    [Senate Hearing 109-341]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 109-341

                                USA PATRIOT ACT

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

                                    HEARING

                                   BEFORE THE

                        SELECT COMMITTEE ON INTELLIGENCE

                                     OF THE

                              UNITED STATES SENATE

                           ONE HUNDRED NINTH CONGRESS

                                 FIRST SESSION

                                   __________

                                USA PATRIOT ACT

                                 APRIL 19, 2005

                                 APRIL 27, 2005

                                  MAY 24, 2005

                                   __________

          Printed for the use of the Select Committee on Intelligence

     Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                     senate

                                     ______

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                        SELECT COMMITTEE ON INTELLIGENCE

               [Established by S. Res. 400, 94th Cong., 2d Sess.]

                         PAT ROBERTS, Kansas, Chairman
                JOHN D. ROCKEFELLER IV, West Virginia, Chairman
    ORRIN G. HATCH, Utah                 CARL LEVIN, Michigan
    MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
    CHRISTOPHER S. BOND, Missouri        RON WYDEN, Oregon
    TRENT LOTT, Mississippi              RICHARD J. DURBIN, Illinois
    OLYMPIA J. SNOWE, Maine              EVAN BAYH, Indiana
    CHUCK HAGEL, Nebraska                JOHN EDWARDS, North Carolina
    SAXBY CHAMBLISS, Georgia             BARBARA A. MIKULSKI, Maryland
    JOHN W. WARNER, Virginia
                       BILL FRIST, Tennessee, Ex Officio
                         HARRY REID, Nevada, Ex Officio
                                  ----------
                          Bill Duhnke, Staff Director
                   Andrew W. Johnson, Minority Staff Director
                        Kathleen P. McGhee, Chief Clerk

                                    CONTENTS

                                  ----------

                                    Day One

    Hearing held in Washington, DC:
        April 19, 2005...............................................     1

    Statements of :

        Roberts, Hon. Pat, a U.S. Senator from the State of Kansas...     1
            Prepared statement.......................................     2
        Rockefeller, Hon. John D. IV, a U.S. Senator from the State
          of West Virginia, prepared statement.......................    29
        Nojeim, Gregory T., Associate Director and Chief Legislative
          Counsel, ACLU, prepared statement..........................    29
        Dempsey, James X., Executive Director, Center for Democracy &
          Technology, prepared statement.............................    45
        MacDonald, Heather, Senior Fellow at the Manhattan Institute
          for Policy Research, prepared statement....................    57

    Supplemental Materials:

        Testimony on the USA PATRIOT Act by Bob Barr.................     4
        Letter from Edwin Meese III and Paul Rosenzweig..............    10
        Testimony of Orin S. Kerr....................................    23
        Statement for the Record by Kate Martin......................    26
        Chart on the USA PATRIOT Act.................................    42
                                  ----------

                                    Day Two

    Hearing held in Washington, DC:
        April 27, 2005...............................................    87

    Statements of:

        Gonzales, Hon. Alberto R., Attorney General, Department of
          Justice....................................................    97
            Prepared statement.......................................    90
        Mueller, Hon. Robert S. III, Director, Federal Bureau of
          Investigation..............................................   100
        Goss, Hon. Porter J., Director, Central Intelligence Agency..   104
            Prepared statement.......................................   102

    Supplemental Materials:

        April 4, 2005 Letter from William E. Moschella, Assistant
          Attorney General to Senator Arlen Specter..................   130
        April 26, 2005 Letter from William E. Moschella, Assistant
          Attorney General to Senator Dianne Feinstein...............   137
                                  ----------

                                   Day Three

    Hearing held in Washington, DC:
        May 24, 2005.................................................   153

    Statements of:

        Caproni, Ms. Valerie, General Counsel, Federal Bureau of
          Investigation..............................................   168
            Prepared statement.......................................   166
        Feinstein, Hon. Dianne, a U.S. Senator from the State of
          California, prepared statement.............................   176
        Kris, David S., former Associate Deputy Attorney General,
          U.S. Department of Justice, prepared statement.............   188
        Onek, Joseph, Senior Policy Analyst, Open Society Institute,
          prepared statement.........................................   208
        Collins, Daniel P., former Associate Deputy Attorney General,
          U.S. Department of Justice, prepared statement.............   212
        Dempsey, James X., Executive Director, Center for Democracy
          and Technology, prepared statement.........................   221

    Supplemental Materials:

        May 23, 2005 Letter from Richard A. Seamon, University of
          Idaho......................................................   155

                          THE USA PATRIOT ACT OF 2001

                                  ----------

                                    DAY ONE

                            TUESDAY, APRIL 19, 2005

                          United States Senate,
               Senate Select Committee on Intelligence,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 3:05 p.m., in
    room SH-216, Hart Senate Office Building, Hon. Pat Roberts
    (Chairman of the Committee) presiding.
        Committee Members Present: Senators Roberts, Bond, Lott,
    Snowe, Chambliss, Warner, Rockefeller, Feinstein, Wyden, and
    Corzine.

                 OPENING STATEMENT OF HON. PAT ROBERTS

        Chairman Roberts. The Committee will come to order.
        I would like to apologize to our witnesses for the 40-
    minute delay due to the procedural votes that we had on the
    floor of the Senate. I guess the good news is that, at least
    for the time being, we have completed those votes. The
    challenge that we face is that at 5 o'clock we will have
    additional votes. We're down already to 1 hour and 45 minutes.
        Now I have a marvelous opening statement that deals with
    the PATRIOT Act and all of the varied concerns and positives
    that are involved with that Act and your concerns as well. But,
    I am going to simply submit that for the record in an attempt
    to hear from you.
        Can we keep the applause down a little bit?
        [Laughter.]
        Chairman Roberts. I think the Vice Chairman is going to do
    likewise, although he will seek his own counsel.
        We've invited a panel of outside experts to provide their
    views of the USA PATRIOT Act and their opinions on those
    provisions of the Act which will expire later this year.
        Our witnesses are Mr. Gregory T. Nojeim, the Associate
    Director and Chief Legislative Counsel for the American Civil
    Liberties Union; Mr. Jim Dempsey, Executive Director of the
    Center for Democracy and Technology; and Ms. Heather MacDonald,
    a John M. Olen fellow at the Manhattan Institute. The Committee
    thanks all of our witnesses for being here today.
        [The prepared statement of Chairman Roberts follows:]

                     Prepared Statement of Hon. Pat Roberts

        The Committee will come to order.
        On September 11, 2001, 19 terrorists hijacked four flights over the
    United States. We all remember the events of that day. The images of
    the collapse of the World Trade Center, the burning Pentagon, and the
    crash site of United Flight 93 in Shanksville, Pennsylvania should
    never be forgotten.
        But, the story of that day was written well before September 11th,
    and it was written by the terrorists that lived and trained within the
    United States. They rented apartments, bought cars, made telephone
    calls, sent e-mails, surfed the Internet, received wire transfers, and
    attended flight schools.
        The terrorists hid in the open--their sinister plans and intentions
    camouflaged by millions of innocent, lawful transactions that occur
    every day in the United States.
        The activities of the hijackers went largely unnoticed by our
    intelligence and law enforcement agencies. As this Committee and the 9/
    11 Commission have pointed out, systemic flaws in our national security
    agencies prevented full cooperation that might have stopped these
    attacks.
        But, in addition to these systemic flaws, our national security
    agencies were operating under obsolete authorities. Their hands were
    tied by inaccurate interpretations of existing law that restricted
    common-sense sharing of intelligence information.
        The USA PATRIOT Act was the first legislative effort by Congress
    and the President to reform our national security apparatus in response
    to the attacks of September 11th. The Act brought intelligence tools
    into the information age. Collection authorities that had been enacted
    during the era of the rotary phone had not kept pace with the new world
    of e-mail, the Internet, and mobile phones. The Act also tore down
    ``walls'' erected by overly cautious lawyers that had prevented
    information sharing and coordination between law enforcement and
    intelligence officials.
        The USA PATRIOT Act was drafted and passed by overwhelming
    majorities in both the Senate and the House and signed by the President
    on October 26, 2001. But, to describe the Act as a rash response to a
    horrific attack would be a mistake. Many of the provisions in the Act
    had been the subject of deliberation for years. The provisions were
    enacted with an acute awareness of rights guaranteed by the
    Constitution and applicable judicial precedents. The USA PATRIOT Act
    reflected a careful balancing of national security and the privacy
    rights of U.S. persons.
        Nonetheless, some of the more important provisions in the Act were
    passed subject to a ``sunset'' provision. Sixteen provisions in the
    Act--and the recently enacted ``lone wolf '' amendment to the Foreign
    Intelligence Surveillance Act--will expire on December 31, 2005.
        The danger posed by terrorism and other national security threats,
    however, will not expire on that date.
        Today, the Senate Select Committee on Intelligence continues its
    on-going oversight of the USA PATRIOT Act. This open hearing will be
    the first in a series of three hearings designed to educate Members and
    the public as the Senate considers the repeal of the ``sunset''
    provision and modifications to other intelligence authorities. On
    Thursday, the Committee will hold a closed hearing on operational
    matters relating to the Act. Next Wednesday, we will hear from the
    Attorney General, Director of the Federal Bureau of Investigation, and
    the Director of Central Intelligence.
        This is not the Committee's first review of the USA PATRIOT Act or
    the Foreign Intelligence Surveillance Act, also known as FISA. The
    Committee regularly holds hearings, conducts briefings, and receives
    information regarding the activities of the Intelligence Community. The
    Committee conducted a closed hearing on the USA PATRIOT Act during the
    last Congress. We receive detailed reports from the Department of
    Justice every 6 months regarding FISA collection and annual reports on
    the use of other surveillance tools.
        The Committee is also in the final stages of completing its second
    audit of the procedures, practices, and use of FISA. This
    comprehensive, classified analysis will represent one of the most
    thorough reviews of Executive branch activities under FISA since the
    USA PATRIOT Act was enacted.
        Today, we have invited a panel of outside experts to provide their
    views of the USA PATRIOT Act and their opinions on those provisions of
    the Act that will expire later this year.
        Our witnesses are: Mr. Gregory T. Nojeim, Associate Director and
    Chief Legislative Counsel for the American Civil Liberties Union; Mr.
    Jim Dempsey, Executive Director of the Center for Democracy and
    Technology; and Ms. Heather Mac Donald, a John M. Olin fellow at the
    Manhattan Institute. The Committee thanks all of our witnesses for
    being here today.
        We have also received testimony and submissions for the record
    from: The Honorable Bob Barr, former Congressman from Georgia; Former
    Attorney General Edwin Meese III, and Paul Rosenszweig (RO-zen-swayg)
    of the Heritage Foundation; Associate Professor Orin S. Kerr of the
    George Washington University Law School; and Ms. Kate Martin, Director
    of the Center for National Security Studies.
        Without objection, the submissions from these commentators will be
    entered into the record.
        Before I recognize the Vice Chairman, I want to set out some
    fundamental principles that will inform my consideration of the USA
    PATRIOT Act reauthorization and any other modifications to law or
    policy governing intelligence activities.
        First, our intelligence agencies need flexible authorities to
    confront terrorists, spies, proliferators, and other national security
    threats.
        Second, as we seek to protect national security, we must also
    ensure that civil liberties and privacy are not sacrificed in the
    process. This is not a zero-sum game, however. As former Supreme Court
    Justice Arthur Goldberg noted, ``While the Constitution protects
    against invasions of individual rights, it is not a suicide pact.''
        Third, these are not matters of ``first impression.'' Interpreting
    the Constitution and the President's responsibility to protect national
    security, Federal courts have wrestled with many of these issues
    before. They have recognized the authority of the President to conduct
    warrantless electronic surveillance of foreign powers and their agents.
    Well-established judicial precedents also make clear that certain
    records--even of the most private information--lose their
    Constitutional protection when voluntarily exposed publicly or to a
    business or other third party.
        Finally, I will support reasonable modifications to USA PATRIOT Act
    provisions or other authorities that clarify legal uncertainties, but I
    will oppose modifications that place unnecessary hurdles in the path of
    lawful intelligence investigations.
        I would like to note one particular example of an authority that
    has been questioned by some in the context of the USA PATRIOT Act.
        Everyday, we expose our personal information to businesses--when we
    buy milk from the grocery store with a credit card; when we open an e-
    mail account over the Internet; when we apply for a mortgage. This
    information we have voluntarily exposed to others is no longer private.
    Federal courts have clearly established that this record trail is not
    ``protected'' by the warrant requirement of the Fourth Amendment.
        I have said before, that the 9/11 hijackers conducted numerous
    transactions while living within the United States. It should not be
    surprising that the records of these transactions would have been
    useful to the Intelligence Community before the attacks. Records from
    flight schools, cell phone companies, rental car dealers, or internet
    service providers might have revealed crucial information about the
    activities of these terrorists.
        To gain access to these types of transactional records, the FBI
    uses a FISA ``business records'' order. A FISA ``business records''
    order allows the FBI to access records for investigations of
    international terrorists and spies.
        Before the USA PATRIOT Act, the authority to access ``business
    records'' under FISA was limited to certain types of business--like
    storage facilities, rental car companies, airlines, hotels, and the
    like. Section 215 of the USA PATRIOT Act expanded the types of entities
    that were subject to a FISA ``business records'' order and the types of
    items that could be sought with such an order.
        Armed with a FISA ``business records'' order, the FBI can now go to
    a flight school to ask for records about a student they believe to be a
    terrorist. They can ask an internet service provider for the subscriber
    information of a possible spy. They can ask for transactional records
    from a fertilizer company, a chemical company, and a car dealership if
    those records will support an investigation to stop a car bomb attack
    by al Qaeda.
        Libraries, booksellers, and others have raised great concern about
    this provision.
        In law enforcement investigations, the government can obtain the
    same types of records--from all types of businesses, including
    libraries and bookstores--with a grand jury subpoena. These subpoenas
    are issued without a court order and are subject to judicial review
    only after they are issued.
        A FISA ``business records'' order--on the other hand--can be issued
    only upon the approval of a Federal Judge serving on the Foreign
    Intelligence Surveillance Court. The judge can direct the FBI to modify
    the scope of the order. No similar pre-issuance review exists in the
    context of grand jury subpoenas.
        Still, there is concern that the provision infringes privacy
    interests.
        A FISA ``business records'' order also CANNOT be sought if the
    investigation is based solely on activities protected by the First
    Amendment. This prohibition dovetails with existing restrictions in
    Executive Order 12333 on the collection of foreign intelligence
    concerning the domestic activities of U.S. persons.
        Finally, I note that the FISA ``business records'' provision is a
    relatively non-intrusive means of collecting intelligence for a
    national security investigation. Analysis of these business records can
    help solidify investigative leads or clear innocent names before more
    intrusive FISA techniques such as electronic surveillance or physical
    search are ever employed.
        And, there are limitations in the USA PATRIOT Act, along with
    requirements for judicial review, the Congressional reporting
    obligations, and the prohibitions in Executive Order 12333.
        While I recognize that some clarifying modifications to Section 215
    may be necessary, I will oppose modifications that increase the
    standard for an order above ``relevance'' or place unreasonable
    barriers between these business records and intelligence officials.
        Section 215 is just one example of the numerous tools that the USA
    PATRIOT Act provided to the men and women protecting us from further
    attack. These tools are currently helping our intelligence agencies
    identify terrorists, track their movements, and disrupt their plots.
    The provisions are subject to review by courts and the oversight of
    Congress.
        Those provisions of the USA PATRIOT Act subject to expiration at
    the end of the year must be reauthorized. The alternative is a return
    to failed, outdated, and illogical limits on national security
    investigations that tied our hands prior to the 9/11 attacks. The
    dangers are real, and we should give our people every Constitutional
    tool available to fight and defeat terrorism.
        I now recognize the Vice Chairman for any remarks he might wish to
    make.

