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




                               BEFORE THE

                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION


                             APRIL 28, 2005


                           Serial No. 109-16


         Printed for the use of the Committee on the Judiciary

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


20-877                      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
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

             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

                      Jay Apperson, Chief Counsel

            Elizabeth Sokul, Special Counsel on Intelligence

                         and Homeland Security

                 Jason Cervenak, Full Committee Counsel

                 Michael Volkov,  Deputy Chief Counsel

                     Bobby Vassar, Minority Counsel

                            C O N T E N T S


                             APRIL 28, 2005

                           OPENING STATEMENT

The Honorable Steve Chabot (presiding), a Representative in 
  Congress from the State of Ohio, and Member, 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


Mr. Patrick J. Fitzgerald, United States Attorney for the 
  Northern District of Illinois, U.S. Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6
Mr. David S. Kris, Vice President for Corporate Compliance, Time 
  Warner Corporation
  Oral Testimony.................................................    15
  Prepared Statement.............................................    17
Ms. Kate Martin, Director, Center for National Security Studies
  Oral Testimony.................................................    51
  Prepared Statement.............................................    52
Mr. Peter Swire, Professor of Law, Ohio State University
  Oral Testimony.................................................    60
  Prepared Statement.............................................    63

               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.......................................................    91
Letter from William E. Moschella, Assistant Attorney General, 
  U.S. Department of Justice to the Honorable Dianne Feinstein...    92
Letter from William E. Moschella, Assistant Attorney General, 
  U.S. Department of Justice to the Honorable Arlen Spencer......   102
The Use of Section 218 in Terrorism Investigations...............   109
Submission by Peter Swire entitled ``The System of Foreign 
  Intelligence Surveillance Law,'' 72 George Washington Law 
  Review 1306 (2004), available at http://papers.ssrn.com/sol3/
  papers.cfm?abstract_id=586616..................................   115



                        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 notice, at 2:30 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Steve 
Chabot presiding.
    Mr. Chabot This is the Subcommittee on the Constitution. 
We'll come to order.
    [Discussion off the record.]
    Mr. Chabot. Subcommittee on Crime, I've been informed. 
    I'm the Chair of the Subcommittee on the Constitution. I'm 
so used to saying that. I apologize.
    This is the Subcommittee on Crime, Terrorism, and Homeland 
Security. And the Chair of the Committee, Howard Coble, is 
unable to attend this afternoon; so he asked me to stand in his 
place. And I'll try to remember which Committee this is for the 
rest of the afternoon. So I apologize for that.
    This is this Committee's second hearing today on the USA 
PATRIOT Act. This hearing focuses on section 218 and its effect 
on ``The Wall'' that prevented our law enforcement agencies and 
intelligence community from communicating.
    The Foreign Intelligence Surveillance Act limited 
surveillance and physical search orders to instances where 
authorities certified that ``the purpose'' of the order was for 
foreign intelligence gathering. Subsequent case law and agency 
guidance interpreted the ``purpose'' requirement to mean that 
foreign intelligence gathering had to be the primary purpose. 
As a result, law enforcement and the intelligence community 
came to believe that sharing information or coordinating 
efforts would preclude the ability to obtain court approval for 
appropriate surveillance.
    The effect of this interpretation was that the metaphorical 
``wall'' was built; which prevented vital communications, that 
some argue contributed to the failure of Government officials 
to share vital information that could possibly have prevented 
the 9/11 attacks.
    The witnesses this afternoon will examine the effects of 
section 218 on the Foreign Intelligence Surveillance Act and 
``The Wall.'' With this background on FISA, I look forward to 
hearing testimony from the witnesses; and now turn to the 
distinguished Ranking Member of this Committee, Bobby Scott, 
for his opening statement.
    Mr. Scott. Thank you. And I thank you for chairing the 
hearing, and for holding this hearing on the issue that has 
been foreshadowing much of our discussion about the PATRIOT 
Act: the extent to which we have dismantled the so-called 
    We've broken down the traditional wall between foreign 
intelligence gathering--particularly foreign intelligence--and 
criminal proceedings, in order to give Government broad 
authority to collect and share information, mostly secretly. 
And so I'm concerned that we have blurred the traditional line 
between protecting our privacy and freedoms.
    While I agree that some lifting of traditional restrictions 
in this area may be justified for Government to better use the 
authorities it already has in many instances, I'm also mindful 
that those restrictions were placed there for a good reason. We 
have seen, with COINTELPRO, Watergate, FBI spying on Martin 
Luther King, Jr., and other incidents, what abuses can occur 
when we do not keep tight enough rein on the Government's use 
of extraordinary powers. We shouldn't have to experience those 
problems again to ensure that the abuses do not occur.
    When we operate in the foreign intelligence area, we have 
traditionally given broad latitude for the use of extraordinary 
investigatory tools abroad, particularly involving non-U.S. 
persons. But when we turn those tools inward, we run the risk 
of including U.S. persons in some of the investigative sweeps 
that occur, unless we have sufficient barriers to prevent 
unwarranted extensions.
    Now, since much of the foreign intelligence side is 
secretive and ex-parte, with only Government participation, and 
with no public oversight or review, we don't have the 
traditional notice, challenge, and public scrutiny oversight 
that we have on the criminal side. So we've used ``The Wall'' 
as protection. That is, if you get something on the foreign 
intelligence side, you can't use it on the criminal side.
    With ``The Wall'' gone, I believe we should focus on 
establishing sufficient notice, challenge, and public reporting 
requirements, to ensure that foreign intelligence operations do 
not unduly creep into the domestic activities of U.S. persons.
    Now, some of our law enforcement officials seem to feel 
that the mere inclusion of information regarding uninvolved, 
innocent persons amounts to ``no harm, no foul,'' if they're 
not arrested or subjected to having to challenge the 
inclusion--excuse me, the incursion or other process; a sort of 
``What they don't know won't hurt them'' philosophy. Yet if 
overly broad information is collected, it can also be spread 
all over town, greatly increasing the likelihood that any of 
your neighbors, who may happen to be law enforcement, military, 
or intelligence employees, will know private things about you 
that you thought were private and known only to those whom you 
knowingly gave the information.
    So the problem with ``The Wall'' being broken down isn't 
just the improper acquisition and use of the information; but 
it's also preventing people from having it in the first place, 
other than those you gave it to with an expectation of privacy.
    So Mr. Chairman, I look forward to the testimony of our 
witnesses on the extent to which our privacies and freedoms are 
being protected despite the dismantling of ``The Wall'' through 
the USA PATRIOT Act and other measures, and what safeguards are 
needed to prevent the creep of overly intrusive foreign 
intelligence operations and powers into the privacy of our 
homes. Thank you, Mr. Chairman.
    Mr. Chabot. Thank you very much. And it's the practice of 
the Subcommittee to swear in witnesses who are appearing before 
it. So if you would, all please rise and raise your right 
    [Witnesses sworn.]
    Mr. Chabot. Thank you. Let the record show that each of the 
witnesses answered in the affirmative.
    And at this time, I'd like to introduce this afternoon's 
very distinguished panel. Our first witness is Patrick J. 
Fitzgerald, United States Attorney for the Northern District of 
Illinois. Prior to his appointment to this position by 
President George W. Bush, Mr. Fitzgerald served for 13 years as 
an Assistant U.S. Attorney in the United States Attorney's 
Office for the Southern District of New York, General, of the 
United States. He graduated from Amherst College, Phi Beta 
Kappa, with a bachelor's degree in economics and mathematics, 
and from Harvard Law School. We welcome you here this 
afternoon, Mr. Fitzgerald.
    Our second witness is David Kris. David Kris joined the 
Department of Justice after clerking for U.S. Court of Appeals 
Judge Stephen S. Strott. For 8 years, he served in the criminal 
division in the U.S. Attorney's Office for the District of 
Columbia. In 2000, Mr. Kris was named Associate Deputy Attorney 
General, with responsibilities for managing the Justice 
Department's national security programs. He attended Haverford 
College, and Harvard Law School. In June 2003, Mr. Kris joined 
Time Warner Inc., as vice president in the legal department. 
And we welcome you here this afternoon, Mr. Kris.
    Our third witness would be Kate Martin. Ms. Martin has been 
Director of the Center for the National Security Studies since 
1992. And prior to assuming her current role, she served as 
litigation director for the center. She graduated from the 
University of Virginia Law School, and from Pomona College, 
with a B.A. in philosophy. And we welcome you here this 
afternoon, Ms. Martin.
    And our fourth and final witness this afternoon will be 
Peter Swire, a professor of law at the Ohio State University's 
Morris College of Law. I thank Professor Swire for returning. 
He has graciously agreed to testify for a second time in this 
series of PATRIOT Act hearings.
    And also, coming from Ohio State, we ought to give you a 
special recognition for that, as well. Cincinnati's not too far 
from there.
    Prior to joining the faculty at Ohio State University, Mr. 
Swire served in the Clinton Administration as chief counselor 
for privacy in the Office of Management and Budget. Professor 
Swire is a graduate of Princeton University, and Yale Law 
School. After graduating from law school, he clerked for Judge 
Ralph K. Winter, Jr., of the United States Court of Appeals for 
the Second Circuit.
    And so we have a very distinguished panel here this 
afternoon. And as I'm sure you're all aware of, we have a 
lighting system here. We'd ask each witness to stay within the 
5-minute time frame, if at all possible. There'll be a green 
light that'll stay on for 4 minutes; a yellow light will tell 
you you've got about a minute to wrap up; and then, the red 
light will come on. And we'll give you a little leeway, but if 
you could stay within that we'd really appreciate it.
    And we'll begin this afternoon with you, Mr. Fitzgerald.


    Mr. Fitzgerald. Thank you, Mr. Chairman and Ranking Member 
Scott. I sit here now, having been working on terrorism cases 
in the field for about 11 years. And seven of those years, I 
worked as a terrorism prosecutor while ``The Wall'' was up; and 
four I've worked since it has been down. And I can tell you, 
then, 4 years ago, when ``The Wall'' was taken down, I could 
tell you my firm belief that that was the single most important 
change made, not just in the PATRIOT Act, but in any law that 
affected our national security. It is extremely valuable. Four 
years later, I believe that even more.
    Let me give you a practical example of how ``The Wall'' 
worked. in 1996, when we had an investigation of Osama Bin 
Laden, there were limits on certain people who we could talk to 
about certain topics. When we talked to private citizens, New 
York City police officers, law enforcement generally, even the 
CIA, there were basically no limits on what we could ask and 
what we could learn, if we had the clearance.
    When we went overseas, we could talk to foreign citizens, 
foreign police, foreign spies. We could ask whatever we wanted. 
And if they gave us the answers, we could take it.
    When we dealt with Al-Qaeda members, and we did--both 
overseas and in the United States, as part of our 
investigation, we talked to Al-Qaeda members and made them 
witnesses--we not only could ask everything we wanted to, we 
did. And whatever information we got, we could use.
    The people we had limits on speaking to were the FBI agents 
working the intelligence investigation of Osama Bin Laden right 
across the street from us in New York, because of ``The Wall'': 
the fear we might learn what they had learned from FISA.
    In other cases in many other districts, there were 
prosecutors who did not even know there were intelligence 
investigations going on, because the people who did those 
investigations did not even know who the prosecutors were, or 
never talked to them.
    And let me give you a concrete example of how dangerous 
that could be. After the 1998 bombings of two embassies, 
American embassies, in Kenya and Tanzania, we had in the grand 
jury--and it's now public--a person by the name of ``Ali 
Mohamed,'' a U.S. citizen from California who used to be in the 
American military and the Egyptian military. At the time, we 
suspected he had a role in the embassy bombings.
    He went into the grand jury; he lied. We believed he lied. 
We had no link then to the bombings. And we knew from him that 
if we did not arrest him that day, he was flying overseas. And 
we were afraid that we would never see him again. We also knew 
that a search had happened, under the FISA statute, of Ali 
Mohamed prior to that. We had no idea what was taken. We didn't 
know the contents, the results of that search.
    We had to make a decision whether to arrest him or not--
that night, with many of the cards in our hand unknown to us, 
although known to the FBI. And my prior boss, Mary Jo White, 
made the right decision. We arrested Ali Mohamed. He would 
later plead guilty and admit to us that he had been around for 
the training of the top Al-Qaeda leadership, including Bin 
Laden and Ayman Zawahiri. He had trained some of the people who 
would later be involved in the World Trade Center bombing. He 
had done the surveillance, the casings, of the American 
embassies in Tanzania and Kenya. He had shown photographs and 
sketches of the embassies to Osama Bin Laden himself. And he 
told us that if we had not arrested him that evening, he would 
have left the country and rejoined Osama Bin Laden in 
    Because of ``The Wall,'' we made a decision only knowing 
half the facts we needed to know. And we could easily have let 
him rejoin Osama Bin Laden in a cave, fighting our troops; 
rather than being in an American prison facility. That, to me, 
illustrates how crazy ``The Wall'' was. We could know what Al-
Qaeda knew; we couldn't know what the FBI knew.
    When the PATRIOT Act included section 218, that wall 
changed. And now, when we sit down in my district, the Northern 
District of Illinois, and work together with the FBI, we sit 
down and talk about our criminal investigations; we talk about 
the intelligence investigations. And we try to make sure that 
we're doing the right thing; that we're coordinated. And we 
move forward.
    I, too, am concerned about civil liberties and privacy. In 
my view, the way we're working, we're doing things coordinated. 
We're talking things through. We're making sure the law is 
followed. I do not see abuses of privacy or civil liberties. 
What I do see is that the right hand knows what the left hand 
is doing. And I think we do a much better job. Thank you.
    [The prepared statement of Mr. Fitzgerald follows:]

              Prepared Statement of Patrick J. Fitzgerald

    Mr. Chabot. Thank you very much.
    Mr. Kris, you're recognized for 5 minutes.


