[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]
ANTI-TERRORISM INTELLIGENCE TOOLS IMPROVEMENT ACT OF 2003
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON
H.R. 3179
__________
MAY 18, 2004
__________
Serial No. 104
__________
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
------
Subcommittee on Crime, Terrorism, and Homeland Security
HOWARD COBLE, North Carolina, Chairman
TOM FEENEY, Florida ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia ADAM B. SCHIFF, California
STEVE CHABOT, Ohio SHEILA JACKSON LEE, Texas
MARK GREEN, Wisconsin MAXINE WATERS, California
RIC KELLER, Florida MARTIN T. MEEHAN, Massachusetts
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
Jay Apperson, Chief Counsel
Elizabeth Sokul, Counsel
Katy Crooks, Counsel
Jason Cervenak, Full Committee Counsel
Bobby Vassar, Minority Counsel
C O N T E N T S
----------
MAY 18, 2004
OPENING STATEMENT
Page
The Honorable Howard Coble, a Representative in Congress from the
State of North Carolina, and Chairman, Subcommittee on Crime,
Terrorism, and Homeland Security............................... 1
The Honorable Robert C. Scott, a Representative in Congress from
the State of Virginia, and Ranking Member, Subcommittee on
Crime, Terrorism, and Homeland Security........................ 2
WITNESSES
The Honorable Daniel J. Bryant, Assistant Attorney General,
Office of Legal Policy, United States Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 6
Mr. Thomas J. Harrington, Deputy Assistant Director,
Counterterrorism Division, Federal Bureau of Investigation
Oral Testimony................................................. 9
Prepared Statement............................................. 10
The Honorable Bob Barr, 21st Century Liberties Chair for Freedom
and Privacy, The American Conservative Union
Oral Testimony................................................. 11
Prepared Statement............................................. 13
APPENDIX
Material Submitted for the Hearing Record
Letter clarifying hearing responses from the Honorable Daniel J.
Bryant......................................................... 39
Letter from Laura W. Murphy, Director of the American Civil
Liberties Union (ACLU), Washington National Office............. 41
Letter from the American Civil Liberties Union (ACLU), et al..... 45
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 47
Letter from the Honorable Bob Barr, including the case of Mar-Jac
Poultry, Inc................................................... 54
Prepared Statement of Kate Martin, Director of the Center for
National Security Studies...................................... 81
Article submitted by the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas............. 85
Subcommittee letter to the Honorable Daniel J. Bryant requesting
responses to post-hearing questions............................ 90
Subcommittee letter to Thomas J. Harrington requesting responses
to post-hearing questions...................................... 91
Post-hearing questions for the Honorable Daniel J. Bryant from
the Subcommittee on Crime, Terrorism, and Homeland Security.... 92
Post-hearing questions for the Honorable Daniel J. Bryant from
the Honorable Robert C. Scott, a Representative in Congress
from the State of Virginia..................................... 94
Post-hearing questions for the Honorable Daniel J. Bryant from
the Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan..................................... 95
ANTI-TERRORISM INTELLIGENCE TOOLS IMPROVEMENT ACT OF 2003
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TUESDAY, MAY 18, 2004
House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. Howard Coble,
(Chair of the Subcommittee) presiding.
Mr. Coble. Good morning, ladies and gentlemen. Today the
Subcommittee on Crime, Terrorism, and Homeland Security will
hold a legislative hearing on H.R. 3179, the ``Anti-Terrorism
Intelligence Tools Improvement Act of 2003.'' This bill
strengthens existing anti-terror intelligence tools that lack
enforcement or contain loopholes.
Congressman Sensenbrenner, the Chairman of the Judiciary
Committee, and Congressman Goss, the Chairman of the Select
Committee on Intelligence, introduced H.R. 3179 on September
25, 2003.
Viewing this legislation as almost procedural, and having
heard no complaints, Chairman Sensenbrenner scheduled the bill
for markup a few weeks ago. At that time the American Civil
Liberties Union and the American Conservative Union requested
that the Chairman delay the markup and hold a hearing. The
Chairman granted this request and we are here today for that
reason.
The Department of Justice and the FBI will testify as to
why we need this legislation, and Mr. Barr, representing the
ACU, will explain its concerns.
The concept behind H.R. 3179 is simply the laws of our
Nation should be enforced, should not aid and abet terrorists
by providing them intelligence-related information, and should
assist in the detection and apprehension of terrorists planning
to further harm Americans.
This bill works to ensure all three principles, it seems to
me. For instance, I am sure that everyone agrees that the
Congress and the Federal agencies have a responsibility to
ensure that the laws of this country are enforced, whether
those laws relate to guns, campaign finance reform, or
intelligence and national security.
The current law authorizes the Federal Government to use a
National Security Letter, which is basically an administrative
subpoena, to make a request for transactional records, such as
billing records. These requests must be related to
investigations of international terrorism or clandestine
intelligence activities.
The current law, however, has no mechanism to enforce the
requests. Furthermore, the current law provides no penalty for
an individual who decides to tip off a target of terrorism or
an intelligence investigation that the Federal Government has
made a National Security Letter request concerning the target.
Clearly, we do not want to tip off or alert a terrorist cell
that is under investigation. Accordingly, H.R. 3179 attempts to
correct these problems.
These are common sense corrections, it seems to me. The
stakes are too high to ignore correcting them. These are a few
examples of what is contained in the bill, and I look forward
to the testimony of the witnesses today.
I am now pleased to recognize the distinguished gentleman
from Virginia, the Ranking Member, Mr. Bobby Scott.
Mr. Scott. Thank you, Mr. Chairman. I am pleased to join
you in convening the hearing on H.R. 3179, ``the Anti-Terrorism
Intelligence Tools Improvement Act of 2003.'' I would like to
join you in welcoming our witnesses, especially our former
colleague, the gentleman from Georgia, Mr. Barr, and our former
chief counsel, Dan Bryant, both of whom have gone on to
distinguish themselves in other areas. When they were with the
Committee, they often got exposure to the Subcommittee of
differing points of view on legislation, and I suspect it will
be no different today.
H.R. 3179 would now criminalize any resistance to national
security reference to administrative subpoenas, regardless of
whether the demands of the subpoenas are unreasonable, unduly
burdensome, harassing, or for any other purpose. The
businessman or other target of the subpoena cannot even consult
with his or her attorney or any court, or even the Attorney
General of the United States, without subjecting himself or
herself to criminal prosecution.
In addition to adding up to 5 years of imprisonment for
wilful failure to cooperate, the bill also provides for court
enforcement under pain of contempt of court. This latter part
is similar to the enforcement of administrative subpoenas in 18
USC 3486 and perhaps could be justified, but I'm concerned that
it would also criminalize what may be conscientious objectors
by honest businesses or other organizations to administrative
subpoenas.
The bill adds a so-called ``lone wolf'' or ``Moussaoui
fix'' by allowing FISA to be applied to a single individual
engaged in international terrorism or preparing to do so. This
proposal would seem to undermine the premise of FISA, which
allows extraordinary secretive powers to be exercised against
foreigners if there is probable cause to believe they are
agents of a foreign government organization.
If there is probable cause to believe an individual is
engaging in international terrorism, or attempting to do so,
why not investigate him or arrest him under the general
criminal law provisions rather than dilute further the
foundation of FISA? We have already diluted it enough in the
USA PATRIOT Act by changing the standard from the primary
purpose of being foreign intelligence gathering to that of
merely being a ``significant'' purpose of the use of these
extraordinary powers. If foreign intelligence gathering is not
the primary reason, then we need to be worried about what the
primary reason is before we dilute this provision further.
Another provision of the bill would take a further bite out
of court discretion and undermine the rights of accused persons
by requiring the courts to exclude defendants from motions by
prosecutors to redact information the prosecution does not wish
to divulge based on alleged national security. Currently, there
is nothing to prevent the prosecutors from moving the court to
hear a motion to redact sensitive information ex parte and in
camera, and nothing to stop the court from ordering the same.
However, this bill doesn't even allow a judge to make a
judgment as to whether it wishes to hear from the defense
before deciding on the prosecutor's motion but requires the
judge not to hear from the defense.
Moreover, it allows prosecutors to summarize orally his
basis for excluding information, whereas currently the law
requires a written statement to be provided by the court. It is
not clear under this bill whether the defendant will even know
that an ex parte hearing is occurring, or ever have a
reviewable record of what was said or presented to the court.
Finally, the bill would allow secretive FISA evidence to be
used in an ordinary immigration proceeding without even
disclosing to the defendant that it is FISA-obtained evidence.
These are extraordinary extensions of extraordinary, unchecked
powers of the Executive branch, so I look forward to the
testimony of our witnesses to learn what justifies such
extraordinary requestive powers and what precautions have been
made in considering such requests.
Thank you, Mr. Chairman.
Mr. Coble. I thank the gentleman.
We also have the Ranking Member for the full Committee with
us today. Mr. Conyers, did you have an opening statement you
wanted to make?
Mr. Conyers. Thank you, Mr. Chairman.
I'm going to pass on my opening statement, and our
colleague from California said that she would reserve hers for
later as well.
Mr. Coble. I thank you, Mr. Conyers.
We have been joined by the gentlelady from California and
the gentleman from Virginia.
We have with us today a distinguished panel, three
distinguished witnesses. We are glad to have you with us. I
would first like to introduce Mr. Daniel Bryant. Mr. Bryant was
confirmed as Assistant Attorney General for Legal Policy by the
U.S. Senate on October 3, 2003. In this capacity, Mr. Bryant is
responsible for planning, developing and coordinating the
implementation of major legal policy initiatives.
Prior to working in his current position, Mr. Bryant served
as Senior Advisor to the Attorney General, and Assistant
Attorney General for Legislative Affairs, and as majority chief
counsel for this Subcommittee. Mr. Bryant received his bachelor
and juris doctor degrees from the American University, and his
masters from Oxford University. Mr. Bryant, it's good to have
you back on the Hill.
Our second witness today is Mr. Thomas J. Harrington. In
December, 2002, Mr. Harrington was appointed Deputy Assistant
Director for Counterterrorism at the FBI. In this capacity, Mr.
Harrington conducts oversight of the Division, as well as
managing the Foreign Terrorist Tracking Task Force, the
Counterterrorist Operation Response Section, and the National
Threat Center. Mr. Harrington received his appointment as a
special agent in the FBI in 1984. He is an alumnus of the Mount
St. Mary's College in Emmitsburg, MD, and the Stonier Graduate
School of Banking at the University of Delaware. It's good to
have you with us, Mr. Harrington, as well.
Our final witness today, as Mr. Scott previously indicated,
is our former colleague from Georgia, Bob Barr. It's good to
have you back on the Hill.
Mr. Barr. Thank you, Mr. Chairman.
Mr. Coble. Mr. Barr represented the Seventh District of
Georgia in the U.S. House from 1995 to 2003, serving as a
senior Member of the Judiciary Committee, including service on
our Subcommittee.
Prior to his election, Mr. Barr served as U.S. Attorney for
the Northern District of Georgia. He is currently the 21st
Century Liberties Chair for Freedom and Privacy and the
American Conservative Union, and serves as a board member at
the Patrick Henry Center, and is the honorary chair for
Citizens United.
It's good to have all of you with us.
I say to the Members on the Subcommittee that I have been
told that a vote will likely be scheduled on or about 11
o'clock. As each of you have been told, we like to apply the 5-
minute rule here. We have read your testimony and we will
reexamine it, but if you all with keep a sharp lookout on that
panel that's before you, and when that amber light appears,
that's your warning that the ice is becoming thin, and when the
red light appears, that is your 5 minute limit.
It's good to have you with us, Mr. Bryant. We will start
with you.
STATEMENT OF THE HONORABLE DANIEL J. BRYANT, ASSISTANT ATTORNEY
GENERAL, OFFICE OF LEGAL POLICY
Mr. Bryant. Thank you, Mr. Chairman.
Good morning, Chairman Coble, Congressman Scott,
distinguished Members of the Committee and Subcommittee. Thank
you for the opportunity to appear before you today to discuss
this important legislation.
Since September 11, 2001, the Department of Justice has
made significant strides in the war on terrorism. We have
charged at least 310 individuals with criminal offenses as a
result of terrorism investigations, and 179 of these defendants
have already been convicted. We have broken up terrorist cells
in Buffalo, Charlotte, Portland, and northern Virginia. Due to
interagency and international cooperation, nearly two-thirds of
al-Qaeda's leadership, worldwide, has been captured or killed.
In the PATRIOT Act, Congress provided the Department with a
number of important tools that have enhanced our ability to
gather information so that we may detect and disrupt terrorist
plots. The act brought down the wall that sharply limited
information sharing between intelligence and law enforcement
personnel, so that these officials can better connect the dots
and prevent future terrorist acts.
But while Congress and the Administration working together
have markedly improved the Department's capacity to gather and
analyze the intelligence necessary to prevent terrorist
attacks, there is still more that needs to be done. This is why
I would like to thank Chairman Sensenbrenner and Chairman Goss
for their leadership in introducing this bill.
The Department strongly supports this bill, which contains
a number of significant reforms that would assist the
Department's efforts to collect intelligence keyed to
disrupting terrorist plots.
To begin with, the bill would amend the Foreign
Intelligence Surveillance Act to allow for surveillance of so-
called ``lone wolf'' international terrorists. While the
current definition of ``agent of a foreign power'' found in
FISA includes individuals with ties to groups that engage in
international terrorism, it does not reach unaffiliated
individuals who engage in international terrorism.
Section 4 of the bill would plug this dangerous gap in
FISA's coverage by expanding the definition of ``agent of a
foreign power'' to include a non-United States person who is
engaged in international terrorism, or preparing to engage in
international terrorism, even if he or she is not known to be
affiliated with an international terrorist group. This
provision would strengthen our ability to protect the American
people against terrorism.
A single foreign terrorist with a chemical, biological or
radiological weapon could inflict catastrophic damage on this
country. Consequently, there is no reason why the Department
should not be able to conduct FISA surveillance only of foreign
terrorists whom we know to be affiliated with international
terrorist groups.
The bill also includes two important provisions related to
the use of National Security Letters. NSLs are used by the FBI
to obtain from specified third parties discreet types of
information, such as communications records, financial records
and credit reports that are relevant to authorized
international terrorism or espionage investigations.
In order to safeguard the integrity of these investigations
in which NSLs are used, the NSL statutes prohibit persons from
disclosing that they have received these requests, but these
same statutes contain no explicit penalty for persons who
unlawfully disclose that they received an NSL. Section 2 would
remedy this defect. The bill further would specify procedures
for the Attorney General to seek judicial enforcement of NSLs.
The bill also includes two common sense reforms that would
better allow the Department to protect classified information
in criminal trials and to safeguard sensitive intelligence
investigations in immigration proceedings. First, section 5 of
the bill would amend the Classified Information Procedures Act,
better known as CIPA, to improve the Department's ability to
protect classified information during the course of a criminal
trial. Currently under CIPA, district courts have discretion
over whether to permit the Government to make a request to
protect classified information during the discovery phase of a
criminal trial, ex parte, and in camera.
This is problematic, because in cases where the Government
is unable to make a request to withhold classified information
ex parte and in camera, prosecutors risk disclosing sensitive
national security information simply by explaining in open
court why the classified information in question should be
protected. Section 5 of H.R. 3179 would solve this dilemma by
allowing prosecutors to make such a request ex parte and in
camera.
Wrapping up, Mr. Chairman, we believe this bill contains a
series of sensible reforms that would enhance the Department's
ability to gather intelligence necessary for preventing
terrorism.
