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



IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS 
            THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)

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

                                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 26 AND APRIL 28, 2005

                               __________

                           Serial No. 109-17

                               __________

         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
20-875                      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

                              ----------                              

                             HEARING DATES

                                                                   Page
Tuesday, April 26, 2005first date deg.
  Part I.........................................................     1

Thursday, April 28, 2005second date deg.
  Part II........................................................    39

                           OPENING STATEMENT
                 April 26, 2005first date deg.

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
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     3

                April 28, 2005second date deg.

The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................    39
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................    40
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................    41

                               WITNESSES
                 April 26, 2005first date deg.

The Honorable Mary Beth Buchanan, United States Attorney, Western 
  District of Pennsylvania, U.S. Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     7
Mr. James A. Baker, Counsel for Intelligence Policy, U.S. 
  Department of Justice
  Oral Testimony.................................................    13
  Prepared Statement.............................................    15
Ms. Suzanne Spaulding, Managing Director, The Harbour Group, LLC
  Oral Testimony.................................................    19
  Prepared Statement.............................................    20

                April 28, 2005second date deg.

Mr. Kenneth L. Wainstein, interim U.S. Attorney, District of 
  Columbia
  Oral Testimony.................................................    43
  Prepared Statement.............................................    46
Mr. James A. Baker, Counsel for Intelligence Policy, U.S. 
  Department of Justice
  Oral Testimony.................................................    55
  Prepared Statement.............................................    57
Mr. Robert S. Khuzami, former Assistant U.S. Attorney, Southern 
  District of New York
  Oral Testimony.................................................    61
  Prepared Statement.............................................    63
Mr. Gregory T. Nojeim, Associate Director/Chief Legislative 
  Counsel, American Civil Liberties Union
  Oral Testimony.................................................    67
  Prepared Statement.............................................    69

                                APPENDIX
               Material Submitted for the Hearing Record
                 April 26, 2005first date deg.

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.......................................................   109
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................   109
Letter from Jamie E. Brown, Acting Assistant Attorney General, 
  U.S. Department of Justice, dated April 30, 2003, to the 
  Honorable Orrin Hatch, Chairman, Committee on the Judiciary, 
  United States Senate...........................................   111
Letter from Jamie E. Brown, Acting Assistant Attorney General, 
  U.S. Department of Justice, dated March 5, 2003, to the 
  Honorable Orrin Hatch, Chairman, Committee on the Judiciary, 
  United States Senate...........................................   120
Letter from Daniel J. Bryant, Assistant Attorney General, U.S. 
  Department of Justice, dated July 31, 2002, to the Honorable 
  Bob Graham, Chairman, Select Committee on Intelligence, United 
  States Senate, and the Honorable Richard C. Shelby, Vice-
  Chairman, Select Committee on Intelligence, United States 
  Senate.........................................................   121

                April 28, 2005second date deg.

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.......................................................   126
Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................   126
Redacted document ACLU received in response to a request under 
  the Freedom of Information Act to disclose activity related to 
  Transactional Records National Security Letters issued since 
  October 26, 2001...............................................   128
Letter from William E. Moschella, Assistant Attorney General, 
  U.S. Department of Justice to the Honorable Richard B. Cheney, 
  President of the Senate, United States Senate..................   134
Letter from William E. Moschella, Assistant Attorney General, 
  U.S. Department of Justice to L. Ralph Mecham, Director, 
  Administrative Office of the United States Courts..............   136
Form National Security letter from the U.S. Department of Justice   138
Illustrations to show the implications of the PATRIOT Act and Doe 
  v. Ashcroft on Section 2709 of the Electronic Privacy Act......   140

 
IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS 
            THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)



                                 Part I

                              ----------                              


                        TUESDAY, APRIL 26, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 10 a.m., in Room 
2141, Rayburn House Office Building, the Honorable Howard Coble 
(Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. This week 
the Subcommittee on Crime, Terrorism, and Homeland Security 
will continue to review its review of the USA PATRIOT Act by 
conducting three hearings.
    These hearings will examine the provisions that affected 
the Foreign Intelligence Surveillance Act of 1978, popularly 
known as FISA. Today we will hear testimony on sections 204, 
207, 214, and 225 of the PATRIOT Act.
    Additionally, we have asked the witnesses to address 
sections 6001 and 6002 of the Intelligence Reform and Terrorism 
Prevention Act of 2001, which amended FISA. These sections are 
similarly set to expire on December 31 of this year.
    The witnesses will discuss each provision in depth. With 
that in mind I will keep my comments brief and just mention the 
history of the Foreign Intelligence Surveillance Act of 1978. 
The Congress enacted the first Federal wiretap statute to 
prevent disclosures of Government secrets during World War I. 
Today, except under limited circumstances, it is unlawful to 
intercept oral, wire and electronic communications, access 
stored electronic communications, or use a pen register or trap 
and trace device.
    It is furthermore unlawful to abuse electronic surveillance 
authority under the FISA. Today the U.S. Courts tend to use a 
two-pronged expectation of privacy analysis to determine 
whether the fourth amendment has, in fact, been violated.
    This language is from Justice Harlan's concurrence in 
Silverman v. United States, in which he stated, and I quote, my 
understanding of the rule that has emerged from prior decisions 
is that there is a twofold requirement, first, that a person 
have exhibited an actual or subjective expectation of privacy, 
and second, that the expectation be one that society is 
prepared to recognize as reasonable, close quote.
    Consistent with the fourth amendment, the Congress created 
statutory procedures to allow limited law enforcement access to 
private communications and communication records. Today under 
title III of the Omnibus Crime Control and Safe Streets Act of 
1968, it is a Federal crime to intercept wire, oral, or 
electronic communications of another without court approval, 
unless one of the parties consents.
    It is also a Federal crime to disclose any information 
illegally obtained. The Crime Control Act did not cover 
national security cases, however. In 1978, the Foreign 
Intelligence Surveillance Act was enacted to set standards for 
foreign intelligence investigations.
    FISA authorized the Government to collect intelligence 
within the United States on foreign powers and agents of 
foreign powers. FISA also established a special court to review 
and authorize or deny wiretapping and other forms of electronic 
eavesdropping for purposes of foreign intelligence gathering in 
domestic intelligence cases.
    While the PATRIOT Act updated the FISA, it did not change 
the procedures against abuse. Before and after the enactment of 
the PATRIOT Act, FISA still requires advanced judicial approval 
for electronic surveillance and physical searches with limited 
exceptions.
    FISA still requires a high-ranking Government official to 
sign and certify each FISA application. FISA still requires the 
Attorney General or his or her deputy to personally sign and 
approve every FISA application. FISA still requires that the 
Government must have probable cause to believe that a FISA 
target is an agent of a foreign power as defined by the 
statute.
    And, if the target is also a U.S. Citizen, FISA still 
requires the Government to show that the target is engaged in 
criminal activity, such as international terrorism, sabotage or 
espionage, in addition to being an agent of a foreign power.
    With this background on FISA, I look forward to hearing the 
testimony from the witnesses, and now recognize the 
distinguished gentlemen from Virginia, the Ranking Member, Mr. 
Bobby Scott, for his statement.
    Mr. Scott. Thank you, Mr. Chairman, for holding this 
hearing on the issues before us today, in the context where we 
have actually broken down the wall that existed between foreign 
intelligence gathering, particularly foreign intelligence, and 
criminal proceedings, to give the Government broad authority to 
collect and share information, mostly secret.
    I am concerned that we have also blurred the traditional 
line of protection for freedoms and privacy. While I agree that 
some lifting of traditional restrictions in this area may be 
justified in order to induce Government to better use the 
authorities it already has, I am also mindful that those 
restrictions were placed there for good reason.
    We have seen in the past the COINTELPRO, Watergate, FBI 
spying on Martin Luther King, Jr., and other incidents as an 
example of what can occur if we do not keep tight enough rein 
on Government's use of extraordinary power.
    We should not have to experience those problems again in 
order to ensure that such abuses do not occur. Some of the 
provisions today reflect a trend that is troubling, the trend 
of Government to justify an ever-increasing extension of 
extraordinary powers based on convenience. We are considering 
time frames for surveillance operations that have been extended 
even more since the PATRIOT Act extensions, all because the 
Government says it is too costly for it to have to justify 
extensions in court, even under the low burden of the FISA 
court.
    If we can commit to speed to spend billions of dollars in 
prisons and other law enforcement costs just to codify sound 
bites urged by the Department, we can certainly spend time and 
expense that it takes to ensure our privacy and freedoms are 
not unduly abridged.
    And, Mr. Chairman, I believe it is important that we be 
safe and maintain our privacy and freedoms, and I don't think 
we should have to operate under the premise that we have to 
give up one in order to get the other.
    So, Mr. Chairman, I look forward to the testimony by 
witnesses on the provisions before us today, to learn how they 
are being used and how these extraordinary powers can be 
authorized, whether or not the sufficient oversight is being 
undertaken, and whether the powers are used in a way to protect 
our safety as well as privacy and freedoms. And I thank you 
again for calling the hearing.
    Mr. Coble. I thank the gentleman from Virginia. We have 
been joined by the distinguished gentleman from Michigan, the 
Ranking Member of the full Committee. Mr. Conyers, do you have 
an opening statement?
    Mr. Conyers. Just a comment. Thank you, Chairman Coble. We 
have three Members and three witnesses, so we all get a chance 
to make a comment.
    I come here in support of expiration. There are three areas 
that I would like to see expire and not be renewed. One is 
section 207, one is section 214, and the other is the Lone Wolf 
provision, and I would like everybody to try to make it as 
clear as they can why they agree with me, hopefully.
    Section 207 allows secret surveillance up to a year. The 
justification for allowing the extraordinary intrusions under 
the Foreign Intelligence Surveillance Act is the extensive 
judicial oversight by the FISA court. This section takes that 
reasonable oversight away and gives the Justice Department 
authority to surveil suspects long after the relevant issues, 
the facts have expired, and I think that is not good.
    I look forward to hearing why section 214 should be 
reauthorized. Pen register and trap and trace orders no longer 
are needed to be aimed at an agent of a foreign power under 
this provision and are available under the vague standard of 
relevance. This is even more troublesome in light of how the 
PATRIOT Act has permanently expanded these orders to allow the 
Government to record the websites a person visits, and 
addresses and subject headings of the e-mails that are sent and 
received.
    And, finally, I hope that we examine the Lone Wolf 
provision, also set to expire this year, where a person need 
not be required to be connected with a terrorist organization.
    FISA allows the secret surveillance, search and seizure, 
only because it is necessary to protect us from foreign powers. 
To expand FISA to apply to those who by definition have no 
connection to a foreign power starts law enforcement down a 
very obvious slippery slope.
    And those are my comments, Chairman Coble. I thank you for 
this opportunity.
    Mr. Coble. I thank the gentleman from Michigan.
    Ladies and gentleman, it is the practice of the 
Subcommittee to swear in all witnesses appearing before us. 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.
    You may be seated. Today we have three distinguished 
witnesses. Our first witness is Mary Beth Buchanan, United 
States Attorney for the Western District of Pennsylvania.
    Ms. Buchanan has this distinction of being the first woman 
in Pennsylvania's history for this presidentially appointed 
position. Prior to her appointment as U.S. Attorney, Ms. 
Buchanan was an Assistant U.S. Attorney.
    From 1992 to 2001, Ms. Buchanan served in the Criminal 
Division representing the United States in the prosecution of 
both financial and violent crimes. Ms. Buchanan is a graduate 
of the California University of Pennsylvania and the University 
of Pittsburgh School of Law.
    Our second witness is Mr. James A. Baker. Mr. Baker has 
been a Counsel For Intelligence Policy in the Office of 
Intelligence Policy and Review at the Department of Justice 
since 2002.
    He served as Acting Counsel from May 2001 until January of 
2002. Prior to that he was OIPR's Deputy Counsel for 
Intelligence Operations. Prior to joining OIPR, he served as a 
Federal prosecutor handling numerous international white collar 
crimes for the Criminal Division of the Department of Justice.
    Mr. Baker was awarded his undergraduate degree from the 
University of Notre Dame and his J.D. And M.A. From the 
University of Michigan.
    Our final witness today is Ms. Suzanne Spaulding, the 
Managing Director at the Harbour Group. Recently Ms. Spaulding 
worked as the Executive Director of the two Congressionally 
mandated Commissions, the National Commission on Terrorism and 
the Commission to Assess the Organization of the Federal 
Government to Combat the Proliferation of Weapons of Mass 
Destruction.
    Ms. Spaulding received her undergraduate and law degrees 
from the University of Virginia.
    Now, ladies and gentlemen, as you all have previously been 
told, we operate by the 5-minute rule here. Your testimony has 
been reviewed and will be rereviewed. So if you could comply 
with that 5-minute rule. We impose the same 5-minute rule 
against us when questioning you all. So when we examine you, if 
you can be as terse as possible that will speed matters along. 
I do not mean to hold a stopwatch on you, but we have things to 
do today.
    So, Ms. Buchanan, you will start off. When the amber light 
appears that will advise you that you have a minute to go, and 
when the red light appears that indicates that the ice on which 
you are skating has become very thin.
    Just a minute. If you will suspend, Ms. Buchanan, we have 
been joined by our friend from Massachusetts, Mr. Delahunt.
    Ms. Buchanan, you are recognized for 5 minutes.

 TESTIMONY OF THE HONORABLE MARY BETH BUCHANAN, UNITED STATES 
ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA, U.S. DEPARTMENT OF 
                            JUSTICE

    Ms. Buchanan. Thank you, Mr. Chairman, Ranking Member 
Scott, Members of the Subcommittee. I am Mary Beth Buchanan, 
the United States Attorney for the Western District of 
Pennsylvania, and also the Director of the Executive Office for 
United States Attorneys.
    It is an honor to appear before you today to discuss the 
necessary provisions of the USA PATRIOT Act. As you know, there 
are three main themes of the PATRIOT Act: First, to facilitate 
the sharing of information between law enforcement and the 
intelligence communities; second, to modernize our legal tools 
to keep pace with technology; and, third, to create parity 
between the criminal law and the national security laws.
    My remarks today will focus primarily on this third theme. 
Section 214 of the PATRIOT Act deals with the use of pen 
registers and trap and trace devices under FISA. A pen register 
is a device that can track dialing, routing, addressing, and 
signaling information about a telephone or Internet 
communication.
    For example, which numbers are dialed from a particular 
telephone. A trap and trace device gathers the telephone 
numbers which call a particular telephone. In neither situation 
is content information collected. These devices are commonly 
used in the early stages of a criminal investigation to reveal 
who is talking to whom, and they can only be used upon 
certification to a judge that the information is relevant to an 
ongoing criminal investigation.
    The information obtained often forms the building blocks 
supporting the issuance of search warrants and wiretap orders, 
and may also be very valuable at trial to show the connection 
between coconspirators.
    The process for obtaining authorization for pen register or 
trap and trace from the FISA court is similar under section 
214. The Government must show that the FISA court--or must show 
the FISA court that the information sought is relevant to an 
intelligence investigation. The FISA law, however, prohibits 
investigations of United States persons which are based solely 
upon activities that are protected by the first amendment.
    Let me give you two examples of how pen registers have been 
used in criminal cases in my district. The first example is a 
domestic terrorism case in which David Wayne Hull, a self-
declared imperial wizard of the Ku Klux Klan was convicted and 
sentenced to 12 years in prison for illegal possession of 
firearms and destructive devices.
    In that case, the use of pen registers and trap and trace 
devices showed that Hull was in frequent telephone contact with 
other members of a white supremacist organization, not only in 
Pennsylvania but in four other States. These tools eventually 
helped to obtain search warrants and title III orders and to 
convict Hull for those offenses.
    Pen register information was also very essential to develop 
probable cause for a wiretap in a large multi-year drug 
investigation. Fifty-one defendants, responsible for bringing 
thousands of kilograms of cocaine and heroin into the Western 
District of Pennsylvania were convicted on money laundering, 
drug and firearm charges.
    The pen registers helped to develop the probable cause to 
establish that these individuals were communicating with one 
another in order to transact their drug trafficking business. 
This information led to wiretaps and ultimately resulted in the 
conviction of all 51 defendants. In fact, most of the 
defendants pled guilty because they realized they had no 
defense to the charges.
    More importantly, this case had a substantial impact upon 
the Western District of Pennsylvania. The availability of 
heroin and cocaine was dramatically reduced. In fact, the 
heroin overdose deaths declined from 138 in 2001 to 46 in 2003.
    These are just a few examples to show how important these 
tools can be in criminal investigations. The same tools must be 
available in national security investigations. Prior to the 
passage of the PATRIOT Act, FISA required the Government to 
certify that the facilities to be monitored had been used or 
were about to be used to contact a foreign agent or an agent of 
a foreign power.
    Thus, this was a much higher standard and a much higher 
showing than was ever required under the criminal law to obtain 
a pen register or a trap and trace order. I hope that you will 
agree that terrorism investigations should be on equal footing 
with criminal investigations.
    Section 214 of the PATRIOT Act does just that. We must 
continue to pursue the terrorists with every legal means 
available. We need the important tools of the PATRIOT Act to 
keep our Nation safe from terror attack.
    I thank the Committee for its continued leadership and 
support, and I would be glad to answer your questions. Thank 
you.
    [The prepared statement of Ms. Buchanan follows:]

                Prepared Statement of Mary Beth Buchanan



    Mr. Coble. Thank you, Ms. Buchanan. Mr. Baker, you are 
recognized for 5 minutes.

 TESTIMONY OF JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY, 
                   U.S. DEPARTMENT OF JUSTICE

    Mr. Baker. Thank you, Mr. Chairman. Chairman Coble, Ranking 
Member Scott and Members of the Committee, I am pleased to be 
here today to discuss the Government's use----
    Mr. Coble. Mr. Baker, if you will suspend just a minute. We 
have been joined by the distinguished gentleman from Ohio, Mr. 
Chabot.
    Go ahead, Mr. Baker. I won't penalize you for those 10 
seconds, Mr. Baker.
    Mr. Baker. Thank you, sir.
    I am pleased to be here today to discuss the Government's 
use of the authorities granted to it by Congress under FISA, 
including the amendments to FISA under the USA PATRIOT Act and 
the Intelligence Reform Act of 2004. Those provisions have made 
a critical contribution to our ability to protect the national 
security of the United States consistent with the need to 
protect the privacy of Americans.
    They affect nearly every FISA application that we file, and 
we ask you to renew them. As the Chairman mentioned, I am the 
Counsel for Intelligence Policy and the head of Office of 
Intelligence Policy and Review at the Department of Justice.
    OIPR, as we are known, conducts oversight of the 
intelligence and counterintelligence activities of the 
executive branch agencies, including the FBI, and my office 
prepares and presents to the FISA court all FISA applications, 
and we represent the United States before the FISA court.
    I report directly to the Deputy Attorney General. I am a 
career member of the Senior Executive Service and not a 
political appointee.
    Rather than reading my written statement into the record 
today, I would just like to make a few observations about FISA 
that I think will be helpful to our discussion generally today. 
First, I would just like to mention the overall purpose of 
FISA. As the Chairman discussed, FISA was enacted in 1978 to 
provide legislative authorization for and regulation of all 
electronic surveillance conducted in the United States for 
foreign intelligence purposes. FISA was not intended to 
prohibit the collection of important foreign intelligence 
information, but rather to subject such collection to statutory 
procedures.
    Over the years, Congress has expanded the scope of FISA. In 
1994 it was expanded to cover physical searches, in 1998 to 
provide for separate authorization for pen registers and access 
to certain business records. In 2001, of course, we have the 
PATRIOT Act that we are all familiar with and why we are here 
today.
    In addition to that purpose of FISA, I would like to make 
clear, to describe that FISA established clear standards for 
who could be a target under FISA. Since 1978, the only 
authorized targets of full content FISA collection have been 
foreign powers and agents of foreign powers. Those terms are 
defined terms under the act. The PATRIOT Act did not change the 
definition of those terms.
    As you know, section 6001 of the Intelligence Reform Act 
did change one of the definitions of an agent of foreign power 
to include a non-U.S. Person who engages in international 
terrorism or activities in preparation therefor. This is the 
so-called Lone Wolf provision that we will discuss today.
    Similarly, FISA only permits the use of other collection 
activities, such as pen registers, when there is a sufficient 
nexus between the information that will be collected and a 
legitimate intelligence investigation. And when the 
investigation involves a U.S. Person, it cannot be based solely 
on first amendment activities.
    In addition, FISA includes various provisions to ensure 
accountability for the authorizations that are approved under 
FISA. It includes mechanisms, several mechanisms to ensure 
written accountability within the executive branch for the 
decision to engage in foreign intelligence collection. This 
serves as a check on executive branch arbitrariness. For 
example, each full content FISA application must have a 
certification from a high ranking official and must be signed 
by the--personally signed by the Attorney General or his 
Deputy. And FISA's other provisions also include mechanisms to 
ensure accountability.
    In addition, there is judicial oversight of our activities 
under FISA. Whenever a surveillance or a search for foreign 
intelligence purposes may involve the fourth amendment rights 
of any U.S. Person, approval for such collection must come from 
a neutral and detached Federal judge.
    Moreover, even when such fourth amendment rights are not 
implicated, such as for pen register data, FISA still requires 
approval by a Federal judge or magistrate before the Government 
can engage in such collection.
    Finally, I would like to highlight some additional privacy 
protections that are in FISA, and they are known as 
minimization requirements. The Government may only conduct a 
full content surveillance or search when there are adequate 
procedures in place to minimize the intrusion into the privacy 
of U.S. Persons. Each application that we file for full content 
collection must include specific minimization procedures that 
are approved by the Attorney General, are reasonable in their 
design, and minimize the acquisition, retention and 
dissemination of information about U.S. Persons, consistent 
with the need of the Government to obtain, produce, and 
disseminate foreign intelligence. In each case, the Federal 
judge orders the Government to follow those procedures.
    With these principles in mind, I am happy to answer any 
questions the Committee may have on our use of FISA and the 
authorities granted to us by Congress in the PATRIOT Act and 
the Intelligence Reform Act.
    [The prepared statement of Mr. Baker follows:]

                  Prepared Statement of James A. Baker



    Mr. Coble. Thank you, Mr. Baker. Ms. Spaulding.