        Chairman Roberts. We also received testimony and
    submissions for the record from the Honorable Bob Barr, the
    former Congressman from Georgia; former Attorney General Ed
    Meese and Paul Rosenzweig of the Heritage Foundation; Associate
    Professor Orin S. Kerr of the George Washington University Law
    School; and Ms. Kate Martin, the Director of the Center for
    National Security Studies.
        Without objection, the submissions from these commentators
    will be entered into the record.
        [The prepared statements referred to follow:]

                         Prepared Statement of Bob Barr

        Chairman Roberts, Ranking Member Rockefeller, distinguished members
    of the Select Committee, I thank you for the invitation to present my
    views in this written statement on the debate over the PATRIOT Act
    ``sunset'' provisions, and I applaud your oversight on this crucial
    matter.
        My name is Bob Barr. From 1995 to 2003, I had the honor to
    represent Georgia's Seventh District in the U.S. House of
    Representatives, serving that entire period on the House Judiciary
    Committee. From 1986 to 1990, I served as the United States Attorney
    for the Northern District of Georgia after being nominated by President
    Ronald Reagan, and was thereafter the president of the Southeastern
    Legal Foundation. For much of the 1970's, I was an official with the
    CIA.
        I currently serve as CEO and President of Liberty Strategies, LLC,
    and Of Counsel with the Law Offices of Edwin Marger. I also hold the
    21st Century Liberties Chair for Freedom and Privacy at the American
    Conservative Union, consult on privacy issues with the American Civil
    Liberties Union, and am a board member of the National Rifle
    Association.
        Finally, I am the Chairman of a new network of primarily
    conservative organizations called Patriots to Restore Checks and
    Balances, which includes the American Conservative Union, Eagle Forum,
    Americans for Tax Reform, the American Civil Liberties Union, Gun
    Owners of America, the Second Amendment Foundation, the Libertarian
    Party, the Association of American Physicians and Surgeons, and the
    Free Congress Foundation.
        We strongly urge Congress to resist calls to summarily remove the
    sunset provisions in the PATRIOT Act. This reflects our philosophy in
    support of all necessary and constitutional powers with which to fight
    acts of terrorism, but against the centralization of undue authority in
    any one aim or agency of government.
        As I have said many times before, I believe the current struggle to
    properly integrate our shared constitutional heritage into our efforts
    to provide for the common defense, is the defining debate of our time.
    If we fail to strike the appropriate balance, we will do irreparable
    harm to our most elemental principles as a nation.
        To that end, I urge this Committee to carefully examine the current
    language of the 2001 USA PATRIOT Act, and to make modest modifications
    to a handful of its provisions. In particular, I strongly urge
    individual members to co-sponsor Senator Larry Craig's Security and
    Freedom Enhancement Act of 2005, known as the SAFE Act. Although in
    many respects, this legislation does not address all of our concerns
    with the USA PATRIOT Act, it is an essential first step.
        Even though I voted for the USA PATRIOT Act in October 2001, as did
    many of my colleagues, I did so with the understanding it was an
    extraordinary measure for an extraordinary threat; that it would be
    used exclusively, or at least primarily, in the context of important
    antiterrorism cases; and that the Department of Justice would be
    cautious in its implementation and forthcoming in providing information
    on its use to the Congress and the American people.
        I have become skeptical on all of these fronts.
        First, the Justice Department has been quite frank in its use and
    desire to use the USA PATRIOT Act in non-terrorism contexts. Second,
    the administration has repeatedly stated its intention to expand the
    USA PATRIOT Act, and has floated various pieces of legislation that
    would do so.
        And, third, although this Committee would be in the best position
    to judge, the Justice Department has not produced any compelling
    evidence that the USA PATRIOT Act has been essential in preventing al
    Qaeda-style terrorist plots. Although I grant we have not suffered
    another major terrorist attack since 9/11, as Homeland Security
    Secretary Michael Chertoff put it, ``[i]t's like sprinkling powder to
    keep away elephants. If no elephants show up, how do you prove it's
    because of the powder, rather than because there were never any
    elephants?'' \1\
    ---------------------------------------------------------------------------
        \1\ Stephen Brill, After: How America Confronted the September 12
    Era 348 (2003).
    ---------------------------------------------------------------------------
        Before I specifically discuss those provisions of the USA PATRIOT
    Act most pertinent to this Committee's jurisdiction, I would like to
    bring two new developments in the ``sunsets'' debate to the Committee's
    attention. Namely, we learned earlier this month that both the USA
    PATRIOT Act appears to have been used in the Brandon Mayfield affair,
    and that the Administration is increasingly turning to it for its
    surveillance needs.
        The Mayfield revelation is particularly disturbing. Mayfield--the
    Oregon lawyer turned prime suspect in the Madrid bombing investigation
    because of faulty fingerprint analysis at the FBI--was subjected to a
    highly intrusive Federal investigation and then detained as a
    ``material witness'' for 2 weeks before finally being exonerated.
        According to Attorney General Gonzales, the FBI used the USA
    PATRIOT Act when it executed a covert search of Mayfield's home.
    Specifically, the attorney general said that Section 207 was used to
    extend the duration of Mayfield's surveillance, and that ``in some
    sense'' Section 218, which made it easier to use intelligence
    authorities in criminal contexts, was used.
        We all fully understand the FBI is not perfect and generally
    support the bureau even when it makes honest mistakes.
        However, the Mayfield case shows how the USA PATRIOT Act, by
    lessening meaningful judicial oversight, reduces the ability of the FBI
    and Justice Department to avoid such mistakes. In particular, it shows
    how--through the increased use of classified and less exacting foreign
    intelligence surveillance authority in place of traditional criminal
    warrants based on probable cause and executed in the open--the USA
    PATRIOT Act can compound mistakes and amplify them into serious
    deprivations of an innocent person's personal liberty.
        In Mayfield's case, not only was a U.S. citizen detained, but his
    home was subjected to a ``black bag'' intelligence search even though
    the Justice Departillent was arguably conducting this search primarily
    for criminal purposes; in other words, in order to apprehend a suspect
    in a terrorist bombing that had already taken place. Such a foreign
    intelligence search is even more intrusive than the criminal ``sneak
    and peek'' search warrants available under section 213 of the USA
    PATRIOT Act, because notice is not simply delayed, it is never
    provided. The Washington Post reported that in a March 24th letter to
    Mayfield, the Justice Department acknowledged that during a covert
    search of his home, agents copied computer and paper files, took 355
    digital photographs, seized six cigarette butts for DNA analysis, and
    used cotton swabs to obtain other DNA evidence.
        In short, the Mayfield case should serve as a cautionary tale of
    how the USA PATRIOT Act can seriously exacerbate any ``broken
    telephone'' effect in an ongoing investigation.
        I would also say, especially to Senators Hatch and Feinstein, that
    this is the type of problem that supporters of increased checks and
    balances refer to when discussing so-called ``PATRIOT Act abuses.'' No
    one is of the mind that the FBI would deliberately seek to infringe on
    the rights of loyal, law-abiding Americans. But there need be no malice
    aforethought for something to constitute an ``abuse.'' The fact is,
    procedural deficiencies in the law's implementation likely led to
    Mayfield's predicament, and Mayfield was an innocent man.
        Put another way, sometimes the road to abuse is paved with good
    intentions. Take, for instance, the Racketeer Influenced and Corrupt
    Organizations, or RICO, Act, which was passed to provide tools to fight
    organized crime, but was then used against pro-life groups. Overbroad
    laws are necessarily subject to overbroad application, if not now, then
    under future administrations, including those with less regard for
    civil liberties. That in itself can be deemed ``abusive.''
        The second consideration--that the USA PATRIOT Act is becoming an
    ever more popular tool for the Justice Department--should be of
    particular concern to limited government conservatives like myself. As
    with taxes, unduly expanded government authority is next to impossible
    to retract.
        As an illustration, I would point the Committee to the Attorney
    General's statement that, to date, Section 215 of the USA PATRIOT Act
    has been used 35 times. Note, however, that former Attorney General
    John Ashcroft declassified a memorandum to FBI Director Robert Mueller
    in September 2003 saying that Section 215 had never been used, meaning
    that those 35 court orders have all been issued in just the last year-
    and-a-half.
        Granted, three dozen court orders may be considered by some to be a
    drop in the ocean of foreign intelligence document-production orders.
    Clearly, however, the trend is toward increased, not decreased, use of
    the USA PATRIOT Act; and, given the reach of the statute, the increased
    enthusiasm for its use ought to sound alarms.
        Similarly, on the eve of the recent, April 6th Senate Judiciary
    Committee hearing, the Justice Department released statistics
    disclosing the use to date of Section 213 of the PATRIOT Act--the so-
    called ``sneak and peek'' provision that grants statutory authorization
    for the indefinite delay of criminal search warrant notification.
        Apparently, the department sought and received the authority to
    delay notice 108 times between April 2003 and January 2005, a period of
    approximately 22 months. By contrast, it sought and received this
    authority 47 times between November 2001, when the PATRIOT Act was
    enacted, and April 2003, a period of about 17 months. The 5-month
    difference in timeframe aside, these numbers clearly reveal a
    substantial increase in use.
        Moreover, Senator Arlen Specter at the April 6th Judiciary
    Committee hearing also revealed that 92--or approximately 60 percent--
    of those 155 requests were granted under the broad justification that
    notice would have the result of ``seriously jeopardizing an
    investigation,'' rather than under the more specific criteria that
    notice would endanger a person's life, imperil evidence, induce flight
    from prosecution or lead to witness tampering.
        While I understand the jurisdiction of this Committee is concerned
    primarily with foreign intelligence authorities, not with criminal
    ``sneak and peek'' warrants, I respectfully submit that you should be
    concerned when criminal investigative powers are made so broad that
    they come to resemble powers associated with foreign intelligence
    investigations. As Attorney General Gonzales informed Representative
    Flake at an April 7th hearing of the House Judiciary Committee, six
    criminal delayed-
    notice warrants under section 213 of the PATRIOT Act were approved with
    an indefinite delay (just as we had feared), and one had a delay that
    lasted fully half a year.
        Lengthy, secret surveillance, including secret ``black bag'' jobs
    (all undertaken, since 1978, with the proper approval of the Foreign
    Intelligence Surveillance Court, of course) have long been the hallmark
    of a specialized, but crucial, type of investigation--the foreign
    intelligence investigation of suspected spies and international
    terrorists--the members of this Committee understand better than
    anyone. When these intrusive powers, such as the power to enter a home
    without notifying the owner, become more common in criminal or other
    types of investigations, the American people become alarmed. The
    resulting furor risks more draconian limits on all such secret
    surveillance powers--even in the investigations where they may actually
    be needed.
        Although I acknowledge the Justice Departtnent's argument that
    Section 213 and 215 searches and surveillance represent only a fraction
    of the searches and surveillance conducted by the FBI and other
    security agencies, I remain concerned. These are extraordinary
    authorities and they are being used more frequently, and more and more
    outside their proper context of foreign intelligence and terrorism
    investigations. Any hint of such a trend should be very worrisome.
        Furthermore, I would point the committee's attention to an April 1,
    2005 Associated Press story on a recent report to Congress by the
    Assistant Attorney General for Legislative Affairs, William E.
    Moschella, disclosing the record number of Foreign Intelligence
    Surveillance Act, or FISA, wiretaps in 2004. The department requested
    and won approval of 1,754 FISA wiretaps in 2004, up from 1,724 in 2003.
        Although the marginal increase between 2003 and 2004 is small, the
    numbers still represent a 70 percent jump over the number obtained in
    2000. In 2003, moreover, the use of intelligence wiretaps outstripped
    that of normal criminal wiretaps for the first time in history. One can
    only presume that the same trend continued in 2004.
        The USA PATRIOT Act is directly relevant to the increased use of
    these intelligence wiretaps, as a number of provisions in the law made
    these wiretaps more intrusive and much easier to obtain outside of
    terrorism or espionage investigations. Section 218, for instance, which
    is set to sunset this year, now requires the investigation of foreign
    intelligence or terrorism to be a ``significant purpose,'' rather than
    the primary purpose, of the intelligence wiretap.
        Bearing these two new developments--the Mayfield revelations and
    the increased use of the PATRIOT Act--in mind, I urge the Intelligence
    Committee to look at three provisions that are of particular importance
    to your oversight mandate.
        These are Sections 206, 215 and 505, which, respectively, created
    ``roving wiretap'' authority under FISA, expanded the government's
    ability to seize personal records and other materials under foreign
    intelligence authorities, and finally removed the required ``nexus'' to
    foreign powers for the specific targets of FBI ``National Security
    letter'' subpoenas.
        First, when Congress created foreign intelligence roving wiretap
    authority in the USA PATRIOT Act, it failed to include the checks
    against abuse present in the analogous criminal statute. This is
    troubling because, as roving wiretaps attach to the target of the
    surveillance and not to the individual communications device, they
    provide a far more extensive and intrusive record of a person's
    communications.
        Accordingly, criminal roving wiretaps require agents to
    ``ascertain'' that the target, rather than a third-party, is in fact
    using the telephone before they begin recording. They also require
    that, if the FBI does not actually know the identity (or an alias) of
    the target, but knows that he or she will be using a particular phone,
    the wiretap can attach to a single phone and all its users.
        In creating roving wiretap authority under FISA, the USA PATRIOT
    Act did away with this ascertainment requirement. Then, shortly
    thereafter, the intelligence authorization bill for FY 2002 took away
    the requirement that the applicant specify either the identity of the
    target or the particular communications device.
        The result, today, is a ``John Doe'' general warrant, issued
    secretly under FISA, that permits electronic surveillance irrespective
    of the communications device being tapped or the person being
    eavesdropped on.
        The Justice Department has defended the open-ended nature of these
    ``John Doe'' wiretaps, by pointing to the requirement that they provide
    the FISA court with a physical description of the target if it cannot
    identify the communications device or target. Critics question how much
    of a safeguard this description requirement is in practice, given the
    paucity of identifying information it requires. In recognition of the
    oversight authority and security clearance of this Committee, I would
    urge its members to inquire on this point at length.
        In addition, I would urge the Committee to tighten the roving
    wiretap authority to prevent anonymous or dragnet wiretapping, and to
    use the internal safeguards in the criminal roving wiretap statute as a
    model. At the very least, a judge authorizing a roving wiretap should
    have some assurance that (a) an innocent bystander's sensitive
    communications are protected, and (b) the court order is not an
    effective general warrant to be filled in later.
        To that end, Senator Craig's SAFE Act would restore the
    ascertainment requirement and mandate that an FBI applicant for a
    national security roving wiretap specify either the actual target (or
    an alias) or the communications device to be tapped. This would, I
    believe, reserve for the government power that is more than
    sufficiently flexible to meet the demands of modern anti-terrorism and
    other anti-criminal investigations, over and above that of pre-PATRIOT
    Act authorities.
        Next, I would urge the committee to carefully review the use and
    utility of Section 215, the USA PATRIOT Act's amendment to what was
    special authority under FISA to seize rental car, self-storage and
    airline records for national security investigations.
        Prior to the USA PATRIOT Act, the underlying statute applied to
    only a limited subset of businesses, and it required a showing of
    ``specific and articulable facts'' that the target was an agent of a
    foreign power. The 2001 Act removed both these limitations, thereby
    greatly expanding the power of the government to reach to all
    ``tangible things'' (including books, records, papers, documents and
    other items), and lowering the evidentiary standard below that of
    standard, grand jury subpoenas which are pegged to at least some
    showing of relevance to criminal action by a particular person in an
    ongoing international terrorism or foreign intelligence investigation.

