[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

                              ----------                              


                         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.
---------------------------------------------------------------------------
    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

                              ----------                              


               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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \8\ See H.R.Rep. No. 106-981, Secret Evidence Repeal Act of 2000, 
106th Cong., 2nd Sess. (Oct. 18, 2000).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \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
---------------------------------------------------------------------------
    \3\ Responses to these questions had not been received at the time 
of the printing of this hearing.





                                 
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