TESTIMONY OF SUZANNE SPAULDING, MANAGING DIRECTOR, THE HARBOUR 
                           GROUP, LLC

    Ms. Spaulding. Chairman Coble, Ranking Member Conyers, and 
Subcommittee Ranking Member Scott and Members of the Committee, 
thank you for inviting me to participate in today's hearing.
    I understand that this is just one of many hearings the 
Committee will be holding on the implementation of the USA 
PATRIOT Act. I commend you for your commitment to undertaking a 
thorough examination of these significant provisions.
    I would like to begin my testimony by emphasizing that I 
have spent over 20 years working on efforts to combat 
terrorism, starting in 1984 as Senior Counsel to Senator Arlen 
Specter of Pennsylvania, who introduced and guided to enactment 
the first law to provide extraterritorial jurisdiction over 
terrorist attacks against Americans abroad.
    Over the last 2 decades in my work at the Central 
Intelligence Agency, at Congressional intelligence oversight 
Committees, and as Executive Director of two independent 
commissions, I have seen how the terrorist threat changed, from 
one aptly described in the mid-1980's by Brian Jenkins'famous 
remark that, quote, terrorists want a lot of people watching, 
not a lot of people dead, to one that is now more aptly 
described by former DCI Jim Woolsey's observation that the 
terrorists of today don't want a seat at the table, they want 
to destroy the table and everyone sitting at it.
    There is no question that today we face a determined set of 
adversaries bent on destroying American lives and America's way 
of life. The counterterrorism imperative is to deny the 
terrorists both of these objectives.
    My testimony this morning attempts to assess how well two 
key provisions, in particular the Lone Wolf amendment and 
section 214, satisfy this counterterrorism imperative. Let me 
start with the Lone Wolf amendment to FISA.
    The Foreign Intelligence Surveillance Act is an extremely 
important national security tool. The problem with the Lone 
Wolf provision is that it needlessly undermines the policy and 
constitutional justification for this essential authority. The 
Lone Wolf provision is often referred to as the Moussaoui fix. 
But, in fact, no fix was needed in the Moussaoui case, because 
it was not FISA's requirements that prevented the FBI from 
gaining access to his computer back in August of 2001. The 
problem was the FBI's misunderstanding of FISA's requirements.
    This conclusion is supported by the findings of the Joint 
Congressional Intelligence Committee inquiry into the 9/11 
attacks, an exhaustive Senate Judiciary Committee inquiry, and 
the 9/11 Commission.
    As the Senate Judiciary Committee report explained, the FBI 
did not have a proper understanding of either the probable 
cause standard or the legal definition of the agent of a 
foreign power requirement. Specifically, the Bureau was under 
the incorrect impression that the statute required a link to an 
already identified or recognized terrorist organization.
    The Senate Judiciary Committee report explains that while a 
group is not defined in FISA, in common parlance and using 
other legal principles, including criminal conspiracy, a group 
consists of two or more persons whether identified or not. And 
the probable cause standard does not mean more likely than not 
or an over 51 percent chance, but only the probability and not 
a prima facie showing.
    The report concluded that the Government did have 
sufficient information to meet the FISA standard and gain 
access to Moussaoui's computer.
    Some would argue that we ought to include the Lone Wolf 
amendment to FISA anyway, just in case. The problem with this 
reasoning is that it comes at a high cost. In addition to being 
unnecessary, the Lone Wolf provision, by extending FISA's 
application to an individual acting entirely on their own, 
undermines the policy and constitutional justification for the 
entire FISA statute.
    When Congress enacted FISA, according to the Senate report, 
it carefully limited its application in order to, quote, 
``ensure that procedures established in FISA are reasonable and 
in relation to legitimate foreign counterintelligence 
requirements and the protective rights of individuals. Their 
reasonableness depends, in part, upon an assessment of the 
difficulties of investigating activities planned, directed and 
supported from abroad by foreign intelligence services and 
foreign-based international terrorist groups.''
    The Congressional debate and the court cases that informed 
and followed it clearly reflect the sense that this limited 
exception from normal criminal warrant requirements is 
justified only when dealing with foreign powers or their 
agents, and was further enforced in the FISA court of review 
opinion.
    Congress should let the Lone Wolf provision sunset. If the 
Government can make a compelling case that targets have escaped 
necessary surveillance because the Government has been unable 
to meet the relatively low probable cause standard for showing 
that at least one other person is involved, Congress could 
consider creating a permissive presumption that if there is 
probable cause to believe that a non-U.S. Person is engaged in 
or preparing for international terrorist activities they can be 
considered an agent of a foreign power. However, if it 
ultimately becomes clear that the target is acting alone a 
criminal warrant should be sought.
    And I would be happy to address sections 214 and 207 in the 
question and answer period.
    [The prepared statement of Ms. Spaulding follows:]

               Prepared Statement of Suzanne E. Spaulding

    Mr. Chairman, Ranking Member, and members of the committee, thank 
you for inviting me to participate in today's oversight hearing on the 
implementation of certain sections of the USA PATRIOT Act and the Lone 
Wolf provision, all of which are subject to sunset provisions. I 
understand that this is just one of many hearings that the committee 
will be holding on the implementation of USA PATRIOT Act and I commend 
the committee for its commitment to undertaking a thorough examination 
of these significant provisions.
    I would like to begin my testimony today by emphasizing that I have 
spent over twenty years working on efforts to combat terrorism, 
starting in 1984 as Senior Counsel to Senator Arlen Specter of 
Pennsylvania, who introduced and guided to enactment the first law to 
provide extraterritorial jurisdiction over terrorist attacks against 
Americans abroad. Over the last two decades, in my work at the Central 
Intelligence Agency, at congressional intelligence committees, and as 
Executive Director of two different commissions on terrorism and 
weapons of mass destruction, I have seen how the terrorist threat 
changed from one aptly characterized by Brian Jenkins famous remark 
that ``terrorists want a lot of people watching, not a lot of people 
dead,'' to one better described by former DCI Jim Woolsey's observation 
that ``the terrorists of today don't want a seat at the table, they 
want to destroy the table and everyone sitting at it.'' There is no 
question that today we face a determined set of adversaries bent on 
destroying American lives and our way of life. The counterterrorism 
imperative is to deny the terrorists both of these objectives.
    My testimony this morning attempts to assess how two key 
provisions, the Lone Wolf amendment and section 214, satisfy this 
counterterrorism imperative.

                               LONE WOLF

    The Foreign Intelligence Surveillance Act (FISA) is an extremely 
important national security tool. The problem with the Lone Wolf 
provision is that it needlessly undermines the policy and 
constitutional justification for this essential authority.
    The common wisdom--``if it ain't broke, don't fix it''--was ignored 
when Congress enacted the ``lone wolf'' amendment to the Foreign 
Intelligence Surveillance Act (FISA), allowing its use against an 
individual acting totally alone, with no connection to any foreign 
power, so long as they are ``engaged in international terrorism or 
activities in preparation therefor.''
    I think it's important for the committee to separate the true lone 
wolf from the case of someone who's connection to a terrorist group is 
simply unclear. If there is a legitimate concern about the ability of 
the government to show the necessary connection to an international 
terrorist group--and I am not convinced there is--then there are better 
ways to address this concern than to extend FISA to someone that we 
know is acting entirely alone.
    Let's start with the case of someone who's connection to an 
international terrorist group may be unclear. I would urge the 
committee to carefully consider whether the government has made a 
compelling case that they need the lone wolf provision to address this 
concern.
    The lone wolf provision is often referred to as the ``Moussaoui 
fix.'' In fact, no ``fix'' was needed in the Moussaui case because it 
was not FISA's requirements that prevented the FBI from gaining access 
to his computer back in August of 2001. The problem was the FBI's 
misunderstanding of FISA. This conclusion is supported by the findings 
of the Joint Congressional Intelligence Committee Inquiry into the 9/11 
Attacks, an exhaustive Senate Judiciary Committee inquiry, and the 9/11 
Commission.
    In order to obtain a FISA order authorizing access to Moussaoui's 
computer, the FBI needed to show probable cause to believe that 
Moussaoui was acting ``for or on behalf of a foreign power.'' A foreign 
power is defined to include a group engaged in international terrorism. 
As the Senate Judiciary Committee Report explained, the FBI 
misunderstood the FISA requirement:

        In addition to not understanding the probable cause standard, 
        the (the Unit Chief) did not have a proper understanding of the 
        legal definition of the ``agent of a foreign power'' 
        requirement. Specifically, he was under the incorrect 
        impression that the statute required a link to an already 
        identified or ``recognized'' terrorist organization, an 
        interpretation that the FBI and the supervisor himself admitted 
        was incorrect.

FBI Oversight in the 107th Congress by the Senate Judiciary Committee: 
FISA Implementation Failures, An Interim Report by Senators Patrick 
Leahy, Charles Grassley, & Arlen Specter (February 2003) at p. 17.

    The Judiciary Committee Report, echoing the House Report 
accompanying FISA in 1978, explained that while ``a group'' is not 
defined in FISA, ``in common parlance, and using other legal 
principles, including criminal conspiracy, a group consists of two or 
more person whether identified or not.'' Moreover, remember that the 
FBI does not have to ``prove'' the target's connection to a terrorist 
group. They must merely meet the ``probable cause'' standard, which, as 
the Judiciary Committee Report points out, does not mean ``more likely 
than not'' or ``an over 51% chance,'' but ``only the probability and 
not a prima facie showing.'' The Report concluded that ``there appears 
to have been sufficient evidence in the possession of the FBI which 
satisfied the FISA requirements for the Moussaoui application'' (p. 
23). Thus, no ``fix'' was required to search Moussaoui's computer.
    Even if the FBI had not been able to meet the relatively low 
``probable cause'' standard for showing that Moussaoui was working with 
at least one other person, the FBI could very likely have obtained a 
criminal warrant to search Moussaoui's computer. They did not pursue 
that because they were concerned that doing so would preclude them from 
getting a FISA warrant later if they were turned down for the criminal 
warrant or ultimately did develop what they thought was sufficient 
information linking him to a terrorist group. This concern was based on 
the ``primary purpose'' test--viewed as precluding the use of FISA if 
the primary purpose was criminal prosecution rather than intelligence 
collection--which was subsequently changed in the USA PATRIOT Act.
    Now that this ``primary purpose'' test has been eliminated, and 
particularly in light of a subsequent opinion by the Foreign 
Intelligence Surveillance Court of Review, this would no longer be a 
concern and the government today could seek a criminal warrant without 
concern of precluding future use of FISA.
    Nor would the need to use sensitive information in the criminal 
warrant application be a compelling concern, since the criminal wiretap 
statute already imposes security requirements upon the judiciary in 
connection with crimes such as espionage, sabotage, and treason. In 
addition, classified information already is shared with judges in the 
context of the Classified Intelligence Procedures Act.
    One might argue that we should include the Lone Wolf option in FISA 
``just in case.'' The problem with this reasoning is that it comes at a 
high cost. In addition to being unnecessary, the lone wolf provision--
by extending FISA's application to an individual acting entirely on 
their own--undermines the policy and constitutional justification for 
the entire FISA statute.
    When Congress enacted FISA, according to the Senate Report, it 
carefully limited its application in order ``to ensure that the 
procedures established in [FISA] are reasonable in relation to 
legitimate foreign counterintelligence requirements and the protected 
rights of individuals. Their reasonableness depends, in part, upon an 
assessment of the difficulties of investigating activities planned, 
directed, and supported from abroad by foreign intelligence services 
and foreign-based terrorist groups.'' Senate Report 95-701, at 14-15 
(emphasis added).
    The Congressional debate, and the court cases that informed and 
followed it, clearly reflect the sense that this limited exception from 
the normal criminal warrant requirements was justified only when 
dealing with foreign powers or their agents. Most recently, the FISA 
Court of Review (FISCR) cited the statute's purpose, ``to protect the 
nation against terrorists and espionage threats directed by foreign 
powers,'' to conclude that FISA searches, while not clearly meeting 
``minimum Fourth Amendment warrant standards,'' are nevertheless 
reasonable.
    The FISA exception to the Fourth Amendment warrant requirement was 
not based simply on a foreign nexus; it did not apply to every non-US 
person whose potentially dangerous activity transcended US borders. It 
was specifically limited to activities involving foreign powers.
    Individuals acting entirely on their own simply do not implicate 
the level of ``foreign and military affairs'' that justify the use of 
this extraordinary foreign intelligence tool.
    The requirement that the lone wolf must be ``engaged in 
international terrorism or acts in preparation therefore'' does not 
solve this problem. Nowhere in FISA's definition of ``international 
terrorism'' is there any requirement for a connection to a foreign 
government or terrorist group. The definition of international 
terrorism merely requires a violent act intended to intimidate a 
civilian population or government that occurs totally outside the 
United States, or transcends national boundaries in terms of the means 
by which it is accomplished, the persons it appears intended to coerce 
or intimidate, or the locale in which the perpetrators operate or seek 
asylum. This would cover an individual inside the US who uses a gun 
that was purchased in Mexico to threaten a teacher in a misguided 
attempt to get the government to change its policies on mandatory 
testing in schools.
    Nor should we rely upon FISA judges to ensure that an overly broad 
standard is only applied in ways that are sensible, since the law makes 
clear that they must approve an application if the standards set forth 
in the statute are met.
    Congress should let the lone wolf provision sunset. If the 
government can make a compelling case that targets have escaped 
necessary surveillance because the government has been unable to meet 
the relatively low ``probable cause'' standard for showing that at 
least one other person is involved, then Congress could consider 
creating a permissive presumption that if there is probable cause to 
believe that a non-US person is engaged in or preparing for 
international terrorist activities, they can be considered an agent of 
a foreign power. If it ultimately becomes clear that the target is 
acting alone, a criminal warrant should be sought.
    If nothing else, Congress should seriously reconsider its decision 
to ``fix'' FISA by slipping the ``lone wolf'' into the definition of an 
``agent of a foreign power.'' By defining an individual acting totally 
alone, with no connection to any other individual, group, or 
government, as ``an agent of a foreign power,'' Congress adopted the 
logic of Humpty Dumpty, who declared: ``When I use a word, it means 
just what I choose it to mean.'' Unfortunately, this legislative 
legerdemain stretched the logic of this important statutory tool to a 
point that threatens its legitimacy. If its use against a true lone 
wolf is ever challenged in court, FISA, too, may have a great fall.

                              SECTION 214

    Section 214 expands the pen register and trap and trace authority 
under FISA. Prior to this expansion, these orders could be issued only 
if there was reason to believe that the telephone line or other 
communication device had been or was about to be used to communicate 
with an individual involved in international terrorism or spying that 
may violate US criminal laws or, in the case of an agent of a foreign 
power, communications that may concern international terrorism or 
spying that violate criminal laws. The new standard is significantly 
lower. Now these orders must be issued if it is merely ``relevant'' to 
ongoing investigation to protect against international terrorism or 
spying. This is justified as being consistent with the standard for pen 
registers and trap and trace authority in the criminal context, which 
requires that the communications be relevant to an ongoing criminal 
investigation.
    Without addressing the appropriateness of the criminal standard, 
let me try to explain why I am uncomfortable with the government's 
argument that whatever powers it has in the ordinary criminal context, 
it should have for international terrorism investigations--an argument 
it has made to justify many post-9/11 expansions of power.
    The rules that apply in the criminal context require some kind of 
criminal predicate. Not necessarily that a crime has already been 
committed, but that the activity that is targeted would violate a 
criminal statute. Under our constitution, criminal activity must be 
well defined so that individuals are clearly on notice with regard to 
whether their actions may violate the law and thus justify government 
scrutiny.
    The language in section 214 and elsewhere drops all references to 
any criminal predicate, referring instead to ``an investigation to 
protect against international terrorism.'' These investigations can be 
based merely on ``suspicious activity''--something that has not yet 
been defined and which any one of us might engage in without even 
knowing it. The implications of this distinction are potentially 
profound and have not, I believe, been fully considered.
    Beyond this concern, it is also troubling that the only caveat in 
section 214 with respect to US persons is that the investigation cannot 
be based ``solely'' upon activities protected by the First Amendment to 
the Constitution. Doesn't this mean that the non-First Amendment 
activity could be extremely minor or insignificant, since even that 
would take it out of the realm of relying ``solely'' on First Amendment 
activity?
    Concerns about the new standard in section 214 are similar to 
concerns expressed about the nearly identical standard provided for 
Section 215 of the PATRIOT Act, which provides authority for the FBI to 
compel anyone to produce any tangible thing in their possession as part 
of a terrorism investigation. I am certain that the committee will 
spend a great deal of time considering the range of concerns raised by 
section 215. Thus, I will not go into these concerns in detail but 
would urge the committee to keep section 214 in mind when it considers 
the standard in section 215.
    The concerns with section 214 are often downplayed because it does 
not provide authority to intercept the ``content'' of the 
communications and, thus, the assumption is that there is no reasonable 
expectation of privacy. However, as you know, section 216 of the 
PATRIOT Act, which is not subject the sunset provisions, expanded pen 
register and trap and trace authority to activity on the Internet, 
where it is far more difficult to separate content from routing and 
addressing information. If a pen register served on an ISP requires 
disclosure of the URL, for example, that will almost always reveal the 
subject matter. Furthermore, if the government simply looks up the URL 
on the Internet, they can view the entire content of the page that you 
visited. This makes it more analogous to section 215's authority for 
the FBI to find out what books you are reading, and this is another 
reason that the committee should reconsider section 214 when it 
considers section 215.

                               CONCLUSION

    Let me close by again commending the committee for its commitment 
to ensuring that the government has all appropriate and necessary tools 
at its disposal in this vitally important effort to counter the 
terrorist threat. We often say that Democracy is our strength. The 
unique relationship between government and the governed in a democracy 
is a key source of that strength. These hearings, and your willingness 
to carefully consider whether these provisions adopted in haste in a 
time of great fear should be renewed or modified, will contribute 
significantly to restoring the necessary public confidence that the 
government is protecting both American lives and America's way of life. 
Thank you.