        Some have questioned why the section 215 power has become known as
    the ``library provision,'' when libraries were not mentioned and given
    that it covers so much beyond library records or other information
    maintained by libraries. The answer is simple. Prior to the USA PATRIOT
    Act, library and bookseller records were not covered by this power,
    which then only permitted an order for the records of certain business.
    Now, library records are covered--as are all other records and tangible
    items, including membership lists of political organizations, gun
    purchase records, medical records, genetic information, and the list
    goes on.
        Section 215 also comes with a sweeping gag order, without any
    explicit provision for a recipient to even consult with counsel; and if
    certification is made that the records are sought for any intelligence
    or terrorism inquiry, the judge has no power under the law to challenge
    that certification. Finally, and crucially, this is not like a grand
    jury subpoena, because a recipient has no explicit right to move to
    have it quashed in court, and failure to comply with a 215 order is
    presumably a serious offense.
        Accordingly, critics of this section rightly charge that its open-
    ended scope and lack of meaningful judicial review open the door to
    abuses, and I agree. At the very least, Congress must restore the
    particularity requirement for the target of a Section 215 order, and
    should institute additional reporting requirements (subject, of course,
    to appropriate classification measures). Here again, such a modest
    limitation, consistent with traditional Fourth Amendment principles,
    would pose no significant hardship to Federal agents. Federal judges
    would, as they have for ages past, continue to approve virtually all
    such applications properly supported and applied for by government
    agents.
        The SAFE Act, among other new procedural safeguards, would restore
    the specific and articulable facts standard and provide a recipient
    with at least some outlet to challenge an unreasonable order. It would
    also require notice before any information seized pursuant to Section
    215 of the USA PATRIOT Act is introduced as evidence in any subsequent
    proceeding. These are ``burdens'' the government has always been able
    to meet and which have never been seen as any real impediment to the
    government's ability to secure necessary evidence.
        I welcome the Attorney General's recent statements, agreeing to
    some changes to Section 215 that would make explicit a recipient's
    right to challenge the order and the secrecy provision, and would make
    explicit a recipient's right to consult an attorney. The Attorney
    General is certainly right to agree to changes in this poorly drafted
    provision, but, unfortunately, it remains unclear that the
    Administration will agree to a standard for a Section 215 order
    (individual suspicion) that will truly protect privacy. I strongly urge
    you to adopt the SAFE Act's standard in this regard.
        Finally, I would urge the Committee to review Section 505 of the
    USA PATRIOT Act, which removed the requirement that the FBI self-
    certify that it has ``specific and articulable facts'' that the
    individual target of an administrative subpoena or ``national security
    letter'' (NSL), is an agent of a foreign power.
        Prior to the USA PATRIOT Act, the FBI could use NSLs, which serve
    as non-judicial subpoenas issued at the sole discretion of the FBI, to
    demand business, Internet, credit and telephony records, among other
    things. Before doing so, agents had to at least certify internally that
    the NSL pertained to a particular individual, who was acting on behalf
    of a foreign power.
        The USA PATRIOT Act effectively allows the FBI to issue NSLs for
    certain financial, transactional, electronic communications and credit
    records without any individualized suspicion. It changed the standard
    again to relevance to any investigation. The SAFE Act treats NSLs much
    like it does Section 215 orders--it maintains the expansive scope of
    the law, but includes the appropriate, minimal standard of individual
    suspicion; provides an explicit right to challenge the order; and
    retains the secrecy requirement, all of which take into account the
    sensitivity of national security investigations without taking away any
    necessary government powers.
        In short, the SAFE Act simply modifies the powers expanded by the
    USA PATRIOT Act, by making the government's exercise thereof subject to
    the basic Fourth Amendment notion that before the government
    ``pierces'' an individual's right to privacy of information that can be
    used as evidence against them, it must have a reasonable suspicion that
    the person has either violated the law or is serving as an agent of a
    foreign power. The government has not shown any reason why it cannot
    meet such a nominal burden, and the Fourth Amendment requires it do so.
        I believe, especially given that NSLs currently have no judge in
    the picture at all, that the SAFE Act's approach is entirely
    appropriate.
        The committee should also note that Section 505(a) of the USA
    PATRIOT Act has been at the center of an ongoing bit of confusion about
    a 2004 court decision dealing with NSLs and whether that court decision
    involved the 2001 Act or some other law. If I may, I would like to take
    this opportunity to make sure the record is accurate.
        In September 2004, Judge Victor Marrero of the United States
    District Court for the Southern District of New York issued a 50-page
    ruling in the case of Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y.
    2004). In it, he struck down 18 U.S.C. Sec. 2709, the statute
    permitting the issuance of NSLs for customer records from Internet,
    telephone and other electronic service providers.
        The judge struck the provision in its entirety, including the
    amendments made by Section 505(a) of the PATRIOT Act. Accordingly, the
    judge's decision struck down all of Section 505(a) of the PATRIOT Act,
    but also struck down the rest of the NSL statute with it.\2\
    ---------------------------------------------------------------------------
        \2\ Judge Marrero's decision did not affect the rest of Section
    505, which amended a number of different statutes that permit the FBI
    to issue NSLs for the production of other kinds of records.
    ---------------------------------------------------------------------------
        The judge ruled on two primary grounds--that the Section 2709 NSL
    is unreviewable, and that the attached gag order forever barred a
    recipient from telling anyone anything about the NSL. As the judge
    noted repeatedly in his opinion, the USA PATRIOT Act did remove the
    requirement of individual suspicion from the statute. For instance, he
    rests a large part of his First Amendment findings on the FBI's post-
    PATRIOT Act ability to suppress anonymous speech using an NSL.
        Judge Marrero proffers two hypotheticals on that score, neither of
    which would have been possible prior to the USA PATRIOT Act unless the
    FBI had specific facts that the individual target was an agent of a
    foreign power. The FBI could use an NSL, the judge notes, to disclose
    the identity of an anonymous ``blogger'' critical of the government, or
    to discover the identity of everyone who has an e-mail account through
    a political campaign.
        A number of lawmakers and other interested parties continue to
    claim, however, that Doe v. Ashcroft did not strike down a provision of
    the USA PATRIOT Act because Section 2709, prior to the Act, did not
    contain a right to challenge and contained a gag order. This is simply
    not true. First, whenever a statute is struck down in its entirety any
    then-operative amendments are also rendered unconstitutional. It is
    hard to see how a decision that strikes down every word of one section
    of a law can be said not to ``involve'' that law. Second, the USA
    PATRIOT Act is the 800-pound gorilla in the Marrero opinion, and
    clearly factored into his reasoning.
        In sum, then, I urge the Committee to take into account the recent
    developments in the USA PATRIOT Act debate, most notably the Mayfield
    revelations and the indications that the Justice Department is turning
    to the PATRIOT Act more and more.
        I also respectfully ask that the Committee look closely at the
    three most contentious PATRIOT Act amendments to foreign intelligence
    law--Sections 206, 215 and 505--and urge individual members to co-
    sponsor S. 737, the Security and Freedom Enhancement Act of 2005, which
    already enjoys bipartisan support.
        As evidenced by the circumstances surrounding the founding of this
    very Committee, foreign intelligence law, especially as it applies
    domestically, poses serious risks to basic constitutional freedoms.
    While some hail the provisions in the USA PATRIOT Act as breaking down
    an artificial ``wall'' or a ``technicality'' between the gathering and
    use of evidence in criminal cases--matters necessarily subject to the
    Bill of Rights--and the gathering of foreign intelligence--
    appropriately not subject in its gathering to the limitations in the
    Bill of Rights--the fact is the artificial ``wall'' that applied
    different standards to the gathering and use of each category of
    information, is neither artificial nor a technicality: it is the
    Constitution of the United States of America. In treating them as one
    and the same in the name of fighting ``terrorism'' or any other threat
    posed to the good order and safety of our society, we show disdain for
    the fundamental underpinning of our constitutional form of government
    and the freedoms it enshrines.
        Doing otherwise will result in an historical pattern where such
    laws are made ever more secret, ever more unchecked and ever more
    susceptible to abuse; and each subsequent national ``crisis'' forces
    the shades drawn tighter. It is a slippery slope, down which this
    Committee, this year in consideration of whether to sunset certain
    provisions in the USA PATRIOT Act and in deciding whether to place very
    modest and limited--but fundamentally important--restraints on some of
    the law's provisions, can help avoid.
        Thank you again for this opportunity to comment on the vitally
    important deliberations of this Committee. I remain available to
    provide whatever further information the Committee might request.
                                       The Heritage Foundation,
                                        Washington, DC, April 18, 2005.
    Hon. Pat Roberts, Chairman,
    Senate Select Committee on Intelligence,
    Senate Hart Office Bldg.,
    Washington, DC.

    Hon. John D. Rockefeller IV, Vice Chairman,
    Senate Select Committee on on Intelligence,
    Senate Hart Office Bldg.,
    Washington, DC.
        Dear Chairman Roberts and Vice Chairman Rockefeller: We understand
    that the Senate Select Committee on Intelligence will be conducting an
    oversight hearing on April 19th concerning the reauthorization of
    certain provisions of the Patriot Act. We write to provide you with our
    views concerning that question.
        In general, our view is that too much of the debate has focused on
    the Act not as it truly is but as people perceive it to be. Most of the
    proposals for reform mistake the appearance of potential problems and
    abuse (the myth) with the reality of no abuse at all. To take but one
    example, the Inspector General for the Department of Justice has
    consistently reported that there have been no instances in which the
    Patriot Act has been invoked to infringe on civil rights or civil
    liberties. See Report to Congress on Implementation of Section 1001 of
    the USA Patriot Act (March 2005); see also ``Report Finds No Abuses of
    Patriot Act,'' Wa. Post at A2 (Jan. 28, 2004).
        Thus, while we acknowledge that any expansion of governmental power
    comes with the potential for abuse, that potential does not, in our
    judgment warrant hesitancy absent some evidence of real abuse. In
    short, the case for change has not been made.
        The Heritage Foundation has conducted extensive research on the
    Patriot Act that provides greater detail on this subject. All of our
    research is summarized
    in a memorandum we published entitled ``The Patriot Act and Related
    Provisions: The Heritage Foundation's Research'' (http://
    www.heritage.org/Research/HomelandDefense/wm612.cfm).
        Most saliently for the Committee's consideration we would
    respectfully call your attention to two separate publications that
    contain much of our substantive analysis (copies of which we enclose
    with this letter):
         Rosenzweig, Carafano & Kochems, eds. ``The Patriot Act
    Reader,'' (also available at http://www.heritage.org/Research/
    HomelandDefense/The-Patriot-Act-Reader.
    cfm)
         Meese & Rosenzweig, ``The SAFE Act Will Not Make Us
    Safer,'' (also avail-
    able at http://www.heritage.org/Research/HomelandDefense/lm10.cfm)
        We would ask that you make this letter and our publications a part
    of the record of the Committee's hearing. We thank you for the
    opportunity to share with you our views.
                Sincerely yours,
                                               Edwin Meese III,
                                    Ronald Reagan Distinguished Fellow.

                                               Paul Rosenzweig,
                                          Senior Legal Research Fellow.
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                       Prepared Statement of Orin S. Kerr

        Mr Chairman, Members of the Committee:
        My name is Orin Kerr, and I am an Associate Professor at George
    Washington University Law School. It is my pleasure to submit this
    written testimony concerning the USA Patriot Act. My testimony will
    contain three parts: first, a brief explanation of my view that the
    public debate over the Patriot Act largely has misunderstood the Act;
    second, an overview of the legal issues raised by foreign intelligence
    surveillance; and third, an analysis of the constitutional issues
    raised by orders to compel information such as library records,
    bookstore records, and Internet communications.

