[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 IMPLEMENTATION OF THE USA PATRIOT ACT: EFFECT OF SECTIONS 203(B) AND 
                       (D) ON INFORMATION SHARING

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 19, 2005

                               __________

                           Serial No. 109-15

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary


                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
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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
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             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

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                      Jay Apperson, Chief Counsel

            Elizabeth Sokul, Special Counsel on Intelligence

                         and Homeland Security

                 Jason Cervenak, Full Committee Counsel

                 Michael Volkov,  Deputy Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 19, 2005

                           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 Michael T. McCaul, a Representative in Congress 
  from the State of Texas
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6
Ms. Maureen Baginski, Executive Assistant Director, Office of 
  Intelligence, Federal Bureau of Investigation
  Oral Testimony.................................................     9
  Prepared Statement.............................................    11
Mr. Barry Sabin, Chief, Counterterrorism Section for the Criminal 
  Division, U.S. Department of Justice
  Oral Testimony.................................................    15
  Prepared Statement.............................................    18
Mr. Timothy H. Edgar, National Security Policy Counsel, American 
  Civil Liberties Union
  Oral Testimony.................................................    23
  Prepared Statement.............................................    25

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    57
Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California........    57
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas.............    59
Brief Amicus Curiae of the American Civil Liberties Union of 
  Virginia, Inc. in Support of Motion for Return of Property and 
  to Unseal the Search Warrant Affidavit.........................    62

 
 IMPLEMENTATION OF THE USA PATRIOT ACT: EFFECT OF SECTIONS 203(B) AND 
                       (D) ON INFORMATION SHARING

                              ----------                              


                        TUESDAY, APRIL 19, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 3:03 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good afternoon, ladies and gentlemen. We will 
come to order. Today is the second hearing in a series of ten 
in which the Judiciary Committee will review the provisions of 
the USA PATRIOT Act set to expire on December 31 of this year.
    Prior to the terrorist attacks of 9/11, the Federal 
Government understood that information sharing between 
Government agencies was essential for national security. 
Executive Order 12333, issued in 1981, explains timely and 
accurate information about the activities, capabilities, and 
plans and intentions of foreign powers, organizations, and 
persons and their agents, is essential to the national security 
of the United States.
    All reasonable and lawful means must be used to ensure that 
the United States will receive the best intelligence available. 
Unfortunately, achieving information sharing has been 
difficult, due to court-created restrictions, statutory 
prohibitions, and a resulting atmosphere of apprehension within 
the agencies charged with protecting our national security.
    The 9/11 attacks made clear to all of us that civil 
liberties are endangered if the Government does not have the 
capacity to protect its people. Many, including the 9/11 
Commission, pointed to the lack of information sharing as 
affecting the Government's ability to stop the 9/11 attacks. It 
is the responsibility of the Congress, it seems to me, to 
ensure that information sharing is facilitated in order to 
protect our civil liberties.
    The attacks of September 11, 2001, clarified the immediate 
need for agencies to cooperate and share intelligence and law 
enforcement information. The USA PATRIOT Act began that process 
to allow information to be more freely shared, but the 
Committee on the Judiciary did not stop there. It passed 
additional legislation to assure that this vital information 
was provided to appropriate officials to protect our national 
security.
    The Committee passed the Homeland Security Information 
Sharing Act and the Federal-Local Information Sharing 
Partnership Act of 2001, to remove the barriers for state and 
local officials to share and receive law enforcement and 
intelligence information with Federal officials. These two 
bills were added to the Homeland Security Act, which became law 
in 2002.
    With these improvements, Congress understood the need for 
extensive oversight, and the Judiciary Committee continues to 
meet this mandate. Congress, and this Committee in particular, 
recognize that the Government must have the ability to protect 
our Nation after 9/11 and, with this heavy responsibility, the 
Congress must continue to protect civil liberties.
    As part of the USA PATRIOT Act, the Congress included a 
sunset provision on certain new authorities in the Act. Two of 
these provisions, section 203(b) and 203(d), improved 
information sharing, but are due to expire on December 31 of 
this year, unless the Congress reauthorizes them.
    Today, we will hear testimony on the need for these 
sections and on the concerns relating to information sharing 
between the Intelligence Community and law enforcement.
    And I think I would be remiss, ladies and gentlemen, if I 
did not mention the fact that today marks the tenth anniversary 
of the devastating and inexcusable terrorist attack that 
occurred in Oklahoma City; at that time, the most severe 
terrorist attack that this country had endured, only to be 
surpassed by the 9/11 attacks. So it is my hope that we don't 
have to acknowledge subsequent attacks. But that will be for 
another day, I presume.
    I look forward to hearing the testimony from our 
distinguished panel and witnesses, and look forward as well to 
hearing from our 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 subsections 203(b) and (d) of 
the USA PATRIOT Act, and join you in acknowledging the tenth 
anniversary of the attack; which reminds us of the importance 
of the work that we're doing.
    We sunsetted both of those subsections, 203(b) and (d), 
along with a number of other provisions that were--because we 
were exposing the public to extraordinary Federal Government 
police powers enabling them to pry into individuals' private 
activities and spread information collected all over town 
without direct court supervision and oversight.
    Our Country's founders are leery--were leery of Government 
power, particularly in the area of criminal law, so checks and 
balances were made an integral part of the criminal justice 
system, to ensure that people would be secure against 
unwarranted Government intrusion into their private properties 
and affairs, and that Government could not easily prove crimes 
against accused persons or accomplish a similar result by use 
of Government powers to harass or smear a citizen.
    Today, with the cost of legal representation and the 
contingent of media eager to exploit sensationalism, mere 
suspicion or investigation of a crime can result in as much 
problems that our founders sought to protect us against. We 
will hear examples of this kind of extraordinary Government 
power from one of our speakers today.
    Mr. Chairman, as a compromise on not getting the level of 
judicial supervision and oversight many of us felt were 
warranted in connection with the extension of these 
extraordinary powers, by unanimous vote of the full Committee 
we voted to sunset these provisions after 2 years. This would 
allow us to exercise congressional oversight of these 
extraordinary powers within a short period of time. However, 
against the might of the Administration and the Senate, we 
ended up with a 4-year sunset.
    And while I expect we will hear testimony about how useful 
the provisions have been, we still may not know a lot of what's 
going on, or what percentage has been useful, or what has been 
made of it, or what is being done with the information 
collected, or how long it will be kept, whether it's used or 
unused.
    I look forward to the testimony of our witnesses and the 
light they will shed on these issues, and thank you, Mr. 
Chairman.
    Mr. Coble. I thank the gentleman. Ladies and gentlemen, 
it's the practice of the Subcommittee to swear in all witnesses 
prior to appearing before it, so if you would please stand and 
raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative. And you may be seated.
    Our first witness today is our colleague, Mr. Michael T. 
McCaul, Congressman from the Tenth District of Texas. Prior to 
beginning his career in Congress, Mr. McCaul served as Chief of 
Counterterrorism and National Security for the U.S. Attorney's 
Office in the Western Judicial District of Texas. He received 
his bachelor's degree from Trinity University, and his law 
degree from Saint Mary's University School of Law, and is a 
graduate of the Senior Executive School of Government at 
Harvard University.
    Our second witness is Maureen A. Baginski, Executive 
Assistant Director of the FBI Office of Intelligence. Prior to 
joining the FBI, Ms. Baginski led the National Security 
Agency's Signals Intelligence Directorate. Ms. Baginski holds a 
master of arts degree in Slavic languages, and a bachelor of 
arts degree in Russian and Spanish, from the State University 
of New York in Albany.
    Our next witness is Mr. Barry M. Sabin. Mr. Sabin is the 
Chief of the Counterterrorism Section for the Criminal Division 
of the Justice Department. Prior to beginning this role, Mr. 
Sabin served in the United States Attorney's Office in Miami, 
Florida. And Mr. Sabin received his bachelor's and master's 
degrees from the University of Pennsylvania, and his law degree 
from the New York University School of law.
    Our final witness today is Mr. Timothy H. Edgar, the 
National Security Policy Counsel for the American Civil 
Liberties Union. Mr. Edgar was a law clerk for Judge Sandra L. 
Lynch, of the United States Court of Appeals for the First 
Circuit. He is a graduate of Dartmouth College and the Harvard 
Law School.
    I guess you survived those severe winters in New Hampshire; 
did you, Mr. Edgar?
    Mr. Edgar. Yes, I did, Mr. Chairman.
    Mr. Coble. Ladies and gentlemen, we're delighted to have 
each of you here. We impose the 5-minute rule here against you 
all, and against us. So when you see that amber light, that is 
your warning that the clock is ticking. And the red light, of 
course, indicates that the 5 minutes have elapsed. We advise 
you of that in advance, so you won't be surprised. So if you 
all could adhere to the 5-minute rule, we would be 
appreciative.
    And I'm pleased to recognize our colleague from Texas, Mr. 
McCaul.

       TESTIMONY OF THE HONONORABLE MICHAEL T. McCAUL, A 
       REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

    Mr. McCaul. Well, thank you, Mr. Chairman and Ranking 
Member Scott, for giving me the opportunity to appear before 
you today and share with you my experiences in this on this 
very important issue. This is really why I ran for Congress, to 
ensure that our laws give law enforcement the tools they need 
to protect our Nation. My experience in the Justice Department 
prior to running for Congress, I believe, is relevant, and 
hopefully will provide some insight to the Committee.
    When we talk about information sharing, when we talk about 
sharing between the criminal division in the Justice Department 
and the Intelligence Community, and from intelligence to the 
criminal side, I'd be remiss if I didn't talk about the law.
    I served as a career prosecutor in the public integrity 
section at main Justice when the so-called ``wall'' between the 
criminal division and the FBI's foreign counterintelligence 
section was in place. After 9/11, I served as Chief of 
Counterterrorism in the U.S. Attorney's Office in Texas. My 
jurisdiction included the President's ranch, the State capitol, 
and the Mexican border.
    I practiced law under the PATRIOT Act--including the ones 
which brought down the wall and the information sharing 
provisions we're discussing today. Also, prior to that, I 
served as deputy attorney general under then attorney general 
and now United States Senator John Cornyn.
    I'd like to take us back to 1995, and I know that you're 
familiar with this memo. But at that time, the United States 
Attorney General adopted policies and procedures for contacts 
between the FBI and the criminal division concerning foreign 
counterintelligence investigations. This policy essentially 
prohibited the criminal division from controlling or directing 
FCI investigations. Eventually, these procedures would be 
narrowly interpreted to act as a wall between the FBI 
intelligence officials from communicating with the criminal 
division.
    As noted by the 9/11 Commission report, this wall may have 
created a climate that helped contribute to 9/11. Indeed, an 
FBI agent testified that efforts to conduct a criminal 
investigation of two of the hijackers were blocked due to 
concerns over the wall.
    Frustrated, he wrote to FBI headquarters saying, ``Some 
day, someone will die and, wall or not, the public will not 
understand why we were not more effective at throwing every 
resource we had at certain problems. Let's hope the National 
Security Law Unit will stand behind their decisions then, 
especially since the biggest threat to us now, Osama bin Laden, 
is getting the most protection.'' Now, these words are 
prophetic today.
    Another good illustration of the wall creating a dangerous 
confusion is the case of Wen Ho Lee and the Los Alamos 
investigation. The first time the Chief of Counter Espionage in 
the Justice Department even heard of Wen Ho Lee was when he 
read about him in the ``New York Times.''
    And indeed, in my own experience, I was assigned to 
investigate allegations that China attempted to corrupt and 
influence our elections. With the cooperation of witnesses, we 
were able to uncover some evidence that the director of Chinese 
intelligence may have funneled money to influence the 
presidential election. The frustration, however, came from the 
lack of coordination and communication with the foreign 
counterintelligence side of the house, particularly when our 
criminal investigation moved into the intelligence arena.
    Ultimately, these examples portray an inefficient system in 
which the left hand literally did not know what the right hand 
was doing.
    Today, thanks to the PATRIOT Act, this wall has come down. 
The PATRIOT Act helps us connect the dots, by removing the 
legal barriers that prevented law enforcement and the 
Intelligence Community from sharing information and 
coordinating to protect national security.
    My own experience in the Justice Department after the wall 
came down was profound and dramatically improved. As chief of 
counterterrorism, I spearheaded the efforts of the Joint 
Terrorism Task Force. No longer did the barriers of 
communication exist. Indeed, the FBI's foreign 
counterintelligence agents and the Intelligence Community were 
full partners at the table. And for the first time, FBI 
intelligence files were reviewed by criminal division 
prosecutors and agents.
    In addition, criminal files and grand jury materials, 
previously non-disclosable under rule 6(e), were now available 
in intelligence and terrorist cases. Our greatest task was to 
identify and locate the terrorist cells, and one of the tools 
we used to achieve this goal was through the use of national 
security wiretaps, or FISAs.
    In addition to FISAs, the PATRIOT Act, in my view, provides 
many other tools necessary for law enforcement in the war on 
terrorism. First, it updates the law to the modern technology 
age. Second, it promotes efficiency by providing for nation-
wide search warrants in terrorism cases. And finally, the 
PATRIOT Act takes laws which we've long applied to drug dealers 
and organized crime, and applies them to terrorists.
    While most of the matters I worked on since the PATRIOT Act 
in the U.S. Attorney's Office remain classified, one example I 
can talk about where the provisions in the PATRIOT Act were 
extremely helpful was in a case involving allegations of a 
terrorist attack on the Fourth of July, 2003.
    Mr. Coble. Your 5 minutes are up, Mr. McCaul, if you could 
wrap up.
    Mr. McCaul. Mr. Chair, if I could just ask for an 
additional 2 minutes, as a Member?
    Mr. Coble. Very well.
    Mr. McCaul. I appreciate it. In late June--because I 
believe this story is compelling. In late June, we received 
intelligence from overseas from a specific and credible source 
that a terrorist attack was going to occur on the Fourth of 
July in the State of Texas. At the same time, we also received 
e-mails from an Internet chat room from an individual named 
``Apostasy Hears Voices'' who threatened to commit terrorist 
acts at numerous locations throughout the United States.
    The voice stated, ``I have planned a little event for the 
Fourth of July. Roasted Americans on Independence Day. It will 
be the second largest terrorist demonstration in U.S. 
history.'' He described himself as having the name ``Ali 
Aussie,'' a student at the University of Texas who had been on 
a mission for 4 years on a student visa as a member of a cell.
    He stated that each cell acts independently for the most 
part, so that if one cell gets caught, the other cells are not 
compromised; which is consistent with how Al Qaeda operates. He 
concluded with the following words, ``I did enjoy watching 
Americans burn alive in the World Trade Center event, barbecued 
Americans.''
    You can imagine in our office getting this information in 
conjunction with a threat alert that came from overseas. The 
JTTF went quickly into action, sharing intelligence information 
and coordinating with multiple jurisdictions.
    By utilizing the PATRIOT Act, I was able to save valuable 
time by obtaining a national search warrant for electronic 
evidence for terrorist-related activities. Given the urgency of 
the matter and potential loss of human life, time was critical 
and of the essence. These provisions allowed us to execute the 
search warrants on the Internet service provider to obtain the 
information in real time.
    Once we received the information, an arrest warrant was 
executed on the 3rd of July, just one day before the alleged 
planned attack. The defendant was charged with violating 
Federal law by using the Internet to make threats and to kill 
or injure persons.
    Fortunately, the threat turned out to be a hoax. But it had 
been a real threat, and we had to assume that it was. And had 
it been a real threat, we would have saved lives. And that, in 
my judgment, is what the PATRIOT Act is all about: protecting 
and saving lives.
    And in closing, Mr. Chairman, I can envision no bigger 
national security mistake than to go back to the way things 
were. Thank you.
    [The prepared statement of Mr. McCaul follows:]

         Prepared Statement of the Honorable Michael T. McCaul

    I would like to thank Chairman Coble and Ranking Member Scott for 
allowing me to testify before this Subcommittee in support of the USA 
PATRIOT Act.
    My experience in the Justice Department prior to running for 
Congress is, in my opinion, relevant to this discussion and I would 
like to offer any insight and perspectives that may be helpful to this 
Committee. I served as a career prosecutor in the Public Integrity 
Section at Main Justice when the so called ``Wall'' between the 
Criminal Division and the FBI's Foreign Counter Intelligence was in 
place. After 9/11, I served as the Chief of Counter-Terrorism and 
National Security for the U.S. Attorney's office in the Western 
District of Texas. My jurisdiction included the President's ranch, the 
State Capitol, and the Mexican border. In that capacity, I practiced 
law under the USA PATRIOT Act provisions, including the one which 
brought down the ``Wall.'' I also served as Deputy Attorney General 
under then Attorney General and now United States Senator John Cornyn.
    In 1995, the Attorney General adopted policies and procedures for 
Contacts between the FBI and the Criminal Division Concerning Foreign 
Counterintelligence investigations (``FCI''). This policy prohibited 
the Criminal Division from ``directing or controlling'' FCI 
investigations. Eventually these procedures would be narrowly 
interpreted to act as a ``wall'' to prevent FBI Intelligence officials 
from communicating with the Criminal Division.
    As noted by the 9/11 Commission report, this wall may have created 
a climate that helped contribute to 9/11. An FBI agent testified that 
efforts to conduct a criminal investigation of two of the hijackers 
were blocked due to concerns over the ``wall.'' Frustrated, he wrote to 
FBI headquarters, ``Someday someone will die--and wall or not--the 
public will not understand why we were not more effective and throwing 
every resource we had at certain problems. Let's hope the National 
Security Law Unit will stand behind their decisions then, especially 
since the biggest threat to us now [Osama Bin Laden], is getting the 
most protection.''
    Another good illustration of the wall creating dangerous confusion 
is in the case of Wen Ho Lee and the Los Alamos investigation. The 
first time the Chief of the Counter-Espionage Section in the Justice 
Department heard about the Wen Ho Lee case was when he read about it in 
the New York Times.
    Indeed, in my own experience, I was assigned to investigate 
allegations that China attempted to corrupt and influence our 
elections. With the cooperation of witnesses, we were able to uncover 
some evidence that the Director of Chinese Intelligence may have 
funneled money to influence the Presidential election. The frustration 
came from the lack of coordination and communication with the foreign 
counterintelligence side of the house particularly when our criminal 
investigation moved into the intelligence arena.
    Ultimately, these examples portray an inefficient system in which 
the left hand did not know what the right hand was doing.
    As stated by the FISA Court of Review, ``Indeed effective 
counterintelligence, we have learned, requires the wholehearted 
cooperation of all the government's personnel who can be brought to the 
task--A standard which punishes such cooperation could well be thought 
dangerous to national security.''
    Today, thanks to the Patriot Act, that wall has come down. The 
PATRIOT Act helps us ``connect the dots'' by removing the legal 
barriers that prevented law enforcement and the intelligence community 
from sharing information and coordinating activities in the common 
effort to protect national security. It dismantled the walls of 
separation and enabled a culture of cooperation that is essential to 
our integrated antiterrorism campaign. The President and the Attorney 
General recognized that without the ability to share information, 
including intelligence, we risked the very survival of this nation.
    As stated by Senator Leahy, ``This bill breaks down traditional 
barriers between law enforcement and foreign intelligence. This is not 
done just to combat international terrorism, but for any criminal 
investigation that overlaps a broad definition of ``foreign 
intelligence.''
    My experience in the Justice Department after the wall came down 
was profound and dramatically improved. As Chief of Counter-Terrorism I 
spearheaded the efforts of the Joint Terrorism Task Force. No longer 
did the barriers of communication exist. Indeed, the FBI's foreign 
counterintelligence agents and the intelligence community were full 
partners at the table. For the first time, FBI intelligence files were 
reviewed by Criminal Division prosecutors and agents. In addition, 
criminal files and grand jury materials, previously non-disclosable 
under Rule 6(e) were now available in intelligence cases. Our greatest 
task was to identify and locate the terrorist cells. One of the tools 
we used to achieve this goal was through the use of National Security 
Wiretaps or FISAs (Foreign Intelligence Surveillance Act).
    Many of the crimes prosecuted in the Justice Department may not 
appear to be ``terrorist'' related. They include fraudulent documents, 
alien smuggling, money laundering, as well as weapons and drug 
violations. For instance, in the case of Ramzi Yousef, the perpetrator 
of the '93 World Trade Center Bombing; if we had pursued his 
immigration violation as aggressively as it would be today, perhaps the 
first Al Qaeda cell in the United States would have been disrupted.
    In addition to FISAs, the Patriot Act provides many other tools for 
law enforcement in the war on terrorism. First, the PATRIOT Act updated 
the law to the technology. No longer will we have to fight a digital-
age battle with antique weapons--legal authorities left over from the 
era of rotary telephones.
    Next, it promotes efficiency by providing for nationwide search 
warrants in terrorism cases. Prosecutors and investigators save 
valuable time because they are able to petition the local federal judge 
who is most familiar with the case and who is overseeing the nationwide 
investigation.
    While most of the matters I worked on since the PATRIOT Act remain 
classified, one example where these provisions in the PATRIOT Act were 
extremely helpful was in a case involving allegations of a terrorist 
attack on July 4th, 2003. In late June, we received intelligence from a 
specific and credible source that a terrorist attack was going to occur 
on the 4th of July in the State of Texas. At the same time, we also 
received E-mails from an internet chat room from an individual named 
``Apostasy Hears Voices'' who threatened to commit terrorist act at 
numerous locations throughout the United States as a member of an 
unknown terrorist cell. Specifically, the individual threatened that on 
the 4th of July 2003, significant locations in Austin, Texas, 
Washington D.C., New York, Miami, Charlotte, San Francisco, Seattle, 
and Portland would be attacked by terrorists. The Voice stated, ``Well 
I have planned a little event for July 4th . . . Roasted Americans on 
Independence Day. It will be the second largest terrorist demonstration 
in U.S. history.'' He described himself as having the name ``Ali 
Aussie'' a student a the University of Texas who has been on a 
``mission'' for four years on a student visa as a member of a cell. He 
stated that ``each cell acts independently for the most part so that if 
one cell gets caught, the other cells are not compromised which is 
consistent with how Al Qaeda operates. He concluded with the following 
words, ``I did enjoy watching Americans burn alive in the WTC event, 
BBQ Americans.''
    The JTTF quickly went into action sharing intelligence, information 
and coordinating with multiple jurisdictions. By utilizing the Patriot 
Act provisions 18 U.S.C. 2702 s 219, 220, I was able to save valuable 
time by obtaining a national search warrant for electronic evidence for 
terrorist related activities.
    Given the urgency of the matter and potential loss of human life, 
time was critical and of the essence. These provisions allowed us to 
execute search warrants on the internet service provider to obtain 
subscriber information in real time. Once we received the information, 
an arrest warrant was obtained and the defendant was arrested on July 
3rd, one day before the alleged planned attack. The defendant was 
charged with violating 18 U.S.C. 844(e) by using the internet to makes 
threats to kill or injure persons by an explosive device. Fortunately, 
the threat turned out to be a hoax. But had it been a real threat, and 
we have to assume they all are, we would have saved lives. And that in 
my judgment is what the Patriot Act is all about--protecting and saving 
lives.
    There has been much talk from critics of the PATRIOT Act regarding 
allowing many of the information sharing provisions in the law. Having 
served under its provisions before and after the bringing down of the 
``Wall'' and the implementation of the PATRIOT Act, I can envision no 
bigger National security mistake than to go back to the way things 
were. Section 203(b) closed a dangerous gap between criminal 
investigations and counterterrorism. Each restriction on information 
sharing makes it more difficult for investigators to connect the dots 
to prevent terrorist attacks. If this section were to expire, US 
officials would be allowed to share certain foreign intelligence 
information with foreign intelligence services like MI-5 and the Massad 
but not with our own CIA.
    This section has been used by the Department of Justice on a 
regular basis and has been instrumental to the increased coordination 
and information sharing between intelligence and law enforcement that 
has taken place over the last three and a half years. This provision 
has been used to help officials break up terror cells within the US, 
such as in Portland, Oregon and Lackawanna, NY.
    The FBI has stated that thanks to 203(d), agents can involve other 
agencies in investigations, resulting in the type of teamwork that 
enables more effective and responsive investigations, improves use of 
resources, allows for follow up investigations by other agencies when 
the criminal subject leaves the US, and helps prevent the compromise of 
foreign intelligence investigations.
    Finally, the PATRIOT Act takes laws which have long-applied to drug 
dealers and organized crime, and applies them to terrorists. For 
example, for years law enforcement has been able to use roving 
wiretaps, which follow all communications used by a suspect as opposed 
to just one telephone line. The PATRIOT Act simply authorizes the use 
of this technique in national-security intelligence investigations and 
amends the Foreign Intelligence Surveillance Act to conform to the 
parallel provision found in the Federal Wiretap Statute.
    Contrary to critics' assertions, the Justice Department cannot do 
anything without court supervision. The USA PATRIOT Act does not 
abrogate the role played by the judiciary in the oversight of the 
activities of federal law enforcement. Federal agents still have to 
obtain judicial approval before they can search a residence. Federal 
agents still have to obtain judicial approval before they can install a 
wiretap.
    I'd like to leave you with the following words:
    The confrontation that we are calling for with the apostate regimes 
does not know Socratic debates Platonic ideals nor Aristotle diplomacy. 
But it does know the dialogue of bullets, the ideals of assassination, 
bombing, and destruction, and the diplomacy of the cannon and machine-
gun. Islamic governments have never and will never be established 
through peaceful solutions and cooperative councils. They are 
established as they always have been through pen and gun--by word and 
bullet--and by tongue and teeth. This is the preface to the Al Qaeda 
Training Manual.
    These words demonstrated the widely held belief that the question 
is not if the terrorists will strike us again, but rather when and 
where.
    Thomas Jefferson once said that ``the cost of freedom is eternal 
vigilance.'' Those words ring more true today than ever before.
    We owe it to the citizens of this country to reauthorize the USA 
PATRIOT Act. For if we don't, and another terrorist attack occurs on 
our shores, we will all be held accountable.