    Mr. Coble. Thank you. I commend each of you for not having 
violated the red light rule. You all came in under the wire.
    Folks, our Subcommittee has been blessed, generally, with 
the appearance of excellent witnesses. Today is no exception. I 
think we have a very fine panel before us. Mr. Baker, let me 
start with you.
    Why was it necessary to extend the surveillance from 90 
days to 120 days and the period of physical searches from 45 to 
90 days?
    Mr. Baker. Mr. Chairman, this was an effort to be 
reasonable in the sense that we were after--especially after 9/
11, we were crushed, my office was crushed with the number of 
FISA applications that were going through. And so we were 
looking for ways to try to enable us to use our resources more 
effectively and more efficiently to protect the privacy of 
Americans.
    So what we did by proposing this was to focus, with respect 
to the 90-day to 120-day and 1-year provisions, to focus on 
cases involving non-U.S. Persons. And these non-U.S. Persons 
are individuals who act in the United States as officers or 
employees of a foreign power or act as a member of an 
international terrorist group. So it was our assessment that 
this was an area where the privacy interests at issue for 
Americans were lower, and, therefore, by allowing us to use 
resources on the cases where Americans were targeted, that was 
a better use of our resources. That was where the civil 
liberties issues were more focused and was a better use of our 
resources in general there.
    Mr. Coble. So, now, assuming this extension is in fact 
enacted, could the Government go back to court and request an 
extension of the orders upon expiration of the time frame; that 
is, the 120 or the 90 days?
    Mr. Baker. Yes. The expiration--we would obtain 
authorization for one of these individuals in the first 
instance, for 120 days, and then the expiration--at the 
expiration of 120 days, we would seek an extension for 1 year.
    Mr. Coble. Thank you, sir.
    Ms. Spaulding, you said you might want to talk about the 
other sections you did not allude to. So fire away.
    Ms. Spaulding. Thank you, Mr. Chairman. With regard to 
section 207 and the duration of FISA orders, if the Government 
is indeed able to make a compelling case to the Committee that 
it is overly burdensome to file for extensions more frequently, 
my suggestion would be that at a minimum the Committee consider 
broadening the discretion of the FISA judge to enter an order 
for a shorter period of time under certain circumstances.
    There are undoubtedly situations which you might consider a 
slam dunk, to use an unfortunate term, where it is quite clear 
that you are going to be getting valuable information from a 
FISA surveillance.
    There are other circumstances in which it maybe is not 
quite so clear, in which a FISA judge ought to have the 
discretion, as they do apparently, in the extensions of an 
order, to enter it for up to the period of time. But, in the 
initial order, the language is not clear as to whether the FISA 
judge has this discretion to ask the Government to come in at 
an earlier point in time, and that would be my suggestion on 
207.
    Mr. Coble. I thank you. Ms. Buchanan, let me put a 
multifaceted question to you. How are pen registers typically 
used in criminal investigations, A, and does 214 authorize pen 
registers for intelligence investigations to obtain the content 
of a conversation, e-mail or phone call? And, finally, what 
kind of information does section 214 allow the Government to 
obtain?
    Ms. Buchanan. Pen registers are obtained in order to 
collect the information that is dialed from a telephone, the 
numbers that are dialed, the routing information. This is not 
content information. This type of information is collected by 
the Government to show connections between individuals, to 
develop probable cause, to further develop a case.
    These procedures are utilized early in an investigation. 
Section 214 permits the Government to obtain this information 
in intelligence investigations as well as the criminal law. 
Neither under the criminal law or under section 214 can the 
Government collect content information. So that is not 
permissible under either statute.
    Mr. Coble. Well, I think we will probably have a second 
round because we do not have that many Members here, and this 
is indeed important. So I will suspend, waiting for the second 
round.
    I recognize the gentleman from Virginia.
    Mr. Scott. Thank you, Mr. Chairman. Let me follow through 
on that. On the pen register, trap and trace warrants, you say 
you cannot get content. That is on the telephone conversations. 
How do e-mail and websites fare under that standard?
    Ms. Buchanan. It is really no different, Congressman Scott. 
Content information is not collected either under a pen 
register for a telephone or under a pen register of e-mail. 
Content is not collected. The statute----
    Mr. Scott. What do you get on e-mail or websites?
    Ms. Buchanan. The statute is designed to collect just the 
routing information, who is talking to whom, not the content. 
The statute specifically deals----
    Mr. Scott. What do you get on an e-mail?
    Ms. Buchanan. With an e-mail you just get the routing 
information, where the e-mail went, who the e-mail was 
addressed to, not the subject or not any of the content. The 
statute----
    Mr. Scott. No subject line.
    Ms. Buchanan. No subject line. The statute anticipates that 
in some circumstances there could be inadvertent collection. 
The statute requires the Government to use the latest 
technology to prevent that from happening, and in the 
inadvertent situation when it does happen the Government is 
required to minimize this information and not to use it.
    Mr. Scott. What about websites?
    Ms. Buchanan. The same would apply to a website. This 
information----
    Mr. Scott. Do you get to know which website was looked at?
    Ms. Buchanan. The information that is sought is where the 
e-mail traffic was routed to.
    Mr. Scott. What about--website is not an e-mail. Can you 
find out what websites I have looked at?
    Ms. Buchanan. I think I am going to defer to Mr. Baker.
    Mr. Baker. Well, this is the----
    Mr. Scott. I just say that because a website, if you know 
what website it was you know what I was looking at. If there 
were dirty pictures that would be embarrassing. Can you find 
out whether or not I was looking at dirty pictures, or whether 
or not I just accessed AOL?
    Mr. Baker. There are two issues here. The one issue is what 
does the technology allow us to do, and then what does the law 
allow us to do?
    In situations where the technology would not sort of by 
default restrict the--looking down at particular web pages at a 
particular website, there are internal Department of Justice 
procedures as recognized by the statute that are in place to 
try to address the situation that you are describing.
    So the law indicates that we are not allowed to collect the 
content, technology sometimes is not able to do that, to sort 
of defeat the content, and there are provisions in place in 
terms of policies to, in effect, minimize that kind of 
collection for--in other words----
    Mr. Scott. Well, you recognize the fact that if you have--
the website you look at has content implications, if there are 
certain health care websites, other kinds of websites, you can 
get some content just because you know what I have been 
reading.
    Mr. Baker. Yes. But these are communications--well----
    Mr. Scott. Or what books I bought off of amazon.com. When I 
go to a website and look at those books, the website, page by 
page, you can see what I have been doing, what I have been 
buying.
    Mr. Baker. Well, I mean, business records, books that you 
purchased from a company, that is not something that is 
protected by the fourth amendment. And so different standards 
apply when the Government wants to obtain that kind of 
information.
    So the statute is written a particular way to prohibit the 
use of a pen register to get content. But, nevertheless, those 
materials and that example might not be protected by the fourth 
amendment.
    Mr. Scott. These FISA warrants, there is reference to not a 
U.S. Citizen. Can a U.S. Citizen be the target of a FISA 
wiretap?
    Mr. Baker. Absolutely, yes. The law distinguishes and has 
different standards for when you want to--when your target is a 
non-U.S. Person or a foreign power and when your target is a 
U.S. Person.
    Mr. Scott. Well, target of the investigation and target of 
the wiretap----
    Mr. Baker. I am talking about the target of the 
surveillance in terms of a full content FISA.
    Mr. Scott. Okay. Well, the target of the wiretap, does that 
have to be the target of the investigation? Suppose you find 
that somebody has a lot of information about your target. Can 
you wiretap that phone to get information about the target?
    Mr. Baker. The target is the person or the entity about 
whom you want to obtain information. So----
    Mr. Scott. Suppose a U.S. Citizen has information, and 
would be--you find out that they are going to be talking about 
your target, and you can find out where they are going to be, 
get good information about your target. Can you wiretap--as 
part of the investigation of the target, can you wiretap 
somebody else to get information about your target?
    Mr. Baker. No. Only if I could show that that person was an 
agent of a foreign power. I would have to separately show, or 
that the other person is using or about--that my target--what I 
have--two things I have to show under FISA: that the target is 
an agent of a foreign power, and I have to establish that by 
probable cause, and the second thing, that the target is going 
to use the facilities or places of which the surveillance is 
going to be directed. So a telephone used by an innocent person 
that is not being used by the target is off limits unless I can 
make the statutory showing.
    Mr. Scott. So you can only listen into conversations that 
involve the target?
    Mr. Baker. It depends what facility I am targeting. If I am 
surveilling the target's home phone, let's say, and the 
target--and that is my target, and I can be up on that 
telephone, if other individuals use that phone, then I can 
continue my collection, and I deal with that through court 
authorized and approved minimization procedures.
    This is exactly what happens in the title III arena as 
well. You come up on the telephone----
    Mr. Scott. Well, that is the home phone. If you got this 
roving kind of thing and the bug is actually placed at his 
place where he volunteers a lot, like the National Democratic 
Headquarters, how do you listen in on other people's 
conversations there?
    Mr. Baker. Well, again, I am going to have to--I know that 
the roving positions are going to be the subject of a hearing 
on Thursday. But succinctly, all of the FISA provisions have 
within them these minimization procedures that I mentioned 
earlier, that minimize, that require the Government to minimize 
the acquisition, retention, and dissemination of the 
information that is collected.
    And those are--and the court orders us to follow those 
procedures. The court reviews those procedures and orders us to 
follow them.
    Mr. Coble. I thank the gentleman. The gentlemen from Ohio 
is recognized for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman. Mr. Baker, prior to 
the enactment of the Lone Wolf amendment, how difficult was it 
for intelligence agencies to obtain wiretap orders for foreign 
terrorists who do not belong to any identified terrorist 
organizations?
    Mr. Baker. Well, it was not authorized by the statute for 
us to be able to do that. So the answer is we could not do 
that. We had to find a connection between the target and a 
foreign power, an international terrorist group or a foreign 
government, so on.
    But it is worth mentioning that from the beginning, from 
1978, an international terrorist group could consist of as few 
as two people. So the difference here really is going, at the 
minimum, or at the base level, I guess, from a group of two 
people to a group, if you will, of one person.
    Mr. Chabot. And what must the FISA court find before 
issuing a surveillance order under the Lone Wolf provision?
    Mr. Baker. That the Lone Wolf, that the target is an agent 
of a foreign power, meaning in this context that they are a 
non-U.S. Person, that is critical to remember, non-U.S. Person, 
who engages in international terrorism or activities in 
preparation therefor. So this is the Lone Wolf who--an 
individual who could, I mean, in sort of the doomsday scenario, 
the things that we are most worried about, an individual who 
might have access to some kind of a weapon of mass destruction, 
chemical, biological, nuclear, or radiological weapon, attempt 
to use a device such as that in the United States, but have no 
known or apparent connection to another individual or a group 
or a foreign government.
    Mr. Chabot. And do you believe that real or apparent Lone 
Wolf terrorists could threaten the safety and security of the 
American people?
    Mr. Baker. Absolutely. As I have just described, that is 
what we are very worried about. And it seems to me that, I 
mean, as the FISA court of review said back in 2002, FISA is 
constitutional because the searches it authorizes are 
reasonable.
    And it seems to me that targeting an individual such as the 
one I just described, bringing in a weapon of mass destruction 
into the United States, under the fourth amendment that is 
reasonable, and I think therefore that this provision of FISA 
is certainly constitutional.
    Mr. Chabot. Now, critics of the Lone Wolf provision argue 
it is a dangerous expansion of authority allowing the 
application of FISA to individuals lacking any connection to 
foreign powers.
    Do you agree with Mr. Woods who counters this claim on 
patriotdebates.com when he says, quote, the language actually 
enacted, however, integrates a definition of international 
terrorism that preserves a sufficiently strong foreign nexus 
requirement, unquote?
    And if so, could you explain that nexus and why it is 
important.
    Mr. Baker. Yes, I agree with that comment. Again, to be an 
agent of a foreign power under this provision, you have to 
first be a non-U.S. Person and you have to be engaged in 
international terrorism activities. International terrorism is 
a defined term under the statute. It includes or covers or 
applies only to, said differently, violent acts or acts 
dangerous to human life that are a violation of the criminal 
laws of the United States or would be if committed here, that 
have a coercive or intimidation factor associated with them, 
and occur outside the United States or transcend national 
boundaries, and the perpetrators, the locale that they are 
going to be taking place in, or the places where the target is 
going to seek asylum.
    And so there is a nexus to international terrorism. You 
cannot use the Lone Wolf provision to conduct electronic 
surveillance of a U.S. Person who is engaged in domestic 
terrorism in the United States. It doesn't apply to that kind 
of situation.
    Mr. Chabot. Okay. And who determines whether an individual 
will be classified as a Lone Wolf and what are the criteria 
used in making such a determination?
    Mr. Baker. Well, at the end of the day it is the FISA 
court. We have to go before the FISA court before we can get 
one of those approvals. Prior to that, the Attorney General 
must sign every application that would use the Lone Wolf 
provision. Before that, you would have to have a certification 
from someone, such as the Director of the FBI or another high 
ranking Government official with national security 
responsibilities. And my office reviews that, the FBI reviews 
that and so on.
    And, again, the legal foundation is that there is probable 
cause to believe that the target is an agent of a foreign power 
under the standard I just articulated, and that they are using 
or are about to use the facilities at which the surveillance 
will be directed.
    Mr. Chabot. Finally, has provision alone resulted in a 
dramatic increase in the use of FISA warrants in situations 
that do not justify such extraordinary Government power?
    Mr. Baker. Well, I would--I mean I would say, first of all, 
the number of times that we have used this I believe is still 
classified, so I can't discuss that today.
    But I would say that, I mean certainly, whenever--if we can 
meet this standard, I think that surveillance of such a person 
would be justified and would be warranted.
    Mr. Chabot. Thank you. I know that the light is ready to 
come on. So I yield back the balance of my time.
    Mr. Coble. The gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I remember Attorney 
Buchanan pointing out how helpful some of the provisions here 
in the PATRIOT Act were. But the convictions were only criminal 
convictions. They had nothing to do with terrorism.
    Ms. Buchanan. That is correct, Mr. Conyers. I was 
demonstrating how the pen register is used in a criminal case, 
because, of course, those cases are not classified and the pen 
register is used in the same manner under FISA.
    So I was demonstrating how it can collect noncontent 
information to show connections between individuals and how 
that information can be used to later build upon the 
investigation and ultimately result in convictions.
    Mr. Conyers. Have there ever been any terrorist convictions 
in the United States?
    Ms. Buchanan. Well, we just had one last week.
    Mr. Conyers. Well, you had a plea of guilty.
    Ms. Buchanan. Well, that is a conviction.
    Mr. Conyers. Congratulations. Any others?
    Mr. Baker. Well, I think----
    Mr. Conyers. Can you think of any others, Counsel?
    Ms. Spaulding. No.
    Mr. Conyers. Can you? I am just inquiring.
    Mr. Baker. Mr. Congressman, you are looking for trials, 
actually where someone was convicted following a trial is what 
I am gathering from your question.
    Mr. Conyers. Well, there has only been one plea of guilty, 
and no trials, according to what I know.
    Mr. Baker. Well, I can't remember off the top of my head 
every conviction. But we have the cases up in Buffalo, the 
Lackawanna cases, we have the cases in Portland, we have the 
cases in Virginia as well, I think the Virginia cases, the so-
called Virginia Jihad Group. Those I believe were convictions 
following a trial before a jury. So I think the answer is yes.
    Mr. Conyers. All right. Let me ask Attorney Spaulding. I am 
trying to shape this notion, the feeling that I have is that 
the way these things are written and interpreted that the 
intelligence community can do just about anything they want 
anyway.
    Can you make me feel better about that and get that out of 
my system, and really believe that--I mean, I would like to 
imagine a situation where they are only looking for the phone 
numbers that you are calling and who you are calling, but they 
don't want to hear the substance, and they are sitting up 
there, and I am trying to really keep a straight face and 
believe that they are not going to listen to substance--I mean, 
what--this whole area is so general and vague. I remember the 
former Attorney General refusing court orders flat out. They 
asked him, I think, to produce something. He said no, he is 
just not doing it. They can do whatever they want.
    Ms. Spaulding. My sense, from working in the intelligence 
community and on the staff of the oversight Committees, is that 
the intelligence community takes its legal obligations very 
seriously, that in fact they endeavor to stay on the right side 
of U.S. Law.
    Needless to say, espionage is a violation of laws of 
virtually every country in the world. So they are violating law 
when they operate overseas. But they take very seriously their 
obligation to follow U.S. Law.
    But it is also the case that law enforcement and 
intelligence communities will use all of the authority that the 
law gives them, and they will use it to its fullest to 
accomplish their mission, which is why it is so important to 
make sure that the law is clear and appropriate, not overly 
broad and not vague.
    The concern with respect to the potential for section 214 
to provide access to content that was illustrated by Mr. 
Scott's questions, particularly most acute in the Internet 
context, is a legitimate concern. And it is why I think that it 
ought to be, that section 214 ought to be reconsidered by this 
Committee when it looks at section 215. The standards are very 
similar, and I would hope that 215 will be discussed in that 
same context.
    Attorney Buchanan talked about the standard is parallel to 
that in the criminal context, ``relevant to a criminal 
investigation for criminal context, and relevant to an 
international terrorism'' or investigation to protect against 
terrorism in the FISA context, and I would simply urge the 
Committee to carefully consider the import of that distinction.
    Mr. Conyers. Last question. If Chairman Coble in his usual 
fairness were to allow us to drop one of these three, Lone 
Wolf, 214, 207, and we had a quick conference, wouldn't you 
agree that the Lone Wolf provision is the most troublesome?
    Ms. Spaulding. I would, yes.
    Mr. Conyers. Thank you.
    Mr. Coble. The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman. Ms. Spaulding, could 
you comment on the testimony by Mr. Baker, Mr. Baker and his 
analysis of the necessity of the Lone Wolf provision?
    Ms. Spaulding. Yes.
    Mr. Delahunt. I sense a nuanced disagreement. And then I 
will ask you, Mr. Baker, to comment on her response.
    Ms. Spaulding. I think it's important. I believe that 
FISA--the justification for FISA is not based on the 
dangerousness of the threat. Clearly a domestic terrorist can 
wreak just as much havoc as an individual who has transcended 
international borders in the means by which they carry out 
their act. So I don't think FISA is just based on that ground. 
In fact, what the courts and the Congress have said is that 
FISA is based on a compelling Government need that exists in 
the context of an international group; that exists in the 
context where you've got more than one player so that you're 
likely to get something out of listening to this conversation, 
and because there is more than one player and it involves an 
international group, the challenges for the collection of that 
intelligence and the need for continued secrecy because there 
are other players involved are what provide the justification 
of FISA, and this is totally lacking in the context of an 
individual acting solely on their own. And I think that is a 
very important distinction because you get caught up in the 
nature of the threat.
    Mr. Baker. Again, Congressman, I think that the basic 
answer is that the searches and surveillances that FISA 
authorizes are constitutional because they are reasonable. And 
it's our assessment that focusing on somebody like a lone wolf, 
somebody----
    Mr. Delahunt. Let me interrupt you for a moment. You use 
the hypothetical of an individual coming in with weapons of 
mass destruction. I'm talking about, you know,--I understand 
the concerns. But by implication, doesn't that qualify as--by 
inference, isn't there a reasonable inference that there is a 
group, that there is a conspiracy of some sort just simply 
because of the acquisition, if you will, the transmission? I'm 
sure that a weapon of mass destruction just doesn't appear out 
of thin air on someone's door.
    Again, I think, you know, that was the point that I think I 
heard earlier from Ms. Spaulding. You know, I think there are 
other means, other than the provision itself to achieve the 
result you're looking for.
    Mr. Baker. In a situation such as we're describing here, 
time will be--if we are faced with that, time will be of the 
essence.
    Mr. Delahunt. You know, this whole time issue continues 
rising like there is an immediacy to it. If there is in the 
possession of the Government and investigatory agencies, I 
can't imagine a scenario where there is not implicated a co-
conspirator. I simply can't.
    Mr. Baker. You might not be able to imagine that, but we 
have to have some evidence to establish that before the FISA 
court.
    Mr. Delahunt. I understand that. But I would think a FISA 
judge sitting on, you know, being presented an affidavit--
included in the affidavit would be some reference to another 
individual. I mean, there has to be a minimal level of evidence 
there.
    Mr. Baker. Whether or not I could come up with as a 
creative lawyer and explain to the FISA court reasonable 
instances and so on in a particular factual situation is one 
thing. But the question is, doesn't it make more sense to have 
a clear standard already in the law that doesn't force us when 
we are under the gun in terms of time pressure to try to 
concoct something that may not fly.
    Mr. Delahunt. This is always going to be the balancing act 
that, you know, is implicated in our Constitution.
    Ms. Spaulding.
    Ms. Spaulding. And there is always the option of going for 
a title III criminal warrant if ultimately you are unable to 
show a connection with any other person. The hardest thing 
about frustrating a lone wolf terrorist attack is not accessing 
their communications but finding the lone wolf.
    Mr. Baker. FISA is a good tool to use in these situations 
because the information we have about this target, this lone 
wolf may be from a sensitive source. And we don't want to 
necessarily put that source at issue in a criminal proceeding. 
We want to use the protections that FISA has which are 
constitutional.
    Mr. Delahunt. Under a title III proceeding, you could 
still, I presume, request the necessary protections to protect 
that source. I mean that is not unheard of.
    Mr. Baker. There are mechanisms, but they're not as good. 
And Congress, in 1978, assessed that there was a better way to 
try to protect the national security sources as well as the 
methods we are going to use against this type of individual. If 
we have somebody----
    Mr. Delahunt. There's always--the burden always has to be 
placed on the Government if we are going to protect the liberty 
and our freedoms. And I guess the question is, is the measure, 
is the quantum of the burden sufficient to make it so difficult 
that we can't achieve the goal of protecting our national 
security.
    Mr. Baker. We live with that issue in terms of balancing 
security versus liberty every single day in my office. And the 
folks who work for me diligently try to achieve both of those 
goals at the same time, and it is a difficult job. But what I 
would urge you is to give us the tools where there is clarity, 
where there is sufficient protection on both sides of that.
    And again, as I went through, the difference between a 
group of--international terrorist group of two people versus 
one person is not that great, and I don't think it is of 
constitutional significance. And so I think you should feel 
comfortable in allowing this provision to continue.
    Mr. Coble. We will start a second round now. Mr. Baker and 
Ms. Spaulding have been examined more thoroughly, Ms. Buchanan. 
I don't want to ignore you, so I'm going to start with you. How 
does providing immunity to those who assist law enforcement 
with a FISA order help intelligence investigations and the war 
on terrorism?
    Ms. Buchanan. Under the criminal law, we have had a 
provision in the law which provides immunity to those who 
assist law enforcement with obtaining pen registers and trap 
and trace orders. What I mean by assist, those individuals who 
are working with the communications company who installed the 
equipment and those individuals are immune from civil suit as a 
result of their participation. We ought to have that same 
immunity in the FISA statute to protect individuals who assist 
in the installation and application for pen register or trap 
and trace. That is what the PATRIOT Act gives us.
    Mr. Coble. Some are now arguing that a higher standard 
should be used for pen registers. Are you familiar with any of 
these proposals and do you agree with them, A? And if you 
would, Ms. Buchanan, explain what the relevant standard 
requires and why it is applied to a pen register or trap and 
trace order rather than probable cause standard.
    Ms. Buchanan. The standard is and should be relevance with 
respect to this type of information. This information that is 
collected is not a search under the fourth amendment. 
Individuals have no expectation of privacy in this information. 
And that is why the standard is set at a lower standard, which 
is relevance. I think there has been a little confusion in the 
questioning this morning about what is collected with the pen 
register versus a wiretap.
    With the pen register, the device is simply collecting the 
telephone numbers, the routing information, it is not 
collecting the substance of any of the communications. In fact, 
the equipment doesn't have that capability. So that is not what 
is the subject of collection. And that is why the standard is 
set at relevance. With the relevance standard, the Government 
simply alleges that the information would be related or 
connected to an ongoing investigation, that it is likely to 
produce other information. That is the standard. And it is much 
lower than probable cause.
    When you look at a probable cause standard under the 
criminal law, you are dealing with information that has a 
higher expectation of privacy and that is why the law requires 
a probable cause standard to collect information where there is 
a greater expectation of privacy. And because they are very 
different, that is why there are different standards recognized 
under our law today.
    Mr. Coble. Reverting to content, Mr. Baker, if the court 
determines that content was collected and used by the 
Government under 214, what would the court likely do?
    Mr. Baker. In that case, you would have a situation where 
we would have disobeyed a court order, and I would gather they 
would want to know was this an intentional violation? Was it 
inadvertent? How did it happen, what procedures were in place 
to make sure it doesn't happen again, who's responsible, what 
part of the Government is going to conduct an investigation. We 
have, in the Department of Justice, an inspector general. We 
have an Office of Professional Responsibility, both at main 
Justice and at the FBI. You've got an inspections division at 
the FBI and multiple entities within the Government that the 
court could look to to find out the facts and take steps to 
address it.
    I mean, there is this one case from several years ago where 
the court had concerns about representations by an agent in 
some pleadings and the court barred that person from appearing 
before the court again. The court is quite vigilant about 
ensuring that what's happening is consistent with the law.
    Mr. Coble. Ms. Spaulding, do you want to visit the sections 
you have not had a chance to emphasize?
    Ms. Spaulding. Thank you, Mr. Chairman. I would like to 
talk about section 214 and this relevancy standard. The 
question is relevant to what. In the criminal context, it is 
relevant to a criminal investigation. In section 214, it's 
relevant to an investigation to protect against international 
terrorism. It drops all references to any criminal predicate. 
Under our Constitution, crimes must be very clearly defined so 
that Americans are clearly on notice whether their activities 
might violate the law and thereby invite Government scrutiny.
    Investigations to protect against terrorism can be based 
merely on suspicious activity, which is undefined, and any one 
of us might be engaging in it without even knowing it. The 
implications of this, I think, are very profound and have not 
been thoroughly examined.
    Mr. Coble. Ms. Buchanan, I will end with you.
    Ms. Buchanan. The American people have every right to be 
protected against international terrorism as they do against 
criminal violations. The standard is the same and should be the 
same because the dangers are equal if not greater in the 
terrorism arena.
    Mr. Coble. Mr. Baker, very quickly.
    Mr. Baker. The definition of international terrorism 
includes a nexus to criminal law. So that is in there when you 
are dealing with an international terrorism investigation.
    Mr. Coble. I thank you. The gentleman from Virginia.
    Mr. Scott. Thank you, Mr. Chairman. One of the problems we 
have had with some of these provisions is that people when they 
talk about them say loudly and clearly terrorism and then 
mumble something about foreign intelligence. Foreign 
intelligence doesn't have anything to do with crimes. It is 
just spying on people. You could be talking about anything 
involving conduct of foreign affairs, which may not have any 
criminal connection. Now am I right on the lone wolf provision, 
you have to have a terrorism connection not just vague foreign 
policy?
    Mr. Baker. You have to have a terrorism connection. You 
could not be an agent of a foreign power unless you were 
engaging in international terrorism or activities in 
preparation therefor.
    Mr. Scott. For the purpose of a lone wolf?
    Mr. Baker. Correct.
    Mr. Scott. For the other purposes, you could be the agent 
of a foreign government having nothing to do with terrorism or 
crimes, you could just be negotiating trade deals and stuff 
like that?
    Mr. Baker. Without commenting on the specifics what we 
would be acquiring, you could be an agent of a foreign power if 
you are a non-U.S. person who acts as such in the United States 
and you're an officer or employee of a foreign government.
    Mr. Scott. And have foreign affairs type information 
nothing to do with criminal activity?
    Mr. Baker. That's correct.
    Mr. Scott. That's what I said. People will loudly and 
clearly say terrorism and then mumble something about foreign 
intelligence, suggesting that we are talking about terrorism. 
We are talking about many of these circumstances, things that 
have nothing to do with crimes, terrorism or anything else, 
just foreign intelligence.
    Mr. Baker. That's correct.
    Mr. Scott. But for the lone wolf, it has to be terrorism 
connected. What about the pen and trap and trace?
    Mr. Baker. You have to have a showing--make a showing in 
the application that the information that's likely to be 
obtained is either foreign intelligence information not 
concerning a U.S. person or is relevant to an investigation to 
protect against international terrorism or clandestine 
intelligence activities.
    Mr. Scott. You can get this pen and trap and trace with 
things that are not criminally related or crime or terrorism-
related? It can be foreign intelligence related?
    Mr. Baker. Foreign intelligence is a defined term in the 
statute.
    Mr. Scott. Which includes terrorism and weapons of mass 
destruction and conduct of foreign affairs, which could be 
about anything. So I'm talking about it can involve just about 
anything part of it. We know the terrorism is in there. What 
else is in there?
    Mr. Baker. As you suggested, definitely includes foreign 
affairs. That's one of the prongs of foreign intelligence.
    Mr. Scott. We're talking about getting this trap and trace 
on foreign intelligence?
    Mr. Baker. Not concerning a U.S. person.
    Mr. Scott. And not concerning any crimes and not concerning 
any terrorism?
    Mr. Baker. Potentially. That's correct. Because Congress 
wanted to regulate all of the Government's----
    Mr. Scott. The reason I say this is we scare people to 
death, and think we are talking only weapons of mass 
destruction when, in fact, we are talking about information 
that could have nothing to do with any criminal law at all.
    Mr. Baker. In a situation not involving a U.S. person.
    Mr. Scott. In the United States?
    Mr. Baker. That's correct.
    Mr. Scott. The predicate for this FISA wiretap and this 
FISA trap and trace could be the desire to get information 
about negotiating with another country on conduct of foreign 
affairs that have nothing to do with the terrorism or crimes or 
anything else that would endanger people in the United States?
    Mr. Baker. Well, it's always focused on the foreign 
relations of the United States vis-a-vis----
    Mr. Scott. Which could include things that are not 
terrorism or crime related? You can start these wire taps off 
with ``foreign intelligence,'' which is conduct of foreign 
affairs, but with the lone wolf, you have to be in terrorism. 
For the other, trap and trace, it could be any other thing. 
What about wire tapping outside of the United States proper? 
Can CIA agents and all that wiretap outside of the United 
States? Are we even talking about that?
    Mr. Baker. FISA governs surveillance and physical searches 
inside the United States.
    Mr. Scott. Is it quicker to get a FISA wiretap than a 
criminal wiretap?
    Mr. Baker. I don't know the statistics on the criminal 
wiretaps. But there are provisions in FISA that allow us for 
start to collection in an emergency situation based upon the 
authorization of the Attorney General. In an emergency 
circumstances, there are mechanisms to address that. There is a 
mechanism similar to that in the title III area.
    Mr. Scott. And if you are in Colorado, it's quicker to come 
to Washington, D.C. To go before a FISA court than it is a 
magistrate in Colorado?
    Mr. Baker. I don't know about that. Faced with a situation 
like that, we obviously have secure telephones. The FBI field 
office in Colorado would call headquarters and they would call 
us at the main justice.
    Mr. Scott. Rather than just running over to the magistrate 
and get a quick warrant? If you have probable cause that a 
crime is being committed and can get information from a 
wiretap, why wouldn't you get a criminal warrant?
    Mr. Baker. It depends on what you are investigating and 
what you're focused on and what tools you want to use that are 
at issue and what sources of information you have and what 
protections you think that the various statutes are going to 
give you with respect to these various areas. And so the FBI 
agents look at the investigation they've got and make an 
assessment about the various tools they have available to them 
and try to decide what to use.
    Mr. Scott. We've heard about people for whom you have 
evidence that they are gathering up explosives about to blow 
something up. What's the barrier to getting a title III 
wiretap?
    Mr. Baker. Again, these are very fact specific situations. 
But FISA was built by Congress to address these kinds of 
threats to the national security. And it includes definitions, 
time periods, protections against disclosure of information, 
and other provisions, including minimization procedures that 
fit better in these situations than title III does necessarily. 
That's why it would be used in a particular situation versus a 
title III.
    Mr. Coble. Gentleman's time has expired. The gentleman from 
Massachusetts.
    Mr. Delahunt. Just an observation to the Chair, Mr. Coble. 
We have been having some excellent hearings. And all of the 
panels, I think, have been very helpful. I guess my question to 
you my friend. We are going at a fairly accelerated pace. And 
much of the information that we're getting, I would suggest, 
needs some reflection. I understand we're having another 
hearing this week--two more. Does the Chair have a time table 
for when we might consider a resolution or a bill? Could you 
give us some guidance?
    Mr. Coble. If the gentleman would yield. I say to the 
gentleman, this accelerated schedule is not determined by me.
    Mr. Delahunt. I suspected that. If the Chair knows, do we 
have--is there a calendar for when the Subcommittee itself 
might consider a proposal?
    Mr. Coble. If the gentleman would yield further to me. Not 
known to me.
    Mr. Delahunt. Not known to you.
    Mr. Coble. No fixed calendar.
    Mr. Delahunt. Because we are really rolling along here and 
I would make a request to the Chair and I know you're a 
diligent worker, but many of us do not, you know, have your 
experience. And maybe if we could slow the pace down in terms 
of the calendar itself, it might provide us an opportunity to 
consult with many of the witnesses that have already appeared 
before us just to provide us with an opportunity to become even 
more informed. The Chair might consider passing that request on 
up wherever it may go, but I would hope that that the Chair 
would consider that.
    Mr. Coble. If the gentleman would yield again. I would 
convey that and thank the gentleman from Massachusetts.
    Mr. Delahunt. I don't think I have--I do have another 
question. I'm reading one of these Hill papers here about the 
nominee for the United Nations, and there appears to be a 
question regarding his inquiry about the names of American 
citizens on 10 different intercepts. And I'm not going to ask 
you specifically about that, but I guess this goes along with 
the question that was posed by Mr. Scott.
    In terms of protection of non-U.S. persons who are 
referenced in the course of a surveillance, who has access to 
that information? Would somebody from the Department of State 
have access to that information under a FISA order or would 
that simply--only designated officials have access to that 
information?
    Mr. Baker?
    Mr. Baker. Again, you have to keep in mind that every court 
order is different--they are all different, but they all 
include minimization procedures. So there are restrictions on 
the acquisition, retention, and dissemination of U.S. person 
communications. And that's the focus, to protect the privacy of 
Americans. With respect to who has access, if you have an FBI 
surveillance, the FBI in the field office conducts a review of 
the material and decides what information is foreign 
intelligence information, what information is not. And then it 
can write summaries or do other transcripts.
    Mr. Delahunt. I understand that. But let me--if an 
official, let's say hypothetically, Mr. Bowl was the deputy 
Under Secretary for whatever in the Department of State or the 
Department of Defense, whatever, and he communicated--
presumably the Attorney General of the United States has access 
to this information under a FISA court order, because 
presumably it's written in a way that would allow that, the 
Attorney General of the United States and/or his designee, 
would a high ranking official in another department have access 
to that information, i.e., the name of the American citizen?
    Mr. Baker. Not directly. If they had some reason to believe 
there was some information out there and had a basis to ask for 
it, they would submit a request to the agency they think has 
the information and the agency would have to make an assessment 
whether disclosure of that information to that person would be 
consistent with the minimization procedures. And there are 
statutory restrictions on the use of FISA information as well.
    Mr. Delahunt. I understand statutory restrictions. This is 
simply accessing information, however. Would there be, for 
example, the need to return before the FISA court to seek a--if 
such a request was made, would the--there has been any history 
of this, would one of--if there was doubt as to whether the 
request fell within the ambit of the minimization that was 
issued pursuant to the court order, would it be reasonable to 
infer that there would be an additional appearance before the 
FISA court to clarify?
    Mr. Baker. It could be. The FISA court carefully monitors 
the minimization of U.S. Person communications.
    Mr. Delahunt. In the report back to FISA, would that 
information be disclosed, the individuals who did have--who had 
access to that information?
    Mr. Baker. Not on a regular basis. Not necessarily, no. But 
there are other mechanisms for that. And what would happen, the 
agency that requested, if they didn't think it fell squarely 
within the minimization procedures, would seek advice from our 
office, and we would make a decision as to whether we felt 
comfortable or not doing it.
    Mr. Delahunt. Have you ever had those kind of requests?
    Mr. Baker. I can't think of one off the top of my head. 
It's an expectation that sometimes people will read a report 
that might reference a U.S. person and might want to know the 
name of that person and there are established procedures to 
deal with that situation and approval levels and so on that you 
go through.
    Mr. Coble. I thank the gentleman. Thank you all for being 
here and thank you for those in the audience. We live in a 
chaotic time, as you all know, folks. I don't think we ever 
want to see a repeat of 9/11 when those bastards came over 
here, pardon my vernacular--referring to the murderers, of 
course. On the other hand, I don't think any one of us wants to 
compromise our liberties. It's a delicate line we're 
negotiating. And Mr. Baker, since you are in my direct line of 
fire, let me go to you. Again, thinking aloud, the President 
has the authority grounded in the Constitution to protect our 
Nation's security. Based on that responsibility, what did the 
Government do prior to 1978, prior to FISA, A? And why was FISA 
enacted?
    Mr. Baker. Prior to the enactment of FISA, as I understand 
it, sort of the beginning of electronic communications, 
collection of those kinds of communications for national 
security purposes was done pursuant to the President's inherent 
authority under the Constitution to collect foreign 
intelligence without a warrant. It was done from the beginning 
up until 1978 for those purposes without a warrant.
    And it was, as a result of, frankly, abuses of that 
authority by the executive branch that came to light in the 
1970's that resulted in, among other things, the enactment of 
FISA in 1978. It takes us from a regime where there was no 
congressional legislation to a regime that Congress, as I said 
earlier, puts into place, clear standards for who can be a 
legitimate target of this kind of collection, requirements to 
protect the privacy of Americans and the minimization 
procedures and accountability for the individuals who decide to 
engage in one of these surveillances and to make sure it is 
done for a legitimate national security purpose.
    Mr. Coble. We are going to visit this PATRIOT Act time and 
again, and as Mr. Delahunt said probably in an accelerated 
mode. Thank you, Mr. Scott, Mr. Delahunt, Mr. Conyers and Mr. 
Chabot, for attending as well. The Subcommittee very much 
appreciates your contribution. 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 this same 7-day period. This concludes the 
oversight hearing on the Implementation of the USA PATRIOT Act: 
Foreign Intelligence Surveillance Act (FISA), part one. Thank 
you for your cooperation and the Subcommittee stands adjourned.
    [Whereupon, at 11:30 a.m., the Subcommittee was adjourned.]


IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS OF THE ACT THAT ADDRESS 
            THE FOREIGN INTELLIGENCE SURVEILLANCE ACT (FISA)



                                Part II

                              ----------                              


                        THURSDAY, APRIL 28, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met pursuant to call, at 9:30 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. Good to have 
all of you with us today.
    The Subcommittee on Crime, Terrorism, and Homeland Security 
will conduct two hearings on the USA PATRIOT Act. At this 
morning's hearings, the Subcommittee will examine section 206, 
the roving wiretap provision, and section 215, the business 
records provision. Both section 206 and 215 amend the Foreign 
Intelligence Surveillance Act of 1978, known as FISA, and both 
expire on December 31, 2005. These two sections are among the 
most controversial. I believe much of the controversy is due to 
misinformation about the provisions, and I hope this hearing 
will clarify exactly what the law does.
    While I expect an in-depth and lively discussion on these 
issues, I would like to point out a few things we've recently 
learned through our hearings and oversight.
    We know, though I am not sure the public is aware of this, 
that section 215, the so-called library provision, does not 
even mention the word ``library.'' It covers business records.
    And yes, section 215 could be used to obtain business 
records from a library, but we also know from the Attorney 
General's oral testimony to this committee on April 6, that 
section 215 has never been used to obtain business records from 
a library. Nor has section 215 been used to obtain bookstore 
records, medical records, or gun sale records. In fact, no 
evidence has been presented to this Subcommittee or to the 
Department of Justice's Inspector General of any abuse of 215 
for any use.
    We also know from the Department of Justice response to 
questions from this Subcommittee and full committee that 
terrorists are indeed using our libraries so that at some point 
section 215 may be needed there.
    Section 206 amends the wiretap provision under the Foreign 
Intelligence Surveillance Act to allow the wiretap order to 
follow the person instead of covering a communication facility. 
Thus, when a terrorist uses a cell phone, then throws it away, 
uses another phone, throws it away, law enforcement does not 
have to get a new order each time.
    We also know that this section has been used 49 times, and, 
according to the Attorney General, has been effective in 
monitoring international terrorists and spies.
    Now, folks when I said there's a lot of misinformation 
surrounding these provisions, a lot people--well, strike that. 
Maybe I shouldn't say a lot people--some people. In fact, some 
have even talked to me.
    They portray it in this manner: A couple FBI agents riding 
around town. Well, let's go get a couple burgers and a 
milkshake, and then maybe stop by the FISA Court. Pick up a 
couple roving wiretaps and maybe a couple 215 orders and--now, 
folks, I don't mean this to be cute, because folks back home 
have said this to me, and then maybe go to the library. See 
what we can come up with. Maybe share with our friends and 
neighbors some of the information we've found. Folks, that's 
far a field from what happens. It's difficult to obtain this, 
and I want the public to know that.
    Having said that, I will now--I now look forward to hearing 
from my good friend, the Ranking Member, the gentleman from--
the distinguished gentleman from Virginia, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman. Don't give them any 
ideas.
    Thank you for holding this hearing on section 216 and 215 
of the USA PATRIOT Act. These are some of the most 
controversial sections of the bill that will come up for 
renewal.
    They're controversial because of the extraordinary powers 
of virtually--virtually unchecked powers that allow Government 
to use the--to allow the Government to use to invade the 
privacy of individuals. Section 215 is particularly disturbing, 
given its breadth of authority, especially because it allows 
law enforcement officers to obtain private records with no more 
than a representation that it is relevant to foreign 
intelligence.
    And even though section 505 of the PATRIOT Act is not under 
sunset, you really can't talk about 215 without discussing the 
same problems with 505. 505 allows a host of private records 
and information to be obtained through the issuance by line 
level officers of National Security Letters on mere 
representation that they are relevant to an investigation of 
foreign intelligence.
    There need to be no crime, no probable cause of a crime, no 
reason to believe that there's a crime, no credible or 
particular facts, just representation in the case of a 215 and 
the FISA Court has no choice but to issue the order for the 
production of records.
    In the case of the National Security Letters, there's no 
court issuance or oversight, just a line officer's issuance of 
the letter in terms of the requirements of law.
    Now, all of this is done in secret, and no explicit right 
to challenge the orders with a permanent gag order on the 
keepers' of the records, even to the extent apparently of 
consulting with an attorney. With our liberalized information 
sharing rules, this information can be distributed all over 
town to various agencies and this means your neighbors who may 
be law enforcement agents or Defense Department officials, may 
know a lot more about you private medical, organizational 
affiliation, reading or video viewing habits than you ever 
imagined.
    Now, with respect to section 206, the FISA roving wiretaps, 
I've often noted the difficulties that I see. Again, under the 
law no crime need even be alleged, and under the John Doe 
wiretap no person or particular device need to be shown, and in 
either case, no effort has been made to ascertain whether or 
not the target is actually using the device before 
communications are actually intercepted.
    And again, all of this is in secret; secret court with 
limited oversight and reporting requirements when compared to 
the criminal wiretap process. And the Department of Justice 
witnesses often use the powers extended on the criminal side to 
justify the same powers on the FISA side.
    However, they don't call for the same oversight and 
reporting requirements as a criminal warrant, and I think we 
need to pay a lot more attention to as we consider renewing 
these powers.
    So, Mr. Chairman, I look forward to the testimony of our 
witnesses for enlightenment on why we should consider renewing 
these extraordinary powers and, if so, under what circumstances 
and conditions, and I look forward to working with you as we 
try to implement those recommendations.
    Mr. Coble. I thank the gentleman. We've been joined by the 
Ranking Member of the Full Committee, the distinguished 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Good morning, Chairman Coble.
    Mr. Coble. Good morning, sir.
    Mr. Conyers. And Members of the Committee welcome the 
panel. And this is one of the important Subcommittee hearings 
in which this review of the PATRIOT Act is so important, and 
I'm glad we have the witnesses here.
    I just want to say one word about the executive director of 
the American Civil Liberties Union Chief Legislative Council 
because that organization has done so much important work, not 
alone. There are plenty of other organizations with them, but I 
single them out this morning.
    But there are three considerations here. One is whether we 
need John Doe taps and roving taps. To me, that's a critical 
consideration. And what are the safeguards we need to put 
around it. The thing of while National Security Letters have 
been left off the oversight list of the committee. I hope that 
some of our witnesses today will tell us about their use. It 
appears from a redacted Freedom of Information Request that 
this provision has been used lots of times, hundreds of times.
    The less famous part of section 215, National Security 
Letters, are dangerous because in addition to adding a complete 
gag order on the recipient, they're issued without any 
oversight, even from the FISA Court.
    And because DOJ admits getting information from libraries, 
I suspect that these letters may be the source and we must have 
more information about them.
    And finally, section 215, allowing the Government to 
secretly get anything from any business only upon showing a--
the showing of relevance to a terror or intelligence 
information--only on showing of relevance to terror information 
or intelligence information. And as super secret as usual, DOJ 
refuses to explain how this section has been used. We're the 
lawmakers. It seems like the courtesy should be given to us, 
and if for any reason, it can't be done public, we're all 
cleared for the most secret information that's in our 
Government. It does confirm it has been used 35 times. The 
information comes on the eve of the sunset. After 3 years of 
pressing national security that required a secret 
classification.
    So these are the areas that I'm concerned with and I 
reiterate my concern that the committee has left, in my 
judgment many important terror-related policies off its 
oversight schedule--the practice of rendition to the abuse of 
the material witness statute, to unsuccessful racial profiling. 
This committee is, in my view--and I want to work on trying to 
get this corrected before this series of hearings ends--is 
ignoring the most pressing matters within its jurisdiction. We 
can't limit our oversight to a few sections of the code that 
are due to expire. There's plenty of things to examine that 
don't have any expiration date, and so the Department has 
shifted the weight of its terror pursuit to other authorities, 
and or even in the absence of lawful authority at all. So, if 
we're truly to do our constitutional duty of overseeing the 
Executive's use of criminal and intelligence laws, I beg this 
committee to look at all of these issues, and I thank you for 
this opportunity, Chairman Coble.
    Mr. Coble. I thank the gentleman. We've been joined by the 
distinguished gentleman from Arizona, Mr. Flake, and the 
distinguished gentleman from Massachusetts, Mr. Delahunt.
    It's the practice, I say to the panel of the Subcommittee 
to swear in all witnesses appearing before it. So, if you all 
would please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
has answered in the affirmative, and you all may be seated.
    Our first witness today is Mr. Kenneth Wainstein--is that 
correct, Mr.?--United States Attorney for the District of 
Columbia. Prior to joining the U.S. Attorney's Office, Mr. 
Wainstein served as general counsel of the FBI and as director 
of the Justice Department's Executive Office for the U.S. 
Attorney. He is a graduate of the University of Virginia, and 
the Boalt Hall School of Law at the University of California at 
Berkeley.
    Our second witness is Mr. James A. Baker, who's been with 
us before. Mr. Baker, good to have you back. I thank Mr. Baker 
for graciously agreeing to return as a witness for a second 
time during this series of oversight hearings on the USA 
PATRIOT Act. Mr. Baker has been in the Council for Intelligence 
Policy in the Office of Intelligence Policy and Review at the 
Department of Justice since 2002. He served as acting counsel 
from May 2001 until January 2002.
    Prior to that, he was OIPR's Deputy Counsel for 
Intelligence Operations. Prior to joining OIPR, he served as a 
Federal prosecutor, handling numerous international white 
collar crimes for the Criminal Division of the Department of 
Justice. Mr. Baker was awarded his undergraduate degree from 
the University of Notre Dame, and his J.D. and M.A. from the 
University of Michigan.
    Our next witness is Mr. Robert Khuzami, former Assistant 
United States Attorney in the U.S. Attorney's Office for the 
Southern District of New York. While in that office, he served 
in the office's terrorism unit. Mr. Khuzami clerked for the 
Honorable John R. Gibson of the U.S. Court of Appeals for the 
8th Circuit in Kansas City, Missouri. Mr. Khuzami attended the 
University of Rochester and the Boston University School of 
Law.
    Our final witness today is Mr. Gregory T. Nojeim, the 
Associate Director and Chief Legislative Counsel of the 
American Civil Liberties Union's Washington National Office. 
And at this time, on behalf of the Subcommittee, I would like 
to congratulate Mr. Nojeim in advance because I am told that 
next you will become the acting director of that office, so we 
congratulate you, Mr. Nojeim.
    Prior to joining the ACLU, Mr. Nojeim served as Director of 
Legal Services of the American-Arab Anti-Discrimination 
Committee. He was graduated from the University of Rochester 
and the University of Virginia's School of Law.
    Now, as we have told you all previously, we like to 
practice the 5-minute rule here. We have examined your written 
testimony that will be reexamined. So the panels that appear 
before you all on your desks there, when the amber light 
appears, you will have 1 minute to wrap up, and no one is going 
to be keel hauled if you violate the 5-minute rule, but if you 
could stay within--when the red light appears that indicates 
the 5 minutes have expired.
    Mr. Wainstein, we will start with you, sir.

              TESTIMONY OF KENNETH L. WAINSTEIN, 
          INTERIM U.S. ATTORNEY, DISTRICT OF COLUMBIA

    Mr. Wainstein. Thank you, and good morning. My name is Ken 
Wainstein. I'm the U.S. Attorney here in the District of 
Columbia.
    Mr. Chairman, Ranking Member Scott, and Members of the 
Subcommittee, thank you very much for inviting me here today to 
discuss two provisions of the USA PATRIOT Act, sections 206 and 
215 that are critical to our counter terrorism and counter 
intelligence efforts.
    These two sections are scheduled to sunset at the end of 
this year. If this is allowed to happen, we will find ourselves 
in the position where tools available to law enforcement in the 
fight against drugs, organized crime, and child pornography 
would be denied our national security investigators who are 
striving to protect our country against terrorism and 
espionage. Such an outcome would be a serious mistake, and, 
therefore, I am here today to ask you to make permanent 
sections 206 and 215 of the USA PATRIOT Act.
    Section 206 allows the FISA Court to authorize roving quote 
unquote ``roving surveillance'' of a foreign power or an agent 
of a foreign power, such as a terrorist or spy.
    Since 1986, we've had the authority to use roving wiretaps 
to investigate regular crimes, and this tool has proved 
critical to our efforts against sophisticated criminals who 
regularly switch phones to avoid electronic surveillance.
    In a case out of Florida, for example, our prosecutors and 
agents investigating a dangerous cell of Colombian drug dealers 
had gotten 23 separate wiretaps against cell members and 
leaders, but were failing to make a strong case because of the 
cell's practice of constantly cycling through cell phones.
    Our people ultimately cracked the case when they got a 
roving wiretap that allowed them to continue surveillance as 
the cell members changed phones, and the suspects were 
ultimately arrested and convicted of distributing over a 
thousand kilograms of cocaine in our country.
    In another drug investigation, in Chicago, investigators 
obtained roving surveillance authority after establishing that 
the drug lord target was purchasing blocks of prepaid cell 
phones and throwing each phone after a short period of use. In 
the course of about 7 months, this target went through at least 
25 cell phones, thereby justifying the use of a roving wiretap 
under the criminal electronic surveillance statute.
    Before the USA PATRIOT Act, however, national security 
investigators couldn't utilize such wiretaps in international 
terrorism or espionage investigations. Experience shows that 
terrorists and spies are every bit as crafty at avoiding 
surveillance as common criminals.
    To see that, we need look no further than the Al-Qaeda 
training manual that warns members that quote, ``communication 
can be a knife dug into our back if we do not take the 
necessary security measures.'' Close quote. And that manual 
directs Al-Qaeda members to undertake a variety of measures to 
counter our electronic surveillance efforts.
    With no roving authority for national security 
investigators, the terrorists and spies used to have the 
advantage, and they could stay one or two steps ahead of our 
investigators by switching phones.
    Thankfully, section 206 balanced the playing field by 
authorizing the use of roving wiretap authority in national 
security investigations. Some have expressed concerns that 
wiretaps, roving wiretaps, somehow open the door to 
unconstitutional intrusion into our privacy.
    This concern is best addressed by looking at the various 
safeguards in the statute that protect against abuse and 
overreaching.
    First, we can only get a roving wiretap if we show probable 
cause to believe that the target of a roving surveillance order 
is either a foreign power or an agent of a foreign power, such 
as a terrorist or spy. To make that showing, we must know the 
target's name or else describe the target with sufficient 
specificity to convince the FISA Court that there's probable 
cause to believe that that target is a foreign power and agent 
of a foreign power.
    We have to show that that target is taking action, such as 
switching phones, that may have the effect of thwarting 
surveillance. And finally, roving surveillance under 206 
carries all the court approved minimization procedures that 
limit all FISA surveillance.
    Because of these procedures and safeguards, all appellate 
courts that have heard challenges to roving wiretaps have 
upheld their constitutionality.
    Section 215. This section provides national security 
investigators with the authority to ask the FISA Court to order 
the production of the same kind of tangible things, such as 
business records, that prosecutors have long been able to 
acquire through grand jury subpoenas and criminal 
investigations.
    As a prosecutor, I can tell you from first hand experience 
that the ability to obtain records with grand jury subpoenas is 
an essential tool for law enforcement. Investigating crime 
without subpoena power would be like Tiger Woods playing the 
Masters without a putter.
    Before the USA PATRIOT Act, however, it was difficult for 
national security investigators to obtain business records, as 
the FISA Court could only authorize orders for certain 
categories of records.
    For example, an agent prior to the PATRIOT Act who was 
investigating a terrorism suspect would not have been able to 
get a FISA Court order to obtain records showing that that 
suspect purchased bulk quantities of fertilizer to produce a 
bomb because a feed store is not a quote ``common carrier, 
public accommodation facility, physical storage, or rental 
facility,'' the entities for which the old law authorized the 
use of FISA Court orders.
    Section 215 remedied that glaring problem by authorizing 
investigators to request the production of any tangible things 
that are relevant to the investigation. In my experience as a 
prosecutor, I view section 215 as a commonsense investigative 
tool. I recognize, however, that the provision has been 
subject--the subject of concern by many across the country.
    Once again, I believe part of the problem here is that 
people don't understand the safeguards that are in the statute. 
215 has a number of these safeguards, which we'll discuss 
today.
    Unlike grand jury subpoenas, it requires prior court 
approval. It protects against the use of 215 orders to 
investigate activities based solely on the exercise of first 
amendment rights. They have a narrow scope, and they are 
subject to congressional oversight.
    Like 206, section 215 fully safeguards privacy while 
providing us the tools we need to protect our country against 
international terrorists and spies.
    Given the threat these individuals pose to our nation, I 
urge Congress to allow us the continued use of these vital 
tools.
    [The prepared statement of Mr. Wainstein follows:]

               Prepared Statement of Kenneth L. Wainstein



    Mr. Coble. Thank you, Mr. Wainstein. Mr. Baker.

TESTIMONY OF JAMES BAKER, COUNSEL FOR INTELLIGENCE POLICY, U.S. 
                     DEPARTMENT OF JUSTICE

    Mr. Baker. Thank you, Chairman Coble, Ranking Member Scot, 
and Members of this Subcommittee.
    I am pleased to be again before you to discuss the 
Government's use of the authorities granted to it by Congress 
under FISA, including amendments to FISA and the USA PATRIOT 
Act.
    As I mentioned on Tuesday, these provisions have made a 
critical contribution to our ability to protect the national 
security of the United States.
    For the benefit of Members who were unable to attend on 
Tuesday, my office conducts oversight of the intelligence and 
counter intelligence activities of executive branch agencies, 
including the FBI.
    We prepare all FISA applications and represent the United 
States before the FISA Court.
    I report directly to the Deputy Attorney General. I'm a 
career member of the senior executive service, and not a 
political appointee.
    Again, rather than simply read my written statement into 
the record, I'd like to make a few general points about FISA, 
and amplify on some of my prior comments from the other day.
    As I mentioned the other day, the purpose of FISA was to--
as enacted in 1978--was to provide legislative authorization 
for and regulation of electronic surveillance conducted within 
the United States for foreign intelligence purposes. FISA was 
not intended to prohibit collection of important intelligence 
information, but to subject such collection to statutory 
procedures.
    Over the years, Congress has expanded the scope of FISA to 
create mechanisms for the Government to obtain separate 
authorizations for pen registers, searches, and to obtain 
access to business records and other tangible things.
    Prior to the enactment of FISA, the Executive Branch 
conducted electronic surveillance to collect foreign 
intelligence information without a warrant, based upon the 
President's inherent constitutional authority to do so.
    In the 1970's, however, abuses of domestic national 
security surveillance were disclosed. As a result, Congress 
looked for an appropriate mechanism to safeguard civil 
liberties, consistent with the needs of national security.
    Since the enactment of FISA, 27 years ago, I submit that 
there has been no repeat of the abuses of the past. I believe 
this is so for several reasons.
    First, there are now clear standards for determining who 
may be a legitimate target of a FISA surveillance or search. 
The only authorized targets of FISA full content collection are 
foreign powers and agents of foreign powers, both of which are 
defined terms in the act.
    Similarly, FISA only permits the use of other collection 
activities, such as orders for tangible things, when there is a 
sufficient nexus between the information that will be collected 
and a legitimate intelligence investigation.
    When such an investigation involves a U.S. person, it 
cannot be based solely upon protected first amendment 
activities.
    Second, there is accountability for authorizations for 
national security collection. FISA includes several mechanisms 
to ensure written accountability within the Executive Branch 
for the decision to engage in foreign intelligence collection, 
including a requirement that the Attorney General or his deputy 
personally sign each full content application. This serves as a 
check on Executive Branch arbitrariness.
    In addition, the Attorney General must fully inform the 
intelligence committees of both Houses of Congress on our use 
of FISA on a regular basis.
    Third, there is judicial oversight of our actions. Whenever 
a surveillance or search for foreign intelligence purposes may 
involve the fourth amendment rights of any U.S. person, 
approvals for such collection must come from a neutral and 
detached Federal judge. Moreover, even when fourth amendment 
rights are not implicated, such as for third party business 
records, FISA still requires approval by a Federal judge or a 
magistrate before the Government may engage in such collection.
    Finally, FISA contains other provisions to protect the 
privacy of Americans, most notably including court-ordered 
minimization procedures. The Government may only conduct a full 
content surveillance or search when there are adequate 
procedures in place to minimize the intrusion into the privacy 
of Americans. This includes minimization of the acquisition, 
retention, and dissemination of information about U.S. persons 
obtained pursuant to full content collection under FISA.
    In conclusion, as we proceed with our discussion today, we 
must remember that it's our collective fundamental task to 
determine how best to protect the national security of the 
United States in a manner consistent with the Constitution. We 
must be mindful, as the Supreme Court stated in the Keith case 
in 1972, that unless Government safeguards its own capacity to 
function and to preserve the security of its people, society 
itself could become so disordered that all rights and liberties 
would be endangered.
    I am proud to be here today to represent the dedicated men 
and women OIPR who work diligently everyday to do their part to 
protect both the national security and the Constitution of the 
United States, and to enforce the laws as enacted by Congress, 
especially FISA. With these principles in mind, I'm happy to 
answer any questions that the committee may have.
    [The prepared statement of Mr. Baker follows:]

                  Prepared Statement of James A. Baker



    Mr. Coble. Mr. Baker, you've been on the Hill several 
times. You know how to beat that red light. You did it again.
    Mr. Baker. Thank you, sir.
    Mr. Coble. Mr. Khuzami, good to have you with us, sir.

