtful consideration. While the
Members of our Committee worked cooperatively to forge
legislation that won unanimous and bipartisan support--
something rather unusual on this Committee--after, as I recall,
a 4-day markup carefully considering amendments and carefully
considering the balancing between privacy considerations and
national security, the legislation that was ultimately signed
into law bore little resemblance to the one we reported.
That legislation was drafted in secret over a weekend by
representatives of the Department of Justice and the House
leadership, was brought to the floor with no one having an
opportunity to see it in advance. Members had to vote on a
multi-hundred page bill, with no one having had a chance to
even read the bill, except for staffs. The bill was available
an hour in advance. People had to vote based on summaries.
This was shameful procedure to deal with legislation of
such vital import and impact on our very liberties. When people
said that we would have an opportunity to vet the legislation,
to send it out to law schools and civil liberty unions and
other groups that are interested for their comments, we were
told that the ideas in this legislation had been around for a
long time. True. Lots of ideas have been around for a long
time. It doesn't make them good ideas. It also wasn't clear
which ideas had gotten into the bill, the extent to which those
ideas have gotten into the bill, the form those ideas had
gotten into the bill. We were voting on the basic summaries.
And we were told we didn't have time to consider the
legislation properly because, if it were delayed by several
days, lives could be lost.
With this kind of hysteria, the bill was passed almost
sight unseen by the House, unfortunately. Now we are under--we
are going to do the kind of oversight that we really should
have done before voting on the bill. And it's about time we
are. There were and have been bipartisan concerns that powers
extended under the rubric of fighting terrorism, in fact allow
Federal agencies to reach well beyond the war on terrorism to
target the privacy and fundamental liberties of average law-
abiding Americans. Our witnesses today provide extensive
evidence that the concerns of those who oppose this law as well
as those who voted for it despite their misgivings have been
borne out.
Of even greater concern is the extent to which this
Administration's penchant for excessive secrecy has thwarted
the Members of this Committee in the discharge of our
constitutional duty to provide oversight of those activities
within our jurisdiction and to monitor the strengths and
weaknesses of the law and its implementation. I would hope that
the Administration would be more responsive to congressional
requests for specific rather than general information. ``We
can't tell you'' or, in effect, ``it's none of your business''
are not adequate or acceptable answers to a congressional
Committee seeking to exercise its legitimate oversight
functions. While I do not often find myself in agreement with
the Heritage Foundation, I think that we need to hear the--heed
the warning Mr. Rosenzweig makes in his testimony on the need
for careful and continuous congressional oversight.
Mr. Chairman, no one needs to instruct me about the dangers
of terrorism or the need to fight it effectively. My District
has been the target of repeated terrorist attacks, not only the
September 11 attack on the World Trade Center, but on several
occasions prior to that terrible day. Even now, there isn't a
single New Yorker who's not acutely aware that when--not if--
future acts of terror are attempted against this country, it
will likely be our homes, our workplaces, our families, our
neighbors, and our friends who will be at the top of the
terrorist lists. No community has a greater stake in a
successful war on terrorism than mine.
And yet, the--my constituents are consistently among the
most outspoken defenders of individual rights in this war on
terrorism. They do this not because they're indifferent to
their own safety, but because they understand that the choice
between liberty and safety is too often a false one. The abuse
of power is never a substitute for effective police work. As
Mr. Rosenzweig states in his prepared testimony, ``Any new
intrusion must be justified by a demonstration of its
effectiveness in diminishing the threat.''
It is not clear to me that targeting citizens or
organizations without any basis for suspicion that they are
engaged in illegal activity justifies a violation of their
privacy or that it is necessarily the most effective way to
provide for the safety and security of our Nation. I hope the
Administration can reassure me on this point.
So Mr. Chairman, I look forward to the testimony of our
panel. Liberty and security must not be partisan issues. They
represent the fundamental underpinnings of the American way of
life. We legislated in hysteria in October of 2001. We have
done this before in times of crisis. It is now time for a sober
second look. I want to commend you for scheduling this hearing.
I hope that we will be able to work together to provide
consistent and effective oversight of this pressing and timely
issue, and I hope that we can pass into law any necessary
amendments that we find to be necessary as a result of these
hearings. In particular, I'm interested in how the
Administration can justify the kind of intrusive oversight,
shall we say, of what people read in libraries that is included
in this act. And I look forward to your testimony--to their
testimony. Thank you, Mr. Chairman.
Mr. Chabot. Thank you. Do any other Members want to make
opening statements? Mr. Jenkins? Mr. Scott? Any of the Members?
Mr. Watt?
Mr. Watt. Thank you, Mr. Chairman. I'll be brief. I just
wanted to take the opportunity to thank the Chairman for
convening this hearing. I really can't think of a subject that
cries out for a hearing more than the issue that's before us
today. And I hope that this will be the first hearing and
prelude to a full Committee hearing on this issue. And I hope,
beyond that, that the Members of this House will use the
information that is being submitted at this hearing and
subsequent hearings to inform themselves better about how to
strike an appropriate balance in these difficult times, and
make sure that the constitutional imperatives are safeguarded.
I thank the Chairman for convening the hearing. I hope he
will encourage the full Committee chair, as we have been doing,
to have a follow-up hearing about the same issue. Thank you.
Yield back.
Mr. Chabot. Thank you. I would like to introduce the panel
at this time, and we have a very distinguished panel this
afternoon. I will start with our first witness, Viet Dinh. Mr.
Dinh is assistant attorney general for the Office of Legal
Policy at the Department of Justice. Prior to his entry into
Government service, Mr. Dinh was professor of law and deputy
director of Asian Law and Policy Studies at the Georgetown
University Law Center. Mr. Dinh has also been a law clerk to
Judge Lawrence Silverman of the U.S. Court of Appeals for the
D.C. Circuit and to U.S. Supreme Court Justice Sandra Day
O'Connor. We welcome you this afternoon, Mr. Dinh.
Our second witness is James Dempsey, the executive director
of The Center For Democracy and Technology, where he works on
privacy and electronic surveillance issues. Prior to joining
the center, Mr. Dempsey was deputy director of the Center for
National Security Studies. From 1985 to 1994, Mr. Dempsey was
assistant counsel to this Subcommittee, where his primary areas
of responsibility were oversight of the Federal Bureau of
Investigation, privacy, and civil liberties. And we welcome you
here this afternoon, Mr. Dempsey.
Our third witness is Orin Kerr, an associate law professor
at the Georgetown Law--at the George Washington University Law
School. Prior to his professorship, Mr. Kerr served for 3 years
as a trial attorney in the Computer Crime and Intellectual
Property Section of the Criminal Division at the U.S.
Department of Justice. He has also served as a special
assistant U.S. attorney for the Eastern District of Virginia,
and since leaving the Government, he has worked on a pro bono
basis as a criminal defense lawyer in computer crime cases. And
we welcome you here this afternoon, Mr. Kerr.
And our final witness today is Paul Rosenzweig, a senior
legal research fellow in the Center for Legal and Judicial
Studies at the Heritage Foundation, where his research
interests focus on issues of civil liberties and national
security, criminal law, law enforcement, and legal ethics. Mr.
Rosenzweig is also an adjunct professor of law at George Mason
University School of Law. In addition, Mr. Rosenzweig serves on
the District of Columbia Bar Legal Ethics Committee. He has
also served as senior litigation counsel in the Office of the
Independent Counsel and in private practice. I want to thank
you as well.
We thank you all for being here this afternoon. And as you
probably know, we have a 5-minute rule. There are lights on the
desk, and when the yellow light comes on, that gives you 1
minute to wrap up. And we'd appreciate it if you would conclude
close to the red light.
We'll start with you, Mr. Dinh, and again, welcome to the
Committee this afternoon.
STATEMENT OF VIET D. DINH, ASSISTANT ATTORNEY GENERAL FOR THE
OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE
Mr. Dinh. Thank you very much, Mr. Chairman. I thank you
and the Ranking Member for having this meeting and for having
me here. There has been much confusion, misinformation, and
indeed sometimes disinformation about the events after
September 11 or activities thereon, and I appreciate the
opportunity to clear up some of the confusion.
I fully share Mr. Nadler's call for more public
accountability and congressional information. That is why the
department has been cooperating with this Committee and the
full Committee on the questions on--with respect to oversight.
In that respect, I call the Members' attention to the 60-page
submission that we submitted last week containing information
regarding our activities, about which I hope to have an
opportunity to elucidate during this hearing.
Mr. Chairman, when the IRA failed in an attempt to
assassinate British Prime Minister Margaret Thatcher in 1984, a
spokesman said, ``Today we were unlucky. But remember, we only
have to be lucky once. You will have to be lucky always.'' That
simple statement underscored the momentous task facing the
Government after 9/11. Even as events in Saudi Arabia and
Morocco this past week remind us that the terrorist threat is
real and constant, we do take some comfort that terrorists have
not successfully attacked the American homeland since September
11.
In our judgment, the successful effort in preventing
another catastrophic attack on the American homeland in the
past 20 months would have been much more difficult, if not
outright impossible, without the tools that Congress has
authorized, in particular, the tools in the USA PATRIOT Act.
These authorities have substantially enhanced our ability to
investigate, prosecute, and most important, to prevent
terrorist attacks. In doing so, we are constantly mindful of
the legal and constitutional limits to governmental authority.
We have safeguarded the constitutional rights and civil
liberties of law-abiding Americans, just as we have protected
them from the threat of terror. We have achieved these twin
objectives by implementing common-sense reforms and utilizing
the tools that Congress has provided.
First, Congress has given us the legal authority to lower
the artificial wall that divided the intelligence-gathering and
law-enforcement functions of the FBI and the Department of
Justice. Section 218 of the USA PATRIOT Act permitted the use
of FISA authorities whenever ``a significant purpose of the
investigation is foreign intelligence.'' This simple change has
permitted the transformation of our counterterrorism efforts,
from the segregation of intelligence and law enforcement to a
culture of cooperation and coordination.
Already this transformation has born fruit. The Department
recently indicted Sami Al-Arian based on intelligence
information that was previously denied to criminal
investigators. Al-Arian is an alleged member of the Palestinian
Islamic Jihad, which has allegedly engaged in terrorist
killings of hundreds, including of Alisa Flatow, a young
American killed in a bus bombing in the Middle East. At the
direction of the Attorney General, criminal investigators in
the Department are currently reviewing over 4,500 other
intelligence files for information that may assist in the
prosecution or prevention of terrorist crimes.
This dramatic transformation of our intelligence and law-
enforcement culture comes at no cost to the civil rights and
liberties of law-abiding citizens. Information on terrorist
activities is collected according to established legal
standards and its use in criminal trials is governed by the
Constitution. Indeed, by making the most efficient use of
information already gathered on terrorist activity, this
transformation releases the pressure and reduces the demand for
the Government to collect even more information.
Second, Congress has updated the law to the technology so
that law enforcement no longer has to fight this 21st century
war with antique weapons. Section 216 of the USA PATRIOT Act,
for example, clarified--as you noted, Mr. Chairman--that courts
can authorize the use of pen register devices to capture non-
content routing and addressing information in electronic
communications, just as they can to capture telephone numbers
in analog telephone conversations.
This tool has been indispensable in our counterterrorism
efforts. For example, in the Danny Pearl investigation, agents
were able to use section 216 to obtain information that proved
critical to identifying some of Pearl's killers, who now stand
convicted in a Pakistani court of murder.
Again, Congress armed law enforcement with this powerful
weapon without sacrificing the constitutional rights and civil
liberties of law-abiding citizens. Of course, the Supreme Court
has long held that non-content information is not protected by
the Fourth Amendment, and section 216 extended this authority
to the digital communications world by using the same legal
predicate that existed in title III and in the analog world.
Third, and finally, we have authorized and motivated
investigative agents to use their common sense and best
judgment to prevent acts of terrorism. For decades, the
Attorney General's guidelines centralized decision making and
segregated information collected at field offices. We reversed
this perverse arrangement so that street agents and their
supervisors can collect the information and, once collected,
transmit it to headquarters for proper analysis.
Mr. Chairman, the greatest present threat to the American
people comes from the terrorists who seek to destroy our way of
life. The men and women of law enforcement, instead, seek to
protect that way of life and secure our liberty. The Department
will continue to do everything in our power, with your help, to
incapacitate the terrorists and to liberate the activities of
law-abiding Americans. I thank you very much.
[The prepared statement of Mr. Dinh follows:]
Prepared Statement of Viet D. Dinh
Good afternoon, Mr. Chairman and Members of the Subcommittee. I
appreciate the chance to testify today about the Justice Department's
ongoing efforts to protect the lives of innocent Americans, and our
commitment to doing so within the limits of the Fourth Amendment's
guarantee of individual privacy. After 9/11, the Attorney General gave
me a simple yet powerful directive: ``Think outside the box, but never
outside of the Constitution.'' Those instructions have been the
Department's guidepost ever since.
In the 20 months since the atrocities of September 11, 2001, this
Administration and Congress have worked hard to give our men and women
in blue the tools they need to keep America safe, such as the USA
PATRIOT Act and the revised Attorney General's investigative
guidelines. Each of these new authorities incorporates long-settled
precedent from the Supreme Court regarding privacy rights and other
constitutional norms. In many cases, these new tools simply enable
officials to use information to which other government entities already
have access. In other instances, they give agents permission to use
information that already is available to other members of the public.
This afternoon, I will discuss three matters that I hope will be of
use to the Subcommittee. First, I will trace the development of Fourth
Amendment jurisprudence to the contemporary understanding that it
protects individual privacy. Second, I will discuss how the USA PATRIOT
Act gave terrorism investigators access to information that other
government officials already possess or lawfully could possess--in
particular, how the Act encouraged the sharing of information and
coordination among intelligence and law-enforcement personnel; and how
the Act enabled courts to subpoena business records in all
investigations, not just routine criminal cases. Third, I will discuss
how the USA PATRIOT Act and Justice Department policies have enabled
investigators to collect information that terrorism suspects
voluntarily have disclosed to other members of the general public--in
particular, how the revised Attorney General's investigative guidelines
gave law enforcement the same access to public places and information
that all other Americans enjoy; and how the Act facilitated the
gathering of non-private routing and addressing information about
electronic communications.
the fourth amendment from trespass to privacy
Over the course of the twentieth century, the Fourth Amendment came
to be understood as protecting certain forms of individual privacy--
what Justice Brandeis called the ``right to be let alone--the most
comprehensive of rights and the right most valued by civilized men''
\1\--not just as preventing unauthorized government trespass onto
landowners' private property.
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\1\ Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis,
J., dissenting).
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The traditional ``trespass'' conception of the Fourth Amendment is
typified by the 1928 case Olmstead v. United States.\2\ In holding that
law enforcement did not carry out an ``unreasonable search or seizure''
when it conducted a warrantless telephone wiretap, the Supreme Court
reasoned that ``[t]he evidence was secured by the use of the sense of
hearing and that only. There was no entry of the houses or offices of
the defendants.'' \3\ According to the Court, no trespass, no
violation. But Olmstead also contained the seeds of a new understanding
of the Fourth Amendment. In dissent, Justice Brandeis emphasized that
``[s]ubtler and more far-reaching means of invading privacy have become
available to the government. Discovery and invention have made it
possible for the government, by means far more effective than
stretching upon the rack, to obtain disclosure in court of what is
whispered in the closet.'' \4\
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\2\ 277 U.S. 438 (1928).
\3\ Id. at 464.
\4\ Id. at 478 (Brandeis, J., dissenting).
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Less than four decades later, in Katz v. United States,\5\ the
Supreme Court held that warrantless government wiretapping can
constitute an unreasonable search or seizure. The Court effectively
adopted Justice Brandeis's `privacy'' reading of the Fourth Amendment:
``[T]he Fourth Amendment protects people, not places.'' \6\ In response
to Katz, Congress enacted Title III of the 1968 Omnibus Crime Control
and Safe Streets Act,\7\ which governs electronic surveillance for
federal criminal offenses. Congress subsequently enacted the Electronic
Communications Privacy Act (``ECPA''), which addresses government
access to stored communications,\8\ and establishes statutory standards
and procedures for the use of pen registers and trap and trace
devices.\9\
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\5\ 389 U.S. 347 (1967).
\6\ Id. at 351.
\7\ 18 U.S.C. Sec. Sec. 2510-22.
\8\ Id. Sec. Sec. 2701-12.
\9\ Id. Sec. Sec. 3121-27.
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Katz left open the question what standards and procedures apply to
government surveillance in national-security investigations.\10\ But in
the 1972 Keith decision,\11\ the Supreme Court squarely held that the
Fourth Amendment is applicable in domestic-security investigations:
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\10\ See Katz, 389 U.S. at 358 n.23 (``Whether safeguards other
than prior authorization by a magistrate would satisfy the Fourth
Amendment in a situation involving the national security is a question
not presented by this case.'').
\11\ United States v. United States District Court (``Keith''), 407
U.S. 297 (1972).
We recognize, as we have before, the constitutional basis of
the President's domestic security role, but we think it must be
exercised in a manner compatible with the Fourth Amendment. In
this case we hold that this requires an appropriate prior
warrant procedure.\12\
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\12\ Id. at 320.
At the same time, the Keith Court emphasized that different rules could
be appropriate in national-security investigations--including cases of
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terrorism--than the standard procedures for criminal investigations:
Given [the] potential distinctions between Title III criminal
surveillances and those involving the domestic security,
Congress may wish to consider protective standards for the
latter which differ from those already prescribed for specified
crimes in Title III. Different standards may be compatible with
the Fourth Amendment if they are reasonable both in relation to
the legitimate need of Government for intelligence information
and the protected rights of our citizens.\13\
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\13\ Id. at 322.
In 1978, Congress responded to the Court's invitation by enacting
the Foreign Intelligence Surveillance Act (``FISA'').\14\ FISA
establishes standards applicable to surveillance of foreign powers and
agents of foreign powers--including electronic surveillance, physical
searches, and use of pen registers and trap and trace devices--in
relation to the investigation of such matters as international
terrorism and espionage.
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\14\ 50 U.S.C. Sec. Sec. 1801-62.
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facilitating information sharing and an integrated antiterrorism
campaign
One of the USA PATRIOT Act's most important innovations was the
amendments it made to FISA, which allow national-security personnel and
their law-enforcement counterparts to coordinate their efforts to keep
America safe. Acts of terrorism are simultaneously criminal offenses
and threats to our national security. Our response likewise must
transcend the boundaries of an organizational chart.
Before the USA PATRIOT Act, a metaphorical ``wall'' between the
intelligence community and federal law enforcement often precluded
vital information sharing. This wall, which derived from certain court
decisions,\15\ was established in written Department guidelines in July
1995. Under this interpretation, FISA could be used only if the
``primary purpose'' of an investigation was to protect the national
security; evidence could be gathered to prosecute a foreign terrorist
only if that purpose was clearly secondary. While information could be
``thrown over the wall'' from intelligence officials to prosecutors,
the decision to do so always rested with national-security personnel--
even though law enforcement agents pursuing a criminal investigation
are in a better position to determine what evidence is pertinent to
their case. These legal rules created what the Foreign Intelligence
Surveillance Court of Review has termed ``perverse organizational
incentives,'' expressly discouraging cooperation in the fight against
terrorism.\16\ With apologies to Robert Frost, ``[s]omething there is
that doesn't love a wall.'' \17\
---------------------------------------------------------------------------
\15\ See, e.g., United States v. Truong, 629 F.2d 908 (4th Cir.
1980), cert. denied, 454 U.S. 1144 (1982).
\16\ See In re Sealed Case, 310 F.3d 717, 743 (FISCR 2002).
\17\ Robert Frost, Mending Wall, reprinted in The New Oxford Book
of American Verse 395-96 (R. Ellmann ed. 1976).
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The USA PATRIOT Act finally permitted the coordination between
intelligence and law enforcement that is vital to protecting the
nation's security. Specifically, section 218 displaced the outmoded
``primary purpose'' standard, allowing the use of FISA when a
``significant purpose'' of an investigation is foreign intelligence.
The Justice Department since has developed procedures to allow the use
of certain FISA-derived information in criminal prosecutions. And on
November 18, 2002 the FISA Court of Review held that these procedures
are consistent with the Fourth Amendment, reasoning ``that FISA as
amended is constitutional because the surveillances it authorizes are
reasonable.'' \18\
---------------------------------------------------------------------------
\18\ Id. at 746.
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Both before and since the Court of Review's decision, the Justice
Department has fostered extensive cooperation among national-security
and law-enforcement personnel. The Attorney General instructed all
United States Attorneys to review their intelligence files, with the
intent of discovering whether there was a basis to bring criminal
charges against the subjects of intelligence investigations. On October
1, 2002, the Attorney General directed every U.S. Attorney to develop a
plan to monitor terrorism and intelligence investigations, and to
ensure that information about terrorist threats is shared with other
agencies and that criminal charges are considered. Almost 4,500
intelligence files have been reviewed as part of this process, and
information from this review has been incorporated in numerous cases.
The USA PATRIOT Act's revisions to FISA already are producing
important dividends in the war on terror. Department of Justice
prosecutors recently were able to obtain the indictment of Sami al-
Arian, an alleged member of a Palestinian Islamic Jihad (PIJ) cell in
Tampa, Florida. PIJ is alleged to be one of the world's most violent
terrorist outfits, and is responsible for murdering over 100 innocent
people, including Alisa Flatow, a young American killed in a bus
bombing near the Israeli settlement of Kfar Darom. Section 218 of the
USA PATRIOT Act, as well as the Department's implementing rules,
enabled criminal investigators finally to obtain and consider
systematically the full range of evidence of the PIJ operations in
which al-Arian allegedly participated.
enabling courts to subpoena records in all types of investigations
In the same way that national-security officers must be allowed to
coordinate their antiterrorism efforts with law-enforcement personnel,
the Department firmly believes that terrorism investigators must be
able to use the same tools available in routine criminal
investigations. For that reason, section 215 of the USA PATRIOT Act
authorized courts in terrorism and national-security cases to subpoena
business records--which have long been available in ordinary criminal
investigations.