    Mr. Kris. Mr. Chairman, Ranking Member Scott, thank you for 
the opportunity to testify about the FISA ``wall'' and the role 
of the PATRIOT Act in tearing it down.
    As you know, I worked on these matters when I was at the 
Department of Justice. And although I've been out of Government 
since May of 2003, I have maintained an interest in national 
security issues. And I need to emphasize at the very outset 
that, in appearing before you today, I'm doing so only as an 
individual, and not as a representative of any former or 
current employer, including the Department and Time Warner.
    My written testimony lays out in detail the legal 
background and the history of the FISA ``wall.'' And subject to 
your questions, I don't intend to repeat any of that material 
here. Instead, in keeping with the 5-minute rule, I would like 
to make two brief points.
    The first is that, regardless of your views on ``The Wall'' 
or the PATRIOT Act, whether you think it's a good thing or a 
bad thing, you should do something about the upcoming sunset of 
section 218.
    [Sound of buzzer.]
    Mr. Chabot. Go ahead.
    Mr. Kris. I thought maybe my time had run out.
    Mr. Chabot. No. That just means that the House is going 
back into session. So there could be votes at some point from 
here on.
    Mr. Kris. Right.
    Mr. Chabot. But don't worry about it.
    Mr. Kris. The reason that you should do something is 
because, if you do nothing and just allow the sun to set, I 
predict that you will thereby expand, rather than contract, 
Governmental power in this area. And the reasons for that are 
laid out in detail in my written testimony.
    Mr. Scott. Say that again.
    Mr. Kris. I predict that, if you allow the sun to set on 
section 218, you will thereby expand the Government's power in 
this area, for the reasons that are in my testimony. And I 
don't hear Mr. Fitzgerald asking for any broader authority. And 
indeed, even if he were, I don't think that the gains from that 
would be----
    [Repeated sounds of buzzer.]
    Mr. Kris. This is----
    Mr. Chabot. Now they're just doing that to annoy us. So go 
    Mr. Kris. I don't think the gains would be worth the 
attendant confusion. So my first point is that you should do 
something. And I guess that's why you're holding these 
    My second point is one that I think will strike you as 
perhaps a little strange, because it, I think, flies in the 
face of conventional wisdom. But nonetheless, I believe there 
is substantial reason to think that civil liberties are better 
protected with ``The Wall'' down, than they are with ``The 
Wall'' up.
    And here's why: With ``The Wall'' down, DOJ prosecutors--
and there are a lot of them; like Mr. Fitzgerald, they're smart 
and energetic--enjoy full legal access to domestic national 
security investigations and matters. And from that lawyer 
access, if it's done right, comes lawyer oversight of these 
investigations. And lawyer oversight is how this country has 
protected civil liberties in the area of national security 
since at least the Church Commission report in the 1970's. And 
obviously, it is today the civil liberties backbone of 
Executive Order 12333.
    So tearing down ``The Wall'' has the effect of opening up 
these investigations to a substantially larger pool of lawyers. 
And I think that is a good thing for civil liberties.
    On the other hand, if ``The Wall'' is up, DOJ prosecutors 
lose a substantial amount of that access and, in particular, 
their ability to recommend law enforcement solutions to 
national security problems. That, after all, is the very 
essence of ``The Wall.''
    And yet, I think there will always be some cases in which a 
national security threat must be dealt with through 
incarceration or detention of one or more individuals. That is 
just the nature of the business: Sometimes you have to lock 
somebody up. And in those cases, ``The Wall'' has a tendency to 
channel the Government toward methods of achieving that kind of 
detention and incarceration that do not require the involvement 
of civilian law enforcement personnel.
    And regardless of what the alternatives to civilian 
prosecution were in 1978, today, obviously, one of the 
alternatives is military detention, or tribunals. Now, I hasten 
to state that I am not saying there's anything wrong with 
military justice, one way or the other. I'm not taking any 
position on that matter. But I am saying, I think, that from a 
pure civil liberties perspective, at least after the Supreme 
Court's decision in Hamdi, it's clear that military justice 
need not involve all of the same due process protections as 
civilian justice. And so I think for that reason as well, there 
is a good basis for expecting that civil libertarians should 
prefer ``The Wall'' to be down.
    One last caveat. I see my time has almost expired. I don't 
mean to raise the specter of mass enemy combatant designations 
if ``The Wall'' is rebuilt. That would be silly. But I do mean 
to say this. ``The Wall'' has a tendency to deprive prosecutors 
of their seat at the table when the Government comes together 
in an inter-agency forum to decide what to do in a case--let's 
say, the Moussaoui case or something like it. And anyone who 
has ever been through a contentious inter-agency meeting in the 
Executive Branch, as I have, knows one iron-clad rule of the 
bureaucracy. And that is that the absent agency rarely 
prevails. Thank you very much.
    [The prepared statement of Mr. Kris follows:]

                  Prepared Statement of David S. Kris

    Mr. Chabot. Thank you.
    Ms. Martin, you're recognized for 5 minutes.


    Ms. Martin. Thank you, Mr. Chairman and Ranking Member 
Scott, for the opportunity to testify here before you today. I 
first of all want to make clear that, as civil libertarians, 
we're not in favor of ``The Wall''; and indeed, have never been 
in favor of ``The Wall.'' In the 2 weeks after September 11th, 
we testified before the Congress in favor of more and better 
information sharing between intelligence and law enforcement 
    I do think, though, it's important to note that the effect 
of section 218 is slightly more complicated, I think, than 
simply to say that it tore down ``The Wall.'' Section 218--I'm 
sorry, the purpose requirement, which was changed by section 
218, was interpreted by the Justice Department before September 
11th as prohibiting contact between prosecutors and the FBI; an 
interpretation, by the way, which the FISA Court of Appeals 
after September 11th said was wrong.
    The PATRIOT Act contains another section, 504, which 
explicitly provides that all FISA information may be shared 
with all law enforcement. And one of the things that I think is 
necessary in the current effort to find out about the use of 
the PATRIOT Act is to ask the question of the Justice 
Department about why section 218 is necessary, given section 
504. What is it that section 218 adds in dismantling ``The 
Wall'' that 504 doesn't already give?
    And the reason why it's important to ask that question is 
that section 218 doesn't simply tear down ``The Wall.'' It 
makes FISA surveillance much more broadly available than it was 
before the passage of the PATRIOT Act. And it is that aspect of 
section 218 that I'd like to briefly focus on today.
    Section 218--before September 11, it was understood that if 
the Government started out with the primary purpose of making a 
criminal case against an individual, it must use the criminal 
surveillance authorities; not the Foreign Intelligence 
Surveillance Act. Section 218 changed that, and allows the 
Government to now use the broad and secret authorities of the 
FISA when its primary purpose is not to obtain foreign 
intelligence information.
    I suggest that one of the questions we don't yet have the 
answer to is how and why and when the Justice Department and 
the FBI decide to use the secret FISA authorities instead of 
the regular criminal authorities. And that's an important 
question to obtain the answer to.
    Most importantly, I think that in looking at section 218 
it's important for this Committee to look more broadly at the 
use, and possible abuse, of the FISA authorities; especially 
given the recent revelations about the secret FISA search of 
Brandon Mayfield, the Muslim lawyer in Portland, Oregon.
    As the Committee knows, the FISA authorizes secret searches 
and secret wiretaps, not delayed-notice searches of the kind 
that are authorized under section 213 of the PATRIOT Act. It 
authorizes such secret searches and secret wiretaps with less 
probable cause of criminal activity than is authorized in the 
fourth amendment in criminal investigations.
    But there are two additional key features of FISA 
surveillance. The first is that in most instances, when 
Americans are targeted for secret searches and secret wiretaps 
under the FISA, they are never informed by the Government that 
the FBI has been inside their house, has copied their computer 
drives or, in some instances, seized their DNA. They are never 
informed that the FBI has been listening to their telephone 
    The second key difference between FISA surveillance and 
criminal surveillance is that when individuals are indicted, 
after having been targeted by FISA surveillance, then they are 
in fact informed. That's the only time they are informed of 
FISA surveillance. But even then, they are never provided with 
any kind of opportunity to look at any portion of the original 
application for the FISA warrant.
    And the effect of that means that there is no adversarial 
judicial review of the propriety of a FISA search. It is true, 
of course, that a FISA judge initially approves a FISA 
surveillance. But on the criminal side, what we rely on to make 
sure that the fourth amendment was in fact complied with is 
after-the-fact judicial review of the search and the probable 
cause, in which the target of the search has a fair chance to 
participate and challenge whether or not there was in fact 
probable cause to begin with. That opportunity is missing in 
the FISA context.
    And I would suggest that this Committee look into two 
possible amendments to address the problem of the searches 
being secret forever, and the second problem of no adequate 
chance to challenge the legality of the search when someone is 
indicted using FISA evidence.
    [The prepared statement of Ms. Martin follows:]

                   Prepared Statement of Kate Martin

    Thank you, Mr. Chairman, for the honor and opportunity to testify 
today on behalf of the Center for National Security Studies. The Center 
is a civil liberties organization, which for 30 years has worked to 
insure that civil liberties and human rights are not eroded in the name 
of national security. The Center is guided by the conviction that our 
national security can and must be protected without undermining the 
fundamental rights of individuals guaranteed by the Bill of Rights. In 
our work on matters ranging from national security surveillance to 
intelligence oversight, we begin with the premise that both national 
security interests and civil liberties protections must be taken 
seriously and that by doing so, solutions to apparent conflicts can 
often be found without compromising either. The Center has worked for 
more than twenty years to protect the Fourth Amendment rights of 
Americans to be free of unreasonable searches and seizures, especially 
when conducted in the name of national security. For example, the 
Center, then affiliated with the American Civil Liberties Union, was 
asked to testify before Congress when the Foreign Intelligence 
Surveillance Act was first enacted. In 1994, when Congress amended the 
Act to include physical searches, we were again asked to testify about 
the civil liberties and constitutional implications of that 
    We appreciate the role this Committee has taken in connection with 
the USA Patriot Act, beginning with the work that was done before its 
enactment to build in protections for civil liberties while the 
government's surveillance powers were increased. Since its enactment, 
the Committee has vigorously pursued information from the Justice 
Department concerning the use of the Act, and we commend the Committee 
for now holding this series of oversight hearings.
    However, we do not believe that the Congress yet has enough 
information to make permanent certain key provisions of the Patriot 
Act, particularly section 218 and those relating to information-
sharing. (My testimony today does not address the specific provisions 
of the Patriot Act relating to information-sharing, sections 203 and 
905, as that is the subject of another hearing. However, we do not 
believe that the Congress yet has adequate information about how the 
law enforcement community, including the FBI, determines what 
information about Americans should be shared with the CIA and other 
intelligence agencies, what specific safeguards exist against abuse, or 
how the agencies insure that they recognize and act appropriately on 
important information. For further information, please see the article 
on section 203 of the Act at www.patriotdebates.com.)
    The subject of today's hearing is section 218 of the Patriot Act 
which amended the purpose requirement of the Foreign Intelligence 
Surveillance Act (FISA) and is sometimes described as having dismantled 
the ``wall'' between law enforcement and intelligence. While it is 
clear that more and better coordination is needed between law 
enforcement and intelligence on counterterrorism, it is not clear that 
amending the purpose requirement of the FISA was necessary to achieve 
that. More importantly, it is not clear whether the government is now 
using the extraordinary secret search and seizure powers under the FISA 
in ways that are both effective and consistent with constitutional 
requirements. The recent case of Brandon Mayfield, the innocent lawyer 
in Oregon jailed for two weeks, apparently because of his religion, 
raises serious and unanswered questions. The Committee should demand 
more information concerning the use of the FISA search and seizure 
authorities before extending section 218. If section 218 is extended, 
Congress should amend FISA to protect due process and Fourth Amendment 
    My testimony today will also discuss the separate but related issue 
of the relationship between law enforcement and intelligence in 
investigating Americans and others inside the United States, and the 
so-called ``wall.'' The Center has long advocated the necessity of 
tying domestic intelligence authorities to law enforcement to insure 
that government surveillance is targeted against actual wrong-doers and 
not against political or religious minorities. As FBI Director Mueller 
said, ``there are no clear dividing lines that distinguish criminal, 
terrorist and foreign intelligence activity. Criminal, terrorist and 
foreign intelligence organizations and their activities are often 
inter-related or interdependent.'' \1\ However, the most recent 
proposal for further intelligence reorganization recommends 
consideration of establishing a new MI5-like domestic intelligence 
agency presumably divorced from law enforcement. The recommendation 
made by the Commission on the Intelligence Capabilities of the United 
States Regarding Weapons of Mass Destruction to move the FBI's 
counterterrorism and counterintelligence operations under the new 
Director of National Intelligence raises serious questions about moving 
control of domestic intelligence away from the Attorney General to the 
DNI. We believe that doing so would be a mistake from the standpoint of 
both civil liberties and effective counterterrorism.
    \1\ Oversight of the USA Patriot Act, Hearings Before the Senate 
Comm. On the Judiciary, 109 Cong. (Apr. 5, 2005).