    Mr. Coble. I thank the gentleman. Now that the door is 
ajar, I am going to be obliged to give you all 7 minutes, as 
well. If you can do it in five, we would be appreciative. And 
folks, I failed to tell you where that ominous red light 
appears. It's on the panels before you.
    Ms. Baginski, good to have you with us.

TESTIMONY OF MAUREEN A. BAGINSKI, EXECUTIVE ASSISTANT DIRECTOR, 
    OFFICE OF INTELLIGENCE, FEDERAL BUREAU OF INVESTIGATION

    Ms. Baginski. Thank you, Mr. Chairman. Thank you, Ranking 
Member Scott. It's very nice to be here. I really am happy to 
be here today, and I come as a lifelong member of the 
Intelligence Community. As you said, in my last position, 25 
years with the National Security Agency, which is the Nation's 
foreign intelligence, signals intelligence collection and 
dissemination organization.
    What is common between the job at NSA and the job at the 
FBI is that my job is to ensure that intelligence, which is 
just vital information about those that would do us harm, gets 
in the hands of those charged with defending our Nation from 
our adversaries.
    In both of those jobs, we have a dual imperative. The first 
is to produce information to protect the Nation, and the second 
is to ensure that we are protecting the rights of U.S. citizens 
as we are doing it. As an intelligence professional and as a 
citizen, I believe that the USA PATRIOT Act has been an 
essential tool in allowing us to fulfill those dual 
imperatives.
    We don't share information for the sake of sharing 
information. We actually do it to prevent harm to the Nation. 
It is the global nature of the threat that we face that demands 
the information sharing across geography, across organizations; 
because no one organization can actually do this job alone.
    To defeat the adversaries we face today, we have to 
increasingly be more like a global network. And it is the 
PATRIOT Act that has allowed the law enforcement community to 
become a very vital node on that global information network.
    Here is an example. PATRIOT Act section 203(b) authorizes 
us to share foreign intelligence information obtained under 
title III electronic surveillance with other officials, 
including intelligence, law enforcement officers. And if this 
provision were allowed to expire, we would have a greatly 
impaired global network, because in theory, the FBI agents 
would be able to share this information with foreign 
intelligence services, such as MI-5, but arguably would not be 
able to share that information with the CIA. The result would 
be inconsistent with the spirit of what we're trying to 
achieve, but most clearly with the spirit of the recently 
passed intelligence reform bill.
    There are two components to information sharing, and we 
have to talk about the two of these very distinctly, I think. 
The first is the actual acquisition or collection of the 
information, as I would describe it from my intelligence 
background, and the legal authorities and policies that govern 
that collection. And the second is how the information is then 
stored and shared, once it is collected.
    All of us that are involved here at this table and outside 
of this room in the collection of information do so against a 
carefully set--a carefully established set of laws and 
policies. Intelligence agencies, criminal investigators, we are 
all governed by legal authorities and policies that derive from 
those.
    For example, in my case, the FBI authority to collect 
intelligence information is very clearly laid out in law, and 
guided at each step by guidelines set by the Attorney General. 
And our collection authorities are also overseen and controlled 
by Federal courts.
    Under the PATRIOT Act, a Federal judge must still approve 
search warrants and wiretaps for counterintelligence and 
counterterrorism investigations, and we must establish probable 
cause to obtain a FISA warrant. So that's on the collection 
end.
    The information sharing component happens after the legal 
collection of the information. And section 203(b) and (d) have 
allowed us to share legally collected information from our 
intelligence and criminal investigations operations both inside 
the FBI and outside of the FBI; and as the Congressman 
described, the wall having come down.
    But I want to give you a very concrete example that I work 
with every day that this has enabled. And probably, the best 
example of this can be seen in the National Counterterrorism 
Center, formerly the TTIC.
    In the National Counterterrorism Center 15 different 
agencies come together, bringing their legally collected, but 
independently collected, information to carry out three very 
important functions for the Nation. The first is the production 
of all-source terrorism analysis. The second is updating the 
database that other Federal entities use to prevent--this is 
known as our watch list--to prevent known or suspected 
terrorists from entering U.S. borders. And of course, the third 
is to have the intelligence they need to exercise their 
counterterrorism plans and perform independent alternative 
analysis.
    Now, in this center legally collected information comes 
together in the same room. FBI people are there. And the way 
that the FBI people, the FBI analysts, share their information 
with representatives from other agencies is by relying on the 
provisions of 203(d). They would be able to have their 
information, but without those provisions it would be less 
clear to them how they could share information from criminal 
investigations that bear on terrorism-related things absent 
203(d).
    It's a very important thing, and a very worthwhile thing to 
go see legal collection come together with these very important 
analytic functions that are often referred to as ``connecting 
the dots.'' But in their sum, they prevent harm to the Nation.
    And just to wrap up, experience has taught us--and I think 
this is very important to understand in the nature of today's 
threat--there is no neat dividing line that distinguish 
criminal, terrorism, and foreign intelligence activity or 
information. Criminal, terrorist, and foreign intelligence 
organizations and activities are often interrelated and 
interdependent.
    If you look at alien smugglers, drug traffickers, they have 
something in common. They control the means of conveyance; they 
control borders; they control things. They will smuggle 
anything. They will smuggle people; they will smuggle drugs; 
they will smuggle terrorists. And in the worst case, they will 
smuggle nuclear weapons. Intelligence is critical across all of 
these programs precisely to get to that point of connecting 
these things.
    So in summary, we have found the information sharing 
provisions of the PATRIOT Act vital to our national security, 
as is our responsibility to protect the rights of U.S. 
citizens. So mostly, we applaud the forum that you've provided 
for the public debate and discussion of these very, very 
important issues, and we look forward to working with you 
further in this discussion.
    [The prepared statement of Ms. Baginski follows:]

               Prepared Statement of Maureen A. Baginski

    Good morning Mr. Chairman and Members of the Subcommittee. I am 
pleased to be here today with Barry Sabin, Chief of the 
Counterterrorism Section, Department of Justice Criminal Division to 
talk with you about the ways in which the USA Patriot Act has assisted 
the FBI with its information-sharing efforts. I will address the 
overall benefits of the information sharing provisions of the Act, 
including: the relevant amendments to the Foreign Intelligence 
Surveillance Act; Section 203(b), which authorizes the sharing of 
foreign intelligence information obtained in a Title III electronic 
surveillance with other federal officials, including intelligence 
officers, DHS/DOD/ICE officials, and national security officials; and 
Section 203(d), which specifically authorizes the sharing of foreign 
intelligence information collected in a criminal investigation with 
intelligence officials.
    It is important to place the information sharing provisions of the 
USA Patriot Act in the context of subsequent Congressional action 
formalizing the FBI Intelligence Directorate in 2004. The Statement of 
Managers accompanying the Conference Report on H.R. 4818, Consolidated 
Appropriations Act, 2005 (House of Representatives--November 19, 2004), 
states:

        ``. . . the conference agreement adopts the House report 
        language directing the FBI to create a new Directorate of 
        Intelligence. . . . The need for effective intelligence 
        capabilities cuts across all FBI programs including the 
        counterterrorism, counterintelligence, criminal and cyber crime 
        programs. This new directorate will ensure that intelligence is 
        shared across these programs, eliminate information stove-
        piping, and allow the FBI to quickly adapt as threats change. . 
        . . It shall also work to improve the FBI's capability to share 
        intelligence, not only within the Bureau and the Intelligence 
        Community, but also with State and local law enforcement.''

    I am here today to express to you how crucial renewal of the USA 
Patriot Act provisions related to information and intelligence sharing 
is to fulfilling the responsibilities of the FBI's new Directorate of 
Intelligence as envisioned by Congress.
    There are two components to this subject: first, the issue of 
collecting intelligence and the legal authorities and policies that 
govern that collection; and second, how that information is actually 
shared once it is collected. I will address both in turn.
    I realize that the collection authorities granted under the Patriot 
Act are of concern to many individuals and organizations. In that 
regard I want to say two things.
    First, the FBI is committed to carrying out its mission in 
accordance with the protections provided by the Constitution. FBI 
agents are trained to understand and appreciate that the responsibility 
to respect and protect the law is the basis for their authority to 
enforce it. Respect for Constitutional liberties is not optional, it is 
mandatory for all FBI employees. The FBI could not be effective--and 
would not exist--without it.
    Second, the FBI's authority to collect information is very clearly 
laid out in law and is directed by the Attorney General--the chief law 
enforcement officer for the United States. Intelligence collection is 
only done in accordance with the intelligence priorities set by the 
President, and is guided at every step by procedures mandated by the 
Attorney General. As soon as an international terrorism intelligence or 
counterintelligence case is opened, both Headquarters and the 
Department of Justice are notified. We are subject to and follow 
Attorney General's guidelines and procedures for FBI National Security 
Investigations and Foreign Intelligence Collection (NSIG); and all 
terrorism-related cases are subject to in-progress review by the 
Department of Justice (DOJ) Office of Intelligence Policy and Review, 
the DOJ Criminal Division, and local offices of U.S. Attorneys. We 
report annually to the Department of Justice on the progress of 
intelligence cases. The FBI's collection authorities are also 
controlled by the Federal Courts. Under the USA Patriot Act, a federal 
judge must still approve search warrants and wiretaps for 
counterintelligence and counterterrorism investigations and Agents must 
establish probable cause in order to obtain a FISA warrant. The FBI 
only collects and disseminates intelligence under guidelines designed 
specifically to protect the privacy of United States persons, and we 
are committed to using our authorities and resources responsibly.
    After information is legally collected, the issue of how we pool 
that information arises. Effective intelligence requires skilled 
analysis and dissemination to meet the requirements of customers inside 
and outside the FBI. My job as the FBI's Executive Assistant Director 
for Intelligence is to manage the entire intelligence cycle to ensure 
that the FBI has the collection, reporting, analysis and dissemination 
capability it needs to protect the country. Information sharing is 
vital to that capability.
    Effective FBI intelligence capabilities depend, first of all, on 
the integration of our intelligence collection and criminal 
investigative operations. During hearings on the 9/11 attacks, Congress 
heard testimony about meetings between the CIA and FBI where it was 
unclear what information on a hijacker could be legally shared under 
the widely-misunderstood set of rules and laws that was known as ``the 
Wall.'' This wall extended into the FBI itself. Agents pursuing cases 
involving the Foreign Intelligence Surveillance Act (FISA) could not 
readily share information with agents or prosecutors working criminal 
investigations. And the wall worked both ways--without FISA-derived 
information agents or prosecutors involved in a criminal case might not 
have any way of knowing what information from the criminal 
investigation might be useful to an agent working on a parallel 
international terrorism or counterintelligence investigation. Although 
there was some legal capability to share information, the law was 
complex and as a result, agents often erred on the side of caution and 
refrained from sharing the information. In addition, the wall 
functioned to discourage criminal and intelligence investigators from 
talking about their cases, such that investigators on either side might 
have no idea what might be useful to share with those on the other side 
of wall.
    The Patriot Act tore down those legal walls between FISA-related 
intelligence and criminal investigations. Law enforcement and 
intelligence agents were able to coordinate terrorism investigations 
without fear of running afoul of the law as then interpreted.
    Patriot Act Section 203(b) authorizes the sharing of foreign 
intelligence information obtained in a Title III electronic 
surveillance with other federal officials, including intelligence 
officers, DHS/DOD/ICE officials, and national security officials. If 
Section 203(b) were allowed to expire, FBI Agents would be allowed to 
share certain foreign intelligence information collected through 
criminal investigative wiretaps with foreign intelligence services, 
such as MI-5, but would arguably not be allowed to share that same 
information with the CIA. This result would be inconsistent with the 
spirit of the recently enacted Intelligence Reform and Terrorism 
Prevention Act of 2004, which included many provisions designed to 
enhance information sharing within the federal government.
    An example of information sharing now permitted by section 203 of 
the USA PATRIOT Act takes place in the National Counterterrorism Center 
(NCTC) (formerly the Terrorist Threat Integration Center). The NCTC 
receives foreign intelligence information lawfully collected by its 
member entities, which includes international terrorism information 
collected by the law enforcement community. Information provided to 
NCTC pursuant to section 203 of the PATRIOT act is used in three 
crucial NCTC missions: the production of all-source terrorism analysis, 
updating the database used by other federal entities to prevent known 
or suspected terrorists from entering U.S. borders, and to ensure that 
agencies, as appropriate, have access to and receive all-source 
intelligence needed to execute their counterterrorism plans or perform 
independent, alternative analysis. The FBI, one of the NCTC's key 
members, relies upon section 203(d) of the USA PATRIOT Act to provide 
information related to international terrorism to NCTC analysts 
including intelligence, protective, immigration, national defense, 
national security, and other information related to international 
terrorism (a subset of foreign intelligence and counterintelligence 
information) obtained as part of FBI criminal investigations. In 
particular, section 203(d) authorizes law enforcement officers to 
disclose foreign intelligence or counterintelligence information to 
various federal officials, notwithstanding any other legal restriction. 
Without section 203(d), access to such FBI information by non-FBI 
personnel at NCTC could put us back to the pre 9/11 days of uncertainty 
about information sharing authorities. A decision by this Congress to 
allow section 203(d) to sunset would send the message that full 
information sharing is discouraged and law enforcement and intelligence 
officials will once again be left with a complex legal regime and err 
on the side of caution and refrain from sharing terrorism information.
    Furthermore, section 203 of the PATRIOT Act facilitates the NCTC's 
ability to
    provide strategic analysis to policy makers and actionable leads to 
officers within the FBI and the Intelligence Community (including 
components of the Department of Homeland Security (DHS)), transcending 
traditional government boundaries.
    The NCTC estimates that the number of known or appropriately 
suspected terrorists intercepted at borders of the United States, based 
on FBI reporting alone, has increased due to the information sharing 
provisions of the USA PATRIOT Act. The NCTC maintains TIPOFF, an up-to-
date database of known and appropriately suspected terrorists. The NCTC 
relies upon various agencies, which provide terrorist identity 
information on an on-going basis. Much of the terrorist identities 
information the NCTC receives from the FBI is collected in the course 
of criminal investigations and is shared pursuant to section 203.
    Tearing down the wall between criminal and intelligence 
investigations actually enabled the FBI to conduct intelligence 
analysis and to integrate intelligence analysis into the Bureau. Our 
Intelligence Program now crosses all investigative programs--Criminal, 
Cyber, Counterterrorism, and Counterintelligence. And the Directorate 
of Intelligence is able to leverage the core strengths of the law 
enforcement culture--with its attention to the pedigree of sources and 
fact-based analysis--while ensuring no walls exist between collectors, 
analysts, and those who must act upon intelligence information to keep 
our nation safe. As FBI Director Mueller said in a speech to the 
American Civil Liberties Union (ACLU) in 2003: ``Critical to preventing 
future terrorist attacks is improving our intelligence capabilities so 
that we can increase the most important aspect of terrorist 
intelligence information--its predictive value. . . . The global aspect 
of terrorism creates an even greater need for the FBI to integrate its 
intelligence program and criminal operations to prevent attacks.''
    Facing today's threats, it makes no sense not to share information 
that has been legally collected with those who have a need for it and 
can maintain proper security and privacy safeguards.
    Experience has taught the FBI that there are no neat dividing lines 
that distinguish criminal, terrorist, and foreign intelligence 
activity. Criminal, terrorist, and foreign intelligence organizations 
and activities are often interrelated or interdependent. FBI files are 
full of examples of investigations where information sharing between 
counterterrorism, counterintelligence and criminal intelligence efforts 
and investigations was essential to the FBI's ability to protect the 
United States from terrorists, foreign intelligence activity and 
criminal activity. Some cases that start out as criminal cases become 
counterterrorism cases. Some cases that start out as 
counterintelligence cases become criminal cases. Sometimes the FBI will 
initiate parallel criminal and counterterrorism or counterintelligence 
cases to maximize the FBI's ability to adequately identify, investigate 
and address a variety of threats to the United States while protecting 
vulnerable sources and methods. The success of these cases in providing 
accurate intelligence threat assessments as well as arrests and 
convictions is entirely dependent on the free flow of information 
between the respective investigations, investigators and analysts.
    Ongoing criminal investigations of transnational criminal 
enterprises involved in counterfeit goods, drug/weapons trafficking, 
money laundering and other criminal activity depend on close 
coordination and information sharing with the FBI's Counterterrorism 
and Counterintelligence Programs, as well as with other agencies in the 
intelligence community, when intelligence is developed which connects 
these criminal enterprises to terrorism, the material support of 
terrorism or state sponsored intelligence activity.
    As an example of benefits from sharing intelligence from such a 
case, information from a criminal Title III surveillance and criminal 
investigation was passed to FBI Counterterrorism investigators and 
intelligence community partners, because the subject of the criminal 
case had previously been targeted by other agencies. Information 
sharing permitted the agencies to pool their information and resources 
to uncover the interplay of criminal and foreign intelligence activity.
    As an example of sharing from a terrorism intelligence case, a 
terrorism investigation initiated in Minneapolis was subsequently 
transferred to San Diego and converted to a criminal case. The 
investigation focused on a group of Pakistan-based individuals who were 
involved in arms trafficking, the production and distribution of multi-
ton quantities of hashish and heroin, and the discussion of an exchange 
of a large quantity of drugs for four stinger anti-aircraft missiles to 
be used by Al Qaeda in Afghanistan. The operation resulted in the 
arrest, indictment and subsequent deportation of the subjects, Syed 
Mustajab Shah, Muhammed Afridi, and Ilyas Ali, from Hong Kong to San 
Diego to face drug charges and charges of providing material support to 
Al Qaeda. In this case the benefits of immediate disruption by arrest 
outweighed the need for long-term intelligence coverage of the 
conspirators.
    Another example came in the aftermath of the September 11th 
attacks. A reliable intelligence asset identified a naturalized U.S. 
citizen as a leader among a group of Islamic extremists residing in the 
U.S. The subject's extremist views, his affiliations with other 
terrorism subjects, and his heavy involvement in the stock market 
increased the potential that he was a possible financier and material 
supporter of terrorist activities. Early in the criminal investigation 
it was confirmed that the subject had developed a complex scheme to 
defraud multiple brokerage firms of large amounts of money. The subject 
was arrested and pled guilty to wire fraud. The close interaction 
between the criminal and intelligence cases was critical both to the 
successful arrest of the subject before he left the country and to the 
eventual outcome of the case. Once again, intelligence led to an arrest 
that was determined to be the most effective means to disrupt a 
potential terrorist threat.
    Criminal enterprises are also frequently involved in, allied with, 
or otherwise rely on smuggling operations that do not respect 
jurisdictional lines between types of investigations or intelligence. 
Alien smugglers frequently use the same routes used by drug and 
contraband smugglers and do not limit their smuggling to aliens--they 
will smuggle anything or anyone for the right price. Terrorists can 
take advantage of these smuggling routes and enterprises to enter the 
U.S. and are willing to pay top dollar to smugglers. Intelligence 
developed in these cases also frequently identifies corrupt U.S. and 
foreign officials who facilitate smuggling activities. Current 
intelligence, based on information sharing between criminal, 
counterterrorism, and counterintelligence efforts, has identified 
smugglers who provide false travel documents to special interest 
aliens, deal with corrupt foreign officials, and financially support 
extremist organizations, as well as illegitimate and quasi-legitimate 
business operators in the United States, who not only use the services 
of illegal aliens, but are also actively involved in smuggling as well. 
These transnational criminal enterprises require global intelligence 
coverage, domestic as well as foreign, that transcends out-dated 
divisions between national security and criminal law enforcement.
    Obviously, considering the cases I've just described, the 
information sharing provisions are overwhelmingly heralded by FBI Field 
Offices as the most important provisions in the USA Patriot Act. The 
ability to share critical information has significantly altered the 
entire manner in which terrorism and criminal investigations are 
conducted, allowing for a much more coordinated and effective approach 
than prior to the USA Patriot Act. Specifically, the Field Offices note 
that these provisions enable case agents to involve other agencies in 
investigations, resulting in a style of teamwork that enables more 
effective and responsive investigations, improves the utilization of 
resources allowing a better focus on the case, allows for follow-up 
investigations by other agencies when the criminal subject leaves the 
U.S., and helps prevent the compromise of foreign intelligence 
investigations.
    From the perspective of the Directorate of Intelligence, the USA 
Patriot Act information sharing provisions are critical to the 
effectiveness of the Directorate's Field Intelligence Groups (FIGs) and 
to the integration of Directorate of Intelligence elements that are 
embedded in each of our headquarters investigative divisions. As 
authorized by the Congress, the Directorate now has a Field 
Intelligence Group in each field office that brings together the 
intelligence from criminal, counterterrorism, counterintelligence, and 
cyber investigations. The FIGs also include our language analysts who 
provide vital support to the full range of FBI investigations and 
intelligence collection. At headquarters, the Directorate manages 
intelligence analysis, in coordination with other elements of the 
intelligence community, to support both national security and criminal 
law enforcement requirements. Allowing the information sharing 
provisions of the USA Patriot Act to sunset would re-introduce barriers 
that would make intelligence sharing more difficult.
    The Intelligence Reform Act directs the President to ``create an 
information sharing environment for the sharing of terrorism 
information in a manner consistent with national security and with 
applicable legal standards.'' It also directs the President to 
incorporate ``protections for individuals' privacy and civil 
liberties,'' and further, to incorporate ``strong mechanisms to enhance 
accountability and facilitate oversight, including audits, 
authentication, and access controls.'' The Intelligence Reform Act 
directs the DNI to implement those provisions and provides the DNI with 
a privacy and civil liberties officer to ensure implementation. The FBI 
has already implemented Executive Order 12333 in both our privacy 
systems and in the dissemination of information from our intelligence 
databases.
    Specifically, we use a Privacy Impact Assessment (PIA) process to 
evaluate privacy in major record systems prior to system 
implementation. The PIA process requires that the system sponsor/
developer conduct a thorough, written analysis of the impact on privacy 
that will result from the creation of a proposed system prior to the 
system's implementation. We assess both impacts attributable solely to 
the proposed system and the cumulative impacts arising from the 
proposed system's interface with existing systems. The PIA provides 
senior FBI management officials with a systemic assessment of a major 
new system's impact on privacy before the system becomes operational. 
The FBI PIA process includes a review of major systems by the FBI 
Privacy Council, a group composed of representatives from several FBI 
divisions, as well as an FBI Senior Privacy Official.
    In summary, the information sharing provisions of the USA Patriot 
Act are vital to our national security. Allowing these provisions to 
sunset would be inconsistent with the spirit of the recently enacted 
Intelligence Reform and Terrorism Prevention Act of 2004, which 
included many provisions designed to enhance information sharing within 
the federal government. Provisions of the USA Patriot Act are critical 
to implementing the Congressional mandate for an ``information sharing 
environment.'' Section 203(b) of the USA Patriot Act specifically 
authorizes the sharing of foreign intelligence information obtained in 
a Title III electronic surveillance with other federal officials, 
including intelligence officers and national security officials, such 
as DHS and DOD officials. Section 203(d) specifically authorizes the 
sharing of foreign intelligence information collected in a criminal 
investigation with intelligence officials. Allowing either of these 
provisions to sunset could seriously damage our information sharing and 
coordination efforts with the CIA, other intelligence agencies, and 
even internally between criminal and intelligence investigations.
    Mr. Chairman and Members of the Subcommittee--thank you for your 
time and for your continued support of the FBI's information sharing 
efforts. I am happy to answer any questions.