For years, grand juries investigating ordinary crimes have been
able to issue subpoenas to all manner of businesses. In the 1997 Gianni
Versace murder investigation, a Florida grand jury subpoenaed records
from public libraries in Miami Beach.\19\ In the Unabomber case during
the mid-1990s, federal grand juries reportedly wanted to learn who had
checked out the four books cited in the ``Unabomber Manifesto,'' and
therefore subpoenaed records from a number of university libraries on
the west coast.\20\ And in the 1990 Zodiac gunman investigation, a
grand jury in New York subpoenaed records from a public library in an
effort to learn who had checked out books written by a Scottish occult
poet believed to be the gunman's inspiration.\21\
---------------------------------------------------------------------------
\19\ See Lydia Martin, Agents Seek Cunanan Link to Missing Library
Book, Miami Herald, July 24, 1997, at A19.
\20\ See Gary Marx and Peter Kendall, Unabomber Path Leads back to
Utah, Chicago Tribune, Sept. 25, 1995, at 1.
\21\ See Library Files Checked In Zodiac Investigation, N.Y. Times,
July 18, 1990, at B4.
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Section 215 simply authorized the FISA court to issue similar
orders in national security investigations. These judicial orders
conceivably could issue to bookstores or libraries but section 215
certainly does not single them out. The words ``library'' and
``bookstore'' appear nowhere in the USA PATRIOT Act. Nevertheless,
libraries and bookstores should not be allowed to become safe havens
for terrorists.
Moreover, the USA PATRIOT Act goes to great lengths to protect the
privacy rights of libraries, other affected entities, and their
patrons. First, the FBI cannot obtain records under section 215 unless
it receives a court order. Agents cannot unilaterally force people to
turn over any information; they must appear before a court and convince
it that they need the records.\22\ Second, section 215 has an extremely
narrow scope. It can only be used in international terrorism and
espionage investigations; it is not available to investigate ordinary
crimes, or even domestic terrorism.\23\ Third, section 215 expressly
protects the First Amendment, banning the FBI from using the exercise
of First Amendment rights as a pretext for seeking records.\24\ Fourth,
and finally, section 215 provides for thorough congressional oversight.
Every six months, the Attorney General is required to ``fully inform''
Congress on how it is being used.\25\ The Justice Department furnished
Congress with the required information most recently on December 31,
2002.
---------------------------------------------------------------------------
\22\ See 50 U.S.C. Sec. 1861(b)(1), (c)(1).
\23\ See id. Sec. 1861(b)(2).
\24\ See id. Sec. 1861(a)(1), (a)(2)(B).
\25\ Id. Sec. 1862.
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allowing law enforcement equal access to public information
FBI agents should have the same access to public places, events,
and information that all other members of the general public enjoy. If
terrorists open their meetings to the public, FBI agents ought to be
able to accept the invitation. And if a child can use the internet to
look up information that is relevant to potential terrorist activity,
the FBI should be able to do the same. The revised Attorney General's
investigative guidelines eliminated these counterproductive
restrictions that prevented federal law enforcement from collecting
information that was already in the public domain.
Under the old guidelines, there was no clear authority for agents
to attend events held open to the general public--for example,
meetings, speeches, and demonstrations--unless they already had
obtained evidence that some sort of criminal activity was afoot. The
old guidelines likewise generally barred the FBI from accessing
publicly available information on the internet except when
investigating a specific case. Thus, for example, during the fall 2001
anthrax investigation, an FBI agent might have been able to log on to
an internet site to gather information about anthrax--but could not
have accessed the same web page to gather information about another
biotoxin such as smallpox.
The revised guidelines, issued in May 2002, represent a significant
step forward in the war on terrorism. These new rules make explicit
that an FBI agent may visit any public place to which members of the
general public are invited, unless the Constitution or a federal law
prohibits them from doing so, for the specific purpose of detecting or
preventing terrorism:
For the purpose of detecting or preventing terrorist
activities, the FBI is authorized to visit any place and attend
any event that is open to the public, on the same terms and
conditions as members of the public generally. No information
obtained from such visits shall be retained unless it relates
to potential criminal or terrorist activity.\26\
---------------------------------------------------------------------------
\26\ The Attorney General's Guidelines on General Crimes,
Racketeering Enterprise and Terrorism Enterprise Investigations, Part
VI.A.2.
The guidelines also strengthen the FBI's intelligence-gathering
capabilities by making plain that agents may access public information
online, even when not linked to a particular criminal investigation,
---------------------------------------------------------------------------
for the purpose of detecting or preventing terrorism:
The FBI is authorized to carry out general topical research,
including conducting online searches and accessing online sites
and forums as part of such research on the same terms and
conditions as members of the public generally.\27\
---------------------------------------------------------------------------
\27\ Id. Part VI.B.1.
For the purpose of detecting or preventing terrorism or other
criminal activities, the FBI is authorized to conduct online
search activity and to access online sites and forums on the
same terms and conditions as members of the public
generally.\28\
---------------------------------------------------------------------------
\28\ Id. Part VI.B.2.
The new guidelines contain a number of safeguards designed to
preserve First Amendment, Fourth Amendment, and other constitutional
norms. First, FBI agents may visit a public event or conduct internet
research under the new authorizations only ``on the same terms and
conditions as members of the public generally.'' \29\ Next, agents may
conduct such visits only for a single, narrow purpose: ``detecting or
preventing terrorist activities.'' \30\ Third, agents are expressly
prohibited from keeping any information from these visits ``unless it
relates to potential criminal or terrorist activity.'' \31\ Fourth,
agents may not use these new authorities to keep files on people on the
basis of their constitutionally protected activities.\32\ Next, the
guidelines stress that investigative activities may not be based solely
on persons' exercise of their legal rights.\33\ Sixth, and finally, the
guidelines specifically order agents to comply with all relevant laws,
including the Constitution, when conducting all investigations \34\
---------------------------------------------------------------------------
\29\ Id. Part VI.A.2; id. Part VI.B.2.
\30\ Id. Part VI.A.2
\31\ Id.
\32\ Id. Part VI.C.1
\33\ Id. Part I.
\34\ Id. Introduction, Sec. C.
---------------------------------------------------------------------------
The revised Attorney General's guidelines fit comfortably within
the Supreme Court's long-settled jurisprudence that there is no
reasonable expectation of privacy in information voluntarily turned
over to third parties. In fact, the Supreme Court has already held that
government observation of public places is consistent with the First
and Fourth Amendments. In Laird v. Tatum,\35\ the Court held that the
Army did not unconstitutionally ``chill'' the plaintiffs' exercise of
their First Amendment rights by collecting publicly available
information about potential insurrections and other civil disturbances.
The Court found especially significant the fact that the Army gathered
information from ``the news media and publications in general
circulation,'' as well as from ``agents who attended meetings that were
open to the public.'' \36\ As is true under the new guidelines, ``the
information gathered is nothing more than a good newspaper reporter
would be able to gather by attendance at public meetings and the
clipping of articles from publications available on any newsstand.''
\37\
---------------------------------------------------------------------------
\35\ 408 U.S. 1, 6 (1972).
\36\ Id. at 6.
\37\ Id. at 9 (citation omitted).
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enabling the collection of non-private information about
internet communications
Courts must be able to allow law enforcement to track the
communications of terrorists regardless of which medium they choose to
use. No one type of communication should be beyond the reach of court-
approved, and Fourth Amendment sanctioned, surveillance. That is why
section 216 of the USA PATRIOT Act has proven to be one of the most
vital new authorities in the war on terrorism. Section 216 clarified
that courts can authorize the use of ``pen registers'' and ``trap and
trace devices''--which track the numbers a particular telephone dials
or receives--to obtain the same sort of routing and addressing
information about internet communications. By law, pen/trap devices
cannot be used to collect the content of communications.
Almost a quarter of a century ago, the Supreme Court squarely held,
in the context of telephone surveillance, that the use of pen/trap
devices does not constitute a ``search'' within the meaning of the
Fourth Amendment. This is so because ``a person has no legitimate
expectation of privacy in information he voluntarily turns over to
third parties,'' and ``when he used his phone, petitioner voluntarily
conveyed numerical information to the telephone company.'' \38\ The
same is true of internet communications, in which routing and
addressing information is voluntarily disclosed to internet service
providers. As a result, nothing in the Constitution requires law
enforcement to establish probable cause, or obtain a court order,
before using a pen/trap device. (Congress, by statute, has established
procedural requirements that exceed those imposed by the Fourth
Amendment.\39\)
---------------------------------------------------------------------------
\38\ Smith v. Maryland, 442 U.S. 735, 744 (1979).
\39\ See 18 U.S.C. Sec. Sec. 3121-27.
---------------------------------------------------------------------------
Since the USA PATRIOT Act became law in October 2001, Justice
Department field investigators and prosecutors have used the amended
pen/trap statute in a number of terrorism and other criminal cases.
Section 216 was used in the investigation of the murder of Wall Street
Journal reported Daniel Pearl, to obtain information that proved
critical to identifying some of the perpetrators. It also has been used
to collect routing information about the internet communications of (1)
terrorist conspirators; (2) at least one major drug distributor; (3)
thieves who obtained victims' bank account information and stole the
money; (4) a four-time murderer; and (5) a fugitive who fled on the eve
of trial using a fake passport.
Section 216 has proven as effective at safeguarding Fourth
Amendment values as it has at bringing terrorists to justice. The USA
PATRIOT Act preserved all pre-existing statutory standards: now, as
before, law enforcement must get court approval before installing a pen
register.\40\ And now, as before, law enforcement must show that the
information sought is relevant to an ongoing investigation.\41\
---------------------------------------------------------------------------
\40\ See id. Sec. 3123(a)(1).
\41\ See id. Sec. 3122(b)(2).
---------------------------------------------------------------------------
In fact, the USA PATRIOT Act's revisions to the pen/trap statute
actually have enhanced privacy protections. The Act made explicit what
was already implicit in the prior provision, namely, that an agency
deploying a pen/trap has an affirmative obligation to use ``technology
reasonably available to it'' that restricts the information obtained
``so as not to include the contents of any wire or electronic
communications.'' \42\ The Act also made explicit that a pen/trap is
not to be viewed as an affirmative authorization for the interception
of content: ``such information shall not include the contents of any
communication.'' \43\
---------------------------------------------------------------------------
\42\ Id. Sec. 3123(c).
\43\ Id. Sec. 3127(3).
---------------------------------------------------------------------------
The Justice Department is committed to complying with the USA
PATRIOT Act's mandate that law enforcement not use pen registers to
capture the content of communications. On May 24, 2002, the Deputy
Attorney General issued a memorandum to field offices instructing them
on how to prevent ``overcollection''--i.e., the inadvertent gathering
of communication content--when using pen/trap devices. In particular,
he ordered that:
(1) law enforcement must ``operate a pen register or trap and
trace device in a.manner that, to the extent feasible with
reasonably available technology, will minimize any possible
overcollection while still allowing the device to collect all
of the limited information authorized'';
(2) if ``an agency's deployment of a pen register does result
in the incidental collection of some portion of `content,' it
is the policy of this Department that such `content' may not be
used for any affirmative investigative purpose, except in a
rare case in order to prevent an immediate danger of death,
serious physical injury, or harm to the national security'';
and
(3) ``The Assistant Attorney General for the Criminal Division
(AAG) should ensure that the Criminal Division provides
appropriate guidance, through amendments to the United States
Attorneys' Manual or otherwise, with respect to any significant
general issues concerning what constitutes the `content' of a
communication.'' \44\
---------------------------------------------------------------------------
\44\ Memorandum from Deputy Attorney General Larry D. Thompson Re:
Avoiding Collection and Investigative Use of ``Content'' in the
Operation of Pen Registers and Trap and Trace Devices, at 4-5 (May 24,
2002).
The Deputy Attorney General's directive will help guarantee
effective implementation of section 216, while protecting the privacy
of internet users by ensuring that only addressing information--and not
the content of their communications--is collected and used.
The Justice Department's mission since the September 11 terrorist
attacks has been as clear as it is essential: preserving the lives of
innocent Americans along with the constitutional rights and liberties
that make us as a people the envy of the world. In particular, we have
dedicated ourselves to ensuring that all efforts to gather information
about potential deadly terrorist attacks comply with the strictures of
the Fourth Amendment's guarantee of individual privacy. Together with
Congress, we have given investigators access to terrorism-related
information that other governmental entities already have acquired, or
lawfully could acquire. And we have enabled law enforcement to make use
of information that can be retrieved by anyone in the public domain.
On behalf of the Administration, I thank you for your commitment to
keeping America both safe and free, and we look forward to continuing
our partnership. I would be happy to answer any questions that you may
have.
Mr. Chabot. Thank you. Mr. Dempsey?
You have to hit the button there.
STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, THE CENTER
FOR DEMOCRACY AND TECHNOLOGY
Mr. Dempsey. Thank you, Mr. Chairman. Good afternoon, Mr.
Nadler, Members of the Subcommittee. Thank you for giving us
the opportunity to testify today at this very important
hearing. We commend Members of this Subcommittee and Chairman
Sensenbrenner and Mr. Conyers for the oversight that you have
been pursuing into the application of the PATRIOT Act. This
hearing is clearly just one step in that process.
I think that the answers to the questions that were
submitted by the Justice Department--we just received them
today, 69 pages--are another step. I'll say that in quickly
looking at some of those, I have to say that some of them were
not entirely clear answers and they raise additional questions,
which, naturally, this Subcommittee and the full Committee will
have to follow up on. We also received just today a 100-page
report submitted by the Department of Defense in response to
the Wyden-Grassley amendment on Total Information Awareness and
data mining. So that's another form of congressional oversight
that's now available to the public to help us understand how
effective our laws are and their impact on civil liberties.
Undoubtedly, terrorism poses an imminent and grave threat
to our society, and our Government needs the tools to fight
this. But those tools need to be subject to checks and
balances. They must be exercised with a focus on potential
violence. They must be guided by the particularized suspicion
requirement of the Fourth Amendment, which prohibits blanket
searches. And they must be subject to executive, legislative,
and judicial controls.
Yet before the PATRIOT Act, before 9/11, in our view, some
of those checks and balances were weak and some of those
controls were lacking. And the PATRIOT Act and other Executive
Branch actions taken since then have brought us into a
situation where the Government's powers are not well guided.
And I think that is a problem both from an effectiveness
standpoint, from a--from the standpoint of making us safer, as
well as from the standpoint of constitutional rights.
I want to highlight just a few items and then respond to
your more detailed questions. Specifically on the question of
libraries, which Mr. Nadler raised, libraries are not a law-
free zone. They should not be a haven for terrorists. They
never were. The question has always been what is the standard
that the Government needs to follow in order to get information
from a library or from other--any other entity. And in the
PATRIOT Act, really, the standards that had been in place,
which required some reason to believe that there was some
connection with terrorism and some minimal factual showing,
some relationship to an individual, those standards were
eliminated. And now, the so-called section 215 of the PATRIOT
Act and the so-called national security letter authorities, at
least to my reading, seem to allow the Government to get entire
databases--not to go in and ask for the books that a terrorist
has read, but to ask for the books that everybody has read--or
the suspected terrorists, but to ask for the books read by
everybody.
Assistant Attorney General Dinh has mentioned the changes
to the Foreign Intelligence Surveillance Act. We are now going
to be seeing more information acquired under FISA used in
criminal cases, and in many respects that's appropriate. But
when that information is used, it should be subject to the
normal criminal due process rules. And right now, defendants
facing FISA evidence in court do not enjoy the same rights that
a defendant normally enjoys in dealing with wiretap information
collected under the title 3 criminal wiretap law.
The pen register trap and trace statute, the statute that
allows the collection of transactional information--dialed
number information or e-mail addressing information--perfectly
appropriate that the Government should have laws that keep up
with the technology to acquire that information when justified,
but the law as it now stands really doesn't have any standards
in it. It says that Government can get one of those orders just
upon the certification of a prosecutor that it is relevant to
an ongoing investigation. No factual inquiry at all by the
judge. The judge, really, just becomes a rubber stamp. That
information is good, it's useful, but it should be subject to
standards.
Similarly, there should be tighter standards on the use of
secret searches which were authorized in the PATRIOT Act. The
whole question of data mining, which is now a major subject in
the news, we just don't have the laws that are applicable to
that. The Privacy Act doesn't apply and other laws do not
apply.
So we really need to put these protections in place, and if
we do, I believe that they actually do not limit
counterterrorism effectiveness. These are things that help
guide it and focus it and make it more effective. And I think
we can do that in a way that makes us safer without sacrificing
civil liberties.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Dempsey follows:]
Prepared Statement of James X. Dempsey
Mr. Chairman, Mr. Nadler, Members of the Subcommittee, thank you
for the opportunity to testify today at this important hearing. We
commend Chairman Sensenbrenner and Mr. Conyers and you, Chairman Chabot
and Mr. Nadler, for the oversight you are conducting of the
effectiveness of the nation's counter-terrorism laws and their
implications for civil liberties. The Center for Democracy and
Technology \1\ urges you to continue this process, and we look forward
to being of assistance to you however we can. In my testimony today, I
make specific suggestions for further avenues of oversight.
---------------------------------------------------------------------------
\1\ The Center for Democracy and Technology is a non-profit, public
interest organization dedicated to promoting civil liberties and
democratic values for the new digital communications media. Our core
goals include enhancing privacy protections and preserving the open
architecture of the Internet. Among other activities, CDT coordinates
the Digital Privacy and Security Working Group (DPSWG), a forum for
computer, communications, and public interest organizations, companies
and associations interested in information privacy and security issues.
---------------------------------------------------------------------------
i. summary
The main points I wish to make today are these: The threat
terrorism poses to our nation is imminent and grave. The government
must be provided with strong legal authorities to prevent terrorism to
the greatest extent possible and to punish it when it occurs. These
authorities must include the ability to infiltrate organizations,
collect information from public and private sources, and carry out
wiretaps and other forms of electronic surveillance. These legal
powers, however, must be subject to checks and balances; they must be
exercised with a focus on potential violence, guided by the
particularized suspicion principle of the Fourth Amendment, and subject
to Executive, legislative and judicial controls. Yet the checks and
balances, weak in some key respects before 9/11, have been seriously
eroded by the PATRIOT Act and Executive Branch actions. Prior to 9/11,
the government had awesome powers but failed to use them well. Those
failures had little if anything to do with the rules established to
protect privacy. The changes in the PATRIOT Act were hastily enacted--
mistakes were made that Congress should rectify, by reasserting
standards and checks and balances and by practicing ongoing,
nonpartisan, detailed oversight, starting with close scrutiny of the
government's claims that the PATRIOT Act changes have been vital to
recent successes.
In response to the specific question posed by the title of this
hearing, my central point is that, both before 9/11 and now, the
government had and still has authority to go anywhere and collect any
information to prevent terrorist attacks. Before 9/11, the exercise of
that authority domestically was controlled and focused--the government
had to have some minimal basis to suspect that some criminal conduct
was being planned or that there was some minimal connection with a
foreign terrorist group. Under the changes that have been made since 9/
11, the FBI is authorized by the Attorney General to go looking for
information about individuals with no reason to believe they are
engaged in, or planning, or connected to any wrongdoing. Before 9/11,
mosques and political events were not off-limits and the FBI did go
into religious and political gatherings to collect information--where
it had some minimal reason for believing that there was some connection
between that mosque or political meeting and terrorism. Now, FBI agents
can apparently wander down the street and visit mosques or political
meetings like anyone else--on a whim. Before 9/11, the FBI was not
prohibited from use of commercial databases. But under the PATRIOT Act
and other laws, the FBI may have the authority to scoop up entire
databases of information, including data on persons suspected of no
wrongdoing. Our laws are totally inadequate to deal with the reality of
decentralized commercial databases and the new techniques of data
mining.
Both before 9/11 and today, the only question has ever been one of
standards, checks and balances and procedures. With the changes adopted
since 9/11, domestic law enforcement and intelligence agencies have
fewer standards to guide them and are subject to less oversight and
accountability to check up on their performance. The result, I fear, is
unfocused investigative activity that is bad for security and bad for
civil liberties.
I will concentrate today on the surveillance issues that I
understand are the Subcommittee's main interest, but for purposes of
context, I must briefly mention that some of the greatest abuses of
civil liberties since 9/11 do not flow from the PATRIOT Act and have
not been the subject of Congressional authorization or scrutiny,
including:
secret arrests of hundreds and maybe more than 1000
people;
the detention of many of those for days, weeks or
even longer without charges, even though Congress had set a 7
day limit even for non-citizens detained as suspected
terrorists;
abuse of the material witness statute to hold people
without charges;
the blanket closing of deportation hearings;
the indefinite detention of two American citizens in
military prisons without criminal charges;
selective targeting of immigrants for enforcement
based on their religion.\2\
---------------------------------------------------------------------------
\2\ Many of these abuses are detailed in the report of the Lawyers
Committee for Human Rights, ``Imbalance of Powers: How Changes to U.S.
Law and Policy since 9/11 Erode Human Rights and Civil Liberties,''
[PDF] March 11, 2003, online at http://www.lchr.org/us--law/loss/
imbalance/powers.pdf.