    The existence of a legal ``wall'' preventing law enforcement and 
intelligence agencies from sharing vital information about suspected 
terrorists is often cited by government officials as the main reason 
the CIA and FBI didn't discover and stop the September 11 hijackers.\2\ 
The Justice Department made this argument when it sought to amend the 
purpose requirement of the Foreign Intelligence Surveillance Act in the 
Patriot Act and Attorney General Ashcroft repeated it when defending 
the pre-9/11 intelligence failures before the 9/11 Commission. But the 
existence of legal barriers to sharing information before 9/11 was 
highly exaggerated, and even the Justice Department has come to 
recognize that the real problems were bureaucratic failures of 
coordination and communication between and within the FBI and CIA.
    \2\ Parts of this testimony were adopted from my article on 
``Domestic Intelligence and Civil Liberties,'' SAIS Review of 
International Affairs Winter-Spring 2004, Volume 24, No. 1, available 
at http://www.saisreview.org/PDF/24.1martin.pdf.
    The term ``wall'' was used as shorthand for the understanding that 
the fundamental principles limiting government surveillance of 
Americans apply differently in the case of law enforcement or 
intelligence. Such principles include the recognition that there are 
important consequences for individuals depending on the government's 
purpose in initiating surveillance; in particular whether it intends to 
use the fruits of its surveillance against an individual to prosecute 
and jail him. They include the teaching of the Fourth Amendment that 
the best protection against abuse of surveillance powers is to require 
the government to have some evidence of criminal activity before 
investigating an individual. Requiring some criminal predicate for 
government investigations in turn helps protect citizens from being 
targeted based on dissent, religion, or ethnicity, and helps to insure 
that surveillance and intelligence powers are not used for political 
    The classic understanding of foreign intelligence gathering--the 
collection of information that policymakers need concerning the 
capabilities and intentions of foreign governments and groups--is not, 
however, linked to a criminal predicate. The distinction between the 
two--investigating possible wrong-doing by individuals and spying on 
foreign powers--was the fundamental rationale for separating the 
functions of law enforcement and intelligence agencies. It was also 
understood that Fourth Amendment rules governing searches and seizures 
in the United States should be most protective when criminal sanctions 
against an individual are possible.
    Thus, there were separate authorities written to govern law 
enforcement and foreign intelligence investigations inside the United 
States. In particular, since 1978, wiretapping to investigate crimes 
has been governed by one federal statute, while the Foreign 
Intelligence Surveillance Act (FISA) governs wiretapping ``agents of a 
foreign power'' inside the United States for the purpose of gathering 
foreign intelligence. Similarly, the Attorney General's Guidelines 
governing FBI activities, written by Attorney General Levi in 1976 and 
since amended, provided one set of rules for criminal investigations 
and another for gathering foreign intelligence relating to espionage or 
international terrorism inside the United States. These authorities 
allowed the government much wider latitude in gathering information 
about Americans and keeping it secret for foreign intelligence purposes 
than that which is allowed for law enforcement purposes. They also 
provided much less judicial oversight of the gathering of information 
for foreign intelligence purposes than for criminal investigations.
    While the pre-September 11 framework assumed differences between 
law enforcement and intelligence, everyone, including the civil 
liberties community, always recognized the necessity of effective 
coordination between the intelligence community and law enforcement to 
fight terrorism.\3\ Indeed, for all the talk of a ``wall,'' the pre-
September 11 legal regime acknowledged that terrorism-like espionage, 
and to a lesser extent international narcotics trafficking--is both a 
law enforcement and intelligence matter. Indeed, no statutory ``wall'' 
prohibited sharing information between the law enforcement and 
intelligence communities; to the contrary, the law expressly provided 
for such sharing. While the Foreign Intelligence Surveillance Act was 
interpreted to mean that prosecutors could not direct foreign 
intelligence wiretaps, as opposed to criminal wiretaps, the text of 
FISA expressly contemplated that FISA surveillance may uncover evidence 
of a crime. Before September 11, FISA information had been used in many 
criminal cases.
    \3\ See, for example, Kate Martin's September 24, 2001 testimony 
before the Senate Select Committee on Intelligence on the Legislative 
Proposals in the Wake of September 11, 2001 Attacks, including the 
Intelligence to Prevent Terrorism Act of 2001, available at 
    Moreover, none of the 9/11 failures were caused by the inability of 
prosecutors to direct FISA surveillance. The reports of the 
Congressional Joint Inquiry and 9/11 Commission describe many missed 
opportunities in detail. Although there were widespread bureaucratic 
misunderstandings about legal restrictions on information sharing, 
nowhere do the reports identify any statutory prohibition on 
information sharing as at fault. Instead, the failures resulted from 
the FBI and CIA failing to know what they knew. For example, while 
lower level FBI agents had important information about Al Qaeda 
associates in the United States that they shared with Headquarters, the 
higher-ups failed to understand the significance of the information, 
much less act on it. Similarly, the CIA knew for almost two years about 
the U.S. visa issued to an Al Qaeda suspect who would hijack a plane on 
September 11, but failed to inform the FBI or appreciate the importance 
of the information. This was a failure of analysis and coordination; it 
was not caused by legal restrictions on access to information.

                    THE PATRIOT ACT AND SECTION 218.

    Before September 11, it was understood that if the government 
started out with the primary purpose of making a criminal case against 
an individual, it must use the criminal surveillance authorities, not 
FISA.\4\ In the Patriot Act, the Justice Department asked Congress to 
repeal the fundamental requirement in FISA that its secret and 
extraordinary procedures be used only when the government's primary 
purpose is to collect foreign intelligence. Through section 218 of the 
Patriot Act, the Justice Department sought to allow the use of FISA's 
extraordinary powers when the government targets an individual for 
criminal prosecution or otherwise as long as foreign intelligence 
gathering was a significant purpose of the surveillance. Of course, 
since FISA only applies when there is probable cause that the target is 
an ``agent of a foreign power'' or foreign power, the significant 
purpose requirement will always be met when the other statutory 
requirements are met. (FISA authorizes surveillance of all individuals 
in the United States, both U.S. persons and non U.S. persons who meet 
the definition of ``agent of a foreign power.'')
    \4\ But see In re: Sealed Case No. 02-001, Foreign Intelligence 
Surveillance Court of Review, 18 November 2002.
    In seeking section 218, the Department complained that FISA barred 
the sharing of information with prosecutors and law enforcement 
investigators. However, even if legal rather than bureaucratic 
obstacles existed to sharing information, Congress could have 
adequately addressed the problem simply by providing that FISA 
information could be shared with law enforcement personnel, as it did 
explicitly in section 504 of the Patriot Act. This provision alone--
proposed by Senator Leahy, not the Justice Department--would have 
addressed whatever confusion existed about the FISA requirements at the 
FBI and elsewhere.
    But the Patriot Act goes much further. Section 218 repeals the 
requirement that foreign intelligence gathering be the primary purpose 
when initiating FISA surveillance. Thus, the government is now free to 
use the broad powers in FISA to conduct secret surveillance on 
Americans with the intention of bringing criminal charges against them, 
or simply to collect information about them as long as there is 
probable cause that the individual is an agent of a foreign power.
    In evaluating the effect of section 218, it is important to begin 
with a description of FISA authorities. The FISA statute authorizes 
secret surveillance on less probable cause of criminal activity than is 
authorized by the Fourth Amendment in criminal investigations. 
Moreover, FISA contains many fewer safeguards against abuse because 
there is no post surveillance check on either the legality of the 
initial warrant or on how the surveillance was conducted. While the 
Justice Department claims that there are judicial oversight and 
probable cause requirements built into FISA, there is no dispute that 
in most instances the government will never have to inform an American 
that his conversations were overheard, his house searched or his DNA 
seized pursuant to FISA. The statute only requires the government to 
inform Americans targeted by FISA wiretaps or searches of those 
searches if they are subsequently criminally indicted and the 
government tries to use the fruits of the searches against them. The 
statute also permits, but does not require the Attorney General to 
determine that there is no national security interest in continuing 
secrecy about the search of a U.S. person's home and then to inform 
that individual that his house was searched. 50 U.S.C. sec. 1825(b).
    Even in those few cases where an individual is informed that he or 
she has been the target of FISA searches and seizures, the Attorney 
General always blocks access to the original application for the FISA 
warrant. See 50 U.S.C. secs. 1806(f) and 1825(g). Thus, there is no 
opportunity for a target to challenge the search and obtain 
adversarial, rather than ex parte, judicial review of the adequacy and 
legality of the search, because the original application for a FISA 
warrant, unlike a criminal warrant application, is always withheld from 
the target.

Unanswered questions concerning the use of FISA.
    While the Justice Department continues to claim that the change in 
FISA's purpose requirement in section 218 is necessary to allow it to 
use FISA information in criminal prosecutions, its claims raise more 
questions than they answer. For example, the Department cites 
prosecutions of individuals based on FISA information obtained from 
surveillance conducted before the Patriot Act as evidence of the 
usefulness of section 218.\5\ The Department, however, has provided no 
explanation about why section 504 is not sufficient to provide full 
authority for sharing all FISA information with prosecutors. Section 
218's change to the purpose requirement would seem irrelevant to such 
sharing. This would seem especially true, of course as to the sharing 
of FISA surveillance conducted before section 218 changed the purpose 
    \5\ See Justice Department, USA Patriot Act: Sunsets Report, April 
2005, in particular concerning the case of Sami Al-Arian.
    The second unanswered question concerns the effect of section 218 
to allow the government to use the secret authorities in FISA in 
criminal cases instead of the usual Fourth Amendment warrants which 
contain greater protections. The Justice Department has offered no 
public explanation for why and when it decides to use the secret 
authorities of FISA, rather than the usual criminal authorities. This 
question is especially important as the extraordinary procedures of 
FISA are available not just for matters involving international 
terrorism. The statute also allows the use of secret searches and 
seizures against Americans in investigations of ``clandestine 
intelligence gathering'' on behalf of a foreign government, which might 
well include legal activities such as preparing non-public reports for 
foreign governments or groups.
    Similarly, the Department's description of its use of FISA 
surveillance pursuant to section 218 in the case of the ``Portland 
Seven'' again raises more questions than it answers. While the 
Department claims that section 218 allowed it to postpone arresting one 
individual in order to continue the investigation and arrest six more 
people, it provides no explanation about how the law worked to effect 
that result. To the contrary, missing from this explanation is any 
acknowledgement that the Department has the authority to postpone 
notice of criminal wiretap surveillance and physical searches and 
seizures until it is able to identify and arrest other conspirators. 
Indeed section 213 of the Patriot Act--the so-called sneak and peak 
authority--explicitly codifies that authority to delay notification of 
criminal searches and seizures. The Justice Department has said nothing 
about why they could not have used the delayed notice authority in 
section 213 and Title III of the wiretap statute to accomplish the same 
result in the Portland Seven case.
    Moreover, in order to fully evaluate section 218, it is important 
to consider the broader context of the secret wiretap and surveillance 
authority in the FISA. The recent revelations concerning the secret 
search of Brandon Mayfield's home raise serious unanswered questions 
about possible abuse of the FISA authorities. Mayfield, a Muslim lawyer 
in Portland, Oregon was jailed for two weeks, without charges, on what 
turned out to be the false claim that he had material information 
concerning the March 11, 2004 terrorist bombing in Madrid. After he was 
released the FBI apologized for jailing an innocent person. In the 
course of investigating Mr. Mayfield, the FBI apparently obtained a 
warrant under the FISA to secretly search his home and seize copies of 
his documents, computer files and his DNA. Apparently, the FBI also 
secretly wiretapped his phone and e-mail. There is ample evidence that 
the FBI carried out the searches and seizures with the intention of 
jailing and prosecuting Mr. Mayfield. While the Inspector General is 
now investigating the case, including presumably how the FBI came up 
with a suspect who was Muslim based on a misread fingerprint, the 
Congress needs to undertake its own investigation, in particular on the 
use or abuse of the FISA authorities. There is no way to know how many 
other innocent Americans have had their houses searched or their phones 
tapped based on allegations resting on their religion. The search of 
Mr. Mayfield's home is an example of the dangers of FISA. Those dangers 
are increased by section 218 (regardless whether that section played a 
role in that particular search) because by making FISA surveillance 
more easily obtainable, section 218 makes it likely that a lot more 
people will be secretly searched. And the attendant secrecy raises the 
specter that the government will as it did in the Mayfield case--go 
after an innocent American. Under current law, there is no way to know 
how many Americans have been subject to such surveillance, or how many 
more will be.
    At a minimum, Congress should obtain the answers to all these 
questions before extending section 218. The Committee should make 
arrangements to review the FISA applications--at least for U.S. 
persons--under secure circumstances. The Committee should investigate 
the use of FISA searches and seizures when the purpose of the 
investigation is to target individuals for criminal prosecution or 
deportation. The Committee should also investigate what protections 
exist against using protected First Amendment activities, including 
religious beliefs and political activities, as the basis for FISA 
surveillance. While the details of particular FISA applications are of 
course classified and cannot be publicly disclosed, there is much 
information concerning the law and its application which can be 
disclosed and needs to be publicly discussed before Congress extends 
section 218.

Needed Amendments.
    Should the Congress determine to extend section 218 for an 
additional period of time, it should consider adopting two amendments 
to provide some minimal safeguards. The amendments are needed to 
protect the Fourth Amendment rights of individuals whose homes are 
secretly searched, and whose papers and DNA are secretly seized, but 
who turn out not be spies and terrorists and to protect the due process 
right of those the government seeks to prosecute and imprison based on 
the results of such secret searches and seizures.
    Under current law, the government is required to notify an 
individual that he has been targeted under FISA only when it seeks to 
use the information against him. Mr. Mayfield is apparently the only 
individual ever notified by the government that he had been the target 
of a FISA search, who the government was not seeking to prosecute or 
deport. While it is not clear why he was informed, it is likely that 
the government did so only because it had wrongly imprisoned him and is 
now being sued for that act. While the FISA refers to the Attorney 
General determining that there is no national security interest in 
continuing secrecy about the search of a U.S. person's home, the 
Justice Department claims that no court may compel it to inform an 
individual of a search in those circumstances. See Mar. 24, 2005 letter 
from Justice Department to Mr. Elden Rosenthal, referring to 50 U.S.C. 
Sec. 1825(b).
    Even when an individual is notified because he has been indicted, 
the government is not required to disclose anything more than the 
existence of the FISA surveillance unless it either seeks to introduce 
FISA information into evidence or the information is required to be 
disclosed to the defendant under the Brady exculpatory evidence rule. 
And then, all the government provides to the defendant is a record of 
his own telephone conversations or a copy of his own papers. See FISA, 
50 U.S.C. Sec. Sec. 1806(c), 1825(d). (Even these minimal protections 
are only available to individuals not alleged to be ``alien 
terrorists.'' See 8 U.S.C. Sec. 1534(e). )
    The government is not required to disclose and, it appears, has 
never disclosed the application for a FISA warrant to anyone. Indeed, 
information obtained under FISA is accorded much greater secrecy than 
any other kind of classified information is accorded under the 
Classified Information Procedures Act or, in our view, than is 
consistent with constitutional due process requirements.
    If Congress extends section 218, allowing secret surveillance when 
the government's primary purpose is not foreign intelligence gathering, 
but rather making a criminal case against an individual, Congress 
should consider how to bring the use of FISA information in line with 
basic due process requirements. One way to do this would be to treat 
FISA information like all other kinds of classified information by 
making it subject to the provisions of the Classified Information 
Procedures Act. Such a provision is included in the Civil Liberties 
Restoration Act, H.R.1502, sec. 401. Under current law, it is nearly 
impossible for a defendant to contest the introduction of FISA evidence 
against him because the government's application for the FISA search 
and related materials are automatically kept secret. That should be 
changed so that when FISA evidence is used in criminal cases, the court 
may disclose the application and related materials to the defendant or 
his counsel, with any necessary redactions, in accordance with the 
Classified Information Procedures Act. (Sources and methods information 
for example, might be withheld.) Such an amendment would offer a 
balanced and effective way to protect both sensitive national security 
information and the due process rights of individuals.
    Congress should also consider amending the FISA to protect the 
Fourth Amendment rights of those whose homes are searched and 
conversations are overheard, but who turn out not to be terrorists or 
spies. There is no requirement under current law that the government 
inform innocent persons whose conversations are overheard, houses are 
searched and belongings are seized that the FBI was in their home and 
listening to their conversations. There is no after-the-fact check on 
the propriety of the search. An innocent individual never gets a chance 
to challenge the search, only one who is subsequently indicted. And 
with the repeal of the purpose requirement in section 218, the number 
of FISA searches has been steadily increasing.
    A fundamental requirement of the Fourth Amendment is that an 
individual be notified of the government's search and seizure and 
Congress should take one small step to restore this constitutional 
protection to those who are targeted for secret searches and turn out 
to be innocent. Congress should consider amending the FISA so that, if 
it turns out that the person whose house was searched (and whose 
conversations or e-mail were intercepted) was not a terrorist or a spy, 
the individual would be told after some reasonable period of time that 
the government had searched his belongings and be given an inventory of 
what was taken. This could be done by amending 50 U.S.C. Sec. 1825(b) 
to require the Attorney General when certain criteria are met to notify 
all those who were subject to FISA searches or seizures. Those criteria 
should include the passage of a definite time period and the 
determination that there is no current probable cause that the target 
is in fact an ``agent of a foreign power.'' Doing so would restore 
Fourth Amendment protections and provide some measure of accountability 
for secret searches of Americans' homes.