Thank you for holding this hearing, and thank you for the
invitation to be with you today.
[The prepared statement of Mr. Bryant follows:]
Prepared Statement of Daniel J. Bryant
Good morning, Mr. Chairman and distinguished members of the
Subcommittee. Thank you for the opportunity to appear before you today
to discuss H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement
Act of 2003.
Since the brutal terrorist attacks of September 11, 2001, the
Department of Justice has made significant strides in the war against
terrorism. We have prosecuted many cases, among them being 310
individuals charged with criminal offenses as a result of terrorism
investigations. 179 of these defendants already have been convicted. We
have broken up terrorist cells in Buffalo, Charlotte, Portland, and
northern Virginia. Due to interagency and international cooperation,
nearly two-thirds of Al Qaeda's leadership worldwide has been captured
or killed. And we are steadily dismantling the terrorists' financial
network: around the world, $136 million in assets have been frozen in
660 accounts.
These successes would not have been possible without the support of
Congress in general and this Subcommittee in particular. On behalf of
the Department, I would like to thank you for providing us with the
tools and resources that have made it possible for the Department to
effectively wage the war against terrorism.
As recent events in Madrid and Saudi Arabia remind us, however, our
fight against terrorism is far from over. Our nation's terrorist
enemies remain determined to visit death and destruction upon the
United States and its allies, and we must maintain our vigilance and
resolve in the face of this continuing threat. It is for this reason
that the Department of Justice's top priority remains the prevention
and disruption of terrorist attacks before they occur. Rather than
waiting for terrorists to strike and then prosecuting those terrorists
for their crimes, the Department seeks to identify and apprehend
terrorists before they are able to carry out their nefarious plans.
The success of this prevention strategy depends, however, upon the
Department's capacity to detect terrorist plots before they are
executed. And the key to detecting such plots in a timely manner is the
acquisition of information. Simply put, our ability to prevent
terrorism is directly correlated with the quantity and quality of
intelligence we are able to obtain and analyze.
Following the terrorist attacks of September 11, Congress provided
the Department in the USA PATRIOT Act with a number of important tools
that have enhanced our ability to gather information so that we may
detect and disrupt terrorist plots. To give just one example, before
the USA PATRIOT Act, law enforcement agents possessed the authority to
conduct electronic surveillance--by petitioning a court for a wiretap
order--in the investigation of many ordinary, non-terrorism crimes,
such as drug crimes, mail fraud, and passport fraud. Investigators,
however, did not possess that same authority when investigating many
crimes that terrorists are likely to commit, such as chemical weapons
offenses, the use of weapons of mass destruction, and violent acts of
terrorism transcending national borders. This anomaly was corrected by
section 201 of the PATRIOT Act, which now enables law enforcement to
conduct electronic surveillance when investigating the full-range of
terrorism crimes.
But while Congress and the Administration working together have
made significant strides in improving the Department's capacity to
gather the intelligence necessary to prevent terrorist attacks, there
is still more that needs to be done. This is why I would like to thank
Chairman Sensenbrenner and Chairman Goss for their leadership in
introducing H.R. 3179, the Anti-Terrorism Intelligence Tools
Improvement Act of 2003, and to thank this Subcommittee for holding a
hearing on this important piece of legislation. The Department of
Justice strongly supports H.R. 3179. The bill contains a number of
significant reforms that would assist the Department's efforts to
collect intelligence key to disrupting terrorist plots and better allow
the Department to protect that information in criminal trials and
immigration proceedings. In my testimony today, I will briefly review
the five substantive provisions contained in H.R. 3179 and explain why
the Department believes that each one of them would assist our efforts
in the war against terrorism.
To begin with, H.R. 3179 would amend the Foreign Intelligence
Surveillance Act to allow for surveillance of so-called ``lone wolf''
international terrorists. Currently, the definition of ``agent of a
foreign power'' found in FISA includes individuals with ties to groups
that engage in international terrorism. It does not, however, reach
unaffiliated individuals who engage in international terrorism. As a
result, investigations of ``lone wolf'' terrorists are currently not
authorized under FISA. Rather, such investigations must proceed under
the stricter standards and shorter time periods for investigating
ordinary crimes set forth in Title III of the Omnibus Crime Control and
Safe Streets Act of 1968, potentially resulting in unnecessary and
dangerous delays and greater administrative burdens.
Section 4 of H.R. 3179 would plug this dangerous gap in FISA's
coverage by expanding the definition of ``agent of a foreign power'' to
include a non-United States person who is engaged in international
terrorism or preparing to engage in international terrorism, even if he
or she is not known to be affiliated with an international terrorist
group.
The Department believes that section 4 of H.R. 3179 would
strengthen our ability to protect the American people against
terrorism. A single foreign terrorist with a chemical, biological, or
radiological weapon could inflict catastrophic damage on this country.
Consequently, there is no reason why the Department should be able to
conduct FISA surveillance only of foreign terrorists whom we know to be
affiliated with international terrorist groups. In some cases, a
foreign terrorist may, in fact, be a member of an international
terrorist group, but the Department may not be able to establish this
fact. In other cases, a foreign terrorist may be a genuine lone wolf.
In either of these scenarios, however, it is vital that the Department
be able to conduct the appropriate surveillance of such terrorists
under FISA so that we are able to effectively and efficiently gather
the information necessary to prevent these terrorists from endangering
the lives of the American people.
Expanding FISA to reach an individual foreign terrorist is a modest
but important expansion of the statute. To be sure, under current law,
the Department must show under FISA that a foreign terrorist is a
member of an international terrorist group. The House Committee Report
on FISA, however, suggested that a ``group'' of terrorists covered by
current law might be as small as two or three persons, and the
interests that courts have found to support the constitutionality of
FISA are unlikely to differ appreciably between a case involving a
terrorist group of two or three persons and a case involving a single
terrorist. In addition, it is important to stress that this proposal
would not change the standard for conducting surveillance of any United
States person but rather would apply only to foreign terrorists.
The Senate has already acted in a strong bipartisan fashion to
amend FISA to cover lone wolf terrorists. Section 4 of H.R. 3179 was
included in S. 113, which passed the Senate on May 8, 2003, by a vote
of 90 to 4. The Department urges the House of Representatives to follow
suit and also pass this important proposal in order to plug this
dangerous gap in the scope of FISA's coverage to cover ``lone wolf''
terrorists.
H.R. 3179 also includes two important provisions related to the use
of national security letter (NSLs). NSLs are used by the FBI to obtain
relevant information from specified third-parties in authorized
international terrorism or espionage investigations. NSLs are similar
to administrative subpoenas but narrower in scope. While administrative
subpoenas can be used to collect a wide array of information, NSLs
apply more narrowly to telephone and electronic communication
transactional records, financial records from financial institutions,
and consumer information from consumer reporting agencies, as well as
certain financial, consumer, and travel records for certain government
employees who have access to classified information.
In order to safeguard the integrity of the sensitive terrorism and
espionage investigations in which NSLs are used, the NSL statutes
generally prohibit persons from disclosing that they received these
requests for information. See, e.g., 12 U.S.C. Sec. 3414(a)(3); 12
U.S.C. Sec. 3414(a)(5)(D); 15 U.S.C. Sec. 1681u(d); 15 U.S.C.
Sec. 1681v(c); 18 U.S.C. Sec. 2709(c); 50 U.S.C. Sec. 436(b). But these
same statutes contain no explicit penalty for persons who unlawfully
disclose that they have received an NSL. Section 2 of H.R. 3179 would
remedy this defect by creating a new statutory provision imposing
criminal liability on those who knowingly violate NSL non-disclosure
requirements. This new offense would be a misdemeanor punishable by up
to a year of imprisonment, but would carry a stiffer penalty of up to
five years of imprisonment if the unlawful disclosure was committed
with the intent to obstruct an investigation or judicial proceeding.
Oftentimes, the premature disclosure of an ongoing terrorism
investigation can lead to a host of negative repercussions, including
the destruction of evidence, the flight of suspected terrorists, and
the frustration of efforts to identify additional terrorist
conspirators. For these reasons, the FBI has forgone using NSLs in some
investigations for fear that the recipients of those NSLs would
compromise an investigation by disclosing the fact that they had been
sent an NSL. To reduce these fears and thus allow for the gathering of
additional important information in terrorism investigations, the
Department supports the adoption of the appropriate criminal penalties
set forth in H.R. 3179 to deter the recipients of NSLs from violating
applicable nondisclosure requirements as well as the heightened
penalties set forth in the legislation for cases in which disclosures
are actually intended to obstruct an ongoing investigation.
In addition to setting forth an explicit criminal penalty for those
violating NSL nondisclosure requirements, H.R. 3179 would also specify
procedures for the Attorney General to seek judicial enforcement of
NSLs. The NSL statutes currently make compliance with an FBI request
for information mandatory. See, e.g., 12 U.S.C. Sec. 3414(a)(5)(A); 15
U.S.C. Sec. 1681u(a)-(b); 15 U.S.C. Sec. 1681v(c); 18 U.S.C.
Sec. 2709(a); 50 U.S.C. Sec. 436(c). These statutes, however, do not
specify any procedures for judicial enforcement if the recipient of an
NSL refuses to comply with the FBI's request. Section 3 of H.R. 3179
would make explicit what Congress indicated implicitly by making
compliance with NSLs mandatory: the Attorney General may seek judicial
enforcement in cases where the recipient of an NSL refuses to comply
with the FBI's request for information. The judicial enforcement
provision contained in H.R. 3179 is similar to the existing judicial
enforcement provision for administrative subpoenas under 18 U.S.C.
Sec. 3486(c) and would help the Department to quickly and discretely
obtain vital information in terrorism investigations.
H.R. 3179 also includes two common-sense reforms that would better
allow the Department to protect classified information in criminal
trials and to safeguard sensitive intelligence investigations in
immigration proceedings. First, section 5 of the bill would amend the
Classified Information Procedures Act (CIPA) to improve the
Department's ability to protect classified information during the
course of a criminal trial. Under section 4 of CIPA, a district court,
upon the government's request, may authorize the United States to
delete specified items of classified information from documents to be
made available to a criminal defendant during discovery, to substitute
a summary of the information for such classified documents, or to
submit a statement admitting relevant facts that the classified
information would tend to prove, so long as prosecutors are able to
make a sufficient showing, such as that the documents are not
discoverable or that the defendant would not be disadvantaged by the
substitution of a summary of the information for the classified
documents themselves. Currently, however, district courts have
discretion over whether to permit the government to make such a request
ex parte and in camera.
This is problematic because in cases where the government is unable
to make a request to withhold classified information ex parte and in
camera, prosecutors risk disclosing sensitive national-security
information simply by explaining in open court why the classified
information in question should be protected. Section 5 of H.R. 3179
would solve this dilemma by mandating that prosecutors be able to make
a request ex parte and in camera to delete specified items of
classified information from documents or to utilize the other
alternatives for protecting classified information set forth in section
4 of CIPA. This provision would ensure that the Department is able to
take appropriate steps to safeguard classified information in criminal
proceedings without risking the disclosure of the very secrets that we
are seeking to protect. It would also allow the Department to make a
request to protect classified information orally as well as in writing.
In addition to understanding what this provision would accomplish,
it is equally important to understand what this provision would not
accomplish. Specifically, it would not affect in any way whatsoever the
showing that the United States is required to make under section 4 of
CIPA to obtain judicial authorization to withhold classified
information from criminal defendants or to take other steps to
safeguard classified information. Simply put, the assertion by some
that H.R. 3179 would require a federal judge to permit the United
States to turn over to a criminal defendant only a summary of evidence
rather than classified documents themselves is demonstrably false.
Rather, the bill would only allow the United States to make such a
request ex parte and in camera in order to ensure that such information
is not disclosed as part of the process of protecting it.
Finally, H.R. 3179 would eliminate that requirement that the United
States notify aliens whenever the government intends to use evidence
obtained through FISA in immigration proceedings. Current law mandates
that the government provide notice to an ``aggrieved person'' if
information obtained through FISA electronic surveillance, physical
searches, or pen registers will be used in any federal proceeding. See
50 U.S.C. Sec. Sec. 1806(c), 1825(d), & 1845(c). In 1996, Congress
carved out an exception to this requirement for alien terrorist removal
proceedings, see 8 U.S.C. Sec. 1534(e), but all other immigration
proceedings remain subject to this notification requirement.
Unfortunately, however, this mandate that the government notify an
alien that it is using information acquired through FISA surveillance
in an immigration proceeding may jeopardize in certain situations
sensitive ongoing investigations and thus risk undermining national
security. As a result, the government is sometimes faced with the
Hobson's choice of not using this information in immigration
proceedings, and possibly permitting dangerous aliens to remain in the
country, or using the information and undermining its surveillance
efforts. When faced with this difficult choice, the United States has
decided against using FISA information in a number of instances in an
effort to preserve the integrity of ongoing investigations.
Section 6 of H.R. 3179, however, would solve this dilemma by
expanding the existing notification exception for alien terrorist
removal proceedings to all immigration proceedings. Significantly, the
government still would be obliged to disclose to aliens any information
it intends to use in immigration proceedings if such disclosure is
otherwise required by law. Under H.R. 3179, the government simply would
not have to reveal the fact that the information in question was
obtained through FISA. The Department supports this provision of H.R.
3179 because it would allow the government to use intelligence in
immigration proceedings to safeguard the American people from dangerous
aliens without jeopardizing sensitive ongoing investigations.
In conclusion, I would like to thank the Subcommittee again for
holding today's hearing on such an important topic. H.R. 3179 contains
a series of sensible reforms that would enhance the Department's
ability to gather intelligence necessary for preventing terrorism and
to protect the integrity of sensitive intelligence investigations. The
Department would be happy to work with the Congress in the weeks and
months to come on this vital piece of legislation. Thank you once again
for allowing me to appear before you today, and I look forward to the
opportunity to respond to any questions that you might have.
Mr. Coble. Thank you, Mr. Bryant.
Mr. Harrington.
STATEMENT OF THOMAS J. HARRINGTON, DEPUTY ASSISTANT DIRECTOR,
COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATION
Mr. Harrington. Good morning, Mr. Chairman, and Members of
the Subcommittee. Thank you for the opportunity to appear
before you this morning to discuss House bill 3179, the ``Anti-
Terrorism Intelligence Tools Improvement Act of 2003.''
As Mr. Bryant has just explained, the recent successes of
the FBI and the Department of Justice as a whole would not have
been possible without the support of the Subcommittee and the
passage of the USA PATRIOT Act, which provided a number of
important tools to enhance our ability to gather information to
assist us in detecting, disrupting and preventing terrorist
attacks.
Since 9/11, the primary mission of the FBI has been focused
on the prevention of future attacks on the U.S. homeland. The
FBI has spent the past two-and-a-half years transforming and
realigning its resources to meet the threats of the post-
September 11th environment. Director Muller has rebalanced our
resources among the counterterrorism, intelligence,
counterintelligence, cyber and criminal programs. This
transformation has been significantly enhanced by the enactment
of the USA PATRIOT Act, which has facilitated increased
information sharing between the intelligence and law
enforcement communities, both internationally and domestically.
H.R. 3179, the bill which has brought us here today, contains
several significant reforms that will assist the FBI in our
efforts to collect the necessary intelligence and information
to identify and disrupt future terrorist plots.
Specifically, H.R. 3179 includes two important provisions
related to the use of National Security Letters, or NSLs. NSLs
are administrative subpoenas that can be used to obtain several
types of records related to electronic communications,
specifically telephone subscriber information, local and long
distance toll billing records, and electronic communication
transactional records; financial records from banks and other
financial institutions; and consumer reporting records, such as
consumer identifying information and the identity of financial
institutions from credit bureaus. National Security Letters
generally prohibit the recipient of an NSL from disclosing the
fact that they have received a request for this information.