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ii. u.s. v. miller and the dragnet approach of section 215 and national
security letters
In the 1970s, the Supreme Court issued a series of momentous
decisions holding that citizens lose their constitutional rights in
information provided to third parties in the course of commercial
transactions. United States v. Miller, 425 U.S. 435 (1976), held that
there is no constitutional privacy interest in the records held by
banks showing who has paid you money, to whom you have paid money,
amounts, dates, etc. Smith v. Maryland, 442 U.S. 735 (1979), held that
telephone users have no constitutional privacy interest in the
transactional information that shows who is calling them, whom they are
calling, when, how often and for how long. Fast forward through the
digital revolution, and the ``business records'' exception has become a
gaping hole in the Fourth Amendment. Under current law, you have no
constitutional privacy right in any of the data you generate as you go
about your daily life, using credit cards, building access cards, or
Easy Passes, making travel plans, or buying things. Taken together, the
transactional data generated every time you dial your telephone, write
a check, send an email, or go to the doctor can provide a full picture
of your life, your work, your interests and your associations, but it
is, under current law, constitutionally unprotected.
The PATRIOT Act exploited this situation, granting broad
authorities beyond anything contemplated in U.S. v. Miller or Smith v.
Maryland. Section 215 of the Act amended the Foreign Intelligence
Surveillance Act to authorize the government to obtain a court order
from the FISA court or designated magistrates to seize ``any tangible
things (including books, records, papers, documents, and other items)''
that an FBI agent claims are ``sought for'' an authorized investigation
``to protect against international terrorism or clandestine
intelligence activities.'' The subject of the order need not be
suspected of any criminal wrongdoing whatsoever; indeed, if the statute
is read literally, the order need not name any particular person but
may encompass entire collections of data related to many individuals.
Section 505 of the PATRIOT Act similarly expanded the government's
power to obtain telephone and email transactional records, credit
reports and financial data with the use of a document called the
National Security Letter (NSL), which is issued by FBI officials
without judicial approval.\3\ Sections 507 and 508 granted authority to
the Attorney General or his designee to obtain a court record for
disclosure of education records.
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\3\ CDT has prepared a detailed memo on data mining, which
discusses Section 215 and the NSLs: ``Privacy's Gap: The Largely Non-
Existent Legal Framework for Government Mining of Commercial Data,''
May 19, 2003, available online at http://www.cdt.org.
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In the past, the government could obtain a person's records from a
bank, credit bureau, telephone company, hospital, or library in the
course of a criminal investigation. In addition, prior to the PATRIOT
Act, in international terrorism investigations, the FBI had the power
to compel disclosure of credit, financial and communications records
with National Security Letters and travel records under the predecessor
of Section 215. However, Congress had set a straightforward and
relatively low standard that required some factual predicate and
particularized focus: the government had to have reason to believe that
the records being sought pertained to an ``agent of a foreign power''--
an intelligence officer, for example, or a member of an international
terrorist organization. Reason to believe is a very low standard, much
lower than probable cause.
The PATRIOT Act eliminated both the ``agent of a foreign power''
standard and the reason to believe standard, giving the FBI access with
National Security Letters to specific categories of records in
intelligence investigations with no factual basis to believe that the
records pertained to a possible terrorist. And Section 215 created a
massive catch-all provision that gave the FBI the ability to compel
anyone to disclose any record or tangible thing that the FBI claims is
``sought in connection with'' an investigation of international
terrorism or ``clandestine intelligence activities,'' even if the
record does not pertain to a suspected spy or international terrorist.
The implications of this change are enormous. Previously, the FBI
could get the credit card records of anyone suspected of being a
foreign agent. Under the PATRIOT Act, broadly read, the FBI can get the
entire database of the credit card company. Under prior law, the FBI
could get library borrowing records only with a subpoena in a criminal
investigation, and generally had to ask for the records of a specific
patron. Under the PATRIOT Act, broadly read, the FBI can go into a
public library and ask for the records on everybody who ever used the
library, or who used it on a certain day, or who checked out certain
kinds of books. It can do the same at any bank, telephone company,
hotel or motel, hospital, or university--merely upon the claim that the
information is ``sought for'' an investigation to protect against
international terrorism or clandestine intelligence activities.
How these provisions are actually being applied is the subject of
great uncertainty, at least as far as one can tell from the public
discussion to date. The DOJ and the FBI could be much more forthcoming,
for example, about what they are doing in libraries. Up to now, the
ambiguous statements of FBI officials have only fanned suspicion and
distrust.
Congress should closely inquire into the DOJ's interpretation of
Section 215 and the National Security Letter authorities. The DOJ and
FBI have never actually said how they are interpreting Section 215 and
the new NSL authorities. The further questions submitted by Chairman
Sensenbrenner on April 1, 2003 are a good start, but the Committee
should also ask: Is the DOJ interpreting and using Section 215 and the
NSL authorities to obtain access to entire databases, i.e., without
naming individuals to whom the records pertain? If not, why shouldn't
the statute be revised to clarify the particularized suspicion
standard?
I have heard it argued that these changes merely conform the
intelligence standard to the criminal standard, since investigators in
criminal cases can obtain anything with a subpoena issued on a
relevance standard. First of all, the standard in Section 215 and two
of the three NSL statutes is less than relevance--it is ``sought for.''
Second, a criminal case is at least cabined by the criminal code--
something is relevant only if it relates to the commission of a crime.
But on the intelligence side, the government need not be investigating
crimes--at least for non-U.S. persons, it can investigate purely legal
activities by those suspected of being agents of foreign powers. The
standard for opening an investigation is far less than probable cause,
and once an investigation is opened, under the PATRIOT Act changes, an
agent can get anything from anyone by say ``I am seeking this in
connection with an open investigation.''
Moreover, there are other crucial protections applicable to
criminal subpoenas that are not available under Section 215 and the
NSLs. For one, third party recipients of criminal subpoenas can notify
the record subject, either immediately or after a required delay.
Section 215 and the NSLs prohibit the recipient of a disclosure order
from ever telling the record subject, which means that the person whose
privacy has been invaded never has a chance to rectify any mistake or
seek redress for any abuse. Secondly, the protections of the criminal
justice system provide an opportunity for persons to assert their
rights and protect their privacy, but those adversarial processes are
not available in intelligence investigations that do not end up in
criminal charges.
I look forward to the day when Smith v. Maryland and U.S. v. Miller
are placed in the same category as the discredited Olmstead decision of
1928--decisions based on an unduly cramped understanding of privacy,
unsuited to changing technology. Kyllo v. United States, 533 U.S. 27
(2001), the case requiring a warrant for infrared searches of homes,
showed that the Supreme Court is sensitive to ensuring that changes in
technology do not render privacy. Meanwhile, Congress should
statutorily re-establish the requirement of particularized suspicion
and require some factual showing on the part of government officials
seeking access to records.
iii. the need for close congressional scutiny of the effectiveness and
privacy implications of data mining and establishment of guidelines for
any application of the technology
One important avenue of oversight for this Committee is how the FBI
intends to use the technique known as data mining, which purports to be
able to find evidence of possible terrorist preparations by scanning
billions of everyday transactions, potentially including a vast array
of information about Americans' personal lives such as medical
information, travel records and credit card and financial data. The
FBI's Trilogy project includes plans for data mining. According to an
undated FBI presentation obtained by the Electronic Privacy Information
Center, the FBI's use of ``public source'' information (including
proprietary commercial databases) has grown 9,600% since 1992.\4\
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\4\ http://www.epic.org/privacy/publicrecords/cpfbippt.pdf.
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Two kinds of questions must be asked about data mining. First, is
the technique likely to be effective? Secondly, assuming it can be
shown to be effective, what should be the rules governing it? This
week, the Defense Department will be releasing a report on the Total
Information Awareness (``TIA'') project at the Pentagon's Defense
Advanced Research Projects Agency (``DARPA''), which hopefully will
illuminate some of these issues. Among the questions to be asked
specifically of the FBI is how the PATRIOT Act authorities discussed
above and the changes in the FBI guidelines discussed below might
relate to its data mining plans.
Current laws place few constraints on the government's ability to
access information for terrorism-related data mining. Under existing
law, the government can ask for, purchase or demand access to most
private sector data. Unaddressed are a host of questions: Who should
approve the patterns that are the basis for scans of private databases
and under what standard? What should be the legal rules limiting
disclosure to the government of the identity of those whose data fits a
pattern? When the government draws conclusions based on pattern
analysis, how should those conclusions be interpreted? How should they
be disseminated and when can they be acted upon?
Adapting the Privacy Act to government uses of commercial databases
is one way to look at setting guidelines for data mining. But some of
the principles are simply inapplicable and others need to have greater
emphasis. For example, perhaps one of the most important elements of
guidelines for data mining would be rules on the interpretation and
dissemination of hits and on how information generated by computerized
scans can be used. Can it be used to conduct a more intensive search of
someone seeking to board an airplane, to keep a person off an airplane,
to deny a person access to a government building, to deny a person a
job? What due process rights should be afforded when adverse actions
are taken against individuals based on some pattern identified by a
computer program? Can ongoing audits and evaluation mechanisms assess
the effectiveness of particular applications of the technology and
prevent abuse?
All of these questions must be answered before moving forward with
implementation. Congress should limit the implementation of data mining
until effectiveness has been shown and guidelines on collection, use,
disclosure and retention have been adopted following appropriate
consultation and comment.
iv. the fbi guidelines: impact on civil liberties and security--the
need for congressional oversight and re-establishment of meaningful
limits
On May 30, 2002, Attorney General John Ashcroft issued revised
Guidelines on General Crimes, Racketeering Enterprise and Terrorism
Enterprise Investigations (``Domestic Guidelines''). The Attorney
General claimed that the changes were necessary to free the FBI from
unnecessary constraints in the fight against international terrorism.
Yet the guidelines the Attorney General changed were not applicable to
international terrorism. And the types of things the Attorney General
said he wanted to permit--visiting mosques, surfing the Net--were never
prohibited under the old guidelines.
The FBI is subject to two sets of guidelines, a classified set for
foreign intelligence and international terrorism investigations
(``International Terrorism Guidelines''), and an unclassified set on
general crimes, racketeering and domestic terrorism.\5\ Last year, the
Attorney General changed the Domestic Guidelines. He has not yet
changed the International Guidelines, which relate to investigations of
Osama bin Laden and Al Qaeda. (The Department of Justice may be
reviewing the International Guidelines. This Committee should find out
what is going on and insist on being fully consulted.) The
International Terrorism Guidelines in some ways give the FBI even more
latitude than the domestic guidelines. The irony is that the FBI's
failed investigations of the Osama bin Laden group were conducted under
those looser guidelines, reinforcing the conclusion that the problem
before 9/11 was not the limits imposed by law or policy but the failure
of the FBI to use the authority and information it already had.
---------------------------------------------------------------------------
\5\ The old domestic guidelines are at http://www.usdoj.gov/ag/
readingroom/generalcrimea.htm. A heavily redacted copy of the
international guidelines can be downloaded in PDF from http://
www.usdoj.gov/ag/readingroom/terrorismintel2.pdf. Both sets of
guidelines relate to investigations in the United States. The
difference between the two sets of guidelines has to do with the nature
of the organization being investigated. The foreign guidelines govern
investigations inside the United States of international terrorism
organizations (such as al Qaeda or Hamas), groups that originate abroad
but carry out activities in the U.S., and their agents. In the past,
the domestic guidelines governed investigations of terrorist groups
that originate in the U.S.--e.g., white supremacists and animal rights
activists.
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--The Role of Congress
In the 1960s, the FBI conducted wide-ranging investigations and
neutralization efforts against non-violent activity across the
political spectrum. While there were acts of violence being carried out
on America's streets, the FBI's COINTELPRO program and related efforts
focused on politics. The exercise was essentially worthless from a
security standpoint: it produced no advanced warning of any violent
activity. By the mid-70s, there was a reaction against this approach,
within the Justice Department, the FBI itself, the Congress and the
public at large. Internal and external investigations of the abuses led
to the adoption of guidelines by Attorney General Edward Levi, which
set standards for FBI ``domestic security'' investigations.
The initial issuance and subsequent major revisions of the FBI
Guidelines were undertaken in conjunction with Congressional
consultation and oversight. In effect, the Guidelines had a ``quasi-
legislative'' status. Indeed, the Guidelines were adopted in lieu of
legislation. A major debate in the 1970s was over the framing of a
statutory charter for the FBI. (The CIA has a legislative charter; the
FBI does not.) After Attorney General Levi issued the guidelines,
Congress dropped the push for a legislative charter, based on two
grounds: (i) Executive Branch claims that the guidelines embodied all
the protections that would be included in a charter but did so with
greater detail, providing just the right mix of guidance and
flexibility to the FBI, and (ii) the understanding that Guideline
changes would be subject to prior Congressional review and public
input. Every subsequent Attorney General (except Attorney General
Ashcroft) consulted with this Committee on guidelines changes. When
Attorney General William French Smith undertook major revisions of the
guidelines at the beginning of the Reagan Administration, the effort
was accompanied by over a year of consultation, public debate, and
Congressional hearings. Never before has an Attorney General undertaken
major revisions to the FBI Guidelines without any prior consultation
with the relevant Committees of Congress.
--Major Concerns with the Changes
A major change brought about by the Ashcroft Guidelines is that
they authorize investigative activity in the absence of any indication
of criminal conduct. The central feature of the Levi/Smith/Thornburgh
guidelines was the criminal standard: the FBI could initiate a full
domestic counter-terrorism investigation when facts and circumstances
reasonably indicated that two or more people were engaged in an
enterprise for the purpose of furthering political goals through
violence. FBI agents could conduct quite intrusive preliminary
investigations on an even lower standard. The old guidelines allowed
FBI agents to go into any mosque or religious or political meeting if
there was reason to believe that criminal conduct was being discussed
or planned there, and, in fact, over the years the FBI conducted
terrorism investigations against a number of religious organizations
and figures, ranging from the white supremacist Christian Identity
Movement to the African-American Church of Yahweh. Separate guidelines
even allowed undercover operations of religious and political groups,
subject to close supervision.
Under the Levi/Smith/Thornburgh guidelines, once an investigation
or even a preliminary inquiry was opened, the FBI could use any and all
public source information (including the Internet) to collect
personally-identifiable information relevant to the investigation. In
fact, an investigation could consist solely of the collection of
newspaper articles and Internet material and the indexing of that
information by name. The evidence could in fact consist largely or
exclusively of information about the exercise of First Amendment
rights. The only requirement was that there first had to be some
minimal reason to believe that something illegal was being planned.
Now, the FBI is cut loose from that standard, with no indication as
to how it should prioritize its efforts or avoid chilling First
Amendment rights.
Visiting Religious and Political Meetings--The new guidelines
purport to give the FBI authority to attend public meetings of a
religious or political nature, without any scintilla of suspicion of
criminal or terrorist activity. The problem is compounded by poor
guidance on what can be recorded and the lack of time limits on the
retention of data acquired.
In the past, under the Domestic Guidelines, the FBI was guided by
the criminal nexus--in deciding what mosques to go to and what
political meetings to record, it had to have some reason to believe
that terrorism might be discussed. Under the new guidelines, even
before opening a preliminary inquiry, the FBI can go to mosques and
political meetings. How will it decide which ones to go to? We fear it
will be on the basis of politics, religion, or ethnicity.
Should FBI Agents Surf the Net Like Teenagers?--According to
justifications issued by the DOJ with the new guidelines, FBI agents
previously could not conduct online searches under the term
``anthrax,'' even after the initial appearance of the anthrax letters.
That is absurd--there was an ongoing investigation. Anyhow, no privacy
rights or civil liberties are implicated in searches--before or after
the appearance of the anthrax letter--for words like ``anthrax.'' That
is not what the guidelines were about. The question is whether the FBI
can make searches for ``Palestinian rights'' or other terms with a
political, ethnic or religious significance, as the starting point for
an investigation. The change either authorizes politically guided
investigations or it authorizes fishing expeditions
Pursuing Investigations That Turn Up Nothing--Finally, the
revisions decreased the internal supervision and coordination at
various stages of investigation, in particular expanding the scope and
duration of preliminary inquiries (by definition, these are cases that
are opened on less than reasonable indication of criminal or terrorist
conduct), encouraging the use of more intrusive techniques with no
sense of prioritization and allowing intrusive investigations to go on
for periods without producing results and without internal review or
any outside or independent scrutiny.\6\
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\6\ The period for preliminary inquiries with no supervisory review
has increased from 90 to 180 days. Preliminary inquiries may go on for
up to one year without notifying Headquarters. While the time
limitations have increased, the levels of authorization have decreased.
Authority for extensions in preliminary inquiries - cases that are
producing no reasonable indication of criminal conduct - has been
reduced from FBI Headquarters to a Special Agent in Charge. Likewise,
authority for the initiation and review of full investigations has been
reduced from a Director or Assistant Director to a Special Agent in
Charge.
---------------------------------------------------------------------------
Preliminary inquiries can use all techniques except two: mail
openings and wiretaps. This means that the FBI can use informants,
Internet searches, undercover operations, and physical and photographic
surveillance. Under the old guidelines, if 90 days of investigation
turned up no indication of criminal activity, the investigation could
be continued only with HQ approval. Under the new guidelines,
preliminary inquiries can continue 1 year without HQ approval. This
means that the FBI can conduct an investigation, using highly intrusive
techniques, for one year (and longer with HQ approval) even if the
investigation is turning up no reasonable indication of criminal
activity.
Broadening the FBI's surveillance authority threatens civil
liberties and wastes resources while increasing the risk of
intelligence failures. The salient identifiable cause of the September
11 intelligence failure was the inability of the FBI and other agencies
to use the information they already had. The guidelines are likely to
compound that defect, thereby producing no improvement in security.
--Congressional Oversight is Necessary
Consistent Congressional oversight is vital to protect our security
and our civil liberties. Attorney General Ashcroft changed the FBI
Guidelines with the stroke of a pen without prior notice or
consultation with Congress. This is not only unprecedented, but does
not bode well for Congressional oversight over FBI activity to ensure
both protection of constitutional rights and success in the fight
against terrorism.
In responding to the issues raised by the guideline changes, we
recommend the following steps:
Require through appropriations language prior notice
and meaningful consultation before future guideline changes can
take effect, including changes in the International Guidelines
Require the adoption, following Congressional
consultation and comment, of Guidelines for collection, use,
disclosure and retention of public event information. Such
guidelines should include a provision specifying that no
information regarding the First Amendment activities of a U.S.
person or group composed substantially of U.S. persons can be
disseminated outside the FBI except as part of a report
indicating that such person or group is planning or engaged in
criminal activity.
Provide resources and authority to the General
Accounting Office and the DOJ Inspector General to collect and
analyze information on implementation of the anti-terrorism
guidelines and to submit to Congress public and classified
reports on their impact on an open society, free speech, and
privacy and benefits and costs to national security.
v. rectifying flaws in the surveillance laws
We should not loose sight of the fact that before the PATRIOT Act
there were concerns that the checks and balances in the surveillance
laws were insufficient. As a result of the digital revolution more
information is more readily available to government investigators than
ever before. The judges have not aggressively regulated electronic
surveillance. Last year, only one government application for electronic
surveillance was turned down. For each of the prior three years (1999-
2001), not a single judge anywhere in the country, state or federal,
turned down a single request for surveillance in any case, criminal or
intelligence. The minimization requirement has been judicially
eviscerated. The Congress could start by taking up the helpful changes
to surveillance law developed and passed by the House Judiciary
Committee in the 106th Congress, under H.R. 5018, including:
Heightened protections for access to wireless
location information, requiring a judge to find probable cause
to believe that a crime has been or is being committed. Today
tens of millions of Americans are carrying (or driving) mobile
devices that could be used to create a detailed dossier of
their movements over time--with little clarity over how that
information could be accessed and without an appropriate legal
standard for doing so.
A meaningful standard for use of expanded pen
registers and trap and trace capabilities, requiring a judge to
at least find that specific and particularly facts reasonably
indicate criminal activity and that the information to be
collected is relevant to the investigation of such conduct.
Addition of electronic communications to the Title
III exclusionary rule in 18 USC Sec. 2515 and add a similar
rule to the section 2703 authority and the pen register and
trap and trace authority. This would prohibit the use in any
court or administrative proceeding of email or other Internet
communications intercepted or seized in violation of the
privacy standards in the law.
Require high-level Justice Department approval for
applications to intercept electronic communications, as is
currently required for interceptions of wire and oral
communications.
Require statistical reports for Sec. 2703
disclosures, similar to those required by Title III.
Beyond these changes, there are issues raised by the PATRIOT Act
that need to be addressed:
Require more extensive public reporting on the use of
FISA, to allow better public oversight.
Make the use of FISA evidence in criminal cases
subject to the Classified Information Procedures Act.
Limit the use of secret searches.
Conclusion
We need limits on government surveillance and guidelines for the
use of information not merely to protect individual rights but to focus
government activity on those planning violence. The criminal standard
and the principle of particularized suspicion keep the government from
being diverted into investigations guided by politics, religion or
ethnicity. Legal standards should focus on perpetrators of crime, avoid
indulging in guilt by association, maintain procedures designed to
identify the guilty and exonerate the innocent, insist on limits on
surveillance authority, and bar political spying.
Mr. Chabot. Thank you very much. Our next witness will be
Mr. Kerr. Professor Kerr.
STATEMENT OF ORIN KERR, ASSOCIATE LAW PROFESSOR, GEORGE
WASHINGTON UNIVERSITY LAW SCHOOL
Mr. Kerr. Thank you, Mr. Chairman and Members of the
Subcommittee, for the opportunity to testify today.