         TESTIMONY OF ROBERT KHUZAMI, FORMER ASSISTANT 
          U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK

    Mr. Khuzami. Thank you. Chairman Coble, Ranking Member 
Scott, Members of the Subcommittee, it's an honor to testify 
before you today in a matter of such importance to our national 
security.
    For nearly 12 years, I was an Assistant United States 
Attorney in the U.S. Attorney's Office in the Southern District 
of New York, and spent a significant amount of time working on 
terrorism cases. I was a member of the team that in 1995 
prosecuted Sheik Omar Abdel-Rahman, the blind cleric and head 
of the Egyptian Islamic Group, and 11 others for conducting a 
war of urban terrorism against the United States. The acts of 
that group included among other things the 1993 bombing of the 
World Trade Center; the murder in 1990 of Rabbi Meir Kahane, 
the head of the Jewish Defense League; and a conspiracy to 
carry out a day of terror in New York, the planned simultaneous 
bombing of various New York City landmarks, including the 
United Nations complex, the Lincoln and Holland Tunnels, and 
the FBI's New York headquarters.
    I was also involved in assisting in the supervision of the 
U.S. Attorney's Command Post in lower Manhattan following the 
events of 9/11.
    I am here today to support reauthorization of sections 215 
and 206 of PATRIOT Act.
    I'll confine my remarks this morning to section 215.
    Some view it as a radical extension of Government authority 
that permits unprecedented snooping into the private reading 
habits of Americans and threatens to sweep innocent Americans 
into secret terrorism investigations.
    My experience teaches me otherwise.
    Section 215 simply and modestly is designed to permit the 
Government to collect standard business records from third 
parties relevant to foreign intelligence or terrorism 
investigations. These are the same records that prosecutors 
across the country every day routinely obtain in drug, and 
larceny, and fraud, and corruption investigations.
    They're credit card receipts. They're bank statements. 
They're hotel bills. They're leases, and so on. There is 
nothing unusual or nothing accusatory of asking innocent third 
parties to produce such records in terrorism investigations.
    Second, terrorists use libraries. The 9/11 Commission found 
that to be case that some had used Internet access in a 
Hamburg, Germany library. A recent espionage prosecution 
revealed that a spy had used computer terminals at various 
public libraries to send classified information. An Al-Qaeda 
terrorist used library computer terminals to send electronic 
messages.
    The Unabomber, Ted Kaczynski, in a criminal investigation, 
was captured in part when the police obtained his library 
records and learned that he had borrowed from his local library 
obscure books that were cited in his widely distributed 
Manifesto.
    Third, section 215 neither targets nor exempts library 
records. Nor has it been used for that purpose, as the Chairman 
has pointed out.
    This doesn't mean that section 215, however, should be 
amended to exempt libraries and bookstores, for their records 
could be critical in a terrorism investigation. Lack of use is 
not the same thing as lack of importance. In a terrorism case, 
even a single missed opportunity or misstep can have 
catastrophic consequences. That is simply not the case in 
criminal investigations.
    Fourth, section 215 provisions do protect the privacy and 
civil liberties of Americans. It can't be used to investigate a 
U.S. person based solely on first amendment activities and not 
at all to investigate domestic terrorism. The Foreign 
Intelligence Surveillance Court must approve section 215 
applications.
    Fifth, section 215 properly expanded the type of records 
obtainable in terrorism investigations beyond what had been the 
law--simple lodging or vehicle rental or storage facilities.
    This corrected the anomaly that allowed the Government to 
obtain a would-be terrorist's motel records, but not receipts 
evidencing purchases of explosives or precursor chemicals or 
books on how to manufacture explosives.
    Sixth, section 215 also eliminated the previous requirement 
that the Government provide specific articulable facts that are 
the subject--that the subject of the investigation was an agent 
of a foreign power. As a legal matter, this standard only 
applies where there exists some legally recognized privacy 
interest, and there is no such interest in section 215 records.
    There may be some circumstances where such a strict 
standard should apply even though there's no privacy interest 
at stake, but national security is not one of those instances. 
It is where the public interest in Government access, in my 
view, is most urgent.
    Next, the Department of Justice interprets and has endorsed 
amendments that would allow those getting section 215 orders to 
consult with attorneys and challenge the order and its scope 
before the FISA Court. That change protects citizens against 
improper use of section 215.
    Lastly, there has been some concern expressed about rogue 
agents, agents who may be inclined to violate the civil 
liberties of Americans by looking for ways to circumvent the 
law in order to learn what we read and what organizations we 
belong to. The agents and translators and surveillance 
specialists and analysts that I worked with were dedicated, 
talented, and law abiding. And there are many procedures 
designed to prevent that from happening.
    But even if you can't eliminate the occasional rogue, the 
empirical evidence from the Department of Justice Inspector 
General establishes that not a single case of abuse of civil 
rights or liberties from the PATRIOT Act has been documented.
    I strongly urge the committee to reauthorize section 215. 
I'd be happy to answer any questions.
    [The prepared statement of Mr. Khuzami follows:]

                Prepared Statement of Robert S. Khuzami

    Chairman Coble, Representative Scott, and members of the 
Subcommittee on Crime, Terrorism and Homeland Security, thank you for 
inviting me here this morning. It is an honor to testify before you, 
particularly on a matter of such importance to our national security.
    I am currently a lawyer in private practice in the New York area. 
For nearly 12 years, I was an Assistant United States Attorney in the 
United States Attorney's Office for the Southern District of New York, 
and spent a significant amount of time working on counterterrorism 
cases. From shortly after the February 26, 1993 bombing of the World 
Trade Center through early 1996, I was a member of the team that 
prosecuted Sheik Omar Abdel Rahman--the blind cleric who led the 
Egyptian-based Islamic Group and played a key role in the 1981 
assassination of President Sadat--and eleven others for conducting a 
war of urban terrorism against the United States. Their acts included, 
among other things, the WTC bombing, the 1990 murder of Rabbi Meir 
Kahane (the founder of the Jewish Defense League), plots to murder 
various political and judicial leaders, and a conspiracy to carry out a 
``Day of Terror''--the simultaneous bombing of various New York City 
landmarks, including the United Nations complex, the Lincoln and 
Holland Tunnels (through which thousands of commuters travel daily 
between lower Manhattan and New Jersey), and the Jacob K. Javits 
Federal Building that houses the FBI's New York Headquarters.
    Following the events of 9/11, I assisted in supervising the U.S. 
Attorney's Command Post in lower Manhattan, where hundreds of law 
enforcement and intelligence personnel worked tirelessly to investigate 
that attack and to prevent another.
    The changes set forth in the PATRIOT Act, as well as the events of 
9/11 in general, have brought about significant public debate about the 
appropriate balance of civil liberties, privacy and security. That 
debate is undeniably healthy, a fact which Congress recognized when it 
sunsetted certain PATRIOT Act provisions in order to provide an 
opportunity for an informed evaluation of their impact.
    Two PATRIOT Act provisions are being considered this morning--
Section 206, the so-called ``roving wiretap'' provision and Section 
215, the access to records provision.
    I approach my analysis from two perspectives. The first is that of 
an ex-prosecutor of terrorism crimes, who believes firmly that we must 
fully identify and utilize every lawful tool to prevent terrorist 
attacks and capture those involved. The second is as an American 
citizen who recognizes the fundamental importance of the privacy rights 
and civil liberties of all Americans. Balancing these two perspectives, 
I conclude that, with two amendments recently embraced by the 
Department of Justice (``DOJ''), Sections 215 and 206 should be 
reauthorized.

                              SECTION 215

    Section 215 authorizes the Foreign Intelligence Surveillance Court 
to order the production of ``tangible things (including books, records, 
papers, documents and other items)'' as long as they are ``sought for'' 
an ``authorized investigation to obtain foreign intelligence 
information not concerning a United States person or to protect against 
international terrorism or clandestine intelligence activities.'' In 
its most common application, Section 215 permits the government in 
terrorism investigations to obtain business records held by third 
parties, including those held by banks, hotels, landlords, credit card 
companies and, yes, libraries and bookstores. Somewhat surprisingly, 
Section 215 is viewed by many Americans as a radical extension of 
government authority that permits unprecedented snooping into the 
library records and private reading habits of Americans, and threatens 
to sweep up innocent Americans into secret investigations of terrorist 
activity. It has caused such angst amongst librarians that it has been 
labeled the ``Angry Librarians Provision.''
    Four points need to be made. First, Section 215 permits a court to 
order the production of standard business records from third parties. 
These are the same records that prosecutors across the country 
routinely obtain every day in drug, larceny, fraud, corruption and all 
manner of standard criminal investigations. They include credit card 
receipts, bank statements, hotel bills, leases, subscriber information 
for phones, and the list goes on and on. There is nothing unusual or 
accusatory about requiring third parties possessing these records--
innocent third parties all of them--to produce them in a terrorism 
investigation of another person. That is all Section 215 does.
    Second, Section 215 is agnostic about libraries and bookstores--it 
neither targets nor exempts them, and the word ``library'' is nowhere 
mentioned in its text. In fact, rather than aggressively use Section 
215 to collect information about library patrons, as some have feared, 
the government recently reported that it has obtained Section 215 
orders on 35 occasions, but never once for library records. Presumably, 
this reflects the fact that library records are rarely relevant to 
terrorism investigations, a fact that should assuage its critics.
    Third, terrorists use libraries. The 9/11 Commission found that 
some of the 9/11 conspirators used Internet access through a Hamburg, 
Germany library. A recent espionage prosecution revealed that a spy 
used computer terminals at various public libraries to send classified 
information. An Al Qaeda terrorist used library computer terminals to 
send electronic messages. Terrorists and their sympathizers also 
create, collect and disseminate writings and speeches that train, 
recruit and incite others to participate in terrorist acts. In the 
Blind Sheik prosecution, for example, evidence consisting of bomb-
making manuals, including pages containing the fingerprints of co-
conspirators, was introduced at trial. In his written sermons, the 
Blind Sheik extolled the virtues of violent jihad against the United 
States with ``the sword, with the cannon, with the grenades and with 
the missile,'' and urged his followers to embrace the terrorist label:

        Why do we fear the word ``terrorist?'' If the terrorist is the 
        person who defends his right, so we are terrorists. And if the 
        terrorist is the one who struggles for the sake of God, then we 
        are terrorists. . . . They may say ``he is a terrorist, he uses 
        violence, he uses force.'' Let them say that.

    It is for this reason that library records, writings and other 
literature have long been available to criminal investigators through 
the use of a grand jury subpoena. The ``Unabomber,'' Ted Kaczynski, was 
captured based on a tip from his brother, who thought he recognized the 
writing in the Unabomber's ``manifesto'' as that of his brother. Law 
enforcement corroborated the brother's suspicion in part by examining 
library records, from which they learned that Kaczynski had checked out 
little-known books referenced in the manifesto. Section 215 simply 
extends to terrorism investigations the same authority available to 
criminal investigators.
    Fourth, it does not follow that because the government's has not to 
date used Section 215 authority to obtain library records, that Section 
215 should sunset, or be amended to exempt libraries and bookstores. 
This would turn libraries into sanctuaries, where would-be terrorists 
could communicate with their cohorts without fear of detection. This is 
not mere speculation--an Al Qaeda terrorist reportedly used library 
computer terminals to send messages to his associates around the world 
specifically because he knew the digital records were deleted nightly, 
thus concealing his activity. Unfortunately, some library 
representatives are creating de facto sanctuaries by ordering daily 
shredding of library log-in and other records, in response to misplaced 
fears about Section 215.
    This ``use it or lose it'' argument is also specious because it 
equates lack of usage with lack of importance. The mere fact that 
Section 215 has not been ``used'' historically to obtain information 
from libraries or bookstores does not mean that such authority could 
not be critically important in the next case. More so than criminal 
prosecutions, terrorism plots, however speculative or nascent, must be 
zealously pursued by investigators armed with the option of using the 
fullest arsenal of lawful investigative tools. That is because even a 
single missed investigative opportunity or misstep can have 
catastrophic consequences. In contrast, in criminal investigations, for 
example, it is unfortunate but not fatal if before a stockbroker is 
arrested, he executes one more stock purchase using inside information. 
That is not being falsely alarmist; the horrific consequences of the 
detonation of a dirty bomb over a major urban center, or the Blind 
Sheik's plan to bomb multiple New York City landmarks simultaneously, 
are undeniable.
    In sum, the four points establish a compelling case for Section 215 
reauthorization. They show that Section 215 is not about libraries, but 
provides for routine document collection in terrorism cases; that as 
far as libraries are concerned, terrorists use them and library records 
can provide evidence of that; and that the catastrophic consequences of 
a successful terrorist attack demand that we have available all lawful 
investigative tools.
    In addition to these points, the provisions of Section 215 should 
mollify critics, since they set forth a sensible framework to permit 
intelligence agents to obtain business records. Section 215 requires 
the government to certify that the records are ``sought for an 
authorized investigation to obtain foreign intelligence information 
[not against a United States person] . . . to protect against 
international terrorism or clandestine intelligence activities.'' The 
DOJ interprets this provision as requiring that the records be 
``relevant'' to such investigations, and has endorsed an amendment to 
that effect. In recognition of First Amendment concerns, Section 215 
cannot be used to conduct an investigation based solely on the 
activities protected by the First Amendment.
    The Foreign Intelligence Surveillance Court must approve Section 
215 applications. While the level of that judicial review is not high, 
it is appropriate given the type of records under consideration in 
Section 215 proceedings. Business and library records are preexisting 
documents that belong, will be given, or are available, to third 
parties--banks, landlords, rental car agencies and even librarians--and 
thus persons lack a reasonable expectation of privacy in them. For that 
reason, they are obtainable in a criminal investigation with a grand 
jury subpoena alone, which is issued without judicial review or 
supervision. From the perspective of judicial review, Section 215 
provides more protection, not less, for library patrons than they enjoy 
in parallel criminal proceedings involving the same records.
    To be sure, Section 215 expanded the government's pre-PATRIOT Act 
authority to obtain records in terrorism cases. This change was 
overdue, since the prior law was unnecessarily restrictive. Whereas 
Section 215 now permits the government to obtain with court approval 
all ``tangible things (including books, records, papers, documents and 
other items),'' the prior provision limited the government to obtaining 
records from lodging and vehicle rental and storage facilities. Again, 
criminal investigators have long been permitted to obtain the broader 
range of records now provided for in Section 215. Comparisons with 
criminal investigations aside, the expansion of authority under Section 
215 makes sense in its own right, since it would be irrational, for 
example, to permit the government in a terrorism investigation to 
obtain under Section 215 a would-be terrorist's motel records, but deny 
it the ability to obtain receipts evidencing purchases of fertilizer or 
precursor chemicals, or to learn that he obtained books on how to 
manufacture explosive devices or detect surveillance.
    Another expansion of authority in Section 215 was the elimination 
of the requirement that the government provide ``specific articulable 
facts'' that the subject of the investigation was an ``agent of a 
foreign power.'' Critics assert that elimination of this particularized 
showing allows the government to use Section 215 to obtain records from 
persons without showing that they relate to a real terrorist or spy. Of 
course, as noted above, the third-party records at issue here do not 
implicate a recognized expectation of privacy. The government should 
generally be required to make a particularized showing only in 
circumstances where this is necessary to overcome some legally 
recognized privacy interest. There may be some instances where a 
departure from that general rule is warranted, but national security is 
not one of them--it is where the public interest in government access 
is most urgent. Leaving that aside, this change recognizes the reality 
that targets of terrorism investigations are trained to operate through 
multiple aliases and identities. It would serve no purpose to delay 
obtaining what might be records critical to uncovering a terrorist plot 
simply because the target's real name, or associational connections, 
has not yet been ascertained. Evidence of the purchase of detonators is 
equally relevant to preventing a terrorist plot, regardless of whether 
the government yet knows that the purchaser has ties to Al Qaeda. Once 
again, elimination of the requirement that a particularized showing be 
made places terrorism investigations on the same footing as criminal 
investigations, where no such showing is required to obtain the exact 
same records.
    Critics cite excessive confidentiality--a ``gag order''--as another 
flaw in Section 215. It prohibits persons receiving Section 215 orders 
from disclosing to third parties those orders or that the FBI has 
sought or obtained them. Section 215 detractors suggest that the threat 
of government overreaching in Section 215 would be less troubling if 
the statute allowed for more transparency, such that the public could 
understood what records the government sought and why. Critics also 
contrast Section 215's confidentiality provision with the grand jury 
process, where they claim the recipient receives notice of the subpoena 
and can move to quash it in court.
    It is unassailable that real and potentially catastrophic harm can 
result from the premature disclosure of a terrorism investigation. I 
agree, however, that this risk does not justify barring recipients of 
Section 215 orders from consulting with attorneys, and from challenging 
the order before the Foreign Intelligence Surveillance Court. The DOJ 
has publicly agreed with this position. If such consultation and 
challenge were permitted, it would place Section 215 proceedings on a 
par with grand jury proceedings, where the subpoena recipient obviously 
knows of its existence and can challenge it in court, but at the same 
time may be prohibited from disclosing its existence to others.
    Beyond this amendment, however, the confidentiality provisions of 
Section 215 should not be disturbed. You do not want potential 
terrorists to know you are investigating them or are aware of their 
plans. A leak could cause conspirators to accelerate the plot to a 
point where authorities are less prepared to prevent it or protect 
American lives. Or terrorists might abandon the plot, destroying 
evidence and taking flight, which would hinder prevention, capture and 
prosecution. The plot might later resurface, at a point when we are 
less prepared and more vulnerable. Each and all of these scenarios 
present a missed opportunity to protect innocent Americans from harm. 
Premature disclosure also risks harm to agents, witnesses and 
undercover operatives. Against this risk of harm must be weighed the 
interests that are served from permitting the recipient of a Section 
215 order to disclose it to persons other than an attorney. Whatever 
that interest is, it does not in my view outweigh the risk that flows 
from wrongful disclosure.
    Some Section 215 criticisms assume the existence of large numbers 
of ``rogue agents,'' who are characterized as inclined, given the 
opportunity, to violate the civil liberties and privacy rights of 
Americans by searching for and exploiting legal and administrative 
loopholes to browse through their reading materials and subscription 
and membership lists. This hypothetical rogue agent then becomes, so 
the argument goes, the justification for additional Section 215 
restrictions. It is not apparent to what extent, if at all, such rogue 
agents exist. As Andy McCarthy wrote, agents ``generally lack 
voyeuristic interest in the public's reading and viewing habits . . . 
and voluminous information streams and finite resources leave no time 
for this sort of malfeasance.'' \1\ The agents, analysts, translators 
and surveillance specialists with whom I worked were dedicated, 
talented and law-abiding. And the gauntlet of administrative 
guidelines, directives, policies, laws and committees applicable to the 
FBI and DOJ, as well as congressional and judicial oversight, all deter 
rogues by providing training, oversight, and a mechanism for redress 
and discipline.
---------------------------------------------------------------------------
    \1\ Patriot Debates: A Sourceblog for the USA PATRIOT Debate 
(available at http://www.patriotdebates.com/214-and-215)
---------------------------------------------------------------------------
    Even assuming rogues present the threat identified by Section 215 
critics, it hardly follows that the restrictions they suggest would 
have the desired effect. Those determined to break rules are not easily 
deterred, and the real impact of such restrictions may be to 
unnecessarily burden the conscientious, law-abiding agent trying to do 
his job effectively. In the end, the best response to the ``rogue 
agent'' concern is the empirical evidence--according to the DOJ's 
Inspector General, who was required under Section 1001 of the PATRIOT 
Act to investigate complaints of abuse of civil rights and liberties 
under the Act, there have been no documented cases of abuse of civil 
rights or liberties from the PATRIOT Act in the more than three and 
one-half years since its passage.
    In sum, Section 215 orders are useful investigative tools in 
combating terrorism. Most of what the statute permits is already 
available in criminal investigations, and any differences either make 
good investigative sense and, given the DOJ's willingness to consider 
two amendments, do not threaten the legitimate privacy and civil 
liberty interests of Americans.

                              SECTION 206

    Section 206 of the PATRIOT Act provides for so-called ``roving'' 
wiretaps and other electronic surveillance in foreign intelligence and 
counterterrorism investigations. Prior to PATRIOT, once having obtained 
the approval of the Foreign Intelligence Surveillance Court for a 
wiretap, agents had to return to that Court each time the subject of 
that surveillance switched phones, in order to amend the order to 
direct the new electronic communications provider to give the technical 
assistance necessary to install and maintain the new wiretap. Due to 
concerns that targets were rapidly changing phones to avoid detection, 
including prior to important conversations and meetings, Section 206 
eliminated the need for agents to return to the Court each time a 
target switched devices. It accomplished this by permitting the 
government, upon a showing that the subject is taking steps to thwart 
surveillance, to include in the original order a general directive that 
any electronic communications provider extending services to the target 
in the future must provide the necessary technical assistance.
    In part because authority for ``roving'' wiretaps has long been 
available in criminal cases, the only serious criticism of section 206 
is that it allows intelligence investigators to conduct ``John Doe'' 
roving surveillance that permits the FBI to wiretap every single phone 
line, mobile communications device, or Internet connection the suspect 
may use without having to identify the suspect by name. This criticism 
ignores hurdles that guard against overly-broad wiretapping. First, 
``roving'' wiretaps are available only upon a showing that the subject 
is taking steps to avoid surveillance. Second, where agents cannot 
identify by name the target of a proposed wiretap, they must describe 
the subject with sufficient particularity to convince the FISA Court 
that there is probable cause to believe the subject is a ``foreign 
power'' or an ``agent of a foreign power.'' That is, the wiretap order 
applies only to a specific person, even if the government has not yet 
ascertained his or her identity. The alternative--to make wiretaps 
unavailable until the target is identified--is a highly risky 
restriction, since valuable intelligence may be lost while a person's 
identity is investigated, especially given that terrorists operate in a 
clandestine world and are trained to use multiple aliases and 
identities. Third, if the government wants to conduct a wiretap of a 
new target, it must return to the Court with a new application. 
Finally, agents conducting wiretap investigations must abide by 
``minimization'' requirements, which strictly control the monitoring 
and retention of conversations by innocent persons not involved in the 
wrongful conduct.
    These provisions provide adequate safeguards to protect the civil 
liberties and privacy interests of Americans.

                               CONCLUSION

    I strongly urge the Committee to reauthorize Sections 206 and 215 
of the PATRIOT Act. These provisions strike the correct balance between 
homeland security and civil liberties.
    I thank the Committee for its time and attention, and would be 
happy to answer any questions.

    Mr. Coble. Thank you, Mr. Khuzami. Mr. Nojeim.