Section 2 of H.R. 3179 provides for a penalty for persons who
knowingly disclose the fact that they received these NSLs.
This penalty provision is important to the FBI, as critical
terrorism investigations can be compromised through, for
example, destruction of crucial evidence, flight of the
suspected terrorist out of the country, and frustrate efforts
to identify additional associates or cell members of the
suspected terrorist group when a request for information is
disclosed.
H.R. 3179 also provides a provision for judicial
enforcement if a recipient of a National Security Letter does
not comply with the mandatory request for information. The
judicial enforcement provision of section 3 of the bill is
similar to those already existing for administrative subpoenas
and would assist the FBI in maintaining information critical to
terrorism investigations.
An example of where this provision would have been helpful
is a case where during an investigation into international
terrorist activities analysis revealed that several subjects
were using a third party Internet service provider as a
potential means of communication. NSLs served on the third
party service revealed that an associate of the subjects
registered for the service using a free, website e-mail
service. The NSLs were served on the web-based e-mail service
in order to obtain electronic transactional records. The web-
based e-mail service has yet to provide the records associated
with this request. A judicia enforcement provision, such as the
one included in H.R. 3179, would assist by providing a forum
for quick resolution of this issue and allow the investigation
to move forward more expeditiously.
Thank you for allowing me to appear here this morning to
discuss this important act. It contains reforms which the FBI
believes are necessary to assist us in gathering the
intelligence we will need in the future to prevent terrorist
attacks.
I would be happy to answer any questions at the appropriate
time.
[The prepared statement of Mr. Harrington follows:]
Prepared Statement of Thomas J. Harrington
Good morning Mr. Chairman and members of the Subcommittee. Thank
you for the opportunity to appear before you this morning to discuss
House Bill 3179, the Anti-Terrorism Intelligence Tools Improvement Act
of 2003.
As Mr. Bryant has aptly explained, the recent successes of the
Federal Bureau of Investigation, and the Department of Justice as a
whole, would not have been possible without the support of this
subcommittee and the passage of the USA PATRIOT Act (USPA) which
provided a number of important tools to enhance our ability to gather
information to assist us in detecting, disrupting and preventing
terrorist attacks.
Since 9/11, the main mission of the FBI has been focused on the
prevention of future terrorist attacks on the homeland. The FBI has
spent the past two and a half years transforming and realigning its
resources to meet the threats of the post-September 11th environment.
Director Mueller has re-balanced our resources among the
counterterrorism, intelligence, counterintelligence, cyber and criminal
programs. This transformation has been significantly enhanced by the
enactment of the USA PATRIOT Act, which has facilitated increased
information sharing between the intelligence and law enforcement
communities, both internationally and domestically. H.R. 3179, the bill
which has brought us here today, contains several significant reforms
that will assist the FBI in our efforts to collect the necessary
intelligence and information to identify and disrupt future terrorist
plots.
Specifically, H.R. 3179 includes two important provisions related
to the use of National Security Letters, or NSLs. NSLs are
administrative subpoenas that can be used to obtain several types of
records related to electronic communications (telephone subscriber
information, local and long distance toll billing records, and
electronic communication transactional records); financial records
(from banks and other financial institutions) and consumer reporting
records (such as consumer identifying information and the identity of
financial institutions from credit bureaus). National Security Letters
generally prohibit the recipient of an NSL from disclosing the fact
that they have received a request for information. Section 2 of H.R.
3179 provides for a penalty for persons who knowingly disclose the fact
that they received an NSL.
This penalty provision is important to the FBI as critical
terrorism investigations can be compromised through, for example,
destruction of crucial evidence, flight of the suspected terrorist out
of the country, and frustrate efforts to identify additional associates
or cell members of the suspected terrorist, when a request for
information is disclosed.
H.R. 3179 also provides for a procedure for judicial enforcement if
a recipient of a National Security Letter does not comply with the
mandatory request for information. The judicial enforcement provision
in Section 3 of the bill is similar to those already existing for
Administrative Subpoenas and would assist the FBI in obtaining
information critical to terrorism investigations. An example of where
this provision would have been helpful is a case where during an
investigation into international terrorist activities, analysis
revealed that several subjects were using a third party internet
service as a potential means of communication. NSLs served on the third
party service revealed that an associate of the subjects registered for
the service using a free, web-based email service. NSLs were served on
the web-based email service in order to obtain electronic transactional
records. The web-based email service has not yet provided the records
associated with the request. A judicial enforcement provision, such as
the one included in H.R. 3179, would assist by providing a forum to
quickly resolve this issue and allow the investigation to move forward
more expeditiously.
Thank you again for allowing me to appear before you this morning
to discuss the Anti-Terrorism Intelligence Tools Improvement Act of
2003. It contains advantageous reforms which the FBI believes are
necessary to assist us in gathering the intelligence that will prevent
future terrorist attacks. I would be happy to answer any questions you
may have at this time.
Mr. Coble. Thank you, Mr. Harrington.
Mr. Barr.
STATEMENT OF THE HONORABLE BOB BARR, 21ST CENTURY LIBERTIES
CHAIR FOR FREEDOM AND PRIVACY, THE AMERICAN CONSERVATIVE UNION
Mr. Barr. Thank you, Mr. Chairman. It is a tremendous honor
to appear before this very distinguished Subcommittee on which
I had the honor of serving for many years during my service in
the Congress of the United States. I appreciate the Chairman
calling this hearing, and the Ranking Member lending his
support to this hearing today as well.
I do hope that this will not be the end of the
Subcommittee's or the Committee's deliberations on these
important issues, but merely the start of a very long and
searching comprehensive look at the PATRIOT Act, where we are
with it, what it does, what fixes on the limitations or
expansions might be necessary at some point, but that all of us
resist the effort to rush into something such as what I worry
the Congress may do in this particular case with H.R. 3179.
Both the distinguished Chairman and the distinguished
Assistant Attorney General used the word ``common sense'' in
speaking of these proposals. What I would respectfully submit
to the Subcommittee and to the Congress is that common sense
really requires us, particularly those of us who consider
ourselves good strong conservatives, Mr. Chairman, to not allow
the Government to obtain more power based on generalized
arguments such as those that have been put forward here or
those that may appear on the surface to be very sound. But when
you look below the surface, such as the so-called ``Moussaoui
fix,'' which some of these ``lone wolf'' provisions are
supposed to address, it really falls apart.
This piece of legislation is not a ``Moussaoui fix,'' so to
speak. The problem with the Moussaoui investigation, as I know
the Chairman and other Members are fully aware, had nothing to
do with not having the power that the Government would obtain
in H.R. 3179. It had to do with a misreading, a
misinterpretation, of the existing FISA law.
I think there are some other instances as well, Mr.
Chairman, where the arguments that the Government is putting
forward to obtain these additional powers, which again I think,
as conservatives, we ought to be very, very hesitant to grant
the Government, without hearing from them, and common sense
tells us this, without hearing from the Government very
specific instances where the powers that they currently have,
or had even prior to the USA PATRIOT Act's passage and signing
into law in 2001, could not have been if used properly, and
according to the proper criteria, could not have given them
what they need.
Even if, in fact, at some point the Subcommittee recommends
enactment and adoption by the House of H.R. 3179, I would
certainly hope that the Subcommittee would require of the
Government a much more specific rather than just generalized
set of reasons why these provisions ought to be enacted.
These provisions are not mere technical corrections, Mr.
Chairman, as with much of the USA PATRIOT Act, which the
Administration characterized as technical amendments or
technical improvements. They were extremely substantive. In
this case, for example, where we look at the so-called ``lone
wolf'' provision, we find that this would reach very, very
broadly and affect the fundamental underpinnings of the entire
FISA structure that has been built up. By removing it from the
nexus ``with a foreign power,'' you lose the entire
underpinning and constitutional argument for allowing this
exception to the fourth amendment requirements for specific
probable cause before electronic surveillance and other types
of secret monitoring can occur.
Again, Mr. Chairman, with regard to the ``lone wolf''
procedures, there has been no instance whatsoever in which the
Department of Justice has come forward and explained why the
provision is necessary to have, given the extensive power that
the Government already has with traditional subpoenas,
traditional title 3 taps, and a whole range of subpoena power
and warrant power that the Government already has.
Even on the Senate side, with regard to FISA oversight just
last year, I believe Senators Leahy, Grassley and Specter
indicated that the Department of Justice, even at that time--
and this provision has been sought by the Department of Justice
for much longer than that--that the Department had laid out no
cases in which existing powers were not sufficient to attack
``lone wolfs,'' and they could have gone after Moussaoui but
for a misreading of the statute, not that they didn't have this
power.
When one looks also, Mr. Chairman, at the expansion of the
secret proceedings, this provision in sections 5 and 6 would
set up basically a whole new category of evidence, sort of
secret secret evidence, where the individual against whom that
secret secret proceeding is being directed doesn't even know
that there's a secret proceeding.
I think we would, just as we did in the 107th Congress, Mr.
Chairman, in which you and many of us joined in supporting
legislation to place limits on secret proceedings, we ought to
be looking very carefully at that, particularly as strong
conservatives who care deeply about the Constitution, rather
than going in the other direction and creating additional
secret proceedings.
So I would very much respectfully urge this Subcommittee
and, of course, the full Committee, to not pass this or
recommend adoption of this legislation at this time. I think
it's premature, Mr. Chairman, particularly in light of the lack
of specific cases that the Justice Department has been unable
to prosecute or investigate that they have come forward with.
[The prepared statement of Mr. Barr follows:]
Prepared Statement of the Honorable Bob Barr
Chairman Coble, Ranking Member Scott, and distinguished
subcommittee members, thank you for inviting me to testify on H.R.
3179, the ``Anti-Terrorism Intelligence Tools Improvement Act of
2003,'' which expands federal secret surveillance powers under the USA
PATRIOT Act.
Until January of 2003, I had the honor to serve with many of you as
a United States Representative from Georgia. Previously, I served as
the presidentially appointed United States Attorney for the Northern
District of Georgia, as an official with the U.S. Central Intelligence
Agency, and as an attorney in private practice. Currently again a
practicing attorney, I now occupy the 21st Century Liberties Chair for
Privacy and Freedom at the American Conservative Union (ACU) and in
that capacity I am pleased to be speaking on behalf of the American
Conservative Union today. I also consult on privacy matters for the
American Civil Liberties Union.
As a student and supporter of the Constitution and its component
Bill of Rights, I will not concede that meeting this government's
profound responsibility for national security entails sacrificing the
Rights given us by God and guaranteed in that great document. Yet,
unfortunately, the road down which our nation has been traveling these
past two years, with the USA PATRIOT Act, is taking us in a direction
in which our liberties are being diminished in that battle against
terrorism.
Despite the broad concerns expressed by many grassroots
conservative organizations, such as the American Conservative Union,
Free Congress Foundation, and Eagle Forum--with whom I continue to work
closely--the Administration has pressed on with a ill-considered
proposal to prematurely make permanent all of the USA PATRIOT Act. I
respectfully submit this would be a serious mistake. Along with many of
you, I balked at making the PATRIOT Act's new powers permanent,
insisting on a ``sunset clause'' that would allow Congress to review
these new powers. Making those powers permanent now would take away any
leverage Congress now has to secure cooperation from the Justice
Department in its oversight efforts.
The Administration has also attempted to push forward, on a
piecemeal basis, parts of the ``Son of PATRIOT'' proposal that surfaced
last year. H.R. 3179 includes several of the provisions of the Justice
Department's draft ``Son of PATRIOT'' bill,\1\ and the Administration
is pushing other bills separately that include other provisions.\2\
Passing pieces of ``Son of PATRIOT'' this year would be a mistake.
---------------------------------------------------------------------------
\1\ The ``Domestic Security Enhancement Act of 2003'' (DSEA) was
leaked early last year. Although never introduced, several of its
sections are contained in H.R. 3179. Sections 2 and 3 of H.R. 3179 are
identical to section 129 of DSEA. Section 4 of H.R. 3179 is a modified
version of section 101 of DSEA (section 101 of DSEA would have
eliminated the ``foreign power'' standard for citizens as well as non-
citizens). Section 5 of H.R. 3179 is identical to section 204 of DSEA.
Section 6 of H.R. 3179 appears to be new.
\2\ These include H.R. 3037, ``The Antiterrorism Tools Enhancement
Act of 2003,'' (administrative subpoenas); H.R. 3040 and S. 1606, ``The
Pretrial Detention and Lifetime Supervision of Terrorists Act of
2003,'' (presumptive denial of bail); and H.R. 2934 and S. 1604, the
``Terrorist Penalties Enhancement Act of 2003'' (new death penalties).
---------------------------------------------------------------------------
The House Judiciary Committee has yet to convene a series of long-
planned hearings to examine how the USA PATRIOT Act is being used. Are
its provisions being used widely, in ordinary cases having nothing to
do with terrorism? The Attorney General has said he hasn't used some
powers. If so, are such powers really needed? These are just a few of
the questions that the Justice Department has not adequately answered.
While I have faith the Chairman will hold these promised hearings,
these questions should be examined before the Committee considers new
legislation.
The question before us today is whether the USA PATRIOT Act should
be expanded this year. In short, the answer is NO. Put simply, Congress
should not provide more powers to an ever-growing federal government
without carefully and exhaustively reviewing how it is using the powers
it already has.
The Fourth Amendment is clear: ``The right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched, and
the persons or things to be seized'' (emphasis added).
Note carefully--``people,'' not ``citizens.'' The Founding Fathers
meant what they wrote. Conservatives do not believe that, more than two
hundred years later, we should creatively ``interpret'' the Bill of
Rights when the words don't suit our transitory notions of what is
convenient. While the Constitution does reserve some rights exclusively
to American citizens, the Founders protected certain fundamental rights
for all people, including the right to due process of law and the right
to be free from searches--a word broad enough to include the 18th and
19th Century physical variety, the 20th Century telephone variety, and
the 21st Century Internet variety--not based on probable cause.
At bottom, the problem with the surveillance powers of the USA
PATRIOT Act is that they play fast and loose with clear constitutional
commands. Unfortunately, H.R. 3179 takes certain provisions of the USA
PATRIOT Act that weaken the Fourth Amendment and other fundamental
rights and makes them worse.
creating new criminal penalties for secret fbi letter demands for
confidential records
Sections 2 and 3 of H.R. 3179 add new criminal penalties to enforce
a far-reaching and troubling power of the FBI--the power to demand,
without a court order, that a business or individual release a broad
range of highly confidential records. The records demands are secret
and the recipient is barred from informing anyone that the demand has
been made or that records have been turned over. Section 505 of the USA
PATRIOT Act amended the so-called ``national security letter'' power to
eliminate the need to assert any individual suspicion (much less
probable cause) before issuing such a letter. Section 2 of the bill
adds a new crime to enforce the gag provisions. Section 3 allows the
FBI to invoke a court's aid in enforcing the letter demands--and punish
any failure to comply as contempt.
