[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
20-707 WASHINGTON : 2005
_____________________________________________________________________________
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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\
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\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\
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\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).
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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.
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\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).
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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.
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\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\
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\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.
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\2\ United States Dep't of Justice, USA PATRIOT Act: Sunsets Report
(April 2005)
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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