Before 9/11 2001, there were a bunch of pretty esoteric
laws on the books, such as the Electronic Communications
Privacy Act and the Foreign Intelligence Surveillance Act, and
few people understood them well and many people didn't even
know they existed. Following 9/11 and following the PATRIOT
Act, these are the laws that are now on the front page of the
paper, putting this Congress in the difficult and very
important position of coming up with the right set of rules
that should govern the Executive Branch in its investigations,
criminal investigations and counterintelligence terrorism
investigations, both online and off, made all the more
important and real by the attacks of 9/11.
The difficult challenge, of course, is to navigate some
sort of middle ground between two clearly undesirable
alternatives. Give the Executive Branch too much power, and it
enables abuses which could violate our civil liberties. Give
the Government too little power, and it disables the Government
from protecting the public from the threat of both terrorism
and crime. This issue is made all the more important for
Congress because the courts have generally proven relatively
deferential--for example, in deciding that the Fourth Amendment
does not protect any addressing information of either Internet
or, or non-Internet communications--making those standards,
really, something that is up to the Congress.
Yet another challenge in this area is that the press has
often had a hard time explaining what these very complicated
laws do, so oftentimes the newspapers will say the law's doing
one thing, when in reality the stories have gotten it slightly
off, still posing very difficult challenges for the Congress to
find that balance in a way that reflects what the laws are
actually doing, often requiring a great deal of scrutiny of
very difficult statutory texts that can go on for many pages.
One example of a change to surveillance laws which I think
is a positive one, although only a partial step toward the
right solution, brought about by the PATRIOT Act, is section
216 of the PATRIOT Act, which clarifies that the pen register
law, a 1986 law, applies as well to the Internet. That's a law
which was designed to apply to the telephone, and it protects
the privacy of telephone communications addressing information;
for example, the numbers dialed on the telephone. Prior to the
PATRIOT Act, it was simply unclear whether that law also
protected Internet communications or whether non-content
information relating to Internet communications was simply
unprotected by Federal statutory law. Content information
clearly protected by the Wiretap Act--that was made clear in
1986--but non-content information left unclear under the
Electronic Communications Privacy Act and not clarified until
the PATRIOT Act.
Section 216 of the PATRIOT Act did make clear that that law
applies to the Internet, an important change, I think, because
it makes clear that, for example, the Government does need a
court order to conduct non-content monitoring. The possibility
that was present before the PATRIOT Act was that actually the
lack of clarity as to whether the law applied could have made
it such that no court order was necessary for the Government
to, for example, install Carnivore in the Internet. This law
actually struck a balance, which I think is on the road to the
proper balance, but only part of the way, toward making a
better balance on Internet communications.
In particular, I would say--agree with Mr. Dempsey that a
higher standard for the pen register law is probably a good
idea--something like the specific and articulable facts
standard which governs stored communications, stored non-
content communications. That's found in 18 USC 2703(d)--I think
a sensible move to raise the threshold in that law.
I would also say, on the question of section 215, the
controversial law applying to--that people are worried applies
to libraries, sort of an equivalent to a subpoena authority for
terrorism investigations. How worrisome that law is really
depends on what your point of reference is. So for example the
Government says, well, the point of reference should be
criminal authorities and in particular the subpoena authority,
grand jury subpoena, which has traditionally been used to
obtain records at libraries. And if you look at section 215
with that as your frame of reference, section 215 is not all
that different, sort of a national security version of this
traditional grand jury authority.
However, you could look at it from another perspective,
sort of ignore the fact that there's this traditional existing
subpoena authority, and say in the abstract, this is a pretty
worrisome law and in fact the difficulty is that the subpoena
rules don't regulate privacy enough and that we need to raise
both standards rather than move to the lower standard for both.
I think the answer is in clarification of the existing
standard. To find a slightly better balance, I agree--somewhere
in between, I would say, between these two standards, and
that's the right approach.
Thank you.
[The prepared statement of Mr. Kerr follows:]
Prepared Statement of Orin S. Kerr
Mr. Chairman and members of the Subcommittee, my name is Orin S.
Kerr, and I am an Associate Professor at George Washington University
Law School. I am grateful for the opportunity to appear before you
today to discuss Internet surveillance law and the effect of the USA
Patriot Act.
My testimony will focus on the controversial pen register
amendments to the Patriot Act, found in Section 216 of the Act. As you
know, these amendments have received a great deal of criticism. Critics
have claimed that the amendments gave the government unprecedented
powers to wiretap the Internet. I believe that these criticisms are
misplaced. They are based on a misunderstanding of how the complex laws
governing Internet surveillance interact with each other. When properly
understood, the Patriot Act's provisions applying the pen register law
to the Internet appear instead as an important first step toward
modernizing the surveillance laws and protecting privacy in the
Internet age. The pen register amendments to the Patriot Act are not so
much part of the problem as they are an initial step toward a solution
that will best balance the protection of privacy and the needs of law
enforcement. In my testimony this afternoon, I will explain why I
believe this is true. I will then suggest two additional steps that I
believe Congress should take to develop this area of law in the future.
Before I begin, let me note that my testimony this afternoon is a
streamlined version of an argument I made in a recent law review
article. Those wishing to read more can look at the full article,
``Internet Surveillance Law After the USA Patriot Act: The Big Brother
That Isn't.'' The article appears in the Winter 2003 issue of the
Northwestern University Law Review, and it covers the pen register
laws, the use of Carnivore, and the new computer trespasser exception
to the Wiretap Act. A .pdf copy of the article can be downloaded for
free from the Internet at this address: http://papers.ssrn.com/sol3/
papers.cfm?abstract--id=317501.
To begin understanding the effect of the Patriot Act's pen register
amendments, it helps to start with some history. The surveillance laws
that apply to the Internet were originally designed to apply to the
telephone network. Telephone network surveillance is governed by two
complementary laws: the Wiretap Act, enacted in 1968 and codified at 18
U.S.C. Sec. Sec. 2510-22; and the Pen Register Statute, enacted in 1986
and codified at 18 U.S.C. Sec. Sec. 3121-27. These two laws govern
real-time surveillance of the telephone network in criminal
investigations. The laws coexist because they cover different things:
the Wiretap Act protects the ``contents'' of communications with a very
high degree of privacy protection, and the Pen Register statute
protects non-content addressing information with a lesser degree of
privacy protection. This bifurcation between contents and non-content
addressing information is consistent with and follows from the Supreme
Court's cases interpreting how the Fourth Amendment applies to the
telephone network. In Berger v. New York, 388 U.S. 41 (1967), the
Supreme Court held that the Fourth Amendment protected the contents of
telephone calls, whereas in Smith v. Maryland, 442 U.S. 745 (1979), the
Supreme Court held that the Fourth Amendment does not protect non-
content information relating to telephone calls such as might be
collected by a pen register device, which was an early machine used to
record the numbers dialed from a telephone.
The line between the Wiretap Act and the Pen Register statute is
easy to understand for a traditional telephone call. If I place a phone
call, the actual conversation between the person I call and myself are
the ``contents'' of the call. If the government wishes to listen in on
the call, the privacy protections of the Wiretap Act prohibit the
government from doing so unless the government first obtains a Wiretap
Order, which is a type of ``super'' search warrant. In contrast,
information about the call such as my phone number, the time I called,
the duration of the call, and the number I dialed is the non-content
addressing information about the call. This information is protected by
the Pen Register statute but not the Wiretap Act. If the government
wishes to have the phone company record this information and disclose
it to the government, the privacy protections of the Pen Register
statute prohibit this unless the government first obtains a pen
register order. A pen register order is a ``relevance'' court order;
the government can obtain such an order if the information to be
collected is relevant to an ongoing criminal investigation. The basic
rule is that the lesser privacy protections of the Pen Register statute
apply to non-content information, and the greater privacy protections
of the Wiretap Act apply to content information.
Now let's turn from the telephone network to the Internet. In 1986,
Congress enacted the Electronic Communications Privacy Act, also known
as ``ECPA.'' ECPA established that the Wiretap Act that protects the
contents of telephone calls also protects the contents of Internet
communications. ECPA also created a new privacy law known as the Stored
Communications Act, codified at 18 U.S.C. Sec. Sec. 2701-11, which
created statutory privacy protection for stored Internet communications
such as stored e-mails. However, ECPA left a very important question
unclear: what privacy protection if any applied to real-time
surveillance of non-content addressing information for Internet
communications? What law governs the real-time surveillance of Internet
packet headers or e-mail headers--non-content addressing information
that is the Internet equivalent of the outside envelope of a postal
letter or the addressing information for a telephone call? The Pen
Register statute that already protected equivalent information for
telephone calls provided the obvious source of privacy protection, but
its scope was unclear. As enacted in 1986, parts of the Pen Register
statute appeared to apply broadly to protect both telephone and
Internet communications. However, other parts of the statute seemed
narrowly drafted to apply only to the telephone. These mixed signals
left the scope of the Pen Register statute unclear. The text of the
1986 Act simply failed to answer whether the Pen Register statute
protected the privacy of non-content Internet communications in the
same way it protected the privacy of non-content telephone
communications.
The uncertain scope of the Pen Register statute created a
complicated situation for law enforcement before the enactment of the
Patriot Act. The applicable law looked quite different depending on
whether one assumed that the Pen Register law applied to the Internet.
If the Pen Register statute did apply to the Internet, then the law
prohibited the government from monitoring non-content information on
the Internet without a pen register court order. It also made it a
crime for private parties or foreign governments to conduct such
surveillance. At the same time, the law would then authorize the
government to conduct non-content surveillance (or order an Internet
service provider to conduct such surveillance on the government's
behalf) by obtaining a pen register order. If the Pen Register law did
not protect the privacy of Internet communications, however, then no
privacy law at all protected non-content information of Internet
communications in transit. The government would be able to install
Internet wiretapping devices such as ``Carnivore'' without any court
order or any judicial review so long as the device did not collect any
contents and was therefore exempt from the Wiretap Act. Any private
citizen or foreign government would have been able to do the same. At
the same time, the law would have left unclear what authority the
government would be able to use to compel an Internet service provider
to conduct such surveillance on the government's behalf.
In the period before the Patriot Act, the Department of Justice
concluded that on balance the better argument was that the Pen Register
statute did apply to the Internet. In other words, DOJ concluded that
the law protected the privacy of Internet communications and required
the government to obtain a court order before it could conduct real-
time surveillance of non-content information on-line. Federal
prosecutors routinely obtained pen register orders from magistrate
judges in Internet crime investigations. While magistrate judges
occasionally expressed initial concern over whether the Pen Register
statute in fact applied to the Internet, every federal magistrate judge
except one concluded that the statute did apply to the Internet and
approved the government's application for the court order. The one
magistrate judge who disagreed was located in San Jose, California. In
an unpublished order in November 2000, this particular judge denied the
government's ex parte application for a pen register order on the
ground that the Pen Register statute did not apply to the Internet, but
rather applied only to the telephone network.
Section 216 of the Patriot Act clarified that the Pen Register
statute did in fact protect the privacy of Internet communications. It
replaced the telephone-specific language from the 1986 Act with
broader, technology-neutral language: the new version of the Pen
Register statute protects any real-time non-content ``dialing, routing
addressing, or signaling information'' relating to either telephone or
Internet communications. In practice, this amendment maintained the
status quo: it permitted the Justice Department to continue its pre-
Patriot Act procedures. How much the change altered existing law in a
formal sense depends upon whether you conclude that the Pen Register
law applied to the Internet before the Patriot Act. If you believe that
the Pen Register law did already apply, then the amendment merely
clarified existing law. If you believe that it did not, the amendment
extended the privacy protection of the Pen Register statute to the
Internet.
I believe this amendment was a positive step forward that would
have won widespread support if it had been better understood at the
time of the Patriot Act's passage. The amendment expanded the scope of
a privacy law, making sure that the government needed a court order
where before it was possible that no court order was necessary. Why did
this provision trigger such controversy? One reason is that many
commentators incorrectly believed that the Pen Register amendments
lessened the protections of the companion Wiretap Act. Many
commentators wrongly assumed that before the Patriot Act, the Wiretap
Act had protected both contents and non-content information. Based on
that incorrect assumption, they concluded that the Pen Register
amendments lessened privacy protections by moving the protection of
non-content information from the high privacy protections of the
Wiretap Act to the lower protections of the Pen Register statute. This
led to widely-reported claims that the Pen Register amendments gave the
government unprecedented new powers to wiretap the Internet without a
probable cause search warrant.
The premise is mistaken, however. The Wiretap Act protects only the
contents of communications; it does not protect non-content
information. This was true both before and after the Patriot Act. The
Patriot Act did not change the scope of the Wiretap Act's protection of
contents; it left unchanged the statutory definition of ``contents'' in
18 U.S.C. Sec. 2510(8) that has existed since 1986. To the extent the
pen register amendment of the Patriot Act changed the law at all, it
increased the scope of privacy protections by making sure that non-
content information was not left unprotected by federal privacy law.
This did empower the government to obtain court orders in Internet
crime investigations under the low pen register standard: as is always
the case with laws regulating surveillance, the power to seek a court
order to conduct the surveillance is an exception to the law that
applies when the law regulates the surveillance. But the pen register
amendment did not lessen the protections of the Wiretap Act. Instead it
clarified that the same rules apply to the Internet that have
traditionally applied to the telephone.
I stated at the beginning of my testimony that the pen register
amendments of the Patriot Act were an important first step toward
modernizing the Internet surveillance laws and protecting privacy. This
raises the question, what steps remain? I think there are two areas
that should demand Congress's attention in the future.
First, Congress should clarify the line between ``contents''
protected by the Wiretap Act and ``dialing, routing, addressing, and
signaling information'' protected by the Pen Register statute. Today we
know that human-to-human communications such as the body and the
subject lines of e-mails count as ``contents.'' We also know that
computer-to-computer communications such as Internet Protocol packet
headers count as ``dialing, routing, addressing, and signaling
information.'' However, we don't know how human-to-computer
communications are treated under current law. Just two weeks ago, one
court suggested that search terms entered into Internet search engines
are contents protected by the Wiretap Act. See In re Pharmatrak, Inc.
Privacy Litigation,--F.3d--, 2003 WL 21038761 (1st Cir. May 9, 2003).
Three years ago, another court indicated that passwords entered into
computers are also contents protected by the Wiretap Act. See United
States Telecom Ass'n v. FCC, 227 F.3d 450, 462 (D.C. Cir. 2000).
However, the absence of a statutory suppression remedy in the Internet
surveillance laws means that these decisions appear only sporadically
in unusual civil contexts, and tend to have uncertain scope. Congress
should either add a statutory suppression remedy that will have the
effect of empowering the courts to clarify the line between the two
statutes in criminal cases, or should take steps to clarify that line
itself.
Second, I believe that Congress should raise the standard that the
government needs to satisfy to obtain a pen register court order.
First, the factual threshold should be raised from mere relevance to
``specific and articulable facts,'' matching the protection that exists
under current law for stored non-content records. See 18 U.S.C.
Sec. 2703(d). Second, the current certification standard should be
replaced with judicial review. Current law states that the government
lawyer applying for a pen register order must certify that the factual
threshold has been satisfied, and requires the magistrate judge to
grant the application if the certification has been made. The law
should be changed so that magistrate judges evaluate whether the
government's application satisfies the factual showing. Again, this
matches the protection that exists under current law for stored non-
content records. The added judicial review will provide the public a
greater assurance that the law is not being abused, whether in the
telephone context or the Internet context. At the same time, based on
my experience as a federal prosecutor I believe that the slightly
higher threshold will not create a substantial burden for law
enforcement.
Let me conclude by offering a few thoughts on the big picture.
Today the law of Internet surveillance in criminal investigations
remains governed primarily by the Electronic Communications Privacy Act
of 1986. Congress has amended this law several times since 1986,
including when it passed the USA Patriot Act, but the basic framework
of the 1986 law remains in place. The 1986 Act was a remarkable
achievement for its day: it protected the privacy of Internet
communications long before most Americans had even heard of the
Internet. Even today, the law remains surprisingly workable and
effective. The 1986 Act left many questions unresolved, however. The
fast pace of technological change raises the bar as well; developments
such as the World Wide Web require us to fit new technologies into old
laws. As a result, the Internet surveillance laws demand constant
legislative attention both to address existing problems latent in the
1986 statutory scheme and to address new difficulties raised by
technological change.
Fortunately, the provisions of the USA Patriot Act that relate to
Internet surveillance in criminal investigations are much more balanced
than many have feared. Much of the media coverage surrounding
provisions such as the pen register amendments failed to appreciate the
complex inner workings of the law, and as a result tended to
misrepresent the effect of the Patriot Act in ways that made the
Patriot Act seem more of a departure from existing law than it actually
was. On reflection, today we can see that changes such as the pen
register amendment did not substantially shift the balance between
privacy and security. Rather, the law updated a 1986 privacy law and
clarified that the same privacy protection that applies to the
telephone also applies to the Internet. Much work remains to be done;
the statutory laws that regulate Internet surveillance will surely keep
Congress busy for years to come. However, the pen register amendments
of the USA Patriot are best understood as part of a necessary response
to preexisting ambiguities and technological change. They are
consistent with rather than a departure from Congress's historical
efforts to create rules that effectively balance privacy and security
in new technologies.
Mr. Chabot. Thank you, Professor. And our final witness
this afternoon will be Mr. Rosenzweig.
STATEMENT OF PAUL ROSENZWEIG, SENIOR RESEARCH FELLOW, THE
HERITAGE FOUNDATION
Mr. Rosenzweig. Thank you, Mr. Chairman. And thank you very
much for the opportunity to be here. It's pleasing to hear
one's words quoted back at one, although I confess, Mr. Nadler,
that if I go back and tell them that you've quoted me, they're
going to wonder what's up back at the Heritage Foundation as
well. But----
Mr. Nadler. You never know what conspiracies are afoot on
this Committee.
Mr. Rosenzweig. But what I think that that demonstrates,
actually, is that this is an issue where those who are
traditionally skeptical of Big Government because of its
ability to invade people's social privacy, and those who are--
who come from my tradition of skepticism about Big Government
as an engine for economic and--change, tend to find a little
bit more common ground.
Taking seriously the Committee's question posed in the
title of the hearing about the Fourth Amendment--that is,
whether or not the Fourth Amendment places any limits on what
the Government can do--I think the candid answer is ``not
really,'' under the current state of Fourth Amendment
jurisprudence. The Court has said since 1967 that information
one voluntarily exposes to public display, it doesn't come
within the scope of what is deemed a search and therefore
subject to the Fourth Amendment.
Another way of thinking about it is a rhetorical question I
sometimes ask, which is, ``What is the single greatest
constitutional violation of the Fourth Amendment that has
occurred since September 11?'' And in my judgment, the answer
probably is the stopping of every car on the highway without
cause or suspicion in our vain efforts, through that method, to
find the snipers who plagued Washington, DC, last summer--
plainly an unconstitutional act under Indianapolis v. Edmonds
and other Supreme Court decisions, but one that almost nobody
seemed to actually complain about at the time.
By contrast, the constitutional limitations on the access
to non-information--for example, pen registers and addressing
information on the Internet--has, at least since the mid-
1970's, been clearly--there's clearly been no protection at
all. Thus we are left with a constitutional regime where the
only limits on Government activity, Executive Branch activity
must stem from the positive law enacted by this Congress,
this--and originating generally in this Committee, i.e., the
PATRIOT Act, which is why we are focused principally today on
the provisions of the PATRIOT Act and the specific words
therein, because they are supplements and in addition to what
is, at least in the current regime, very minimal constitutional
protections.
Turning, then, to what this Committee has done--or I'll
address an area where the Committee has done very little, the
recent FBI change in investigative guidelines relating to the
FBI's ability to enter into public places and access public
information on the Internet.
As I said, right now, since that information is exposed to
the public by the original data holder or the attendees at the
public meetings, there's very little the Constitution has to
say. There's also very, very little that the PATRIOT Act has to
say about the lawfulness of those activities. They are guided
almost exclusively by the Attorney General's guidelines and
past historical practice. In some instances, the courts have
stepped in to regulate excessive uses of this investigative
authority as trenching, perhaps, upon First Amendment concerns;
that is, where the police use the authority, law enforcement
uses the authority to enter into public places for the purposes
of gaining information about an association, its members, or
its exercise of First Amendment activity in a way that is
intended to impinge upon that. But right now, there is nothing,
at least--let me amend--very little that mandates the Attorney
General's guidelines presently in place be used and mandates
that these be the particular ones that are chosen.
For my part, I think ultimately the question that this
Committee has to face in addressing the guidelines and,
frankly, in addressing all of these concerns, is whether or not
we should maintain a high set of standards knowing that in
doing so we may miss some investigative opportunities,
important investigative opportunities that might protect the
American public; or lower those standards, accepting that there
may be some abuse, and hope and expect that congressional
oversight, of the form that my colleagues on the panel have
already talked about, will protect those. As a strong backer of
congressional oversight and a believer in it, I hope that the
latter is sufficient.
And I see my time's expired, so I will be happy to get into
more detail.
[The prepared statement of Mr. Rosenzweig follows:]
Prepared Statement of Paul Rosenzweig
Good afternoon Mr. Chairman and Members of the Subcommittee. Thank
you for the opportunity to testify before you today on the challenge of
maintaining the balance between security and constitutionally protected
freedoms inherent in responding to the threat of terror, especially in
the government investigations and data mining.