The records subject to these FBI letters include the customer
records of ``communications service providers''--such as an Internet
Service Provider, telephone company, or (according to the FBI) the
records of your use of a computer terminal at the local library or
Internet cafe. They also include credit reports and the customer
records of ``financial institutions.'' The term ``financial
institutions'' was expanded and redefined by last year's intelligence
authorization act to include a host of large and small businesses,
including casinos, the local jewelry store, post office, car dealership
and pawnbroker's store; as well as any other business the Treasury
Secretary sees fit to designate.\3\
---------------------------------------------------------------------------
\3\ Intelligence Authorization Act for FY2004, Pub. L. No. 108-177,
at Sec. 374 (providing that definition of ``financial institution'' at
31 U.S.C. Sec. 5312(a)(2) applies for national security letters).
---------------------------------------------------------------------------
The government does not need these records powers, also known as
``administrative subpoenas'' or ``national security letters,'' to
obtain records of suspected terrorists. An ordinary search warrant or
grand jury subpoena can be used in the investigation of any crime,
including one alleging terrorism. National security letters are used in
potentially wide-ranging ``foreign intelligence'' investigations. These
records demands can be used without even the minimal oversight of the
secret Foreign Intelligence Surveillance Court or any other court.
There is no right to challenge the scope of a national security
letter, and--because it was repealed by the USA PATRIOT Act--no
standard for protecting individual privacy. Compliance with a national
security letter--and compliance with the gag provision that muzzles a
recipient from protesting such a letter--is mandatory under the law,
although no specific penalties are listed.
Specific penalties aren't needed for national security letters to
serve their intended function of giving cover to businesses and or
individuals to cooperate with wide-ranging government intelligence
investigations. The recipient can point to a legally-binding national
security letter in response to any complaints from customers about
turning over their confidential information to the government.
Without specific penalties, the business or individual who receives
a letter still has some, albeit very limited, leverage to try to
persuade the government to narrow an exceedingly broad or intrusive
request. Adding criminal penalties to such letters for the first time--
and to the gag provision that prevents a recipient from complaining
about them--tips the balance decisively in the government's favor and
away from the business or individual whose records are being demanded.
Before Congress considers adding criminal penalties to this
troubling power--which has already been expanded twice since 9/11--it
should hold hearings to find out much more about how these letters work
in practice. The government has refused to release even the most
general information about national security letters--including the type
of records being monitored and whether the government is seeking to
obtain entire databases.
At a minimum, Congress should make explicit the right of a
recipient to challenge a national security letter--just as a recipient
can challenge a grand jury subpoena. Congress should require some
individual suspicion before compliance with a national security letter
can be ordered by a court. Finally, the recipient should be able to
challenge the gag provision in court, and should be allowed to contact
an attorney, congressional committee, or the Justice Department
Inspector General without fear of being prosecuted for violating the
gag provision.
allowing secret government eavesdropping without any connection to
foreign government or terrorist group
Section 4 of H.R. 3179, the so-called ``lone wolf'' provision,
would eliminate the ``foreign power'' standard for one type of
surveillance: non-citizens suspected of involvement in terrorism. The
``foreign power'' standard serves as a vital protection against
overzealous use of the government's ``national security'' power to
wiretap, and otherwise secretly monitor, private communications outside
the standards of criminal investigations.
As I discussed earlier, the Fourth Amendment is clear--no searches
without a warrant based on probable cause. Yet despite that clear
command, the Executive Branch has long claimed an unwritten ``national
security'' exception to the Fourth Amendment that allows secret
domestic surveillance for foreign intelligence and counterintelligence
outside criminal probable cause standards.
The carefully-crafted, compromise law that keeps this exception
within reasonable bounds is the Foreign Intelligence Surveillance Act
(FISA). The law permits secret surveillance outside normal criminal
bounds when approved by the Foreign Intelligence Surveillance Court.
The government can appeal any denials (which are exceedingly rare) to
another secret court--the Foreign Intelligence Surveillance Court of
Review.
One of the most important limitations on FISA surveillance--the
requirement that FISA surveillance is only allowed when foreign
intelligence is ``the purpose'' of the surveillance--has already been
substantially weakened by the USA PATRIOT Act, which allows such
surveillance when foreign intelligence is merely ``a significant
purpose.''
The Foreign Intelligence Surveillance Court of Review, in its
first-ever case, approved this change against a constitutional
challenge mainly because the ``foreign power'' standard remains.\4\
Although FISA surveillance may now be used even where the government's
main purpose is other than foreign intelligence, the government must
still show probable cause that the target of FISA surveillance is a
``foreign power or agent of a foreign power.'' The Court of Review, in
line with other courts that have looked at the issue, made clear that
the required connection to a ``foreign power''--and therefore to the
President's national security powers--is a major reason why a separate,
secret scheme of surveillance--outside the normal bounds of criminal
investigation--is constitutional.
---------------------------------------------------------------------------
\4\ In re Sealed Case, 310 F.3d 717 (For. Intel. Sur. Ct. Rev.
2002).
---------------------------------------------------------------------------
The so-called ``lone wolf'' provision eliminates this ``foreign
power'' standard for wiretapping and other secret surveillance for non-
citizens suspected of involvement in international terrorism.
Notwithstanding its limitation to non-citizens, the provision violates
the Fourth Amendment because the Fourth Amendment protects ``people,''
not citizens. Certainly we can expect that the next request will be to
expand this power to citizens, as originally proposed in ``Son of
PATRIOT.'' Ultimately, this provision sets a dangerous precedent for
all Americans, because it severs secret national security surveillance
from its constitutional moorings--the President's constitutional
responsibility to defend the nation against foreign powers.
Supporters wrongly call this unconstitutional, unwise and
unprecedented provision the ``Moussaoui fix.'' They say it is needed
because the government failed to seek a FISA warrant, before 9/11, to
search suspected hijacker Zacarias Moussaoui and that, with this ``lone
wolf'' provision, they might have done so.
In fact, this provision is not the ``Moussaoui fix.'' FBI agents
did not seek a FISA warrant because--even though Moussaoui was
connected to a foreign rebel group--national security bureaucrats said
FISA could not be used because the rebel group was not a ``recognized''
foreign power. They were wrong. Congress' own investigation of the pre-
9/11 intelligence problems found those government officials
``misunderstood the legal standard for obtaining an order under FISA.''
The ``foreign power'' standard requires only that the government show
probable cause that the person is an agent for some foreign government,
foreign political faction or organization, or group involved in
international terrorism--which can be as few as two individuals. A
group involved in international terrorism need not be formally
designated as a foreign terrorist organization (as these officials
mistakenly believed) to be a ``foreign power'' under FISA. Whether the
foreign power is ``recognized'' is legally both irrelevant and
meaningless.
Finally, the investigation found that FBI agents were so quick to
leap to FISA in the case of Zacarias Moussaoui, they did not fully
consider getting a plain vanilla criminal search warrant. Insofar as
these problems involved a misunderstanding of existing federal power,
not a lack of power, Congress' investigation recommended greater legal
training for national security officials.\5\
---------------------------------------------------------------------------
\5\ Joint Inquiry Into Intelligence Community Activities Before and
After the Terrorist Attacks of September 11, 2001, Report of the U.S.
Senate Select Comm. on Intelligence and the U.S. House Permanent Select
Comm. on Intelligence 321-323 (December 2002).
---------------------------------------------------------------------------
How, then, should we monitor terrorists who may be acting alone?
The answer is simple--with ordinary search warrants and wiretaps, based
on probable cause. Criminal warrants and wiretaps have long been
available for federal crimes, including terrorism. Rather than
distorting foreign intelligence surveillance, the government should use
the tried-and-true methods of regular criminal warrants and court
orders.
Indeed, while this proposal has been pending in Congress for more
than two years, the Justice Department has been unable to explain why
criminal powers are not sufficient to deal with individual terrorists.
In a February 2003 report on FISA oversight, Senators Leahy, Grassley
and Specter said that the Justice Department was unable to provide even
a single case, even in a classified setting, that explained why the
``lone wolf'' provision was necessary. As they said, ``In short, DOJ
sought more power but was either unwilling or unable to provide an
example as to why.''
If Congress is determined to go forward with an unnecessary ``lone
wolf'' provision, it should at least adopt a provision that gives the
Foreign Intelligence Surveillance Court some discretion to deny a
wiretap request where the evidence clearly shows there is no connection
to any foreign threat. For example, as Senator Feinstein has proposed,
Congress could establish a presumption that a non-citizen is connected
to a foreign power based on evidence of involvement in international
terrorism.
expanding the power to use secret evidence and secret surveillance
information in criminal and immigration cases
Finally, sections 5 and 6 of H.R. 3179 also tip the balance towards
the government, and away from the individual, when the government seeks
to use secret evidence--classified information--against an individual
in legal proceedings without revealing the information to the accused.
Section 5 takes away some of the judge's discretion in handling
classified information in criminal proceedings under the Classified
Information Procedures Act (CIPA). It requires a federal judge to hear
a government request to delete classified information from documents
made available to the defendant during discovery proceedings in camera
and ex parte--that is, in secret without hearing from the other side.
It also allows the government to make this request orally, rather than
in writing. While it still permits the judge to deny the government
request to delete classified information, or to order a more complete
summary, it nevertheless represents an incremental shift of power away
from the court and towards the prosecutor. Congress should hear much
more from both prosecutors and defense lawyers with experience in this
area before making such a change, in order to determine whether the
effect may be much larger than intended.
Section 6 of the bill is a major shift in favor of greater use of
secret information in immigration proceedings. Section 6 amends the
Foreign Intelligence Surveillance Act (FISA) to permit the government
secretly to use FISA-derived information in immigration cases. Section
6 would amend FISA to eliminate very important safeguards that are
designed to ensure that when secret foreign intelligence wiretaps and
other surveillance are used to put a person's liberty in jeopardy, he
has notice and an opportunity to challenge whether the surveillance was
lawful. Under this change, however, a person could face lengthy
detention, and ultimately deportation, without ever knowing about the
government's use of secret surveillance information or having the
ability to challenge it.
Mr. Chairman, this issue is, as many of you know, dear to my heart.
I firmly believe it is simply un-American for our government to
withhold critical information from an individual whose liberty is in
jeopardy. Star chamber proceedings have been the hallmark of
totalitarian governments, not our own. As a result, when I served in
this illustrious body and on this Committee, I worked across party
lines to author the ``Secret Evidence Repeal Act'' (H.R. 1266 in the
107th Congress), which would have ensured that individuals in
immigration proceedings had the same access to a summary of classified
information as those in criminal proceedings. My bill attracted the
support of over 100 cosponsors and after two hearings passed this
Committee with a vote of 26-2 in favor of my substitute.\6\
Unfortunately, however, the Secret Evidence Repeal Act was not passed
by the full House and is not, as a result, the law of the land. While I
am certainly gratified that President Bush has pledged publicly not to
allow classified information in immigration proceedings, the government
still claims the power to do so and a future Administration is free to
reverse that policy, as is this one.
---------------------------------------------------------------------------
\6\ H.R. Rep. No. 106-981, Secret Evidence Repeal Act of 2000,
106th Cong., 2nd Sess. (Oct. 18, 2000). The bill, as amended, passed on
a voice vote. Three members filed dissenting views.
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The passage of section 6 of H.R. 3179 would seriously undermine
this Committee's efforts to reform the use of classified information in
immigration proceedings. Put simply, section 6 goes beyond allowing the
use of secret evidence. It allows the secret use of secret surveillance
information. Not only would the defendant have no right to see the
classified information, derived from FISA surveillance, that is being
used against him in the immigration case, he would not even have the
right to be notified that such information was going to be used, and
obviously would have no ability to challenge it.
Amending FISA to allow the secret use of such secret surveillance
information in immigration cases is an idea that simply flies in the
face of the House Judiciary Committee's commendable efforts to reform
the use of classified information and end the use of secret evidence.
There is also some dispute about whether the amendment would really
affect only immigration proceedings, or would affect a wide range of
civil proceedings, including asset forfeiture, tax, and regulatory
proceedings. I understand the drafters intended to limit the amendment
to immigration proceedings. However, even with a clarification, I
caution you that allowing the secret use of secret surveillance in one
type of civil case--in this case, immigration proceedings--can and will
be used as a precedent when the Justice Department comes back to you
and asks for this exception in other types of civil cases.
conclusion
As a former CIA official and federal prosecutor, I witnessed first-
hand how much of our national security apparatus--even our counter-
terrorism and international intelligence work--is built on very basic
policing methods. From your local grifters to the Bin Ladens of the
world, bad guys are generally found and punished using a system that
includes basic checks and balances on government power and which
militates against dragnet investigative fishing expeditions.
In many other countries, it is neither acceptable nor lawful to
reflect openly on and refine past action. In America, it is not only
allowable, it is our obligation, to go back and reexamine the decisions
made by the federal government during the panic of an event like
September 11th.
Of course, a country suffering through the immediate fallout from
the worst terrorist attack on American soil ever is going to make some
mistakes. To err isn't just human, it's a direct result of
representative democracy.
Case in point: myself. I voted for the USA PATRIOT Act. I did so
with the understanding the Justice Department would use it as a
limited, if extraordinary power, needed to meet a specific,
extraordinary threat. Little did I, or many of my colleagues, know it
would shortly be used in contexts other than terrorism, and in
conjunction with a wide array of other, new and privacy-invasive
programs and activities.
According to a growing number of reports, as well as a GAO survey,
the Justice Department is actively seeking to permit USA PATRIOT Act-
aided investigations and prosecutions in cases wholly unrelated to
national security, let alone terrorism.
This should not be allowed to continue. As my esteemed colleague in
the House, former Speaker Newt Gingrich wrote recently, ``in no case
should prosecutors of domestic crimes seek to use tools intended for
national security purposes.'' When we voted for the bill, we did so
only because we understood it to be essential to protect Americans from
additional, impending terrorist attacks, not as tools to be employed in
garden-variety domestic criminal investigations.
With conservatives expressing these serious doubts about the reach
of the USA PATRIOT Act, it is time to go back and review the law, hold
oversight hearings and consider corrections. It is certainly not the
time to consider making it permanent or expanding it.
Conservative or liberal, Republican or Democrat, all Americans
should stand behind the Constitution; for it is the one thing--when all
is said and done--that will keep us a free people and a signal light of
true liberty for the world. Thank you again for allowing me to testify.
Mr. Coble. Thank you, Mr. Barr, and thanks again to all the
witnesses.
Gentlemen, we apply the 5-minute rule to ourselves as well,
so when we question you, if you can limit your answers as
succinctly as possible.
Mr. Bryant, under FISA, a specially designed court may
issue an order authorizing electronic surveillance of a
physical search upon probable cause that the target of the
warrant is a foreign power or an agent of a foreign power. Mr.
Barr claims that this bill would eliminate the probable cause
requirement.
What do you say to that?
Mr. Bryant. That would be an inaccurate characterization,
Mr. Chairman, of the effect of this bill as it relates to the
provision calling for amending FISA, so as to allow FISA to be
used in connection with so-called ``lone wolf'' terrorists or
terrorists for whom the affiliation with an international
terrorist group is unknown.
The bill would in no way affect the current FISA standards
in current law. That is to say, the probable cause required
with respect to the identity of the subject being an
international terrorist or a spy, a foreign power or an agent
of a foreign power, is in no way changed by this law. So I
think that would be my initial response, Mr. Chairman.
Mr. Coble. Mr. Barr and I were talking prior to the hearing
commenced, and we agreed that the PATRIOT Act is going to be
sputtering around for a long time, as well it should. So with
that in mind, Mr. Barr, let me put a question to you.
In your testimony you clearly expressed concern that the
Department of Justice may well abuse its authority. Senator
Feinstein pointed out at a recent oversight hearing that the
ACLU could not provide her with a single instance of abuse as
far as PATRIOT Act provisions are concerned.
What do you say in response to that, or do you have
specific evidence of abuses?