                     I. THE DEBATE OVER THE USA PATRIOT ACT

        The public debate over the USA Patriot Act has been based on a
    number of major misunderstandings about the scope and effect of the
    law. Millions of Americans believe that the Patriot Act profoundly
    reshaped the balance between privacy and security in a post-9/11 world.
    That is simply wrong. The truth is that the law is much more modest:
    Most of the Patriot Act consists of minor adjustments to a set of
    preexisting laws, such as the Foreign Intelligence Surveillance Act and
    the Electronic Communications Privacy Act. The Patriot Act left the
    basic framework of preexisting law intact, offering mostly minor
    changes to the set of statutory privacy laws Congress first enacted in
    the 1970's and 1980's. I explained this in greater depth in a law
    review article published in January 2003, and stand by that view today.
    See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act:
    The Big Brother That Isn't, 97 Northwestern University Law Review 607
    (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract--
    id=317501.
        Fortunately, the gap between the perception and the reality of the
    Patriot Act is beginning to narrow. In recent months, critics of the
    Patriot Act have come to acknowledge that most of the Act is consensus
    legislation that does not raise civil liberties concerns. For example,
    in an April 5, 2005 press release the American Civil Liberties Union
    acknowledged that:

            Most of the voluminous Patriot Act is actually unobjectionable
            from a civil liberties point of view and . . . the law makes
            important changes that give law enforcement agents the tools
            they need to protect against terrorist attacks. A few
            provisions . . . must be revised. . . .

        See Bipartisan Legislation Would Fix Worst Parts of Patriot Act
    While Maintaining Key Law Enforcement Powers, available at http://
    www.aclu.org/SafeandFree/SafeandFree.cfm? ID=17935&c=206.
        Although it is unfortunate that this acknowledgment appeared as
    late as it did, the ACLU's recognition that the Patriot Act debate is
    actually quite narrow is an important step to understanding Patriot Act
    reform. It reveals that the differences among pre-Patriot Act law, the
    law under the Patriot Act, and proposals to reform the Patriot Act tend
    to be relatively small. Of course, any legislative proposals that
    impact government power to conduct criminal or intelligence
    surveillance must be treated with the greatest consideration and care.
    Finding the right balance that both gives the government the power it
    needs to investigate terrorist threats and preserves our precious civil
    liberties is a very difficult task. At the same time, the effect of the
    Patriot Act and the scope of proposed amendments to it are much
    narrower than press accounts would lead one to believe.

     II. OVERVIEW OF THE ISSUES RAISED BY THE USA PATRIOT ACT AND FOREIGN
                           INTELLIGENCE SURVEILLANCE

        I will now turn to an overview of the issues raised by the law of
    intelligence surveillance to help put the debate in better perspective.
    At the most basic level, any modern legal regime that allows the
    government to investigate crime or terrorism must address a number of
    basic methods for acquiring information. In particular, the law must
    cover three basic types of authorities:
        (1) Authority to conduct physical searches to retrieve physical
    evidence or collect information.
        (2) Authority to compel third parties to produce physical evidence
    or disclose information.
        (3) Authority to conduct real-time monitoring over communications
    networks.
        In the case of criminal investigations, the legal regime that
    covers these authorities is well- established. The first authority is
    governed by the traditional Fourth Amendment warrant requirement. The
    police must have a search warrant based on probable cause to enter a
    home or business unless a person with apparent or actual authority over
    the place consents, exigent circumstances exist, or another exception
    to the warrant requirement applies. The second authority is governed by
    the Fourth Amendment rules governing subpoenas. Although many different
    types of subpoenas exist, and the rules can vary slightly depending on
    the type of subpoena, the general rule is that the police can compel
    third parties to disclose information in their possession using a
    subpoena. A subpoena can be issued under a wide range of circumstances:
    the information need only be relevant to the government's
    investigation, and compliance with the subpoena cannot be overly
    burdensome to the subpoena recipient. Finally, the third authority is
    regulated primarily by statutory law. Two different laws apply: the
    interception of contents such as phone calls and
    e-mails is regulated by the Wiretap Act, 18 U.S.C. Sec. Sec. 2510-22,
    and the collection of non-content information such as phone numbers
    dialed and e-mail addresses is governed by the Pen Register statute, 18
    U.S.C. Sec. Sec. 3121-27. The former requires the law enforcement to
    obtain a ``super warrant'' based on probable cause unless an exception
    applies, while the latter permits law enforcement monitoring of non-
    content information under a relevance court order something like a
    subpoena.
        The law governing monitoring for intelligence purposes is somewhat
    different than the law governing evidence collection for criminal
    cases. The Fourth Amendment's requirements are much less clear--and
    generally less strong--than in the routine criminal context. As a
    general matter, the few courts that have confronted how the Fourth
    Amendment applies to intelligence collection have held that the rules
    are somewhat similar to the rules for criminal investigations but also
    more flexible. When the Fourth Amendment applies, information and
    evidence collection must be reasonable in light of the countervailing
    demands and interest of intelligence collection. See United States v.
    United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed
    Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This
    legal framework appears to place Congress in the primary role of
    generating the law governing intelligence collection, with the Fourth
    Amendment serving as a backstop that reviews Congress's approach to
    ensure that it is constitutionally reasonable.
        Congress has responded to the challenge by passing the Foreign
    Intelligence Surveillance Act, also known as ``FISA.'' FISA attempts to
    create a statutory regime for intelligence monitoring that largely
    parallels analogous rules for gathering evidence in criminal cases.
    FISA covers the three basic authorities as follows: First, 18 U.S.C.
    Sec. Sec. 1821-29 covers the authority to conduct physical searches, a
    parallel to the provision of the Federal Rules of Criminal Procedure
    that allows investigators to obtain a search warrant in criminal cases.
    Second, 18 U.S.C. Sec. Sec. 1861-62 and 18 U.S.C. Sec. 2709 covers
    authority to compel third-parties to disclose records and physical
    evidence, a parallel to the provision of the Federal Rules of Criminal
    Procedure that allows the issuance of subpoenas in criminal
    investigations. Third, 18 U.S.C. Sec. Sec. 1801-22 and 18 U.S.C.
    Sec. Sec. 1841-45 cover the authority to conduct real-time monitoring
    over communications networks. Specifically, Sec. Sec. 1801-22 cover the
    authority to obtain the contents of communications, a parallel to the
    Wiretap Act used in criminal cases, and Sec. Sec. 1841-45 cover the
    authority to obtain non-content information, a parallel to the Pen
    Register Statute used in crime investigations.
        The debates over the FISA-related provisions of the Patriot Act
    focus primarily on the second type of authority: powers to compel third
    parties to produce physical evidence or disclose information.
    Specifically, critics object to the weak privacy regulations found in
    provisions such as Section 215 of the Patriot Act that address the
    government's power to compel third parties to produce physical evidence
    or disclose information in intelligence cases. For the most part, these
    weak privacy regulations match the standards applied in the analogous
    criminal context. For example, the Supreme Court has held that a grand
    jury subpoena can be issued if the order to compel seeks information
    that may be relevant to a criminal investigation. See United States v.
    R. Enterprises, Inc., 498 U.S. 292 (1991). This authority ``paints with
    a broad brush'' by design, permitting subpoenas to be issued ordering
    third parties to disclose physical evidence and information ``merely on
    suspicion that the law is being violated, or even just because . . .
    assurance [is sought] that it is not.'' Id. at 297 (quoting United
    States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Supreme
    Court has justified this low standard on the ground that orders to
    compel evidence from third parties are preliminary investigative tools
    designed to determine if more invasive forms of surveillance are
    necessary. ``[T]he Government cannot be required to justify the
    issuance of a grand jury subpoena by presenting evidence sufficient to
    establish probable cause because the very purpose of requesting the
    information is to ascertain whether probable cause exists.'' See R.
    Enterprises, Inc., 498 U.S. at 297.
        The key question that the Committee must consider is whether a
    higher standard is appropriate for orders to compel in the context of
    intelligence investigations. The environment of intelligence
    investigations is somewhat different than the environment of criminal
    investigations. For example, subpoenas can be easily challenged and can
    be complied with under few time pressures, both of which are important
    explanations for the light legal regulations of subpoenas. See United
    States v. Dionisio, 410 U.S. 1, 10 (1973). At the same time, the harm
    that intelligence investigations seek to avoid is on average greater
    than the harm a typical criminal investigation seeks to deter. In
    addition, it is worth noting that Congress has opted to provide special
    privacy protections to protect some types of Internet communications
    and stored e-mails, raising the privacy protection beyond that provided
    by subpoenas. See 18 U.S.C. Sec. 2703. Perhaps Congress should consider
    a similar approach in the intelligence context, permitting subpoena-
    equivalents to be used in some contexts but higher-threshold court
    orders to be used in other contexts that raise more substantial privacy
    concerns.

    III. CONSTITUTIONALITY OF ORDERS TO COMPEL LIBRARY RECORDS AND INTERNET
                                 COMMUNICATIONS

        The statutory regulation of orders to compel evidence from third
    parties is particularly important because the Fourth Amendment offers
    little in the way of regulation of such orders. In this final section,
    I wish to explain the constitutionality of orders to compel,
    specifically in the context of library records and Internet
    communications obtained from third party providers. My conclusion is
    that orders to compel the disclosure of evidence from third parties
    ordinarily do not require probable cause. Under current law, for
    example, probable cause is not required to compel libraries to compel
    library records.
        The constitutionality of orders to compel evidence without probable
    cause can be justified on two alternative grounds. The first is that
    the disclosure of information to third parties has been held to
    eliminate Fourth Amendment protection in that information. As the
    Supreme Court stated in United States v. Miller, 425 U.S. 435, 443
    (1976):

              This Court has held repeatedly that the Fourth Amendment does
            not prohibit the obtaining of information revealed to a third
            party and conveyed by him to Government authorities, even if
            the information is revealed on the assumption that it will be
            used only for a limited purpose and the confidence placed in
            the third party will not be betrayed.

        Under the disclosure rationale of Miller, third parties normally
    can be ordered to disclose records held by them without implicating the
    Fourth Amendment on the theory that the information was disclosed to
    them in the course of their coming into possession of the information.
        Applying this rationale, courts have uniformly held that an
    individual does not retain Fourth Amendment rights in non-content
    records that reveal how that individual used an account or service
    provided by a third party. A person may reasonably believe that the
    third party will not disclose the information to the police, but this
    alone does not create a Fourth Amendment ``legitimate'' or
    ``reasonable'' expectation of privacy in the information. For example,
    a person does not retain a reasonable expectation of privacy in the
    information the telephone company retains about how a particular
    telephone account was used. See United States v. Fregoso, 60 F.3d 1314,
    1321 (8th Cir. 1995). Similarly, a customer does not retain a
    reasonable expectation of privacy in the information that Western Union
    retains about how a particular Western Union account was used. See In
    re Grand Jury Proceedings, 827 F.2d 301, 302-03 (8th Cir. 1987).
        The rationale also applies to library records. For example, in
    Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983), a library challenged a
    subpoena obtained by a State investigator who wanted to gather library
    circulation records to see if anyone had checked out books relating to
    cattle mutilation. The Iowa Supreme Court rejected the argument that an
    ordinary subpoena could not be used to collect library records:

              It is true the State's investigation was only preliminary;
            and as Brown and the library board argue, no suspects were
            identified nor was the search for information limited to any
            named library patrons. This does not diminish the need for the
            information, however, as we assume the whole purpose in
            examining the record was to gain enough information so that the
            investigation could be narrowed.
              The State's interest in well-founded criminal charges and the
            fair administration of criminal justice must be held to
            override the claim of privilege here. Brown and the library
            board have cited no cases to us which have reached a contrary
            conclusion under similar facts, and we have found none. Id. at
            513.

        Although I have been unable to find any cases applying the Fourth
    Amendment to bookstore records, the same analysis would seem to apply
    to sales records kept by bookstores. To be sure, some State courts have
    interpreted their own State constitutional provisions to create greater
    privacy protections to regulate State police officers in the context of
    bookstores. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44
    P.3d 1044 (Colo. 2002). But as far as I am aware, no court has held
    that a person retains a reasonable expectation of privacy in their
    bookstore customer records under the Fourth Amendment. As a general
    matter, the Fourth Amendment rules that apply to bookstores are the
    same as the Fourth Amendment rules that apply to other spaces. See,
    e.g., Maryland v. Macon, 472 U.S. 463 (1985).
        Finally, the same rationale applies to non-content Internet account
    records. Non-content Internet account records are disclosed to the ISP,
    and are not protected under the Fourth Amendment. See United States v.
    Hambrick, 55 F. Supp. 2d 504, 508 (W.D. Va. 1999), aff 'd, 225 F.3d 656
    (4th Cir. 2000) (unpublished opinion); United States v. Kennedy, 81 F.
    Supp. 2d 1103, 1110) (D. Kan. 2000) (same).
        This does not mean an individual can never have a reasonable
    expectation of privacy in information held by third parties. Existing
    caselaw focuses on whether the information transferred to the third-
    party is disclosed to the third party or is sealed away from them. If a
    person gives third party a sealed container to hold on their behalf,
    then that person retains a reasonable expectation of privacy in the
    unexposed contents of that sealed container. See, e.g., United States
    v. Most, 876 F.2d 191, 197-98 (D.C. Cir. 1989); United States v. Barry,
    853 F.2d 1479, 1481-83 (8th Cir. 1988). For that reason, a person
    retains a reasonable expectation of privacy in the contents of sealed
    postal letters or packages sent via UPS or FedEx until the point that
    the letters and packages arrive at their destination. See Ex Parte
    Jackson, 96 U.S. (6 Otto) 727, 733 (1877); Walter v. United States, 447
    U.S. 649, 651 (1980).
        It is unclear under current law how the sealed/unsealed distinction
    applies to disclosed information such as Internet communications,
    particularly in the context of the contents of Internet communications.
    Courts may conclude that by sending an e-mail, the user discloses that
    e-mail to an ISP under Miller. On the other hand, courts may conclude
    that the contents of e-mail can be analogized to the contents of a
    sealed letter, and thus retain Fourth Amendment protection. At the
    current time, all we know is that the Fourth Amendment does not protect
    non-content information held by ISPs, and may or may not protect
    content information held by ISPs. Notably, this uncertainty is part of
    what led Congress to impose greater statutory protections in the case
    of e-mail contents sought in criminal investigations under 18 U.S.C.
    Sec. 2703(a).
        Finally, existing cases suggest that a subpoena or equivalent order
    to compel without probable cause may be constitutionally sufficient
    even if a suspect retains a reasonable expectation of privacy in the
    information. The case here are sparse, as the courts have decided few
    cases in which the government ordered a third party to disclose sealed
    packages. But the few cases on this question suggest that the
    government can subpoena information even if that information is
    protected by a reasonable expectation of privacy; no probable cause
    warrant is required. See United States v. Barr, 605 F. Supp. 114, 119
    (S.D.N.Y. 1985) (permitting subpoena served on third-party mail service
    for undelivered mail); United States v. Schwimmer, 232 F.2d 855, 861-63
    (8th Cir. 1956) (permitting subpoena served on third-party storage
    facility for private papers in facility's possession); Newfield v.
    Ryan, 91 F.2d 700, 702-05 (5th Cir. 1937) (permitting subpoena served
    on telegraph company for copies of defendants' telegrams).
        In light of these cases, current law points to the use of orders to
    compel evidence as being constitutional in the Fourth Amendment in most
    if not all cases without a requirement of probable case. The most
    difficult and least clear cases are orders to compel content records,
    such as the contents of e-mails and sealed letters. In most
    circumstances, however--and clearly in the case of non-content records
    such as library records--orders to compel evidence do not require
    probable cause under the Fourth Amendment.