    Mr. Coble. Thank you, Ms. Baginski. We've been joined by 
our friend, the distinguished gentleman from Massachusetts, Mr. 
Delahunt. Good to see you, Bill.
    Mr. Sabin, good to have you with us.

 TESTIMONY OF BARRY M. SABIN, CHIEF, COUNTERTERRORISM SECTION 
     FOR THE CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE

    Mr. Sabin. Good to be here. Mr. Chairman, Ranking Member 
Scott, Members of the Subcommittee, thank you for the 
opportunity to testify at this important hearing and address 
sections 203(b) and (d) of the USA PATRIOT Act. Both of these 
provisions are slated to sunset on December 31, 2005, and both 
deserve to be made permanent.
    I seek to share with you from my perspective as a career 
prosecutor how critical these provisions have been in 
addressing terrorist threat information, criminal 
investigations, and the manner in which our counterterrorism 
mission has been performed on a daily basis.
    Section 203 of the Act authorizes information sharing 
between law enforcement and the Intelligence Community. As 
such, it complements, and is complemented by, other provisions 
of the PATRIOT Act that facilitate such information sharing; 
most notably, sections 218 and 504. These provisions 
collectively have knocked down the so-called ``wall'' between 
law enforcement and intelligence, a wall that impeded our 
efforts to combat international terrorism.
    Prior to the PATRIOT Act, widespread misunderstandings 
about the wall hindered the flow of information in two 
directions: It hindered intelligence information from being 
passed to prosecutors; and it also hindered prosecutors and 
criminal investigators from sharing certain types of law 
enforcement information with the Intelligence Community and 
other national security officials.
    Section 203 of the PATRIOT Act was enacted to deal with the 
latter problem, and to ensure that valuable foreign 
intelligence collected by the law enforcement community can be 
shared with the intelligence and national security communities, 
under appropriate safeguards.
    Director Mueller testified earlier this month that the 
information sharing provisions are consistently identified by 
FBI field offices as the most important provisions in the 
PATRIOT Act. Pursuant to the PATRIOT Act, intelligence 
emanating from criminal investigations has indeed been 
routinely shared with other appropriate Government officials.
    Some examples of intelligence information developed in a 
criminal case which was shared with the Intelligence Community 
under section 203(d) include the following:
    Information about the organization of a violent jihad 
training camp, including training in basic military skills, 
explosives, and weapons, as well as a plot to bomb soft targets 
abroad, resulted from the investigation and criminal 
prosecution in New York of a naturalized United States citizen 
who was associated with an Al Qaeda related group;
    Travel information and the manner that monies were 
channeled to members of a criminal conspiracy in Portland who 
traveled from the United States intending to fight, 
unsuccessfully, alongside the Taliban against U.S. and allied 
forces;
    Information about an assassination plot, including the use 
of false travel documents and transporting monies to a 
designated state sponsor of terrorism resulted from the 
investigation and prosecution in Northern Virginia of a 
naturalized United States citizen who had been the founder of a 
well-known United States organization;
    Information about the use of fraudulent travel documents by 
a high-ranking member of a designated foreign terrorist 
organization emanating from his criminal investigation and 
prosecution in Washington, D.C., revealed intelligence 
information about the manner and means of the terrorist group's 
logistical support network, which was shared in order to assist 
in protecting the lives of United States citizens;
    The criminal prosecutions of individuals from Lackawana, 
New York, who traveled to and participated in a military-style 
training camp abroad yielded intelligence information in a 
number of areas, including details regarding the application 
forms which permitted attendance at the training camp. After 
being convicted, one defendant has recently testified in a 
separate Federal criminal trial about this application process, 
which assisted in the admissibility of the form and the 
conviction of those other defendants;
    The criminal prosecution in Northern Virginia of a 
naturalized United States citizen who had traveled to an Al 
Qaeda training camp in Afghanistan revealed information about 
the group's practices, logistical support, and targeting 
information.
    Title III information is similarly being shared under 
section 203(b): Wiretap interceptions involving a scheme to 
defraud donors and the Internal Revenue Service and illegally 
transfer monies to Iraq generated not only criminal charges in 
Syracuse, New York, but information concerning the manner and 
means by which monies were funneled to Iraq;
    Intercepted communications in connection with a sting 
operation led to criminal charges in New York and Arkansas and 
intelligence information relating to money laundering, 
receiving and attempting to transport night-vision goggles, 
infrared Army lights, and other sensitive military equipment 
relating to a foreign terrorist organization.
    Additionally, last year during a series of high-profile 
events, the 2004 Threat Task Force used the information sharing 
provisions under section 203(d) as part and parcel of 
performing its critical duties. And the FBI relies upon section 
203(d), as my colleague just recounted, to provide information 
obtained in criminal investigations to analysts in the new 
National Counterterrorism Center; thus assisting the center in 
carrying out its vital counterterrorism missions.
    The information sharing provisions not only promote a 
culture of teamwork and trust, they provide Government 
officials certainty in the performance of their duties. If 
section 203(d) is allowed to sunset, then each law enforcement 
agency's authority and duty to share foreign intelligence may 
have to be reevaluated, and this change might lead to 
unnecessary uncertainty and confusion.
    Section 203 fully protects legitimate privacy and civil 
liberties interests through its controls on disclosure and use 
and its special protections for information identifying a U.S. 
person. For example, section 203(b) does not allow carte 
blanche disclosure of sensitive information. The information 
itself can only be acquired in the first place pursuant to the 
strict demands of title III, and section 203(b) does not in any 
way diminish or minimize those requirements.
    Second, the only information that can be shared with 
intelligence or national security personnel is that which 
satisfies the statutory definitions of ``foreign 
intelligence,'' ``counterintelligence,'' or ``foreign 
intelligence information.'' This requirement acts as a filter 
to prevent the unnecessary disclosure of extraneous 
information.
    Third, the disclosure can only be to designated Federal 
officials, and solely for their official use.
    And finally, as described above, identifying information 
about U.S. persons is subject to special restrictions.
    For all of these reasons, section 203(b) correctly and 
appropriately facilitates a unified, cohesive counterterrorism 
effort, while also safeguarding privacy. Similarly, section 
203(d) also protects privacy.
    Prior to 9/11, we tied ourselves in knots with 
misunderstood legal and bureaucratic guidelines that had the 
effect of constricting the flow of essential information within 
the United States Government. We dare not, and must not, let 
this happen again.
    Taken together, these provisions are crucial to the 
Government's efforts to prevent and preempt terrorist attacks. 
We cannot put artificial barriers between law enforcement 
agencies and entities such as the new National Counterterrorism 
Center, when it comes to the sharing of law enforcement 
information that has foreign intelligence value.
    Mr. Chairman, as you debate these issues, we invite your 
questions, your comments, and your suggestions. We very much 
want to work with Congress to ensure that we will keep America 
safe and free. Sections 203(b) and (d) are helping us fight the 
terrorists in a manner that respects the Constitution and 
constitutional values.
    This Congress should permanently renew sections 203(b) and 
(d) of the PATRIOT Act. I again thank the Committee for holding 
this hearing, and I will do my best to answer your questions.
    [The prepared statement of Mr. Sabin follows:]

                  Prepared Statement of Barry M. Sabin

                              INTRODUCTION

    Thank you for the opportunity to testify at this important hearing. 
Since the attacks of September 11, 2001, Congress and the 
Administration have made great progress in providing law enforcement 
and intelligence officials with the tools they need to prevent, 
disrupt, investigate, and prosecute terrorism. The most notable of 
these achievements was enactment of the USA PATRIOT Act (``Patriot 
Act'' or ``Act'') in late 2001, passed with overwhelming and bipartisan 
support in the House and Senate.
    As you know, many sections of that Act are slated to sunset later 
this year, unless the Congress acts to extend them. Today, I will 
address Section 203, and in particular, sections 203(b) and 203(d) of 
the Patriot Act. Both of these provisions are slated to sunset on 
December 31, 2005, and both deserve to be made permanent. I seek to 
share with you, from my perspective as a career prosecutor, how 
critical these provisions have been in addressing terrorist threat 
information, criminal investigations and the manner in which our 
counterterrorism mission has been performed on a daily basis.

                     INFORMATION-SHARING GENERALLY

    Section 203 of the Act authorizes information sharing between law 
enforcement and the intelligence community. As such, it complements and 
is complemented by other provisions of the Patriot Act that facilitate 
such information sharing, most notably Sections 218 and 504. These 
provisions collectively have knocked down the so-called ``Wall'' 
between law enforcement and intelligence--a wall that impeded our 
efforts to combat international terrorism. Prior to the Patriot Act, 
widespread misunderstandings about the ``Wall'' hindered the flow of 
information in two directions: it hindered intelligence information 
from being passed to prosecutors, and it also hindered prosecutors and 
criminal investigators from sharing certain types of law enforcement 
information with the intelligence community and other national security 
officials. Section 203 of the USA Patriot Act was enacted to deal with 
the latter problem, and to ensure that valuable foreign intelligence 
collected by the law enforcement community can be shared with the 
intelligence and national security communities, under appropriate 
safeguards.
    Mr. Chairman, you do not have to take my word on the importance of 
keeping that Wall down and allowing the smooth flow of terrorism-
related information to appropriate agencies across the Executive 
Branch. The bipartisan 9/11 Commission not only called for increased 
information sharing within the Executive Branch, it unanimously 
recognized that ``[t]he provisions in the [Patriot] Act that facilitate 
the sharing of information . . . between law enforcement and 
intelligence appear, on balance, to be beneficial.'' \1\ United States 
Attorney Patrick Fitzgerald has given compelling testimony to Congress 
on the ``bizarre and dangerous'' complications that the ``Wall'' caused 
in major terrorism cases prior to 9/11.\2\ And Director Mueller 
testified earlier this month that ``the information-sharing provisions 
are consistently identified by FBI field offices as the most important 
provisions in the Patriot Act. The ability to share crucial information 
has significantly altered the landscape for conducting terrorism 
investigations, allowing for a more coordinated and effective 
approach'' (emphasis added).\3\
---------------------------------------------------------------------------
    \1\ The 9/11 Commission Report, at 394 (authorized ed.).
    \2\ See Testimony of the Honorable Patrick Fitzgerald before the 
Senate Judiciary Committee (Oct. 21, 2003).
    \3\ Testimony of FBI Director Robert Mueller before the Senate 
Judiciary Committee (Apr. 5, 2005).
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    Indeed, a telling example as to the importance of these information 
sharing provisions comes from outside the United States. A few weeks 
ago I met with counterterrorism officials in the law enforcement and 
intelligence community of one of our foreign partners. After discussing 
the information sharing provisions under the Patriot Act, these 
experienced practitioners observed that the provisions result in the 
following key practical consequences: (1) prosecutors are involved at 
the earliest stages of national security investigations; (2) the 
government uses a task force approach, maximizing the utility of the 
provisions; and (3) the provisions increase the flexibility and types 
of investigative techniques which can be used in a national security 
investigation. These developments increase the options available to 
decision-makers, enable them to make more informed choices and to make 
those choices in a more timely fashion. Hence, the legislation you have 
enacted in order to allow United States officials to share information 
is being studied by many of our partners in the international community 
and is paving the way for similar information sharing provisions to be 
incorporated into foreign laws and practices.

                        THE PATRIOT ACT CHANGES

    Let me briefly review the Patriot Act changes contained in Section 
203. Section 203(a) of the Patriot Act amended Rule 6(e) of the Federal 
Rules of Criminal Procedure to authorize the sharing of grand jury 
information involving foreign intelligence, counterintelligence, or 
foreign intelligence information, with a Federal intelligence, 
protective, immigration, national defense, or national security 
official.
    Section 203(b) of the Act authorizes law enforcement officials to 
share the contents of communications that were lawfully intercepted by 
a judicially authorized wiretap (commonly known as ``Title III 
information'') with a federal law enforcement, intelligence, 
protective, immigration, national defense, or national security 
official, to the extent that the communications include foreign 
intelligence, counterintelligence, or foreign intelligence information. 
As with grand jury information, the disclosure can only be made to 
assist the recipient in the performance of his or her official duties, 
and the recipient may only use the information as necessary in the 
conduct of those duties.
    Section 203(c) of the Act requires the Attorney General to 
establish procedures for the disclosure of the information pursuant to 
sections 203(a) and 203(b) when the information identifies an American 
citizen or other ``United States person.'' The Attorney General has 
promulgated these procedures, and they require that information 
identifying a United States person be handled in accordance with 
special protocols that place significant limitations on the retention 
and dissemination of such information.\4\
---------------------------------------------------------------------------
    \4\ Memorandum of the Attorney General, Guidelines for Disclosure 
of Grand Jury and Electronic, Wire, and Oral Interception Identifying 
United States Persons (Sept. 23, 2002).
---------------------------------------------------------------------------
    Finally, section 203 also recognizes that criminal investigators 
may acquire information useful to the larger intelligence and national 
security communities by the use of other law enforcement techniques 
apart from grand juries and criminal investigative wiretaps. For 
example, a member of the public may walk into an FBI office and provide 
information on the location of an international terrorist, or the FBI 
may discover such information while conducting an interview or 
executing a search warrant. Section 203(d) of the Act authorizes the 
sharing of foreign intelligence, counterintelligence, or foreign 
intelligence information, that is obtained as part of a criminal 
investigation, with a federal law enforcement, intelligence, 
protective, immigration, national defense, or national security 
official. As with grand jury and Title III information, the disclosure 
can only be made to assist the recipient in the performance of his or 
her official duties, and the recipient may only use that information as 
necessary in the conduct of those official duties.

          PATRIOT ACT RESULTS AND CHANGED GOVERNMENT PRACTICES

    Pursuant to the Patriot Act, intelligence emanating from criminal 
investigations has indeed been routinely shared, and is shared 
routinely, with other appropriate government officials. Some examples 
of intelligence information developed in a criminal case which was 
shared with the intelligence community under Section 203(d) include the 
following:

          Information about the organization of a violent jihad 
        training camp including training in basic military skills, 
        explosives, and weapons, as well as a plot to bomb soft targets 
        abroad, resulted from the investigation and criminal 
        prosecution in New York of a naturalized United States citizen 
        who was associated with an al-Qaeda related group;

          Travel information and the manner that monies were 
        channeled to members of a criminal conspiracy in Portland who 
        traveled from the United States intending to fight alongside 
        the Taliban against U.S. and allied forces;

          Information about an assassination plot, including 
        the use of false travel documents and transporting monies to a 
        designated state sponsor of terrorism, resulted from the 
        investigation and prosecution in Northern Virginia of a 
        naturalized United States citizen who had been the founder of a 
        well-known United States organization;

          Information about the use of fraudulent travel 
        documents by a high-ranking member of a designated foreign 
        terrorist organization emanating from his criminal 
        investigation and prosecution in Washington, D.C., revealed 
        intelligence information about the manner and means of the 
        terrorist group's logistical support network which was shared 
        in order to assist in protecting the lives of U.S. citizens;

          The criminal prosecution of individuals from 
        Lackawana, New York, who traveled to, and participated in, a 
        military-style training camp abroad yielded intelligence 
        information in a number of areas including details regarding 
        the application forms which permitted attendance at the 
        training camp; after being convicted, one defendant has 
        testified in a recent separate federal criminal trial about 
        this application practice, which assisted in the admissibility 
        of the form and conviction of the defendants;

          The criminal prosecution in Northern Virginia of a 
        naturalized U.S. citizen who had traveled to an al-Qaeda 
        training camp in Afghanistan revealed information about the 
        group's practices, logistical support and targeting 
        information.