For the record, I am a Senior Legal Research Fellow in the Center
for Legal and Judicial Studies at The Heritage Foundation,\1\ a
nonpartisan research and educational organization. I am also an Adjunct
Professor of Law at George Mason University where I teach Criminal
Procedure and an advanced seminar on White Collar and Corporate Crime.
I am a graduate of the University of Chicago Law School and a former
law clerk to Judge Anderson of the U.S. Court of Appeals for the
Eleventh Circuit. For much of the past 15 years I have served as a
prosecutor in the Department of Justice and elsewhere, prosecuting
white-collar offenses. During the two years immediately prior to
joining The Heritage Foundation, I was in private practice representing
principally white-collar criminal defendants. I have been a Senior
Fellow at The Heritage Foundation since April 2002.
---------------------------------------------------------------------------
\1\ The Heritage Foundation is a public policy, research, and
educational organization operating under Section 501(c)(3). It is
privately supported, and receives no funds from any government at any
level, nor does it perform any government or other contract work. The
Heritage Foundation is the most broadly supported think tank in the
United States. During 2002, it had more than 200,000 individual,
foundation, and corporate supporters representing every state in the
U.S. Its 2002 contributions came from the following sources:
Individuals (61%); Foundations (27%); Corporations (7%); Investment
Income (1%); and Publication Sales and Other (3%). Members of The
Heritage Foundation staff testify as individuals discussing their own
independent research. The views expressed are their own and do not
reflect an institutional position for The Heritage Foundation or its
board of trustees.
---------------------------------------------------------------------------
My perspective on this matter, then, is that of a lawyer and a
prosecutor with a law enforcement background, not that of technologist
or an intelligence officer/analyst. I should hasten to add that much of
my testimony today is based upon a series of papers I have written on
various aspects of this topic and testimony I have given before other
bodies in Congress, all of which are available at The Heritage
Foundation website (www.heritage.org). For any who might have read this
earlier work, I apologize for the familiarity that will attend this
testimony. Repeating myself does have the virtue of maintaining
consistency--I can only hope that any familiarity with my earlier work
on the subject does not breed contempt.
It is a commonplace for those called to testify before Congress to
commend the Representatives or Senators before whom they appear for
their wisdom in recognizing the importance of whatever topic is to be
discussed--so much so that the platitude is often disregarded as mere
puffery. Today, however, when I commend this Subcommittee for its
attention to the topic at hand--the difficulty of both protecting
individual liberty and enabling our intelligence and law enforcement
organizations to combat terror--it is no puffery, but rather a
heartfelt view. I have said often since September 11 that the civil
liberty/national security question is the single most significant
domestic legal issue facing America today, bar none. And, as is
reflected in my testimony today, in my judgment one of the most
important components of a responsible governmental policy addressing
this difficult question will be the sustained, thoughtful, non-partisan
attention of America's elected leaders in Congress. Nothing is more
likely, in my judgment, to allow America to find the appropriate
balance than your engagement in this issue.
What I would like to do today is assist your consideration of this
question by sharing with you some general legal analysis on the scope
of the Fourth Amendment as it might apply in this context. I then offer
some theoretical principles that you might consider in structuring your
thinking. Finally, in an effort to avoid being too theoretical, I'd
like to apply those principles to the concrete issues of data mining in
the Total Information Awareness (TIA) program and the revised FBI
investigative guidelines.
But let me first give you a short, pithy answer to the question
posed by the title of today's hearing: Where and when can the
government go to prevent terrorist attacks? The short answer is: ``As a
matter of constitutional law, virtually anywhere that any other member
of the public can go.'' The more difficult and interesting question is
how best should those efforts be regulated as a matter of public policy
so as to increase our ability to combat terror while minimizing any
infringement on American liberty interests.
fourth amendment principles
Under settled modern Fourth Amendment jurisprudence, law
enforcement may secure without a warrant (through a subpoena) an
individual's bank records, telephone toll records, and credit card
records, to name just three of many sources of data. Other information
in government databases (e.g. arrest records, entries to and exits from
the country, and driver's licenses) may be accessed directly without
even the need for a subpoena.
In 1967, the Supreme Court said that the Fourth Amendment protects
only those things in which someone has a ``reasonable expectation of
privacy'' and, concurrently, that anything one exposes to the public
(i.e., places in public view or gives to others outside of his own
personal domain) is not something in which he has a ``reasonable''
expectation of privacy--that is, a legally enforceable right to
prohibit others from accessing or using what one has exposed. So, for
example, federal agents need no warrant, no subpoena, and no court
authorization to:
have a cooperating witness tape a conversation with a
third party (because the third party has exposed his words to
the public);
attach a beeper to someone's car to track it (because
the car's movements are exposed to the public);
fly a helicopter over a house to see what can be
seen; or
search someone's garbage.
Thus, an individual's banking activity, credit card purchases,
flight itineraries, and charitable donations are information that the
government may access because the individual has voluntarily provided
it to a third-party. According to the Supreme Court, no one has any
constitutionally based enforceable expectation of privacy in them. The
individual who is the original source of this information cannot
complain when another entity gives it to the government. Some
thoughtful scholars have criticized this line of cases, but it has been
fairly well settled for decades.
Congress, of course, may augment the protections that the
Constitution provides and it has with respect to certain information.
There are privacy laws restricting the dissemination of data held by
banks, credit companies, and the like. But in almost all of these laws
(the Census being a notable exception), privacy protections are good
only as against other private parties; they yield to criminal, national
security, and foreign intelligence investigations. Thus, the extent of
privacy protection is mostly a creature of legislation, not
constitutional provisions.
One important caveat or note should be made here--in the foregoing
discussion I have spoken principally of the restrictions that apply to
domestic law enforcement officials. Important additional restrictions
continue to exist on the authority of foreign intelligence agencies to
conduct surveillance or examine the conduct of American citizens.
Conversely, however, the courts have recognized that in the national
security context the requirements of the Fourth Amendment apply
somewhat differently than they do in the context of domestic law
enforcement. Since the issues before the Subcommittee today are, as I
understand it, principally focused on domestic law enforcement
activity--potential domestic uses of TIA and the FBI's investigative
guidelines--I will simply note the distinction here and then, for
purposes of discussion, allude to it no further.
overarching principles
Since I conclude that, for the most part, limitations on law
enforcement are likely to be the product of policy rather than
constitutional law, let me next share with you some general thoughts
about how cautious, yet effective governmental action can, in my view,
be implemented. Fundamental legal principles and conceptions of
American government should guide the configuration of our intelligence
and law enforcement efforts rather than the reverse. The precise
contours of any rules relating to the use of any new technology or new
program will depend, ultimately, on exactly what the new program is
capable of or intended to accomplish--the more powerful the system or
program, the greater the safeguards necessary. As a consequence, the
concerns of civil libertarian critics should be fully voiced and
considered while any research program is underway.
In general, unlike civil libertarian skeptics, I believe that new
intelligence and law enforcement information gathering and information
analytical systems can (and should) be constructed in a manner that
fosters both civil liberty and public safety. We should not say that
the risks of such systems are so great that any effort to construct
them should be dispensed with.
Rather in my view, the proper course is to ensure that certain
overarching principles animate and control the architecture of any new
program and provide guidelines that will govern implementation of the
program in the domestic environment.
The Common Defense--Let me make one important preliminary point:
Most of the debate over new intelligence systems focuses on perceived
intrusions on civil liberties, but Americans should keep in mind that
the Constitution weighs heavily on both sides of the debate over
national security and civil liberties. The President and Congressional
policymakers must respect and defend the individual civil liberties
guaranteed in the Constitution when they act, but there is also no
doubt that they cannot fail to act when we face a serious threat from a
foreign enemy.
The Preamble to the Constitution acknowledges that the United
States government was established in part to provide for the common
defense. The war powers were granted to Congress and the President with
the solemn expectation that they would be used. Congress was also
granted the power to ``punish . . . Offenses against the Law of
Nations,'' which include the international law of war, or terrorism. In
addition, serving as chief executive and commander in chief, the
President also has the duty to ``take Care that the Laws be faithfully
executed,'' including vigorously enforcing the national security and
immigration laws.
Thus, as we assess questions of civil liberty I think it important
that we not lose sight of the underlying end of government--personal
and national security. I do not think that the balance is a zero-sum
game, by any means. But it is vital that we not disregard the
significant factors weighing on both sides of the scales.
Civil Liberty--Of course, just because the Congress and the
President have a constitutional obligation to act forcefully to
safeguard Americans against attacks by foreign powers does not mean
that every means by which they might attempt to act is necessarily
prudent or within their power. Core American principles require that
any new counter-terrorism technology deployed domestically) should be
developed only within the following bounds:
No fundamental liberty guaranteed by the Constitution
can be breached or infringed upon.
Any increased intrusion on American privacy interests
must be justified through an understanding of the particular
nature, significance, and severity of the threat being
addressed by the program. The less significant the threat, the
less justified the intrusion.
Any new intrusion must be justified by a
demonstration of its effectiveness in diminishing the threat.
If the new system works poorly by, for example, creating a
large number of false positives, it is suspect. Conversely, if
there is a close ``fit'' between the technology and the threat
(that is, for example, if it is accurate and useful in
predicting or thwarting terror), the technology should be more
willingly embraced.
The full extent and nature of the intrusion worked by
the system must be understood and appropriately limited. Not
all intrusions are justified simply because they are effective.
Strip searches at airports would prevent people from boarding
planes with weapons, but at too high a cost.
Whatever the justification for the intrusion, if
there are less intrusive means of achieving the same end at a
reasonably comparable cost, the less intrusive means ought to
be preferred. There is no reason to erode Americans' privacy
when equivalent results can be achieved without doing so.
Any new system developed and implemented must be
designed to be tolerable in the long term. The war against
terror, uniquely, is one with no immediately foreseeable end.
Thus, excessive intrusions may not be justified as emergency
measures that will lapse upon the termination of hostilities.
Policymakers must be restrained in their actions; Americans
might have to live with their consequences for a long time.
From these general principles can be derived certain other more
concrete conclusions regarding the development and construction of any
new technology:
No new system should alter or contravene existing
legal restrictions on the government's ability to access data
about private individuals. Any new system should mirror and
implement existing legal limitations on domestic or foreign
activity, depending upon its sphere of operation.
Similarly, no new system should alter or contravene
existing operational system limitations. Development of new
technology is not a basis for authorizing new government powers
or new government capabilities. Any such expansion should be
independently justified.
No new system that materially affects citizens'
privacy should be developed without specific authorization by
the American people's representatives in Congress and without
provisions for their oversight of the operation of the system.
Any new system should be, to the maximum extent
practical, tamper-proof. To the extent the prevention of abuse
is impossible, any new system should have built-in safeguards
to ensure that abuse is both evident and traceable.
Similarly, any new system should, to the maximum
extent practical, be developed in a manner that incorporates
technological improvements in the protection of American civil
liberties.
Finally, no new system should be implemented without
the full panoply of protections against its abuse. As James
Madison told the Virginia ratifying convention, ``There are
more instances of the abridgment of the freedom of the people
by gradual and silent encroachments of those in power than by
violent and sudden usurpations.''
``data mining''--total information awareness today
To that end, let me first discuss the concept of data mining and
more particularly the Total Information Awareness program (``TIA'')--a
program that has been widely misunderstood. [For more detail on the
program I refer you to a paper I co-authored with my Heritage
colleague, Michael Scardaville--``The Need to Protect Civil Liberties
While Combating Terrorism: Legal Principles and the Total Information
Awareness Program,'' The Heritage Foundation, Legal Memorandum No. 6
(February 2003).]
DATA ANALYSIS
First, and foremost, I think that much of the public criticism has
obscured the fact that TIA is really not a single program. Virtually
all of the attention has focused on the data mining aspects of the
research program--but far more of the research effort is being devoted
to providing tools for enhanced data analysis. In other words, TIA is
not, as I understand it, about bypassing existing legal restrictions
and providing governmental agencies with access to new and different
domestic information sources. Rather, it is about providing better
tools to enable intelligence analysts to more effectively and
efficiently analyze the vast pool of data already at their disposal--in
other words to make our analysts better analysts. These tools include,
for example, a virtual private network linking existing counter-
terrorism intelligence agencies. It would also include, for example,
research into a machine translation capability to automatically render
Arabic into English. While these developments certainly pose some
threat to civil liberty because any enhancement of governmental
capability is inherently such a threat, they are categorically
different than the data mining techniques that most concern civil
libertarians. The threat to civil liberty is significantly less and the
potential gain from their development is substantial.
Thus, my first concrete recommendation to you is to not paint with
too broad a brush--the distinction between collection and analysis is a
real and important one that, thus far, Congress has failed to
adequately recognize. Earlier this year, Congress passed an amendment,
the so-called Wyden amendment, which substantially restricts TIA
development and deployment. That restriction applies broadly to all
programs under development by DARPA. That's a mistake. The right answer
is not for Congress to adopt a blanket prohibition. Rather, Congress
should commit to doing the hard work of digging into the details of TIA
and examining its operation against the background of existing laws and
the existing terrorist threats at home and abroad.
We have already seen some of the unintended but pernicious effects
of painting with such a broad brush. Recently at a forum conducted by
the Center for Strategic Policy, DARPA officials discussed how the
Wyden amendment had short-circuited plans to sign a Memorandum of
Understanding (MOU) with the FBI. The FBI, as this Subcommittee knows,
is substantially behind the technological curve and is busily engaged
in updating its information technology capabilities. The MOU under
consideration would have enabled the FBI to join in the counter-
terrorism Virtual Private Network (VPN) being created by the TIA
program. Again, the VPN is not a new data collection technology--it is
a technology to enhance data analysis by allowing information sharing.
Other counter-terrorism agencies with exclusively foreign focus are
already part of the VPN--the CIA and DIA for example. Though the
Department of Defense has not reached a final interpretation of the
Wyden amendment, the lawyers at DoD were sufficiently concerned with
its possible scope that they directed DARPA to not sign the MOU with
the FBI. As a consequence one of our principal domestic counter-
terrorism agencies is being excluded from a potentially valuable
network of information sharing. Extrapolating from this unfortunate
precedent, it is likely that the Wyden amendment will have the effect
of further balkanizing our already unwieldy domestic counter-
intelligence apparatus. The same law will probably be interpreted to
prohibit the Department of Homeland Security from joining the network,
as well as the counter-terrorism agencies of the various States.
In short, as Senator Shelby has written of TIA:
The TIA approach thus has much to recommend it as a potential
solution to the imperative of deep data-access and analyst
empowerment within a 21st-century Intelligence Community. If
pursued with care and determination, it has the potential to
break down the parochial agency information ``stovepipes'' and
permit nearly pure all source analysis for the first time--yet
without unmanageable security difficulties. If done right,
moreover, TIA would be infinitely scalable: expandable to as
many databases as our lawyers and policymakers deem to be
appropriate.
TIA promises to be an enormously useful tool that can be
applied to whatever data we feel comfortable permitting it to
access. How broadly it will ultimately be used is a matter for
policymakers to decide if and when the program bears fruit. It
is worth emphasizing, however, that TIA would provide
unprecedented value-added even if applied exclusively within
the current Intelligence Community--as a means of finally
providing analysts deep but controlled and accountable access
to the databases of collection and analytical agencies alike.
It would also be useful if applied to broader U.S. Government
information holdings, subject to laws restricting the use of
tax return information, census data, and other information.
Ultimately, we might choose to permit TIA to work against some
of the civilian ``transactional space'' in commercially-
available databases that are already publicly and legally
available today to marketers, credit card companies, criminals,
and terrorists alike. The point for civil libertarians to
remember is that policymakers can choose to restrict TIA's
application however they see fit: it will be applied only
against the data-streams that our policymakers and our laws
permit.
Put more prosaically, it remains for this Congress to decide how widely
the analytical tools to be provided by TIA are used--but it is
imperative that Congress understand that the tools themselves are
distinct from the databases to which they might have access.
DATA COLLECTION--STRUCTURAL LIMITATIONS
As for concerns that the use of new data collection technologies
will intrude on civil liberties by affording the government access to
new databases, I certainly share those concerns. The question then is
how best to ensure that any domestic use of TIA (or, frankly, any other
intelligence gathering program) does not unreasonably intrude on
American domestic civil liberties. There are several operational
principles that will effectively allow the use of TIA while not
substantially diminishing American freedom. Amongst these are the
following requirements:
Require congressional authorization. In light of the underlying
concerns over the extent of government power, it is of paramount
importance that there be formal congressional consideration and
authorization of the TIA program, following a full public debate,
before the system is deployed. Some of the proposed data-querying
methods (for example, the possibility for access to non-government,
private databases, which is discussed in the next section) would
require congressional authorization in any event. But, more
fundamentally, before any program like TIA--with both great potential
utility and significant potential for abuse--is implemented, it ought
to be affirmatively approved by the American people's representatives.
Only through the legislative process can many of the restrictions and
limitations suggested later in this testimony be implemented in an
effective manner. The questions are of such significance that they
should not be left to executive branch discretion alone.
Maintain stringent congressional oversight. In connection with the
congressional authorization of TIA, Congress should also commit at the
outset to a strict regime of oversight of the TIA program. This would
include periodic reports on TIA's use once developed and implemented,
frequent examination by the U.S. General Accounting Office, and, as
necessary, public hearings on the use of TIA. Congressional oversight
is precisely the sort of check on executive power that is necessary to
insure that TIA-based programs are implemented in a manner consistent
with the appropriate limitations and restrictions. Without effective
oversight, these restrictions are mere parchment barriers. While
potentially problematic, one can be hopeful that congressional
oversight in this key area of national concern will be bipartisan,
constructive, and thoughtful. Congress has an interest in preventing
any dangerous encroachment on civil liberties by an executive who might
misuse TIA.
My colleagues at The Heritage Foundation have written extensively
on the need for reorganization of the congressional committee structure
to meet the altered circumstances posed by the war on terrorism and the
formation of the Department of Homeland Security. Oversight of any
program developed by TIA would most appropriately be given either to
the committee which, after reorganization, had principal responsibility
for oversight of that Department or, if TIA is limited to foreign
intelligence applications, to the two existing intelligence committees.
Construct TIA to permit review of its activities. To foster the
requisite oversight and provide the American public with assurances
that TIA is not being used for inappropriate purposes, the TIA program
must incorporate, as part of its basic structure, an audit trail system
that keeps a complete and accurate record of activities conducted using
the technology. To the maximum extent practical, the audit system
should be tamper-proof. To the extent it cannot be made tamper-proof,
it should be structured in a way that makes it evident whenever anyone
has tampered with the audit system. Only by providing users, overseers,
and critics with a concrete record of its activity can TIA-developed
technology reassure all concerned that it is not being misused.
Limit the scope of activities for which queries of domestic non-
government databases may be used. TIA is a technological response to
the new, significant threat of terrorism at home and abroad. After
September 11, no one can doubt that domestic law enforcement and
foreign intelligence agencies face a new challenge that poses a
qualitatively greater threat to the American public than any other
criminal activity.
U.S. foreign counterintelligence efforts are responding to a new
and different form of terrorism and espionage. It is appropriate,
therefore, that the use of TIA to query non-government databases be
limited to the exigent circumstances that caused it to be necessary.
Technology being developed for TIA to build models, query and correlate
data, and uncover potential terrorist activity should be used (whether
for law enforcement or intelligence purposes) only to investigate
terrorist, foreign intelligence, or national security activities, and
the TIA technology should never be used for other criminal activity
that does not rise to this level.
It is important to be especially wary of ``mission creep,'' lest
this new technology become a routine tool in domestic law enforcement.
It should not be used to fight the improperly named ``war on drugs,''
combat violent crime, or address other sundry problems. While certainly
issues of significant concern, none of these are so grave or important
as the war on terrorism. Given the bona fide fears of increased
government power, any systems that might be derived from TIA should be
used only for investigations where there is substantial reason to
believe that terrorist-related activity is being perpetrated by
organizations whose core purpose is domestic terrorism.
The legislation authorizing TIA should enact this limitation.
Congress should, therefore, specify that use of the TIA system is
limited to non-government data inquiries that are certified at a
sufficiently high and responsible level of government to be necessary
to accomplish the anti-terrorism objectives of the United States. Only
if, for example, a Senate-confirmed officer of the Department of
Justice, Homeland Security, FBI, or CIA (such as an Assistant Attorney
General or the FBI Director) certifies the objectives of the query
based upon a showing of need should one be made.
Limit access to the results of the search. A corollary to the need
to limit authority to initiate an analysis using TIA is an equivalent
necessity to limit access to the findings of any resulting analysis. It
would be unacceptable, for example, for the data and analysis derived
from a TIA query (or, for that matter, a CAPPS II query), and linked to
an individual identity, to be available to every Transportation
Security Administration screener at every airport. Assuredly, after
high-level analysis substantiated the utility of the information, it
could be used to create watch lists and other information that can be
shared appropriately within the responsible agencies. Until that time,
however, access to the results of a TIA search should be limited by the
authorizing legislation to a narrow group of analysts and high-level
officials in those intelligence, counterintelligence, and law
enforcement agencies.
Distinguish between use of TIA in examining domestic and foreign
activities. In practice, it will be possible to use whatever technology
the TIA program develops to unearth terrorist activity or conduct
counterintelligence activity both abroad and domestically. Existing law
places significant restrictions on intelligence and law enforcement
activity that addresses the conduct of American citizens or occurs on
American soil. Conversely, fewer restrictions exist for the examination
of the conduct of non-Americans abroad.