Mr. Barr. I think, Mr. Chairman, as the cases that are
being investigated and prosecuted by the Federal Government
under provisions of the PATRIOT Act start to now, after a
couple of years working their way through our court system,
start to manifest themselves publicly in hearings and court
orders and so forth--there is a case that reaches from, I
think, out of D.C. or Northern Virginia all the way down to
Georgia, which has to do with the scope and applicability of
nationwide subpoena power under the PATRIOT Act. That case is
now moving forward and I think has established a pretty clear
record of abuse in that area, the use of these expanded
subpoena powers for fishing expeditions. So I think we're going
to see more of that as these cases finally work their way
through the system.
Of course, as the Chairman is well aware, one of the
reasons why it's so difficult to answer that question is
because the proceedings are secret, so we don't know when, for
example, a FISA warrant is served on a repository of records,
perhaps a pawn shop which engages in second amendment
transactions, or a doctor's office. They are gagged and they
are prevented from disclosing that, so we don't know how often
these powers have been used or the extent to which they may
have been abused.
I think this also is a reason to conduct a great deal more
oversight before we move to even seriously consider enactment
of this and other similar legislation.
Mr. Coble. Thank you, Mr. Barr.
Mr. Harrington, the bill before us amends the law to add
enforcement mechanisms for compliance with National Security
Letter requests and against illegal disclosure of such a
request. Explain in a little more detail why we need to enforce
these requests.
Mr. Harrington. Well, as I stated a little bit earlier,
there have been several rare occasions where we have not had
compliance with an NSL, an administrative type subpoena. In
those cases we have no recourse currently to have that resolved
in a quick and timely fashion. It becomes a protracted
negotiation between the Government and the recipient of the
NSL.
Of course, the work that we do must be kept quiet and
secret, as we try to investigate enterprises. These are cells,
these are groups that work together. There are relationships
that are formed. By doing it in a public venue, it would alert
other subjects or other coconspirators and would, of course, be
detrimental toward our investigation in the long run.
Mr. Coble. Let me get one more question in before the red
light comes to either of you.
Do NSLs violate the fourth amendment because we don't
inform the terrorist or the target that they're under
investigation? Any of you.
Mr. Bryant. I would be pleased to respond, Mr. Chairman.
They don't. Terrorists have no such fourth amendment right.
NSLs are akin to administrative subpoenas. As you know, Mr.
Chairman, Federal law currently provides for 335 different
administrative subpoenas to use in a wide variety of crimes,
crimes that don't rise to the magnitude of terrorism or
espionage. NSLs, National Security Letters, can only be used in
connection with an investigation of an international terrorist
or a spy. That's it.
Mr. Coble. Mr. Barr, do you want equal time on that?
Keep in mind my red light is on, so make it quick, if you
will.
Mr. Barr. Yes, sir, Mr. Chairman.
The problem is, of course, that the fourth amendment
applies to persons, not just citizens, and it applies to people
who have not yet been convicted. Certainly from the
Government's standpoint, they may believe that these people are
terrorists, but until they are proven as such through judicial
proceedings, they are persons under the fourth amendment.
Insofar as provisions of the PATRIOT Act and provisions of
H.R. 3179 would prevent them from knowing that there is
evidence going to be used against them that has been gathered
under FISA, as opposed to the standard applicable under the
fourth amendment, yes, it would result in, could result in, a
violation of their fourth amendment rights.
Mr. Coble. My time has expired. I recognize the gentleman
from Michigan, Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman.
One hardly knows where to begin. I heard a colloquy about
the terrorist. That assumes the terrorist was convicted or that
he was being tried to determine whether he was a terrorist. A
kind of important consideration, wouldn't you think? I mean,
we're saying the terrorist and what his rights are, as if there
had been a trial that determined he had committed acts of
terror.
Anyway, let's begin with the recognition that right now
FISA applies to immigration cases, right?
Mr. Bryant. It applies--if I might, Mr. Chairman, it
applies in investigations in connection with international
terrorists and spies. Put differently, it applies in connection
with investigations of foreign powers or agents of foreign
powers. The FISA surveillance tools----
Mr. Conyers. Yes or no?
Mr. Bryant. Is the question does FISA apply in immigration
proceedings?
Mr. Conyers. Yeah.
Mr. Bryant. It is the case that----
Mr. Conyers. Yes or no?
Mr. Bryant. The law allows FISA-derived information to be
used in immigration cases.
Mr. Conyers. Mr. Harrington, FISA applies to immigration
cases?
Mr. Harrington. I would have to defer. I'm not an attorney.
Mr. Conyers. Okay.
Mr. Barr, welcome to the Committee again. FISA applies to
immigration cases?
Mr. Barr. It can apply to immigration cases.
Mr. Conyers. And what this bill is doing is going beyond
the present application of FISA to immigration cases, right,
Mr. Bryant?
Mr. Bryant. No, sir, that's not----
Mr. Conyers. It isn't going beyond?
Mr. Bryant. No, sir. It does not affect, in any respect,
the requirement----
Mr. Conyers. Well, what does it do, then, if it's not going
beyond the existing law?
Mr. Bryant. It's improving existing law. I thought your
question was, is it extending FISA in the immigration setting?
Mr. Conyers. It's not going beyond the law; it's improving
the law?
Mr. Bryant. It's not increasing the application of FISA
information in immigration----
Mr. Conyers. And this isn't PATRIOT II. This is just
enhancing PATRIOT I, right? Right?
Mr. Bryant. This does not----
Mr. Conyers. Yes or no.
Mr. Bryant. No.
Mr. Conyers. Oh, it doesn't enhance PATRIOT I?
Mr. Bryant. No. It is not specific to the PATRIOT Act, Mr.
Conyers. These are additional provisions which speak to
important counterterrorism tools.
Mr. Conyers. It's not doing anything to the PATRIOT Act?
Mr. Bryant. It is not----
Mr. Conyers. Okay.
Mr. Barr, can you help us out here?
Mr. Barr. I certainly don't want to get crosswise with my
friend and Assistant Attorney General, but I think that, very
clearly, the intent of H.R. 3179 is to grant additional powers
to those already granted under the PATRIOT Act, in the very
same areas addressed by the PATRIOT Act.
Mr. Conyers. Of course.
Now, since we're into this semi-denial mode, let me ask you
about the PATRIOT Act II that's been widely known to have been
drafted in the Department of Justice for months. Mr. Bryant?
Mr. Bryant. Yes, sir.
Mr. Conyers. Yeah. What? What is the response?
Mr. Bryant. I'm sorry. I didn't understand the question,
Mr. Conyers.
Mr. Conyers. I said what about the widely-known fact that
PATRIOT II was being drafted in the Department of Justice for
months?
Mr. Bryant. We have not----
Mr. Conyers. You don't know anything about it?
Mr. Bryant. We have been working with Congress extensively
over the last 2 years to----
Mr. Conyers. Well, I'm in Congress.
Mr. Bryant.--to provide additional----
Mr. Conyers. They haven't been working with me.
Mr. Bryant. We stand ready to, sir.
Mr. Conyers. Well, let me ask you this.
Good night, man. I'm spending a lot of time on ancient
history. Everybody knows that in town. I mean, read the
Washington Post. They have been drafting FISA, redrafting FISA,
re-redrafting FISA.
Let me ask you this. Did you know that the PATRIOT bill
that came out of this Committee was substituted by the
Department that you work in the night before it went to Rules?
Did you know that? You didn't know that, either?
Mr. Bryant. No, sir.
Mr. Conyers. And you worked in the Judiciary Committee.
Mr. Bryant. Of course, we can't substitute legislation that
this Committee----
Mr. Conyers. Well, it happened. What do you mean you can't
do it?
Mr. Bryant. We don't have a vote on this Committee, sir.
Mr. Conyers. Please help me control myself.
What do you mean you can't do it? You did it. The bill that
we sent to the Rules Committee was replaced by another bill
that nobody had seen. Was that at your request?
Mr. Bryant. The substitution?
Mr. Conyers. Yes.
Mr. Bryant. If the question is, did we support the
substitution, then the answer is yes.
Mr. Conyers. That's the question. Was it at your request?
Mr. Bryant. Were we urging that the bill reported out of
Committee be further improved? We were.
Mr. Conyers. Right. So don't give me this business about
you never can do this or--You're the one that did it.
Mr. Coble. Mr. Conyers, your time has expired.
Mr. Conyers. Okay.
Mr. Coble. If you want to wrap up, Mr. Conyers----
Mr. Conyers. No, no. I need another round.
Mr. Coble. All right. Very well.
The gentleman from Virginia, Mr. Goodlatte.
Mr. Goodlatte. Thank you, Mr. Chairman.
Mr. Barr, welcome. We are very pleased to have your
participation, as well as the representatives of the Justice
Department.
Quite frankly, when we wrote the PATRIOT Act the first
time, regardless of some view of the process, we gave it very
intense scrutiny. There were a number of things requested by
the Justice Department that we did not agree to and took off
the list right away. Most everything else was very closely and
carefully discussed and in some sense negotiated amongst
Members of this Committee.
I think that the final product is a good product. The fact
of the matter is, when you do something like this and you
change things in a very sensitive area--and I'm sensitive to
both civil liberty concerns and law enforcement concerns--you
don't necessarily know the impact that you're going to get. So
we added what I'm in favor of doing with more legislation, and
that is sunset provisions on a great many of the provisions of
the PATRIOT Act. A number of the other provisions are very much
common sense, simply provisions to update things that were
needed in the law, and I think that is the same approach that
we should take to any new requests for changes in the law.
Mr. Barr, I'm wondering if that's your philosophy as well.
In reviewing your statement, I notice that toward the end of
page 1, you state, as I recall--you did, you voted for the
PATRIOT Act--``with the understanding that the Justice
Department would use it as a limited, if extraordinary power
needed to meet a specific extraordinary threat.''
Yet earlier in your statement, you say that the Attorney
General has said he hasn't used some of the powers, which I am
absolutely certain is true. This is a very lengthy piece of
legislation and includes many, many provisions, some of which
may not have been exercised, and quite frankly, if law
enforcement doesn't need to exercise something, I don't think
they should. You then question whether those powers were
needed.
I'm just wondering, if the Attorney General has not, in
fact, used the powers, is that good or bad that he hasn't used
them?
Mr. Barr. Well, we don't know until we have more
information. I think the gentleman's question goes to the heart
of the need for additional oversight so that we can get answers
to those questions, the answers which lie only in the breast of
the Department of Justice.
I think it's important to recognize or to conclude that if,
in fact, some of these extraordinary provisions which at the
time the PATRIOT Act was submitted and defended by the
Administration when it was brought up to the Hill were
portrayed as absolutely essential to fight terrorism have not,
in fact, been used, then I think there ought to be,
particularly from a conservative standpoint, a presumption that
they are not needed and that they ought to be taken from the
Government and given back to the people, and at such time as
the Government feels and can demonstrate the need for those
powers, to then at that time come back to the Congress and ask
for them and justify them.
Mr. Goodlatte. Are these particular powers amongst those
that would expire at the end of next year?
Mr. Barr. Some of them, but as the gentleman from Virginia
knows, unfortunately, despite our joint efforts to have the
number of provisions of the USA PATRIOT Act sunsetted much
broader than we wound up with, a lot of the problematic
provisions such as the ``sneak and peak'' and the 215 provision
are not sunsetted. This is a problem.
Mr. Goodlatte. But the examination--and I fully agree with
you, that we need to exercise a considerable oversight over the
use of the PATRIOT Act to make sure that it is being used as
intended, and certainly one of the questions, as always,
whether something is, indeed, needed. But there have been those
who advocated that we pass legislation, I think prematurely, to
lift those sunset provisions and make the PATRIOT Act
permanent, and on the other hand, there are those who would
like to take steps to repeal portions of it, what I also think
are premature. I think we ought to allow it to operate for the
amount of time that the Congress designated, and then, as it
approaches the sunset provisions for some of the provisions,
use that as an opportunity to examine all of the provisions in
the act. While some may not automatically sunset, we certainly
have the ability and the authority to examine those that do not
sunset and determine whether they aren't used or are not
necessary or have been abused, in which case we can do that.
But I so far have not seen a tremendous amount of evidence
from anybody regarding misuse of the PATRIOT Act. I wonder if
you would want to comment on that, if Mr. Chairman would allow
that, since my red light is on. And then I would also ask if
Mr. Bryant could respond as well.
Mr. Barr. Again, in the interest of time, not to repeat my
answer to a question that the distinguished Chairman raised
earlier, we don't really know at this point because of the
secrecy attendant to so many of these provisions and the use of
these provisions by the Government. The Committee, through
vigorous oversight, and the Subcommittee, certainly can get to
the bottom of it, and I think should.
But, of course, ultimately the question of whether or not a
provision of the law, including those that bring us here today,
are constitutional has nothing to do with how many times they
are used or whether they've been abused. They are
unconstitutional ab initio. That, I think, is a problem with
some of what is going on here.
Mr. Coble. The gentleman put his question before the red
light appeared, Mr. Bryant, so you may answer briefly, if you
will.
Mr. Bryant. Yes, sir.
Mr. Goodlatte, in response to the question is it good or
bad that certain sections haven't been used, I think we reflect
on and ask the same question, is it a good or bad thing that a
law enforcement officer has a firearm but doesn't have to use
it. The fact that discretion is shown, restraint is shown, in
connection with utilizing authorities or powers that are
granted law enforcement or counterterrorism capability, we
think is a good thing.
In terms of the question of the sunsets, we think Congress
did a very good job in passing PATRIOT. We think the sunsets
should not be realized; that is to say, we think the sunsetted
provisions should not, in fact, sunset but should be continued.
We support their reauthorization. We stand ready to continue
working with this Committee and Congress to ensure careful
oversight of how all of the authorities, including the
sunsetted authorities, are being used.
We think with PATRIOT the angel is in the details, not the
devil is in the details. We think that you all deserve the
details, the American people deserve the details, and that that
will----
Mr. Coble. The gentleman's time has expired. Thank you, Mr.
Bryant.
The gentleman from Virginia.
Mr. Scott. Thank you, Mr. Chairman.
I noted, Mr. Bryant, you said that these investigations and
National Security Letters were in conjunction with the
investigation on terrorism, and terrorists don't have rights
that others might have.
Do I understand that once you get a letter, the
investigation is in connection with the terrorist investigation
but they can be served on anybody?
Mr. Bryant. NSLs can be used by the FBI in connection with
duly authorized investigations of international terrorism or
espionage, and can be served on third parties--specified
certain congressionally-articulated third parties--who have
relevant information to that investigation, that's correct.
Mr. Scott. Like law-abiding citizens?
Mr. Bryant. To designated institutions, such as financial
institutions or credit reporting agencies----
Mr. Scott. Under the bill, a pawn shop?
Mr. Bryant. Yes, a pawn shop, which has become----
Mr. Scott. A law-abiding pawn shop can be subject to one of
these things. They get issued not by the Attorney General but
get issued by the local guys?
Mr. Bryant. This is a request for information that, under
statute, can be issued by the FBI.
Mr. Scott. The local guys can do this?
Mr. Bryant. No, it has--Congress has designated how it can
be delegated, and I believe it can be delegated to the special
agent in charge----
Mr. Scott. Local?
Mr. Bryant. Yes, who is sometimes local, is in the region.
Mr. Scott. And once the local guy issues one of these
things and you get one, you have to comply, you can't tell
anybody, and if it's abusive, how do you complain?
Mr. Bryant. A couple of points, Congressman. This is
important, so I would like to try to get it right.
With respect to not being able to tell anybody, it is the
position of the Department that the recipient of an NSL can
confer with counsel, with a lawyer, with an attorney. We
believe that's an implied exception in the law, and we would be
pleased to work with you as this legislation is----
Mr. Scott. So you are pleased to put that in the bill, that
consultation with an attorney does not violate the disclosure
from----
Mr. Bryant. That's correct.