    Title III information is similarly being shared. The potential 
utility of such information to the intelligence and national security 
communities is obvious: suspects whose conversations are being 
monitored without their knowledge may reveal all sorts of information 
about terrorists, terrorist plots, or other activities with national 
security implications. Furthermore, the utility of this provision is 
not theoretical: the Department has made disclosures of vital 
information to the intelligence community and other federal officials 
under section 203(b) on many occasions, such as:

          Wiretap interceptions involving a scheme to defraud 
        donors and the Internal Revenue Service and illegally transfer 
        monies to Iraq generated not only criminal charges in Syracuse, 
        New York but information concerning the manner and means by 
        which monies were funneled to Iraq;

          Intercepted communications, in conjunction with a 
        sting operation, led to criminal charges in New York and 
        Arkansas and intelligence information relating to money 
        laundering, receiving and attempting to transport night-vision 
        goggles, infrared army lights and other sensitive military 
        equipment relating to a foreign terrorist organization.

    Last year, during a series of high-profile events--the G-8 Summit 
in Georgia, the Democratic Convention in Boston and the Republican 
Convention in New York, the November 2004 presidential election, and 
other events--a task force used the information sharing provisions 
under Section 203(d) as part and parcel of performing its critical 
duties. The 2004 Threat Task Force was a successful inter-agency effort 
involving robust sharing of information at all levels of government.
    And the FBI relies upon section 203(d) to provide information 
obtained in criminal investigations to analysts in the new National 
Counterterrorism Center, thus assisting the Center in carrying out its 
vital counterterrorism missions. The National Counterterrorism Center 
represents a strong example of section 203 information sharing, as the 
Center uses information provided by law enforcement agencies to produce 
comprehensive terrorism analysis; to add to the list of suspected 
terrorists on the TIPOFF watchlist; and to distribute terrorism-related 
information across the federal government.
    The information sharing provisions not only promote a culture of 
teamwork and trust they provide government officials certainty in the 
performance of their duties. In that regard, it should be noted that 
section 203 must be read in conjunction with section 905 of the Patriot 
Act, which generally requires that federal law enforcement agencies 
share foreign intelligence acquired in the course of a criminal 
investigation with the intelligence community, ``[e]xcept as otherwise 
provided by law. . . .'' As the Attorney General pointed out in 
Guidelines implementing section 905, section 203(d) makes it clear that 
no other federal or state law operates to prevent the sharing of such 
information so long as the disclosure will assist the recipients in the 
performance of their official duties.\5\ Thus, under current law, the 
duty to share information under section 905 is clear. However, if 
section 203(d) is allowed to sunset, then each law enforcement agency's 
authority and duty to share foreign intelligence under section 905 may 
have to be reevaluated and this change might lead to unnecessary 
uncertainty and confusion regarding the force and effect of section 
905.
---------------------------------------------------------------------------
    \5\ Memorandum of the Attorney General, Guidelines Regarding 
Disclosure to the Director of Central Intelligence and Homeland 
Security Officials of Foreign Intelligence Acquired in the Course of a 
Criminal Investigation (Sept. 23, 2002).
---------------------------------------------------------------------------
    These changes, and other portions of the Patriot Act, have 
appropriately led to changes in Department of Justice procedures and 
guidelines. For example, under the Attorney General's National Security 
Investigation Guidelines, revised on October 31, 2003, the FBI has an 
ongoing obligation to share investigative information from national 
security files with the Criminal Division and relevant United States 
Attorneys' Offices. In turn, the United States Attorneys and Anti-
Terrorism Advisory Council Coordinators must be prepared at any time to 
discuss the availability of criminal charges in any international 
terrorism investigation within their district.
    These provisions have been used repeatedly and are now a critical 
tool in our counterterrorism enforcement program. As Attorney General 
Gonzales noted in his testimony earlier this month, prosecutors in 
every district have worked with Joint Terrorism Task Forces over the 
last three years to thoughtfully and painstakingly review historical 
and current intelligence files to determine whether there was a basis 
for bringing criminal charges against the subjects of intelligence 
investigations. Literally, thousands of files were reviewed and 
criminal matters were pursued. The criminal cases that were filed were 
brought only after a full discussion as to whether criminal action was 
more appropriate, at that time, than continuing with covert 
intelligence collection. Some national security matters have continued 
as intelligence investigations, thereby protecting critical sources and 
methods. We collectively understand, and train, that the goal is 
prevention, not just bringing criminal prosecutions. We seek to 
preserve a criminal option, if it is possible, and ensure that the 
threat information is timely and effectively shared.

                  ADDITIONAL CONGRESSIONAL LEGISLATION

    The counterterrorism community needs to pool what it knows. Indeed, 
that is the fundamental construct underlying many provisions of the 
Intelligence Reform and Terrorism Prevention Act of 2004, which was 
enacted by Congress just four months ago. Building upon Section 203 of 
the Patriot Act, provisions of the Intelligence Reform Act further 
expanded Federal Rule of Criminal Procedure 6(e)(3)(D) to permit an 
attorney for the government to disclose any grand jury matter involving 
international terrorism, a threat of attack or other grave hostile 
acts. The persons to whom this may be disclosed includes not only 
United States officials--including federal and state officials--but 
also foreign government officials ``for the purpose of preventing or 
responding to such threat or activities.'' The description in the 
December 2004 legislation of what may be disclosed is modeled after the 
definition of ``foreign intelligence information'' used in the Patriot 
Act three years earlier. In light of these necessary and welcome 
actions by Congress in the Intelligence Reform Act, it would be 
incongruous to now remove the foundations from which these recent 
changes arise.
    Similarly, after the enactment of the Patriot Act, the Homeland 
Security Act added two information sharing provisions to Title III. One 
provision (codified at 18 U.S.C. 2517(7)) authorizes the sharing of 
Title III information with a foreign investigative or law enforcement 
officer to the extent that such disclosure is appropriate to the 
performance of official duties. Therefore, were section 203(b) allowed 
to expire, United States law enforcement officers would be allowed to 
share certain foreign information collected through criminal 
investigative wiretaps with foreign intelligence services, such as MI-
5, but would arguably not be allowed to share that same information 
with the CIA. And the second provision (codified at 18 U.S.C. 2517(8)) 
authorizes disclosure of Title III information to any appropriate 
federal, state, local or foreign government official to prevent or 
respond to a threat of attack, international terrorism, or other grave 
hostile acts. All of these provisions reflect Congress' continuing 
efforts to ensure information sharing between federal law enforcement 
officials and other appropriate officials.

                 PROTECTING PRIVACY AND CIVIL LIBERTIES

    Section 203 fully protects legitimate privacy and civil liberties 
interests through its controls on disclosure and use, and its special 
protections for information identifying a U.S. person. For example, 
section 203(b) does not allow carte blanche disclosure of sensitive 
information. The information itself can only be acquired in the first 
place pursuant to the strict demands of Title III, and section 203(b) 
does not in any way diminish or minimize those requirements. Second, 
the only information that can be shared with intelligence or national 
security personnel is that which satisfies the statutory definitions of 
``foreign intelligence,'' ``counterintelligence,'' or ``foreign 
intelligence information.'' \6\ This requirement acts as a filter to 
prevent the unnecessary disclosure of extraneous information. Third, 
the disclosure can only be to designated federal officials, and solely 
for their official use. And finally, as described above, identifying 
information about U.S. persons is subject to special restrictions. For 
all these reasons, section 203(b) correctly and appropriately 
facilitates a unified, cohesive counterterrorism effort while also 
safeguarding privacy.
---------------------------------------------------------------------------
    \6\ ``Foreign intelligence'' means information relating to the 
capabilities, intentions, or activities of foreign governments or 
elements thereof, foreign organizations, or foreign persons, or 
international terrorist activities. ``Counterintelligence'' means 
information gathered, and activities conducted, to protect against 
espionage, other intelligence activities, sabotage, or assassinations 
conducted by or on behalf of foreign governments or elements thereof, 
foreign organizations, or foreign persons, or international terrorist 
activities.

---------------------------------------------------------------------------
``Foreign intelligence information'' means

(A) information, whether or not concerning a United States person, that 
relates to the ability of the United States to protect against (I) 
actual or potential attack or other grave hostile acts of a foreign 
power or an agent of a foreign power; (II) sabotage or international 
terrorism by a foreign power or an agent of a foreign power; or (III) 
clandestine intelligence activities by an intelligence service or 
network of a foreign power or by an agent of a foreign power; or

(B) information, whether or not concerning a United States person, with 
respect to a foreign power or foreign territory that relates to (I) the 
national defense or the security of the United States; or (II) the 
conduct of the foreign affairs of the United States.
    Section 203(d) also protects privacy. Although historically grand 
jury and Title III information have been treated as more sensitive than 
other types of law enforcement information, section 203(d) disclosure 
is circumscribed in much the same way as disclosure of grand jury and 
Title III information under sections 203(a) and 203(b). In particular, 
disclosure is only authorized if: (1) the information consists of 
foreign intelligence, counterintelligence, or foreign intelligence 
information; (2) the recipient is another federal law enforcement, 
intelligence, protective, immigration, national defense, or national 
security official; and (3) the disclosure is meant to assist the 
recipient in the performance of his or her official duties. Moreover, 
as with grand jury and Title III information, the recipient may only 
use the information as necessary in the conduct of those official 
duties.

                               CONCLUSION

    No one should be lulled into a sense of complacency by al Qaeda's 
inability--so far--to mount another catastrophic attack on the U.S. 
homeland. Prior to 9/11, we tied ourselves in knots with misunderstood 
legal and bureaucratic guidelines that had the effect of constricting 
the flow of essential information within the United States Government. 
We dare not, and must not, let this happen again. Taken together, these 
provisions are crucial to the government's efforts to prevent and 
preempt terrorist attacks. We cannot put artificial barriers between 
law enforcement agencies and entities such as the new National 
Counterterrorism Center when it comes to the sharing of law enforcement 
information that has foreign intelligence value.
    Mr. Chairman, as you debate these issues, we invite your questions, 
your comments, and your suggestions. We very much want to work with 
Congress to ensure that we will keep America safe and free. Sections 
203(b) and 203(d) are helping us fight the terrorists in a manner that 
respects the Constitution and constitutional values. This Congress 
should permanently renew Sections 203(b) and 203(d) of the Patriot Act, 
as well as other essential provisions of the Act.
    I again thank the Committee for holding this hearing. I will do my 
best to answer your questions.

    Mr. Coble. Thank you, Mr. Chairman. We have been joined by 
our friends from California, Ohio, and Texas: Mr. Lungren, Mr. 
Chabot, and Mr. Gohmert. Good to have you all with us.
    Mr. Edgar.

    TESTIMONY OF TIMOTHY H. EDGAR, NATIONAL SECURITY POLICY 
            COUNSEL, AMERICAN CIVIL LIBERTIES UNION

    Ms. Edgar. Thank you very much, Mr. Chairman, Ranking 
Member Scott, Members of the Subcommittee. I am very pleased to 
be here at this hearing on information sharing and sections 
203(b) and (d) of the PATRIOT Act.
    We are here today at the tenth anniversary of the terrible 
bombing of the Oklahoma City Federal Building, a horrendous 
crime that was one reason I sought a career in the national 
security field, grappling with the very difficult questions 
involved in protecting ourselves against terrorism, while 
keeping our basic rights and freedoms.
    While the PATRIOT Act passed by wide margins, Members on 
both sides were right to worry about civil liberties, and 
wisely included a sunset clause. The sunset allows us to go 
look back at the PATRIOT Act, and try to do a better job. 
Whatever powers Congress authorizes we're going to need to live 
with for a long time. Terrorism, whether home-grown or 
international, is certainly not going away.
    This hearing is about two provisions that sunset. They 
allow sharing of information--criminal wiretap information 
under 203(b), and general criminal information under 203(d)--
with both U.S. Government intelligence agencies and foreign 
government agencies. The ACLU supports information sharing to 
ensure investigators connect the dots, but with appropriate 
safeguards to protect civil liberties.
    Without oversight, uncontrolled sharing of criminal 
information with intelligence agencies poses a real risk that 
Federal agents will use search warrants, wiretaps, and 
subpoenas to chill freedom of speech and association, with a 
criminal probe serving merely as a pretext for an intelligence 
investigation.
    Let me explain. A series of raids in Northern Virginia in 
March 2002 of non-profit organizations and private homes sent 
shock waves through a community and targeted some of its 
prominent Muslim American organizations and leaders. The 
warrants were extremely broad. They sought all information, 
correspondence, pamphlets, leaflets, booklets, video and audio 
tapes ``referencing in any way'' anyone designated as a 
terrorist--a warrant which the ACLU of Virginia was right to 
challenge as reminiscent of the general warrants that 
contributed to the American Revolution.
    It is no surprise that agents seized thousands of documents 
and other items of first amendment value. No charges have been 
brought against these organizations; nor have their assets been 
frozen. The property has now been returned, and the attorney 
for the organizations has been told her clients are no longer 
under investigation for terrorism financing at all.
    A Federal civil rights case has been filed alleging serious 
abuses of constitutional rights, including that the search 
warrant affidavit included fabricated facts, and that the 
warrants were executed without regard for constitutional 
rights.
    Some Federal officials have characterized this 
investigation as an intelligence probe designed to gather 
information, rather than to enforce the law. This justification 
strongly suggests that the material has been copied and shared 
with intelligence agencies, under section 203(d) of the PATRIOT 
Act, and that they also have been shared with the intelligence 
agencies of foreign governments.
    Possible sharing of this information with foreign 
governments is particularly troubling, given the dissidents 
involved with these organizations; for example, Dr. Jamal 
Barzingi, an Iraqi-American leader who was invited to advise 
the Iraqi governing council.
    The raids did not affect only the Muslim American 
community. The warrants also included a rural Georgia chicken 
processing company with 1,200 employees, as a result of the 
PATRIOT Act's nationwide search power.
    We agree that Congress should use the 9/11 Commission's 
test for PATRIOT Act powers: A, that the power actually 
materially enhances security and, B, that there is adequate 
supervision of the Executive's use of these powers to ensure 
protection of civil liberties.
    If Congress is satisfied that these provisions, section 
203(b) and (d), meet that first test of enhancing security, it 
still must consider checks and balances on the Executive 
Branch, to better protect civil liberties.
    The Justice Department says civil liberties are protected 
by Attorney General guidelines. As I explain in my written 
statement, it is not clear what, if any, real protection the 
guidelines provide, because they authorize the sharing of 
exactly that kind of information which the statute itself 
authorizes to be shared.
    We propose that the notice requirement of section 203 
should be broadened from just grand jury information to include 
all criminal investigative information shared with intelligence 
agencies, and that notice should be beefed up. We're proposing 
that notice should include a statement of the good-faith basis 
for the criminal investigation, and provide some update as to 
its progress. If no charges are filed, a notice should be filed 
with the court, explaining why. Court-filed notice, we believe, 
could serve as a check on the abuse of the criminal process for 
intelligence gathering fishing expeditions.
    We also urge that notice should be provided to Congress, as 
well; and that Congress should consider reauthorizing some of 
the provisions of the PATRIOT Act, including sections 203(b) 
and (d), for some additional temporary period of time, so they 
can have additional reporting and consider again how these are 
being used, rather than making them permanent.
    Stronger safeguards may be needed to protect privacy. I'd 
like to refer to the Committee an article written by my 
colleague Kate Martin, director of the National Security 
Studies Center, in an ABA series called ``Patriot Debates,'' 
that suggests some further ideas.
    I thank you for this opportunity to testify. And since I 
have 40 seconds remaining, one of the----
    Mr. Coble. Mr. Edgar, you actually have more than that, 
because we were late. So you have about a minute and a half 
remaining.
    Mr. Edgar. Well, I may be the only witness not to use all 
of that. I do want to say that I agree with the witnesses for 
the Government that the wall was largely the result of 
widespread misunderstandings about the wall. And I certainly 
want to make sure that Government agents have a clear 
understanding of their ability to share this information.
    But I do think that we can work together to create 
appropriate safeguards that will allow us a check against the 
misuse either of the criminal process for intelligence ends, or 
of the intelligence process for criminal ends. Thank you very 
much.
    [The prepared statement of Mr. Edgar follows:]

                 Prepared Statement of Timothy H. Edgar

    Chairman Coble, Ranking Member Scott and Members of the 
Subcommittee:
    I am pleased to appear before you today on behalf of the American 
Civil Liberties Union and its more than 400,000 members, dedicated to 
preserving the principles of the Constitution and Bill of Rights, at 
this important oversight hearing concerning information sharing and 
sections 203(b) and (d) of the USA PATRIOT Act of 2001.\1\
---------------------------------------------------------------------------
    \1\ Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) 
Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
---------------------------------------------------------------------------
    The Patriot Act was passed by Congress in 2001 just six weeks after 
the terrorist attacks of September 11. Although the act passed by wide 
margins, members on both sides of the aisle expressed reservations 
about its impact on fundamental freedoms and civil liberties. As a 
result, Congress included a ``sunset clause'' providing that over a 
dozen provisions will expire on December 31, 2005, if Congress does not 
act to renew them.
    This hearing addresses two provisions of the Patriot Act that will 
expire if they are not renewed--sections 203(b) and (d). These 
provisions authorize sharing of information acquired in criminal 
investigations with intelligence agencies. Section 203(b) specifically 
authorizes sharing of criminal wiretap information, while section 
203(d) provides general authority to share information acquired in 
criminal investigations ``notwithstanding any other provision of law.''
    The ACLU supports information sharing concerning terrorism to 
ensure investigators can and do ``connect the dots'' to prevent 
terrorist attacks, with appropriate safeguards required to protect 
civil liberties. The National Commission on Terrorist Attacks Upon the 
United States (``9/11 Commission'') found that, prior to September 11, 
2001, intelligence and security agencies did not properly share 
information in a number of key instances. In most cases, there appears 
to have been no legal barrier preventing such sharing.
    Nevertheless, uncontrolled sharing of criminal investigative 
information with intelligence agencies poses real risks to civil 
liberties. The most acute danger is that federal prosecutors and law 
enforcement agents will be transformed from law enforcement officials 
concerned with preventing and punishing criminal activities into a 
domestic spy network directed at unpopular religious and political 
organizations.
    Using criminal search warrants, wiretaps, and subpoenas, federal 
investigators can severely chill constitutionally-protected freedom of 
speech and association if they aggressively probe religious and 
political organizations on the basis of a criminal probe that is really 
only a pretext for an intelligence investigation.
    Federal law gives the FBI and other agencies wide latitude in 
conducting criminal investigations. Those who have been mistakenly 
investigated by the federal government can attest that the 
investigation alone, even without any formal charges or accusations, 
can lead to the loss of a job, business, and reputation.
    The intense focus of criminal money laundering and terrorism 
financing investigations on Muslim organizations, think tanks and 
charities since September 11 illustrates both the benefits and the 
dangers of wider information sharing. The Justice Department, in its 
recent report on the Patriot Act, states it has used section 203(b) 
``on many occasions . . . to track terrorists' funding sources and 
identify terrorist operatives overseas.'' \2\ The danger is that 
intensive criminal investigations, if undertaken without a good faith 
basis for bringing criminal charges, will severely chill legitimate 
political, religious and academic activities.
---------------------------------------------------------------------------
    \2\ United States Dep't of Justice, USA PATRIOT Act: Sunsets Report 
(April 2005)
---------------------------------------------------------------------------
    A series of raids in Northern Virginia in March 2002 of non-profit 
organizations and private homes terrorized a community and targeted 
some of the most prominent and well respected Muslim organizations and 
citizens of the United States. No money laundering or terrorism 
financing charges have been brought against these organizations or 
their officers in over three years. Some federal officials have 
characterized the investigation as an ``intelligence probe'' designed 
to gather information rather than to enforce the law.
    More meaningful judicial oversight could help preserve the benefits 
of information sharing while providing greater protection for civil 
liberties. Currently, the only protection for civil liberties for most 
criminal investigative information consists of Attorney General 
guidelines that provide little, if any, real protection against abuse.

          NORTHERN VIRGINIA RAIDS: CRIMINAL INVESTIGATION OR 
                  INTELLIGENCE ``FISHING EXPEDITION''?

    In a series of raids in March 2002 in Northern Virginia, federal 
agents seized confidential files, computer hard drives, books, and 
other materials from some of the most respected Islamic think tanks and 
organizations in the United States and raided the homes of many of the 
leaders involved in those organizations.
    The search warrants targeted two entities whose main purpose 
involves activities at the core of the First Amendment: the Graduate 
School of Islamic Thought and Social Sciences (GSITSS), an institute of 
higher education, and the International Institute of Islamic Thought 
(IIIT), an Islamic research institute and think tank, as well as the 
private homes of a number of their employees and scholars.
    The warrants sought a number of First Amendment-protected materials 
that clearly lack any apparent connection to an investigation of money 
laundering or terrorism financing. These include:

          Any and all information or correspondence 
        ``referencing in any way'' any individual or entity designated 
        as a terrorist by the President of the United States, the 
        United States Department of Treasury, or the Secretary of 
        State,

          ``Pamphlets, leaflets, booklets, video and audio 
        tapes related to'' any such individual or entity, and

          ``All computers'' and related equipment and 
        software.\3\
---------------------------------------------------------------------------
    \3\ See Brief Amicus Curiae of the American Civil Liberties Union 
of Virginia, Inc., In Support of Motion for Return of Property and to 
Unseal the Search Warrant Affidavit, In the Matter of the Search of 
750A Miller Drive et al., No. 02-MG-122 (E.D. Va. 2002) (emphasis 
added), attached to this testimony as appendix A.