    In enacting the recommendations of the 9/11 Commission regarding 
the reorganization of U.S. intelligence agencies, the Congress accepted 
its conclusion that a new domestic MI5 or CIA should not be created. 
There has been a broad consensus among both civil libertarians and 
intelligence officials that the responsibility for intelligence 
activities inside the United States should ultimately remain with the 
Attorney General as the chief law enforcement officer rather than with 
an intelligence official. As former intelligence and national security 
officials, including former DCI Robert Gates, John Hamre and Sam Nunn 
urged, ``[e]ven as we merge the domestic and foreign intelligence we 
collect, we should not merge responsibility for collecting it . . . 
exclusive responsibility for authorizing and overseeing the act of 
domestic intelligence collection should remain with the Attorney 
General. This is the only way to protect the rights of the American 
people upon whose support a strong intelligence community depends.'' 
    \6\ Center for Strategic and International Studies, Guiding 
Principles for Intelligence Reform, at 2 (Sept. 21, 2004), at http://
    In the Intelligence Reform and Terrorism Prevention Act of 2004, 
the Congress set up a National Counterterrorism Center to insure 
sharing of information and coordination of plans, but agreed that 
ultimate responsibility for domestic operations should remain with the 
Attorney General. However, the most recent review done by the 
Silberman-Robb Commission has recommended that the counterterrorism and 
counterintelligence operations of the FBI be moved under the direct 
supervision of the new Director National Intelligence. Such a 
recommendation, if adopted, would make use of counterterrorism's most 
effective domestic tool--the ability to prosecute and jail terrorists 
more difficult. By separating domestic terrorism and 
counterintelligence from law enforcement, it could create new and more 
difficult coordination problems. Indeed the Commission also recommends 
the reorganization of national security responsibilities at the Justice 
Department, but does not explain how those prosecutorial efforts under 
the supervision of the Attorney General would be coordinated with a 
reorganized FBI carrying out the intelligence and investigations 
necessary to bring prosecutions under the supervision of the new NDI 
rather than the Attorney General. In making its recommendation, the 
Commission also overlooks the fundamental differences in intelligence 
at home and abroad and risks resurrecting all the bureaucratic 
difficulties attributed to the ``wall'' that law enforcement and 
intelligence agencies have been working to dismantle since September 
11. Such a change is likely to threaten civil liberties.
    Differences between intelligence at home and abroad. The Attorney 
General, unlike an intelligence director, has an institutional 
responsibility to protect constitutional rights and is subject to 
closer and more transparent congressional scrutiny. As William Webster, 
former director of both the FBI and CIA, testified last August 
concerning proposals to transfer the FBI's domestic intelligence 
authorities from the Attorney General to an intelligence official, 
``the FBI should take its guidance from the Attorney General on its 
dealings with U.S. persons and the manner in which it collects 
information in the United States. This has been an important safeguard 
for the American people, should not be destructive of effective 
operations, and avoids the risks of receiving vigilante-type 
instructions, whether from the intelligence community or the White 
House.'' \7\
    \7\ Testimony of William H. Webster before the Senate Committee on 
Governmental Affairs, Reorganizing America's Intelligence Community: A 
View From the Inside (Aug. 16, 2004), at 8, available at http://
    Historically, overseas intelligence was largely carried out by the 
CIA (and Defense Department agencies) while the FBI was largely 
responsible for domestic intelligence because there are important 
differences between the missions and methods that are necessary and 
appropriate abroad and at home. These differences should not be 
disregarded by the simplistic device of labeling these different 
activities in the U.S. and abroad as ``intelligence.'' Generally, the 
CIA has been confined largely to gathering foreign intelligence abroad 
for policymakers regarding the intentions and capabilities of foreign 
powers or groups. The FBI has had both law enforcement and intelligence 
responsibilities inside the United States, for both counter-espionage 
and international terrorism matters. While both involve intelligence, 
the difference in functions is important from the standpoint of civil 
    The CIA acts overseas, in secret, and its mission includes 
violating the laws of the country in which it is operating when 
necessary. It is charged with collecting information overseas without 
regard to individual privacy, rights against self-incrimination, or 
requirements for admissibility of evidence. It is also tasked with 
carrying out covert actions to influence events by whatever means the 
President authorizes. The agency gives the highest priority to 
protection of its sources and methods.
    In contrast, the FBI, as an agency with both intelligence and law 
enforcement responsibilities, must always operate within the law of the 
jurisdiction in which it is operating, even when outside the U.S. It 
must respect the constitutional limits set by the First Amendment, the 
Fourth Amendment and due process on government activities inside U.S. 
borders, which limits have not (yet) been extended to aliens 
overseas.\8\ While the task of foreign intelligence is to learn as much 
as possible to provide analyses to policymakers, deepseated notions of 
privacy rooted in the Constitution limit the information the government 
may collect and keep about Americans. There is much greater 
transparency of the FBI's operations, in part because they affect 
Americans and in part because they are likely to lead to prosecutions, 
with the result that information which is collected must generally be 
admissible as evidence at trial and the methods and informants used are 
quite likely to be publicly identified.
    \8\ While international human rights law provides many of the 
protections recognized in the Bill of Rights and is not limited by 
national borders, its applicability to intelligence activities in times 
of emergency or war is less developed.
    Examining how intelligence information is actually used in 
counterterrorism demonstrates the necessity of tying intelligence 
activities inside the U.S. to a law enforcement agency. The first use 
of ``intelligence'' information is to identify and locate individuals 
involved in planning terrorist acts. This information must then be used 
to prevent the attack, in ways that are legally permissible. Potential 
terrorists found in the United States may be placed under intensive 
surveillance. They may be apprehended if there is probable cause that 
they are engaged in criminal activity or are in the United States in 
violation of the immigration laws. They may be arrested not only for 
plotting terrorism, including attempt or conspiracy, but for any crime 
or visa violation. The government may also attempt to turn them into 
informants on their associates (with or without arresting them), but 
may not blackmail them to do so. Ultimately, in order to disable 
individuals from future terrorist activity, they have to be arrested 
and prosecuted. (They may also be deported.) Such ``prevention'' 
through prosecution has remained one of the government's major anti-
terrorism tools even since September 11. Such an approach focuses on 
individuals involved in planning criminal activities and ultimately 
relies on law enforcement authorities.\9\
    \9\ As the 9/11 Commission recognized: ``Counterterrorism 
investigations in the United States very quickly become matters that 
involve violations of criminal law and possible law enforcement action. 
Because the FBI can have agents working criminal matters and agents 
working intelligence investigations concerning the same international 
terrorism target, the full range of investigative tools against a 
suspected terrorist can be considered within one agency.'' National 
Commission on Terrorist Attacks Upon the United States, The 9/11 
Commission Report 424 (2004).
    Whereas the FBI must arrest and charge individuals in the U.S. 
consistent with due process, the CIA and DoD intelligence agencies 
operating overseas are free to employ methods such as disinformation 
campaigns, secret kidnappings, and interrogations. The methods used by 
the CIA and foreign intelligence agencies to ``disable'' terrorists--
predator drones shooting missiles at a car crossing the desert; turning 
individuals over without any legal proceedings to intelligence services 
infamous for coercive interrogations; or indefinitely detaining 
individuals incommunicado without any legal process--have never been 
deemed constitutional or appropriate to use against individuals in the 
United States. Even absent military hostilities, overseas intelligence 
methods include disruption of groups and harassment of individuals 
using agent provocateurs, blackmail or other means, which have not been 
allowed in the United States.
    Moreover, counterterrorism intelligence inside the United States 
poses special risks to civil liberties. It is always difficult to 
investigate planned terrorist activity without targeting those who may 
share the religious or political beliefs or the ethnic backgrounds of 
the terrorists, but do not engage in criminal activity. It is easier 
for an agency to identify those who share the political goals or 
religious fanaticism of terrorists than to identify and locate those 
actually plotting harm. It is therefore crucial to structure 
bureaucratic rules and incentives to discourage investigations based on 
political and religious activities and to require focusing on finding 
actual terrorists. An important means for doing this is to require 
agencies to focus on criminal activity, which encompasses all terrorist 
plotting and financing, rather than authorizing an intelligence 
approach that absorbs all available information about thousands of 
individuals in the hope of finding something useful. A second important 
safeguard is the transparency inherent in a law enforcement agency 
ultimately answerable to the courts--transparency to which the CIA, as 
an intelligence agency, has never been subjected.
    While questions have been raised concerning the effectiveness of 
various FBI efforts, those issues do not undercut the importance of 
tying domestic intelligence efforts to a law enforcement agency. 
Similarly, the fact that it is important to assure effective 
coordination between intelligence activities overseas and those in the 
U.S. does not argue for any separation of domestic intelligence 
activities from related law enforcement activities. Indeed, even as the 
9/11 Commission recommended new structures to insure coordination, it 
agreed that the FBI, not the CIA, should retain domestic intelligence 
responsibilities. ``The FBI's job in the streets of the United States 
would thus be a domestic equivalent, operating under the U.S. 
Constitution and quite different laws and rules, to the job of the 
CIA's operations officers abroad.'' \10\
    \10\ 9/11 Commission Report, at 423.
    Given the importance of maintaining different laws and rules for 
the collection of intelligence on Americans than for the collection of 
intelligence overseas, the Attorney General should remain ultimately 
responsible for the FBI's operations. Putting an Intelligence Director 
or Office in charge of domestic intelligence will exacerbate the 
difficulties in reconciling the different approaches that are required 
in the U.S. and overseas. We note that the Silberman-Robb Commission 
did recommend that the rules for domestic intelligence should still be 
written by the Attorney General, but we suggest that such a division of 
responsibility--between an Attorney General who writes rules for 
intelligence and counterterrorism operations, but has no responsibility 
for how those rules are carried out and a Director of National 
Intelligence who has responsibility for how operations are carried out, 
but no responsibility for writing the rules--makes no sense. We 
respectfully suggest that the DNI should have responsibility for 
insuring coordination between domestic and foreign collection and for 
setting overall strategic priorities for domestic intelligence 
collection, while domestic intelligence operations should remain 
operationally tied to law enforcement.
    In conclusion, let me reiterate our appreciation for the 
Committee's hard work on these difficult problems that are important 
for both our liberty and our security. We look forward to working with 
you in the future and stand ready to provide whatever assistance we 

    Mr. Chabot. Thank you very much.
    And Mr. Swire, you're recognized for 5 minutes.