   TESTIMONY OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR/CHIEF 
      LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION

    Mr. Nojeim. Thank you, Chairman Coble, Ranking Member 
Scott, Members of the Subcommittee.
    It's a pleasure to testify before you today on behalf of 
the ACLU about certain sunsetting provisions of the USA PATRIOT 
Act. I will focus your attention on one of them--section 215, 
which deals with FISA records requests.
    I'll also focus your attention on a related provision, 
section 505 of the PATRIOT Act that does not sunset, but that 
raises many of the same concerns as does section 215.
    The PATRIOT Act expanded two existing sections of law that 
allow the FBI to compel people in businesses to produce 
documents and things.
    Section 215 of the PATRIOT Act expanded a provision of law 
to authorize the FBI to more easily obtain a court order from 
the secret FISA Intelligence Court requiring a person or 
business to turn over documents or things ``sought for'' an 
investigation to protect against international terrorism or 
clandestine intelligence activities.
    This ``sought for'' standard minimizes the role of the FISA 
Judge in controlling abuse, because it does not require any 
assessment of whether the records sought pertain to an agent of 
a foreign power or whether specific facts support a particular 
conclusion.
    Section 505 of the PATRIOT Act expanded National Security 
Letter authority to allow the FBI to issue a letter compelling 
Internet Service Providers, financial institutions, and 
consumer credit reporting agencies to produce records about 
people who use or benefit from their services.
    This power was later expanded to include records of car 
dealers, boat dealers, jewelers, real estate professionals, 
pawn brokers, and others.
    In both section 215 and 505, the PATRIOT Act removed from 
the law the requirements that the records being produced 
pertain to an agent of a foreign power; that is, a foreign 
country, a foreign business, or a foreign terrorist 
organization. This significantly expanded law enforcement 
access to records pertaining to Americans. In these days of 
data mining, one cannot ignore this stark fact: under these 
provisions, the Government can easily obtain records pertaining 
to thousands of Americans who have nothing to do with 
terrorism, so long as the records are ``sought for'' or are 
allegedly relevant to one of these investigations.
    Neither of these statutes signals the recipient of a letter 
or order that the recipient can challenge it in court. Both 
statutes indicate that the recipient can tell no one that the 
recipient has received the order or letter, including an 
attorney with whom the person might like to consult.
    In common parlance, the recipient is gagged, and under the 
statutory language the gag stays in place forever.
    We do not ask that you repeal either of these sections of 
law. Rather, we ask that you restore the ``agent of a foreign 
power'' requirement and that you amend the statute to time 
limit the gag, exempt attorney-client communications from it, 
and allow for court challenges.
    If these changes are made to the NSL statutes, they would 
satisfy the court that struck down as unconstitutional the NSL 
statute that applies National Security Letters to Internet 
Service Providers.
    We also recommend that you require the Government to report 
publicly about the number of times it uses these powers.
    Mr. Chairman, this could be one of the most productive 
hearings that you've conducted to date on the PATRIOT Act, and 
I say that because the Government has conceded that many of 
these changes need to be made. The Attorney General conceded 
that the gag to which I refer shouldn't cover attorney-client 
communications. Let's put it in the statute.
    The Government has conceded that--the Attorney General has 
conceded that the statute has a relevance requirement. Let's 
put a standard into the statute instead of this very loose 
``sought for'' standard.
    The Attorney General has conceded that a court challenge 
ought to be allowed. Let's put that in the statute. The 
Department of Justice in its sunsets report has indicated that 
evidence must be presented to the judge who is evaluating an 
application for a section 215 order. Let's put that in the 
statute.
    And finally, the Department of Justice has implicitly 
conceded that the number of times section 215 has been used can 
be disclosed without any damage to national security, and it 
did that because it has twice disclosed the number of times 
section 215 has been used.
    Mr. Chairman, I'd be happy to discuss roving wiretaps 
during the question and answer period, but let me sum up by 
saying this: We're not asking that law enforcement tools be 
taken away. Rather, we're asking that they be made subject to 
reasonable checks and balances, such as meaningful judicial 
oversight and appropriate disclosure to the public of the use 
of the power. Congress could adopt many of the reforms that I 
have mentioned by enacting the Security and Freedom Ensured 
Act, H.R. 1526. This bipartisan legislation, co-sponsored by 
Representative Otter, Representative Flake, Mr. Conyers, and 
others, contains a series of carefully calibrated adjustments 
to the PATRIOT Act that would go a long way toward bringing it 
more into line with the Constitution and advancing the goal of 
keeping America both safe and free. Thank you.
    [The prepared statement of Mr. Nojeim follows:]