Secondly, with respect to compliance, the sanctions that
currently don't exist, that this bill would call for, only
apply to breaching the nondisclosure requirement. In order for
there to be sanctions in connection with not complying with the
request, the Justice Department would have to enforce the
National Security Letter in court, and the penalty then would
be sanctions applied by the court in connection with the
failure to comply.
Mr. Scott. If you're complaining or protesting, you know,
you explain it to a judge and you're on the barrel end of a 5-
year sentence if you happen to lose.
Let me move on to these ex parte proceedings. How many ex
parte requests have been denied by judges?
Mr. Bryant. I don't know the answer to that, Congressman.
Mr. Scott. Do you know if any have been denied?
Mr. Bryant. It's my understanding that ex parte in
connection with CIPA, the Classified Information Procedures
Act, that requests for CIPA authorizations are denied.
Mr. Scott. Some are denied?
Mr. Bryant. Yes, sir.
Mr. Scott. If this bill passes, will the defendant know
that an ex parte proceeding went on?
Mr. Bryant. The defendant might have reason to know that an
ex parte in camera proceeding has occurred. The defendant
wouldn't, by definition, know necessarily or would not know
what occurred in that proceeding.
Mr. Scott. Would he necessarily know that it went on?
Mr. Bryant. No.
Mr. Scott. Would there be a reviewable record of what went
on?
Mr. Bryant. The proposed change in this bill would allow
the requested CIPA authorization to be made orally, so as to
expedite the request and judicial determination.
Mr. Scott. So if the information was misleading, you know,
kind of confusing, there wouldn't be anything to review; is
that right?
Mr. Bryant. I'm unaware that there would be a record to
review.
Mr. Scott. There wouldn't be a transcript.
Mr. Bryant. That's correct.
Mr. Scott. So if the judge was allowed to, there wouldn't
be any transcript.
If the judge decides that he really doesn't agree that it
ought to be ex parte and he would like to hear from the
defendant, under this bill he can't do it, is that right?
Mr. Bryant. Well, under current law a judge is not free to
discuss any and all classified information with the defendant,
absent provisions specifically made for that.
Mr. Scott. Or defense counsel?
Mr. Bryant. That's correct.
Mr. Scott. If he decides that he would like to discuss with
counsel who has a security clearance, this bill would prevent
him from involving the defense counsel in the decision, is that
right?
Mr. Bryant. That's my understanding.
Mr. Scott. I had one quick technical question, Mr.
Chairman. Do you have the bill before you?
Mr. Bryant. I do.
Mr. Scott. On page 4, line 15.
Mr. Bryant. Mine might not have the same pages, Congressman
Scott.
Mr. Scott. Section 6, the first sentence.
Mr. Bryant. Uh-huh.
Mr. Scott. Where it says in parenthesis ``other than in
civil proceedings or other civil matters under the immigration
laws,'' I'm assuming that it means civil proceedings under
immigration laws or other civil matters under immigration laws.
Mr. Bryant. Yes, that's our reading of the meaning of the
text of the bill.
Mr. Scott. Okay.
Mr. Coble. I thank the gentleman.
The gentleman from Indiana, Mr. Pence.
Mr. Pence. I thank the Chairman. Thank you for holding this
hearing. I want to thank the witnesses, and I apologize for
arriving a little bit late. I have a couple of questions.
It's good to see Mr. Bryant here. I real with great relish
the story of 310 individuals charged and 179 convicted,
terrorist cells broken up in Buffalo, Charlotte, Portland, and
Northern Virginia. Mr. Bryant, I would just say--and I hope you
convey to your colleagues at the Department of Justice--the
gratitude of the people I represent.
Mr. Bryant. I'll be pleased to, Congressman.
Mr. Pence. We appreciate you. I do not consider it luck
that we have been without a major terrorist event on American
soil in the days since September 11th.
Also, I am grateful to see my good friend and former
colleague, Congressman Barr, here. I think I may actually be
physically occupying what many of us call on the Committee the
``Bob Barr'' chair in the upper shelf. I appreciate your
passion for civil liberties.
Mr. Barr. If you are, Mr. Pence, be aware that there's a
trap door underneath, which my colleagues wanted to use
frequently. [Laughter.]
Mr. Pence. I honestly find myself, I would say to the
panel, somewhere between my good friend, Mr. Barr, and the
Department of Justice on this. So I have a couple of quick
questions.
I would really echo Mr. Barr's statement, prepared
statement. I literally was added to this Committee, unlike some
of my distinguished colleagues, I was added to this Committee 1
week before the PATRIOT Act was passed. I haven't crammed for a
test like that since my law school days.
But it was axiomatic to me at that time that we were
creating temporary powers and focused on confronting a specific
threat to our country, so I do want ever to have Congress hold
to that theory in force the temporary elements of the PATRIOT
Act, where possible, and where it's prudent to do so. I also
want to be very careful about expanding even in the area of, to
use Mr. Barr's language, the PATRIOT Act.
But I am also intrigued, Mr. Bryant, and I would like you
to speak to this ``lone wolf'' idea. It seems to me that in the
days since September 11th we have gotten to know our enemy
better through hard labors and confrontations, I think, of the
circumstances that occurred prior to the elections in Spain,
where in testimony before the International Relations Committee
John Bolton told me that he did not believe al-Qaeda today was
operating from a central command but rather from disparate
groups and individuals.
I just would like to ask you a fairly open-end question,
Mr. Bryant. Could you explain to me how the instant bill
addresses that ``lone wolf'' whole, where we are relegated to
dealing with issues under essentially domestic criminal law?
What is the benefit in this bill for us when we can't establish
a direct nexus to a terrorist organization or group of
terrorists?
Mr. Bryant. Yes, sir. The question that we have sought to
address in thinking about this ``lone wolf'' or unaffiliated
terrorist circumstance is whether or not the benefits, the
strengths of the FISA regime, and the protections that are
built into the FISA regime, should be brought to bear in
connection with a terrorist whose affiliation with a foreign
terrorist organization is unknown.
We think the answer is yes, because the potential
catastrophic consequences of an international terrorist--and
this provision would only apply to non-U.S. persons--whether or
not an international terrorist perpetrating or seeking to
perpetrate a terrorist incident should be able to be pursued
with the FISA tools that are currently deployable against an
international terrorist whose affiliation with an international
terrorist organization is known.
Mr. Pence. Let me interrupt before my time runs out.
Mr. Barr, could you speak to that? Does the ``lone wolf''
style of terrorism, does it give you pause? Is your concern
here with haste, or is it with the substance of that specific
proposal?
Mr. Barr. It's with the substance. I don't think that, in
my experience as a prosecutor and as a Member of this Committee
engaging in oversight of the Justice Department for 8 years,
I'm not aware of any instance in which failure of judges to
operate quickly if the Government related to them exigent
circumstances was a problem.
What we have here, though, is the fact that--I think one
thing, from a practical standpoint, Mr. Pence, that is
important is the instance of a true ``lone wolf.'' That is, a
suspected terrorist with absolutely no ties to anybody, that he
manufactured the so-called--whatever the device was in his
basement, he didn't deal with anybody outside of his own house
and so forth--I think that's unrealistic. So what we're talking
about from a realistic standpoint, when we talk about a ``lone
wolf,'' is a person that, while perhaps the Government isn't
able to link them to a formal organization, they do have
contacts. And under existing FISA standards, without removing
the nexus to foreign power, the Department of Justice can go
after that person if they show as little as there is one other
person with whom they are dealing as part of their conspiracy
or their activities.
This provision is simply unnecessary to break that
important link between the President's national security power
and the extraordinary power of gathering evidence outside of
the fourth amendment. That's why I think it's so important that
we not do this, and certainly not until the Government has come
forward and laid out a much stronger need for it.
Mr. Coble. The gentleman's time has expired.
Did you have another question, Mr. Pence?
Mr. Pence. It just appeared to me, Mr. Chairman, that Mr.
Bryant wanted to react to that. I would be grateful to have him
do so, if the chair would permit it.
Mr. Coble. Is there further response? Mr. Bryant.
Mr. Bryant. I would be pleased to respond to Mr. Pence, Mr.
Chairman, if you would permit.
Mr. Coble. Why don't you suspend for a moment. We'll have a
second round, so we will do that on the second round, Mr.
Pence.
The gentlelady from California, Ms. Waters.
Ms. Waters. Thank you very much, Mr. Chairman.
I am almost stunned at what we have already done, invading
the privacy of American citizens with the PATRIOT Act, and
violating the Constitution of the United States. I am
absolutely amazed that we keep pushing further to do it and
that the American people are not responding in a profound way.
I suspect that it is just a matter of time before this will
backfire on us, just as the interrogations in Iraq are
backfiring. In the name of terrorism, we have given ourselves
permission to violate the Constitution, to violate privacy, to
basically violate human beings in some extraordinary ways. For
those who were so heady that they felt they could do
interrogations and not have to think about the Geneva
Convention and all of that, I think we're traveling down the
same road with PATRIOT Act II, with no oversight and expansion.
Let me ask Mr. Bryant to describe to us--and you probably
did it already and I'm sorry if I'm asking you to repeat.
Describe to me the gag provision of the National Security
Letters. Describe as accurately as you possibly can what that
gag provision mandates, what does it say, what does it allow or
not allow someone to do or not to do?
Mr. Bryant. Under current law, Congresswoman Waters, the
recipient of a National Security Letter, which is akin to an
administrative subpoena, limited to the context where there's a
duly authorized investigation of an international terrorist or
a spy, the recipient of an NSL, a National Security Letter, is
obligated, under current law, not to disclose the fact that
they have received that NSL.
The reason that Congress has found compelling and caused
Congress to provide this nondisclosure requirement is that to
not require nondisclosure is to allow the recipient to talk
about the fact that the NSL, pursuant to an international
terrorism investigation, has been received, to tip off others,
to tip off associates.
Ms. Waters. Okay, that's good. Let me just stop you for one
moment so that I can understand.
The recipient of one of these letters could or could not be
someone involved in terrorism? Anybody could get one?
Mr. Bryant. Anyone who has been designated within the
category of third parties that are eligible to receive them, so
it's a limited category. Financial institutions, it's
communications transactions, communications providers, it's
credit bureaus----
Ms. Waters. Libraries?
Mr. Bryant. Yes, they fall under the definition.
Ms. Waters. Okay. So----
Mr. Bryant. That is, they fall under the definition if they
provided Internet services.
Ms. Waters. So describe to me, so I can really understand,
if a library receives one of these letters and they ask them
for extensive information related to the checking out of books,
materials, and other kinds of activities of individuals in that
library, then you're saying that that library, no one
associated with it, can tell anybody, they can't raise any
questions about it, they can't do anything; is that correct?
Mr. Bryant. The request has to be for relevant information.
There is no----
Ms. Waters. Who decides relevant?
Mr. Bryant. Well, in the first instance, the FBI, which is
issuing. But there is no sanction for this library in this
hypothetical for not complying. The only sanction is if they
disclose the receipt of it. What that means is they do not have
to immediately comply with the request, in terms of its scope.
They can respond to the FBI that the scope of that NSL is
unreasonably broad. They are not going to be sanctioned for
having that as a response. The FBI and the recipient can then
discuss the proper scope of the request to ensure that it is
only for relevant materials.
The only sanction that could be brought to bear against the
recipient is if the FBI sought to judicially enforce the NSL
and the court were to enforce it at that point, if the
recipient were to still not agree to comply, then there could
be sanctions imposed by the court.
Ms. Waters. You're asking for penalties now?
Mr. Bryant. For nondisclosure, that's right.
Ms. Waters. Not simply for nondisclosure.
Mr. Bryant. The penalties would be, in the first instance,
for knowing violation of the nondisclosure requirement, a 1-
year penalty for a knowing violation, a 5-year penalty for a
knowing violation with the intent to obstruct the ongoing
investigation. Those are the two sanctions.
Ms. Waters. Tell me about that aspect of it, where the
librarian, what not, could not call an attorney, could not call
in anyone to say ``what is this? What have I got here? Do I
have to comply with this?'' Would that be a violation of any
kind?
Mr. Bryant. It is the position of the Department that the
recipient of an NSL can confer with their attorney in
connection with the receipt of that NSL.
Ms. Waters. Who is it they cannot confer with?
Mr. Bryant. They can confer only with counsel in connection
with the receipt of the NSL. So they would be prohibited from
conferring more broadly.
Ms. Waters. What about a relative? What about a wife? What
about anybody else?
Mr. Bryant. I think it's important to remember that we're
talking about only two kinds of investigations here: an
international terrorism investigation or an espionage----
Ms. Waters. The librarian is not a terrorist. The librarian
is being asked to disclose information on other people who have
used that library, who have access information in some way.
What you're telling me is, in addition to failure to
disclose or nondisclosure, that this gag order says you've
gotten this request and you can't talk about it with anybody.
You're saying they can confer with an attorney, is that what
you're saying?
Mr. Bryant. A recipient can confer with an attorney, but
this is a terrorism investigation, and broadly communicating
the receipt of such an NSL poses real risks to national
security. So Congress, going back to 1986, when NSLs were first
passed, has seen appropriate to impose----
Ms. Waters. So what if this librarian talks with his wife
about it? Then what could happen to that librarian?
Mr. Coble. If the gentleman will suspend, Ms. Waters, if
you would wrap up, we need to hear from the gentlelady from
Texas before we go to vote.
Mr. Bryant, you may respond to that.
Ms. Waters. I appreciate that.
Mr. Bryant. The only exception, Congresswoman, that is
implicit in the statute, or that is provided for, has to do
with----
Ms. Waters. Just what would happen to the librarian if he
talked to his wife.
Mr. Bryant. If a recipient of an NSL speaks to someone
other than counsel, that would be viewed as a violation of the
nondisclosure requirement. Currently, there is no sanction in
the law in connection with----
Ms. Waters. So the gag would give him 5 years, could cause
him to be convicted and 5 years in prison?
Mr. Bryant. Under this bill, a recipient--we've been
discussing this in the context of a librarian, but only
libraries which provide Internet services could conceivably----
Ms. Waters. I don't care who it is. I'm talking about a
human being who gets one of these letters, who talks about it
with a wife, a family member, a close friend, another
colleague, they could go to prison for 5 years; that's what
you're telling me. Is that right?
Mr. Bryant. Under this bill, there is a 1-year prison term,
up to 1 year, provided for the knowing disclosure in violation
of----
Ms. Waters. And what triggers the 5 years?
Mr. Bryant. The 5 years, it has to be of the wilful intent
to obstruct an ongoing investigation----
Ms. Waters. Thank you, Mr. Chairman. This is so outrageous,
I don't need to hear any more. Thank you very much for the
extended time.
Mr. Coble. Folks, we are going to have a vote in just a
minute, and I want to recognize the gentlelady from Texas. But
did the Ranking Member of the full Committee want to be heard?
Mr. Conyers. I would like----
Mr. Coble. Before I recognize the gentlelady from Texas.
Mr. Conyers. Oh, no. By all means, the gentlelady from
Texas may proceed me almost always.
Mr. Coble. The gentlelady from Texas is recognized for 5
minutes.
Ms. Jackson Lee. The Ranking Member ranks, and if the
Ranking Member seeks to clarify and/or speak?
Mr. Conyers. I will wait.
Ms. Jackson Lee. I thank the Chairman very much, and I
thank the Chairman of the Subcommittee.
Let me first of all thank the witnesses. Mr. Barr, welcome.