                     OHIO STATE UNIVERSITY

    Mr. Swire. Thank you, Mr. Chairman, and thank you for the 
kind words from Ohio. Thank you, Mr. Ranking Member, for being 
here today and for you inviting me back to testify this week. 
Your Committee is doing an exemplary job, I believe, of 
developing a record for what to do next on the PATRIOT Act.
    The topic of today's hearing, FISA and ``The Wall,'' has 
been the focus of my biggest single research project since I 
left the Government 5 years ago. My testimony today is drawn 
from a Law Review article \1\ that has been placed in the 
hearing record and is available online. Research for that 
article included many interviews, often on background, with 
Government officials who have worked with FISA over the 
    \1\ The information referred to is located in the Appendix.
    I have one over-arching point today, as well as four 
specific points. The over-arching point is this: ``The Wall'' 
has been our chief protection against a slippery slope, against 
permitting secret FISA surveillance from expanding deep into 
normal law enforcement activities. If ``The Wall'' stays down, 
then it is the job of this Committee and the Congress to create 
a new set of checks and balances against abuse.
    These hearings are the single biggest reexamination of FISA 
since it was passed in 1978. I therefore attached to the 
testimony a set of oversight questions, to try to clarify law 
and practice. I've also attached a list of concrete possible 
reforms that can, taken together, I hope, create the checks and 
balances needed to replace ``The Wall.'' In 2001, a wall was 
taken out of the structure of FISA. It's up to Congress to 
build a sound structure for the future.
    My four specific points: First, supporting Kate Martin's 
proposals in her written testimony; second, talking about 
``agent of a foreign power'' definition; third, talking about 
the words in section 218, itself; and fourth, a brief comment 
on one other provision.
    Turning to the next point, the definition of ``agent of a 
foreign power,'' this is absolutely crucial to defining the 
scope of FISA. For law enforcement investigations, a wiretap 
means probable cause of a crime. For FISA, it's just probable 
cause the person is an agent of a foreign power.
    Think about an individual who works in the United States 
for the Cali drug cartel. Is that person an agent of a foreign 
power? The Cali cartel is very organized. It physically 
controls a lot of land in Colombia. It may well be more of a 
foreign power than Al-Qaeda is, that doesn't own a big 
territory. So if one accepts that the Cali cartel is a foreign 
power, and a major smuggler is an agent of a foreign power, 
what about a street-level cocaine dealer? Is that an agent of a 
foreign power? Is that a FISA wiretap because that person is 
part of narco-terrorism?
    To take another example, what about the activities of the 
so-called ``Russian mafia''? Many organized crime groups have 
links to overseas operations. How small can the links back home 
be to still qualify that group's actions as part of a foreign 
power's operations?
    My second specific point concerns a proposal for partially 
mending ``The Wall.'' The Law Review article explores in detail 
the reasons for and against having ``The Wall.'' Based on my 
research, the greatest problem with the old ``primary purpose'' 
test is that investigators genuinely don't know in the early 
stages of an investigation whether the case will primarily end 
up being for intelligence or law enforcement. The early wiretap 
order is a dual-use technology. It's for both intelligence and 
law enforcement, depending how things turn out.
    My article argues that the missing legislative piece is a 
requirement within FISA that the surveillance, one, be 
important enough and, two, be justifiable on foreign 
intelligence grounds alone. It has to really be a foreign 
intelligence wiretap.
    One way to go could be to say that a principal purpose, ``a 
principal purpose,'' is foreign intelligence. Another way would 
be to amend FISA to include a new certification in the FISA 
application. The certification would say that, ``The 
information sought is expected to be sufficiently important for 
foreign intelligence purposes to justify the order.'' It really 
has to be for foreign intelligence; maybe also it turns out to 
be for criminal.
    In concluding, I note that the article goes piece by piece 
through FISA, suggesting ways to update many of its provisions 
in light of our experience since 1978 and since 2001. A special 
focus of the article is the so-called ``gag rule'' that applies 
to section 215 orders and national security letters. The Senate 
version of the SAFE Act has included one of my recommendations, 
which is to put a 6-month limit on the gag. You can't talk 
about the search; but 6 months later, ordinary people can. That 
limit would be extendable by order of the FISA court. I hope 
very much this Committee will follow along with the Senate, and 
include the same limit in the bill this year.
    To return to my over-arching point, ``The Wall'' probably 
deserves to be lowered somewhat in our globalized world, where 
information sharing is vital to fast-moving interrogations--
investigations. ``The Wall,'' however, was our chief bulwark 
against the creep of the FISA system into ordinary law 
enforcement. If ``The Wall'' comes down, this Committee should 
erect new safeguards against the abuses that do come from 
secret surveillance. Thank you.
    [The prepared statement of Mr. Swire follows:]