                Prepared Statement of Gregory T. Nojeim



    Mr. Coble. Thank you, Mr. Nojeim. We have been joined by 
the distinguished gentleman from Florida, Mr. Feeney, and the 
distinguished gentleman from Texas, Mr. Gohmert. But don't 
start me yet.
    Gentlemen, we apply the 5-minute rule to ourselves, as 
well. So if you all could keep your responses as terse as 
possible and yet address the point, that would enable us to 
move along.
    Now, what I'm about to say has nothing to do with 206 or 
216. Mr.--I want to advise the Members of the Subcommittee and 
those in the hearing room that effective today, Mr. Bobby 
Vassar, who is the counsel to Mr. Scott, has become a 
granddaddy, a grandfather. And I told him earlier, I said, 
Bobby you look too young to be a grandfather, but 
congratulations to you, Bobby.
    Mr. Vassar. Thank you, Mr. Chairman.
    Mr. Coble. And incidentally, I had received Mr. Scott's 
permission before I did that, Bobby.
    He said you would not approve.
    Mr. Baker, what type of library records are covered under 
215 and how do these records assist or help in terrorism 
investigation, A; and B--and I think you touched on this--if we 
exempt library and book records from a 215 order, does that 
create a sanctuary for terrorists?
    Mr. Baker. Well, as I think you mentioned in your opening 
remarks, Mr. Chairman, the section 215 of the PATRIOT Act, does 
not discuss any particular holder of records at all. It doesn't 
mention libraries at all. It doesn't mention anyone else. And 
that's why it's an important provision. It allows the 
Government to go after what it needs with respect to each 
investigation. But it does not single out libraries or 
bookstores or anything else. That's point number one.
    Point number two is the effect would be it would create--it 
would put everybody on notice, if you exempted libraries or 
booksellers somehow, it would put people on notice that there 
was a, you know, a Government free zone where investigations 
could not go, and conduct could be conducted there, including, 
for example, use of computers or, you know, checking out other 
types of materials that might in some instances, as it has in 
the past and actual investigations provided important 
information for investigators. So we don't support that 
singling out or creating a sanctuary for any type of documents 
at all.
    Mr. Coble. I thank you, sir. Mr. Wainstein, some have 
suggested that since 215 has not been used to obtain library 
records, it's not needed, although I think maybe Mr. Baker 
probably will answer this as well. A recent commentary 
indicated that the 9/11 hijackers used libraries in the United 
States in the period leading up to September 11. Do you know 
whether or not, in fact, this is true?
    Mr. Wainstein. Yes. Some 9/11 hijackers did use libraries 
in the United States. Investigators have received information 
that individuals believed that 9/11 hijackers Wail Alshehri, 
Waleed Alshehri, and Marwan Al-Shehhi visited the Del Ray Beach 
Public Library in Del Ray Beach, Florida.
    Wail Alshehri and Waleed Alshehri entered the library one 
afternoon in July of 2001, and asked to use the library's 
computers to access the Internet. After about an hour a third 
man, Marwan Al-Shehhi, joined the two. Waleed and Wail Alshehri 
were hijackers aboard American Airlines Flight 11, while Al-
Shehhi was the pilot who took control of United Airlines Flight 
175, both of those flights crashed into the World Trade Center 
on September 11th.
    A witness, who recognized photos of the three individuals 
that ran the newspaper articles after September 11th, provided 
the information about the Del Ray Beach library visit. While no 
records exist to confirm the hijackers' visit to the Del Ray 
Beach Library, the timing, location, and behavior described by 
the witness are consistent with other information gathered in 
the course of the investigation.
    In addition, investigators tracing the activities of the 
hijackers determined that on four occasions in August of 2001, 
individuals using Internet accounts registered to Nawaf Alhazmi 
and Khalid Almihdhar, 9/11 hijackers, used public access 
computers in the library of a State college in New Jersey. The 
computers in the library were used to review and order airline 
tickets on an Internet travel reservations site. Alhazmi and 
Almihdhar were hijackers aboard American Airlines Flight 77, 
which took off from Dulles Airport and crashed into the 
Pentagon. The last documented visit to the library occurred on 
August 30, 2001. On that occasion, records indicate that a 
person using Alhazmi's account used the library's computer to 
review September 11th reservations that had been previously 
booked.
    Mr. Nojeim. Mr. Chairman, may I respond to that? May I 
respond to that?
    Mr. Coble. Well, I'll get to you in just a minute, Mr. 
Nojeim. I want to ask Mr. Khuzami a question. We're going to 
probably have a second round here as well. Comparing the 
process for obtaining records through a grand jury subpoena, 
Mr. Khuzami, with the process for obtaining records through 
section 215, which process in your opinion contains more 
safeguards to ensure the privacy of Americans?
    Mr. Khuzami. Mr. Chairman, I believe that section 215 does 
for a host of reasons.
    First, it has a much narrower scope. It only applies in 
foreign intelligence investigations or investigations designed 
to protect against international terrorism or espionage 
activities.
    Whereas, in the grand jury process, you can investigate 
anything in the entire Federal criminal code, as well as 
terrorism and espionage cases. So the scope is much narrower in 
section 215.
    Two, you cannot use section 215 authority to investigate a 
U.S. person based solely on their first amendment activities. 
There is no such similar restriction in the grand jury process.
    Third, and most importantly, there is judicial review of 
the section 215 order before it is issued. Agents can't just go 
out and grab your records. They have to present an application 
to the court and the court has to review it. It is an 
independent check on law enforcement that does not exist in the 
grand jury process.
    Next, there's congressional oversight, as you well know, 
for section 215 orders and the Department of Justice has to 
report on its use of that provision.
    And lastly, the Inspector General has to report on abuses 
in general under the PATRIOT Act. Neither of those two 
oversight functions exist in the grand jury process.
    Mr. Coble. Well, my time has expired. The gentleman from 
Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. Let me follow through 
on that. On the grand jury you're actually investigating a 
crime; is that right?
    Mr. Khuzami. That's correct.
    Mr. Scott. And in 215, you can be investigating--you said 
terrorism. But you can also be investigating--is 215 limited to 
terrorism or crimes?
    Mr. Khuzami. No, it can be used to collect foreign 
intelligence information or to investigate espionage.
    Mr. Scott. Whoa. Whoa. Whoa. Wait a minute. What is foreign 
intelligence information mean?
    Mr. Khuzami. That is information designed to determine if 
there are foreign intelligence agents collecting information or 
acting within the United States who may pose a threat.
    Mr. Scott. A threat? Does it have to be a threat?
    Mr. Khuzami. Does it have to be a threat?
    Mr. Scott. Right.
    Mr. Khuzami. No, it doesn't have to be a threat. But you 
have to be very careful to make sure that you are collecting 
this information so that you can prevent an attack rather than 
prosecuting it after it happens. And that's the critical 
difference in 215.
    Mr. Scott. How about getting information on trade deal 
negotiations in helping you conduct foreign affairs?
    Mr. Khuzami. I'm not aware that it's ever been used for 
that purpose.
    Mr. Scott. I didn't ask you--it says the code--does the 
code say conduct of foreign affairs, Mr. Baker. Is that what it 
says?
    Mr. Baker. Yes, sir. It does.
    Mr. Scott. Okay. Well, conduct of foreign affairs--a trade 
deal. Where is the threat if we don't get their low price on 
steel?
    Mr. Khuzami. I'm not aware that there is a threat for those 
purposes?
    Mr. Scott. Okay. But you can get 215 information if it's 
helping you conduct your foreign affairs; is that right?
    Mr. Khuzami. I'm not aware that it has ever been used for 
that purpose.
    Mr. Scott. Well, do you want to--can we strike it--well, 
how would you like us to limit this to just crimes and 
terrorism so we don't have to ask these questions every time we 
have a hearing about you getting a roving wiretap for things 
that have nothing to do with criminal activity or any national 
security of the American public?
    Mr. Baker. May I respond to that, Congressman?
    Mr. Scott. Sure.
    Mr. Baker. We discussed this briefly the other day, and I 
mean one of the purposes of FISA is to provide the President of 
the United States with timely and accurate information about 
the capabilities, plans, and intentions of foreign powers and 
their agents across the board. And the President of the United 
States has broad responsibilities to protect the national 
security, but also to conduct the foreign affairs of the United 
States.
    So as in my prior dealings with the Congressman, he always 
challenges me, and I always have to go do my homework to make 
sure I know exactly what we're talking about here. So after we 
discussed this the other day, I went off and looked up the 
legislative history on this particular point, and I believe it 
provides some comfort in this area, because it says that the 
provision we're talking about here requires that the 
information sought involves information with respect to foreign 
powers or territories and would, therefore, not include 
information solely about the views or planned statements or 
activities of Members of Congress, Executive Branch officials, 
or private citizens concerning the foreign affairs or national 
defense of the United States.
    Mr. Scott. If you have the agent of a foreign government 
that you're discussing a trade deal with, can you get a 215 
information and can you get the roving wiretap?
    Mr. Baker. In?
    Mr. Scott. And that's all the probable cause you got. The 
probable cause he's a foreign agent, and the probable cause 
he's going to talk about with his people back home what the low 
price on steel is. Can you get a roving wiretap?
    Mr. Baker. Under the statute, the answer is yes.
    Mr. Scott. Okay.
    Mr. Baker. But there's a limitation in that the information 
sought must be with respect to foreign powers or their 
territories, so it's different. It's not information about that 
U.S. person. It's information about what the foreign power.
    Mr. Scott. Okay. Well, let's talk about this U.S. person 
where you say you can't get it solely for protected first 
amendment activities.
    Mr. Baker. Yes. That's correct.
    Mr. Scott. And that solely invites a question. Suppose it's 
mostly for first amendment activities? A war protester?
    Mr. Baker. I am quite confident that my office, the 
Attorney General, and the FISA Court would be very concerned 
about any requests to conduct a FISA that was not done for a 
proper purpose; that was done apparently for a purpose to 
collect information about somebody who was merely protesting 
against the Government. There's----
    Mr. Scott. What does ``solely'' mean?
    Mr. Baker. Solely means, in my mind, solely--the only 
reason.
    Mr. Scott. And if it's mostly because of war protesting, 
but you got a little smidgeon of something else, it would be 
okay to get the information?
    Mr. Baker. In theory, that's what the language says. But--
--
    Mr. Scott. Well, I mean in theory. I'm talking about the 
English language. Is that what the words say?
    Mr. Baker. Yes, it does.
    Mr. Scott. Okay.
    Mr. Baker. But, as I said, there are mechanisms in place 
and individuals in place to enforce the law, and it seems to me 
that the rule of law does not depend merely on writing down 
laws on paper. You have to have people----
    Mr. Scott. What information do you present to the court to 
get a 215, to get 215 information?
    Mr. Baker. We would present to the court information--
because of the restriction that it can't be based solely on 
first amendment activities. We would provide to the court in 
that situation and the pen register situation, where you have 
similar restriction, information to assure the court, as well 
as our office, that it is not based solely on protected first 
amendment activities, and we would also explain to the court 
why it's relevant to the investigation.
    Mr. Scott. Are we coming back? Okay.
    Mr. Coble. The gentleman's time has expired. In order of 
appearance, the gentleman from Arizona, Mr. Flake. You're 
recognized for 5 minutes.
    Mr. Flake. Thank you, Mr. Chairman. I thank the witnesses. 
Let me just follow up. Have any--with Mr. Wainstein, if you 
could. Have any 215 applications been denied by a judge? By a 
FISA Court?
    Mr. Wainstein. I think actually the best person to speak to 
that would be Jim Baker because he actually appears before the 
FISA Court.
    Mr. Baker. The answer is no.
    Mr. Flake. No?
    Mr. Baker. The answer is no.
    Mr. Flake. Under what scenario could you see one actually 
being denied, given that the language actually says the judge 
shall issue the order.
    Mr. Baker. In my experience, I mean if the court was not 
obviously what we were just discussing with Mr. Scott. If the 
court was not satisfied that there was a legitimate basis for 
this investigation, a legitimate foreign intelligence or 
protective basis, then it would deny it, and should deny it, if 
we filed such an application.
    Mr. Flake. But it says--the words used there are ``shall.'' 
Do you see a problem with that, and do you think that we in 
Congress ought to be concerned that we would have to rely, as 
you put it on individuals and their discretion at the 
Department of Justice or prosecutors?
    Mr. Baker. Well, it's not just the Department of Justice, 
it's the court. It's Federal district court judges sitting 
especially designated as FISA Court judges, but who are 
appointed for life----
    Mr. Flake. But who are told by statute shall issue an 
order. Shall instead of should, might, use your discretion. 
Rather, it says shall.
    Mr. Baker. In my dealings as a lawyer, I have never met a 
judge who's just going to look at a blank request from the 
Government and not assure himself or herself that it's 
consistent with the law and ask commonsensical questions about 
what it is the Government is trying to do, especially in FISA 
and especially with the history that we have with respect to 
how national security authorities have been misused in the 
past. We're all very cognizant of that, and we all work very 
hard to make sure that doesn't happen again.
    Mr. Flake. But shouldn't we--I mean you're then saying that 
you're confident that a judge would ignore the statute that 
says he shall issue it, and actually defy it?
    Mr. Baker. Well, shall--I mean let me just be clear. The 
word shall is not just found in 215 and in no other creature of 
Federal law. It is found in other provisions as well, and when 
the Government meets the statutory requirements of that statute 
or other statues, it directs the court to issue the order.
    Now, having said that, my experience again with Federal 
judges is that they look hard at any requests from the 
Government to do anything, especially intrusive activities. And 
the court is going to look at that. That's why Congress put 
Federal judges into this process when they enacted FISA.
    Mr. Flake. Mr. Nojeim, would you comment on that?
    Mr. Nojeim. What the statute says is that when the 
Government applies for 215 order, it must specify that the 
records that it seeks are sought for an authorized 
investigation. Once it makes that specification, the statute 
requires that the judge issue the order giving them access to 
those records. The debate ought to be about what the Government 
should have to prove to the FISA Court, not--and that you 
shouldn't allow the statute to stay in its current condition 
that allows the Government to get these records merely when it 
makes the specification. Remember what's happening here. 
There's one party in front of the judge. And that one party 
need only specify. That's it.
    Mr. Flake. Moving on just a bit. In testimony the other day 
at a hearing, it seemed as if--and I want to get your opinion 
on this--that an individual who is not the target of probe, who 
is on the periphery somehow could have information on a 
Internet server, for example, that he could be surveilled for a 
long period of time without knowledge that he was under 
surveillance; that the notice simply has to go to the Internet 
provider or the server and not the individual. Is that 
accurate, Mr. Nojeim, first?
    Mr. Nojeim. Say it again? That the notice?
    Mr. Flake. That notice that surveillance is being conducted 
need not ever go to the individual?
    Mr. Nojeim. Oh, no. No. The individual who is being 
surveilled?
    Mr. Flake. Yes.
    Mr. Nojeim. Never knows.
    Mr. Flake. Never knows?
    Mr. Nojeim. Right.
    Mr. Flake. And that could happen for a long period of time, 
over a couple of years, and under the current law, they need 
not be ever notified that they are under surveillance?
    Mr. Nojeim. That's right. They would never be notified.
    Mr. Flake. Okay.
    Mr. Nojeim. And if I could just follow up on part of the 
discussion earlier? This notion about exempting libraries from 
the coverage of section 215.
    Mr. Flake. I was going to get to that.
    Mr. Nojeim. We have to remember that 215 and National 
Security Letters also apply to Internet Service Providers. The 
Government says that the library is an Internet Service 
Provider. But it can use its Internet Service Provider 
authority to get those records without having to go through 
section 215. In other words, if you exempted libraries from 
section 215, the FBI could still serve a National Security 
Letter on the Internet Service Pprovider that is serving the 
library and get those records using that authority, and it 
wouldn't even matter that the library had been exempted from 
section 215.
    Mr. Flake. But you have not--just to clarify--you or your 
organization has not asked for an exemption for libraries? You 
simply asked for a more rigorous standard that's applied before 
appearing before a judge?
    Mr. Nojeim. That's right.
    Mr. Coble. The gentleman's time has expired. And, as I 
said, we'll have a second round. The distinguished gentleman 
from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. I appreciate the 
witnesses' testimony.
    How many convictions based on terrorist activity have we 
had in the United States since 9/11? I'll start with Mr. 
Wainstein?
    Mr. Wainstein. Yes, sir. Thank you. I don't have----
    Mr. Conyers. I understand.
    Mr. Wainstein.--off the tip of my tongue an exact number, 
but I have actually--I know this question has come up, so I had 
a listing of various----
    Mr. Conyers. Sure. What number?
    Mr. Wainstein. I came up with about a dozen or so.
    Mr. Conyers. Okay. I'd like to see you afterward to find 
out how your list compares to mine.
    Mr. Wainstein. And keep in mind, that's not a total list.
    Mr. Conyers. No. It's not.
    Mr. Wainstein. It's just the cases that occurred to me as 
being terrorism cases that I----
    Mr. Conyers. Well, I'm in the process of trying to find 
this out. This is probably the most elemental question that we 
could be talking about.
    I asked you this already once, Mr. Baker, didn't I?
    Mr. Baker. Yes, sir, last time.
    Mr. Conyers. What number do you have?
    Mr. Baker. I don't--I didn't count.
    Mr. Conyers. You didn't count.
    Mr. Baker. I was just able to come up with--you asked--I 
think if we--if there had been any convictions, and I think----
    Mr. Conyers. All right.
    Mr. Baker.--the answer was yes. But I believe that the 
Department, the Criminal Division, of the Department, would be 
the most likely place to have that kind of information.
    Mr. Conyers. Thank you. Mr. Khuzami, what number do you 
have?
    Mr. Khuzami. I'll defer to my Department of Justice 
colleagues.
    Mr. Conyers. Okay.
    Mr. Khuzami. I do not have a number.
    Mr. Conyers. All right. Director Nojeim, how many do you 
have?
    Mr. Nojeim. I'd be happy to get back to you, Congressman.
    Mr. Conyers. Okay. All right.
    Mr. Nojeim. But let me just point out that it's important 
that when we're reporting numbers of convictions that we 
actually look at what the person was convicted of.
    Mr. Conyers. Well, exactly.
    Mr. Nojeim. Often the Department says that somebody was 
convicted of terrorism in connection with a terrorism 
investigation, when really the conviction is about a very minor 
crime.
    Mr. Conyers. Precisely. Well, I want to tell everybody and 
put it on the record that I've got four that I would be willing 
to--that's a number I would stand behind. But somewhere in our 
Government, and I'll take your suggestion, Mr. Baker, to check 
with who you referred us to.
    Now, let me ask if there's any witness here that has any 
objection--well, I don't--I guess I know the answer to this 
question already. All of the witnesses except one wants to make 
section 206 permanent; is that right? Right?
    Mr. Baker. Yes.
    Mr. Wainstein. Yes, sir.
    Mr. Conyers. Okay. Then I have to ask Mr. Nojeim what's the 
case for more safeguards and what would they be and why 
shouldn't we have, and why should we discontinue the use of 
simultaneously both John Doe wiretaps and roving wiretaps?
    Mr. Nojeim. We're not asking that you repeal section 206, 
the roving wiretap provision of the PATRIOT Act. What we ask is 
that you conform it to the corresponding provision in the 
criminal code. Doing this would entail requiring that the 
Government specify in its application for a wiretap either the 
identity of the person who's phone or computer would be tapped 
or to specify the facility that would be tapped.
    It would also entail borrowing from the criminal code the 
ascertainment requirement that helps focus law enforcement 
eavesdropping on conversations to which the target is really a 
party. Doing these two things would conform the intelligence 
roving wiretaps to the criminal roving wiretaps and would go a 
long way toward protecting the privacy of Americans engaging in 
innocent telephone conversations.
    Mr. Conyers. Finally, we've been trying to get information 
about these numbers. The only time we get cooperation from the 
Government, namely DOJ and the FISA people, is when there's an 
expiration of a provision, and then we get some numbers. Other 
than that we get stiffed for--what is it--three years we've 
been trying to engage in a discussion, and it was off the 
charts, and I just want to put on the record that this amounts 
to me to misclassification, because there's been no accounting 
for the wiretaps, the National Security Letters, and then all 
of a sudden when seeking reauthorization, we can get the 
numbers.
    And I think, Mr. Chairman, that's an abuse of power on the 
part of the Executive Branch that handles this kind of 
activity. Does anybody want to defend the Government on that 
score? Mr. Baker?
    Mr. Baker. Yes, sir. I'd be happy to. On a regular, on 
semi-annual basis, we provide to the intelligence committees of 
both Houses of Congress a very lengthy report full of all the 
numbers you could want quite frankly. It's a very, very long 
report, with a lot of data in it that is available at the 
committees', the intelligence committees, and, as I understand 
it, Members of Congress and cleared staff can have access to 
that. So we provide those numbers. We also provide less highly 
classified reports, with admittedly less information in them 
to, I think, both the Judiciary and Intelligence Committees of 
both Houses of Congress.
    Mr. Conyers. Well, all somebody had to do was put it in a 
letter to us saying go see the right agency. We're loaded with. 
You got more information than you could ever use, but we get 
stiffed.
    Now, I'll take it up with the staff and the Subcommittee as 
well but I'm glad you're telling us that it's really available 
if we can get cleared.
    Mr. Baker. And I come up regularly. I was up I think last 
week in front of the House Intelligence Committee to come up 
and do staff briefings and explain the numbers and provide 
additional details. So I'm happy to do that at any point in 
time.
    Mr. Nojeim. Mr. Conyers? Mr. Conyers, the Department 
reports every year the number of full FISA wiretaps and 
physical searches that it does. And it does that without any 
risk to national security. It could--and those are much more 
intrusive searches than our--than the searches under section 
215 and than our National Security Letter requests as well.
    This is what we got when we filed a Federal Freedom of 
Information Act request for information about the use of 
National Security Letters. It is page after page after page of 
blanked out information that seems to suggest that National 
Security Letters are being used, but that you can't really tell 
that they are or how often they are being used.
    We would suggest that more reporting could be done on 
National Security Letters.
    And I'd like to submit this for the record, and the letters 
that the Attorney General--I'm sorry that the Department of 
Justice--has provided over the last 2 years about even more 
intrusive surveillance.
    Mr. Coble. Without objection.
    The gentleman's time has expired.
    Mr. Conyers. Thank you.
    Mr. Coble. The gentleman--the distinguished gentleman from 
Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman, and once again I 
appreciate the opportunity for these hearings. It's very 
helpful.
    I was a little surprised, and I want to be sure about this, 
but did I understand that you know the U.S. Attorney' office 
knows or intelligence knows that the hijackers actually did use 
the library of the State college in New Jersey to make airline 
reservations for flight 77? Did I understand that correctly?
    Mr. Wainstein. Sir, the--what I stated earlier is that two 
of the hijackers used computers at that New Jersey library. 
They did review and order airline tickets. The airline tickets 
they ordered were not the airline tickets for the flight on 
September 11th. Those were ordered on some other computer 
somewhere else. They did review their reservations----
    Mr. Gohmert. I see.
    Mr. Wainstein. The September 11 reservations on that 
computer in that library on August 30 of 2001, 11 days before 
the attacks.
    Mr. Gohmert. There had been discussion about the gag order. 
Would it be appropriate to have at least a one-sided gag order 
where the Government does not reveal, but if the individual 
target wishes to reveal that he or she could do so? I'm 
interested in each of your responses?
    Mr. Baker. Well, I believe what the Department has 
supported in general is an amendment to the section 215 that 
would allow the recipient of the order, which remember is most 
likely a third party. We're unlikely to serve a 215 order on 
the target of the investigation, but that--we would serve it on 
a third party and that third party then could consult with 
their attorney to discuss whatever legal action they want to 
take or compliance of whatever other matters they want to 
discuss.
    So we would support some kind of an amendment to address 
what's been referred to as a gag order in that regard.
    Mr. Gohmert. So that would basically be a one-sided gag 
order, where the Government would not reveal, but the recipient 
could; is that correct?
    Mr. Baker. The recipient could reveal to his or her 
attorney or to the company's attorney, whatever it is. They 
could have a meaningful discussion with their attorney to get 
legal advice on this issue.
    Mr. Gohmert. So it is currently the law you're telling me 
that somebody gets this order. They can not even talk with an 
attorney about it?
    Mr. Baker. On its face, that's what it says. The Department 
has already taken the position that they could talk to their 
lawyers with respect to this--with respect to receiving one of 
these items, but that is what the law says. And that's why we 
would support clarifying that specifically.
    Mr. Gohmert. But your position is only that it be extended 
to consultation with an attorney or someone of that nature, not 
that they could go public with it?
    Mr. Baker. No. Certainly, I mean we don't want the target 
of the investigation, who is a spy or terrorist, to find out 
we're looking for documents about them.
    Mr. Nojeim. Mr. Gohmert, we agree with that. We would add 
one more thing and that is that to satisfy the court that 
struck down the National Security Letter statute that applies 
to Internet Service Providers, to satisfy that court, you would 
also need to time limit the gag. It would have to expire after 
a time certain. And I think that that could be done; that the 
time could be a lengthy one. In the Senate version of the SAFE 
Act, to which I referred earlier, has I believe a 6-month time 
limit on the gag.
    I'd also like to submit for the record a copy of the form 
of a National Security Letter so that people can see exactly 
what these look like. They have very compelling language. You 
get the letter. You must turn over the documents, and you can't 
tell anyone that you got the letter, and we would support the 
amendment that was discussed earlier.
    Mr. Baker. Congressman, if I could just on this----
    Mr. Gohmert. Certainly.
    Mr. Baker. On the time limit, I mean, to me I think that's 
a very dangerous and bad idea quite frankly, because I mean 
some of the targets of our investigations, let's be quite 
clear, are agents of a foreign power. What does that mean? That 
means in some instances, they are foreign government officials 
who we are investigating, and we want to obtain information 
about them, and I don't think that anybody here thinks that 
they should deserve notice about what the United States 
Government is doing to investigate their activities. I just 
think that doesn't make any sense.
    Mr. Nojeim. Should the Government concede----
    Mr. Gohmert. Excuse me. Just a moment.
    Mr. Nojeim. By the agency?
    Mr. Gohmert. Just a moment. Let me follow up on that. What 
if there were a time limit, some might call it a sunset 
provision, where you'd have to come back in and re-justify the 
need to extent it further?
    Mr. Baker. Well, I mean off the top of my head, that kind 
of--come back to the FISA Court and try to justify it--that 
kind of idea makes more sense because there are some times when 
even if you're investigating a United States person where the 
Government assesses that it makes more sense; we're getting 
more intelligence information by leaving this person in place 
than by trying to take them out or arrest them or something 
like that. And so sometimes intelligence investigations can go 
on for a considerable period of time, and that's appropriate 
and done under the scrutiny of the FISA Court.
    So I think that is an idea that I'm sure the Department 
would be willing to work with the committee on.
    Mr. Gohmert. Mr. Nojeim, does that address your concern?
    Mr. Nojeim. It does, and it is the approach that the Senate 
took in its version of the Safe Act, and we would support it.
    Mr. Coble. The gentleman's time has expired.
    Mr. Gohmert. Okay. I'm sorry.
    Mr. Coble. We'll have a second round, Mr. Gohmert.
    Mr. Coble. The distinguished gentlelady from California, 
Ms. Waters.
    The distinguished gentleman from California, Mr. Lungren.
    Mr. Lungren. Thank you very much, Mr. Chairman. I 
appreciate these hearings continuing on the oversight 
responsibility of the Judiciary Committee and if anybody 
doesn't believe that we're reviewing the PATRIOT Act, they 
ought to just look at the schedule of the committee and the 
Subcommittee.
    I'd like to get one thing, though, at least my response on 
the record. There was a use of a phrase a little while ago 
about abuse of power. And the suggestion was made that you in 
the Justice Department have failed in your responsibility to 
report to us. But, Mr. Baker, you've made it clear that you on 
a regular basis have to do those detailed reports to the House 
and the Senate Intelligence Committees; is that correct?
    Mr. Baker. That's correct.
    Mr. Lungren. Have you discharged that responsibility in the 
last 4 years?
    Mr. Baker. Absolutely. I have. When I first came to OIPR as 
an attorney assigned to do those reports--it's very 
painstaking--and since then I've supervised the preparation.
    Mr. Lungren. Has there been a time in which those reports 
were not done to the relevant committees as required by law, 
both the House and the Senate.
    Mr. Baker. No. We comply with the law in that regard.
    Now, I'm going to be frank. There are times--on the big 
semi-annual report that I talked about that has all the details 
in it, we provide those on a timely basis. There's times when 
on some of the other reports we're slower than we should be. 
And we know that. We're trying to address that, and it's a 
question of resources within our office quite frankly.
    Mr. Lungren. I appreciate that. It's just been experience 
when I served on the House Intelligence Committee that 
generally speaking--I'm not talking about any single member, 
but generally speaking the other Members of Congress don't take 
advantage of the opportunity they have to look at that 
information. So I just want to make it clear that you have 
reported as required in the detail as required?
    Mr. Baker. Yes, sir.
    Mr. Lungren. Secondly, have you ever heard of sleeper cells 
that they sometimes sleep longer than 6 months?
    Mr. Baker. Sleeper. Well, without going into specifics 
about what we know about sleeper cells, I mean that's the whole 
idea. They sit there until such time as, you know, the 
authority that has control of them activates them.
    Mr. Lungren. I understand. See here's what I don't 
understand. We passed these laws in response to a specific 
attack on the United States by those who wish to do us harm. A 
fatwa that issued in 1999 that said it is the obligation of 
everybody who is the subject of the fatwa, the recipient of the 
fatwa, it is their obligation to kill every American anywhere 
in the world--man, woman, or child; belligerent or non-
belligerent. That's what we're up against. We passed the law in 
that context, and sometimes I think we forget in what context 
we passed that law.
    Now, the claim was made that a judge has no discretion 
whatsoever, at least the impression was made that the judge has 
no discretion whatsoever under section 215 in the application, 
because it says shall. It says upon application made pursuant 
to this section, the judge shall enter a next party order as 
requested or as modified, approving the release of records. 
Followed by this language if the judge finds that the 
application meets the requirements of this section. And what 
are the requirements of this section? That there be an 
investigation quote ``to obtain foreign intelligence 
information not concerning a United States person.'' Correct?
    Mr. Baker. Yes.
    Mr. Lungren. The judge has to make that finding. Correct? 
He has to check and make sure that what you say is in there?
    Mr. Baker. That's correct.
    Mr. Lungren. Or to protect against international terrorism 
or clandestine intelligence activities?
    Mr. Baker. That's right.
    Mr. Lungren. Provided that such investigation of a United 
States person is not conducted solely on the basis of 
activities protected by the first amendment of the 
Constitution. The judge is required to look at that, is he not?
    Mr. Baker. Yes.
    Mr. Lungren. And you have to prove to his satisfaction 
that, in fact, that is the basis for the request; correct?
    Mr. Baker. Under the law, the judge has to see and assure 
himself or herself that the certification is there.
    Mr. Gohmert. Right.
    Mr. Baker. But in my experience, this court, going back 
many years is very active in looking at and looking behind what 
the Government is presenting to it, and so I can assure you 
that that's what happens, and as we've reported publicly in the 
report that was mentioned earlier, last year on the full 
content FISAs, the FISA Court made modifications, substantive 
modifications in 94 applications. It's a very active court. 
They look at what we're doing. They're very conscientious.
    Mr. Lungren. Now, as I understand the testimony, library 
records have not been accessed by resort to section 215?
    Mr. Baker. That's correct.
    Mr. Lungren. Even though we know now in retrospect that 
the--some of the hijackers in 9/11 utilized public libraries, 
their computers, for the various reasons you've talked about?
    Mr. Wainstein. That's true. We have not issued any 215 
orders directed at libraries. Keep in mind, however, and there 
has been testimony over the last week or two about this, that 
we have had contact with libraries, and many libraries have 
actually voluntarily provided information to us over the years 
since 9/11 in relation to terrorism and criminal 
investigations.
    So we haven't had to resort to 215 order.
    Mr. Lungren. See if some of the discussion I've seen in the 
public has suggested that somehow the Federal Government is so 
interested in going after libraries as if there's no context in 
this. And I think a lot of American citizens would be surprised 
to know that 9/11 hijackers utilize the libraries, and in 
retrospect, we wish we knew about that. In retrospect, we wish 
we'd been able to connect dots. Thank you.
    Mr. Coble. I thank the gentleman from California. The 
gentleman from Massachusetts, Mr. Delahunt.
    Ms. Waters, did you want to reclaim your time?
    Ms. Waters. Yes, I would like very much, Mr. Chairman.
    Mr. Coble. The gentlelady from California.
    Ms. Waters. I appreciate and thank you. I think we should 
continue on the discussion about the libraries. I just heard 
our witness say that you have not had to access information 
about people using the library. You have not had to resort to 
that, and you have not had to resort to informing a librarian 
that they cannot share that information or tell the party that 
maybe is being investigated. Is that true?
    Mr. Baker. That is correct. We have not used this 
provision, section 215 for the purpose of obtaining information 
from libraries.
    Ms. Waters. I see. I'm sorry. That's not my understanding, 
and I have to go back and do a little research about the 
information that was--that alarmed us when we first learned 
about your ability to identify individuals who use a library 
and the materials that they seek in that library. My friend 
from California, my colleague on the opposite side of the 
aisle, indicated that he could not understand Americans who 
would be concerned about that. And he thought perhaps Americans 
may not have heard that some of the hijackers may have used the 
libraries in order to access information that may have been 
used in the attack.
    I think that many Americans heard that that was a 
possibility. I am one who's adamantly opposed to librarians 
having to give information to law enforcement of any kind about 
who uses the library, when they use the library, and what 
subject matter they researched or read or had access to in the 
library. And it's not because we're not concerned about safety, 
and we're not concerned about terrorism. America is a very 
special country, with a constitution that guarantees us 
privacy, and to think that you would be--your privacy would be 
invaded in the way that this section allows is alarming to some 
of us.
    And so I wish not to have the moment pass by having my 
colleague from California describe his understanding of this 
section and his lack of appreciation for why Americans would be 
concerned about this, and I wish to just share with you that 
I'm glad you have not had to use it. I'm going to research the 
information that I thought I had seen about your having used 
that, and I would oppose this continuously and forever because 
I think it is one of the most egregious violations of privacy 
to be targeted in the library.
    Mr. Conyers. Would the gentlelady yield?
    Ms. Waters. Yes, I will certainly yield to the gentleman.
    Mr. Conyers. One of our problems, and I'm glad you've re-
raised this subject is that you don't need to use what is it--
215?--to get to the libraries. You can get to the libraries 
through a National Security Letter, which is an administrative 
subpoena. And guess what? They won't tell us how many of those 
letters they've used. And what we think has been happening is 
that they've been getting to libraries, not through 215, but 
through this other route.
    I have not raised that. I didn't raise that question yet, 
and that's why I praise you reclaiming your time.
    Mr. Nojeim. If I could just put a little fine point on 
that? The Government could use a National Security Letter to 
get the records of a person's use of the library computer, but 
they couldn't use the National Security Letter to get records 
about what books the person checked out. So they could find out 
where the person went on the Internet, but not use it to get 
records about what they checked out of the library.
    Here's where the real debate ought to be on this section. 
If the Government believes that Mohammad Atta has gone into a 
library, checked out a book, and that he's an agent of a 
foreign power or foreign terrorist organization, they ought to 
be able to get records about that if they can show that they're 
relevant to an investigation. They ought to be able to do that.
    The real debate is about whether they can go to the library 
and say, ``Give us the records about what everybody checked 
out, because in that--inside of those many records will be 
information that's relevant to our investigation.'' And what 
we're saying is focus on the agent of the foreign power, but 
leave the records that pertain to innocent people alone.
    Mr. Coble. The gentlelady's time has expired.
    Ms. Waters. All right. All right.
    Mr. Coble. The gentleman from----
    Ms. Waters. Thank you. Thank you very much.
    Mr. Coble. Mr. Wainstein may respond if you wanted to 
very--do you want to respond?
    Mr. Wainstein. I just wanted to point out that the 
Department has taken the position that the recipient of a 215 
order can, in fact, challenge it if they think that it's overly 
broad and oppressive, and, in that case, a library, if they 
really thought that we were overly broadly asking for all the 
records--the records of all of the readers in the library 
could, in fact, consult with their attorney and then challenge 
it in court.
    Mr. Coble. Very well. The gentleman from Ohio is recognized 
for 5 minutes.
    Mr. Chabot. I thank the gentleman for his recognition. I'd 
just like to start out by reiterating something that my 
colleague from California, Mr. Lungren, mentioned before, and 
that's that I sometimes read articles and hear my colleagues 
sort of loosely state that after we passed the PATRIOT Act, 
there has been essentially no oversight; that we've kind of 
turned the Federal law enforcement forces loose on the American 
public and all kinds of kind of wild allegations, but clearly 
Congress has been getting the reports. Now, who's been reading 
these reports and whether we've been following up with our 
responsibilities in doing that is another matter.
    But we were pretty careful in crafting this legislation. We 
also put in that legislation the requirement that we come back 
and revisit this to see how this has actually been carried out 
over the past 3, 4, 5 years, and that's what we're doing now. 
And I want to commend the Chairman for holding these hearings, 
and we've had a significant number of these hearings; and I 
think the attendance has been pretty good on both sides of the 
aisle. Both Republicans and Democrats who have been here I want 
to commend them for doing that.
    But this is part of that oversight process, and I think 
when we passed the PATRIOT Act, we were very serious about 
exercising this oversight, and this is all part of that 
procedure and process.
    Mr. Nojeim, let me start with you. In your testimony, you 
point out that prior to the passage of the USA PATRIOT Act, 
roving wiretaps were available in criminal investigations, but 
not, of course, in FISA investigations.
    Leaving aside for a moment the two particular criticisms of 
section 206 contained in your testimony, do you agree with the 
other witnesses on the panel that roving wiretap authority 
should be available in FISA investigations?
    Mr. Nojeim. We believe that roving wiretaps are potentially 
particularly intrusive and that for that reason, if Congress 
decides to make them available in intelligence investigations, 
it ought to include the same kinds of protections that it put 
for roving wiretaps in criminal investigations.
    Mr. Chabot. Okay. Thank you.
    Mr. Baker, let me go to you next. In Mr. Nojeim's 
testimony, he alleges that the Government can now issue John 
Doe roving wiretaps that fails to specify a target or a 
telephone. It's my understanding, however, that a roving 
wiretap order issued be the FISA Court must specify a 
particular target, and that this target must either be 
identified or described.
    And furthermore, I've been told that the FISA Court must 
find that there is probable cause to believe that the 
identified or described target is a foreign power, agent of a 
foreign power, and may take action to thwart surveillance. Am I 
accurately describing the requirements set forth in FISA or is 
Mr. Nojeim's allegation correct?
    Mr. Baker. No. You're actually--you're accurately 
describing the requirements of FISA. We must provide the 
identity, if known, of the target or a description of the 
target, and then--and we have to establish probable cause to 
believe that that target is a foreign power or an agent of a 
foreign power.
    As I said earlier, those two terms are defined. It's not--
we don't just make it up. They're specifically defined in the 
statute, and when you come to a U.S. person, all of those 
definitions have a link to the criminal law of the United 
States.
    And in addition to that, then the court has to make the 
specific finding, as you suggest, that that target, that 
target, is engaging in activities that may have the effect of 
thwarting surveillance.
    Mr. Chabot. And in Mr. Nojeim's testimony, he also suggests 
that the section 206 of the USA PATRIOT Act lacks sufficient 
privacy safeguards, but he doesn't mention the statutory 
requirement that each roving wiretap order issued by the FISA 
Court contains specific minimization procedures in order to 
limit the Government's acquisition and retention and 
dissemination of information about Americans.
    Could you please discuss what minimization procedures are, 
and why they're important, and whether you feel that these 
procedures adequately protect the privacy of our citizens?
    Mr. Baker. In order to obtain a FISA Order in the first 
place, each application must include within it minimization 
procedures that are specifically approved by the Attorney 
General and that are reasonably designed in light of the 
purpose and technique that's going to be used to protect 
against the acquisition, retention, and dissemination of non-
pertinent communications by Americans. And these procedures 
have to be specific. They have to be reasonably designed in 
light of the need for the Government to obtain, collect, and 
disseminate foreign intelligence information, and then the 
court makes a finding, when it's reviewing our application, 
that those minimization procedures meet the definition set 
forth in the statute by Congress.
    Once the court has made that assessment and the other 
assessments under the statute and determines that the order can 
be lawfully issued, the court grants us the authority and then 
it orders us to follow the minimization procedures.
    The minimization procedures are--there are standard 
procedures that exist that we use in just about every case. And 
then for particular circumstances, the court or the Government 
or both will craft specialized minimization procedures to 
address situations that come up where the intrusion in privacy 
might be higher, and you have to adjust accordingly. And so the 
court is very active in assuring itself before it issues an 
order that the minimization procedures are appropriate.
    Mr. Coble. And the gentleman's time has expired. And 
consistent with what the gentleman--Mr. Delahunt, I'll give you 
just a minute. I just want to follow up on what the gentleman 
from Ohio said regarding our oversight.
    And the other day, at our hearing, Mr. Delahunt, you 
commented about the accelerated path that we are now pursuing. 
I hope that if any of these provisions are subsequently 
sunsetted, I would like to see the sunset occur at the 
conclusion of the calendar year of the second year of the 
Congress rather than the first year. That might, Mr. Delahunt, 
preclude our having to do this exercise again.
    The distinguished gentleman from Massachusetts, Mr. 
Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman. Just to follow up on 
that point. I think it was you, Mr. Wainstein, that said you 
encouraged this committee to make these provisions permanent. 
This really does go to the issue of oversight. I don't want to 
get into the details of the various provisions at this point.
    But, Mr. Chairman, you know, as I participate in these 
various hearings, I'm becoming--I'm reaching the conclusion 
that if they're not to be sunsetted, if they're to be modified, 
if there are to be changes, or if there are--if they are just 
reauthorized as is, I think it's very important that they not 
be made permanent; that these kind of hearings are positive and 
are absolutely integral in terms of our role as far as 
oversight is concerned. It gives us--I can--I dare say the 
gentleman from Justice would not be here but for the fact that 
there is a sunset provision. And maybe, just maybe, we ought to 
expand the sunset aspect of the PATRIOT Act to other provisions 
to give us a more--how shall I say--leverage in terms of our 
oversight function, and that is if nothing with that act 
changes.
    But the reality is, with all due respect, you know, dealing 
with the Department in terms of securing information without 
the leverage of the sunset is extremely difficult. It isn't 
easy. And I think that is a sentiment that is shared on both 
sides and in other committees. And I have no doubt, Mr. Baker, 
that, you know, you take your role very seriously, and I'm sure 
that the career people that are working under your direction 
are people who act in good faith. But the system itself 
requires more than just checks and balances within the 
Executive Branch.
    And that's why I put this idea out about as we reauthorize 
or as we address the sunset provisions to expand the sunset to 
the entire PATRIOT Act, to allow us to have a more significant 
role in terms of our responsibility and our review.
    Mr. Baker. May I just respond briefly to that?
    Mr. Delahunt. Sure.
    Mr. Baker. And I thank you for your comments. We do take 
our jobs very seriously.
    Mr. Delahunt. I know that.
    Mr. Baker. And we do conduct--ourselves we conduct 
oversight of the activities of the FBI and the----
    Mr. Delahunt. I understand.
    Mr. Baker.--the intelligence committees. I mean 
intelligence community. And oversight it seems to me--effective 
oversight to do it--it's a hard job--it's a really hard job. 
You really got to roll up your sleeves and dig in and do a lot 
of work----
    Mr. Delahunt. Right.
    Mr. Baker.--and push, and get the information you need to 
satisfy yourself that what's being done is appropriate and 
consistent with the law.
    I will tell you that even though I don't agree with all 
their conclusions, the Senate Intelligence Committee audit 
staff conducted a very lengthy oversight or audit of the FISA 
process, and they're finishing the report, and it was 
referenced yesterday, and that, I mean, I myself spent many, 
many, many hours with them discussing the process and so on.
    Mr. Delahunt. Right.
    Mr. Baker. And they had access to everything. And that----
    Mr. Delahunt. I'm running out of time. Here's part of my 
problem, too, Mr. Baker, is that you reference the, you know, 
the reports to the Intelligence Committee. I don't know, but 
does the Judiciary Committee that has, you know, jurisdiction 
over the Department of Justice--do we get those same reports?
    Mr. Baker. I don't pretend to understand all the rules of 
Congress, but----
    Mr. Delahunt. Neither do I.
    Mr. Baker.--as I understand it, those kinds of reports are 
available to Members of other committees. You go up and read it 
in the secure space of the Intelligence Committee, and then 
staff members who have appropriate clearances----
    Mr. Delahunt. Okay.
    Mr. Baker.--can go----
    Mr. Delahunt. Well, again, another suggestion would be, Mr. 
Chairman, is when the time comes to have--that Justice report 
directly to this committee as well as the Intelligence 
Committee since we do have oversight.
    Part of the problem, Mr. Baker, is that the FISA Court--and 
I'm sure again--that these judges--you know, they're really 
title III judges I understand that move over to the FISA 
Court--but there again everything is done in secret, obviously 
by necessity. But, as I said earlier in the week, part of the 
problem here is balancing the need for transparency versus the 
need for secrecy because of national security and the concerns 
that people have expressed about privacy and libraries, et 
cetera are part of that balance. And, you know, let me just ask 
one more question.
    I think the suggestions and the recommendations by Mr.--is 
it Nojeim?
    Mr. Nojeim. Nojeim. Thank you.
    Mr. Delahunt. Nojeim. Are really reasonable. I don't see 
the heavy burden that the adoption of those recommendations 
would put on the Government, and yet would, you know, accrue to 
the benefit of the American people in terms of their concerns 
about what's happening behind closed doors, because it is 
happening all behind closed doors. We've got to provide more 
information and become more transparent. That's difficult. I 
understand. But that's the--I think the role of this committee 
working with the--you know, with the Department, and really 
thinking this thing through in a responsible way. Thank you.
    Mr. Coble. The gentleman's time has expired. We'll get back 
on the second round, Mr. Baker. We're going to have a second 
round. The gentlelady from Texas has joined us. Ms. Jackson 
Lee, you're recognized for 5 minutes.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman, and, 
Mr. Nojeim, I'm going to pose a series of questions for you, so 
ask mine, and then you can weave in your commentary.
    Let me first of all thank both the Chairman and Ranking 
Member of the Subcommittee. I know this is leading to the 
potential of the reauthorization of certain aspects of PATRIOT 
Act One, and, of course, also moving into PATRIOT Act Two.
    I am on record--I might as well as they say share it all 
for opposing PATRIOT Act One, and considering where we are 
today, on any aspects that are now being called to be 
reauthorized.
    As it relates to the next step, I'm on record for being 
enormously skeptical to the extent of moving past the 90 
percent radar screen. It's fair to make that acknowledgement.
    Let me share with you just a few comments and if you can 
point right back to libraries and access and the clear equation 
of invasion of privacy equals excellent security or absolute 
security.
    My recollection is that one of the reasons of the Founding 
Fathers fleeing from their previous nation site was this 
question of freedom. We did not devise the Bill of Rights in 
the 20th century. It was devised by early founders of this 
nation. And so it must have been something keenly part of the 
cornerstone of America. And that is unfortunately other than 
the recognition of the dignity and the humanity of slaves and 
women, freedom was a very, very serious in-depth infrastructure 
or fabric of our society. And we were willing to die for it.
    I recall after 9/11, one of the tools of so-called freedom 
or security was the registration of Pakistani males and others. 
My knowledge is that not one or barely one terrorist was found 
during that registration period, and quietly we ended it. So 
the question is, as we look toward our security, I happen to 
focus more on technology, security of the borders, preventing 
people who have untoward desires from coming into the United 
States, and also giving law enforcement the appropriate tools.
    Would you answer for me the fact of whether or not the 
complete invasion of one's private e-mails, technology, library 
usage, et cetera is preventative of terrorism or is it simply a 
tool to make a case that you have the intent or the inclination 
or the background or the previous thought processes that might 
make you a terrorist?
    Mr. Nojeim. We believe that when the Government has strong 
evidence that a person is up to no good, that they're a 
terrorist, that they can get access to very private information 
about that person to help prove their case.
    Ms. Jackson Lee. Already? Now?
    Mr. Nojeim. That then can do it now and that they ought to 
be able to do it. When the Government has, for example, 
probable cause of crime that there's--that a person is involved 
in crime and that in their house is evidence of that crime, 
they should be able to get a warrant and go into their house 
and find that evidence. The important thing to remember is that 
there are safeguards, and what the PATRIOT Act did was erode 
the safeguards.
    Our advocacy today and our advocacy throughout this debate 
has been about restoring some of those safeguards. One of the 
safeguards that we want to restore, besides judicial review and 
meaningful judicial review, is openness to the public about how 
particular powers are being used. And Mr. Delahunt was asking 
whether the committee gets reports about section 215. Indeed, 
the statute requires that the Attorney General provide to the 
Judiciary Committee a report setting forth the total number of 
section 215 orders that it has applied for and the total number 
of such orders either granted, modified, or denied.
    It also has to provide similar information to the general 
public about FISA Orders--those full probable cause ``that-the-
person-is-an-agent-of-a-foreign-power'' orders that allow them 
to wiretap or break into a person's home. It has to provide 
that same information about much more intrusive searches to the 
entire public, and we see no reason why the Government couldn't 
provide that same information about the less intrusive section 
215 searches to the entire public, especially given that the 
Attorney General has twice disclosed exactly that same 
information.
    Ms. Jackson Lee. Mr. Baker, if I might just get an answer. 
What about those safeguards? Can you not live with the 
safeguards that the witness has just spoken about?
    Mr. Coble. Would the gentlelady suspend just for a moment, 
Ms. Jackson Lee? Mr. Baker, if you would answer that very 
quickly. We have a vote on the floor, and we will come back, 
Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Mr. Coble. We will come back for--Mr. Baker, if you will 
respond very quickly.
    Mr. Baker. FISA--excuse me--FISA includes a number of 
reporting provisions, and I think that the Department has 
expressed a willingness to work with the committee to discuss 
whatever additional requirements might be appropriate, but we 
need to remember that we're dealing with the national security, 
and so we have to always be consistent with that.
    Ms. Jackson Lee. We'll carry that on further.
    Mr. Coble. The gentlelady's time has expired.
    Ms. Jackson Lee. Thank you very much.
    Mr. Coble. And the panelists, if you all will just rest 
ways. Hopefully, we'll be back imminently. I'm thinking 10 
minutes probably at the most. Thank you.
    [Recess.]
    Mr. Coble. I apologize to the panelists. Sometimes these 
best laid plans of mice and men, you know, sometimes go awry. 
And to compound the confusion, as I told you all earlier, 
this--we must make this hearing room available to the Courts 
and Intellectual Properties Subcommittee. So we're going to 
have to adjourn about quarter 'til twelve to let them wrap up. 
So but for everyone's information, we will keep the record open 
for 7 days. And we can communicate with you all. You all can 
communicate with us.
    So we'll start our second round, and maybe try to make the 
5-minute rule, maybe a 2-minute rule just to get around.
    Mr. Nojeim, you wanted to respond to Mr. Wainstein. Did you 
ever do that after the first round? If you did not, I'll let 
you do that now.
    Mr. Scott. I think he did. He did.
    Mr. Coble. All right. Bob--Mr. Scott says that he thinks 
that you did.
    Mr. Nojeim. Okay.
    Mr. Coble. Did you want to respond to what he said, Mr. 
Wainstein. I don't remember.
    Mr. Wainstein. I don't remember what he responded to----
    Mr. Coble. Okay.
    Mr. Wainstein.--to whatever I said.
    Mr. Coble. Well, we're being fair and balanced here in any 
event. Let's see what we do here.
    Mr. Baker, even if the Government is not sure of the actual 
identity of the target--I'm talking roving now--does FISA, 
nonetheless, require the Government to provide a description of 
the target of the electronic surveillance to the FISA Court, A. 
And, B, how difficult is it to identify international 
terrorists and foreign intelligence agents by name?
    Mr. Baker. Yes. The statute requires us to either provide 
the identity or a description of the target, and based on 
whatever we provide, on that factual basis, the court has to be 
able to make the other findings that the statute requires, 
including probable cause to believe that the target is an agent 
of a foreign power. So the answer is there has to be a target, 
and the court has to be able to make some findings with respect 
to that target.
    Mr. Coble. I want to thank you, sir. Mr. Khuzami, do you 
believe that with section 206 of the USA PATRIOT Act, foreign 
intelligence investigations can be more--can more effectively 
gather critical information with the purpose of preventing a 
massive disaster not unlike September 11th, and how would the 
antiquated requirement of 1986 impede the successful prevention 
of terrorist attacks today?
    Mr. Khuzami. Well, I think it's----
    Mr. Coble. Your mike is not on, Mr. Khuzami.
    Mr. Khuzami. Sorry. Yes. I--you know, the roving wiretap 
authority is critical because you don't always have the ability 
to identify in advance what communications facility the target 
might use, and you can lose very valuable intelligence and 
information in that interim period, either before you know what 
facility is going to be used or before you can ascertain their 
identity. And I frankly think that given the remainder of the 
protections in that statute that not making those requirements 
is an entirely proper balance of individual rights, but at the 
same time ensures that we protect national security.
    Mr. Coble. I thank the gentleman. Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman. First, did somebody say 
that no part of the PATRIOT Act has been found 
unconstitutional?
    Let me ask it another way. Has any part of the PATRIOT Act 
been found unconstitutional.
    Mr. Baker. I believe the answer to that question is no. I--
specifically a provision of the PATRIOT Act. Material support. 
I take that back. There's a material support provision.
    Mr. Scott. That's been found unconstitutional?
    Mr. Baker. Mr. Wainstein can speak on that. Yeah.
    Mr. Scott. Any other part?
    Mr. Nojeim. There are two provisions.
    Mr. Scott. Wasn't 505(a)?
    Mr. Nojeim. There are two provisions that have been found 
unconstitutional. The first is the material support provision 
as it relates to expert advice and assistance. And the second 
is section 505(a), National Security Letter provision, as it 
applies to Internet Service Providers.
    And I'd like to illustrate that if I could. Section--what 
the PATRIOT Act did was to amend section 505(a), and the first 
poster that I'll show here shows what--I'm sorry. What the 
PATRIOT Act did in section 505(a) was amend 18 U.S.C., section 
2709, which is the National Security Letter provision that 
applies to Internet Service Providers. This is 18 U.S.C., 
section 2709 before the PATRIOT Act.
    This is how section 505(a) of the PATRIOT Act amended 
section 2709. That which is in yellow was added. That which is 
crossed out was deleted.
    As you can see, it rewrote this statute. And the last 
poster shows what's left of this statute after the court in Doe 
v. Ashcroft struck it down. It stuck down not only what was in 
the statute before the PATRIOT Act, but it struck down every 
single word of section 505(a) of the PATRIOT Act.
    So we believe that this illustrates how that particular 
section of the PATRIOT Act was ruled unconstitutional. And I 
should add the changes that we're advocating to section 505 of 
the PATRIOT Act would bring into line with that court decision 
so that it could--National Security Letters could again be 
used.
    Mr. Scott. Okay. Now, we--on section 215 you've got to get 
a warrant, but we've ascertained that this is not limited to 
crimes or terrorism. It includes foreign intelligence as well 
as terrorism and everything else so that you don't need 
probable cause of a crime. When you get the records--a 
suggestion has been that if it's overly broad, somebody can 
challenge it, but the target doesn't know you're going after, 
and there's no real challenge from the recipient of the warrant 
because after there's a specification--I think we've 
ascertained that the judge doesn't have a whole lot of 
discretion--doesn't have any discretion. Once the specification 
has been made, the judge shall enter the warrant. The person 
who gets the warrant is gagged, so they can't--I mean there's 
not a whole lot they can do.
    So is there any meaningful challenge that a recipient, the 
one that gets the warrant and has to turn over the records, is 
there any meaningful challenge that they can muster up?
    Mr. Wainstein. Yes, sir. As has been stated here and in 
other hearings with Department witnesses, the Department has 
acknowledged that the recipient of a 215 order can consult with 
an attorney despite the non-disclosure requirement, and can 
challenge that order----
    Mr. Scott. Wait a minute
    Mr. Wainstein. Order and process.
    Mr. Scott. You mean you're not enforcing that part of 
what's written in the law?
    Mr. Wainstein. The non-disclosure requirement?
    Mr. Scott. Right.
    Mr. Wainstein. We--the Department has taken the position in 
litigation that as written that means that a person, though he 
or she cannot disclose it to anybody else, can disclose the 
fact of the order to an attorney.
    Mr. Scott. It's not written that way. We're just 
interpreting it that way.
    Mr. Wainstein. Yes. And the Department has stated that it 
would agree with the clarification to that effect. But that 
person can, in fact, challenge. The recipient of that order can 
challenge it before an article III judge.
    Mr. Scott. Now----
    Mr. Coble. Mr. Scott, would you suspend just a minute? 
Since the gentleman from Texas and the gentleman from 
California have gone to the trouble to come back, if you could 
wrap up, Bobby, then we'll recognize them. We're going to have 
to blow out of here at quarter 'til twelve.
    Mr. Scott. Okay. Let me just stop right there.
    Mr. Coble. I appreciate that. Since you all came to the 
trouble, I want to recognize Mr. Gohmert.
    Mr. Gohmert. Okay. Thank you, Mr. Chairman. I'll be quick, 
as quick as I can be.
    Let's see----
    Mr. Coble. Thank you, Bobby.
    Mr. Gohmert. Mr. Wainstein, I believe you were the one that 
indicated earlier the Department has taken a position that a 
recipient under 215 order could challenge, I believe, the 
breadth of the request or the scope of the request; is that 
correct?
    Mr. Wainstein. Yes, sir.
    Mr. Gohmert. Well, and it left me wondering. You said 
that's the Department's position because of the language. In 
your opinion could the next Department of Justice take a 
different position?
    Mr. Wainstein. Well, my understanding is the Department has 
taken that position consistent with all the witnesses who have 
appeared over the last few weeks, and I believe we've stated on 
the record that we would be supportive of a clarification of 
the law to that effect.
    Mr. Gohmert. Okay. That's what I wanted to be sure of. It 
was my concern that that might not be the case with another 
Administration if we did not clarify, and having signed orders 
or had hearings myself as a judge, when people came back and 
you saw that the scope was going too far a field, it seems to 
me pretty important that that be there for future Justice 
Departments that we may be concerned about. So you don't have a 
problem with that, either--clarifying the scope--that the scope 
could be challenged?
    Mr. Wainstein. The--It could be challenged. Yes, I think 
there's a variety of different challenges they could bring--it 
could be challenged in terms of the actual language. I don't 
know that that's been determined yet.
    Mr. Gohmert. Okay. Do you have anything further on that?
    Mr. Nojeim. Just that I think we should codify the person's 
right to challenge, and I should also add that the Department 
of Justice didn't always take the position that a person could 
consult with the attorney. They took that position after we 
sued them because people were wanting to consult with ACLU 
attorneys about a National Security Letter that was received.
    Mr. Coble. The gentleman----
    Mr. Gohmert. Okay.
    Mr. Coble. Well, very quickly, Mr. Gohmert, and then I want 
to----
    Mr. Gohmert. All right. So----
    Mr. Coble.--and then I want to recognize Mr. Lungren.
    Mr. Gohmert. It sounds like Catch-22. They consult you 
about getting an order that they were not supposed to consult 
you about so it could be challenged.
    Mr. Nojeim. That was the issue. I mean they didn't know 
whether they could talk to anybody about it, and it was only 
after the litigation started that the Department of Justice 
started publicly taking this position.
    Mr. Gohmert. So obviously, they did let somebody know, even 
though that was a concern. But I understand your position. 
Thank you, Mr. Chairman.
    Mr. Coble. I thank the gentleman. Mr. Lungren, we have to 
vacate this room in about 3 minutes, and you're recognized as 
the final examiner.
    Mr. Lungren. Well, that's a lot of pressure, Mr. Chairman. 
I just wanted to mention for the record that when we were 
talking about libraries, not only are we talking about those 
that use libraries that have already been mentioned, but the 9/
11 Commission Report talked about Marwan Al-Shehhi and other 
members of the group that quote ``used to frequent a library in 
Hamburg, Germany, to use the Internet.'' A Washington Post 
article, September 30, 2001, explained that another hijacker 
came from a poor Saudi family, but said quote ``was facile 
enough with computers so he could use the Internet at a Del Ray 
Beach public library.'' I mean there is testimony that Deputy 
Attorney General James Comey before the Senate Judiciary 
Committee indicated the use of the New York Public Library by 
one of the hijackers.
    So the only point I'm trying to make is that we didn't 
create this out of whole cloth. We have utilized investigative 
techniques for the purpose of trying to respond to the threat 
that is out there. And while we may tweak this law with respect 
to some of the suggestions that have been made here, the 
underlying law it seems to me is appropriate. So long as 
Congress continues with oversight, it is something that is 
necessary for the protection of this country. And I just hope 
that some of the--sort of the general gloom and doom that I see 
surrounding some of this is out there, and also some of the 
hyperbole utilized by some of the people in the library 
profession I don't believe is very helpful.
    And when I read something such as a comment by Cindy 
Czesak, the director of New Jersey's Paterson Free Public 
Library, where she told Fox News that her institution collects 
every complete computer sign-up sheet. After that, it's removed 
and destroyed. We bought a new shredder. We're quite rebels.
    Rebels from what? Thank you, Mr. Chairman.
    Mr. Coble. I thank you. And, Mr. Scott says he wants to be 
the final examiner, so I'll let him put a couple----
    Mr. Scott. Well, I think since we're pressed for time, let 
me just articulate some concerns--back to the 215.
    One of the problems we have is information obtained is not, 
as Mr. Nojeim indicated, not just information on the target. 
You go into the library. If Mohammad Atta had used the library, 
you can go and get everybody's library records as I understand 
it. You can get massive amounts of information. I understand in 
one situation somebody got--I don't know whether it was under 
215 or some other--you got 300,000 records of people visiting 
Las Vegas.
    Now, some of this kind of information may be relevant. If 
you got certain cities somebody's been in, it would be nice to 
know who has been in these five cities, on these specific 
dates, that could be a fairly small list, if you get millions 
of pieces of data. What happens to the information after you've 
used it? After you've run the tape, what happens to the 
information, and particularly when you have in here that it 
could be mostly in violation of first amendment rights? If it's 
not solely because of first amendment violations.
    So if you got a list of the war protesters, you want to--
that's a bit troublesome.
    On the roving wiretap, we know that you can start this 
thing out without probable cause of a crime. There's no 
ascertainment requirement, and the Attorney General didn't want 
to agree to ascertain that the target was actually in the place 
where your listening in. And I think we're hearing that there 
is some judicial discretion as to whether or not the roving 
wiretap can be issued. I'm not sure how much of that discretion 
is related to the minimization, but that might be something we 
would look to.
    But, Mr. Chairman, because we--and I keep harping on this--
these--foreign intelligence is not just criminal terrorism 
activity. It can be anything that will help us in the conduct 
of our foreign affairs, which doesn't have to be anything 
relating to crimes at all. So we still have some concerns, and 
we'll pursue this in our additional hearings.
    Mr. Coble. I thank the gentleman. Folks, the bad news is 
that we are irregular in our scheduling today because of the 
next meeting. The good news is the record will be open for 7 
days, and you all feel free to communicate with us as we will 
with you all.
    We thank the witnesses for their testimony today. In order 
to ensure a full record and adequate consideration of this 
important issue, the record will, as I said, be left open for 
additional submissions for 7 days. Written questions that any 
Member wants to submit should also be submitted within that 
same 7-day period.
    This concludes the oversight hearing on the implementation 
of the USA PATRIOT Act, Foreign Surveillance Intelligence Act 
(FISA) Part II. Thank you for your attendance, and this 
Subcommittee stands adjourned.
    [Whereupon, at 11:45 a.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, for holding this hearing on the issues 
before us today. In a context where we have broken down the traditional 
wall that existence foreign intelligence gathering, particularly 
foreign intelligence, and criminal proceedings, to give the government 
broad authority to collect and share information, mostly secretly, I am 
concerned that we have also blurred the traditional line of protection 
for our privacy and freedoms.
    While I agree that some lifting of the traditional restrictions in 
this area were justified, to induce the government to better use the 
authorities it already had in many instances, I am also mindful that 
those restrictions were placed there for a very good reason. We have 
seen with ``COINTELPRO,'' Watergate, the FBI spying on Dr. Martin 
Luther King, Jr., and with other incidents, what abuse can occur when 
we do not keep a tight enough reign on the government's use of 
extraordinary powers. We shouldn't have to experience those problems 
again to ensure that such abuses do not occur.
    Some of the provisions today reflect a trend that is troubling to 
me--the trend of the government to justify an ever increasing extension 
of extraordinary powers based on its convenience. We are considering 
time frames for surveillance operations that we have been extended even 
more since their PATRIOT Act extensions, all because the government 
says it is too costly for it to have to justify extensions to a court, 
even under the low burden of the FISA Court. If we can commit to speed 
billions of dollars in prison and other law enforcement costs just to 
codify sound bytes urged by the Department, we can certainly spend the 
time and expense it takes to assure that our privacy and freedoms are 
not unduly abridged.
    Mr. Chairman, I believe that it is important that we be AND 
maintain our privacy and freedoms. I don't believe we should operate 
under the premise that we have to give up or balance one against the 
other. So, Mr. Chairman, look forward to the testimony of our witnesses 
on the provisions before us to learn more about what use is being made 
of the extraordinary powers authorized and whether sufficient oversight 
is being undertaken such that the powers are used in a way to protect 
our safety as well as our privacy and freedoms. Again, I thank you for 
putting together this hearing on these important matters.