It is a pleasure to see you, and I am going to start with you,
and if I might, I'm not sure if you took your testimony
verbatim, but I'd like to read it into the record again.
``As a student and supported of the Constitution and its
component Bill of Rights, I will not concede that meeting this
Government's profound responsibility for national security
entails sacrificing the right given us by God and guaranteed in
that great document.''
Would you share in your own words, even though your
testimony might have been so, your assessment of the expanse of
what we have been doing in the name of national security? You
might allude to the present bill before us, but as you well
know, I'm going to have some other questions, so if you can
just get us right to the jugular vein, if you will, on this
issue.
Mr. Barr. I think it can be answered with two basic
statements, Ms. Jackson Lee. One is we are making everybody a
suspect until they can prove themselves otherwise. Secondly, we
are essentially moving in the direction of gutting the fourth
amendment with all of these exceptions, exceptions if you
travel, exceptions if you have records that the Government
believes are somehow related, however indirectly, to a
terrorism or national security investigation, we are allowing
so many ways, sort of reverse loopholes, for the Government to
secure evidence to be used against people, including citizens
in criminal proceedings, without laying a foundation that they
have probable cause to suspect that person has engaged in
criminal behavior, that if we go much further--and that's what
we're doing today, going further in that direction--the fourth
amendment will be rendered essentially meaningless.
Ms. Jackson Lee. You took the words out of my mouth,
loopholes and the expanse being gutting of one constitutional
provision and that's a right of reasonable search and seizure.
My next question to you then, and taking into account this
Committee's posture when we worked in a bipartisan way to
produce I think a PATRIOT Act that we all could have lived with
and would have been a very effective tool of fighting
terrorism. You recall those days after 9/11 the unity that was
in this House was probably more than we had ever seen. The
unity in this congressional Judiciary Committee was superior,
but of course, that did not prevail.
Can you tell me what light this particular legislation
brings to the question of fighting terrorism? Following along
the lines of my colleague's inquiry, which is my concern, this
looks like a fishing net, not a fishing pole, but a fishing
net, where we are throwing out a net, and we may gather in it a
number of innocent persons who through their own sense of
freedom, meaning that we are used to being free in this country
and may offer a conversation that is not in any way undermining
national security, but is this legislation before us the kind
of legislation that can in essence be a fishing net drawing in
innocent persons, leaving them with little defense mechanisms
in terms of their own defense?
Mr. Barr. I think the gentlelady is correct. And in
addition to that, for example, following on the discussion that
the gentlelady and the gentlelady from California were just
having with the distinguished Assistant Attorney General about
the gag order and the penalties and so forth, if the Government
of course is able to extract penalties, that is, prosecute
criminally people who have disclosed beyond their attorney,
which is very limited disclosure certainly, then there's no
incentive whatsoever and no way to hold the Government to
narrow its requests under the FISA provisions.
Secondly, such a provision that the Government seeks is
unnecessary. The Government can under existing law, long-
established existing law, seek a subpoena under seal if it
believes that disclosure to third parties, that is other than
the recipient of the subpoena to secure the evidence, would
harm national security or would harm an ongoing investigation,
they already have a tool to do that. That's why it's somewhat
mystifying to me why the Government is now saying that it has
to have this additional power, which they were not granted in
the initial PATRIOT Act, and one reason they weren't is because
they already had the power then and they have it now.
Ms. Jackson Lee. Interestingly enough, I remember your
debate in this Committee, and a number of times you recounted,
with your past experience, the fact that the Government already
had some of the powers that we were even discussing at that
time. That's why we tried to balance that bill at the time that
we were discussing it.
Mr. Bryant, welcome back, and I thank you for your
leadership. Thank you very much, Mr. Barr.
He makes a very valid point, and I would just like to
explore it with you very briefly. Section 5 of this legislation
takes away a defendant's right to challenge secret evidence
that the Government has against either--against him. My concern
is can you provide an example, one example where a defendant
has jeopardized a case because he or she was allowed to just
petition the court to have access to this secret evidence. I
say that in the context again of the idea of a fishing net and
the idea that this Committee, this Congress, and I think the
Government, should be problem solvers. We should not, if you
will, undo or to make wrong what is already okay and right.
In this instance it appears to me that the Government is
coming forward with advocacy for a position where there has not
been sufficient problems that have been discovered, and/or that
you have presented to this Committee, or as I understand, to
anyone.
so what is the basis of having--thwarting a defendant's
right to understand what is going on and to give them an able
defense? It seems to be a simple right that we have.
Mr. Bryant. Thank you, Congresswoman. CIPA, the Classified
Information Procedures Act, sets up a mechanism whereby the
Government can seek to protect classified information in a
trial setting by petitioning the Court to explain ex parte and
in camera why that information should not be disclosed. The
judge is then in a position to redact or summarize that
information for purposes of trial.
To not allow the Government to seek that ex parte in camera
opportunity with the judge and to not allow redactions or
summaries of that information, is to risk disclosing
classified, sensitive, national security information in an open
court setting. That's the concern that CIPA for many years has
addressed and that this bill further addresses.
Ms. Jackson Lee. Do we have examples of defendants who have
misused any access to secret evidence if they've ever gotten
access to it? Do you have a record of such?
Mr. Coble. Mr. Bryant, if you would be brief, the
gentlelady's time has expired, but you may answer.
Ms. Jackson Lee. I thank the Chairman.
Mr. Bryant. I am aware of examples where Government has had
real struggles in a trial setting presenting information, given
the fact of it being classified, and what this does is it
allows the Government simply to get to a judge, who can then
decline the request to seek redactions or summaries of that
classified information.
Ms. Jackson Lee. Mr. Chairman, if you will just yield for
me to have a final sentence, I would just say that justice and
democracy is a struggle, and the problem is, is that the
struggle seems to be heavily burdening the defendant who is now
increasingly not having the opportunity for a fair trial under
this new legislative initiative and certainly the PATRIOT Act.
Mr. Coble. I thank the lady.
We have been joined by the gentleman from Ohio, Mr. Chabot.
Do you have any comment to make?
Mr. Chabot. No.
Mr. Coble. Colleagues, let me think aloud for a minute. We
have proposed three votes upcoming, and you are talking about
close to an hour. So what I propose to do is to start a second
round, and when that bell rings we will adjourn for the day,
but the record will remain open for 1 week, so if Members have
questions to put to the witnesses that they have not had a
chance to orally submit, if all are in agreement with that.
Mr. Conyers. Mr. Chairman, could we ask for a 2-week
response on the questions that might be sent to any of the
witnesses?
Mr. Coble. Two-week response, without objection, 2-week
response will be in order.
I will start a second round now.
Mr. Harrington, we have gone here, there and yonder, and
appropriately so. Let me put two questions to you that can
maybe bring us back into the deep water away from the shoals
and the rocks. What is a national security letter? When can it
be used and who can use it, (A)? (B) Why is a national security
letter preferred over other types of subpoenas or court orders?
These are two rather simple questions.
Mr. Harrington. I think Mr. Bryant's laid it out very
nicely a little while ago, but the national security letters
can only be used in a counterterrorism or an intelligence
investigation, a spy type investigation. Those letters are
directed toward three groups primarily for electronic
communication response, financial records, and consumer
reporting records. Those are the only three areas that it can
be used in.
Why NSLs versus others? Our whole approach has changed
since 9/11. The walls between criminal and intelligence
investigations have basically been taken down, as the Congress
has worked with us to do that. All of our investigations now in
counterterrorism start off as an intelligence investigation.
Criminal provisions are just one tool in our tool belt
basically to attack the particular organization or terrorist
group that we're trying to pursue. Certainly is it easier for
the investigators to be able to go locally to their Special
Agent in Charge, show that they have a pending investigation
and that the NSL is warranted to obtain this information. It's
an abbreviated process.
Mr. Coble. Mr. Barr, I will give you a chance since you are
on the, quote, other side of this issue. You want to respond to
that?
Mr. Barr. Thank you very much, Mr. Chairman. I think it's
important to recognize that the PATRIOT Act, in Section 505,
dramatically weakened the--or dramatically strengthened the
ability of the Government to secure information without that
individualized suspicion, those specific and articulable facts
that are so vitally important to ensure that the fourth
amendment's mandate is kept in mind. That's why the Government
is relying more and more on national security letters as
opposed to judicial subpoenas or grand jury subpoenas, one,
because they're so easy to get, and especially with a gag order
there's no check whatsoever on what the Government is doing.
And all they have to do, contrary to the traditional fourth
amendment standard which requires that specific link for the
Government to show between the information and the individual
against whom the information is being sought, it removes that.
That's why we ought to tread so very carefully in seeking to or
granting the Government the power to expand that. They already
gained a tremendous expansion of power already under the
PATRIOT Act section 505.
Mr. Coble. I thank you.
The gentleman from Virginia. The gentleman from Michigan,
Mr. Conyers.
Mr. Conyers. Thank you, Mr. Chairman. Now that I am feeling
much better and have digested Mr. Bryant's comments earlier,
let us continue on.
Mr. Bryant, how long have you served on the Judiciary
Committee before your ascension to the Department of Justice?
Mr. Bryant. It would have been for a period of
approximately 6 years.
Mr. Conyers. Six years. Okay. Now, has there, to your
knowledge, been any oversight of the PATRIOT Act?
Mr. Bryant. Extensive, sir.
Mr. Conyers. Oh? Well, would you enlighten us? Did the
Judiciary Committee conduct it?
Mr. Bryant. I think both the House and the Senate Judiciary
Committees have had the Attorney General testify before them
since the passage of the PATRIOT Act----
Mr. Conyers. That is not the same thing.
Let me ask the Chairman of the Subcommittee. Have we
conducted any oversight, sir, of the PATRIOT Act, to your
knowledge?
Mr. Coble. I think we have, Mr. Conyers. There was----
Mr. Conyers. Well, when?
Mr. Coble. June the 5th of 2003, May the 20th of 2003. That
was the Subcommittee on the Constitution. Witnesses for--those
2 days come to mind, John.
Mr. Conyers. We will clear this up. Let me get to the
point. I notice that nobody, none of the witnesses, or at least
my favorite witnesses, have used the term ``libraries'' or
``bookstores.'' You prefer the euphemism ``communications
providers.'' And I think I know why you do that. But here's the
problem that we're having. We do not feel that there is any
necessity to go beyond where we are now. You mentioned 179
convictions, Mr. Bryant, right? and what were those convictions
for?
Mr. Bryant. A variety of terrorism-related offenses
including material support for terrorism.
Mr. Conyers. Oh, yeah? Well, would it be offensive to the
secrecy of the Department of Justice that the nature of those
convictions be revealed to the Subcommittee that has
jurisdiction over this subject?
Mr. Bryant. They're a matter of public record. We'd be
pleased to pull it together and make sure the Subcommittee has
it.
Mr. Conyers. Right. But what about all the ones--weren't
there more people convicted for petty offenses and minor
immigration violations and other things than there were for
terrorist offenses, if there were any terrorist offense
convictions?
Mr. Bryant. Respectfully, Mr. Conyers, I think that's a
false dichotomy. Immigration law is an essential tool in our
effort against terrorism.
Mr. Conyers. I see. So Immigration procedures of any kind
that result in convictions like not having a green card could
be terrorist related, right?
Mr. Bryant. It could be if the individual was involved in
terrorism.
Mr. Conyers. Which is why we took the Immigration and
Naturalization Service and put it in Homeland Security, right?
Mr. Bryant. I don't follow the question, sir.
Mr. Conyers. Well, it was pretty simple, a sentence with a
subject and a verb and--I mean what's the problem with what I
asked you? What don't you understand?
Mr. Bryant. The agency historically known as the INS is now
part of the Department of Homeland Security.
Mr. Conyers. Yes. You understand that. Isn't it true?
Mr. Bryant. That's correct.
Mr. Conyers. Well, then what was so hard about that? Now,
how many people have received letters since September 11, 2001,
national security letters have been issued?
Mr. Bryant. I'm unaware of the number, Mr. Conyers.
Mr. Conyers. What about Mr. Harrington? You are the one
that issues them.
Mr. Harrington. Yes, sir, and we do report to Congress
routinely as far as----
Mr. Conyers. Yeah. How many?
Mr. Harrington. I believe that number's classified, sir.
Mr. Conyers. Classified?
Mr. Harrington. Just as the number of FISAs are classified,
yes.
Ms. Waters. Put him under oath.
Mr. Conyers. Well, he's already under oath. I mean when you
testify you're under oath here.
Ms. Waters. Make him raise his hand.
Mr. Conyers. No, that's all right.
You can't tell us because that's classified. Well, let me
ask you, when you hold a trial on terrorism, is that
information classified too?
Mr. Harrington. No, sir.
Mr. Conyers. Has anybody over there been thinking about
classifying the trials where this kind of information is
routinely sought and answered under oath in public, just like
you are?
Mr. Coble. Mr. Conyers, if you will spend just a bit--Mr.
Bryant, if you will answer that, and then there is a vote on,
so we need to--if you want to respond to that, Mr. Bryant.
Mr. Conyers. What do you know about that, Mr. Harrington?
Mr. Coble. Oh, Mr. Harrington.
Mr. Harrington. Yes, sir. There's--of course in a trial
it's open to the public and it is a public record.
Mr. Conyers. In other words, this Committee would have to
go into a secret hearing to get the answer to my question from
you.
Mr. Harrington. I believe so.
Mr. Conyers. Would you provide it then?
Mr. Harrington. Yes, sir.
Mr. Conyers. All right. Mr. Chairman, I would like to seek
immediately, next week, a hearing in which I could get a civil
response to this question.
Mr. Coble. Well, I cannot give you assurance on that right
now, John. I will talk to you after we adjourn here.
Mr. Conyers. All right.
Ms. Jackson Lee. Will the gentleman yield for one moment,
please?
Mr. Conyers. Yes.
Ms. Jackson Lee. Mr. Chairman, I would like for you to give
the gentleman another opportunity to answer Mr. Conyers. He
said that the pure number was classified information. Is he
sure about that? Does he want to leave this Committee with that
as a fact?
Mr. Harrington. I believe I am correct, that this is a
classified number, and that we would be happy to make it
available to Congress----
Mr. Conyers. Okay, Mr. Harrington. Are there any numbers we
can ask you about, the letters being sent that you could tell
us about? I mean like if I ask you how many people work over
there in your department, is that a classified number?
Mr. Harrington. Yes, it is.
Mr. Conyers. It is?
Mr. Harrington. Yes, sir.
Mr. Conyers. If I ask you who the head of the department
was, would that be classified?
Mr. Harrington. No, it would not.
Mr. Conyers. Well, we are making progress.
Mr. Coble. The gentleman's time has expired. I hate to cut
you off, John, but we have to go vote.
I thank the witnesses for your testimony. The Subcommittee
very much appreciates your contribution.
This concludes the legislative hearing on H.R. 3179, the
Anti----
Ms. Jackson Lee. Mr. Chairman, I have something to put in
the record.
Mr. Coble. Let me finish, and then I will recognize you.
The record will remain open for 2 weeks.
The gentleman from Virginia.
Mr. Scott. Two letters.
Mr. Coble. For the record, without objection.
The lady from Texas?
Ms. Jackson Lee. Yes, I have, I would like to submit an
article in USA Today, dated May 17, 2004, ``The Ordeal of
Chaplain Yee.'' I'd like to submit that into the record.
Mr. Coble. Without objection.
The Subcommittee stands adjourned, and thank you again,
gentlemen, for your appearance.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]
A P P E N D I X
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Material Submitted for the Hearing Record
Letter clarifying hearing responses from the Honorable Daniel J. Bryant
Letter from Laura W. Murphy
Letter from the American Civil Liberties Union (ACLU), et al.