    Given the breadth of the search warrants, it is no surprise the 
agents seized thousands of documents and other items of First Amendment 
value, including books, binders, computer disks, scholarly manuscripts, 
audio and videotapes, and mail delivered while the search warrant was 
being executed. Agents even seized ``Sunday school emergency forms.'' 
\4\
---------------------------------------------------------------------------
    \4\ Id.
---------------------------------------------------------------------------
    Indeed, as the ACLU of Virginia pointed out in its amicus filing in 
this case, given the magnitude of the terrorism problem and its effect 
on the Islamic world, it would extremely surprising not to find 
documents ``referencing in any way'' terrorist organizations (such as 
by, for example, condemning the attacks of September 11) at any 
American institution studying contemporary Islam or engaging in 
advocacy on behalf of Muslim Americans.
    A federal civil rights action filed by the family of Dr. Unus, an 
employee of the IIIT, includes several serious changes of wrongdoing 
during the simultaneous raid of their home. The complaint alleges that 
agents demanded entry with weapons drawn and without immediately 
identifying themselves as federal agents, did not allow Dr. Unus' wife 
to review the search warrant, took items not specified in the warrant, 
handcuffed Dr. Unus' wife and daughter for hours, and did not allow 
them to cover themselves as required by their faith.\5\
---------------------------------------------------------------------------
    \5\ See Complaint in Aysha Nudrat Unus and Hanaa Unus v. David Kane 
and Rita Katz, Civ. No. 04-312-A (E.D. Va. filed Nov. 9, 2004)  47-
63.
---------------------------------------------------------------------------
    The raids sent shock waves through the Northern Virginia Muslim 
American community. The institutions targeted included some of the most 
established and well-respected Muslim American organizations and 
leaders, citizens of the United States who have lived in this country 
since the 1970's. Would indictments soon show that established 
organizations like the GSITSS or the IIIT were really fronts for 
terrorism financing?
    In a word: no. More than three years following the raids, there 
have been no criminal charges brought against the GSITSS, the IIIT, or 
any of their officers or directors. The GSITSS and the IIIT have not 
had their assets seized or funds frozen. No evidence has emerged that 
any of their assets were ever used to fund terrorism. All the files, 
computers and other property seized in the raids has been returned, 
although the government retains copies of them. The attorney for the 
GSITSS and the IIIT, Nancy Luque, has been told by the FBI that her 
clients are no longer under investigation for any terrorism financing 
or other terrorism-related charges.
    The complaint in the civil rights action says the affidavit in 
support of the search warrants contained fabricated material facts 
regarding non-existent overseas transactions. The complaint also says 
the search warrant affidavit was drafted with the help of private 
author and self-styled ``terrorist hunter'' Rita Katz, who was paid 
$272,000 for her advice by the federal government and has made much 
more in a book deal and as a consultant for news organizations.\6\ 
According to federal investigators, Katz ``lost the trust of some 
investigators from the FBI and Justice Department'' as a result in part 
of the ``reckless conclusions'' she drew in her book.\7\
---------------------------------------------------------------------------
    \6\ See id.  12-34.
    \7\ See Marc Perelman, Muslim Charities Sue CBS, Investigator, The 
Forward, June 13, 2003.
---------------------------------------------------------------------------
    According to the Washington Post, federal officials have sought to 
justify the raids ``as an `intelligence' probe, designed not 
necessarily to yield criminal charges but to track possible terrorist 
activity.'' \8\ This justification strongly suggests that the material 
seized in the March 2002 raids has been copied and shared with 
intelligence agencies under section 203(d) of the Patriot Act. As a 
result of amendments made to section 203(d) of the Patriot Act by the 
Homeland Security Act,\9\ the material may also have been shared with 
the intelligence agencies of foreign governments. As a result, it is at 
least possible the intelligence agencies of Syria, Saudi Arabia, or 
Egypt have been given some or all of the confidential files of the IIIT 
or the GSITSS, whose officers, directors and scholars have included 
prominent dissidents and scholars who seek to integrate Islam with an 
agenda for democratic reform. For example, Dr. Jamal Barzingi, a member 
of the board of the IIIT, prominent Muslim scholar and Iraqi-American, 
is a leading advocate of democratic reform. Dr. Barzingi was invited to 
advise the Iraqi Governing Council following the toppling of Saddam 
Hussein's regime in 2003.
---------------------------------------------------------------------------
    \8\ Jerry Markon, Affidavit Unsealed From Muslim Probe, Washington 
Post, Aug. 1, 2003, at A6.
    \9\ Homeland Security Act of 2002, Sec. 897, Pub. L. No. 107-296, 
116 Stat. 2135, 2257-58 (codified at 50 U.S.C. Sec. 403-5d). Section 
897 amends the general authority for sharing of criminal investigative 
information, such as the fruits of the search warrants executed in 
Northern Virginia, to include ``any appropriate Federal, State, local, 
or foreign government official'' See id. (emphasis added). The 
standards are somewhat narrower than for disclosure to United States 
intelligence agencies. Other provisions of the Homeland Security Act 
extend sections 203(a) and (b) to authorize the sharing of grand jury 
information and the fruits of criminal electronic surveillance with the 
intelligence agencies of foreign governments. See id. at Sec. Sec. 895, 
896.
---------------------------------------------------------------------------
    The raids in Northern Virginia did not affect only the Muslim 
community. The search warrants also included authorization to search 
the offices of Mar-Jac Poultry, Inc., a Gainesville, Georgia chicken 
processing company that produces halal chicken--chicken prepared under 
Islamic law. The search warrants were approved in the Eastern District 
of Virginia under the new nationwide search warrant power authorized by 
section 219 of the Patriot Act. Mar-Jac Poultry is a longstanding 
poultry business founded in 1948. It currently employs 1200 workers. No 
charges have been brought against Mar-Jac or any of its employees in 
over three years, but its reputation in the community has suffered a 
severe blow as a result of the raids and attendant publicity.\10\
---------------------------------------------------------------------------
    \10\ See Bill Torpy, Poultry Company Sues CBS over Terrorism Story, 
Atlanta Journal-Constitution, July 6, 2003.
---------------------------------------------------------------------------
    In a landmark case in 1965, the Supreme Court considered a criminal 
search warrant allowing the seizure of ``any books, records, pamphlets, 
cards, receipts, lists, memoranda, pictures, recordings, or any written 
instruments concerning the Communist Party of Texas and the operations 
of the Communist Party of Texas.'' \11\ The Supreme Court struck down 
the warrant, saying search warrants should be ``accorded the most 
scrupulous exactitude when the `things' are books, and the basis for 
their seizure is the ideas they contain.'' \12\
---------------------------------------------------------------------------
    \11\ Stanford v. Texas, 379 U.S. 476, 486 (1965).
    \12\ Id. at 485.
---------------------------------------------------------------------------
    As the Supreme Court has observed, ``The Bill of Rights was 
fashioned against the background of knowledge that unrestricted power 
of search and seizure could also be an instrument for stifling liberty 
of expression.'' \13\ The use of criminal investigative powers for 
intelligence-gathering ``fishing expeditions'' poses real dangers to 
civil liberties.
---------------------------------------------------------------------------
    \13\ Marcus v. Search Warrants of Property at 104 East Tenth St., 
367 U.S. 717, 729 (1961).
---------------------------------------------------------------------------
          SHOULD CONGRESS REAUTHORIZE SECTION 203(B) AND (D)?

    Before re-authorizing any expiring power, this subcommittee should 
require the Executive Branch to meet the standard articulated by the 
bipartisan 9/11 Commission:

          First, Congress should examine the provisions to 
        determine whether the government can show ``(a) that the power 
        actually materially enhances security and (b) that there is 
        adequate supervision of the executive's use of the powers to 
        ensure protection of civil liberties.'' \14\
---------------------------------------------------------------------------
    \14\ Final Report of the National Commission on Terrorist Attacks 
Upon the United States (``The 9/11 Commission Report'') 294-95 (2004) 
(boldfaced recommendation)

          Second, ``[i]f the power is granted, there must be 
        adequate guidelines and oversight to properly confine its 
        use.'' \15\
---------------------------------------------------------------------------
    \15\ Id.

    Only an intensive and painstaking process of examining the facts 
regarding the use of these powers can answer these questions.
    Until now, the government has fallen short on specifics. For 
example, the discussion of sections 203(b) and (d) in the Justice 
Department's ``sunsets reports'' does not describe any specific 
cases.\16\ Just last week, Senate Judiciary Chairman Arlen Specter 
expressed frustration at the Justice Department's inability to provide 
specific facts about the Patriot Act even in a classified setting. 
``This closed-door briefing was for specifics,'' Senator Specter 
explained. ``They didn't have specifics.'' \17\
---------------------------------------------------------------------------
    \16\ See sunsets report, supra n. 2.
    \17\ Eric Lichtblau, Specter Voices Frustration Over Briefing on 
Patriot Act, N.Y. Times, Apr. 13, 2005.
---------------------------------------------------------------------------
    The Justice Department claims civil liberties are adequately 
protected by Attorney General guidelines governing the sharing of 
criminal grand jury and wiretap information mandated by section 203(c) 
of the Patriot Act (a provision not subject to the sunset 
provision).\18\ These guidelines require information concerning United 
States persons to be labeled and treated in accordance with Executive 
Order 12333, which authorizes the intelligence community to ``collect, 
retain or disseminate'' information about U.S. persons where such 
information meets the definition of ``foreign intelligence or 
counterintelligence'' as well as for a host of other reasons.\19\ As 
section 203 of the Patriot Act authorizes sharing specifically of 
foreign intelligence and counterintelligence information, it is not 
clear what, if any, additional protection the Attorney General 
guidelines provide.
---------------------------------------------------------------------------
    \18\ Memorandum of the Attorney General, Guidelines for Disclosure 
of Grand Jury and Electronic, Wire and Oral Interception Information 
Identifying United States Persons, Sept. 23, 2002, available at: http:/
/www.usdoj.gov/olp/section 203.pdf
    \19\ Exec. Order 12333, 46 Fed. Reg. 59941 (Dec. 4, 1981) (set out 
as a note following 50 U.S.C.A. Sec. 401), at Sec. 2.3
---------------------------------------------------------------------------
    If the government can show that sections 203(b) and (d) ``actually 
materially enhance[] security,'' the danger to free expression from the 
misuse of criminal powers points to the need for stricter supervision 
of the Executive Branch than is provided by the guidelines.
    Section 203(a) of the Patriot Act permits sharing of otherwise 
confidential ``matters occurring before the grand jury'' with 
intelligence officials, but also requires notice to the court 
``[w]ithin a reasonable time after such disclosure. . . .'' Section 
203(a) is not subject to the sunset clause.
    The notice requirement of section 203(a) should be broadened from 
grand jury information to include all criminal investigative 
information shared with intelligence agencies, and notice should be 
made more meaningful. For example, notice to the court should include a 
statement of the good faith basis for the criminal investigation and 
provide some update as to the progress of that investigation. The 
notice should also be supplemented with a report on the disposition of 
the criminal investigation if no charges are brought. Such a 
requirement will serve as a valuable check on abuse of the criminal 
process for intelligence ``fishing expeditions.''
    A stronger notice requirement could also aid in Congressional 
oversight. Congress should consider reauthorizing some provisions of 
the Patriot Act, including sections 203(b) and (d), for some additional 
period of time, rather than making them permanent. Congress could 
include reporting requirements that would provide it with the same 
information a stronger notice requirement would provide to the federal 
courts.

                               CONCLUSION

    This subcommittee's review of the Patriot Act and related legal 
measures in the ongoing effort to combat terrorism is needed to ensure 
continued public support for the government's efforts to safeguard 
national security. The controversy over the Patriot Act reflects the 
concerns of millions of Americans for preserving our fundamental 
freedoms while safeguarding national security. To date, resolutions in 
opposition to parts of the Patriot Act and other actions that infringe 
on fundamental rights have been passed in in 377 communities in 43 
states including five state-wide resolutions. These communities 
represent approximately 56.9 million people who oppose sections of the 
Patriot Act.
    Such widespread concern, across ideological lines, reflects the 
strong belief of Americans that security and liberty need not be 
competing values. Congress included a ``sunset provision'' precisely 
because of the dangers represented by passing such far-reaching changes 
in American law in the aftermath of the worst terrorist attack in 
American history. Now is the time for Congress to complete the work it 
began when it passed the Patriot Act, by bringing the Patriot Act back 
in line with the Constitution.
    I thank you for this opportunity to testify and look forward to 
taking any questions you may have.