                  Prepared Statement of Peter P. Swire

    Mr. Chabot. Thank you very much. And the Members now will 
have 5 minutes to ask questions of the witnesses, and I'll 
recognize myself for that purpose at this time.
    Mr. Fitzgerald, let me refer to you first. Mr. Swire 
referred to the Mayfield case. And is the Mayfield case 
evidence of abuse of FISA, or is it evidence of abuse due to 
the PATRIOT Act? Or wasn't the Mayfield case a result of 
erroneously read fingerprints by the FBI and Mr. Mayfield--or 
Mr. Mayfield's own expert?
    Mr. Fitzgerald. I'm not handling the Mayfield case, but 
from my understanding of the public record, that was a 
situation--a terrible situation that arose out of mis-
identification of fingerprints, both by the FBI mis-identifying 
Mr. Mayfield's fingerprint as matching the exemplar they had, 
and by an expert selected by the defense and paid for by the 
court--made that same mistake. And I think the lesson of the 
Mayfield case is we have concerns about the fingerprint 
    With or without the amendments to the PATRIOT Act, the 
actions taken under FISA could have been done, and should be 
done if you thought that the person's fingerprint actually 
matched the materials involved in a bombing. So the problem we 
have is not with the PATRIOT Act, which didn't facilitate what 
happened. The law provided for it anyway. It was bad 
information on the fingerprints. And I don't see how the 
Brandon Mayfield situation casts section 218 in doubt. The 
Brandon Mayfield situation casts fingerprint science as 
something we ought to examine, but not the PATRIOT Act.
    Mr. Chabot. Thank you. Mr. Kris, let me follow up with you 
here. In Mrs.--in Ms. Martin's written testimony, she suggests 
that we amend FISA so that, if it turns out that the person who 
was under surveillance was not a terrorist or spy, the 
individual would be notified of the surveillance after some 
reasonable period of time.
    I'm concerned, however, that such a requirement could 
jeopardize sensitive investigations. For example, were the 
associate of a terrorist notified that he'd been under 
investigation, that associate would almost certainly tip off 
the terrorist that the Government was probably onto him as 
well. Do you share that concern? Or what comment might you like 
to make on that?
    Mr. Kris. Well, I share your concern about the case you 
just described. If they mistakenly go up on someone who is 
connected with, but not himself, a terrorist, and then he tips 
off the other target, I think that would be very dangerous.
    I guess my basic sense of this is that notification is 
acceptable, except when it's not. And right now, FISA has a 
provision under which--I think it's 1825(b), under which, if 
there's a search of a U.S. person home, and the Attorney 
General determines that there is no national security basis for 
maintaining the secrecy, then he shall inform the target. And I 
believe that provision----
    [Sound of buzzer.]
    Mr. Kris. Every time I talk. And I believe that provision 
is involved in the Mayfield case; although I'm not absolutely 
sure. To expand it to reach all forms of searches or 
surveillance, not just U.S. person house searches, I think 
conceptually would be okay, if you could figure out what the 
right standard was. Maybe it would be when probable cause is 
found to be lacking under Franks v. Delaware.
    But administratively, it would impose a pretty significant 
burden. I think there were some 15, 17 hundred FISAs last year. 
And it would, I guess, mean that the Government would need to 
review each and every one of those to determine whether it met 
the standard. So I have some concerns about that, on that 
theory, as well.
    Mr. Chabot. Thank you. Professor Swire, do you agree with 
those you interviewed at the Department of Justice, that the 
greatest problem with the ``primary purpose'' test is that 
investigators generally don't know in the early stages of an 
investigation whether the case will be primarily for 
intelligence or instead for law enforcement? And do you agree 
that ``The Wall'' did prevent sharing of vital information?
    Mr. Swire. Yes.
    Mr. Chabot. Okay.
    Mr. Swire. I mean, I think that one of the questions comes 
up later on. So you've done your first wiretap. You didn't know 
which way it was going to go; but now it's up for renewal, and 
you really know it's turning into a law enforcement 
investigation. And I think it makes sense for the law to push 
things toward law enforcement at that point, if that's what's 
really happened. Among other things, that means that it will 
get notice to people after the fact of the wiretap.
    Mr. Chabot. Okay. And finally, Mr. Kris, in your written 
testimony, you suggest that keeping ``The Wall'' down will 
enhance the protection of civil liberties. And you stated this 
and described it to some degree in your opening statement.
    Could you say again why you believe that coordination 
between law enforcement and intelligence officials helps to 
safeguard constitutional rights? And I know you went into that, 
but I'd like to hear about it again.
    Mr. Kris. Sure. I mean, I think there are two reasons to 
believe that it will be helpful in protecting civil liberties. 
The first is that it opens up these cases, these 
investigations, to a large number of energetic lawyers inside 
the Department of Justice, who previously really were limited 
in their access. And lawyers, I mean, for all their faults, you 
know, do have an awareness of and a respect for rules and laws. 
And it is for that reason, I think, that this country uses 
lawyer oversight to safeguard civil liberties in the area of 
national security.
    And so, if it's done right, I think the opening up of these 
cases to many, many more lawyers will be a good thing, because 
they will be able to spot potential abuses early on and maybe 
put a stop to them.
    The other reason that I articulated--and I say it with some 
hesitation, because I'm afraid it will be misconstrued and 
misused--but there are cases, and I think there always will be, 
where somebody needs to get locked up, if you're going to keep 
the country safe from terrorism. And today, if you can't do it 
using traditional law enforcement because of ``The Wall,'' then 
I think you have to go to the alternatives. And one of those 
alternatives is military detention; which I believe, after 
Hamdi, civil libertarians do not smile upon.
    And so, for that reason as well, I think, if compared to 
the alternatives, prosecution in an open court, with a jury of 
12, court-appointed lawyer, public access, and so forth, is not 
something that we need to be afraid of.
    Mr. Chabot. Thank you. My time's expired. The gentleman 
from Virginia is recognized.
    Mr. Scott. I think Ms. Martin and Mr. Swire pointed out 
that when you run these investigations where the primary 
purpose is something other than--when you get a FISA wiretap 
with the diminished--with no probable cause of a crime even 
required, you're running a criminal investigation without 
probable cause. And when we changed ``primary purpose'' to 
``significant purpose,'' it invited the question: What is the 
purpose of the wiretap, if the primary purpose wasn't foreign 
intelligence? What was the purpose of the wiretap?
    And the Attorney General answered the question for us. He 
said it's a criminal investigation, and then you kind of put in 
parentheses, ``without having to fool with the probable 
cause.'' Now, I suppose--is ``probable cause'' the problem, Mr. 
Fitzgerald? I mean, is the requirement that we get probable 
cause the problem? I mean, if we didn't have to fool with 
probable cause--if we could start listening in and searching 
without probable cause, we could probably do a better job for 
law enforcement.
    Mr. Fitzgerald. I'd love to answer that question. It's not 
the problem. There's two misconceptions, I think, that are 
going on in the public debate. The first is that there's no 
probable cause requirement in FISA. Let me speak from the 
perspective of a terrorism investigation.
    To get a probable--to get a FISA for a terrorism 
investigation, you have to have probable cause that the person 
is the agent of a foreign power; which means that they 
knowingly engage in activity--in sabotage or international 
terrorism, or activities that are in preparation thereof, on 
behalf of a foreign power----
    Mr. Scott. Wait a minute. Keep reading.
    Mr. Fitzgerald. Okay. Or they knowingly aid or abet any 
person in the conduct of activities, or they knowingly 
    Mr. Scott. Keep reading.
    Mr. Fitzgerald. That's the end--Or as described in 
Subparagraph (a), (b), and (c). I'm talking about terrorism.
    Mr. Scott. Oh, oh. Oh, you're talking about terrorism----
    Mr. Fitzgerald. That's what I said.
    Mr. Scott. --as far as the FISA.
    Mr. Fitzgerald. I said ``terrorism.''
    Mr. Scott. Well, what about the foreign--foreign 
intelligence? You have probable cause you can get some foreign 
intelligence. What about foreign affairs?
    Mr. Fitzgerald. Okay, it's not probable cause you can get 
foreign intelligence. It's probable cause that the person is an 
agent of a foreign power.
    Mr. Scott. Right.
    Mr. Fitzgerald. You have to certify, in addition, that 
you're going to gain foreign intelligence, my point being----
    Mr. Scott. Wait, wait, wait. Whoa, whoa. What is foreign 
    Mr. Fitzgerald. Foreign intelligence, that's one of the 
things you have to get. But before you can even certify that 
you're getting foreign intelligence, you have to establish that 
the person is an agent of a foreign power. Under the terrorism 
statute, there is no----
    Mr. Scott. Well, wait, wait a minute. Wait a minute----
    Mr. Fitzgerald. Let me just----
    Mr. Scott. Well, no, no, because people keep coming here, 
time and time again--this isn't the first hearing we've had.
    Mr. Fitzgerald. I know.
    Mr. Scott. They come and say you need a FISA to protect 
from terrorism.
    Mr. Fitzgerald. Yes.
    Mr. Scott. And then you point out that you can get a FISA 
warrant for things--have nothing to do with crimes, have 
nothing to do with terrorism, if you can get foreign affairs. 
The example I've used is----
    Mr. Fitzgerald. And I disagree with that. And if you could 
let me explain, because you do need----
    Mr. Scott. Okay, okay, well, let me make my point----
    Mr. Fitzgerald. Okay.
    Mr. Scott. --so you know what you're disagreeing with.
    Mr. Fitzgerald. Okay.
    Mr. Scott. If I've got probable cause that somebody's an 
agent of a foreign government, and we're about to negotiate a 
trade deal, and I can get their bottom price on steel, can I 
get a FISA wiretap?
    Mr. Fitzgerald. That answer? I'll be blunt. I don't know.
    Mr. Scott. Okay.
    Mr. Fitzgerald. Because I--what I'm saying is I don't----
    Mr. Scott. The answer everybody else has given is ``Yes.'' 
And that's how easy it is, and how unrelated to crime and 
terrorism these FISA wiretaps are. And if you can--if that's 
all you've got to get, to get into somebody's home, to get a 
wiretap and all this, then it's a lot easier to run a criminal 
investigation without having to fool around with whether a 
crime is actually being committed.
    Mr. Fitzgerald. Except that, if that's what you are doing, 
you'd be lying and making a false statement when you certified 
that the purpose of the investigation was to gather foreign 
intelligence. And when you try to bring that person into court 
for some drug crime and say, ``We had a FISA wiretap,'' and 
show it to the judge, for something else, it would be out of 
it. Let me make this point----
    Mr. Scott. A significant purpose was getting the bottom 
price on steel, and you tripped over a drug deal. Or you knew 
the drug deal was happening, and you knew he was negotiating a 
trade deal.
    Mr. Fitzgerald. Sir, all I can tell you is this. In 
Chicago, we spend--I spend a lot of my time prosecuting drug 
cases and gang cases. We have never contemplated, much less 
done, anyone going near a FISA court to get a drug wire. We've 
got plenty of other----
    Mr. Scott. Then what was the Attorney General talking about 
when he said, if the primary purpose of the FISA wiretap wasn't 
foreign intelligence, what was it? Why did he say ``criminal 
    Mr. Fitzgerald. And if I could get to the second part of 
what I wanted to say, it's most of those predicates require 
probable cause of activities which themselves are crimes when 
people commit terrorist acts. The point being, I think that the 
primary purpose itself is a fiction. And I'd like to explain 
that, because I think it's important.
    It may be that people say early on you don't know what the 
primary purpose is. Let me give you an example. If a CIA 
officer came into my office tomorrow and said, ``We have 
sensitive information coming from overseas that someone's going 
to put a bomb in the middle of Chicago next week, and take 
lives,'' we would have the CIA in the room sharing their 
information. We would put the FBI in charge. We'd have 
several--lots of agents in Chicago. We'd have the Chicago 
Police Department. And we'd say, ``Let's stop this bombing. 
Let's get the information, and let's go prevent it.''
    If you ask the CIA officer under truth serum what is the 
primary purpose in what he's doing, I have no doubt that he or 
she would say, ``This is an intelligence operation to stop a 
bombing.'' If you ask the Chicago Police Department, ``What is 
the primary purpose of this operation?'' he no doubt, or she no 
doubt, would say, ``We are trying to prevent the crime of a 
bombing that--''
    Mr. Scott. You can't get a criminal warrant on something 
like that?
    Mr. Fitzgerald. If it's coming from overseas, it might be a 
FISA. It may not be a criminal warrant, if it was classified 
information that we could not use. If it was an Al-Qaeda 
operation doing this bombing on behalf of a terrorist group, 
that is appropriate for a FISA.
    My point being, different people involved in the same 
operation may have--one may have an intelligence purpose; one 
may have a criminal purpose. And if I, as the prosecutor, have 
to sit there and figure out, ``How will a court review this 
later?'' if there's a bombing prevented and people are 
arrested, and have to decide, ``I can't use FISA, I can't use 
title III, I'm paralyzed''--we need to know that there's a 
legitimate intelligence purpose in trying to prevent a 
terrorist group from bombing a major metropolitan city, and we 
go forward.
    We can't sit around having a philosophical discussion, 
saying, ``Who thinks it's intelligence? Who thinks it's law 
enforcement? Where does the balance go?'' We can't do that. And 
that's what we used to do.
    The fellow in the back who testified this morning, Rob 
Khuzami, and I worked a case together in New York in 1994, 
where people were plotting to blow up the bridges and tunnels 
in New York. And no one wanted to bring the prosecutors in 
until the end because they were afraid that, by talking to 
prosecutors, it would look like a law enforcement matter, and 
the FISA may later be thrown out.
    We can't go through a world where we don't bring in the 
cops and the prosecutors to decide what to do because we're 
afraid the consultation will color how a court looks at it 
later. So I think it's a fiction that a primary purpose exists. 
There are purposes. And if you have a legitimate intelligence 
purpose, I think we need to be able to proceed.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Indiana, Mr. Pence, is recognized for 5 
    Mr. Pence. Thank you, Mr. Chairman. And thank you for 
holding this hearing. I had--and I want to thank the panel. 
This is an extraordinary panel of experts and public servants. 
And I'm most especially pleased to have the opportunity to hear 
from and to meet Mr. Fitzgerald, whose reputation in law 
enforcement is highly regarded in this nation. And I'm grateful 
for your insights.
    Two questions specifically for the panel. I'm very 
intrigued in reading your statement, Mr. Fitzgerald. I was 
literally added to the Judiciary Committee a week before we 
wrote the PATRIOT Act. I haven't crammed like that since law 
school. But I've been a defender of this act, believing that it 
has balanced our civil liberties in this country with positive 
advances in our ability to confront the enemies in our midst.
    And I'm struck in your testimony by a variety of examples 
that you use; even one, I believe, that had to do with the '93 
bombing of the World Trade Center and one Sheikh Omar Abdel 
Rahman who there were--according to your testimony, that there 
were criminal and intelligence investigations, but that 
prosecutors--because of ``The Wall'' that we're talking about 
in this hearing, prosecutors didn't have that information.
    And it is--is it accurate to say in that case that 
prosecutors were in the dark about the details of a plot that 
our intelligence officials knew about by Sheikh Rahman to bomb 
the Holland and Lincoln Tunnels, the FBI Building, the UN, the 
George Washington Bridge, until very late in--very late in that 
investigation; and that that's materially changed by the 
section of the PATRIOT Act we're here to debate?
    Mr. Fitzgerald. Yes. My understanding is that the first 
time a prosecutor was told about it, they were told very 
little, other than that it was an operation going on. And 
because FISAs were up, they were very concerned about contacts 
with prosecutors making it look like it was a primarily 
criminal purpose. And so they were brought in very late in the 
day, and decided when things had to be taken down, so to speak.
    And a similar experience happened around the millennium, 
when there were threats to our country. And myself and my 
partner, another lawyer, sat by the phone for many days going 
up to the millennium eve, waiting for a phone call, if there 
was anything we could be told; while people on the intelligence 
side dealt with the case.
    After the PATRIOT Act, if there were a threat like that, 
we'd be sitting down at meetings with the FBI, CIA, and 
exchanging information and deciding what we ought to be doing 
appropriately that is lawful and that will best protect our 
    Mr. Pence. Thank you. It's just amazing to me. I think any 
Americans looking in on television at this hearing would be 
astounded at what used to be the practice--the left hand not 
knowing what the right hand is doing--between intelligence and 
domestic law enforcement.
    Mr. Kris, you testified that you thought that if section 
218 sunsets, that law enforcement would have greater authority.
    Mr. Kris. Yes.
    Mr. Pence. Which flies in the face of many of the critics 
of ``The Wall.'' Now, I know you discussed this in your written 
testimony. I'm looking at page 12 of your written testimony 
and--but I'd love for you to elaborate on that, because I think 
it's an intriguing point. Because as a limited-Government 
conservative, I'm always interested in how do we advance 
national security----
    Mr. Kris. Right.
    Mr. Pence. --and do that in a way that's consistent with 
limiting Government intrusion.
    Mr. Kris. Right. Well, I think the answer to your question 
really depends on an understanding of the decision of the 
Foreign Intelligence Surveillance Court of Review.
    Mr. Pence. Uh-huh.
    Mr. Kris. What that court held was that, as enacted in 
1978, FISA did not discriminate between law enforcement methods 
of dealing with or protecting against terrorism and espionage 
and other foreign threats to national security, and any other 
method--a traditional intelligence method, diplomatic method, 
and so forth--of dealing with those threats.
    So, the court basically held that, as enacted in 1978, FISA 
would have allowed surveillance even where the sole purpose was 
to prosecute a terrorist or a spy. The distinction, the court 
said, was not the nature of the method used to address the 
threat--law enforcement methods or some other method--but 
rather, the nature of the threat that was being addressed--a 
terrorist threat, as opposed to, say, a routine domestic crime, 
bank robbery or what have you.
    But the court recognized that for 23 years everybody 
misread the statute in all three branches of Government. And 
until the Department figured it out and advanced the argument 
in the appeal, and the court agreed, nobody knew. Which meant 
that at the time the PATRIOT Act and section 218 in particular 
was enacted, the misunderstanding prevailed. And so the court 
held, section 218, in effect, codified that misunderstanding 
and created this false distinction between law enforcement 
methods of dealing with these threats and all other methods.
    Now, if 218 were to sunset, I think the misunderstanding 
would sunset, too. Or at least there's a substantial argument 
to that effect.
    Mr. Pence. Well, you would lose that element of the statute 
that would clarify what the significant non-law enforcement 
purpose standard.
    Mr. Kris. And so I think you would probably--and again, I 
haven't done the really heavy lifting that would be necessary 
to determine this authoritatively. But I think you can see the 
logic of the argument that if 218 sunsets, you revert to the 
original--albeit newly discovered--meaning of the statute.
    Mr. Pence. Uh-huh.
    Mr. Kris. And that is why I believe if 218 sunsets without 
more, the Government may have more power than it does today.
    Mr. Pence. So----
    Mr. Chabot. The gentleman's time----
    Mr. Pence. --Americans' privacy rights were strengthened by 
the PATRIOT Act, in that regard.
    Mr. Kris. The PATRIOT Act cut back on Government power. 
That is what the court of review said.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from Ohio seems to be chomping at the bit 
there, so go ahead, if you have a quick point.
    Mr. Swire. Well, I think another way to look at it is 
there's a circuit split between the five or six circuits that 
went one way, and the FISA Court of Review that went the other 
way. Because there were numerous circuit court judges that had 
what the Justice Department found was a misunderstanding.
    Mr. Chabot. Thank you. We were just getting ready to go to 
a second round. Two Members have just gotten here. Did you want 
to get in on the second, or you still want to get in on the 
    Ms. Jackson Lee. First.
    Mr. Chabot. You want to get in on the first. Okay. The 
gentlelady from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. Thank you, Mr. Chairman. We have seemingly 
been patriotic now for a couple of days, and we've lived with 
the PATRIOT Act for a longer period than that. I want to thank 
the witnesses for their testimony, and the Ranking and Chairman 
for this hearing.
    I was just meeting with some constituents, and one of their 
chief issues was the question of civil liberties. Isn't it 
interesting, in 2005, that that doubt of having civil liberties 
is being raised by Americans really across the land.
    I think the important point to be made possibly--or for 
those of us who sit on this side of the panel is that there is 
not a divide in wanting to make sure that the homeland is 
secure; or, frankly, that there are not the basic and enhanced 
resources for law enforcement. But we have to be, in essence, 
the wall, the divide, the protector of excessiveness, and the 
representation that the present state of the law is not 
    So I simply--I appreciate the U.S. Attorney in his 
deciphering ``primary'' and ``significant'' and I will--Mr. 
Fitzgerald, I want to raise some questions with you. But Mr. 
Swire, if you could let me know, I know that there have been 
mistakes that the Department of Justice has made--some 70 of 
them, as I understand it--about information sharing, 
unauthorized dissemination of information. In fact, I think 
Attorney General Janet Reno first interjected into trying to 
give guidelines of where the FBI could begin to share 
information with the U.S. attorneys.
    My question to you is to pick up where my colleague, 
Congressman Scott, was as I was listening to his inquiry about 
this ``significant'' and ``primary'' question. But also, have 
we even fixed some of the problems that are generated from the 
misrepresentations of information sharing, unauthorized 
dissemination of information? And how do we know that the 
Department has any knowledge of these misrepresentations and 
has any ability to account for them?
    And let me make this other point. We learned in an earlier 
hearing today that we have the right to get certain 
information, the Congress does, under FISA. And I'm wondering 
whether we are even getting that information. Not only do we 
have the right to get information, but the public has a right 
to have pronouncements being made.
    In your profession, or as you have traveled the highways 
and byways, are we fulfilling our responsibility? Are you 
getting pronouncements from the DOJ, or local DOJ, about 
anything dealing with FISA? I yield to the gentleman. And I may 
interrupt you because my green light may go and I may want to 
deal with Ms. Martin or Mr. Kris and Mr. Fitzgerald.
    Mr. Swire. Thank you, Congresswoman----
    Ms. Jackson Lee. Yes, sir.
    Mr. Chabot. The green light just went so----
    Ms. Jackson Lee. I'm on a beige light now, but that's all 
    Mr. Swire. A couple of points. One is attached to my 
testimony are possible oversight questions, to try to ask some 
questions that maybe the Committee would find useful to ask the 
Department of Justice. I think that having a greater oversight 
by the Judiciary Committees going forward--if this turns out to 
be really a criminal statute so often, maybe the Judiciary 
Committee should get the same oversight information that the 
Intelligence Committee----
    Ms. Jackson Lee. But do you know if they've answered any of 
the problems dealing with the question of 70 
    Mr. Swire. Well, it points out that there's no adversary 
process in the FISC court--in the FISA court. And the court 
there was able to discover that more or less on its own. And so 
we need to figure out how that oversight is going to happen in 
the future.
    Ms. Jackson Lee. Ms. Martin?
    Ms. Martin. Well, I'd like to make the point that I think 
there are really two separate issues being talked about here. 
One is sharing and the failure to be able to share before 
September 11th, described by Mr. Fitzgerald. And I think we all 
recognize that that was a mistake and that it shouldn't happen 
again; that we don't want to write in a legal prohibition on 
that kind of sharing.
    But the question I think that the Committee faces in 
connection with 218 is not a sharing question, but is the 
question of when are the FISA authorities going to be allowed 
to be used? The FISA authorities allow the Government to 
secretly search Americans' homes and secretly wiretap their 
    And those are extraordinary powers, going to the core of 
the fourth amendment. One of the core fourth amendment 
protections has been that when a person's home is searched and 
their telephone conversations are tapped, after the fact 
they're told about it. FISA is--the whole point of FISA is that 
you don't have to tell the person that that happened.
    Section 218 broadens the circumstances under which the 
Government can use those extraordinary powers. And I think that 
the question the Committee needs to focus on is, given that we 
are going to have those extraordinary powers, given that we of 
course want the information collected by FISA to be freely 
available to law enforcement and prosecutors, what kinds of 
protections are we going to have against abuse of those secret 
powers? And the Mayfield case is an example, I think, of that 
problem; which I'd be glad to talk about.
    Mr. Chabot. The gentlelady's time has expired. I think the 
gentleman on his time is going to ask for a follow-up, because 
we're already on 7 minutes on yours.
    Ms. Jackson Lee. If Mr. Kris and Mr. Fitzgerald can answer, 
I'd appreciate it.
    Mr. Chabot. Well, they will, but I don't want to drag this 
out too long. The gentleman from California is recognized at 
this time.
    Mr. Lungren. Thank you, Mr. Chairman. And I would ask Mr. 
Fitzgerald and Mr. Kris to please respond to the last comments 
made by Ms. Martin with respect to the fact that the--that 218 
expanded in these areas these kinds of searches, and does not 
give adequate notice; and seemed to suggest that therefore it 
is inappropriate.
    Mr. Kris. I'll speak to the 218 question, because I'm 
actually prepared to say that it is essentially the case that 
218 and the provisions that tear down ``The Wall'' don't affect 
the ``who,'' the ``what,'' the ``where,'' the ``when,'' or the 
``how'' of FISA surveillance. What they really do is permit the 
two hands of the Government--law enforcement and intelligence--
to talk and communicate in a normal way, one to the other.
    When ``The Wall'' is up, the Government is free to do any 
surveillance that it can do when ``The Wall'' is down, with one 
condition; and that is, the prosecutors have to be kicked out. 
And there is no change connected to ``The Wall'' in the 
probable cause standards or the definitions of ``agent of 
foreign power'' or ``foreign power.'' And so the same people 
can be targeted to the same extent on the same facilities.
    The difference is that law enforcement officials can be 
involved and coordinate with the intelligence officials. The 
Government is essentially no longer put to that very difficult 
choice between either, A, coordinating or, B, conducting the 
surveillance. They can now do both. So I guess that's my basic 
response on that.
    Mr. Lungren. Mr. Fitzgerald?
    Mr. Fitzgerald. He said it better than I would have, so I 
    Mr. Lungren. All right, you're not going to get off that 
early. Mr. Fitzgerald, in Ms. Martin's testimony, her written 