The development of TIA is not a basis for disturbing this balance
and changing existing law. Thus, even if Congress ultimately chooses to
prohibit the implementation of TIA for any domestic law enforcement
purpose whatsoever (a decision that would be unwise), it would be a
substantial expansion of existing restrictions on the collection of
foreign intelligence data were it to extend that prohibition to use of
the technology with respect to overseas databases containing
information on non-citizens. At a minimum, in considering TIA, Congress
should ensure that, consistent with existing law, any program developed
under TIA will be used in an appropriate manner for foreign
intelligence and counterintelligence purposes.
Impose civil and criminal penalties for abuse. Most important, all
of these various prohibitions must be enforceable. Violations of
whatever prohibitions Congress enacts should be punishable by the
executive branch through its administrative authority. Knowing and
willful violations should be punishable as crimes. These forms of
strong punishment are a necessary corollary of any TIA authorization.
In addition, Congress should enlist the third branch of
government--the courts--to serve as a further check on potential abuse
of TIA. As is detailed below, the courts will be involved in challenges
to TIA information requests. To insure effective oversight of the use
of TIA by the courts, Congress should also authorize a private right of
civil action for injunctive relief, attorneys' fees, and (perhaps)
monetary damages by individuals aggrieved by a violation of the
restrictions Congress imposes.
Sunset the authorization. Any new law enforcement or intelligence
system must withstand the test of time; it must be something that the
American public can live with, since the end of the war on terrorism is
not immediately in sight. Congress should be cautious, therefore, in
implementing a new system of unlimited duration. It is far better for
the initial authorization of TIA to expire after a fixed period of time
so that Congress may evaluate the results of the research program, its
costs (both public and private), and its long-term suitability for use
in America. A sunset provision of five years would be ample time for
Congress to gather concrete information on the program. With such
information, Congress will be in a position to continue, modify, or
terminate the program, as it deems appropriate.
DATA COLLECTION--LEGAL LIMITATIONS
As I noted earlier, the existing legal structure and the
overarching principles that I see in American law lead to a singular
legal recommendation for the structure and operation of TIA:
TIA should be implemented only in a manner that mirrors
existing legal restrictions on the government's ability to
access data about private individuals--nothing more and nothing
less.
This recommendation may be particularized in the following ways:
TIA should not have access to protected governmental databases.
Most government databases (e.g., arrest records and driver's licenses)
contain information about an individual that is accessible to the
government and in which the individual has no reasonable expectation of
privacy. Linking such information through TIA technology should not be
subject to any greater restriction than that applied to its initial
inclusion in the local, state, or federal government database from
which the information is retrieved. By contrast, some existing
governmental databases (like the Census database) cannot be used for
purposes other than those for which they were created. Others (like the
IRS database on taxpayer returns) can be accessed only with a special
court order.
In authorizing the development of TIA technology, Congress should
make it clear that information from existing government databases may
be queried using TIA structured query programs only to the extent that
the government already lawfully has access to the data. The creation of
TIA-based networks should not be viewed as an excuse or opportunity to
remove existing restrictions on the use of particularly sensitive
individual data.
Information from private domestic databases should be accessed only
after notice to the data holder. A similar limitation should also apply
to queries made of private, non-government databases from which the
government seeks information. Where predication for an investigation
(whether criminal or foreign intelligence) exists, law enforcement or
intelligence authorities should have the ability to secure data about
an individual or pattern of conduct from private databases just as they
do under current law.
Thus, with appropriate predication and/or court authorization (if
the law requires), the government should be able to secure data from
banks, credit card companies, and telephone companies about the conduct
of specified individuals or about specified classes of transactions.
But existing warrant and subpoena requirements should not be changed.
Such data gathering should be done only at the ``retail'' level when a
particularized basis for investigation exists.
More important, in each instance where data is sought from a
private database, the holder of the data should be notified prior to
securing the data and (as in the context of a subpoena today) have the
capacity to interpose an objection to the data query to the same extent
the law currently permits. The law today does not provide a mechanism
by which such information requests may be made other than by subpoena.
Thus, in authorizing a TIA-based investigative system, Congress should
require that any aspects of TIA seeking data from private databases
should operate in a manner similar to that in contemporary subpoena
practice.
As this analysis makes evident, one should strongly oppose any
effort to incorporate in TIA the ability to gather private database
information at the ``wholesale'' level (e.g., all bank transactions
processed by Citibank). One should also strongly oppose any TIA-based
system that allows access to privately held data without notice to (and
the opportunity to object by) the data holder. In short, the
development of TIA technology and the war on terrorism is not a
justification for the routine incorporation of all private data and
information in a single government database.
TIA is not a justification for creating new government databases.
Given the clear distinction that the law enacts between access to
government and access to private, non-government databases, a further
cautionary note is in order. In order to evade the legal strictures
limiting access to information in private databases, the government
might be tempted, in effect, to ``institutionalize'' the information it
deems relevant by enacting new data-reporting requirements to capture
in government databases information that now exists only in private
databases to which access is less ready. The first such proposal may
already have been made: that Americans flying abroad be required to
provide their travel itineraries to the Transportation Security
Administration upon their departure from America.
The expansion of existing government databases should be resisted
except upon a showing of extraordinary need. The government already
collects too much information about Americans on a day-to-day basis.
While many government programs require the collection of such data to
permit them to operate, one should not create databases where no
program requiring their creation exists--otherwise, there is the risk
of wholesale evasion of existing legal restrictions on the use of
information in private databases. Initiatives such as the new
itinerary-collection program should be evaluated independently to
determine their necessity and utility.
There must be absolute protection for fundamental constitutionally
protected activity. The gravest fear that most Americans have about TIA
is that it might be used to transmit queries about and assemble
dossiers of information on political opponents. One should not discount
these fears as they rest on all-too-recent abuses of governmental
power. If a system developed based on TIA technology is used to enable
an effort to harass anti-war demonstrators or gather information on
those who are politically opposed to the government's policies (as the
FBI used its investigative powers to do in the 1960s and 1970s), such
abuse should be terminated immediately.
This prospect is not, however, sufficient to warrant a categorical
rejection of all of the benefits to the war on terrorism that TIA
technology might provide. TIA can be developed without these abuses,
and aspects of the technology under investigation in fact hold the
promise of enhancing civil liberties. Still, it is imperative that any
implementing legislation has concrete, verifiable safeguards against
the misuses of TIA. These should include, for example, an absolute
prohibition on accessing databases relating to support of political
organizations that propagate ideas--even ones favorable to terrorist
regimes--absent compelling evidence that the organizations also aid
terrorist conspirators with monetary, organizational, and other support
not protected by the First Amendment. There must be an absolute
prohibition on accessing databases relating solely to political
activity or protest.
TIA should build privacy protections into its architecture.
Finally, it should be recognized that access to data is not necessarily
equated with a loss of privacy. To be sure, it may in many instances
amount to the same thing, but it need not. There is, for example, a
sense in which the automated screening of personal data by computer
enhances privacy: It reduces the arbitrariness or bias of human
screening and insures that an individual's privacy will be disrupted by
human intervention only in suspicious cases.
In addition, those developing TIA can be required to construct a
system that initially disaggregates individual identifiers from
pattern-based information. Only after the pattern is independently
deemed to warrant further investigation should the individual identity
be disclosed. So, for example, only after a query on the bulk purchase
of the precursors of Ricin poison turned up a qualifying series of
purchases linked to a single individual would the individual's name be
disclosed to terrorism analysts.
Thus, everyone on both sides of the discussion should welcome one
aspect of TIA, the Genisys Privacy Protection program. The Genisys
program is developing filters and other protections to keep a person's
identity separate from the data being evaluated for potential terrorist
threats. In authorizing TIA, Congress should mandate that a trusted
third party rather than an organization's database administrator
control these protections.
fbi investigative guidelines
Let me turn now briefly to the new FBI investigative guidelines.
Many of the principles I have applied to TIA, are equally relevant to
any consideration of the recent changes in the FBI's investigative
guidelines. I will not burden the record by repeating my analysis in
its entirety here.
There are, however, aspects of the FBI's guidelines that suggest
the need for heightened sensitivity to the potential for an
infringement on protected constitutional liberties. As you will
recognize from my testimony I have generally been supportive of the
potential inherent in the development of the TIA system. In part, that
reflects my belief in the benefits of technology. But it also reflects
my conviction that existing Supreme Court precedent, dating back to the
1960s, accurately captures the scope of the Constitutional privacy
protection embodied in the Fourth Amendment: The Constitution affords
no additional protection to information that an individual has made
available to other individuals or institutions. Privacy concerns
relating to the further distribution of such information are matters of
policy and legislative concern, not constitutional law. Similarly, the
FBI guidelines raise no Fourth Amendment concerns, insofar as they
authorize the FBI to collect publicly available information from public
databases and/or public meetings.
Protecting Constitutional Liberties. Nonetheless the FBI guidelines
do implicate potential threats to least two fundamental liberty
interests guaranteed by the Constitution. Most obviously, the Supreme
Court has long recognized a freedom of political association and the
threat to that freedom posed by requiring organizations to identify
their members. Second, many of the indicators that might be used to
identify potential subjects of a terrorist investigation are also
indicators that, in other circumstances, are potentially the products
of protected First Amendment activity--in other words, though FBI
investigative techniques are not intended to impinge upon free
political speech or association, they may have the collateral effect of
doing so.
Thus, there is a significant risk that a mal-administered system
will impinge upon fundamental constitutional liberties. I am not,
however, one to say that the risk of such impingement means abandonment
of the program--especially not in light of the potentially disastrous
consequences of another terrorist attack in the United States. I do,
however, believe that some fairly stringent steps are necessary to
provide the requisite safeguards for minimizing inadvertent or abusive
infringements of civil liberty in the first instance and correcting
them as expeditiously as possible. Those steps would include some or
all of the following [many of which mirror recommendations I have
already made with respect to TIA]:
The FBI's use of these new investigative guidelines
should be subject to extensive, continuous Congressional
oversight. By this I do not mean the mere reporting of raw data
and numbers--I mean that, at least as a spot check, Congress
should examine individual, closed cases (if necessary using
confidential procedures to maintain classified status) to
assure itself that the investigative guidelines are not being
misused. In other words, the database contemplated by the FBI
guidelines should, under limited circumstances, be subject to
congressional scrutiny;
Authorization for ``criminal intelligence''
investigations under the FBI's guidelines should, in all
circumstances, be in writing such that the FBI's internal
system creates an ``audit trail'' for the authorization of
investigations with potential First Amendment implications.
Only through detailed record keeping can the use and/or abuse
of investigative authority be reviewed;
The FBI's new guidelines generally authorize the use
of all lawful investigative techniques for both ``general
crimes'' investigations and ``criminal intelligence''
investigations. There should be an especial hesitancy, however,
in using the undisclosed participation of an undercover agent
or cooperating private individual to examine the conduct of
organizations that are exercising core First Amendment rights.
When an organization is avowedly political in nature (giving
that phrase the broadest definition reasonable) and has as its
sole mission the advocacy of a viewpoint or belief, we should
be especially leery of ascribing to that organization criminal
intent, absent compelling evidence to that effect.
There should, as well, be a hesitancy in visiting
public places and events that are clearly intended to involve
the exercise of core First Amendment rights, as the presence of
official observers may chill expression. This is not to say
that no such activity should ever be permitted--it is, however,
to suggest the need for supervisory authorization and careful
review before and after the steps are taken. Conversely,
existing court consent decrees that expressly prohibit all such
activity (as is currently the case in New York City) should be
revisited.
No American should be the subject of a criminal
investigation solely on the basis of his exercise of a
Constitutionally protected right to dissent. An indication of
threat sufficient to warrant investigation should always be
based upon significant intelligence suggesting actual criminal
or terrorist behavior.
Privacy. Though the FBI's guidelines authorize preliminary
inquiries through the use of public information resources many
Americans fear that these inquiries will result in the creation of
personalized dossiers on dissenters. As it appears now, there are no
explicit provisions in the guidelines for the destruction of records
from preliminary inquiries that produce no evidence sufficient to
warrant a full-scale investigation. One possible amendment to the
guidelines that would ameliorate many privacy concerns would be an
explicit provision providing for such destruction or, archiving with
limited retrieval authority.
One other brief point should be made about privacy--in many ways
the implementation of the FBI guidelines is not an unalloyed diminution
of privacy. Rather it is the substitution of one privacy intrusion
(into certain public spheres) for other privacy intrusions (into more
private spheres, perhaps through other investigative means). It may
also substitute for increased random investigations or the invidious
use of racial, national origin, or religious classifications. Here one
cannot make broad value judgments--each person weighs the utility of
their own privacy by a different metric. But I do venture to say that
for many Americans, the price of a little less public privacy might not
be too great if it resulted in a little more personal privacy.
Mr. Chairman, thank you for the opportunity to testify before the
Subcommittee. I look forward to answering any questions you might have.
Mr. Chabot. Thank you very much. The Members of the
Committee will now have an opportunity to ask questions of the
panel for 5 minutes. I recognize myself for 5 minutes.
Mr. Dinh, I'll start with you. The USA PATRIOT Act requires
the Government to maintain reports of the configuration of and
duration of each time a program such as Carnivore is installed
and any information which has been collected by the device.
Under what circumstances would a court or a legislative body be
able to review these reports?
Mr. Dinh. Mr. Chairman, thank you very much. Section 216 of
the USA PATRIOT Act does indeed require us to retain such
information and to make it available to the issuing court
within 30 days of the termination of the order in the ex parte
review, for the court to review such information, including
information relating to how it was used, what information was
gathered by the device, and ultimately whether or not it was
successful in gathering such information.
Mr. Chabot. Okay, thank you. Can you tell us how many
times, if at all, library records have been accessed under the
new FISA standards and the USA PATRIOT Act, and if they have
been so accessed, have the requests been confined to the
library records of a specified person?
Mr. Dinh. Mr. Chairman, section 215 of the USA PATRIOT Act
requires the Department of Justice to submit semi-annual
reports to this Committee and also to the House Intelligence
Committee and the Senate counterparts on the number of times
and the manner in which that section was used in total. We have
made those reports. Unfortunately, they--because they occur in
the context of a national-security investigation, that
information is classified.
We have made, in light of the recent public information
concerning visits to library, we have conducted an informal
survey of the field offices relating to the--its visits to
library. And I think the result from this informal survey is
that libraries have been contacted approximately 50 times based
upon articulable suspicion or calls--voluntary calls from
librarians regarding suspicious activities. Most if not all of
these contacts that we have identified were made in the context
of a criminal investigation and pursuant to voluntary
disclosure or a grand-jury subpoena in that context.
Mr. Chabot. It's my understanding that the first FBI
guidelines and all subsequent guideline changes were adopted
only after consultation with the House Judiciary Committee.
What was the reason for breaking that tradition when the 2002
FBI guidelines were adopted?
Mr. Dinh. Mr. Chairman, to be perfectly frank with you, I
do not know the history of consultation or drafting of the 1976
Levi guidelines or the 1989 Thornburgh revisions or other
revisions to the guidelines prior to this last round of
revisions ordered by the Attorney General. I can say that after
September 11, the Attorney General turned to a group of us, to
me and the Office of Legal Policy in particular, and asked us
to conduct a top-to-bottom review of all of our executive,
administrative, and legislative authorities that are necessary
to prosecute the global war against terrorism. Part of that
review resulted in the USA PATRIOT Act, part of that review
resulted in a number of administrative and regulatory changes,
and part of that review resulted in the revisions to the
guidelines and other guidelines. All of this was done very,
very deliberately, but in a time-sensitive manner, and there
was not consultation prior to the issuance of those guidelines.
However, at the conclusion of those revisions, we
immediately consulted with this Committee and briefed and fully
explained those guidelines. And we seek whatever wisdom you may
give to us during this process.
Mr. Chabot. Thank you. Does the FBI have in place an
internal process in which track of how many agents have
attended public events and, and of how many public events have
been attended by agents?
Mr. Dinh. Yes and no. In a first cut at the answer, we are
interested in information relating to criminal and terrorist
activity. That's why the Attorney General guidelines make clear
that no information obtained from public visits shall be
retained unless it relates to criminal and terrorist
activities. That is the primary information which we track. And
so in that sense, we do not track general visits as a matter of
investigative activity, because we're interested in criminal
investigations, not the ordinary activities of law-abiding
citizens.
But there is an administrative control mechanism
independent of investigative files. Each field office retains
what we call a control file, which is an administrative file on
how agents use their time. And in these control files, there
are logged activities relating to their public visits. And
those control files are accessible by headquarters or by
supervising agents in order to determine the pattern and use of
such visits.
Mr. Chabot. Thank you. My time has expired. The gentleman
from New York, Mr. Nadler, is recognized for 5 minutes.
Mr. Nadler. Thank you, Mr. Chairman.
Attorney General Dinh, I was interested to hear you say a
few minutes ago that the number of times that libraries have
been visited was classified information. The Department claims
the mere fact as to whether the Department has used various
authority granted in the PATRIOT Act is classified. The
question is not when, where, how, or against whom. Is it your
position that you can't even tell the Committee whether you
have actually used the particular authority granted in the act?
You can't tell us--I mean, the libraries know whether
they've been visited. How does it help the national security--
why should it be classified how many libraries have been
visited or even which--well, which--how many libraries have
been visited? How do you suggest we evaluate the authority we
have given you if you can't even tell us whether you've used
those authority, how often you've used it?
Mr. Dinh. That is a very fair question.
Mr. Nadler. Why should it be classified?
Mr. Dinh. A very, very fair question. The total number of
library visits is not classified. As I have said, we've done an
informal survey and we've ascertained that approximately 50
library contacts have occurred in the past year. The precise
use of FISA authorities, Foreign Intelligence Surveillance Act
authorities, including the authority granted in section 215, is
classified because they occurred in a national-security
context.
Mr. Nadler. By ``the precise,'' you mean against whom? I
mean, which incidences?
Mr. Dinh. No, even just the number, the number of FISAs
used, the number----
Mr. Nadler. Why should the number be classified?
Mr. Dinh. That is the determination of the classification
Committee pursuant to----
Mr. Nadler. Well, that's nice, but why--what's the reason?
Why should it be classified?
Mr. Dinh. If I may--pursuant to Executive Order 12333 and
the decision of the multi-agency task force----
Mr. Nadler. Yeah, but what's the reason?
Mr. Dinh. The reason is fairly straightforward. The amount
of activity as well as specific number of authorities used give
an insight as to patterns of intelligence and terrorist
activities that is known to the United States. If you will
recall that FISA controls not only terrorists, but also spies.
And so our ability to know what spy networks are there, what
terrorist networks are there, the number of those networks----
Mr. Nadler. And so you're saying--excuse me. So what you're
saying is that if you told us you've used the FISA authority
100 times or you've used it 1,000 times, that would tell some
enemy something useful to them in terrorist activities?
Mr. Dinh. Yes, sir. If, for example, in year one, in year
one we said that we have an active number of FISAs that equals
100, and then in year two we say that that number has now
changed to 200, that increase signifies an increased interest
in our intelligence----
Mr. Nadler. Mr. Dempsey, could you comment on that, please?
Mr. Dempsey. Glad to, Mr. Nadler. The number of FISAs is
actually published and known, and we watch how it goes up and
down from year to year. I think that the information that is
published could be more detailed than that. Right now, there's
a broad statement of the number of FISA applications that were
granted.
I think in the case of the--going even down as specific as
the number of times that section 215 has been used in a
library--I happen to think that number's relatively small--I
don't think that tells anybody anything. Because in fact, even
in the case of terrorism investigations, the Government can be
going in with subpoenas, criminal subpoenas. And so you--
already you've got almost an apples-and-oranges question in
terms of anybody trying to predict where the Government is or
to try to evade Government surveillance. I think overall some
of these numbers can be made publicly available. I think it
would greatly help the subCommittee.
Mr. Nadler. Okay, thank you. Mr. Dinh, could you tell us
what you consider to be the difference between content and not
con--and non-content information in electronic communications?
Do you have the technical means to segregate address lines from
subject lines in an e-mail? How is this done, and how do you
handle URL addresses?
Mr. Dinh. Yes, yes, and that's a hard question. We consider
non-content to be the To and From. The subject line is content.
The--we have specified programs that are very precise in their
parameters of what they will take and what they will not take.
Congress recognized the existence of these programs by--when it
enacted section 215, by requiring the Department to use the
best available means in order to minimize non-content or
excessive, or excessive take. With respect to URLs, the Deputy
Attorney General has issued a memorandum, which has been
provided to this Committee, on the use of post-cut-through
intercepts in the analog world, and also content information in
the digital world.
Mr. Nadler. I'd like Mr. Dempsey to comment on the same
questions.
Mr. Dempsey. Well, I really think that the--we shouldn't
overlook the main question, which is the inadequacy of the pen
register standard right now. As Professor Kerr has referred to,
that right now these orders are issued, that the statute says
that the judge ``shall'' issues the order. The judge is
required to issue the order if the Government asks for it. No
factual showing, no----
Mr. Nadler. The judge has no discretion?
Mr. Dempsey. Absolutely no discretion.
Mr. Nadler. Does the Government have to show something to
the judge to----
Mr. Dempsey. It has to show him a piece of paper signed by
a prosecutor saying this is relevant to an investigation. The
court cannot in fact ask, ``Is it relevant?'' If the
Government----
Mr. Nadler. Should we amend that?
Mr. Dempsey. Well----
Mr. Chabot. The gentleman's time has expired, but you can
answer the question.
Mr. Dempsey. This Subcommittee and the full Committee in
the 106th Congress approved legislation along the lines
discussed by Professor Kerr that would require some minimal
factual showing and some role for the judge, some actual
finding by the judge that that information would be relevant to
a criminal investigation.