    Mr. Coble. Thank you, Mr. Edgar. And we have been joined by 
our friend from California, the gentlelady Ms. Waters. Good to 
have you with us.
    Now, folks, as I said to you all earlier, we have the 5-
minute rule against us, as well, so if you all could keep your 
answers as terse as possible.
    Mr. McCaul, in your experience in the Western District of 
Texas, how have sections 203(b) and (d) affected the wall 
between law enforcement agencies and the Intelligence 
Community, A? And, B, if we don't authorize these two sections, 
what is your response to that?
    Mr. McCaul. Thank you, Mr. Chairman. As I said in my 
testimony, when the wall came down it opened up the sharing of 
information between the Intelligence Community and the criminal 
division and the prosecutors. It has facilitated a nationwide 
effort to protect this country, because it's opened up 
information from all jurisdictions in the United States so we 
can freely share information.
    In fact, the FBI was, in my view, somewhat 
compartmentalized before this wall came down. Now the FBI is 
able to e-mail, for instance, to itself, and fully communicate, 
and then fully communicate with the prosecutors, as well.
    To answer your question, ``What would happen?'', if these 
two provisions are not reauthorized, in my view, it will 
resurrect, or erect, the wall again; which I believe would be 
the most disastrous thing that could happen to this country, 
given the examples that I talked about in my testimony between 
the Osama bin Laden investigation and the Wen Ho Lee 
investigation, the investigation into China, and other cases 
that I've illustrated in my testimony.
    In addition, I think the President's National 
Counterterrorism Center would be severely damaged by the--if 
this is not reauthorized; in the sense that this information 
could not freely flow within the Federal Government.
    Mr. Coble. I thank you, sir. Ms. Baginski, do you believe 
the need to share information between criminal investigators 
and intelligence investigators is likely to end soon, or do you 
believe these provisions will be needed for some extended time 
and should be made permanent? And by the way, I think you could 
make convincing arguments for permanent and sunset. But let me 
hear from you.
    Ms. Baginski. Sir, yes, I believe this will be around for 
some time, and that's because of the nature of the threat. And 
I would just offer up an example of looking at the situation in 
Spain, for example. You had radical Moroccans who entered 
Spanish society; made their living through drug trafficking and 
counterfeiting compact discs; bought the telephones from a 
known criminal international enterprise; bought the explosives 
from a local known criminal enterprise; stole a truck; and blew 
up passenger trains in Madrid. And my question is: Is that a 
criminal activity, or a terrorist activity?
    Mr. Coble. I thank you. Mr. Sabin, Mr. Edgar in his 
testimony, in his written testimony, referred to a series of 
raids in Northern Virginia in 2002, early 2002, that targeted 
prominent Muslim organizations and citizens. And he further 
indicated that no money laundering or terrorism financing 
charges have been brought against these organizations or their 
officers in over 3 years. What do you say to that? Or are you 
familiar with that?
    Mr. Sabin. Yes, I am familiar with it. I would respectfully 
suggest that that is not an accurate representation of the 
investigation. There have been two defendants convicted in 
matters arising from that investigation.
    Specifically, two search warrants were executed at the 
American Muslim Council and the American Muslim Foundation. The 
founder and president of those raided organizations, Mr. 
Alamoodi, was indicted, prosecuted, and convicted of terrorist 
financing related charges; specifically, violations of the 
International Emergency Economic Powers Act, immigration 
charges, and financial transactions involving state sponsors of 
terrorism, specifically Libya and Syria. He has pled guilty, 
and is cooperating with law enforcement.
    Second, Soliman Biheiri was prosecuted on two occasions and 
convicted for false statements in application for 
naturalization; received a sentence in the Eastern District of 
Virginia; and then was prosecuted again relating to false 
statements relating to passport, obtaining that by fraud, as 
well as material false statements in violation of 1001; and was 
convicted and sentenced for those crimes.
    In the search warrants, it related to his involvement in 
Hamas and the Palestinian Islamic Jihad, arising out of the 
racketeering indictment in Tampa, Florida, relating to Sami 
AlArian [ph] and others. That case is pending, and awaiting 
trial next month in Tampa, Florida. So there are two specific 
prosecutions that resulted from information from those 
searches.
    With respect to the argument that Mr. Edgar made, I would 
suggest that it's not related to why we are here today--
information sharing under section 203, but the fact that they 
made allegations regarding the predicate for obtaining those 
warrants. And I underscore that warrants were obtained through 
criminal process, at an article III court, by a United States 
District Judge, both for locations in Eastern District of 
Virginia and in Georgia. So----
    Mr. Coble. My red light is on, Mr. Sabin. Mr. Edgar, I'll 
examine you subsequently. I think we'll probably have a second 
round here.
    Mr. Scott. Did you let Mr. Edgar respond to the question?
    Mr. Edgar. I would like to respond.
    Mr. Coble. Well, my red light's on. Without objection, I'll 
hear from you, Mr. Edgar.
    Mr. Edgar. Yes, I just wanted to make very clear that, as 
my written statement makes clear, I'm discussing the raids of 
two different organizations, the Graduate School for the 
Institute of the Study of Islamic Social Sciences, and the 
International Institute of Islamic Thought, and their officers 
and directors. That's the only case in which the ACLU of 
Virginia intervened. It's the one in which we were concerned 
about the over-breadth of the search warrants and the first 
amendment materials seized.
    And I am advised by their attorney that there is no 
connection between their organization and the cases that were 
mentioned. You know, I think that there's no question that 
there have been cases where the Government has found some 
useful information, but I don't believe this was one of them.
    Mr. Coble. All right. I thank the gentleman.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. I wanted to follow up 
on that kind of over-breadth issue, because we've heard the 
word ``intelligence,'' and Ms. Baginski said that it involves 
those who would do us harm, and you need probable cause for a 
FISA warrant. That kind of implies that you need probable cause 
of a crime. And the Attorney General tried that out, too, the 
last time he was here, suggesting that you need probable cause 
for a crime for a FISA warrant. That's not actually true; is 
it?
    Ms. Baginski. No, sir. And if I made that suggestion, that 
was not what I intended.
    Mr. Scott. Okay. Now, what do you need probable cause of to 
get a FISA warrant?
    Ms. Baginski. What do you need? That you have an agent of a 
foreign power that is intended to do you some harm.
    Mr. Scott. Well, no, it's not trying to do you harm.
    Ms. Baginski. In the sense of, from my perspective--and 
pardon me if the phrase has caused us some concern----
    Mr. Scott. Well, the phrase causes concern because what you 
need is probable cause that you can get some foreign 
intelligence.
    Ms. Baginski. Yes, sir.
    Mr. Scott. Doesn't have anything to do with a crime. You're 
negotiating a trade deal----
    Ms. Baginski. From my perspective----
    Mr. Scott. This is spying. I mean, if you're negotiating--
from your perspective, but, you know, this is the over-breadth 
part.
    Ms. Baginski. No, I take your point, sir. The point----
    Mr. Scott. If you have information that the agent of a 
foreign government that you're doing a trade deal with--you can 
tap his phone.
    Ms. Baginski. The point that I would make relative to FISA 
is that foreign intelligence is actually governed by a series 
of priorities that are set by the President. They emanate from 
the President. They are turned into foreign intelligence 
collection priorities. And those priorities outline his 
national security concerns.
    Mr. Scott. When we're talking about over-breadth, you can 
get a FISA warrant if you've got probable cause that the guy's 
an agent of a foreign government, and you can get foreign 
intelligence which includes----
    Ms. Baginski. That's correct, sir.
    Mr. Scott. --things that have nothing to do with crimes, 
nothing to do with terrorism.
    Ms. Baginski. That's absolutely correct, sir.
    Mr. Scott. And that's the over-breadth part. And then, when 
you get all this information, without any probable cause of any 
criminal activity, then you can start passing it out all over 
town.
    You had Mr. Edgar's clients--how many people, Mr. Edgar, do 
you think have seen information that has first amendment 
implications, and possibly embarrassing information, on which 
the information was gathered without any connection with a 
crime?
    Mr. Edgar. Well, I don't know. I think that's a really 
serious question that we need to look at.
    Mr. Scott. Now, what checks and balances were there to 
oversee who was sharing what of that information?
    Mr. Edgar. Well, I think there are two problems, Mr. Scott. 
I mean, the first problem is the FISA problem, the use of 
intelligence authorities that don't need probable cause of 
crime to investigate for criminal purposes.
    Mr. Scott. Well, the Attorney General kind of implied that 
when we asked could we change the law on how you get a FISA 
warrant, that the significant purpose had to be foreign 
intelligence, not even the purpose.
    Mr. Edgar. Right.
    Mr. Scott. Which kind of invites the question, ``If the 
purpose wasn't foreign intelligence, what was it?'' And he 
blurted out ``criminal investigation''; which suggests that 
you're trying to do a criminal investigation without probable 
cause of a crime.
    Mr. Edgar. Well, I think that's right, Mr. Scott. Under 
section 218, I think that's a real danger. I think that under 
section 203, which is kind of the reverse section--this is the 
section about sharing crime information with intelligence 
agencies--you know, I do think that the FBI and DOJ make a fair 
point, that they have to get probable cause of crime for search 
warrants when they're doing criminal search warrants, criminal 
wiretaps.
    Mr. Scott. Okay, now, this thing goes two ways. You're 
talking about a criminal investigation, where you had to get 
the information with probable cause of a crime, going to 
foreign intelligence. The other is foreign intelligence 
information that you got----
    Mr. Edgar. Right.
    Mr. Scott. --without any criminal investigation, without 
any probable cause at all, just on curiosity. If you've got the 
agent of a foreign government, curiosity is about the only 
standard you need to get their phone, and to have the tap all 
over town with a roving wiretap. So that you really--the real 
problem is that kind of rumor and innuendo going into the 
criminal investigation.
    Mr. Edgar. Well, I think they're both problems, Mr. Scott. 
I mean, I think that the problem that you're addressing may be 
even more serious. The problem I'm concerned about here was at 
issue in the Northern Virginia raids; really is the use of a 
criminal investigation for really an intelligence-gathering 
investigation.
    Now, these are not, you know, my words. This is what agents 
were quoted in the ``Washington Post'' as saying as the reason 
why our clients--or the clients, I should say, in the case we 
intervened in, you know, weren't facing any freezing of their 
assets, any charges after 3 years.
    And I really think that it's wrong for the Government to 
essentially smear all of these people, these organizations, as 
having some connection with each other; when there really isn't 
that connection. I think that that's casting a broad brush.
    Now, there's no question that there have been people in 
Northern Virginia who were tried and convicted for some of 
these offenses that they're talking about. I'm concerned about 
casting such a broad net that we bring in legitimate academic 
institutions, or legitimate other institutions or think tanks, 
seize all their information, and then share it with U.S. 
Government intelligence agencies, or even foreign government 
intelligence agencies, when some of these Muslim-American 
leaders are in fact dissidents and are opposing their own 
government's policy. And I think that that shows the need for 
greater safeguards for sharing in both directions.
    Mr. Scott. Let me--I just have a couple of seconds left. I 
think we have ascertained, have we not, Ms. Baginski, that you 
can get a FISA warrant without any allegation of a crime?
    Ms. Baginski. Without any allegation of a crime, but driven 
by foreign intelligence priorities that----
    Mr. Scott. You can get a foreign--a FISA warrant without 
any allegation of a crime. Can you tell me what the status of 
the Levy guidelines is now?
    Ms. Baginski. The Levy guidelines, the Attorney General 
guidelines that have been updated most recently, and they are 
still in effect and being followed.
    Mr. Scott. Do you need to be investigating a crime to 
infiltrate organizations, or can you do it without looking at a 
crime?
    Ms. Baginski. Sir, I think that's a relatively broad 
statement, so can you give me a little bit more specific--what 
kinds of organizations?
    Mr. Scott. Well, the Levy guidelines before said you can't 
infiltrate somebody's organization unless you're actually 
investigating a crime. Now there's some suspicion that that 
practice, which has been the policy for years, since the 
1960's, is no longer in effect; so that the FBI and CIA and 
everybody can go infiltrate somebody's organization without a 
criminal investigation going on.
    Ms. Baginski. No, all investigations have to be 
predicated--and I've been at the FBI for 2 years, and that has 
been drilled into me, and that's what I've seen. The Attorney 
General guidelines are followed. They are overseen by the 
Justice Department. And if I'm not answering your question, 
I'll take it for the record.
    Mr. Scott. Mr. Chairman, could I--I just want to be very 
clear. So you are saying that you will not infiltrate an 
organization just to be gathering information? You will 
actually--if you infiltrate an organization, there actually is 
suspicion of a crime?
    Ms. Baginski. I think that, again, is a very broad 
statement. The FBI has an investigative mission that is a 
criminal investigative mission; but it also has an 
intelligence-gathering mission. And I don't know which you are 
asking me about in this case. Or if I'm not being clear, I'm be 
happy to take this for the record.
    Mr. Scott. Are we going to have another round?
    Mr. Coble. The gentleman's time has expired. Recognizing 
the gentlemen and the witnesses--or the Members in order of 
appearance, the gentleman from Ohio is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. Ms. Baginski and Mr. 
Sabin, if I could address my first question to you, could you 
tell us your views on the ACLU's notice proposal? In his 
written testimony, Mr. Edgar suggested that law enforcement 
should be required to notify a judge whenever criminal 
investigation--the investigative information is shared with the 
Intelligence Community, regardless of how it's collected, and 
should also be required to supplement that notice with a report 
on the disposition of the criminal investigation.
    So for example, investigators would be required to notify a 
judge even if they wished to share with the Intelligence 
Community foreign intelligence collected through a voluntary 
interview with a witness in a criminal case.
    As a practical matter, would such a requirement inhibit 
information sharing? And would such a requirement possibly 
reduce the flow of information provided to the National 
Counterterrorism Center?
    Mr. Sabin. Congressman, yes, it would inhibit the flow of 
information and restrict abilities of the Counterterrorism 
Center to robustly attempt to achieve its mission.
    For example, the key in this post-9/11 world is prevention. 
And that task force model, where people have certainty and 
trust and the ability to address the information in whatever 
form it comes, allows us to manipulate the information, exploit 
the information, and figure out for recommendations and 
decision makers what options, in terms of a national strategy, 
we can achieve in achieving the mission.
    So to specifically address section 203, section 203(a) 
involves court involvement relating to the grand jury 
information sharing process. Section 203(b) does not, relating 
to the title III information. But you have the predicate of 
going to an article III judge, seeking that wiretap, before you 
collect that information, as Ms. Baginski referred to earlier, 
and then specific reporting requirements regarding the 
obtaining and collection of the information relating to the 
title III wiretap.
    To impose that burden of judicial notification or other 
kind of good-faith recommendations that Mr. Edgar proposed 
fundamentally misunderstands the way section 203(d) is being 
undertaken on a daily basis by the folks both on the criminal 
and intelligence realms. That is the manner and means by which 
the executive is understanding the information we have, so that 
we can pool the information and make thoughtful and appropriate 
decisions in executing our strategies.
    Mr. Chabot. Thank you. Ms. Baginski, could you weigh in on 
that, too?
    Ms. Baginski. I think Mr. Sabin has actually covered this 
very, very well. It's the removal of the ambiguity that--I 
think as Mr. Sabin has described--that people in the room know 
that affirmatively they are to share this information. Some of 
the misunderstanding about the wall was the lack of an 
affirmative obligation to share in a law. And I think that this 
is--I think it would greatly inhibit the operations of the 
NCTC, and even the JTTFs.
    Mr. Chabot. Thank you. Mr. Edgar, to be fair, if you'd like 
to comment, I'd be happy to hear.
    Mr. Edgar. Sure. I mean, I certainly don't want to impose 
any unreasonable burdens on the Government. I think that we're 
talking about not a permission requirement, you know. I wanted 
to work with the Congress to address some of the serious 
issues, I think, that are posed by having physical search 
warrants, grand jury subpoenas, all this information shared.
    In the grand jury context, they already have to provide 
these notices. And so all I'm suggesting is that in the area of 
title III wiretaps, physical search warrants--maybe other 
information, maybe not--we can talk to about what kinds of 
things should be covered, or shouldn't; that there should be 
notice, and that it should provide a good-faith basis for the 
criminal investigation. It doesn't have to be an elaborate 
report.
    And I really--you know, it alarms me a little bit to--I 
just don't see how that's such a huge burden. We're not saying 
that it has to be done beforehand, you know. I think that 
information does have to be shared, you know, more quickly. 
And, you know, Congress can look at this, if we set another 
sunset date, look at it again, see if that's working, and 
adjust it then.
    Mr. Chabot. Okay. Thank you. Mr. Chairman, I want to thank 
you for holding this very important hearing. I know the yellow 
light has been on there for quite a while. So rather than 
overstay my time, I'll yield back the balance of this time.
    Mr. Coble. I thank the gentleman.
    The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman. In response to Mr. 
Edgar's observation about doing it post as opposed to a 
prerequisite, what's your response, Mr. Sabin?
    Mr. Sabin. With respect to 203(b), that's something we 
could take under consideration and have a discussion about. 
With respect to 203(d), relating to that sharing of 
information, I think that would put an unreasonable burden in 
terms of how we seek to exchange the information in a task 
force approach, and to do that efficiently and quickly.
    So that you have, for example, information gleaned from an 
interview that an FBI agent does, and then share that 
information with a colleague in the task force. You would then, 
according to 203(d) suggested recommended changes, go to a 
court, in order to have the court, the judiciary, involve 
itself in that purely executive investigative function--I think 
takes that kind of notice too far----
    Mr. Delahunt. Mr. Edgar?
    Mr. Edgar. Well, again, it's a notice requirement that 
basically just says, ``This is what we shared with the 
Intelligence Community, this is the good-faith basis of our 
criminal inquiry,'' that would help to provide some kind of 
check against the use of----
    Mr. Delahunt. You're suggesting this now in post?
    Mr. Edgar. Right. And, you know, I think that we can talk a 
little bit about how extensive that should be. I'm hesitant to 
say that it should only be for wiretaps because, of course, in 
the raids I described, I don't believe there were wiretaps.
    Mr. Delahunt. You've answered my question.
    Mr. Edgar. Okay.
    Mr. Delahunt. Because I think the problem that the 
Government has here is a widespread concern. And I think that 
was articulated in the September 11th Commission, in that 
second piece of the--that was referred to, I think, by Ms. 
Baginski, if I'm sure. So I mean, you know, this isn't just 
simply only about protecting those freedoms that we speak of; 
but also, reassuring the American people that there are 
sufficient checks and balances and notifications so that 
nothing untoward or unsavory is happening.
    And given the history, or given the level of misconduct, 
for example, that has been noted in a variety of different 
venues and forums by those in Government, I think that's 
something that really has to be entertained seriously by the 
Government. There has to be a larger, if you will, mission 
here: transparency.
    And I would suggest that every effort be made by the 
Government to take this concept of transparency as far as 
possible, to maximize it. Because with all due respect, that 
has not been my experience with the Department of Justice.
    I served on a Subcommittee--rather, a full Committee--at 
the invitation of the Chairman. It was a Government Reform 
Committee looking into the misconduct of the FBI in the Boston 
office. It was difficult getting information for the Committee 
relevant to incidents that occurred in the 1980's, the 1970's, 
and the 1960's.
    Finally, there was agreement, a consensus worked out 
through negotiations by Mr. Burton. And one could, I think, 
fairly describe him as a rather conservative Member of this 
Congress. He certainly--it's clear that he's a Member of the 
majority party. But it took, if you will, a unanimous vote, 
bicameral--rather, bipartisan--of the Committee, to issue a 
citation, a contempt citation, before the cooperation I think 
that was necessary--before that was forthcoming.
    So let's think in larger terms. I think this is a very 
interesting panel. I think some good points have been made. And 
I'm keeping an open mind. But I think, Mr. Edgar, why don't you 
draft kind of a white paper, you know? You're not as busy as 
these other folks. [Laughter.]
    And come up with some ideas and suggestions.
    Mr. Edgar. All right, for PATRIOT Act----
    Mr. Delahunt. Yes, for and against. I think you have a very 
balanced presentation.
    Mr. Edgar. Thank you.
    Mr. Delahunt. And the ACLU has credibility among, you know, 
certain segments of the American population; rather remarkably 
now, from the National Rifle Association and groups that are 
commonly described more progressive.
    And, you know, maybe it's time, Mr. Chairman, for some 
thoughtful discussion among all of the parties involved.
    Mr. Edgar. I appreciate that, and we'll undertake to get 
that to you, Mr. Delahunt.
    Mr. Coble. I thank the gentleman from Massachusetts. Mr. 
Edgar, I'm sure you're welcoming this assignment of additional 
homework that's been leveled upon you.
    The gentleman from California, Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman. I want to 
thank you and members of the staff for putting together this 
panel. These are serious issues. But I can't help but reflect 
back on a previous experience I had where I served as the vice 
chairman of the national commission that looked at the way we 
treated Japanese Americans and Japanese nationals during World 
War II; and recall the response of the Federal Government at 
that time, in face of a true national security concern, and the 
overreach and the, in hindsight, wrongheaded reaction of the 
Federal Government at that time.
    So while I am pleased, and share the concerns everybody 
does that we not abuse powers given to the Executive Branch, I 
just might say that it strikes me that this is a far better 
conversation to have post-9/11 than the discussions that were 
had and decisions that were made by the Federal Government 
post-Pearl Harbor, with the treatment of an identified ethnic 
group.
    That's not to suggest that those people that you've 
mentioned, Mr. Edgar, ought not to be concerned and ought not 
to look for indications of proper concern and proper 
sensitivity on the part of those serving in the Federal 
Government at the present time.
    The gentleman from Virginia mentioned some issues of over-
breadth, but his description of the law basically was just a 
description of the law, and not a description of over-breadth. 
The decision was made by the Congress to include sections 203 
and 218 in the PATRIOT Act precisely because we had a wall, and 
precisely because we thought it interfered with the proper 
exercise of Executive Branch activity in the area of both 
criminal law and national security intelligence issues.
    So a question I have for you, Mr. Edgar, is this. It seems 
to me, some of your complaint was really directed more to 218 
than to 203(b) and (d). And in the absence of amendment of 
either 203(b) or 203(d), do you individually, or your 
organization, support the sunsetting, permanent sunsetting, of 
those provisions?
    Mr. Edgar. Well, Mr. Lungren, I really hope we don't have 
to do that. I mean, I think that the whole point of the sunset 
provision was to give Congress a chance to have these hearings 
and to talk about what provisions needed to be kept or 
sunsetted or changed.
    You know, I think that, you know, I have a sort of a top 
five or so provisions of the PATRIOT Act that I'm most 
concerned about. I'm not sure 203 would be on it. It's an 
important provision, one that we think needs to be fixed. And, 
you know, we've suggested ways to fix it here. You know, I'm 
happy to get back to you about all of the 16 provisions.
    Our suggestion is to use the 9/11 Commission test. You 
know, first, does it materially enhance security? You know, 
we've heard a lot more detail today about the use of 203(b) and 
(d) than I've heard ever before, including in the sunset 
report. So we should study that. And then secondly, are there 
guidelines--are there other protections we can include? And 
I've suggested a few here for you.
    Mr. Lungren. Okay. Let me ask you a question on 203(d) with 
respect to the subsequent notification that you were 
suggesting. Would you tell me exactly how that would work? 
Exactly how, under section 203(d), where information that's 
obtained through a criminal investigation, that is shared with 
foreign intelligence--within the foreign intelligence activity 
of the Federal Government, or investigation of the Federal 
Government--how your notification would work?
    What exactly would the Government be required to do, and at 
what stage would they be required to do it? And how often would 
they be required to do it in a continuing criminal 
investigation?
    Mr. Edgar. Well, that's a great question. I think that if 
you look at 203(a) as somewhat of the model, which is for grand 
jury information, they say within a reasonable time notice has 
to be provided to the court. You know, I think that's a 
reasonable basis for all criminal information.
    It has to be--already, under the guidelines that I 
mentioned, it already has to be labeled as U.S. person specific 
foreign intelligence information, when it's shared and treated 
in accordance with Executive Order 12333. So they're going to 
already know what this is; you know, what the notice would 
apply to.
    Mr. Lungren. But I guess my question would be this.
    Mr. Edgar. Yes.
    Mr. Lungren. If you're sharing the information on day 13--
--
    Mr. Edgar. Right.
    Mr. Lungren. --and then more information develops in the 
criminal investigation on day 45, and then on day 60, is there 
a requirement for continued--I'm just asking for your idea. 
Would there be a----
    Mr. Edgar. Yes, well, I think there would have to be some 
kind of reasonable requirement, that's not overly burdensome, 
to keep the court currently informed on what's going on, and to 
provide the good-faith basis for the investigation. And that's 
something that could be worked out with guidelines; we could 
work on legislative language; however you would see fit to work 
on it.
    Mr. Lungren. Okay. Mr. Sabin--and I know we're asking you 
to talk sort of off the top of your head, here--but in what way 
would that interfere with the proper functioning of your office 
in the sharing of information?
    Mr. Sabin. I just don't see how that recommendation could 
work in the real world on a practical basis so that information 
can be timely shared between the law enforcement and national 
security officials. Indeed, I think probably the judiciary 
would be concerned about the imposition of all their resources 
and their involvement from their perspective in the ongoing 
Executive Branch prosecutorial investigation.
    Mr. Lungren. Okay. Well, that's kind of a conclusionary 
statement you made. Tell me why.
    Mr. Sabin. Well, it goes to----
    Mr. Coble. Mr. Sabin, wrap up rather quickly, because the 
time has expired and we've got to move along. But go ahead, 
sir.
    Mr. Sabin. Because it would develop uncertainty. It would 
undermine the ability to timely and specifically share that 
information so that we can act upon it in an aggressive and 
appropriately thoughtful manner.
    Mr. Coble. The gentleman's time has expired.
    The gentlelady from California, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman. And I, too, 
appreciate this hearing, and other hearings, because our 
Country is now in a position where we must decide how to make 
sure that we're offering the security to our Nation that all 
Americans should have. At the same time, how do we respect the 
Constitution and our civil rights and our civil liberties? And 
this is a debate that has been long in coming.
    Having said that, I'm going to take just one little portion 
here of the Congressman's testimony, the written testimony, 
that refers to the fact that the PATRIOT Act simply authorizes 
the use of roving wiretaps. And my question is, is this an 
over-simplification of section 206 of the PATRIOT Act? Isn't it 
more accurate that under the Act the FISA court can authorize 
wiretaps or intercepts on any phones or computers that any 
target may use; thus eliminating the particularity requirement 
to obtain warrants under the fourth amendment of the 
Constitution?
    I'm concerned because, I guess, in tearing down the wall 
under surveillance or investigation, any information that law 
enforcement wishes to share, it can share. And I'm not so sure 
whether or not the person sharing the information is ever 
involved in the court--a court action for prosecution, where 
they would determine how they got the information, what they 
really heard, and be sworn to tell the truth.
    And I'm also concerned that this roving wiretap, it just 
roves everywhere. It follows you for how long? For 1 year, 2 
years, 3 years, 10 years? For the rest of your life? It follows 
you to the athletic club; follows you to school, where you are 
a principal using the telephone? What are the restraints, what 
are the constraints? Why do you think it's not that important; 
it's just another security measure that is important to helping 
to secure the nation?
    Mr. McCaul. And I do appreciate your concerns. Maybe I can 
clarify some of them. One is that in the--I'd say for the last 
quarter of a century, in drug cases and organized crime cases, 
law enforcement has had the ability to wiretap not just one 
particular line, but the individual, themselves. So in other 
words, whatever phones they have access to, we can wiretap 
those phones.
    In answer to your question about the period of time, it's 
90 days. Under FISA, they are active for 90 days. Then we have 
to repetition to renew that FISA.
    Now, the standard for a FISA, as Mr. Scott pointed out, is: 
Is this person, is this individual an agent of a foreign power? 
Are they a foreign power, are they an agent of a foreign power? 
And, you know, there is a fine line, also, between someone 
who's in this country for clandestine purposes, and the 
criminal area, as well.
    In fact, the definition--to maybe clarify it for Mr. 
Scott--the definition of ``foreign intelligence information'' 
includes--and this is in the Foreign Intelligence Surveillance 
Act--includes crimes such as espionage, sabotage, or terrorism.
    When the PATRIOT Act was passed in 2001, Senator Leahy, who 
was Judiciary Committee Chairman in the Senate, stated, ``This 
bill breaks down traditional barriers between law enforcement 
and foreign intelligence. This is not done just to combat 
international terrorism, but for any criminal investigation 
that overlaps a broad definition of foreign intelligence.''
    And I think Mr. Sabin probably has examples. I do, as well. 
This is not just for fun and games. These are people in this 
country who because of security----
    Ms. Waters. May I interrupt you for 1 second? Because my 
time is going to be up in just a second. I want to be clear. 
Someone is under criminal investigation, or they're on 
surveillance for some reason--maybe not criminal investigation. 
They pick up some information, law enforcement, I suppose. Do 
they go to court prior to sharing that information with the 
Intelligence Community? Or do they just share that information 
with the Intelligence Community? Then after 90 days, are you 
telling me it is then the Intelligence Community that goes to 
court to be able to continue to place that person under roving 
surveillance? How does it work?
    Mr. McCaul. Well, really, the best I can do is to try to 
simplify it. There are basically two ways to obtain a wiretap 
in this country. One is under title III, which involves an 
article III judge, a Federal district judge. The other way to 
obtain a wiretap, under the Foreign Intelligence Surveillance 
Act, is to go to the FISA court. It's a three-member court that 
presides in the Department of Justice. Those are intelligence 
cases. And the standard is different for obtaining wiretaps.
    In a criminal case it's: Is there a probable cause that a 
crime is being committed? In a FISA intelligence--usually 
terrorist--case it's: Is this person--is there probable cause 
that they're an agent of a foreign power? If they are, that's 
the legal standard that you can obtain the wiretap.
    Prior to the FISA, interestingly, there was no restriction. 
The President had absolute authority for warrantless searches, 
with respect to national security. So that's sort of a history 
of it.
    When the--typically, if we had a wiretap in a criminal case 
and we wanted to share that, typically we would just amend the 
FCI, foreign counterintelligence, agents to our 6(e) list, our 
rule 6(e) list, and file that with court.
    Ms. Waters. I think I need some more time, but I won't try 
and take it now.
    Mr. Coble. We'll have a second round, Ms. Waters.
    Ms. Waters. All right. Thank you.
    Mr. Coble. The gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman. Like the other folks 
here, I really appreciate your having this hearing. This is 
important. On the other hand, it's not often we get a chance to 
cross examine under oath colleagues with whom we went through 
orientation, and perhaps explore some of their secret feelings 
under oath.
    I am curious. The sentence, ``The confrontation that we are 
calling for with the apostate regimes does not know socratic 
debates, platonic ideals, nor Aristotle diplomacy.'' Who wrote 
that?
    Mr. McCaul. This is--I think it's disturbing language. And 
the first time I read this, you know, when I realized the 
source, it is--it's very shocking, and it kind of--I think it 
demonstrates why we're here today. It says, ``Islamic 
governments have never, and will never be established through 
peaceful solutions and cooperative councils. They are 
established, as they always have been, through pen and gun, by 
word and bullet, and by tongue and teeth.''
    The words that Mr. Gohmert introduced, and that I finished, 
is the preface to the Al Qaeda training manual. And I think it 
gives great insight as to who the enemy is. It gives great 
insight into their thinking process and what they intend to do.
    And again, I think it demonstrates why the question is not 
if, but when and where the next attack will occur. That's why I 
believe reauthorization of this act is so important.
    Mr. Gohmert. Well, let me ask--and I'm not sure who would 
be the best to respond; perhaps the Department of Justice rep, 
or FBI rep. But with regard to the information sharing--and 
pardon my ignorance, but I'm not afraid to embarrass myself by 
asking silly questions; but I've got to ask. Who, specifically, 
is doing the analysis to determine what information is 
important and useful to the mission that may be shared?
    Ms. Baginski. That work is actually done in a combination 
of my intelligence analysts with agents. It is all directed by 
firmly established national intelligence requirements, where we 
are charged with responding to and producing information on 
very specific information areas that are defined by, currently, 
the Director of Central Intelligence and, in the future, the 
Director of National Intelligence.
    Mr. Gohmert. Well, what specifically is done to determine 
whether it's something that should be shared?
    Ms. Baginski. There are senior intelligence analysts, who 
are called ``reports officers.'' They review the sum total of 
the investigative product against those requirements. They put 
reports together, and those reports are approved by a chain of 
command that flows through my organization in the Intelligence 
Directorate.
    Mr. Gohmert. Okay. And then, are the reports entered into 
the data system that others with appropriate security clearance 
can access?
    Ms. Baginski. That's correct, sir.
    Mr. Gohmert. Are there forms that are filled out with 
personal information about individuals? Or is it just the 
report? I mean, how detailed is the information?
    Ms. Baginski. It is the information, and in every respect 
what we do is separate the information from the source and 
minimize the U.S. person information.
    Mr. Gohmert. Okay. When we talk about analysts and senior 
analysts, what type of educational background do these people 
have, and what type of clearance?
    Ms. Baginski. Our analysts are all cleared to the top 
secret code word, and then they have a few compartments, 
depending on the areas in which they're working. But the 
generic clearance would be that.
    The general background for our analysts now is, we have 
about 60 percent of the population of 1,922 to date that have 
advanced degrees. Many of them are lawyers; many of them are 
political scientists; many of them are linguists. They come 
from a very broad background, because what we're really looking 
for is their ability to think and make judgments based on 
information.
    Mr. Gohmert. Well, quickly--my time is running out----
    Ms. Baginski. Yes, sir.
    Mr. Gohmert. --but is there any routinely scheduled review 
after this information is shared, to determine whether it was 
appropriate to share it or not?
    Ms. Baginski. Yes, sir. Many of those things are done 
actually under the intelligence oversight processes that are in 
place, Foreign Intelligence Oversight Board, the HPSCI and the 
SSCI especially, with regard--and OIPR, of course, looks at 
that from our perspective.
    Mr. Gohmert. Do they look at specific cases of information 
sharing to determine if it was appropriately done? I know you 
said it flows through you, but I'm curious about oversight 
after the fact, to see if there was abuse.
    Ms. Baginski. Yes, there is oversight on both sides of 
that, through the intel committees and, of course, through our 
Office of Intelligence and Policy Review. But I would like to 
actually gather some more information. It's a very lengthy 
answer. So if you wouldn't mind receiving a written response to 
that, I could go through the various components.
    Mr. Gohmert. I would greatly appreciate that, very much. 
Thank you.
    Ms. Baginski. Okay.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman. We'll start a second 
round now, and we'll move this along. Ms. Baginski, this may 
have been touched upon, but let me put my oars in these waters. 
If section 203 were allowed to expire, would the FBI be unable 
to share some foreign intelligence that it collects with the 
National Intelligence Director?
    Ms. Baginski. Actually, not with the National Intelligence 
Director himself, because if you go back to the National 
Security Act, that provision has always been in there to 
actually share foreign intelligence that comes from criminal 
investigations with the DCI, and that has been amended now to 
be the DNI.
    Where you would have the problem is in a setting like the 
NCTC, where that sharing would be far less clear. You would not 
have the affirmative--the affirmative guidance to share that 
information more broadly than the DNI, who is just one person.
    Mr. Coble. So I take it that you believe that if it did 
expire it would hamper the effectiveness of the National 
Intelligence Director?
    Ms. Baginski. I do think so, in practice, yes, sir.
    Mr. Coble. Mr. Edgar, can you cite any examples, other than 
the Virginia incident you mentioned, that were not--where 203 
was not properly utilized or used?
    Mr. Edgar. Well, I think what we would need to do to look 
at that, Mr. Chairman, is to look at some of the ways in which 
some of the DOJ's criminal investigations have been very wide 
ranging after 9/11. One example I didn't include in my 
testimony--and maybe I can supplement it--there was an 
investigation including--I believe it was just the threat of a 
criminal subpoena that may have been withdrawn. But it involved 
an Ohio peace group at an Ohio university, where there was a 
lot of discussion about that.
    I think those are the kinds of things we're worried about, 
is that, you know, some of the criminal powers--you know, 
certainly, some of them require probable cause; some of them 
don't. And the law rightly gives these investigators wide 
latitude. So I could look at that Ohio case, and maybe some 
others as well.
    Mr. Coble. Yes. And you may supplement that, and we'll keep 
the record open for at least 7 days. When it was your belief 
that it was improperly approached, Mr. Edgar, did you report 
that to the Inspector General?
    Mr. Edgar. Well, I just have, you know, at your invitation, 
recently started to look at this whole issue, 203.
    Mr. Coble. Okay.
    Mr. Edgar. I can talk to the attorneys involved and see 
what they've done in terms of reporting. They have filed, 
actually, a civil rights lawsuit, so I think they've gone even 
further than that.
    Mr. Coble. Mr. McCaul, you were responding to Ms. Waters 
when the time expired. I have about two more minutes to go. Do 
you want to pick up on where you were?
    Mr. McCaul. Well, again, I think what the PATRIOT Act 
attempted to do is update to the modern age of technology, 
provide for a national system of search warrants; which is 
extremely effective, instead of having to go to each multiple 
jurisdiction. And the case I highlighted in my opening 
statement I think was a good example of that. And then, lastly, 
to apply some of these laws that we've been able to use against 
organized crime and drug dealers against terrorists and in 
these intelligence cases. Certainly, the roving, you know, 
wiretap is an example of one of those techniques that's been 
used for quite some time in those types of cases.
    And I have to emphasize that nothing is done without 
judicial review. It's not an abrogation of judicial authority. 
Everything that is done, whether it's a search warrant, a 
wiretap, an arrest warrant, is always done with judicial 
review; whether it's in the criminal side under, you know, 
article III, or in the FISA arena.
    Mr. Coble. I thank you. And you know, we've said nothing 
about this at this hearing, and this may not be the appropriate 
forum, but I have grave concerns about the connection between 
drug trafficking and terrorism. And that may be for another 
day.
    Does anybody want to weigh in on that now? That's not the 
topic at hand, but anybody want to? I've got about 50 seconds 
to go.
    Mr. Sabin. Chairman, I would, because I believe it 
emphasizes the manner in which information sharing needs to be 
robust. Because narco-trafficking, or narco-terrorism, is not 
when the information comes in relating to groups such as the 
AUC or the FARC down in Colombia, in and of itself, identified 
in some special package as foreign intelligence information. 
But you can have generating from narcotics investigations, from 
alien smuggling and human trafficking cases, from cyber crime, 
manners in which foreign intelligence, foreign intelligence 
information, or counterintelligence aspects are implicated.
    And that's why it's so crucial to be able to share the 
information to pursue those so that we can, in appropriate 
circumstances, in a transparent way, as Mr. Delahunt suggests, 
bring and use the criminal processes to achieve what we're 
trying to achieve.
    Mr. Coble. I thank you. My time has expired.
    The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Thank you. As we've established, a lot of this 
FISA does not require a crime as a predicate; just foreign 
intelligence which includes the conduct of foreign affairs, 
whatever that means. That could mean negotiating a trade deal 
or anything else, you can get information. And everybody has 
kind of alluded to terrorism as a--show the need for all this 
information sharing.
    So I'd just ask Ms. Baginski, would you agree to limit this 
just to terrorism, and not to trade deals and other things that 
don't have anything to do with a crime?
    Ms. Baginski. Not as an intelligence professional, no, sir.
    Mr. Scott. Okay.
    Ms. Baginski. Counter-espionage, I think, espionage, is 
another very good example of why you wouldn't limit it to 
terrorism. But I think the more important part is that on the 
collection end, a priori, you actually can't make a judgment 
about the reason that you collected it and the information that 
comes out the other end.
    Mr. Scott. Okay. Well, the answer is you don't want to 
limit it to terrorism. And just kind of the problem is, as the 
gentleman from Texas kind of pointed out, that there are 
essentially no outside checks and balances. Everybody that 
checks and balances is subject to the same chain of command. 
When the chain of command says, ``Do it,'' there's no judicial 
oversight or anything else. You just have to--have to do it.
    And when you start sharing this information, it's just not, 
you know--when it says sharing, which may not have been a crime 
to begin with, you can share this information with law 
enforcement, intelligence, protective, immigration, national 
defense, or national security. How many people exactly--by the 
time you've done all that how many people get to look? If 
you've got something embarrassing--not criminal, just 
embarrassing--how many people get to look at that information? 
Dozens? Hundreds? Thousands? I mean, how do you share it? Post 
it on the Internet? I mean, how do you--there is no limit.
    And when you start talking about getting this FISA, we've 
already--like I said, people keep talking about terrorism and 
all that. You can get the FISA warrants without a crime. All 
you have to do is show the probable cause it's an agent of a 
foreign government. How many people qualify under that ``agent 
of a foreign government?'' What kind of category is that? Does 
Osama bin Laden count as somebody you can get a FISA warrant 
against?
    Mr. Sabin. To answer your question, yes. Let's be clear 
regarding the use of the terms. As the FISA appellate court 
opined and specifically decided, the best use, often the best 
use of the FISA statute is through the criminal process. So I 
would respectfully disagree with you, Ranking Member Scott, 
that you cannot act as a predicate in order to seek a FISA 
warrant.
    Mr. Scott. No, I didn't say you could not use crime. You do 
not have to have crime.
    Mr. Sabin. Correct.
    Mr. Scott. You can get a FISA warrant, no crime even 
alleged or suspected.
    Mr. Sabin. Correct.
    Mr. Scott. Thank you.
    Mr. Sabin. But as part of the FISA appellate court----
    Mr. Scott. Oh, you may have a crime. May be terrorism.
    Mr. Sabin. Correct.
    Mr. Scott. Osama bin Laden, I mean, he's going to blow 
something up--it may be a crime; may not. That's the over-
breadth part of it. And we've already determined you don't want 
to limit it to terrorism. So you're including all of this other 
stuff. And then once you get--again, try to help me out. Who 
can you get a FISA warrant against? Who can be a target?
    Mr. Sabin. A foreign power, or an agent of a foreign power. 
But your analysis goes to the sharing----
    Mr. Scott. What foreign power is Osama bin Laden?
    Mr. Sabin. It would--related to Al Qaeda. Specifically, 
foreign terrorist organization, as determined under the 
Immigration and Nationality Act. There are present 40 foreign 
terrorist organizations that the Secretary of State, in 
consultation with the Attorney General and the Secretary of 
Treasury, have designated.
    Mr. Scott. They put your name on a list.
    Mr. Sabin. Correct. And that's why it's transparent, to go 
back to Mr. Delahunt's point; is that there is for all that 
interact between the individuals that are under the direction 
and control of the foreign terrorist organizations and those 
associate members.
    Mr. Scott. Can you do a ``lone wolf?''
    Mr. Sabin. Yes. That is what Congress provided in the 
Intelligence Reform Act 4 months ago in the December 
legislation. But that goes to the sharing----
    Mr. Scott. So the----
    Mr. Sabin. If I could finish----
    Mr. Scott. Well, let me just say this. If the Department of 
Defense designates somebody as a lone wolf, then you can start 
listening in.
    Mr. Sabin. No, it's not the Department of Defense. It's the 
Secretary of State, but----
    Mr. Scott. Okay, Secretary of Defense names somebody, and 
then they are the target of a FISA warrant.
    Mr. Sabin. That's not accurate.
    Mr. Scott. Okay.
    Mr. Sabin. Sir, you're talking about the sharing from the 
intelligence side, under sections 218 and 504, to the law 
enforcement side. This--sections 203(b) and (d) go the other 
way with respect to the sharing from the criminal law 
enforcement, to the national security officials. So that there 
is a reciprocal exchange of information sharing.
    So while the provisions of 218 and 504 complement and 
integrate with respect to the information sharing, they are 
separate from the sunset provisions relating to 203(b) and (d).
    Mr. Scott. Okay. Let me--let's get straight, then. Can you 
share FISA information with law enforcement?
    Mr. Sabin. Yes, pursuant to sections 218 and 504.
    Mr. Scott. Okay. And once you get the information from 
FISA--once you get a target, you can do a roving wiretap, as 
the gentlelady from California indicated?
    Mr. Sabin. Correct. Because we have seen that individuals 
use cell phones and are quick to avoid detection.
    Mr. Scott. And once the Secretary of State has designated 
that target and you get this roving wiretap, you can put a tap 
on every phone they use?
    Mr. Sabin. No. It has to be particular to the individual; 
not to the facility. That's the difference between a title III 
and a FISA wiretap. In terms of a title III, you have to have 
probable cause relating to--that a criminal activity is 
occurring----
    Mr. Scott. Well, no, we're talking about a roving FISA 
wiretap.
    Mr. Sabin. Correct. But that's the difference between the--
--
    Mr. Scott. Roving FISA wiretap. What can you put a bug on?
    Mr. Sabin. It depends on what the facility is used. You can 
do it for oral. You can do it for electronic. You can do it for 
a wire. But it has to be determined that--through the FISA 
court process; which is an article III judge.
    Mr. Scott. Once you get a FISA roving wiretap against 
somebody, you can put a bug on every phone they use.
    Mr. Sabin. If you establish the requisite reasons that they 
would seek to be using it to avoid detection and surveillance.
    Mr. Scott. Now, the Attorney General refused to agree to 
the suggestion that I made that you ought to ascertain, after 
you've gotten the bug there, that the target is actually in the 
building, using the phone. An ascertainment, you know, so that 
once you got a bug on the phone, on the pay phone on the 
corner, you want to make sure that it's actually the target 
using the phone, and not somebody else just using the phone.
    Mr. Sabin. Yes, but in the application and the affidavit 
sworn to by an officer, they have set forth the probable cause 
why that individual is an agent of a foreign power. So that's 
in the determination by the court.
    Mr. Scott. You have to list every phone they use in the 
warrant?
    Mr. Sabin. No. Because you don't know----
    Mr. Scott. That's right.
    Mr. Sabin. --what they're going to use and what----
    Mr. Scott. And so, without checks and balances, you put the 
bug on the corner telephone. And then the guy leaves the 
corner, and you don't stop listening.
    Mr. Sabin. Yes, but implicit in that assumption is the fact 
that you didn't make that showing to the article III FISA court 
judge. And if you can make that requisite showing, so that the 
judge has the confidence that the Government is appropriately 
seeking to use that investigative technique, then that is 
something that should be pursued.
    Mr. Scott. Once you have alleged that it's an agent of a 
foreign government, and you want the roving wiretap, does a 
judge have any discretion as to whether to issue the warrant or 
not?
    Mr. Sabin. Yes. You have to seek----
    Mr. Scott. Once you have made that--once you have stated 
that representation, that it's an agent of a foreign government 
and you want the roving wiretap because you're going to get 
some foreign intelligence, does the judge have discretion to 
say ``No?''
    Mr. Sabin. Yes. The judge can say that there's insufficient 
probable cause, that the Government has not met that standard. 
And so he can say ``No''--he or she can say ``No.'' Absolutely.
    Mr. Delahunt. Would the gentleman yield for a moment? 
Bobby?
    Mr. Scott. I yield whatever time----
    Mr. Coble. The gentleman's time has expired, but you'll do 
this very quickly.
    Mr. Delahunt. Yes. I think what the Ranking Member is 
alluding to is, is there minimization?
    Mr. Scott. Right.
    Mr. Sabin. Yes.
    Mr. Delahunt. Okay?
    Mr. Sabin. She wrote me a note--Ms. Baginski wrote me a 
note about minimization. And she can talk----
    Mr. Delahunt. Well, let me put my questions then to Miss--
--
    Mr. Coble. Well, gentlemen, if I may--let me get to the 
gentleman from Texas. Then I'll get with you next.
    The gentlelady from California, Ms. Waters, had to go to 
another meeting, and she has requested that her opening 
statement be made a part of the record. And with unanimous 
consent, it will be made a part of the record.
    The gentleman from Texas is recognized.
    Mr. Gohmert. Thank you, Mr. Chairman. Just quickly, you 
know, we do live in extraordinary times. And the type of 
weapons available, the terrorists, so exceed what there was 
available 200-plus years ago, it just couldn't have been 
foreseen. I understand we need additional investigative powers 
just to protect ourselves, but I am concerned about the level 
of supervision, and perhaps outside analysis. And for lack of a 
better term, what we used to say in the Army is there needs to 
be a pucker factor somewhere along the way, where people are 
actually worried.
    And I was trying to glean earlier what kind of pucker 
factor, or concern, would there be by an employee for their 
job, for their, you know, violating the law, going too far, if 
they put inappropriate information into the system, viewable by 
those that shouldn't see it, or pursue something that shouldn't 
have been?
    Mr. Sabin. This Congress passed section 223 of the PATRIOT 
Act, which provides for both administrative discipline for 
violation of the information sharing rules contained in title 
II, as well as the potential for a civil lawsuit.
    Also, under title XVIII, United States Code, relating to 
the wiretap provisions, I believe that would relate to section 
203(b), that if there is an improper disclosure there are also 
the potential for civil lawsuits or administrative discipline. 
So it's taken very seriously, with respect to potential 
consequences, for a willful violation of the statute and the 
provisions.
    Mr. Gohmert. A willful violation is what it has to be?
    Mr. Sabin. I believe so, sir.
    Mr. Gohmert. Yes. Mr. Edgar?
    Mr. Edgar. Yes, I was just going to say, the problem we see 
with section 223 is that it really requires the person to have 
found out about the surveillance.
    Mr. Gohmert. Well, in fact, you were going to my next 
question, if I could ask Mr. Sabin. You mentioned the lawsuits, 
the administrative action. But as Mr. Edgar says, someone's got 
to find out about that before they do it. And in my earlier 
questions, I was pursuing that.
    If there is no outside entity that has an independent 
objective look-see and files a routine report on anything 
that's inappropriate, then how would an individual find out 
that there was an actionable conduct?
    Mr. Sabin. What comes to mind is, first, if I'm not 
mistaken, under the Intelligence Reform and Prevention Act, 
that set up a civil liberties board in the Executive Branch, as 
well as the potential for referrals to the Inspector General 
relating to violations of the PATRIOT Act. So----
    Mr. Gohmert. And that's all within the Executive Branch, 
correct?
    Mr. Sabin. I believe that's correct, sir.
    Mr. Edgar. Well, in the civil liberties board, subpoenas 
can be blocked by the Attorney General, under a provision of 
that law, you know, that we objected to, but was enacted. One 
thing that I think would be helpful about the notice I'm 
talking about is, it's to the judiciary. And it's something 
that would provide that kind of pucker factor that you're 
talking about, you know, to say, ``Am I really going to file 
this notice?'' you know, ``Is this notice correct? Is it 
stating a good-faith basis?''
    Mr. Gohmert. And I mentioned this to Attorney General 
Gonzalez. I'll mention it to you. You surely have an 
appreciation of history. You understand, nothing personal in 
these kinds of questions. Because I know so many people very 
well that have absolute confidence in Attorney General 
Gonzalez, that I have complete confidence in him. I have 
complete confidence, and I admire and respect and appreciate 
President George W. Bush.
    My current concern is that we had a president in the early 
'70's that was not so concerned with honesty. We had an 
Attorney General under that Administration that had the same 
problem, and his general counsel. And then you look into the 
'90's, and we had an Administration that was so abusive that 
there were a thousand or so files in the White House.
    So if the oversight is the Executive Branch, I'm not 
concerned about this President; but I'm concerned about 
Presidents in the future that could be, their general counsels, 
their Attorneys General; and whether or not the Executive 
Branch at that point will be capable of slapping itself silly 
for having a thousand files and maybe sending some people to 
prison, as I've kind of felt like somebody should have 
investigated and pursued back in the '90's.
    So nothing personal. I'm sure you understand that. All 
right, thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman.
    The gentleman from Massachusetts, Mr. Delahunt, now you're 
recognized.
    Mr. Delahunt. I thank the Chair. A lot of what Congressman 
Gohmert articulated, I agree with. You know what I think might 
be worthwhile, Mr. Chairman, I think what we really need, 
because this is--some of this is esoteric and arcane, and 
unless you really understand the mechanics, it's difficult to 
comprehend.
    You know, we might want to consider doing a field trip. 
Remember those good old days? An afternoon? And actually walk 
through the process itself, so that it can--many of us learn 
visually, many of us learn by touching it, etcetera. But it 
does become arcane.
    But, you know, the point that Congressman Gohmert makes 
about, you know, who's there to review your analysis, your 
analysts, in terms of their examination of whether the sharing 
was appropriate or not--and again, he's correct; this is not 
directed--this is not ad hominem, but it's institutional. 
Because our history is replete, you know, with situations where 
that power has been abused. It goes to the system of checks and 
balances.
    And I don't know what the answer is to that, but I think 
you've got to come up with something. You know, maybe it's 
Congress that exercises that oversight. Are you collecting data 
on that information now? Do you have a system so that you could 
do a full report to the Committee on the Judiciary?
    Ms. Baginski. I could certainly report the information that 
has been shared with the Intelligence Community in the form of 
reports.
    Mr. Delahunt. What about have you had any experiences, 
whether it's inadvertent or otherwise, where information should 
not have been shared?
    Ms. Baginski. I have not, in my experience through the 
intelligence reports, no. And there is, I think, as you know, 
HPSCI and SSCI do considerable oversight on both the collection 
side, the appropriateness of how information was actually 
collected, and how do you share----
    Mr. Delahunt. How do you feel about the guidelines becoming 
statutory, with a discussion among Members of Congress about 
incorporating criminal sanctions?
    Ms. Baginski. The Attorney General guidelines?
    Mr. Delahunt. Uh-huh.
    Ms. Baginski. I haven't even given it any thought. But I 
think, on the face of it, I wouldn't have any problem with it. 
They're a very good framework.
    Mr. Delahunt. Mr. Sabin?
    Mr. Sabin. To get back to the pucker factor, there are 
career people that--and one of the lessons learned is the idea 
that we shouldn't tie ourselves and hamstring ourselves. While 
we would be receptive to analyzing that, I would be concerned 
that that may swing the pendulum too far, and people will have 
a concern about robustly sharing information.
    So while there needs to be the checks and balances and the 
transparency, I think that that might be too harsh a sanction. 
But we can sit down and talk about it.
    Mr. Delahunt. You know, I think it was Mr. Lungren that 
referenced the issues surrounding, you know, the mistreatment 
of Japanese Americans during World War II. And I think it was 
you, Mr. Edgar, that, you know, presented a case that you 
distinguished from those cases that were described by Mr. 
Sabin.
    Mr. Edgar. That's right.
    Mr. Delahunt. About the Islamic community here and the Arab 
American community here. I think everybody's sensitive to that. 
Maybe this is just a problem attendant toward the nature of 
investigations, period. But when you do a search, and that 
search receives considerable media attention, and who knows 
where it comes from--but there was one in my home city. I 
happened to be walking by. I live there. CBS was there and, 
Jesus, there was cameras and stuff going on. It was three or 
four years ago. And you know, nothing's happened. The business 
has gone out of existence, and reputations have been, you know, 
tarnished.
    If we're talking about the confidence of the American 
people in the integrity of the system, in how this democracy 
works, I think you've got to start to seriously consider a way, 
once an investigation concludes, to announce and to exonerate 
and, if need be, to apologize.
    I was a prosecutor a long time ago for a lot of years. You 
know, on different occasions, I had to stand up and say that, 
``We unintentionally erred, and we charged people with crimes 
that were innocent.'' But there's been a history of the Federal 
Government, the Department of Justice, through the years to 
subscribe to this, ``We can't comment.''
    Of course, it appears in the paper anyhow, and there are 
leaks. And we know how all--we all know how that game is 
played. But we hurt innocent people. And we diminish ourselves, 
and we diminish our liberties, and we diminish the confidence 
of the American people in the integrity of the system. Mr. 
Sabin?
    Mr. Sabin. Yes, Mr. Delahunt. And I fully agree that that 
is a valid objective. And I think I'm familiar with the matter 
that you're referring to in Boston. And I would refer your 
attention to the United States Attorney's Manual, sort of the 
bible of how we conduct our businesses. And there is a 
provision by which the U.S. Attorney can make a public 
announcement regarding the cessation or declination of a 
particular matter, if it's an appropriate set of circumstances.
    I would respectfully disagree that the Northern Virginia 
charities matter and that investigation is such an example. I 
can provide you the court decisions from Georgia and from the 
Eastern District of Virginia whereby----
    Mr. Delahunt. I think you're talking about different cases.
    Mr. Sabin. No, it's the same case, sir. With respect to the 
number of search warrants that were executed on the same day, 
there was a civil lawsuit brought, that he has referred to, 
against the case agent and a Government consultant. The Eastern 
District of Virginia dismissed the case against those 
individuals, finding that there was sufficient probable cause 
for the search warrant affidavits and that there was 
extensively detailed information accurately presented in those 
search warrant affidavits. That's transparent; that's public; 
that's on the record; and we can provide that.
    So with all due respect, not only have there been criminal 
prosecutions emanating from that investigation, but that there 
was appropriate use of the search warrants; that that is an 
ongoing investigation that has been previously publicly 
disclosed; and that the allegations relating to the Government 
case agent and to the Government consultant were dismissed by 
the court.
    Mr. Delahunt. I'm not suggesting--I'm not going to give you 
an opportunity to answer, because he's going to bang that gavel 
on me really soon. I'm just going to extend it.
    But I'm not even talking about those cases. And I'm not 
talking necessarily cases implicating terrorism and the PATRIOT 
Act. I'm talking about a wide, you know, variety of cases, that 
all too often, reputations are tarnished. And maybe it's time 
for Justice to examine the U.S. Attorney's Manual, understand--
to expand that provision in there that allows for public 
statements. Because I think it would go a long way to restore 
confidence in the DOJ and the process itself. Because it 
lingers out there, and it causes great harm to people.
    And I would just add one other thing. We're talking about 
sharing of information and the need to break down a wall. 
Again, I was a State prosecutor, Mr. Chairman, for a long time. 
And there still exist serious problems with the sharing of 
information by certain Federal agencies with local and State 
law enforcement officials in non-national security cases, but 
in traditional cases implicating violent crime; which obviously 
is a concern to all of us. Thank you, Mr. Chairman.
    Mr. Coble. And I didn't gavel you down, Mr. Delahunt.
    Mr. Sabin, I know you're on a short leash, and I know you 
have to get back to Justice soon. I'm going to recognize Ms. 
Waters right now. But before I do, as a follow-up to Mr. Scott, 
you're not suggesting, are you, Mr. Sabin--well, strike that. 
Are you suggesting that the State Department can designate a 
person as a lone wolf?
    Mr. Sabin. No.
    Mr. Coble. Okay.
    Mr. Sabin. No.
    Mr. Scott. How do you get designated as a lone wolf?
    Mr. Sabin. There are different mechanism by which you can 
be designated, that sort of makes you radioactive, to trigger 
violations of the material support statutes under 2339(a) or 
(b), or the International Emergency Economic Powers Act, under 
title 50, section 1705.
    Mr. Scott. The question was, how do you get designated a 
lone wolf for the purpose of a FISA warrant, that you can be 
the target of a FISA warrant?
    Mr. Sabin. That is information that is provided to the FISA 
court judges. I was talking about the invocation of criminal 
process in order to trigger those criminal statute violations. 
But in terms of the probable cause that is set forth in 
determining someone is a lone wolf, that's the factual 
information that is contained within the application and the 
affidavit to the court.
    Mr. Coble. We're on Ms. Waters' time. Let me recognize the 
gentlelady from California.
    Ms. Waters. Thank you very much, Mr. Chairman and Members. 
This subject interests me greatly because of what I learned 
about COINTELPRO. I don't know if any of you are familiar with 
COINTELPRO. Are any of you familiar with COINTELPRO?
    Mr. Edgar. Yes, Congresswoman. And I think that that is 
really the concern we have. It was a massive domestic spy 
operation throughout the '60's, '70's, about investigating 
peace groups.
    I mean, I do want to respond, again, about this Northern 
Virginia case. I want to make clear, I'm talking about the 
searches of the Graduate School of Islamic Thought and the 
institute--International Institute for Islamic Thought. I am 
informed that no charges are pending or have been made against 
any of those institutions. Their attorney was informed by the 
Government that they're not under investigation any more for 
terrorism financing. None of their assets have been frozen.
    And I do think that it's wrong to talk about all of these 
search warrants as if they're all involving all the same 
people. There are a lot of different groups and different 
individuals that were involved. And you know, if charges are 
going to be brought, fine. But I think that the concern we have 
is the breadth of those warrants were directed really to first 
amendment activities of those institutions. They were directed 
to any and all books, papers, pamphlets. It went through a 
whole list--if they referenced someone designated as a 
terrorist.
    And I think that, you know, it's important that our 
criminal investigative powers be used aggressively to stop and 
prevent crime. But when you're talking about those kind of 
over-broad warrants directed at people that at least for 3 
years have not been charged with anything, have not had their 
assets frozen, against those people, that we need to be careful 
about that.
    And we need to be careful about sharing that information 
with intelligence agencies, and with foreign Government 
intelligence agencies, without any kind of judicial 
supervision. That's the point I was making.
    Ms. Waters. Well, yes. Well, let me just say that there are 
victims of the COINTELPRO operation, some of whom are still 
alive today in other countries, who have never gotten justice 
from the operation of the Justice Department; and in the way 
that the intelligence agencies basically undermined them, their 
privacy, and basically identified them as something--
terrorists, or enemies of the state, you name it. I've always 
been concerned about that. And I just feel that maybe even some 
day we'll be able to bring that back to the Congress of the 
United States.
    But having said that, let me just ask a broad question. 
Some of us visit Cuba all the time. Some of us like going to 
Cuba. And some of us spend hours with Fidel Castro; talking 
with him; getting to know him; asking him questions about the 
revolution; talking about what he refers to as the blockade; on 
and on and on and on. And we learn an awful lot.
    Recently, I learned in the hearings that are taking place 
in the Senate that Mr. Bolton had tried to get the Intelligence 
Community to confirm that there were biological weapons being 
developed by the Cuban Government--which turns out not to have 
been true; but there was some attempt to get that done.
    Now, if I'm visiting Cuba, or Members of Congress are 
visiting Cuba, we're meeting with Fidel Castro; we're talking 
with him. And an investigation is going on about the 
development of biological weapons, etcetera. Are we then under 
investigation, also? How does it work?
    Mr. Sabin. Well----[Laughter.]
    Want me to take a stab at that? [Laughter.]
    Ms. Waters. Ha-ha-ha-ha. Yeah. How does it work?
    Mr. Sabin. I mean, I think that's not directly related to 
the information-sharing provisions, and I think we are----
    Ms. Waters. Well, that's okay, you----
    Mr. Sabin. And our scope----
    Ms. Waters. You are supposed to know these things.
    Mr. Sabin. Well, actually, having come from South Florida, 
where I was the criminal chief and the first assistant, I am 
familiar with espionage cases that were brought against agents 
of the Fidel Castro regime that worked down in South Florida, 
for which we invoked the criminal process and obtained 
convictions against a group of spies that had infiltrated 
certain locations in South Florida.
    So Congress has passed a specific series of statutes that 
you cannot undertake certain transactions with certain 
particular designated foreign nations. And there are exceptions 
to those broad restrictions. And it would depend upon the 
specific factual circumstances, as to who was going, whether 
you obtained a license from the office----
    Ms. Waters. We're going. We're legal. We go through the 
Treasury Department. They know we are there. We go down; we 
have dinner; we smoke a cigar with Fidel; we talk to him. Are 
we under surveillance?
    Mr. Edgar. Congresswoman, can I----
    Mr. Sabin. I'm not looking at your activities, Congressman 
Waters. I can't speak for others.
    Mr. Edgar. I, obviously, can't answer that question; other 
than to say that, you know, what you're describing is, under 
the definition of the statute that we've been talking about, 
foreign intelligence. It's not just--like we said, it's not 
just criminal. Foreign intelligence means--I'm reading from 
Justice Department's testimony here--information relating to 
the capabilities, intentions, or activities of foreign 
governments, or elements thereof, foreign organizations, or 
foreign persons.
    So certainly, anything about, not just Fidel, but any 
Cuban, would be a foreign person, and information about his 
intentions or capabilities. So, you know, it's certainly 
something that would be foreign intelligence information. So if 
it was acquired in a criminal investigation, it could be 
shared, under 203(d), 203(b), if it was acquired in a--you 
know, and it could be the basis, possibly, for a FISA wiretap.
    Mr. McCaul. If I could comment--and I'm quoting from the 
FISA court of review's opinion. It's the only opinion, 
appellate opinion, from the FISA court. It says the definitions 
of agent of a foreign power and foreign intelligence 
information are crucial to understanding the statutory scheme.
    And this is where I think we need to really focus on, 
because I think we're getting off track. It's information that 
relates to the ability of the United States to protect against 
actual or potential attack, or other grave hostile acts of a 
foreign power. That's one.
    Ms. Waters. Well, that fits my question.
    Mr. McCaul. Sabotage or international terrorism. Number 
three, clandestine intelligence activities. And it further 
provides, this information necessary to the national defense or 
security of the United States.
    Ms. Waters. It all fits my question. I just--I set it up 
for you. And I told you about the suspicion that there were 
biological weapons that were being made. That's under 
investigation--let's say it's under investigation. We're 
traveling down there; we're meeting with him; we're talking 
with him. So what happens? Are we under surveillance? Are we 
under--do we become a part of that investigation?
    How far does the roving wiretap extend? Does it extend from 
the person who is the subject of the investigation to other 
people who the subject is in contact with on an ongoing basis, 
on an official basis? How does all this stuff work?
    Mr. Coble. Ms. Waters, would you suspend for just a moment?
    Ms. Waters. Yes.
    Mr. Coble. I promised Mr. Sabin I'd get him back to 
Justice. Would you object, Ms. Waters, if they responded in 
writing?
    Ms. Waters. Yeah--but I'm going to let him go, because I 
know he knows. I can see that look on his face. [Laughter.]
    He knows.
    Mr. Sabin. [Laughs] Just read that look, Congressman.
    Mr. Coble. Well, I thank the gentleman.
    Ms. Waters. Okay, we'll have to excuse him. All right.
    Mr. Coble. Folks, it's been a good hearing.
    Mr. Scott. Mr. Chairman?
    Mr. Coble. Yes, sir?
    Mr. Scott. I just wanted to read the definition of 
``foreign intelligence information.'' It has a lot of 
clandestine activities, but information relating to the 
national defense or security of the United States. But it also 
says ``or the conduct of the foreign affairs of the United 
States''; which could be anything. I mean, that could be a 
trade deal, trying to get somebody's bottom price on steel. 
That's the conduct of foreign affairs of the United States. And 
if that's your predicate for getting this roving wiretap, 
listening to everybody's information, that's a fairly casual--
--
    Ms. Waters. It's big.
    Mr. Coble. Well, this will be ongoing. I want to thank all 
of you. Mr. McCaul, this is a case of first impression. I just 
told Mr. Scott, you're the first Member I've ever known to give 
his testimony and stay until the last dog is hanged. 
[Laughter.]
    So I thank you for that.
    Mr. McCaul. I was asked to do so. And thank you, Mr. 
Chairman.
    Mr. Coble. Folks, we thank you all for your testimony. The 
Subcommittee very much appreciates it.
    In order to ensure a full record and adequate consideration 
of this important issue, the record will be left open for 
additional submissions for 7 days. Also, any written questions 
that a Member wants to submit should be submitted within the 
same 7-day period.
    This concludes the oversight hearing on ``The 
Implementation of the USA PATRIOT Act, the Effect of sections 
203(b) and (d) on Information Sharing.'' Thank you for your 
cooperation, and the Subcommittee stands adjourned.
    And Mr. Sabin, I hope you get back in time.
    [Whereupon, at 5:10 p.m., the Subcommittee was adjourned.]
                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security