testimony, she suggests that Congress should take the 
opportunity to bring the FISA information in criminal 
proceedings ``in line with basic due process requirements.'' 
It's my understanding that the current procedures governing 
FISA in criminal cases have been upheld as constitutional in 
Federal courts across the country. Are you aware of any Federal 
court that has held that the current procedures are 
    Mr. Fitzgerald. No, and in the several times it's been 
litigated in cases I've participated in, it's always been held 
to be constitutional and to comport with due process.
    Mr. Lungren. Even in the event that no courts have found it 
unconstitutional, do you see any reason for reforms? And if so, 
what reforms would you suggest?
    Mr. Fitzgerald. I, personally, don't. I think that when 
judges review these materials they do review them to make sure 
that they're in order. And I think that--I think it's 
appropriate, given the sensitive nature of the material that 
goes into applications, often which can come from very 
sensitive sources or foreign governments who do not wish what 
they contribute to be exposed and the sources and methods.
    Mr. Lungren. You talked in your testimony about the 
investigation of Osama Bin Laden in the 1990's. Based on that 
experience, how damaging do you think ``The Wall'' was to our 
nation's counterterrorism efforts during that time?
    Mr. Fitzgerald. I think it was extremely damaging and----
    Mr. Lungren. Why?
    Mr. Fitzgerald. I would describe it this way. National 
security and civil liberties are both extremely important, so 
I'm going to make an analogy to a game; not because I don't 
think life and liberty and privacy aren't serious. But if you 
played football and you were on defense, and your job was to 
make sure no one attacked you, and where the risk were lives, 
you would not tell the defense that they have to separate into 
two huddles and can't talk to each other; which is what ``The 
Wall'' did.
    And if you went and played a game like that, where two 
separate huddles couldn't collaborate, and one day they finally 
said, ``You know what, you could actually talk before the other 
team tries to score a touchdown,'' where the price of a 
touchdown is lives, you would recognize that there's no way we 
should go through a dysfunctional system where we're not 
talking to each other, trying to defend against a lethal 
    Mr. Lungren. Do you understand the concerns that some 
people have, that tearing down ``The Wall'' would in some way 
jeopardize our protections of individuals' privacy rights?
    Mr. Fitzgerald. I do. I absolutely understand that, for two 
reasons. I understand privacy rights are very important. I want 
my privacy rights protected, so I don't at all cast any doubt 
on why people would be concerned about their privacy rights. 
And I understand the history from the '60's and '70's, why 
people would be concerned about that.
    From a pragmatic point of view, I agree with David Kris. I 
think we do our best job, not just of protecting national 
security, but protecting privacy rights and civil liberties, if 
we have the law clear, and we put lawyers and others in the 
room and say, ``These are the rules of the road,'' and we work 
together and make sure people don't make mistakes.
    So I think that ``The Wall,'' while it protects national 
security, doesn't jeopardize civil liberties--we want a system 
where we're all operating on the same set of laws and rules, 
and follow them, and make sure that people who are responsible, 
and have law degrees that they want to keep and jobs they want 
to keep, follow the rules and make sure that everyone around 
them follows the rules.
    Mr. Chabot. The gentleman's time has expired. We are going 
to go to a second round at this time, so I recognize myself for 
5 minutes.
    Mr. Kris or Mr. Fitzgerald, let me ask you this question. 
Do terrorist organizations work with other criminal elements, 
such as drug dealers and street gangs and other violent 
criminals of that nature? And if so, can you give some specific 
examples of that? And how common is this cooperation or 
association between terrorists or terrorist organizations and 
other criminal elements?
    And prior to enactment of 218, how would the law 
enforcement agency in charge of the criminal investigation 
coordinate with the foreign intelligence agency in charge of 
the terrorist investigation? And how cumbersome was that 
process? And again, some of these things we've already touched 
on time and time again.
    Mr. Fitzgerald. I will give you my limited perspective. I 
do know there have been occasions in the past where gangs and 
terrorists have linked up. I think going back to the late 
'80's, there was a Chicago gang that tried to get shoulder-
fired missiles for a foreign country--I think Libya--and that 
was exposed and later prosecuted. So that has happened.
    In my personal experience, I've more seen more incidental 
involvement of gang members or street criminals. For example, 
the plot where they were trying to blow up the bridges and 
tunnels in New York City: they had to get stolen cars; they had 
to get guns; they had to get things like that; where in the 
course of an investigation they were dealing with street-level 
criminals, just because they needed fake passports; they needed 
cars; they wanted to get detonators. So they got into this with 
the criminal underworld because they needed to get logistics. 
But it was more of a--the plan was being done by the terror 
ring, and they were reaching out to other people just to get 
    I don't see us using FISA to go after a gang problem, at 
all. What I do see is if FISA's going after a terrorist 
problem, we may incidentally pick up someone if they turn to a 
gang member or street criminal as part of their effort to get 
a, you know, weapon or a detonator, that sort of thing. But I 
haven't seen yet a situation where we haven't been able to just 
deal with it as a terrorism issue where you might incidentally 
come across street-level criminals. And I hope it stays that 
    Mr. Chabot. Thank you. Mr. Kris, anything you want to add 
to that?
    Mr. Kris. I'm not going to say anything about any 
particular cases, I don't think, in an open hearing; and as a 
former Government lawyer, not a current one.
    I will say that there are cases that I know of that are 
public, in which terrorist organizations or other national 
security threats have used what would otherwise be sort of more 
traditional kinds of crime, to finance or facilitate their 
terrorist acts. We had cigarette smugglers, for example, who 
were raising money to buy weapons. And that can happen.
    I think, legally, those kinds of crimes are treated like 
foreign intelligence crimes, under the new law tearing down 
``The Wall.'' And FISA could be used to gather evidence of 
those kinds of crimes. It can't be used to gather evidence--or 
primarily to gather evidence of ordinary crimes that are not 
being committed to facilitate those kinds of national security 
    Mr. Chabot. Thank you. Ms. Martin, you stated in your 
written testimony, and I think today orally as well, that the 
FISA statute authorizes secret surveillance on less probable 
cause of criminal activity than is authorized by the fourth 
amendment in criminal investigations. Some have claimed that 
FISA has no probable cause requirement. Is it your opinion that 
FISA has a probable cause requirement, or not? Would you 
comment on that, please?
    Ms. Martin. Yes. It's clear that it does have a probable 
cause requirement, and the probable cause requirement is, as 
Mr. Fitzgerald stated, that someone be an agent of a foreign 
power. There are then paragraphs defining what an agent of a 
foreign power is.
    In the terrorist context, it's pretty clear that that would 
be the equivalent of probable cause of criminal activity. But 
in the clandestine intelligence gathering context, which also 
applies to FISA, it's also clear that--if you read the FBI's 
own memo on the use of FISA, that the probable cause required 
is less than the probable cause required for a purely criminal 
warrant in that context. Which is not to say there's no 
probable cause and that there is a criminal nexus, but the--And 
I see Mr. Kris agreeing with me, so I'll just end----
    Mr. Chabot. Okay.
    Ms. Martin. --before I say anything else.
    Mr. Chabot. Okay. My time is about ready to expire. Let me 
ask one more question, if I could. Either Mr. Kris or Mr. 
Fitzgerald, would you explain why the FISA Court of Review 
concluded back in 2002 that section 218 of the USA PATRIOT Act 
is constitutional? And as the Chairman of the Constitution 
Subcommittee, I'm particularly interested in that.
    Mr. Kris. I'll try to--I'll try to tackle that. The court 
basically held that FISA is constitutional because it is 
reasonable, and reasonableness is the touchstone of analysis 
under the fourth amendment.
    The court specifically relied, I think, on two prior 
Supreme Court decisions. First, the Keith case, United States 
against the United States District Court, from the 1970's; and 
the more recent decision of City of Indianapolis v. Edmond.
    Keith held that in the case of surveillance involving 
domestic terrorists, standards different than and lower than 
those in title III would be permissible, because of the special 
nature of the threat that those kinds of domestic terrorist 
cases present. And I think that reasoning applies, a fortiori, 
to FISA, which involves foreign threats to national security, 
which are even more dangerous and more difficult to 
    In Edmond, the Supreme Court drew a distinction between 
ordinary and special kinds of law enforcement in its analysis 
and discussion of a checkpoint. And so I think the basic reason 
that the Court upheld FISA is that, like the statute which 
distinguishes between kinds of threats, rather than kinds of 
responses to threats, so, too, the fourth amendment ultimately 
draws that distinction. And surveillance is lawful under FISA 
if it is addressing the kind of threat that the statute deals 
with, regardless of the kind of method being used to deal with 
the threat.
    Mr. Chabot. Thank you very much. My time has expired.
    The gentleman from Virginia is recognized for 5 minutes.
    Mr. Scott. Thank you, Mr. Chairman. Mr. Kris, did I 
understand you to say that domestic--investigation of domestic 
terrorism did not require the same level of probable cause as 
other criminal warrants would require?
    Mr. Kris. Under current statutory law, that is not correct. 
Those would proceed under title III, the conventional criminal 
statute. But under the Constitution, the Supreme Court held in 
Keith, standards lower than title 3 maybe--or maybe not, in the 
probable cause area--would be tolerable.
    Congress has never taken up the Court on that invitation in 
Keith, and has not enacted a special statute governing domestic 
terrorism. But Keith indicates that it could do so.
    Mr. Scott. But the present state of the law is that 
domestic terrorism cannot be investigated with a lower probable 
cause standard than other crimes? That's the state of the law 
    Mr. Kris. Yes.
    Mr. Scott. Ms. Martin, you indicated about a criminal nexus 
to title--to FISA once. Did you say you needed a criminal 
nexus, or could have a criminal nexus?
    Ms. Martin. Well, when you're investigating ``clandestine 
intelligence gathering,'' as opposed to terrorism, it's not 
defined to equal criminal activity. It's defined to include 
activity that might be criminal. So you could say----
    Mr. Scott. And it could----
    Ms. Martin. --that it's connected to, but it's not a 
criminal probable cause standard.
    Mr. Scott. It could be connected to the conduct of foreign 
affairs of the United States.
    Let me ask Mr. Fitzgerald. Your reading--What code section 
were you reading off of when you were responding to the other 
    Mr. Fitzgerald. Fifty--Title 50, United States Code, 
Section 1801. When I talked about the agent of a foreign power, 
I was reading from section ``b,'' and when I read from 
international terrorism, I think I read ``b,'' and the 
terrorism parts were subsection ``c'' and ``e.'' They also have 
in there the sections about clandestine intelligence activity.
    Mr. Scott. Okay. Because I'm reading Title 1, section 101. 
When you talk about getting a FISA warrant, you can get it if 
you're getting foreign intelligence. And foreign intelligence 
information includes the conduct of foreign affairs of the 
United States; which may or may not have anything to do with a 
criminal activity.
    Mr. Fitzgerald. And you're reading from subsection ``e.'' 
And my point being, you have to satisfy the standard earlier 
that the person is an agent of a foreign power. If you satisfy 
that--and to be an agent of a foreign power, to engage in 
clandestine intelligence activity, that is a crime. To be an 
unregistered agent of a foreign power is a crime in itself.
    Mr. Scott. Well, if you are a registered agent of a foreign 
    Mr. Fitzgerald. If you are a registered agent? Okay.
    Mr. Scott. Yes.
    Mr. Fitzgerald. Okay. Then if you're a registered agent of 
a foreign power, then that may not be a crime, because you're 
obviously not--you've registered. But if you're engaged in 
clandestine intelligence activities, you're a spy.
    Mr. Scott. Well, if you are a registered agent of a foreign 
    Mr. Fitzgerald. Engaging in clandestine intelligence 
    Mr. Scott. No. No, we're going to get some information from 
you. And the idea--your bottom price on a steel deal we're 
going to negotiate tomorrow afternoon. If I know you're going 
to be talking to people back home, I can wiretap your phone and 
listen in to get that information. And that's a FISA wiretap. 
No crime; just getting information. Right?
    Mr. Fitzgerald. And as I told you before----
    Mr. Scott. You don't know.
    Mr. Fitzgerald. That part of it, I'm less familiar with. I 
could just read the statute----
    Mr. Scott. Okay, well, see, we've got to deal with the 
whole thing. You're dealing with terrorism, and we're dealing 
with the code and determining whether we're going to allow this 
to continue. And the idea is, since we changed that primary 
purpose to a significant purpose, the Attorney General told us 
that you can run criminal investigations out of FISA on these 
lower standards.
    Mr. Fitzgerald. And I could just add that the PATRIOT Act 
did not change that definition. The FISA statute, it didn't 
change the----
    Mr. Scott. That it changed to say ``primary purpose'' to 
``significant purpose''; which invites the question, if it's 
not the primary purpose, what is?
    Mr. Fitzgerald. And my only point being that if it's lawful 
to listen in on those trade negotiations, it was lawful before 
the PATRIOT Act, and afterwards.
    Mr. Scott. Yes, but you can't run a criminal investigation. 
You can't use it as an excuse to running a criminal 
investigation if that wasn't your purpose.
    Mr. Fitzgerald. And you can't do it here, if your primary 
purpose isn't to gain foreign intelligence. You have to certify 
that. That would be false if your----
    Mr. Scott. Well, that's why we changed the law, so you 
could run a criminal investigation without probable cause. Let 
me ask a quick question, before all my time runs out. How do 
you challenge a FISA wiretap that was inappropriate? In 
criminal investigation, you challenge it using the exclusionary 
rule. How do you challenge--if they shouldn't have gotten the 
wiretap to begin with, if it was really a ruse, how do you 
challenge it?
    Ms. Martin. It's impossible. Not only would you not be able 
to challenge it, you would never know about it. And that's the 
whole difficulty. And that's what Brandon Mayfield's case 
illustrates. There they got a secret FISA search of his home, 
and it turns out he's innocent. There's nothing in the statute 
that required the Attorney General or the Justice Department to 
inform him that the FBI had been inside his house. And the 
Justice Department made that clear when they did inform him, 
because they said, ``We're going to tell you that, but we 
didn't have to tell you we were inside the house.''
    And the reason, apparently, they told him that they had 
been inside the house was only because he had been mistakenly 
jailed. So if he hadn't been jailed, he never would have been 
told that they had a wiretap or a physical search of his house, 
when it turned out it was a mistake.
    And that's the problem that I think this Committee needs to 
look at. And that problem did pre-exist section 218 of the 
PATRIOT Act. There's no doubt about that. But it's been 
    Mr. Chabot. The gentleman's time has expired, but if you 
want to follow up just for a minute----
    Mr. Scott. I do want to follow up. I wanted Mr. Swire to 
    Mr. Swire. The simple point I wanted to make is that in 
Kate Martin's testimony, she proposes legislative fix that's 
based on CIPA, classified procedures act, which came after 
1978, and is a better way for handling those challenges than 
the '78 law had. Basically, we should update our 1978 version 
of FISA to the things we learned over time for how to handle 
the classified information and have those challenges done 
    Mr. Scott. Okay.
    Mr. Chabot. The gentleman's time has expired.
    The gentleman from California, Mr. Lungren, is recognized 
for 5 minutes.
    Mr. Lungren. Thank you, Mr. Chairman. Mr. Kris, I'd like to 
direct this to you, because listening to the comments and the 
questions of the gentleman from Virginia prompts this question; 
which is when we're talking about FISA and he's talking--and 
we're talking about a non-criminal act--we're talking about the 
position another country may have on trade--FISA can only come 
into effect if the individual involved is a foreign agent--an 
agent of a foreign government; is that not correct?
    Mr. Kris. Yeah. I mean, I think there's two separate legal 
requirements here that may be getting a little bit mixed.
    Mr. Lungren. Yes.
    Mr. Kris. And maybe I can try to differentiate. To be a 
FISA target, you have to be an agent of a foreign power, or a 
foreign power, and the Government has to establish probable 
cause, the court has to find probable cause. And that's a 
requirement that, just as Ms. Martin says, in some cases, 
particularly where it's a terrorism case involving a U.S. 
person, it's essentially the same probable cause standard as in 
a criminal case, plus some additional requirements.
    But in the espionage context, it's a slightly different 
standard. It is activities that involve, or may involve, or are 
about to involve a crime; which is--and the legislative history 
is very clear on this--somewhat lower than the traditional 
criminal probable cause standard. That is what the statute 
    The other requirement in a FISA application is a 
certification from some high-ranking Executive Branch official, 
like the FBI Director, that now a significant purpose is to 
obtain foreign intelligence information. There are two kinds of 
foreign intelligence information. There's the kind that is 
normally at issue in these kinds of ``Wall''-related cases, 
what I will call counter-intelligence, or protective 
intelligence, information that is relevant or necessary to 
protect against a series of specified threats--terrorism, 
attack, so forth.
    There is also a second definition in foreign intelligence 
information, and I'll call that affirmative, or positive 
foreign intelligence. And that is information with respect to a 
foreign power or foreign territory that relates to or, if 
concerning a U.S. person, is necessary to the defense or 
security of the United States or the conduct of foreign 
    And it is absolutely correct that information that is 
relevant to a trade negotiation would be, I think, or could be 
foreign intelligence information, under this second definition. 
However, I will also say that information is foreign 
intelligence information under that second definition only if 
it is with respect to a foreign power or a foreign territory.
    And if you read the legislative history there, they 
contrast that ``with respect to'' language. On the one hand, 
with respect to a foreign territory or power; on the other 
hand, not about a U.S. person. And so it really is, I think, if 
you read the legislative history, the kind of information that 
you would get from monitoring visiting foreign trade 
delegations, if that's what you were going to do. And I'm not 
saying we do it or not.
    Mr. Lungren. As opposed to an American citizen.
    Mr. Kris. Right. And the two requirements are, in any 
event, independent. Because even if--it would be a very strange 
case, I must say, in which the Government would assert, on the 
one hand, there is probable cause that this U.S. person is a 
terrorist, or is knowingly engaged in international terrorism 
or activities in preparation therefor; and yet, our primary 
purpose is to gather information about a trade negotiation. 
That would be a very odd disjunction.
    And I think--I don't say you should rely on the good faith 
of the Government officials involved. Having been one, I know 
better than that. But it would certainly be a difficult 
articulation for the FBI Director to make.
    Mr. Lungren. Well, see, what I'm trying to do is figure out 
if we've been hearing about a straw man for quite a bit of time 
in various questions, or whether this is a serious problem. I 
mean, I'm aware of no abuse in this area. But is it a serious 
problem, where an American citizen has to worry about somehow 
FISA being used to invade their privacy under some tortured 
version of these terms? I'm just asking----
    Mr. Kris. Yes.
    Mr. Lungren. --for your help on this, looking at this 
    Mr. Kris. I think my basic answer to that question is 
``No,'' because the probable cause requirements in 1801 of 
Title 50 remain the same, both before and after the PATRIOT 
Act, and still require the Government to make a substantial 
showing of criminality in clandestine intelligence cases, and 
what amounts to a full-blown traditional criminal showing of 
probable cause in a terrorism case, regardless of what prong of 
the foreign intelligence definition they are proceeding under.
    Mr. Lungren. Thank you.
    Mr. Chabot. Does the gentleman yield back? The gentleman's 
time has expired.
    The gentlelady from Texas is recognized for 5 minutes.
    Ms. Jackson Lee. I'd like to go back to Ms. Martin. But 
before I briefly turn to you, I just want to state for the 
record, to make it very clear, you were delineating two very 
horns of the dilemma that Members of this Committee and 
Congress have. And that is, of course, to recognize the 
vitality of information sharing, i.e., the--for lack of a 
better word, the sort of ``Three Stooges'' approach pre-9/11. 
And I don't say it unkindly. But I think many of us were sort 
of aghast about the lack of sharing that we thought might have 
been helpful. And of course, that was a combination of domestic 
and international only because the individuals came into the 
country. But there were some that were there in the country 
doing activities that did not seem to funnel in one place. So I 
don't disagree with you. And I think I don't even glean that we 
would not be concerned that we can't do a better job at 
information sharing.
    I think there's some question of whether or not--we have 
this national intelligence director, which we now have, and, 
you know, whether that bridges any necessary intelligence 
necessities because of the CIA, because of the FBI and other 
elements, that need to cooperate.
    But the other part of it is--and these are my words--the 
broadness, the depth, of the power of the Government in 
utilizing FISA, and when to use this broad-based power; which 
is what my concern is. I've seen some looking maybe aghast or 
shocking from Mr. Kris when I mentioned the ``Three Stooges,'' 
but this is--we're all big boys and girls up here and we can 
face conversation that may be somewhat pointed.
    Again, it's not a personal commentary. It is just a 
commentary of what we've found ourselves. And when I say that, 
let me put everybody in the same boat together. Everybody was 
equally shocked that maybe there were not procedures in place.
    As I look at your testimonies--so my interest is really to 
do as you've noted. In fact, I've noted in your testimony that 
the national security study deals with the question of 
protecting us and civil liberties. And I assume you're 
consistent in your work. And I think that's a fair balance. 
Maybe we're not--we probably won't agree on many issues. I 
happen to be on Homeland Security. I say that--I've said that 
before. But I think that you wouldn't ask a Member of Congress 
that they are not interested in that part of security--of 
securing the homeland. But it's the use of this power that 
concerns me.
    And I circled something here: ``The center has long 
advocated the necessity of tying domestic intelligence 
authorities to law enforcement to ensure that Government 
surveillance is targeted against actual wrongdoers, and not 
against political or religious minorities.'' However, if, for 
example--and I'm on the domestic side--a religious minority had 
as its philosophy and also its action the bombing of abortion 
clinics; its faith or its views were that they are absolutely 
abhorrent--abhor them, but then the next step was that they 
planned bombing--bombings. You don't include that in 
protections of civil liberties; is that correct?
    Ms. Martin. No. That's actually an issue that we worked on 
to a great deal before September 11. Because we were concerned 
about two things: that the Government adequately investigate 
and stop abortion clinic violence; but that it not target 
groups who opposed abortion, or conduct surveillance of groups 
who opposed abortion, simply on the excuse that it was trying 
to stop abortion clinic violence.
    And that line--between investigating and targeting 
politically motivated violence, while being careful to respect 
the first amendment rights of those who might share the 
political views of the violent actors--is an extremely 
important and difficult problem.
    Ms. Jackson Lee. Right. Let me take you up on that. Lights 
go out quickly here. Let's take that on the international 
basis, or at least the basis of groups that have gotten 
profiled: Muslims who gather in a mosque here in the United 
States; Pakistanis; people from Iran who live in the United 
States. Then how would the center expand on where you're going 
with the protection of the civil liberties and to avoid this 
expansive use of this procedure and still--where would we 
begin, or where would we take this hearing to really respond to 
    Because that, I think, as much as this is such a wonderful 
panel that talks about the necessity of security, and the U.S. 
Attorney, but we have in here the makings of the broad use of 
this procedure. How would you answer, a good way of providing 
that protection?
    Mr. Chabot. And the gentlelady's time has expired, but you 
can answer the question.
    Ms. Jackson Lee. You can answer the question, thank you. 
Thank you, Mr Chairman.
    Ms. Martin. Well, I think it's an extremely important and 
extremely difficult question to answer, that has to be answered 
in many different specifics. But I think that, given where we 
are, that we are going to continue to have the use of what are 
basically completely secret surveillance authorities; and which 
we tried to write in all of these detailed protections so that 
people wouldn't be spied on because they were Muslim. But as 
you can tell from all of the lawyers sitting here, it's a 
complicated statute. And whether or not those details in the 
statute in the end are going to be sufficient to protect people 
is not--no longer clear to me.
    I think that we have to come up with some new ways to look 
at what the Government is actually doing. And it's a hard 
problem because, of course, they have to operate in secret 
here. But I think I've made a couple of suggestions.
    I think another suggestion we haven't talked about is that 
this Committee go look at the actual FISA applications, the 
warrants, and the returns, especially of U.S. persons, and see 
who's being surveilled and what they found when they've done 
the surveillance, and actually look at that. And that's another 
way to look at this problem.
    Ms. Jackson Lee. I thank the gentlelady. We'll take you up 
on that. At least, I will. Thank you.
    Mr. Chabot. Thank you. The gentlelady's time has expired. 
That concludes the second round of questioning.
    And at this time, I'd like to ask unanimous consent to 
include in the record the Department of Justice's response to a 
letter from Senator Feinstein alleging abuses under the PATRIOT 
Act. And I understand that this indicates the absence of those 
    I'd also like to thank the witnesses for their testimony 
here this afternoon, which I really thought was excellent. The 
Subcommittee very much appreciates your contribution to this 
important effort. And in order to ensure a full record and 
adequate consideration of this important issue, the record will 
remain open for additional submissions for 7 days. Also, any 
written questions that a Member wants to submit should be 
submitted within the same 7-day period.
    That concludes the Oversight Hearing on the 
``Implementation of the USA PATRIOT Act: Section 218--Foreign 
Intelligence Information. (`The Wall')'' I want to thank all 
the Members for their attendance and their participation this 
afternoon. We want to especially thank the witness panel for 
being here and answering our questions. And if there's no 
further business to come before the Subcommittee, we're 
adjourned. Thank you.
    [Whereupon, at 4 p.m., the Subcommittee was adjourned.]