Mr. Chabot. The gentleman's time----
Mr. Nadler. That was superior to what you think is--you
think that's superior to what's in the PATRIOT Act?
Mr. Dempsey. Absolutely.
Mr. Nadler. Thank you.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Tennessee, Mr. Jenkins, is recognized for 5 minutes.
Mr. Jenkins. Thank you, Mr. Chairman.
Mr. Rosenzweig, you mentioned something that I've said many
times in a little different way. But in my experience as a
State legislator and here in the Congress, I've found that
people who are separated greatly on the political spectrum,
those people who call themselves very liberal and those people
who call themselves very conservative----
Mr. Chabot. Can you pull your mike, please, to----
Mr. Jenkins.--are much more likely to have greater accord
when they have before them under consideration constitutional
issues in general, and especially Fourth Amendment issues. And
that's what, that's what you were saying. And I, I wonder if
the other members of this panel also believe that to be true.
Mr. Dinh. Yes, sir, the common bond that binds us is our
U.S. Constitution and the procedures set forth thereunder.
Mr. Jenkins. And I have--Professor Kerr, do you believe
that's the case?
Mr. Kerr. I think there's, you know, widespread consensus
that the Fourth Amendment is a vitally important constitutional
protection. In terms of the politics, if that's more the
question, there is--a rough cut could be that it tends
sometimes to be the ends against the middle in these issues.
But that's, of course, a pretty rough----
Mr. Jenkins. Well, this gives me a lot of confidence that
this situation is not going to get out of hand, at least
anywhere in the near future.
Another thing that nobody has mentioned here is the
permanency of these provisions. Nobody has mentioned that with
respect to, not all, but some of the these, there is a definite
life to these provisions. It's, under the statute, what, 4
years for most? And does that not--is--does not, that not
lessen the threat that some people fear? And any of you who
would like to comment on that, let us know what you think about
the sunset provisions, aspects of these provisions.
Mr. Dempsey. Congressman, I think that the sunset provision
was in fact an important provision of the PATRIOT Act. I think
that this hearing is part of the process of Congress deciding
whether to reauthorize those provisions or whether to
reauthorize them subject to better checks and balances.
I think, though, that a number of the things that we're
talking about today and a number of the issues of concern to
this Subcommittee do not arise under the PATRIOT Act and are
not subject to the sunset. So the Subcommittee and the Congress
is going to have to look at those as well. I think the FBI
guidelines is one of those. I think the use of FISA, Foreign
Intelligence Surveillance Act, information in criminal cases,
that provision, I think, does not sunset, and that is an issue
that will remain, that needs to be addressed. I think the pen
register authority and what that should be needs to be
addressed. The use of data mining technology is taking place,
really, outside of the PATRIOT Act, and standards and
guidelines need to be established before that is implemented.
So the sunset, I think, is a symbol of Congress's
responsibility. But mere up or down on the sunset doesn't,
doesn't end the debate.
Mr. Jenkins. All right. Anybody else have a thought?
Mr. Rosenzweig. I'm a firm believer in the sunset
provisions in this and other laws that relate to civil
liberties, because to my mind, the fundamental check on
executive excess which may or may not arise, but in preventing
it, is the continued conscientious, nonpartisan engagement of
Congress in oversight. And the sunset provisions are a way of
ensuring that the institutional barriers that live in this
institution that prevent activity sometime are overcome, in a
sense binding yourselves to detailed, thoughtful oversight
because of the impending sunset deadline. I think it's a great
idea.
Mr. Jenkins. Anybody else? Mr. Chairman, that's all the
questions I have.
Mr. Chabot. Thank the gentleman. The gentleman's time has
expired. The gentleman from Virginia, Mr. Scott, is recognized
for 5 minutes.
Mr. Scott. Thank you, Mr. Chairman.
Mr. Dinh, is it the Administration's position that if the
Secretary of Defense designates someone as a guilty foreign
terrorist, that that person can be held indefinitely, no
charges, no counsel, no judicial review? Is that the
Administration's position?
Mr. Dinh. Mr. Congressman, as you know, those cases, both
in the 4th Circuit with Yaser Hamdi and the 2nd Circuit with
Jose Padilla, are currently under litigation, so I'm somewhat
limited in my ability to answer. I can say that in that
litigation----
Mr. Scott. In a public document, did not the Administration
take the position that after the Department of Defense
designated somebody as a guilty terrorist, that the judicial
branch ought to just butt out?
Mr. Dinh. No, not exactly. The designation in Jose Padilla
was made personally by the President of the United States as an
unlawful enemy combattant, not necessarily guilty terrorist,
but as an unlawful enemy combattant. That designation does in
no way close the court house door to the combattant to
challenge his detention. As a matter of fact, the courts are
assessing----
Mr. Scott. Are you saying that the Administration took the
position that the--Hamdi could in fact contest his designation
in court, or was that what Judge Wilkinson made you do?
Mr. Dinh. No, sir, what I'm saying is that the court house
doors remain open in a habeas proceeding for Mr. Hamdi or Mr.
Padilla in order to challenge his detention. And in the course
of that habeas petition proceeding is how these issues are
being resolved. It just so happens that the law and the facts--
--
Mr. Scott. Okay, let me be clear. It's your position that
the Administration took the position that Mr. Hamdi had access
to habeas corpus proceedings in court?
Mr. Dinh. Let me put it this way. The President, has not
suspended habeas corpus, as you--as we all know. And the court
house door is open to all persons who----
Mr. Scott. And if I showed you a brief that said that the
Administration position was that there was no habeas corpus
available after the designation, you wouldn't know where that
came from, would you?
Mr. Dinh. Well, sir, there is a difference. There is a
difference between the ability to present a habeas proceeding
petition and whether or not that petition is entertainable by
the court or has any merit on the law. The latter question,
which I am addressing, is a matter that the court has issue.
The former question is the one that I think, in specific answer
to the question, we have not closed court house doors to
present a habeas petition.
Mr. Scott. I'd ask unanimous consent that the staff obtain
the Administration brief in the Hamdi case so that we can get
the exact language. I think it would be inconsistent with
what----
Mr. Nadler. Will the gentleman yield for a second?
Mr. Scott. I'll yield.
Mr. Nadler. The exact language was that once the President
has designated someone an enemy--an unlawful combattant, the
courts have no jurisdiction--no jurisdiction--to question that
determination.
Mr. Scott. Well, reclaiming my time, I'd tell the gentleman
from New York that's not what I just heard.
Mr. Nadler. I know it's not what you just heard. But it is
the truth.
Mr. Dinh. Let me be very, very clear. As I said, there are
two separate questions here. One, whether or not the court
house remains open to present a habeas petition; and two,
whether or not that habeas petition, for jurisdictional or
substantive reasons, has any merit.
Mr. Scott. Not merit, but--well----
Mr. Dinh. In answer to your question----
Mr. Scott. Well, Mr. Hamdi was--well, we'll get the exact
language and we'll see how the language of the brief comports
with what you just said.
Is it--you mentioned the Levi guidelines. What is the
change--has there been a change in FBI guidelines in terms of
when you can start investigating--gathering information on
people? The old guidelines used to require an underlying
investigation before you started spying on people. Has that
changed?
Mr. Dinh. Under the old guidelines and in the new
guidelines, the level of predication--initial checking out of
leads, a preliminary investigation, or a full investigation--
remains the same. What has changed is that the Attorney
General, under Part VI of the new guidelines, adds this
provision, and I quote: ``For the purpose of detecting or
preventing terrorist activities the FBI is authorized to visit
any place and attend any event that is open to the public on
the same terms and conditions as members of the public
generally. No information obtained from such visits shall be
retained unless it relates to potential criminal or terrorist
activity.''
Mr. Scott. Is that a change from what we had before?
Mr. Dinh. That is a change from what we had before. Prior
to that change, FBI agents were not able to stand on street
corners and see whether crimes had been committed. They were
not able to go on the Internet in order to search whether or
not smallpox is a threat. They had to do so only after they
were picking up the rubble of the last terrorist attack.
Mr. Scott. Mr. Dempsey, if----
Mr. Chabot. The gentleman's time has expired, but gentleman
can ask his question.
Mr. Scott. I was going to ask if the--you have one of these
database sweeps, who gets to look at the information? Thank
you, Mr. Chairman.
Mr. Dempsey. Well, those are the rules that are not spelled
out at all. Now, are you talking here about, as a follow-up to
Mr. Dinh's comments about use of the Internet by FBI agents or
by--are you talking about data mining issues?
Mr. Scott. Data mining.
Mr. Dempsey. Well, on the data mining issue, which is this
use of the publicly available or commercial databases, we
really don't know who gets to look at it, who they get to share
it with, how long they can keep it, what the standards for
accuracy are, who approves the search, who approves the sort of
algorithm that is used to mine this data, who it can be
disclosed to, how it can be characterized.
Mr. Scott. What about library books, library check-outs?
Who gets to look at that information?
Mr. Dempsey. Well, once information is collected,
particularly under the PATRIOT Act, it can be widely shared
throughout the Government, almost without limitation.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Iowa, Mr. King, is recognized for 5 minutes.
Mr. King. Thank you, Mr. Chairman. Mr. Dinh, as I listened
to you read that section, how it authorizes agents to go in any
public gathering and gather such information as is available to
the public, and that no information shall be retained unless it
relates to criminal activity, how is that determination made on
what is criminal activity?
Mr. Dinh. Thank you for the question, Congressman. The
determination is made by the agent initially and then approved
by the supervisor, as in the normal course of any
investigation.
Mr. King. And then might it be retained if it potentially
relates to potential criminal activity?
Mr. Dinh. Yes, sir. What happens is that the agent would
open a file, either a preliminary investigation or a full
investigation based upon that indication of criminal or
terrorist activity, and that file would remain open until the
prosecution is brought or the investigation complete without
charges.
Mr. King. So, for example, if an agent went into a mosque
and tape recorded a sermon in there and if some of the contents
of that would have included some I'll say, inflammatory
rhetoric, could that be something that could be compiled as
potentially useful in a criminal investigation?
Mr. Dinh. I think inflammatory rhetoric itself would not
suffice, simply because one, not only is there an inadequacy of
criminal activity, but more importantly there is a special
sensitivity to the exercise of First Amendment rights. That
agent conducting a public visit, first of all, would, under the
guidelines, not be able to turn on the tape recorder. He would
have to just simply observe on the same terms and conditions as
the public, and only when there is an indication of criminal
activity would he be able to pursue other investigative
avenues, including surreptitious recording.
Mr. King. If they happened to be in a State that allowed
for third-party tape recording, could they utilize that?
Mr. Dinh. The utilization of surreptitious recording
depends not on the laws of the State but the special procedures
of the Department. Where it is a highly sensitive
investigation, special sensitivity such as of a religious or
political institution, there are special procedures in place in
order to govern those sensitive activities, including
ultimately review in certain cases by an undercover review
committee.
Mr. King. So in a case like Iowa, where if you and I are
having a conversation, I can tape record that conversation?
Would your guidelines prohibit that type of activity within
Iowa?
Mr. Dinh. The guidelines themselves would not prohibit it,
but other--other administrative--and a memorandum governing the
activity, the FBI may well have an
implication on it.
Mr. King. So then at some point, if this--if we're going to
compile a sense of intelligence about what might be going on
domestically with regard to subversive activities, we may have
to rely on third-party investigators, good citizens that
utilize existing laws in a way that exceeds your ability to do
so?
Mr. Dinh. Certainly, informants have always been, and good
citizens and good samaritans have always been a source of
information investigative activity, as long as they do not act
at the direction of FBI agents or under the authority of the
United States Government. But independent of that, the Attorney
General's guidelines liberate the ability of FBI agents to do
what ordinary police, State and local police can do--that is,
to identify threats on the same terms and conditions as members
of the public generally.
Mr. King. So if an interested person would then compile the
text of, I'll say a series of meetings that advocated, without
being, without being, without, I'll without leading toward
violence but made those advocations, is that something that the
Department could utilize?
Mr. Dinh. As long as it was done not under the direction of
or under the supervision or behest of the Government, there's
nothing prohibiting us from getting such manna from heaven, as
it were.
Mr. King. And in fact, if there were a Web page that
gathered that kind of information and posted it, it would be
something that would be available to your Department?
Mr. Dinh. Yes, and it would be as long as the Web page is
publicly available, available to the FBI agents to search.
Mr. King. Thank you, Mr. Dinh. Mr. Dempsey, you know, as I
read your testimony, I'm just unclear as to your position, the
portion where it says now FBI agents can apparently wander down
the street and visit mosques or political meetings like anyone
else, on a whim.
Am I to understand that you're opposed to that ``on a
whim'' portion?
Mr. Dempsey. Yes. I believe that mosques and other
political activities or religious activities are not off-
limits, but that there has to be some direction and guidance
for FBI agents. Of all the mosques in the country, of all the
political meetings, which ones do they go into? The Attorney
General and, today, the Assistant Attorney General has
repeatedly stated that FBI agents can do whatever members of
the public can do, which is you walk down the street and say
there's an interesting building, let me go in. Or you say--walk
down the street and do it on a discriminatory basis, or do it
on an arbitrary basis. I think that's a terrible allocation of
resources.
I think also it does have a chilling effect. I think that
an FBI agent is not an ordinary member of the public. He's not
there as an ordinary member of the public. He's there
specifically for a purpose. And unless that purpose is guided
by the effort to collect information about potential terrorist
activity, then I don't think he should be there.
Mr. Chabot. The gentleman's time has expired.
Mr. King. I appreciate your position on that. And thank
you, Mr. Chairman.
Mr. Chabot. Thank you. The gentleman from North Carolina is
recognized for 5 minutes.
Mr. Watt. Thank you, Mr. Chairman.
Mr. Dinh, there have been posted in the Internet for some
time something called PATRIOT II. Are you familiar with that?
Mr. Dinh. I think on January 23 of this year the Center for
Public Integrity did put up an unauthorized release of
something and that was draft legislation purportedly from the
Department of Justice. We do not----
Mr. Watt. Who did you say put it up?
Mr. Dinh. The Center for Public Integrity.
Mr. Watt. And was that, was that a paper that originated in
the Justice Department?
Mr. Dinh. From all indications, yes, sir, it was a paper
that was originated in and from the Justice Department.
However, as we have made clear and as the Attorney General has
made clear before the full Committee, that draft was exactly
that: a draft that was still under the deliberative process,
which was somewhat circumvented by the premature and
unauthorized release of it.
Mr. Watt. And is the drafting process continually within
the Department of Justice?
Mr. Dinh. We are continuing trying to assess the way we do
our business, because we know from specific evidence
intercepted from communications of terrorist cells that they
are watching us and evading our ability to prevent terrorist
attacks. And so we're always thinking about new ways to do
things effectively, and they include legislative proposals,
executive amendments. I cannot say whether or if a specific
legislative proposal will be made by the President, because
ultimately it would have to be cleared through the
Administration before any such proposals would be cleared. But
we're constantly thinking about suggestions on how to improve
our laws.
Mr. Watt. Have you eliminated from consideration any of the
provisions that were posted on the Internet in that draft?
Mr. Dinh. I'm sure we have, because as I said, it was a
draft, it was a preliminary draft, that----
Mr. Watt. Which ones have you eliminated?
Mr. Dinh. I cannot say with specificity, nor would I be at
a position in order to identify those without going into more
infringements of the deliberative process. I can say that it
was a preliminary draft and so of course things will be added
in and things will drop out. And indeed, decisions will----
Mr. Watt. Well, right now I'm trying to figure out which
ones are being dropped out.
Mr. Dinh. Frankly, if I was to answer your question, I
would be engaging in the exercise of boxing against shadows,
because I would not know which is in and which is out because
the deliberative process is one that is continually evolving.
And until we have a final draft that is approved by the
Administration and the Attorney General, I would not be at
liberty to discuss any specific provisions.
Mr. Watt. You're part of that ongoing process?
Mr. Dinh. Yes, I am part of that ongoing process, as well
as a number of people within the Department of Justice and
elsewhere.
Mr. Watt. Let me ask this question, Mr. Dinh. What things
have you found from your own experience that you believe are
not currently authorized in PATRIOT, the PATRIOT Act, that you
believe should be being considered whether they get proposed or
not?
Mr. Dinh. I guess the safest way for me to answer that
question is to refer back to the January 19 Center for Public
Integrity draft. And that draft, as it is public, includes a
provision which amends the FISA statute to take care of the
Moussaoui problem, the so-called ``lone wolf'' fix. Senator Kyl
and Senator Schumer in the United States Senate have proposed a
similar measure, and that is a measure that the Administration
has endorsed. And that's another example.
Mr. Watt. How would that work?
Mr. Dinh. Right now, in order to be subject to the FISA
regime as opposed to the criminal surveillance, you would have
to be an agent of a foreign power. And a foreign power is
defined to include foreign nations, obviously, but also
international terrorist groups. At a beginning of an
investigation, as was the case with Moussaoui, we do not know
whether Mr. Moussaoui was acting on behalf of a--in connection
with a terrorist group or alone. We now obviously know, or at
least we are--we present evidence and allege that he was part
of an international conspiracy. At the beginning of an
investigation, that bill would allow FISA be used even if there
were no specific connection to an international terrorist
group.
Mr. Watt. So in effect that would allow the U.S. Government
to go after any individual anywhere in the world, whether they
were acting independently or on behalf of another nation?
Mr. Dinh. Not any individual, not anywhere around the
world. It does allow the Government to go after lone-wolf
terrorists and spies, because the damage done by a single
person can be as devastating as----
Mr. Watt. I don't mean to be semantic, but is there some
difference between a lone wolf and any individual who might be
engaging in some kind of----
Mr. Chabot. The gentleman's time has expired, but the
gentleman can answer the question.
Mr. Dinh. Yes, sir, thank you very much, Mr. Chairman, for
the accommodation. First of all, the amendment in the Kyl-
Schumer bill only applies to non-U.S. persons, and so it's----
Mr. Watt. To?
Mr. Dinh. Non-U.S. persons. And so it would take out a
majority of the population within the United States. Also, that
person would have to be engaging in terrorist activity,
international terrorist activity as defined by statute or
intelligence.
Mr. Watt. So whoever you all say is a lone wolf is a lone
wolf----
Mr. Dinh. No, sir, not in----
Mr. Watt.--as opposed to just anybody?
Mr. Dinh. No, there is judicial supervision of application
of the standards. In order to engage international terrorist
activity, you have to knowingly engage in certain activities
that is in violation of the laws of the United States and also
with the intent to coerce and intimidate governmental policy.
In order to engage in clandestine intelligence activities, you
have to knowingly engage in activities that violate the laws of
the United States and also to--relating to intelligence
collection. So it's not just anybody doing anything. It's very
particularized, subject to approval by judges who are article
III judges.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Florida, Mr. Feeney, is recognized for 5 minutes.
Mr. Feeney. Thank you, Mr. Chairman. Mr. Dinh, in the first
place, the two individuals that you were just being--the cases
that you were being asked about a little bit earlier with the--
with respect to the Department of Defense designation, were
those U.S. citizens that were so designated?
Mr. Dinh. Both, sir. Mr. Hamdi was a U.S. citizen who was
captured on the battlefield in Afghanistan. Mr. Jose Padilla is
a U.S. citizen who was captured in the Chicago O'Hare Airport,
and our evidence indicates--and this was made in an affidavit
submitted in court--indicates that he came to the airport with
the intention of detonating a dirty bomb in the vicinity.
Mr. Feeney. I appreciate that. I'm also interested in
whether or not there's anything in the PATRIOT Act or any other
aspect of Federal law that would permit any of the Executive
Branch offices to designate an individual U.S. citizen in such
a way that that individual would lose any of their otherwise
protected freedoms under the Constitution or the Bill of
Rights.
Mr. Dinh. No, sir, nothing in the laws or specifically in
the United States--or in the USA PATRIOT Act. As our pleadings
make clear, the President was acting under his authority, his
executive authority as commander in chief.
Mr. Feeney. And there are exceptions under article I,
section 9 in terms of suspending habeas corpus, is that right?
I think invasion of the public safety and domestic rebellion,
or----
Mr. Dinh. Yes, sir, you are absolutely correct. And those
are the provisions that President Lincoln relied upon in order
to suspend habeas corpus and declare martial law during the
Civil War. And this is in answer to Mr. Scott's earlier
question, that the President obviously has not made such a
determination nor does he have intent, present intent to do so.
Mr. Feeney. Well, even if we are under a current rebellion
or invasion of the public safety, other than habeas corpus, I'm
not aware of any other rights that any U.S. citizen may be
forced to forfeit as a consequence of such a designation.
Mr. Dinh. Nor am I, sir, just the great writ of habeas
corpus is the specific suspension clause.
Mr. Feeney. Well, and Professor Kerr, I guess other big
portion of the Constitution we've talked about today would be
the Fourth Amendment. And of course the proscription against
searches or seizures is against--is limited; it's against
unreasonable searches and seizures. And so maybe you could
describe briefly for me the way the Court has evolved during
certain periods of national crisis with protecting the right of
individuals not to be unreasonably subject to searches or
seizures, and how that has been affected and how those Court
precedents may affect the situation we're in today, where the
terror threats are at an all-time high.
Mr. Kerr. Of course. There's been an evolution in the
Supreme Court's jurisprudence in the Fourth Amendment over
time. The general explanation which the cases support is that
originally the Fourth Amendment was very concerned with
protecting property rights, and in sort of moving through the
1960's and, really, in the Katz v. United States case, moving
toward more of a privacy-protecting approach.