    Thank you, Mr. Chairman. I am pleased to join you in convening this 
hearing on subsections 203(b) and (d) of the USA PATRIOT Act. We 
sunsetted those provisions, along with a number of other provisions, 
where we were exposing the public to extraordinary federal government 
police powers to pry into and individual's private activities and 
spread information collected all over town without direct court 
supervision and oversight.
    Our country's founders were leery of government power, particularly 
in the area of the criminal law. So, checks and balances were made an 
integral part of the criminal justice system to ensure citizens would 
be secure against unwarranted government intrusion into their private 
properties and affairs, and that the government could not easily prove 
crimes against accused persons, or accomplish a similar result by use 
of government powers to harass or smear a citizen.
    Today, with the cost of legal representation and a contingent of 
the media eager to exploit sensationalism, mere suspicion or 
investigation of crime can result in much of that from which our 
founders sought to protect us. We will hear of an example of this type 
use of extraordinary government powers from one of our speakers today.
    Mr. Chairman, as a compromise on not getting the level of judicial 
supervision and oversight many of us felt warranted in connection with 
the extension of these extraordinary powers, by unanimous vote of the 
full Committee, we voted to sunset these provisions after 2 years. This 
would allow us to exercise Congressional oversight of these 
extraordinary powers on a short leash. However, against the might of 
the Administration and the Senate, we ended up with a 4 year sunset. 
While I expect we will hear testimony about how useful the provisions 
have been, we will still not know much about the great bulk of 
information that is being shared, what percentage of it is useful, what 
use is made of it and what is being done with the information 
collected, that which is used and unused.
    I look forward to the testimony of our witnesses and the light they 
will shed on these issues. Thank you.
                               __________
Prepared Statement of the Honorable Maxine Waters, a Representative in 
                 Congress from the State of California