                               __________

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    The provisions we're discussing today, like the PATRIOT Act itself, 
range from nonpolitical technical amendments to questionable 
infringements on court authority. I look forward to hearing from the 
witnesses about all of them.
    I look forward to hearing from the Justice Department about why 
Section 207 should be reauthorized and allow secret surveillance for up 
to a year. Part of the justification for allowing the extraordinary 
intrusions under the Foreign Intelligence Surveillance Act is the 
extensive judicial oversight by the FISA court. This section takes that 
reasonable oversight away and gives the Justice Department authority to 
surveil suspects long after the relevant facts have expired. While the 
paperwork may be burdensome, a violation of a person's very privacy is 
more so.
    I also look forward to hearing why Section 214 should be 
reauthorized. Pen register and trap and trace orders no longer need to 
be aimed at a agent of a foreign power under this provision, and are 
available under the vague standard of ``relevance.'' This is even more 
troublesome in light of how the PATRIOT Act has permanently expanded 
these orders to allow the government to record the websites a person 
visits and addresses and subject headings of the emails he sends and 
receives.
    Also, I hope this hearing thoroughly discusses the lone wolf 
provision, also set to expire this year. FISA allows the secret 
surveillance, search and seizure only because it is necessary to 
protect us from foreign powers. To expand FISA to apply to those who by 
definition have no connection to foreign powers starts our law 
enforcement down a slippery slope. There is no telling where it might 
end.

  Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S. 
  Department of Justice, dated April 30, 2003, to the Honorable Orrin 
   Hatch, Chairman, Committee on the Judiciary, United States Senate




  Letter from Jamie E. Brown, Acting Assistant Attorney General, U.S. 
  Department of Justice, dated March 5, 2003, to the Honorable Orrin 
   Hatch, Chairman, Committee on the Judiciary, United States Senate



    Letter from Daniel J. Bryant, Assistant Attorney General, U.S. 
   Department of Justice, dated July 31, 2002, to the Honorable Bob 
   Graham, Chairman, Select Committee on Intelligence, United States 
  Senate, and the Honorable Richard C. Shelby, Vice-Chairman, Select 
            Committee on Intelligence, United States Senate



 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, for holding this hearing on Sections 206 
and 215 of the USA PATRIOT Act. These are some of the more 
controversial sections of the bill that up for renewal consideration. 
They are controversial because of the extraordinary extent of virtually 
unchecked powers they allow the government to use to invade the privacy 
of individuals. Section 215 is particularly disturbing, given its 
breadth of authority it allows for law enforcement officers to obtain 
private records on no more that representation that it is relevant to 
foreign intelligence or international terrorism for espionage.
    And even though section 505 of the PATRIOT Act is not under a 
sunset, you really can't talk about the problems with 215 without 
discussing the same problems with 505. Section 505 allows a host of 
private records and information to be obtained through the issuance by 
line level officers of National Security Letters (NSL's)on the mere 
representation they are relevant to an investigation of foreign 
intelligence, international terrorism, or espionage. There need be no 
crime, no probable cause, no reason to believe, no credible or 
particular facts--just a representation in the case of 215, and the 
FISA court has no choice but to issue the order for the production of 
the records. And in the case of NSL's, there is no court issuance or 
oversight--just the line officer's issuance, in terms of the 
requirements of the law.
    For both 215 and 505, all of this is done in secrecy with no 
explicit right to challenge the orders and with permanent gag orders on 
the keepers of the records sought, even to the extent of consulting 
with an attorney. And with our liberalized information sharing rules, 
the information obtained can be distributed all over town. This means 
your neighbors who are law enforcement agents may know a lot more about 
your private medical, organizational affiliation, reading and video 
viewing activities than you ever imagined.
    With respect to section 206, FISA roving wiretaps, I have often 
noted the difficulties I see. Again, under the law, no crime need even 
be alleged, and under the ``John Doe'' wiretap, no person or particular 
device need be shown, and in either case, no effort has to be made to 
ascertain whether the target is actually using the device before 
communications can be intercepted. And, again, all of this is in secret 
in a secret court with limited oversight and reporting requirements 
when compared to criminal wiretap processes. Department of Justice 
witnesses often use the powers extended on the criminal court side to 
justify the same powers on the FISA side. However, they don't call for 
the same oversight and reporting requirements as on the criminal side, 
and I think that's where we need to pay a lot more attention in 
considering renewal of these powers.
    So, Mr. Chairman, I look forward to the testimony of our witnesses 
for enlightenment on why we should consider renewing these 
extraordinary powers and under what circumstances and conditions. And I 
look forward to working with you on implementing their recommendations. 
Thank you.

                               __________

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Today we will hear testimony on two of the most controversial 
sections of the PATRIOT Act. I look forward to hearing why the Justice 
Department must have these provisions reauthorized wholesale without 
any safeguards put in place to make sure that rights of suspects are 
not abused.
    Section 206 creates roving ``John Doe'' wire taps. We will most 
likely hear testimony today that this provision is already widely used 
in criminal investigations. However, I am unaware of a court 
sanctioning a roving wiretap without a clearly identified target. I 
hope to hear where exactly this authority is coming from to better 
understand how the Justice Department is using its new authority. I 
also expect the Justice Department to explain why it believes it should 
be able to use criminal investigation techniques in intelligence 
investigations, without supplying the parcel of rights and procedures 
that have always gone along with those techniques.
    Section 215 allows the government to secretly get any thing from 
any business only upon the showing of relevance to a terror or 
intelligence information. The Justice Department, in its usual shroud 
of secrecy, refuses to explain how this section has been used. It will 
only confirm that it has been used 35 times, and not against libraries. 
This information comes on the eve of the sunset, after three years of 
pressing national security that required a secret classification. 
Without more information, I say: too little, too late.
    While National Security Letters have been suspiciously left off 
this Committee's oversight list, I hope to hear from our panelists 
today about their use. It appears from a redacted FOIA request that 
this provision has been used hundreds of times. The less-famous brother 
of Section 215, national security letters are unusually dangerous 
because in addition to adding a complete gag order on the recipient, 
they are issued without any oversight from even the FISA court. Because 
the Justice Department admits to getting information from libraries, I 
suspect that National Security Letters may be the source, and must have 
more information about their use as we look at the PATRIOT Act.
    Finally, I would like to publicly reiterate my concern that the 
Judiciary Committee has left many important terror-related policies off 
its oversight schedule this year. From the practice of rendition, to 
the abuse of the material witness statute, to unsuccessful racial 
profiling, this Committee is ignoring the most pressing matters within 
its jurisdiction. We cannot limit our oversight to the few sections of 
the U.S. code that will expire at the end of the year. Clearly, the 
Justice Department has shifted the weight of its terror pursuit to 
other authorities, or even in the absence of lawful authority at all. 
If we are truly going to do our constitutional duty of overseeing the 
executive's use of criminal and intelligence laws, we must look at 
these issues.

  Redacted document ACLU received in response to a request under the 
      Freedom of Information Act to disclose activity related to 
 Transactional Records National Security Letters issued since October 
                                26, 2001



  Letter from William E. Moschella, Assistant Attorney General, U.S. 
Department of Justice to the Honorable Richard B. Cheney, President of 
                    the Senate, United States Senate



  Letter from William E. Moschella, Assistant Attorney General, U.S. 
  Department of Justice to L. Ralph Mecham, Director, Administrative 
                   Office of the United States Courts



   Form National Security letter from the U.S. Department of Justice



 Illustrations to show the implications of the PATRIOT Act and Doe v. 
         Ashcroft on Section 2709 of the Electronic Privacy Act



                                 
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