                                   __________

            Prepared Statement of Kate Martin, Director, Center for
                           National Security Studies

        While effective counterterrorism and counterintelligence require
    that agencies share relevant information, sections 203 and 905 of the
    USA Patriot Act fail to address the real difficulties in such sharing:
    How to determine what information is useful for counterterrorism and
    counterintelligence; how to determine what information would be useful
    if shared; how to identify whom it would be useful to share it with;
    and how to ensure that useful and relevant information is timely
    recognized and acted upon. To the contrary, the approach of the Patriot
    Act--which can fairly be summarized as share everything with everyone--
    can be counted on to obscure and make more difficult the real challenge
    of information sharing.
        Widespread and indiscriminate warehousing of information about
    individuals violates basic privacy principles. Amending the Patriot Act
    to require targeted rather than indiscriminate information sharing
    would restore at least minimal privacy protections and substantially
    increase the likelihood that the government could identify and obtain
    the specific information needed to prevent terrorist acts.
        Section 203 of the USA Patriot Act allows unrestricted sharing of
    sensitive information gathered by law enforcement agencies with the
    CIA, the NSA, immigration authorities, the Secret Service, and White
    House officials. Such sharing is not limited to officials with
    responsibility for terrorism matters, nor are there any safeguards
    regarding the subsequent use or dissemination of such information by
    such officials (so long as the use is within the official duties of the
    recipient). Section 203 allows the sharing of all information that is
    in any way related to any American's contacts with or activities
    involving any foreign government, group, or individual. (Section 203
    allows the sharing of ``foreign intelligence information,'' ``foreign
    intelligence'' and ``counterintelligence.'' The definition of ``foreign
    intelligence information'' included in section 203 is tied to threats
    and potential threats of terrorism, sabotage and clandestine
    intelligence-gathering, the national defense and foreign affairs,
    Sec. 203(a)(1)(iv), 203(b)(2)(C), and 203(d)(2). However, the
    definitions of ``foreign intelligence'' and ``counterintelligence'' are
    not even that limited.) Section 203 applies to all intercepts of
    telephone conversations. It applies to all confidential information
    obtained by a grand jury, which has the power to subpoena virtually any
    records or testimony from any person merely at the request of a
    prosecutor.
        Section 905 overlaps with section 203, but makes such sharing
    mandatory. It requires the Attorney General and the head of any other
    law enforcement agency to ``expeditiously disclose'' to the Director of
    Central Intelligence (and now the new Director of National
    Intelligence) all ``foreign intelligence'' acquired during a law
    enforcement investigation. The Attorney General may exempt only those
    classes of foreign intelligence whose disclosure ``would jeopardize an
    ongoing law enforcement investigation or impair other significant law
    enforcement interests.'' Section 905 suffers from the same defects as
    section 203: it covers the most sensitive grand jury information and
    wiretap intercepts regardless of relevance, and contains no limits on
    the use or redisclosure of the information by intelligence agency
    staff. ``Foreign intelligence'' includes anything related to any
    American's contacts with a foreign government, group or person.
        The Act sets no standards or safeguards for use of this
    information. While it requires the Attorney General to issue rules,
    those rules simply require that information concerning citizens and
    legal permanent residents be marked as such. Existing intelligence
    agency protocols are so broad as to allow intelligence agencies to keep
    all information obtained under section 203 or 905. See EO 12333 section
    2.3.
        Two and a half years after the passage of the Patriot Act, the 9/11
    Commission staff confirmed that ``there is no national strategy for
    sharing information to counter terrorism.'' The Department of Justice
    has yet to explain how these Patriot Act provisions will focus the
    bureaucracies on identifying what information is useful to locate
    actual terrorists, analyzing that information, and determining what
    actions to take based on the information. To the contrary, the
    provisions essentially direct agencies simply to dump massive volumes
    of unanalyzed information on other agencies. They facilitate the
    construction of a vast intelligence data base on Americans. And they
    effect an extraordinary change in the capability and authority of the
    foreign intelligence agencies, including the CIA, to keep information
    on Americans.
        Congress should amend both sections 203 and 905 to provide some
    simple privacy safeguards, which will also ensure that information
    sharing is done in a more effective way.
        Current law offers no protections against abuse. Too much
    information may be turned over to the CIA and others, including
    virtually all information about any American's contacts with any
    foreigner or foreign group, including humanitarian organizations, for
    example. Existing rules provide virtually no protection against
    authorized government compilation of dossiers on millions of Americans
    and use of those dossiers in intelligence operations.
        Congress could provide some modest protections. The amendments
    proposed below--limiting shared information to information relating to
    terrorism or counterintelligence, limiting its dissemination to
    officials working on those matters, requiring judicial approval, and
    requiring marking to prevent redissemination--would not interfere with
    the needs of counterterrorism or counterintelligence.
        While the Justice Department claims that any modifications to the
    information-sharing provisions would mean that agencies ``would be
    required to identify proper legal authority prior to sharing or
    disseminating information outside of the collecting agency or
    community,'' such objection misses the point. See Justice Department,
    USA Patriot Act: Sunsets Report, April 2005. The proposed amendments
    would not change the legal authorities for sharing information, they
    would simply help ensure that information is actually analyzed and
    determined to be useful to counterterrorism and counterintelligence.
    None of the uses of information outlined by the Justice Depaitinent in
    its Patriot Act report would be prohibited because all of them relate
    to terrorism.
        But Congress should act to ensure that those agencies which first
    obtain information and are best positioned to understand its context do
    the work necessary to determine whether the information may be useful
    or relevant to other agencies. When in doubt, they should of course err
    on the side of transferring the information, but they should exercise
    some judgment in doing so. Ideally, they should describe the potential
    usefulness of the information when distributing it to other agencies.
    We note that intelligence officials are already reporting that under
    the current regime there is too much indiscriminate sharing of useless
    information.
        Specifically Congress should consider the following modifications.
        1. When information is gathered pursuant to judicial power, the
    court's approval should be required before transferring the information
    to intelligence agencies, White House personnel, or other law
    enforcement agencies in order to ensure that there is some real need
    for more widely distributing the information. Accordingly, court
    approval for sharing criminal wiretap intercepts of conversations and
    e-mail and secret grand jury information should be obtained, except
    when there is no time to obtain such approval in order to prevent an
    imminent terrorist act or the flight of a suspect.
        2. The information that should be shared with the intelligence
    agencies, the White House, etc., should be limited to information
    relevant to terrorism or counterintelligence, rather than all
    information concerning any foreign contacts, the vast majority of which
    have nothing to do with terrorism. If the information transferred by
    law enforcement to the intelligence community were limited to ``foreign
    intelligence information'' as that term is defined in the Foreign
    Intelligence Surveillance Act, it would offer some protection against
    the CIA and others constructing a data base on the domestic activities
    of Americans. This safeguard was included in the Patriot Act, H.R. 2975
    (107 Cong.), as approved by the House Committee on the Judiciary in
    October 2001.\1\
    ---------------------------------------------------------------------------
        \1\ See, H.R. REP. No. 236, 107th Cong., 1st Sess., pt. 1(2001), at
    8, available at http://judiciary.house.gov/legacy/107-236p1.pdf.
    ---------------------------------------------------------------------------
        3. The information should be shared only with those officials who
    are directly involved in terrorism or counterintelligence.
        4. There should be procedures for marking and safeguarding the
    shared information so these limits can be enforced and to protect
    against the redissemination of the information beyond these limits,
    much as classified information is marked and stored. Confidential grand
    jury information should be marked as such and intercepts of Americans'
    conversations and e-mails should be marked to prohibit indiscriminate
    circulation.

                                   CONCLUSION

        One of the most basic protections against government abuses has
    been the principle that a government agency should only collect
    information about individuals that it needs for a specific and
    articulated purpose, should use it only for the purposes for which it
    was collected, should not keep it any longer than necessary, and should
    not share it with other government agencies except for very good
    reasons. The Patriot Act violates that principle by adopting the
    approach that myriad government agencies should collect, share and
    maintain forever as much information on as many people as possible.
    Requiring the minimal protection that the government articulate why
    specific information could be useful for counterterrorism or
    counterintelligence before widely distributing it would help keep the
    government focused on the information needed to locate the next
    attackers, instead of ware-
    housing personal information about millions of Americans.

        Chairman Roberts. I now recognize the distinguished Vice
    Chairman.
        Vice Chairman Rockefeller. Thank you, Mr. Chairman. I will
    follow the same procedure you have. I think it's a wise one.
    I'm ready to hear the witnesses.
        [The prepared statement of Vice Chairman Rockefeller
    follows:]
       Prepared Statement of Hon. John D. Rockefeller III, Vice Chairman
        This week and next the Committee will hold two open hearings on the
    Patriot Act.
        The Patriot Act, which was enacted soon after the attacks of
    September 11, 2001, contains 10 titles. Nine of those titles are
    permanent law.
        One title of the Patriot Act--Title II on Enhanced Surveillance
    Procedures--has 16 provisions that will cease to have effect, or
    sunset, on December 31, 2005. In addition, the recently enacted
    Intelligence Reform Act authorizes the use of the Foreign Intelligence
    Surveillance Act in the case of so-called ``lone wolf '' terrorists.
    That new authority is also subject to sunset at the end of this year.
        Congress should resolve two questions this year: first, on the
    basis of experience or further reflection since September 11, 2001,
    should any of the expiring authorities be amended; and second, as
    originally enacted or as amended, should they be made permanent?
        The process of evaluation of the expiring provisions is under way.
    In response to a request from Senator Feinstein, the Department of
    Justice has submitted to Congress a lengthy ``Sunsets Report'' which
    sets forth a case for each of the 16 provisions of the Patriot Act that
    will sunset at the end of this year.
        The Judiciary Committee has begun a series of Patriot Act hearings.
    It heard 2 weeks ago from the Attorney General and the FBI Director,
    something our Committee will do next week on April 27th. We have been
    informed that the Judiciary Committee plans to hold an additional
    hearing in May.
        Members of the Senate have introduced bills that propose amendments
    to expiring Patriot Act provisions. There are also proposals to amend
    other provisions of the Act. On our Committee, Senator Corzine has
    joined a bipartisan group of 11 Members in cosponsoring S. 737, the
    ``Security and Freedom Enhancement Act,'' a bill introduced by Senator
    Craig to amend several authorities in the Patriot Act. Senators Wyden
    and Corzine are cosponsors of S. 317, the ``Library, Bookseller, and
    Personal Records Privacy Act.''
        In short, Congress has begun a serious effort to examine the
    expiring provisions of the Patriot Act. There were good reasons to act
    quickly after the September 11 attacks. Because of the need for speed
    then, it was wise to require, through a sunset provision, that there be
    a further evaluation of portions of the Act after several years of
    experience.
        We now have an opportunity to assess carefully what surveillance
    and search powers are needed in gathering intelligence about terrorism
    and other threats. I look forward to hearing testimony and working with
    colleagues on our Committee and on the Judiciary Committee. Our goal,
    of course, should be to ensure that there is a sound, long-term basis
    for the effective gathering of intelligence in a manner consistent with
    our Constitution and values.
        Our panel today will assist us in beginning that effort. The
    members of the panel--Jim Dempsey of the Center for Democracy and
    Technology, Heather Mac Donald of the Manhattan Institute for Policy
    Research, and Gregory Nojeim of the ACLU are all distinguished
    participants in the public debate about the Patriot Act. I look forward
    to their testimony today and to next week's testimony from the
    Administration.
        In addition, the Committee has received four statements for the
    record: (1) from former Attorney General Edwin Meese and Paul
    Rosenzweig of the Heritage Foundation; (2) from former Congressman Bob
    Barr, chairman of a recently created coalition named Patriots to
    Restore Checks and Balances; (3) from Kate Martin, Director of the
    Center for National Security Studies; and (4) Orin Kerr, Associate
    Professor of Law at the George Washington University Law School.
        I am pleased that the Chairman has asked for and obtained unanimous
    consent to place these additional statements on our record of this
    hearing. The statements will make an important contribution to the
    Committee's understanding of the issues before us. I thank the authors
    of each and the witnesses who are here today for their assistance to
    the Committee.