Prepared Statement of the Honorable Sheila Jackson Lee, a
Representative in Congress from the State of Texas
Letter from the Honorable Bob Barr, including the case of
Mar-Jac Poultry, Inc.
Prepared Statement of Kate Martin
This Statement is being submitted on behalf of the Center for
National Security Studies, a a civil liberties organization, which for
30 years has worked to ensure that civil liberties and human rights are
not eroded in the name of national security. The Center is guided by
the conviction that our national security must and can be protected
without undermining the fundamental rights of individuals guaranteed by
the Bill of Rights. In our work on matters ranging from national
security surveillance to intelligence oversight, we begin with the
premise that both national security interests and civil liberties
protections must be taken seriously and that by doing so, solutions to
apparent conflicts can often be found without compromising either.
The Center has worked to protect the Fourth Amendment rights of
Americans to be free of unreasonable searches and seizures, especially
when conducted in the name of national security for more than twenty
years. For example, the Center, then affiliated with the American Civil
Liberties Union, was asked to testify before Congress when the Foreign
Intelligence Surveillance Act was first enacted. In 1994, when Congress
amended the Act to include physical searches, Kate Martin, Director of
the Center was again asked to testify about the civil liberties and
constitutional implications of the legislation. Since September 11,
2001, the Center has been actively involved in evaluating the many
changes to these authorities.
summary.
This Committee is currently considering H.R. 3179, the Anti-
Terrorism Intelligence Tools Improvement Act of 2003. The bill contains
two amendments to the Foreign Intelligence Surveillance Act (``FISA'')
50 U.S.C. Sec. Sec. 1801-1863, which amendments raise the most serious
civil liberties concerns in the bill and which will be the focus of
this Statement. Both amendments are of dubious constitutionality and
would be counter-productive in the fight against terrorism. Both
amendments must be analyzed in light of the USA Patriot Act's
substantial expansion of FISA authorities, in particular the Patriot
Act's elimination of the requirement that secret FISA surveillance be
limited to circumstances where the government's primary purpose is the
gathering of foreign intelligence and not making a case against an
individual. We commend this Committee for its commitment to vigorous
oversight of the effect of those Patriot Act changes and urge that
consideration of further expansions of FISA authority, such as are
contained in HR 3179, await the Congress' examination of those
sunsetted provisions of the Patriot Act next year.
a. lone wolf amendment (hr 3179 sec. 4).
The first such amendment would authorize FISA surveillance against
non-US persons with no showing that they are acting on behalf of a
foreign terrorist organization or government. This amendment tracks the
first section of the leaked draft of the Justice Department's Domestic
Security Enhancement Act of 2003 (Patriot II), although that draft
would extend the provision to citizens. The provision is
unconstitutional and unnecessary. While this provision has been
described as the ``Moussaoui fix,'' that rationale has been discredited
by the Joint Inquiry of the Intelligence Committees. Nor is the
amendment needed to allow surveillance of ``lone wolf terrorists.'' As
FBI officials have admitted, the government already has all the
authority it needs to conduct surveillance of the individuals described
as ``lone wolf'' terrorists.
Eliminating the foreign power nexus will render FISA surveillance
unconstitutional. The amendment is fundamentally inconsistent with the
Constitution because it would authorize FISA surveillance against
individuals with no showing that they are acting on behalf of a foreign
terrorist organization or government. In doing so, the amendment would
eliminate the constitutional requirement that the lesser standards and
privacy protections authorized for FISA surveillance be limited to use
against foreign powers and their agents.\1\ See In re Sealed Case No.
02-001, slip op. at 42 (Foreign Intelligence Surveillance Ct. of Rev.
Nov. 18, 2002). While FISA requires no showing of probable cause of
crime, it is constitutional in part because it provides ``another
safeguard . . . that is, the requirement that there be probable cause
to believe the target is acting `for or on behalf of a foreign power.'
'' \2\ Indeed, adoption of the amendment could undermine criminal
prosecutions of terrorists because the information obtained from a FISA
surveillance under these procedures may well be ruled inadmissible.
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\1\ ``Such (FISA) surveillance would be limited to a `foreign
power' and `an agent of a foreign power.''' Senate Report (Judiciary
Committee) No. 95-604 (I and II), November 15, 22, 1977 [To accompany
S. 1566], at 16.
\2\ This holding was essential to the review court's holding that
``FISA as amended is constitutional because the surveillances it
authorizes are reasonable.'' In re Sealed Case No. 02-001, slip op. at
56. Even a court with the broadest view of the government's
surveillance power has found the requirement that the government show
probable cause that a target is acting for a foreign power to be
constitutionally based.
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Not a ``Moussaoui Fix'' or otherwise necessary. This amendment has
been described as necessary to provide a so-called ``Moussaoui fix.''
Zacarias Moussaoui was detained three weeks prior to September 11 on
suspicions of terrorist activity, but FBI field agents were rebuffed by
headquarters in their efforts to obtain a FISA warrant to search his
computer. Initially, the FBI claimed that they were not able to obtain
a warrant because of the requirement to demonstrate a link to a foreign
power. However, the Joint Inquiry of the Intelligence Committees
concluded that the failure to seek a warrant to search Moussaoui's
computer was the result of FBIHQ personnel misunderstanding the law.\3\
Since the problems that the FBI experienced during the FISA application
process resulted from ``misunderstanding'' the law, there is no need
for a legislative ``Moussaoiu fix.'' Current law does not require that
an individual be connected to a recognized terrorist group, but only to
at least one other individual engaged in planning terrorist activities
in order to meet constitutional standards. Even if a legislative
clarification of the ``agent of a foreign power'' requirement were
deemed advisable, this amendment performs surgery with a butcher knife
instead of a scalpel.
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\3\ ``However, personnel at FBI Headquarters . . . misunderstood
the legal standard for obtaining an order under FISA.'' Final Report,
Inquiry of the Joint Intelligence Committees, Finding 5f.
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As pointed out by Senators Leahy, Grassley and Specter, the Justice
Department has not provided a single case, even in classified form,
where the absence of this provision resulted in the FBI being unable to
conduct necessary surveillance. As those Members said, ``In short, DOJ
sought more power but was either unwilling or unable to provide an
example as to why.'' \4\
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\4\ Sens Leahy, Grassley and Specter, Interim Report on FBI
Oversight in the 107th Congress by the Senate Judiciary Committee: FISA
Implementation Failures, Feb. 2003 at 11 n. 4.
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Lone Wolf Terrorists Can Be Investigated With Existing Criminal
Authority. Lone wolf terrorists are a problem that can be handled by
the criminal justice system. If investigators possess reliable
information that an individual is preparing to commit an act of
terrorism, they have all the authority they need to get a criminal
surveillance warrant. There is no need to use FISA. As Senator
Rockefeller has pointed out:
``If we know for certain a person really has no foreign
connections, if he or she is a true `lone wolf'--a foreign
`Unabomber,' for example--then it is a straightforward criminal
investigation. There is no foreign intelligence to be gotten at
all, and that person is not a valid target under FISA.'' \5\
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\5\ Consideration of S. 113, United States Senate, May 8, 2003.
Indeed, the FBI has admitted that that they do not need this change to
get the warrants they need to protect against lone wolf attacks.\6\
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\6\ ``In private briefings, even FBI representatives have said that
they do not need this change in the law in order to protect against
terrorism. They are getting all the warrants they want under the
current law.'' Senate Report 108-40, at 12, Additional views by
Senators Leahy and Feingold. See also exchange between FBI Deputy
General Counsel Bowman and Senator Graham, Hearing of Senate Select
Intelligence Committee, July 31, 2002.
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This violation of Fourth Amendment standards could soon be made
applicable to citizens. The Fourth Amendment's protections apply to
searches and seizures in the U.S. and protect those who are voluntarily
here without regard to their citizenship.\7\ If the lesser standards
for secret searches and surveillance embodied in this amendment were to
be deemed constitutional by the Congress and the Executive, they would
be deemed constitutional when applied to citizens. Indeed the Justice
Department proposed applying the lone wolf amendment to citizens in the
draft of Patriot II.
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\7\ See Abel v. United States, 362 U.S. 217 (1960), in which the
Supreme Court applied the Fourth Amendment to the government's search
of a KGB colonel, who came to the U.S. as a Soviet spy.
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Treating ``Lone Wolfs'' as National Security Threats is Counter-
Productive. Finally, encouraging the use of valuable and already scarce
investigative resources under FISA to target individuals acting alone
increases the risk not only of increased surveillance based on
religious or political activities, but also that once again, the FBI
will miss those truly dangerous individuals, who because they act in
concert with other terrorists are thereby capable of inflicting grave
damage to our national security, rather than ordinary, even though
murderous crimes.
Alternative amendment. In the Senate, Senators Feinstein and
Rockefeller, introduced an amendment, that would, in our view, address
the concerns that have been raised by the government, while leaving in
place the agent of a foreign power requirement that is essential to the
constitutionality of the statute. The Feinstein-Rockefeller substitute
states that when considering an application for surveillance of a non-
US person, ``the court may presume that a non-United States person who
is knowingly engaged in sabotage or international terrorism, or
activities that are in preparation therefor, is an agent of a foreign
power under section 101(b)(2)(C).'' This language would preserve the
requirement that the FISA only applies to agents of a foreign power and
provide the court with some discretion regarding the designation of
individual terrorists as agents of a foreign power.
b. section 6: allowing secret use of the fruits of secret surveillance
in immigration proceedings.
The second amendment to FISA included in HR 3179 would allow the
government to introduce in evidence or otherwise use the fruits of
secret FISA surveillance in any immigration proceeding without telling
the individual that he had been overheard or subjected to a secret
search, in violation of basic due process requirements. The government
already has this authority in cases of alleged ``alien terrorists'' per
the 1996 Alien Terrorist Removal Proceedings provisions. This proposed
amendment would extend those provisions--deemed constitutionally
suspect by this Committee in the past--to all immigration proceedings
against anyone including permanent residents and others lawfully here.
Section 6 would eliminate the current requirement in FISA that the
government notify individuals whenever it intends to use evidence
obtained through FISA in immigration proceedings. It would allow the
government to use the fruits of secret electronic surveillance,
physical searches or pen registers to deport individuals without ever
informing them that they have been subject to such surveillance or
searches, without allowing any opportunity to challenge the legality of
the surveillance, and most importantly deprive individuals of the right
to challenge the veracity and validity of the information through
cross-examination. The government already has the authority to do all
this in the case of individuals alleged to be alien terrorists, under
the 1996 amendments establishing the Alien Terrorist Removal
Proceedings. 8 U.S.C. sec. 1531-1537. HR 3179 would extend this
authority, of dubious constitutionality even when applied against
suspected terrorists, to any individual, including legal permanent
residents, without even the minimal safeguards provided in the 1996
law.
In doing so, the amendment would violate fundamental due process
rights. As the Judiciary Committee recognized in passing the Secret
Evidence Repeal Act in 2000, the Supreme Court has ruled that ``There
are literally millions of aliens within the jurisdiction of the United
States. The fifth amendment, as well as the 14th amendment, protects
every one of these persons from deprivation of life, liberty, or
property without due process of law. Even one whose presence in this
country is unlawful, involuntary or transitory is entitled to
constitutional protection.'' Matthews v. Diaz, 426 U.S. 67, 77
(1976).\8\
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\8\ See H.R.Rep. No. 106-981, Secret Evidence Repeal Act of 2000,
106th Cong., 2nd Sess. (Oct. 18, 2000).
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It is important to note that current law already provides only
minimal procedural protections whenever the government intends to
``enter into evidence, or otherwise use or disclose'' information
obtained from FISA electronic surveillance or physical searches in any
court proceeding against a person whose conversations were overheard or
whose house or office was searched pursuant to FISA, 50 U.S.C. sec.
1806(c), 1825(d) and as noted above, these minimal protections are only
available to individuals not alleged to be ``alien terrorists.'' 8
U.S.C. sec. 1534(e).
Indeed, rather than further eroding existing minimal due process
protections, especially in light of the Patriot Act's substantial
expansion of FISA authorities to allow secret surveillance when the
government's primary purpose is not foreign intelligence gathering, but
making a case against an individual, Congress should consider how to
bring the use of FISA information in line with basic due process
requirements in all proceedings, both civil and criminal. One way to do
this would be to insure that FISA information is treated like all other
kinds of classified information and make the provisions of the
Classified Information Procedures Act applicable to FISA information,
instead of the much less protective provisions currently in FISA.
But, allowing the government to introduce in evidence or otherwise
use the fruits of FISA surveillance in any immigration proceedings
without telling the individual that he had been overheard on electronic
surveillance or subjected to a secret search, as proposed in HR 3179
would be a fundamental violation of both the Fourth Amendment and
constitutional due process requirements. FISA wiretaps and physical
searches are at the core of the Fourth Amendment's protection against
unreasonable searches and seizures and that protection applies to all
persons found within the U.S.\9\ The law has never permitted the
government to conduct secret wiretaps or searches of individuals and
then secretly use the fruits of such secret surveillance and searches
against him without even informing him that he has been overheard or
searched.
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\9\ See Abel v. United States, 362 U.S. 217 (1960), in which the
Supreme Court applied the Fourth Amendment to the government's search
of a KGB colonel, who came to the U.S. as a Soviet spy.
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There is no need to exempt immigration proceedings from the current
rules regarding the use of FISA information because those rules already
protect against the disclosure of sensitive information, even in
proceedings not involving alleged alien terrorists. Current FISA law
requires the government to notify an individual that he has been
targeted under FISA only when it seeks to use the information against
him. The government is not required to disclose anything more than the
existence of the FISA surveillance unless it either seeks to introduce
FISA information into evidence or the information is required to be
disclosed to the defendant under the Brady exculpatory evidence rule.
Even then, of course, all the government provides to the defendant is a
record of his own telephone conversations or a copy of his own papers.
The government is not required to disclose and, it appears, has never
disclosed the application for a FISA warrant to anyone. Indeed,
information obtained under FISA is accorded much greater secrecy than
any other kind of classified information is accorded under the
Classified Information Procedures Act (or, in our view, than is
consistent with constitutional due process requirements).
It is especially important that the existing minimal protections
are available when the government seeks to use FISA information to
deport an individual. There are many fewer due process protections
available in immigration proceedings than in criminal proceedings, even
though immigration proceedings may result in substantial deprivations
of liberty. Given the relaxed hearsay and due process requirements
already existing in immigration proceedings, this amendment would
enable the government to use FISA information against an individual
with no check as to whether the information was illegally obtained and,
even more significantly, absolutely no check as to the accuracy or
reliability of the information itself.
Article submitted by the Honorable Sheila Jackson Lee, a Representative
in Congress from the State of Texas
Subcommittee letter to Thomas J. Harrington requesting responses to
post-hearing questions
Subcommittee letter to Thomas J. Harrington requesting responses to
post-hearing questions
Post-hearing questions \1\ for the Honorable Daniel J. Bryant from the
Subcommittee on Crime, Terrorism, and Homeland Security
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\1\ Responses to these questions had not been received at the time
of the printing of this hearing.
Post-hearing questions \2\ for the Honorable Daniel J. Bryant from the
Honorable Robert C. Scott, a Representative in Congress from the State
of Virginia
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\2\ Responses to these questions had not been received at the time
of the printing of this hearing.
Post-hearing questions \3\ for the Honorable Daniel J. Bryant from the
Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan
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\3\ Responses to these questions had not been received at the time
of the printing of this hearing.