At the same time, the Supreme Court has been more
deferential in the context of wartime, for example, or
especially in the area of national security, than in criminal
investigations. So for example, in the Keith case in 1978, I
believe, the Supreme Court recognized that the Fourth Amendment
did apply in domestic national security related cases, but
suggested that Congress could carve out a new set of rules
which might be different from the traditional Fourth Amendment
standards that would apply in criminal cases.
So the Court has been, I think, fairly pragmatic in this
area and suggested that it's really up to a question of what is
the threat, what are the reasonable steps that can be taken in
response to it? But at the same time, it is a fairly unclear
area of law. The Court has not had that many opportunities to
step in and clarify the rules.
Mr. Feeney. Well, thank you. And finally, Mr. Rosenzweig, I
think a lot of the panel members and the Members have voiced
support for the notion that we've got some 4-year sunset
provisions on a lot of the applications. Maybe because I'm
familiar with the Heritage's philosophy and tend to endorse it
on most issues, maybe my experience at the State level may be
relevant, because I used to believe I was for sunsetting every
part of the chapter and code in the statute book. But what I
found was that every interested party and group in the world,
when they were aware that that sunset was coming up, and we
were able on a routine basis to turn about three pages of the
statutes into 203 pages by the time we were done sunsetting
provisions. So we may get what we asked for on this one.
Mr. Rosenzweig. I would not support sunsetting every
provision of every law, for precisely the same reasons that
you've just alluded to, that it gives us the opportunity for a
big Christmas tree to be grown in the midst of Congress. In the
context, however, of this vital issue, the balance between
civil liberty and national security, one that I think is,
frankly, the most important legal issue, domestic legal issue
facing this Congress this year--more important than Medicare,
more important than Social Security. The importance of getting
it right and the importance of keeping Congress engaged is, in
my judgment, sufficiently great that artificial mechanisms like
the sunset are, I think, to be used cautiously, judiciously.
Also, to be candid, I think on this type of provision, there's
pretty unlikely there are going to be a lot of Christmas trees.
As Patriot--as the next PATRIOT Act goes through, nobody's
going to put a tax break on--I hope.
Mr. Feeney. Well, but you just heard PATRIOT II described
by one of my colleagues----
Mr. Chabot. The gentleman's time has expired. The
gentlelady from Texas, Ms. Jackson Lee, who is a Member of the
full Committee but not a Member of this Committee, has asked
for 2 or 3 minutes to ask questions. She's assured me she'll
stay within that time. If there's no objection, I will grant
the lady two and a half minutes, and as long as she'll stay
within that time, we will grant her that. Are there any
objections?
[No response.]
Mr. Chabot. If not, the gentlelady is granted that time.
Ms. Jackson Lee. Thank you very much, Mr. Chairman. And I
know that your monitoring the clock will help me.
I thank the witnesses very much. And with this time, I need
simply to make some comments and requests as well. I'm
gratified that the statement of the Chairman recites the Fourth
Amendment provides that the right of the people to be in secure
in their persons, houses, papers, and effects against
unreasonable searches and seizures and that it should not be
violated. Let me get on the record my opposition to any PATRIOT
II without a full hearing and briefing and an assessment and an
accounting on the impact of PATRIOT I, particularly if there
are far reaches and expansion and--under--and an undermining of
the Fourth Amendment.
Might I remind my friends and colleagues of Ruby Ridge and
Waco. These are incidences that occurred before 9/11, and I
think it's important to know that this is a far-reaching issue.
Beyond immigrants and beyond Arab--the Arab community and
Muslim community, this is an American question of whether or
not our constitutional rights have been infringed upon.
Secondly, let me raise a question that's pertinent to
Texas, and thank the Justice Department for responding quickly
to my question as to whether or not there was any criminal
violation by the 55 legislators who went to Ardmore and other
places in Texas. A letter came back, and I'm very grateful for
that, indicating there was no Federal question or Federal need
for intervention. The DOJ did not see that need.
In light of that, I would appreciate it greatly, as we are
asking the Homeland Security provide us with all tapes, and we
have seen that the Inspector General has recused himself and
another person investigating, I'm making an official request
that the DOD do a separate investigation with respect to the
question of whether the Republican Party, the majority leader,
or any person employed by them or acting on their behalf
contact the Department of Justice or the Department of Homeland
Security or any agency acting under their auspices seeking the
assistance of a Federal agency resources to locate any
Democratic member of the Texas State legislature.
Again, I believe this ties into our inquiries today. And I
would appreciate whether or not you would give a response to
the fact that any action by the Texas legislature was a
detriment to the public and whether or not the public's civil
liberties were in question if that occurred.
Lastly, Mr. Chairman, so that I can keep within the time
frame----
Mr. Chabot. The gentlelady's time has expired and the
gentlelady's request has been duly noted.
Ms. Jackson Lee. Thank you. And I'll provide the others in
writing. I thank you very much, Mr. Chairman, for the time.
Mr. Chabot. Thank you. The gentleman from New York has also
asked unanimous consent to ask one additional question, and if
there's no objection, the gentleman is granted that.
Mr. Nadler. Thank you, Mr. Chairman.
Let me say the following first, then ask my question. In
discussion with Mr. Scott some of his questions--I'm sorry,
with Mr. Watt, his questions--or no, it was Mr. Scott. I'm
getting confused here. You were discussing the Administration's
position in the Hamdi and Padilla cases. And the fact is--the
fact is that the Administration took the position, and if you
look at your brief you'll see it, that when the President or
the Department of Defense has designated an American citizen or
anyone else an enemy combattant, the courts have no
jurisdiction, no jurisdiction, to question that designation.
The courts have not agreed with that, but that's the
Administration's position. And that's a claim of power, a claim
that habeas corpus doesn't exist, that nothing exists, that the
President in that decision is all-powerful, that nobody, until
that brief, had made in an English-speaking jurisdiction--
before Magna Carta. And I would point out that this country
rebelled against Great Britain for tyrannical assertions far
less grievous than that.
My question, however, is on a different--and that's the
record, if you look at the brief of the Justice Department.
There's no question. In saying that habeas corpus exists, it
only exists because the court didn't agree with the
Administration.
My question is the following. Getting back to FISA, the
whole point of FISA is that the Fourth Amendment says you can't
search--you can't issue a search warrant, basically, unless
there's probable cause to believe that a crime was committed,
or maybe it had to be committed. FISA, however, says wait a
minute, when you're dealing with foreign intelligence agents
and you're not talking about a criminal prosecution but
fighting an intelligence war with the Soviet Union or al Qaeda
whoever, you shouldn't adhere to that standard. The PATRIOT Act
comes along and says--and that's for a foreign intelligence
investigation. The PATRIOT Act comes along and says that, well,
you can adhere to a lesser standard than the Fourth Amendment
requires if foreign intelligence is a significant purpose--not
the only purpose or the main purpose, but a significant
purpose. The Department, in its answers to various questions of
this Committee, has said that they've used various of these
powers on drug cases and other cases.
My question is, if you are allowing use of FISA standards,
which is less than Fourth Amendment standards, for questions
which aren't really foreign amendment--foreign intelligence,
but for crimes, what is left of the Fourth Amendment?
Mr. Dinh. You ask a very good question. I would like to
discuss that in detail----
Mr. Nadler. And--excuse me, let me just say--and how can we
do that constitutionally and say the crimes can be--criminal
investigations, even if there's some foreign intelligence
thing, can be governed by a less-than-Fourth-Amendment
standard? Whatever you decide the Fourth Amendment means, how
can you say it's governed by less than the Fourth Amendment?
Mr. Dinh. I completely understand. With respect, Mr.
Congressman, I am advised that in the Hamdi case, we did not
move to dismiss the habeas petition, but simply argued that the
designation was conclusive, consistent with Ex Parte Qurin. In
Padilla, we did make a----
Mr. Nadler. And--excuse me--and if--go ahead.
Mr. Dinh. In Padilla, we did make a motion to dismiss for
lack of personal jurisdiction because we thought that Mr.
Padilla, who was being held in South Carolina, venue was in
South Carolina.
Mr. Nadler. Well, forget the venue. But even your first
thing, if you say the court lacks jurisdiction, then there can
be no habeas.
Mr. Dinh. No, sir, we did not move to dismiss on lack of
jurisdiction. We argued that under the law, Ex Parte Quirin in
particular, the designation as enemy combattant is conclusive
upon the----
Mr. Nadler. Excuse me, the designation is conclusive;
therefore there is no habeas corpus or anything else. The
designation----
Mr. Dinh. No, here's----
Mr. Nadler. Wait a minute. The designation is con--if you
say the designation is conclusive, and once that designation is
conclusive, then there is no right to habeas corpus, correct?
Mr. Dinh. We are in agreement in all but characterization.
Habeas petition exists, he can present all his arguments legal
and factual. It just so happens that under the law, his habeas
argument is not worth very much. The habeas petition would be
dismissed not for want of jurisdiction, but for want of
substance.
Mr. Nadler. I find that, frankly--what's the word I'm
looking for?--sophistry.
Mr. Dempsey. All he's saying is, is that the President
declares that you're an enemy combattant, the facts of the law
do not matter after that, that the only law that matters is
their reading of the law that the President can do this.
Mr. Dinh. No, the law as interpreted by the Supreme Court
is the law that the court applied in this case and in all other
habeas cases, and it just so happens that the----
Mr. Nadler. Is that what they said in Quirin? That's not--
but in other words, what you're saying is once the President
decides that you're an enemy combattant, you can make a motion
to habeas corpus but it doesn't matter what the facts are and
it doesn't matter what the law is. The designation is
conclusive and----
Mr. Dinh. It absolutely matters what the law is. And the
law is that----
Mr. Nadler. That you have not right----
Mr. Dinh.--the President is due substantial deference,
because courts are an imperfect place to make these kinds of
judgments that the Executive made.
With respect to your FISA question, it is an extremely
important question, a very good constitutional question. As you
know, FISA was adopted by Congress in response to the Keith
decision that Professor Kerr has elucidated before. It governs
very, very strictly the conduct of counter-intelligence and
intelligence and it has very specific procedures that govern
the use of such information in a subsequent criminal
proceeding. For example, before FISA-derived information can be
used ``before any court, department, officer, agency,
regulatory body or other authority of the United States,''
notice has to be given to the interested party, that is, the
person who is the defendant. That party then has the ability to
file a motion to suppress or to discover such information
underlying the FISA application. Under those proceedings are
when the arguments of Fourth Amendment would be aired in the
subsequent use.
The reason why this system exists and is fully
constitutional is that the Court, in Keith and in other cases,
has held that the warrant requirement, that is, the warrant of
probable-cause, the requirement of the Fourth Amendment, does
not apply to these orders, but rather reasonableness applies.
And as the court of FISA review made clear, that standard of
reasonableness differs from the probable cause requirement of
the warrant clause of the Fourth Amendment.
Mr. Chabot. The gentleman's time has expired.
Mr. Nadler. I thank the Chairman for his courtesy and
indulgence.
Mr. Chabot. The Chairman duly notes that. A request has
been made--the gentleman over here, Mr. King, would like to ask
some questions in light of the gentleman--I don't want to open
this up for a whole second round, but Mr. Schiff has come in,
and as a compromise, I would let Mr. Schiff also ask questions
after Mr. King. But I really don't want to go into an entire
second round.
The gentleman from Iowa is recognized for his question.
Mr. King. Thank you, Mr. Chairman. And I wouldn't raise
this issue if it hadn't been raised in this hearing. But it has
been raised. And I direct my question to Mr. Dinh. And that is
that with regard to the gentlelady from Texas' remarks and
questions regarding the Federal involvement in the legislature
in Texas. And I would just expand on that. I understand the
position you've taken today. But should the minority in the
Texas legislature just simply stay out of the State of Texas,
where then they would succeed in thwarting the will of the
people of the State of Texas, and if that went on indefinitely,
it would simply just shut down the entire legislature of Texas
indefinitely. So would you or would your Department foreclose
any Federal involvement should that ultimately be the case?
Mr. Dinh. We don't foreclose any such thing. Of course, I'm
not familiar with the facts nor of any eventuality, so I cannot
speculate on that. But we never say never to anything.
Mr. King. Thank you, Mr. Dinh. Thank you, Mr. Chairman.
Mr. Chabot. The gentleman yields back. The gentleman from
California, Mr. Schiff, is recognized.
Mr. Schiff. I thank the Chairman for the opportunity. I
want to make a couple of quick points and then I have a couple
of questions to ask. And I ask these as someone who sponsored
the PATRIOT bill and felt that many of the changes were
necessary to keep pace with changes in technology and the use
of that technology by terrorists. Nonetheless, some of those
changes, although necessary, require much more vigilant
oversight by the Congress. And as a former assistant U.S.
attorney very familiar with the Justice Department, I would
have felt that way as a member of the Justice Department. I
certainly feel that way as a Member of Congress. So we have to
do a much more vigilant job, I think, as Members of this
Committee than we have in the past. And I know that some of the
questions, many of the questions that have been posed by the
Committee on a bipartisan basis have not received very full or
forthcoming answers. And that's of great concern. And I
understand that some of the information is classified. And I
understand earlier today there was a representation made that
some of the responses will be provided to the Intelligence
Committee. I'd like to propose that we have a classified
hearing of this Committee. Because in addition to the
Intelligence Committee's interest, this Committee has, I think,
primary interest over the potential deprivation of people's
civil liberties and civil rights. And I think that we ought to
have an unencumbered and classified forum where we can ask
questions about how often have library records been searched,
under what circumstances, with what result, and get straight
answers and not have to navigate through other Committees or
other processes to do that.
The second point I'd like to make is in the area of
detention, because I think both in the original PATRIOT
proposal and in the amended PATRIOT proposal that subsequently
passed the Congress, and in the conduct of the Administration
outside of the confines of the PATRIOT bill--and much of what
concerns me has been outside the confines of the PATRIOT bill--
there are some very, I think, alarming decisions that have been
made in the area of unlawful enemy combatants, and that is the
Administration taking the position that it can unilaterally
designate someone, an American, as an unlawful enemy combattant
and deprive them of access to counsel and access to the courts.
I think that is really unprecedented accretion of authority by
the Executive. If I were still in the Justice Department and I
were asked, ``Do you want the authority to unilaterally pick
someone up off the street, call them an enemy combattant, and
have your decision unreviewable?'' I would say no. And I don't
think any one branch of Government ought to have that power.
I've introduced a bill to provide some very basic
requirements, like access to counsel and access to court, and
allow the Department to promulgate regulations about how that
could be accomplished and maintain the interests of the country
and national security. But we have to find a method to provide
some form of meaningful judicial review of the detention
decisions. I think it's in the Department of Justice interests,
I think it's in the country's interest. So I ask you to give
that your consideration.
Finally, on the PATRIOT II potential bill on the proposal
that was aired in the Senate--it may have been withdrawn in the
Senate--to advance the sunset date of the PATRIOT bill, I think
that the Justice Department is going to have a lot of work to
do in being much more forthcoming in information about how the
first PATRIOT bill has been implemented before it ought to
request anything further from the Congress and certainly
anything further from anyone who supported the first PATRIOT
bill. And I would not recommend at this point, in either house,
seeking to advance the sunset date, because there are still a
great many unanswered questions. And I would just ask for your
response.
Mr. Dinh. Thank you very much, Congressman. You are a good
friend of the Department and an illustrious alumnus of the U.S.
Attorney's Office in Los Angeles. I recently talked to Deborah
Yang, and she sends her regards. And all your colleagues miss
you there tremendously.
We do take congressional oversight very, very seriously. We
believe in it, especially in a highly charged investigation
such as this. We think that it's incumbent upon us to present
you with as much information as possible. That is why we
recently--last week--provided 60 pages of answers to the
bipartisan questions that were submitted to the Department.
With respect to the section 215 business-records provision
in particular, that requires a semi-annual report to both this
Committee and the Intelligence Committee. I am advised that we
did make that report on a timely manner for the last 2 years.
The last one was in October of this last year. And I'm advised
further that we are finalizing the next report. That will be
provided to this Committee in a classified setting per your
request, and I should be happy to provide that classified
information, or my colleagues will, to you personally also.
As I have said in answer to Congressman Watt, we are
constantly evaluating the way we do our job, to make sure that
we have all the authorities we need in order to protect America
and the safety of her people. Until there is, whether there is
a final proposal, I would not be in a position to comment on it
except to say that I agree with you that we will fully
cooperate on your task of overseeing how we have implemented,
utilized to great success the authorities you have given us in
the USA PATRIOT Act.
Mr. Chabot. The gentleman's time has expired. The gentleman
from Virginia has requested one final question, and without
objection he will be granted that opportunity.
Mr. Scott. Thank you, Mr. Chairman. I just wanted to make a
quick statement before I asked a question, and that is to quote
language out of--quote some language for Mr. Dinh. ``It is well
settled that the military has the authority to capture and
detain individuals who it has determined are enemy combatants.
Such combatants, moreover, have no right of access to counsel
to challenge their detention. The courts have an extremely
narrow role in challenging the military judgment to detain an
individual as an enemy combattant. A court's inquiry should
come to an end once the military has shown that it has
determined that the detainee is an enemy combattant. The court
may not second guess the military's enemy combattant
determination. At the very most, given the separation of
constitutional powers in this unique area, a court should only
require the military to point to some evidence supporting its
determination. Either way, no evidentiary hearing is required
to dispose of a habeas petition in this military context.''
Before you comment on that, let me just ask a question. If
you have gathered through this data mining process some
information--Mr. Dempsey suggested that it gets passed all
around to whoever wants it. I noticed on page 47 of the answers
that a group called ChoicePoint has been designated as one of
the groups you get information from. I guess my question is,
does that have anything to do with the Florida voting
situation? Is that the same group? And who gets to look at the
information that's gathered? If you're an innocent person at a
library, does my next-door neighbor who happens to work for the
FBI get to look at everything I have gotten from the library
just because a terrorist may have used the same library?
Mr. Dinh. Thank you very much, Congressman. I fully agree
with what you've read, and there again, we agree. On what the
Government argued, I would like to read the portion that
immediately precedes that. It says very clearly that ``the writ
of habeas corpus remains available to individuals, such as
Hamdi, who are detained as enemy combatants to challenge the
legality of their detention.'' As I have answered Mr. Nadler's
question, our position is that the writ of habeas corpus
remains open. But as you have read in our portion of the brief,
we believe that the law governing such habeas corpus in the
case of enemy combatants is highly limited and the Judiciary
gives substantial deference to the Executive.
With respect to your question regarding the use of----
Mr. Scott. That wasn't deference. That has--is not review,
``may not second guess.''
Mr. Dinh. Yes, sir, only as long as we come up with some
evidence. That is the existing law as we believe it to be. The
4th Circuit has agreed with us, and we are in litigation in the
2nd Circuit--not on this precise point, because I think the law
is clear from the Supreme Court.
With respect to the use of information systems, I do not
know to which Florida issue you refer, but ChoicePoint is a
commercially available database. That data is not data flowing
from the Government to the private sector. That is data
collected by the private sector for use by the private sector,
and available for use to the Government in its law-enforcement
purposes. When the Government collects data for law enforcement
purposes or other purposes, its use of that data is governed by
the applicable law. And most of that prohibits the disclosure
of such information to the private sector. So, for example, our
investigative files are not available. We do not make that data
available to the general public.
Mr. Scott. I'm talking about people that work for the FBI.
If my next-door neighbor works for the FBI, do they get to read
what books I took out of the library because they have data
mined the library and gotten all the information? You're not
releasing it publicly, just all the employees get to review
what I took out. Is that right?
Mr. Dinh. No, sir. The investigative files are tightly
controlled, but precisely for the privacy--the issues that you
have highlighted. Even as we authorize the use of information
systems and other technology in the Department of Justice and
the FBI with the Attorney General guidelines, we have made
clear that existing regulations concerning the use of such
information systems adhere. And so it has to be authorized for
specific purposes. And a big challenge is our development of
systems in order to select those who are authorized versus
those who are not. And all of such access is recorded for
subsequent disciplinary or repository use.
Mr. Scott. Thank you. If Mr. Dempsey could just make a
brief comment on that?
Mr. Dempsey. There have been problems with FBI agents and
other IRS officials, and others obtaining unauthorized access,
and that is something that needs to be subject to careful
controls, audit trails, internal investigations. Just recently
I think two FBI agents were accused of, I think, basically
running a little business on the side of selling information
from FBI files, that DEA, all the agencies have been subject to
that.
The other half of the question is the authorized use and
disclosure question. The way the laws now work there are very
little limits on authorized disclosure where it's in the name
of counterterrorism or law enforcement. The Defense Department
right now is building a major new information sharing system
intended to make that easier. The Department of Homeland
Security has a role, the other entities being set up. Those
need to have the rules put in place on how this private sector
data comes into Government hands, data that has accuracy
problems, that may have relevancy problems, data that may be
incomplete. When you draw that in or when the Government pings
that database or when the Government subscribes to that
database, there are huge unanswered questions about accuracy,
control, reuse, retention, dissemination, interpretation. Those
rules need to be developed. They are not there now.
Mr. Chabot. The gentleman's time has expired.
Mr. Scott. I appreciate it, Mr. Chairman. Thank you.
Mr. Chabot. Thank you.
There is a vote on the floor. When the PATRIOT Act was
passed, assurance was given that there would be congressional
oversight and that we would look into how this law was being
implemented. This hearing today has been part of this process.
We appreciate the panel's contribution to that effort.
I would ask unanimous consent that all Members may have
five legislative days in which to revise and extend their
remarks and to include extraneous material.
If there is no further business to come before this
Committee, we're adjourned.
[Whereupon, at 3:50 p.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Legal Brief Submitted by Rep. Robert C. Scott
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