        Chairman Roberts. We will go in the order of introduction.
    Mr. Nojeim, would you like to open up, please?
        [The prepared statement of Mr. Nojeim follows:]

                    Prepared Statement of Gregory T. Nojeim

        Chairman Roberts, Vice Chairman Rockefeller and Members of the
    Committee:
        I am pleased to appear before you today on behalf of the American
    Civil Liberties Union and its more than 400,000 members, dedicated to
    preserving the principles of the Constitution and Bill of Rights at
    this rare, and crucial, public oversight hearing on USA PATRIOT Act of
    2001.\1\
    ---------------------------------------------------------------------------
        \1\ Uniting and Strengthening America by Providing Appropriate
    Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act)
    Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
    ---------------------------------------------------------------------------
        The Patriot Act was passed by Congress in 2001 just 6 weeks after
    the terrorist attacks of September 11. Although the act passed by wide
    margins, members on both sides of the aisle expressed reservations
    about its impact on fundamental freedoms and civil liberties. As a
    result, Congress included a ``sunset clause'' providing that over a
    dozen provisions will expire on December 31, 2005, if Congress does not
    act to renew them.
        A number of the provisions that will expire are within the
    jurisdiction of this committee, including some of the most
    controversial provisions. This statement's main focus is on those
    Patriot Act intelligence provisions that pose the greatest risk for
    civil liberties.\2\
    ---------------------------------------------------------------------------
        \2\ This statement is adapted from a longer memorandum that
    examines a number of other Patriot Act and related issues in greater
    depth, including immigration, material witness and ``enemy combatant''
    detentions, criminal ``sneak and peek'' search warrants, the crime of
    material support of terrorism and the definition of domestic terrorism.
    See Memo to Interested Persons Outlining What Congress Should Do About
    the Patriot Act Sunsets, March 28, 2005, available at: http://
    www.aclu.org/news/NewsPrint.cfm?ID=17846&c=206.
    ---------------------------------------------------------------------------
        Congress should use the upcoming debate over the renewal of parts
    of the Patriot Act as an opportunity to reassert its rightful role in
    determining law enforcement and national security policy in the post-9/
    11 context, which has waned as the power of the executive branch has
    waxed. Before re-authorizing any intelligence power, this committee
    should require the executive branch to meet the standard articulated by
    the bipartisan 9-11 Commission.
         First, Congress should re-examine the specific provisions
    that sunset, taking care not to renew any provision unless the
    government can show ``(a) that the power actually materially enhances
    security and (b) that there is adequate supervision of the executive's
    use of the powers to ensure protection of civil liberties.'' \3\
    ---------------------------------------------------------------------------
        \3\ Final Report of the National Commission on Terrorist Attacks
    Upon the United States (``The 9/11 Commission Report'') 294-95 (2004)
    (boldfaced recommendation)
    ---------------------------------------------------------------------------
         Second, ``[i]f the power is granted, there must be
    adequate guidelines and oversight to properly confine its use.'' \4\
    ---------------------------------------------------------------------------
        \4\ Id.
    ---------------------------------------------------------------------------
         Third, because the issues of national security and civil
    liberties posed by anti-terrorism powers that are not part of the
    Patriot Act sunset are at least as serious as any posed by those
    provisions that do sunset, Congress should undertake a broader review
    of anti-terrorism powers, both within and outside of the Patriot Act,
    using the same standard of review.
         Finally, Congress should resist efforts by the executive
    branch to evade searching review of its existing powers, both under the
    Patriot Act and under other legal authorities, by shifting the debate
    to new anti-terrorism legislation, such as proposals for administrative
    subpoenas or new death penalties.
        Congress may not be able to fully review or assess the
    effectiveness, and impact on civil liberties, of some anti-terrorism
    powers that the executive branch was granted in the Patriot Act. The
    lack of meaningful information about the use of many powers is
    sometimes a direct result of excessive secrecy in the executive branch,
    and sometimes the result of necessary secrecy. In any case where
    sufficient information is not available to undertake a thorough review,
    Congress should set a new sunset date and impose additional reporting
    requirements to facilitate a proper review, rather than cede those
    powers permanently to the executive branch.
        Because many domestic intelligence authorities operate in complete
    secrecy, this committee plays a particularly critical role in
    determining whether specific intelligence powers ``actually materially
    enhance security.'' Only an intensive and painstaking process of
    examining the facts regarding the use of these powers can answer that
    question.
        This committee was created in large part to perform just that
    function. It should not be content with general statements of the
    Patriot Act's usefulness or selective accounts of how certain sections
    have been used. Rather, we hope it will aggressively and thoroughly
    examine whether administration claims that certain powers are vital to
    the prevention of terrorism are born out by specific facts.
        Until now, the government has fallen short. Just last week,
    Judiciary Chairman Arlen Specter expressed frustration at the Justice
    Department's inability to provide such facts even in a classified
    setting. ``This closed-door briefing was for specifics,'' Senator
    Specter explained. ``They didn't have specifics.'' \5\
    ---------------------------------------------------------------------------
        \5\ Eric Lichtblau, Specter Voices Frustration Over Briefing on
    Patriot Act, N.Y. Times, Apr. 13, 2005.
    ---------------------------------------------------------------------------
       CLEAR EVIDENCE OF PATRIOT ACT ABUSES, BUT EXTENT OF PROBLEM STILL
                                     SECRET

        In its three and one-half years, the government has abused and
    misused the Patriot Act while seeking significant expansions of powers
    granted under the Patriot Act.
        Secrecy permeates the Patriot Act, particularly in its expansions
    of intelligence authorities. Many powers are accompanied by statutory
    gag orders. Moreover, the administration has taken the posture that
    information that is embarrassing to it must be kept secret for reasons
    of national security. For these reasons, it has been extremely
    difficult to uncover information about how the Patriot Act has been
    used, and even information about whether particular sections have been
    used at all. The ACLU has repeatedly sought this information in
    letters, requests under the Freedom of Information Act (FOIA) and in
    FOIA litigation.
        Despite the efforts of the executive branch to cover up information
    about how controversial provisions of the Patriot Act have been used,
    some information has become public. This information is disturbing in
    and of itself, and may be emblematic of other abuses that have not yet
    become public. Appended to this testimony are some examples of abuses
    of intelligence powers expanded under the Patriot Act, and of the chill
    on the exercise of First Amendment rights that such powers can create.

       PATRIOT ACT INTELLIGENCE POWERS: GREATER SECRECY, LESS MEANINGFUL
                                     REVIEW

        In the debate over the Patriot Act, we ask the committee to pay
    particular attention to the most intrusive expanded intelligence
    surveillance techniques.
    Secret Records Searches Without Probable Cause or an Ability to
            Challenge: Library Records, Other ``Tangible Things,'' and
            National Security Letters
        Perhaps no sections of the Patriot Act have become more
    controversial than the sections allowing the government secretly to
    obtain confidential records in national security investigations--
    investigations ``to protect against international terrorism or
    clandestine intelligence activities.''
        National security investigations are not limited to gathering
    information about criminal activity. Instead, they are intelligence
    investigations designed to collect infounation the government decides
    is needed to prevent--``to protect against''--the threat of terrorism
    or espionage. They pose greater risks for civil liberties because they
    potentially involve the secret gathering of information about lawful
    political or religious activities that Federal agents believe may be
    relevant to the actions of a foreign government or foreign political
    organization (including a terrorist group).
        The traditional limit on national security investigations is the
    focus on investigating foreign powers or agents of foreign powers.
    Indeed, the ``foreign power'' standard is really the only meaningful
    substantive limit for non-criminal investigations given the astonishing
    breadth of information a government agent might decide is needed for
    intelligence reasons. The Patriot Act eliminated this basic limit for
    records searches, including the power under the Foreign Intelligence
    Surveillance Act (FISA) to obtain with a FISA court order any records
    or other ``tangible things,'' and the FBI's power to obtain some
    records without any court review at all.
         Section 215 of the Patriot Act allows the government to
    obtain any records, e.g., library and bookseller records, medical
    records, genetic information, membership lists of organizations, and
    confidential records of refugee service organizations, as well as any
    other ``tangible things'' with an order from the FISC. The order is
    based merely on a certification by the government that the records are
    ``sought for'' a national security investigation and the judge is
    required to issue the order. The order contains an automatic and
    permanent gag order. Section 215 is subject to the sunset clause. Two
    weeks ago, the government acknowledged for the first time that Section
    215 has been used, that it has been used 35 times, and that it was used
    to obtain credit, apartment, ISP and other records, but not library or
    medical records.
         Section 505 of the Patriot Act expanded the FBI's power to
    obtain some records in national security investigations without any
    court review at all. These ``national security letters'' can be used to
    obtain financial records, credit reports, and telephone, Internet and
    other communications billing or transactional records. The letters can
    be issued simply on the FBI's own assertion that they are needed for an
    investigation, and also contain an automatic and permanent
    nondisclosure requirement. Section 505 does not sunset.
        Although such demands never required probable cause, they did
    require, prior to the Patriot Act, ``specific and articulable facts
    giving reason to believe'' the records pertain to an ``agent of a
    foreign power.'' The Patriot Act removed that standard for issuing
    records demands in national security investigations.
        As a result, a previously obscure and rarely used power can now be
    used far more widely to obtain many more records of American citizens
    and lawful residents. Because the requirement of individual suspicion
    has been repealed, records powers can now be used to obtain entire data
    bases of private information for ``data mining'' purposes--using
    computer software to tag law abiding Americans as terrorist suspects
    based on a computer algorithm.
        These records search provisions are the subject of two court
    challenges by the ACLU. In Muslim Community Association of Ann Arbor v.
    Ashcroft, No. 03-72913 (E.D. Mich.), the ACLU has challenged section
    215 of the Patriot Act First and Fourth Amendment grounds. As explained
    in the case example, the ACLU's challenge has uncovered serious and
    unconstitutional chilling effects of section 215 on the exercise of
    basic freedoms. The district court has not yet ruled in this case.
        In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a Federal
    district court struck down a ``national security letter'' records power
    expanded by the Patriot Act, agreeing with the ACLU that the failure to
    provide any explicit right for a recipient to challenge a national
    security letter search order violated the Fourth Amendment and that the
    automatic secrecy rule violated the First Amendment. The case is now on
    appeal before the United States Court of Appeals for the Second
    Circuit.
        There has been some confusion about whether Doe v. Ashcroft struck
    down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck
    down, in its entirety, 18 U.S.C. Sec. 2709(b), the national security
    letter authority for customer records of communications service
    providers, as amended by section 505(a) of the Patriot Act. The court
    referred repeatedly to the Patriot Act in its opinion. To be clear, the
    court invalidated all of section 505(a) of the Patriot Act. It is
    simply inaccurate to imply that the court's decision was unrelated to
    the Patriot Act, or that it did not strike down a provision of the
    Patriot Act. If the court's decision is sustained on appeal, section
    505(a) of the Patriot Act will no longer have any force or effect.\6\
    ---------------------------------------------------------------------------
        \6\ While the use of national security letters are secret, the
    press has reported a dramatic increase in the number of letters issued,
    and in the scope of such requests. For example, over the 2003-04
    holiday period, the FBI reportedly obtained the names of over 300,000
    travelers to Las Vegas, despite casinos' deep reluctance to share such
    confidential customer information with the government. It is not clear
    whether the records were obtained in part with a national security
    letter, with the threat of such a letter, or whether the information
    was instead turned over voluntarily or to comply with a subpoena.
    ---------------------------------------------------------------------------
        Both FISA records demands and national security letters can be used
    to obtain sensitive records relating to the exercise of First Amendment
    rights. A FISA record demand could be used to obtain a list of the
    books or magazines someone purchases or borrows from the library. A
    FISA record demand could be used to obtain the membership list of a
    controversial political or religious organization. A national security
    letter could be used to monitor use of a computer at a library or
    Internet cafe under the government's theory that providing Internet
    access (even for free) makes an institution a ``communications service
    provider'' under the law.
        While both national security letters and FISA records demands
    cannot be issued in an investigation of a United States citizen or
    lawful permanent resident if the investigation is based ``solely'' on
    First Amendment activities, this provides little protection. An
    investigation is rarely, if ever, based ``solely'' on any one factor;
    investigations based in large part, but not solely, on constitutionally
    protected speech or association are implicitly allowed. An
    investigation of a temporary resident can be based ``solely'' on First
    Amendment activities, and such an investigation of a foreign visitor
    may involve obtaining records pertaining to a United States citizen.
    For example, an investigation based solely on the First Amendment
    activities of an international student could involve a demand for the
    confidential records of a student political group that includes United
    States citizens or permanent residents.
        The expanded scope and broader use of both FISA records demands and
    national security letters has exacerbated other constitutional problems
    with the statute under both the First Amendment and the Fourth
    Amendment. Unlike almost every other type of subpoena or records
    demand, neither statute contains any explicit right to file a motion to
    quash the demand before a court on the ground that the demand is
    unreasonable or seeks privileged information. Similarly, both types of
    records demands bar the recipient from disclosing that the demand has
    been issued. This permanent secrecy order is imposed automatically, in
    every case, without any review by a judge, without any right to
    challenge. The district court ruling in Doe v. Ashcroft makes clear
    these problems are severe enough to invalidate the entire national
    security letter statute--not just the portions amended by the Patriot
    Act.
        A power to secretly obtain records of ordinary Americans--i.e.,
    Americans who are not suspected of involvement with any foreign
    government or terrorist organization--outside of a criminal
    investigation is a vast power. The government bears the burden in
    showing such a power ``actually materially enhances security.'' If the
    government sustains this burden, it is clear, as even Attorney General
    Gonzales has acknowledged, that additional safeguards must be added.

        Recommendation: Congress should bring intelligence records powers
    (national security letters and FISA records search orders) back into
    line with basic constitutional freedoms. Congress should enact the SAFE
    Act, which restores the requirement of individual suspicion, provides a
    right to challenge records demands, limits the secrecy order and
    provides for a right to challenge the secrecy order.