    Mr. Chairman, the overwhelmingly tragic events of 9/11, 
demonstrated the need for better communication between law enforcement 
and the intelligence communities. The USA Patriot Act was enacted in 
response to those events in an atmosphere of fear. The Act was passed 
just six weeks after the September 11th attacks. Because Members of 
both parties recognized the potentially huge impact of the Patriot Act 
on civil liberties and basic constitutional protections, the Act 
included a ``sunset'' clause that provided that over a dozen of the 
Act's provisions will expire, unless Congress acts to renew them.
    Mr. Chairman, I believe that the Patriot Act is a lopsided response 
to the events of 9/11 that requires significant correction. While the 
Act does encourage increased information sharing between law 
enforcement and intelligence agencies, it does not provide adequate 
safeguards to protect the constitutionally guaranteed rights of 
American citizens, including the rights to privacy. The lawful 
activities of innocent Americans are being swept up within the 
authorities created by the Act because we have failed to require a need 
before particularized showing of wiretaps are allowed.
    Mr. Chairman, section 203 (b) and section 203 (d) of the Patriot 
Act provide no safeguards to protect our rights to privacy or our civil 
liberties. Neither section ensures proper oversight by judges of the 
sharing of information between law enforcement and intelligence 
agencies, or of the monitoring of the information obtained. More 
specifically, these sections 203 (b) and 203 (d) allow law enforcement 
agencies to share intercepted telephone and Internet conversations with 
intelligence agencies, but do not require a court order by a judge to 
authorize the sharing of this information. Furthermore, the CIA is not 
prohibited from providing this information freely-even to foreign 
intelligence operations.
    Mr. Chairman, this Act has made our Federal Judiciary Branch a 
bystander and has relegated Federal judges to the sidelines. The Act 
and allows the Federal government to conduct investigations and to 
determine how to the handle any information obtained through such 
investigations, without any oversight. As a result, law enforcement and 
intelligence agencies may secretly spy on Americans and freely share 
the sensitive information gained through their investigative efforts 
with whomever they deem fit. There are absolutely no specified 
limitations on how the information gained was obtained and how it can 
or cannot be used or disseminated.
    Mr. Chairman, as we consider whether to reauthorize the provisions 
of the Patriot Act that will sunset at the end of this year, we cannot 
be content to rest on simple assurances of good faith by the law 
enforcement and intelligence communities. We must restore a role for 
our judiciary that will allow them to protect the constitutional rights 
of all of our people.
    Therefore, I look forward to hearing from our witnesses today to 
determine what steps are required to protect the civil liberties and 
privacy rights of all Americans, while still preserving the very 
important role of the Judicial Branch.
    I yield back the balance of my time.

       Prepared Statement of the Honorable Sheila Jackson Lee, a 
           Representative in Congress from the State of Texas



Brief Amicus Curiae of the American Civil Liberties Union of Virginia, 
  Inc. in Support of Motion for Return of Property and to Unseal the 
                        Search Warrant Affidavit




                                 
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