                            A P P E N D I X


               Material Submitted for the Hearing Record

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

    Thank you, Mr. Chairman, for holding this hearing on the issue that 
has been foreshadowing much of our discussion about the PATRIOT Act--
the extent to which it dismantled ``the wall.'' Given that where we 
have broken down the traditional wall between 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 for 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 abuses 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.
    When we operate in the foreign intelligence arena, we have 
traditionally given fairly broad latitude for use of extraordinary 
investigative tools abroad, particularly involving non-U.S. persons. 
But when we turn those tools inward, we run a greater risk of including 
U.S. persons in some of the investigative sweeps that occur, unless we 
have sufficient barriers to prevent unwarranted extensions. Since much 
of the foreign intelligence side is secretive and ex parte for the 
government with no public oversight and review, we don't have the 
traditional notice, challenge and public scrutiny on the criminal side. 
We used to have the ``wall'' as a protection. With the wall gone, I 
believe w should focus on establishing sufficient notice, challenge and 
public reporting requirements to assure that foreign intelligence 
operations do not unduly creep into domestic activities of U.S. 
    Some of our law enforcement officials seem to feel that the mere 
inclusion of information regarding uninvolved, innocent persons amounts 
to ``no harm, no foul'' if they are not arrested or subjected to having 
to challenge the incursion or other process--a sort of ``what they 
don't know won't hurt them'' philosophy. Yet, if overly broad 
information is collected, it can be spread all over town, greatly 
increasing the likelihood that your law enforcement, military or 
intelligence agency neighbor will know private things about you that 
you thought were private and known only by those to whom you knowingly 
gave the information. So, the problem with the ``wall'' being broken 
down isn't just improper acquisition and use of private information, 
but one of preventing people from having it the first place, other than 
those you gave it to with an expectation of privacy.
    So Mr, Mr. Chairman, I look forward to the testimony of our 
witnesses on the extent to which our privacies and freedoms are being 
protected despite the dismantling of the ``wall'' through USA PATRIOT 
and other measures, and what safeguards are needed to prevent the creep 
of overly intrusive foreign intelligence operations and powers into the 
privacy of U.S. persons.
     Letter from William E. Moschella, Assistant Attorney General, 
      U.S. Department of Justice to the Honorable Dianne Feinstein

     Letter from William E. Moschella, Assistant Attorney General, 
       U.S. Department of Justice to the Honorable Arlen Spencer

           The Use of Section 218 in Terrorism Investigations

      Submission by Peter Swire entitled ``The System of Foreign 
                    Intelligence Surveillance Law''