        The SAFE Act (``Security and Freedom Enhancement Act,'' S. 737)
    restores the requirement of ``specific and articulable facts giving
    reason to believe'' the records involve an ``agent of a foreign power''
    for both FISA records demands and national security letters. In
    addition, the SAFE Act makes explicit the right to file a motion to
    quash the records demands because they are unreasonable, contrary to
    law, or seek privileged information. The SAFE Act also sets standards
    for a judicially imposed, temporary secrecy order that can be
    challenged by the recipient of a records demand. Finally, the SAFE Act
    provides a right to notice, and an opportunity to challenge, before
    information from a FISA records search or national security letter
    search can be used in a court proceeding.
        As the Attorney General concedes is necessary, Congress should
    certainly make clear what the government has now conceded should be the
    law--that the secrecy order does not prevent recipients from discussing
    records demands internally or obtaining legal advice. Without public
    scrutiny, the potential for unreasonable ``fishing expeditions'' using
    a secret, unreviewable records power is simply too great.
    Secret Searches and Surveillance of Homes and Offices
        A government search or electronic surveillance of a home or office
    generally requires a warrant based on probable cause of crime under the
    Fourth Amendment. As a general rule, the owner of the home or office is
    entitled to notice of the search. Foreign intelligence searches have
    been an exception to this rule. They do not require criminal probable
    cause and forbid notice to the owner.
        The special power to secretly search a home or office, without ever
    notifying the owner, is among the most intrusive domestic surveillance
    powers available to the Federal Government. Such ``black bag jobs''
    were the hallmark of national security investigations run amok,
    including COINTELPRO and other investigations of civil rights
    activists, anti-war activists, and other Americans who in the end were
    guilty of nothing more than peacefully opposing government policies.
        The inappropriate use of a secret search power, without court
    oversight, led directly to warrantless wiretaps of civil rights leaders
    and, eventually, an unauthorized ``black bag job'' at the Watergate,
    sending a shock wave through the Nation and prompting thorough and
    searching reviews of the intelligence community. These reviews led
    Congress to enact important reforms of intelligence powers, including
    the passage of the Foreign Intelligence Surveillance Act (FISA) and the
    creation of this committee.
        While FISA secret searches and wiretaps pre-date the Patriot Act,
    two vital protections that cabined such searches until 2001 have been
    seriously eroded by amendments that are subject to the December 31,
    2005 sunset. First, section 218 of the Patriot Act allowed the
    government to obtain a FISA secret search order even where the
    ``primary purpose'' of the search was not foreign intelligence. Second,
    for searches of so-called ``lone wolf '' terror suspects, section 6001
    of the Intelligence Reform and Terrorism Prevention Act of 2004\7\
    eliminated, for the first time, the basic requirement applied by the
    Foreign Intelligence Surveillance Court for all FISA secret searches
    and surveillance: that probable causes exists that the target of the
    search is a foreign power or agent of foreign power.
    ---------------------------------------------------------------------------
        \7\ Pub. L. No. 108-458, 118 Stat. 3638.
    ---------------------------------------------------------------------------
        Section 218 of the Patriot Act. This provision of the Patriot Act
    takes aim at a provision of FISA designed to ensure against the
    government using FISA improperly as an end-run around the Fourth
    Amendment for criminal suspects. Prior to the Patriot Act, government
    officials had to certify that the primary purpose of a secret FISA
    search was to obtain foreign intelligence.\8\ Section 218 of the
    Patriot Act weakened this standard, allowing agents to obtain these
    warrants so long as they certify that ``a significant purpose'' of the
    search is foreign intelligence.
    ---------------------------------------------------------------------------
        \8\ The pre-Patriot Act statute required the government to certify
    that foreign intelligence was ``the purpose'' of the search. Where the
    government had both foreign intelligence and criminal investigation
    purposes, courts interpreted this language to mean that foreign
    intelligence purpose had to be the ``primary purpose'' of the search;
    otherwise, the government should use its criminal powers. See In Re
    Sealed Case, 310 F.3d 717, 726 (For. Intel. Surv. Ct. Rev. 2002)
    (collecting pre-Patriot Act cases).
    ---------------------------------------------------------------------------
        The danger of section 218's lower standard is that the government
    will cut corners in criminal cases. Because foreign intelligence no
    longer must be the primary purpose of the search, the government can
    use FISA as a substitute for traditional criminal powers. As a result,
    now the government can--for what are primarily criminal searches--evade
    the Fourth Amendment's constraints of probable cause of crime and
    notice to the person whose property is being searched.
        Brandon Mayfield is a case where such corners may have been cut. As
    described in more detail in the appendix, Mr. Mayfield is a Portland,
    Oregon resident who is a convert to Islam and a civil rights advocate.
    Mr. Mayfield was wrongly accused by the government of involvement in
    the Madrid bombing as a result of a evidence, including a mistaken
    fingerprint identification, that fell apart after the FBI
    re-examined its case following its arrest and detention of Mr. Mayfield
    on a material witness warrant.
        As Attorney General Gonzales acknowledged at a hearing before the
    Senate Judiciary Committee, Section 218 of the Patriot Act was
    implicated in the secret search of Mr. Mayfield's home. The FBI
    secretly entered the home of an innocent man it wrongly suspected of a
    crime without a warrant based on criminal probable cause. It did so
    because the Patriot Act had made it easier to conduct such a search
    with a FISA search order. While there, agents took hundreds of
    photographs, copied four computer hard drives and seized 10 DNA
    samples. Prior to the Patriot Act, it is doubtful the search could have
    taken place under FISA, and instead would likely have been governed by
    normal search warrant procedures and the exacting standard of criminal
    probable cause.

        Recommendation: Congress should permit limited access to FISA
    applications, consistent with national security, where FISA-gathered
    information is used in a criminal case. Congress can do so by enacting
    legislation applying CIPA to FISA surveillance. It should also ensure
    that prosecutors do not direct intelligence surveillance.

        If the government is able to meet the burden of showing section 218
    ``actually materially enhances security,'' the Mayfield case and the
    danger of future abuses shows the need for additional safeguards.
    Without re-building the much-maligned ``wall'' between foreign
    intelligence and criminal investigations, Congress should follow the
    approach of the Foreign Intelligence Surveillance Court (FISC),
    restoring its power to serve its proper supervisory function to prevent
    the misuse of FISA. Congress should empower the court to make sure
    foreign intelligence investigations are not directed by Federal
    prosecutors, although prosecutors and criminal investigators should be
    allowed full briefings on such investigations.
        In its first (and, so far, only) public opinion, the FISC, in an
    opinion by Judge Lamberth, expressed alarm at the fact that ``criminal
    prosecutors will tell the FBI when to use FISA (perhaps when they lack
    probable cause)'' of crime, and noting its highly intrusive aspects,
    including:
         a foreign intelligence standard instead of a criminal
    standard of probable cause;
         use of the most advanced and highly intrusive techniques
    for intelligence gathering; and
         surveillances and searches for extensive periods of time;
    based on a standard that the U.S. person is only using or about to use
    the places to be surveilled and searched, without any notice to the
    target unless arrested and prosecuted, and, if prosecuted, no
    adversarial discovery of the FISA applications and warrants.'' \9\
    ---------------------------------------------------------------------------
        \9\ In re All Matters Submitted to the Foreign Intelligence
    Surveillance Court, 218 F. Supp. 2d 611, 624 (For. Intel. Surv. Ct.
    2002).
    ---------------------------------------------------------------------------
        Judge Lamberth observed that the FISC's members had ``specialized
    knowledge,'' had reviewed ``several thousand FISA applications,'' and
    were ``mindful of the FISA's pre-eminent role in preserving our
    national security, not only in the present national emergency, but for
    the long term as a constitutional democracy under the rule of law.''
    \10\ It reasoned that, as a result, it retained supervisory powers to
    protect against the misuse of FISA for criminal investigative purposes.
    ---------------------------------------------------------------------------
        \10\ Id. at 615.
    ---------------------------------------------------------------------------
        The Foreign Intelligence Surveillance Court of Review reversed this
    opinion, reasoning that section 218 of the Patriot Act had stripped the
    FISC of this role.\11\ If Congress reauthorizes section 218, it should
    amend it to make clear that the provision does not prohibit the FISC
    from adopting guidelines to prevent the direction and control of
    foreign intelligence investigations by prosecutors for law enforcement
    ends.
    ---------------------------------------------------------------------------
        \11\ See In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct.
    Rev. 2002).
    ---------------------------------------------------------------------------
        Congress should also explore a remedy for one of the serious
    problems inherent in making FISA searches more available in what are
    primarily criminal investigations: the lack of ``adversarial discovery
    for FISA applications and warrants.'' This is in marked contrast to the
    extensive discovery available to criminal defendants, enabling the
    court to hold government officials accountable for unlawful searches
    and surveillance.
        Congress should enact legislation making available to the defense
    such ``adversarial discovery of FISA applications and warrants'' using
    the carefully crafted Classified Information Procedures Act (CIPA).
    Last Congress, the ACLU strongly supported S. 1552, the Protecting the
    Rights of Individuals Act, sponsored by Senators Lisa Murkowsky (R-AK)
    and Ron Wyden (D-OR), which included this provision at section 9. An
    identical provision was also included as section 401 of S. 2528, the
    Civil Liberties Restoration Act, sponsored by Senators Kennedy (D-MA),
    Corzine (D-NJ) and Leahy (D-VT), among others.
        Section 6001 of the Intelligence Reform and Terrorism Prevention
    Act of 2004. Section 6001 further eroded the basic safeguards included
    in FISA by authorizing, for the first time, secret searches and
    surveillance of homes and businesses where there is neither criminal
    probable cause nor probable case that the person is acting on behalf of
    any foreign power.
        FISA rests what would otherwise plainly be unconstitutional
    searches (because they are not based on probable cause of crime) on an
    alternate showing: probable cause that those individuals are acting on
    behalf of a foreign power. By eliminating this alternate showing for
    non-citizen visitors to the United States suspected of being ``lone
    wolf '' terrorists, we believe section 6001 violates the Fourth
    Amendment.
        Moreover, section 6001 was not needed to address deficiencies in
    the use of FISA search powers uncovered after September 11, its
    original rationale. The National Commission on Terrorist Attacks Upon
    the United States (``9-11 Commission'') uncovered a number of serious,
    structural breakdowns in the intelligence community prior to September
    11. A lack of legal authority to collect intelligence information was
    not among its findings.
        Section 6001 has erroneously been described as necessary to respond
    to the government's failure to seek a warrant to search the laptop
    computer of suspected terrorist Zacarias Moussaoui. The 9-11 Commission
    rejected that conclusion, finding that government agents
    ``misunderstood and misapplied'' guidelines regarding FISA search
    warrants, and that these mistakes contributed to their failure to seek
    either a criminal or FISA warrant in the Moussaoui case.\12\ The 9-11
    Commission did not recommend any change to existing legal authorities,
    including FISA.
    ---------------------------------------------------------------------------
        \12\ Final Report of the National Commission on Terrorist Attacks
    Upon the United States 79, 540 n.94 (2004).
    ---------------------------------------------------------------------------
        In a February 2003 report on FISA oversight, Senators Leahy,
    Grassley and Specter noted, with respect to this proposed change, that
    the Department of Justice was unable to provide even a single case,
    even in a classified setting, that explained why what became section
    6001 was needed. As the report states, ``In short, DOJ sought more
    power but was either unwilling or unable to provide an example as to
    why.''
        Section 6001 could do serious harm to the government's anti-
    terrorism efforts if a court concludes that the surveillance it
    authorizes violates the Fourth Amendment, making the evidence obtained
    by such surveillance inadmissible. The ``foreign power'' standard--
    which section 6001 eliminates for non-citizens--is integral to the
    rationale given by the Foreign Intelligence Surveillance Court of
    Review in its opinion upholding FISA surveillance against a
    constitutional challenge.\13\
    ---------------------------------------------------------------------------
        \13\ See In re Sealed Case, supra, at 738 (relying on ``foreign
    power'' probable cause to hold that FISA secret searches and
    surveillance satisfy Fourth Amendment standards of reasonableness).
    ---------------------------------------------------------------------------
        This committee should review carefully actual applications for
    secret searches or surveillances under the new power provided by
    section 6001 to determine whether such searches or surveillance could
    have been undertaken using traditional criminal powers, and whether
    section 6001 ``actually materially enhances security.'' If the
    government satisfies this test and Congress decides to re-authorize
    section 6001, Congress should consider additional safeguards.

        Recommendation: Congress should modify section 6001 to provide a
    presumption that an individual who is involved in international
    terrorism is acting for a foreign power. This compromise, offered by
    Senator Dianne Feinstein (D-CA) to legislation that became section
    6001, would give the Foreign Intelligence Surveillance Court more
    discretion to ensure against misuse of FISA.

        When S. 113, the legislation that became section 6001, was being
    debated in the Senate, Senator Dianne Feinstein offered a compromise
    that the ACLU supported. The Feinstein amendment would have formally
    preserved the FISA requirement that the FISA court determines that the
    target of a surveillance order is an agent of a foreign power before a
    surveillance order is authorized, but it allowed the court to presume
    such agency based on conduct that does not necessarily show such
    agency. Because the amendment would preserve some discretion on the
    part of the FISA court to determine that an individual should not be
    subject to surveillance because they are not, in fact, an agent of a
    foreign power, the ACLU urges Congress to adopt the Feinstein amendment
    if it decides to reauthorize section 6001.
    Wiretapping and Electronic Surveillance Without Judicial Safeguards
            Limiting
            Orders to the Targets of an Investigation
        ``General warrants''--blank warrants that do not describe what may
    be searched--were among those oppressive powers used by the British
    crown that led directly to the American Revolution. As a result, the
    framers required all warrants to ``particularly describ[e] the place to
    be searched, and the persons or things to be seized.''
        The same ``particularity'' requirements apply to wiretap orders. In
    the landmark case United States v. Donovan, 429 U.S. 413 (1977), a
    majority upheld the Federal criminal wiretap law, noting that Congress
    had redrafted the law to include safeguards regarding, among other
    things, the need to identify targets of surveillance in response to the
    ``constitutional command of particularization.''\14\
    ---------------------------------------------------------------------------
        \14\ Id. at 426-27 (quoting S. Rep. No. 1097, 90th Cong., 2nd
    Sess., at 66 (1968), reprinted in U.S. Code Cong. and Admin. News 1968,
    at 2190).
    ---------------------------------------------------------------------------
        Congress has also authorized Federal judges to issue electronic
    surveillance orders in foreign intelligence cases, including wiretaps
    of telephone conversations and intercepts of the content of other
    electronic communications (faxes, e-mail, etc.).
        The Patriot Act erodes the basic constitutional rule of
    particularization:
         Section 206 creates ``roving wiretaps'' in foreign
    intelligence cases. As amended by later legislation, these wiretaps do
    more than allow the government to get a single order that follows the
    target of surveillance from telephone to telephone. The government can
    now issue ``John Doe'' roving wiretaps that fail to specify a target or
    a telephone, and can use wiretaps without checking that the
    conversations they are intercepting actually involve a target of the
    investigation. Section 206 is subject to the Patriot Act's sunset
    clause.
         Section 207 greatly increases the length of time that
    foreign intelligence wiretaps may be used without any judicial
    oversight--from 90 days to 6 months for the initial order, with
    renewals allowing surveillance to continue for a year before require
    judicial approval. Section 207 is subject to the Patriot Act's sunset
    clause.
        Section 206 of the Patriot Act: Foreign intelligence ``roving
    wiretaps.'' ``Roving wiretaps'' are a particularly potent form of
    electronic surveillance, allowing the government to obtain a single
    wiretap order that follows a target as the target uses different
    telephones or devices to communicate. Prior to the passage of the
    Patriot Act, roving wiretaps were available in criminal investigations
    (including criminal investigations of terrorists), but were not
    available in foreign intelligence investigations.
        Because roving wiretaps contain more potential for abuse than
    traditional wiretaps, which apply to a single telephone or other
    device, when Congress enacted roving wiretaps for criminal
    investigations, it insisted on important privacy safeguards. First, a
    criminal wiretap must specify either the identity of the target or the
    communications device being used. In other words, a surveillance order
    may specify only the target, or only the phone, but it must specify one
    or the other. Second, a criminal wiretap that jumps from phone to phone
    or other device may not be used unless the government ``ascertains''
    that the target identified by the order is actually using that device.
        When Congress enacted the Patriot Act, it extended ``roving
    wiretap'' authority to FISA investigations, but did not include the
    common sense ``ascertainment'' safeguard. Shortly thereafter, the newly
    enacted roving wiretap authority was broadened by the Intelligence Act
    for fiscal year 2002, which authorized wiretaps where neither the
    target nor the device was specified. As a result, FISA now allows
    ``John Doe'' roving wiretaps--wiretaps that can follow an unknown
    suspect from telephone to telephone based only on a potentially vague
    physical description, opening the door to surveillance of anyone who
    fits that description, or anyone else who might be using that
    telephone.
        Because of this danger, if Congress is satisfied the government has
    met its burden to show FISA roving surveillance authority ``actually
    materially enhances security'' and should be renewed, it should include
    additional privacy safeguards.

        Recommendation: Congress should include an ascertainment
    requirement and should require electronic surveillance orders to
    specify either a target or a telephone or other device, by enacting the
    bipartisan SAFE Act of 2005.

        Congress should tighten the FISA roving wiretap so that it has the
    same safeguards for privacy as criminal roving wiretaps. Supporters of
    the Patriot Act often argue that changes to the law were needed to give
    the government the same powers in foreign intelligence investigations
    that it already had in criminal investigations. To the extent that is
    appropriate, it is fair to insist that the same safeguards apply as
    well.
        Section 2 of S. 737, the SAFE Act, would provide just such
    safeguards. While it preserves FISA roving surveillance authority, it
    also makes sure that these privacy safeguards, which apply to criminal
    roving wiretaps, would also apply to FISA roving wiretaps.
        Section 207 of the Patriot Act. The time periods for foreign
    intelligence surveillance orders were already much longer than for
    criminal surveillance orders even before the passage of the Patriot
    Act. Permitting surveillance to continue for a year with no judicial
    review opens the door for abuse. The Justice Department's main
    justification for allowing review to continue for such a long period
    has been the ability to conserve attorney time and other resources
    needed to process renewal applications.
        If the administration can show the sharp increases in FISA secret
    searches and surveillance enabled by this and other provisions
    ``actually materially enhances security,'' Congress should consider the
    cost in lost oversight of highly intrusive powers. It may be possible
    to get the benefits while preserving oversight.

        Recommendation: Congress should extend the sunset provision on this
    section and conduct an investigation to determine whether it should
    shorten the periods for FISA surveillance, and it should consider
    providing additional resources to the Justice Department and the FISC.

        Congress should consider whether it can shorten these periods by
    conducting a searching review of FISA surveillance conducted under the
    lengthened periods. Was it productive for the entire period it was
    authorized? If the problem is a lack of resources, the solution should
    not be to shortchange judicial oversight. Precisely because there is
    increased pressure to engage in surveillance early to prevent terrorism
    before it happens, there is an increased danger of abuse and an
    increased need for judicial oversight. Congress should provide
    sufficient funds both to the Department of Justice and to the Foreign
    Intelligence Surveillance Court to handle the important work of
    reviewing surveillance orders.
    Internet Surveillance Without Probable Cause: Web Browsers, E-Mail, and
            ``Pen/Trap'' Devices
        While the ``probable cause'' standard has long applied both to
    physical searches and electronic intercepts of the content of
    conversations, surveillance techniques that monitor only who is sending
    or receiving information (often called ``routing information''), but do
    not intercept the content of communications, do not require probable
    cause.
        For telephones, pen registers and ``trap and trace'' devices have
    long been available to track the telephone numbers dialed, and the
    telephone numbers of incoming calls. These numbers could then be cross-
    referenced, through a reverse telephone directory, to identify to whom
    a target of a pen/trap device is calling. A similar technique, ``mail
    covers,'' is used to track the outside cover of an envelope sent
    through the mail. Neither technique requires probable cause, although a
    court order may be needed.
        Prior to the passage of the Patriot Act, it was unclear how the law
    allowing pen/trap devices for telephone communications applied to
    communications over the Internet. Federal agents argued they should be
    allowed, without showing probable cause or obtaining a surveillance
    order, to monitor the ``header'' information of an e-mail and the URL
    of a web page.
        Privacy advocates urged caution, noting that Internet
    communications operate very differently than traditional mail or
    telephone communications. For example, the ``header'' information of an
    e-mail contains a wealth of information, such as a subject line or an
    entire list of thousands or even hundreds of thousands of addressees. A
    monitoring order would allow the government to obtain, without probable
    cause, a political, charitable or religious organization's electronic
    mailing list. In short, e-mail headers provide far more content than is
    typical on the outside of an envelope.
        Likewise, the ``link'' at the top of a web browser contains not
    only the website visited, but also the precise pages viewed, or the
    search terms or other information entered by the user on a web-based
    form. For example, in the popular search engine ``google,'' a user
    looking for information about a drug such as ``viagra'' generates the
    web address http://www.google.com/search?hl=en&lr=&q=viagra.
        Section 214 of the Patriot Act broadens the use of Internet
    surveillance, without probable cause, by extending the pen/trap
    surveillance technique from a relatively narrow arena of facilities
    used by agents of foreign powers or those involved in international
    terrorism to include any facility. Pen/trap surveillance can now be
    used far more widely to monitor the Internet use of ordinary Americans.
        Pen/trap for the Internet suffers from a basic flaw: in extending
    this intrusive surveillance authority to the Internet, Congress did not
    adequately take account the differences between the Internet and
    traditional communications that make intercept of Internet ``routing
    information'' far more intrusive as applied to Internet communications.
        If the administration can show that section 214 of the Patriot Act
    ``actually materially enhances security'' and should be renewed,
    Congress should insist on additional protections to take into account
    the differences between Internet and traditional telecommunications.

        Recommendation: Congress should insist on rules that clearly define
    content and prohibit the use of techniques that acquire content without
    a surveillance order based on probable cause. In addition, because
    obtaining ``routing information'' in the Internet world is even more
    intrusive than pen registers and trap and trace devices applied to
    traditional telecommunications. Congress should enact the SAFE Act,
    which provides that pen/trap orders require more specific
    justification.

        Congress should insist on rules that:
         Clearly define content for Internet communications.
    Congress should be specific. For e-mails, at the very least, the
    subject line and any private (i.e., ``bcc'') list of addresses should
    be off limits without a surveillance order based on probable cause. For
    Internet browsing, obtaining any information behind the top level
    domain name should likewise be barred without probable cause. For
    example, an agent could obtain a list of websites visited (like
    www.aclu.org) but not of webpages visited (like www.aclu.org/
    patriotact) or search tetras entered (like http://www.google.com/
    search?hl=en&q=aclu+craig+durbin+safe+act).
         Prevent techniques that acquire content from being used in
    the absence of an order based on probable cause. The Internet does not
    work like traditional telephones or the mail. The constitutionally
    protected content of communications may be difficult, or even
    impossible, to separate from the ``routing information.'' For example,
    e-mail may be sent through the Internet in discrete ``packets,'' rather
    than as a single file, to permit the information to be sent along the
    most efficient route, then reassembled at the destination, using codes
    that are attached to the packets of information. The burden should be
    on the government to develop techniques that do not incidentally
    acquire content. In the absence of those techniques, a surveillance
    order based on probable cause should be required. Federal agents should
    not be put in the untenable position of incidentally gathering
    constitutionally protected content in the course of obtaining ``routing
    information,'' and then being forced to delete or ignore the content
    information.
        The debate over extending pen/trap authority, which is not based on
    probable cause, to Internet communications, is not about whether
    criminals or terrorists use the Internet. Of course they do. The
    question is how to ensure that Congress does not erode the privacy of
    everyone by authorizing surveillance techniques, not based on probable
    cause, that fail to account for the differences between traditional
    communications and Internet communications.
        Because pen/trap authority as applied to the Internet is
    particularly intrusive, even with rules that define content more
    properly, Congress should insist that pen/trap orders require more
    specific justification. The ACLU urges adoption of the SAFE Act.
    Section 6(b) of the act would require, for FISA pen/trap authority,
    more than a simple certification that the information is relevant to a
    foreign intelligence investigation.
        While the SAFE Act would not require probable cause for FISA pen/
    trap authority it adds teeth to the relevance test. The SAFE Act would
    require the government to provide a ``statement by the applicant of
    specific and articulable facts showing there is reason to believe'' the
    information obtained by the pen/trap device is relevant to the
    investigation.
                   conclusion: restoring checks and balances
        The Patriot Act provisions that pose the greatest challenges share
    certain common themes. As a result of gag orders, or delayed
    notification, they permit surveillance with a far greater degree of
    secrecy than is common in most government investigations. They do not
    allow affected parties the opportunity to challenge government orders
    before a judge. Finally, because the substantive standards for some
    forms of surveillance have been modified, weakened, or even eliminated,
    the role of the Foreign Intelligence Surveillance Court in checking
    government abuse has been made less meaningful.
        This committee's review of the Patriot Act and related legal
    measures in the ongoing effort to combat terrorism is needed to ensure
    continued public support for the government's efforts to safeguard
    national security. The controversy over the Patriot Act reflects the
    concerns of millions of Americans for preserving our fundamental
    freedoms while safeguarding national security. To date, resolutions in
    opposition to parts of the Patriot Act and other actions that infringe
    on fundamental rights have been passed in in 377 communities in 43
    states including five state-wide resolutions.
        Such widespread concern, across ideological lines, reflects the
    strong belief of Americans that security and liberty need not be
    competing values. Congress included a ``sunset provision'' precisely
    because of the dangers represented by passing such far-reaching changes
    in American law in the aftermath of the worst terrorist attack in
    American history. Now is the time for Congress to complete the work it
    began when it passed the Patriot Act, by bringing the Patriot Act back
    in line with the Constitution.
                                     ______

                 Example of Patriot Act Abuse--Brandon Mayfield

        On March 11, 2004 a bomb exploded in Madrid killing hundreds of
    people. The government obtained from Spanish authorities fingerprint
    images from a blue bag found at the scene containing seven detonators
    thought to be of the same type used in the bombing. The FBI concluded
    that the fingerprints matched those of a Portland attorney, Brandon
    Mayfield. He was arrested on May 6 on a material witness warrant.
        Court documents show that Brandon Mayfield, a convert to Islam, was
    investigated at least in part because of his religion. For example, the
    material witness warrant alleged, among other things, that Mayfield, a
    Muslim, was seen driving from his home to the Bilal mosque, where he
    worshipped.
        On March 24, 2005, the FBI admitted to Mayfield's attorney that his
    home had been secretly searched under the Foreign Intelligence
    Surveillance Act (FISA), which the Patriot Act amended. The FBI
    admitted that it copied four computer hard drives, digitally
    photographed several documents, seized 10 DNA samples and took
    approximately 335 digital photographs of the residence and Mr.
    Mayfield's property. At an April 5 hearing before the Senate Judiciary
    Committee, Attorney General Gonzales specified that Sections 207 and
    218 of the Patriot Act had been used. Section 207 lengthened the
    allowable time allotted to the FBI to secretly search Mayfield's home.
    Section 218 makes it easier to use intelligence authorities in criminal
    cases.
        The Patriot Act facilitated FISA search of Mayfield's home. Before
    the law's passage, the government could conduct a FISA search only if
    the ``primary purpose'' of the search was to gather foreign
    intelligence information. Under Section 218 of the Patriot Act,
    gathering such information need only be a ``significant purpose'' of a
    FISA search. The Mayfield search occurred directly after the Madrid
    bombing as part of the FBI's investigation. This suggests strongly that
    the ``primary purpose'' of the search was not to gather foreign
    intelligence information, but to uncover incriminating evidence.
        Prior to the Patriot Act, authorities would not have been able to
    use FISA to conduct absolutely secret ``black bag'' intelligence
    searches where the primary purpose of the search was criminal
    investigation.

       Example of Patriot Act Abuse--Unconstitutional National Security
                                    Letters

        Section 505 of the Patriot Act expanded the government's authority
    to use National Security Letters (NSL's) to seize information from
    businesses and others, with no judicial approval. Prior to the Patriot
    Act, the government could use NSL's to obtain records about alleged
    terrorists or spies--people who were thought to be ``foreign powers''
    or their agents. Financial, travel and certain Internet Service
    Provider (ISP) records are accessible under the NSL authority. Section
    505 changed the law to allow the use of NSL's to obtain such records
    about anyone without the limitation that they be agents of foreign
    powers. In the Intelligence Authorization Act of 2004\15\ Congress
    further expanded the NSL letter authority to permit seizure of casino
    and other records.
    ---------------------------------------------------------------------------
        \15\ Pub. L. No. 108-177, Section 374 (Dec. 13, 2003).
    ---------------------------------------------------------------------------
        On a date that the government maintains must be kept secret for
    reasons of national security, the FBI served an NSL on an ISP the
    identity of which the government also claims must be kept secret for
    reasons of national security. Through its NSL authority at 18 U.S.C.
    Section 2709, the government can seek certain sensitive customer
    records from ISPs--including information that may be protected by the
    First Amendment--but the ISP can never reveal that it has been served
    with an NSL, and nothing in the statute suggests that the NSL can be
    challenged in court. On behalf of the ISP and itself, the ACLU
    challenged the statute as amended by the Patriot Act, as a violation of
    the First and Fourth Amendments because it does not impose adequate
    safeguards on the FBI's authority to force disclosure of sensitive and
    constitutionally protected information and because its gag provision
    prohibits anyone who receives an NSL from disclosing in perpetuity and
    to any person even the mere fact that the FBI has sought information.
        On September 28, 2004, Judge Victor Marrero of the Southern
    District of New York issued a landmark decision striking down as
    unconstitutional the NSL statute and its gag provision. The court
    struck down the entire statute as violative of Fourth and First
    Amendment rights, thus rendering any use of the statute an abuse of
    those rights. The court found that there have been hundreds of such
    uses.\16\ It found that the statute was abusive in practice because it
    sanctioned NSL's that coerced immediate compliance without effective
    access to court review or an opportunity to consult with counsel:
    ---------------------------------------------------------------------------
        \16\ Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at
    63-64. The court concluded that hundreds of NSL's had been requested by
    the FBI from October 2001 through January 2003, and hundreds must have
    been issued during the life of the statute. The government takes the
    position that even the number of NSL's it issues cannot be disclosed
    for reasons of national security, though it has disclosed publicly to
    Congress a number of such uses. See, e.g. ``H.R. 3179, The ``Anti-
    Terrorism Intelligence Tools Improvement Act of 2003,'' Hearings Before
    the Subcomm. on Crime, Terrorism, and Homeland Security of the House
    Comm. on the Judiciary, 108th Cong. (2004) (statement of Thomas J.
    Harrington, Deputy Assistant Director of the FBI Counterterrorism
    Division).

              The form language of the NSL served upon [plaintiff ISP] Doe,
            preceded by an FBI phone call, directed him to personally
            provide the information to the FBI, prohibited him, his
            officers, agents and employees from disclosing the existence of
            the NSL to anyone, and made no mention of the availability of
            judicial review to quash or otherwise modify the NSL or the
            secrecy mandated by the letter. Nor did the FBI inform Doe
            personally that such judicial review of the issuance of the NSL
            or the secrecy attaching to it was available. The court
            concludes that, when combined, these provisions and practices
            essentially force the reasonable NSL recipient to immediately
            comply with the request.\17\
    ---------------------------------------------------------------------------
        \17\ Id. at pp. 44-45.

        In finding the statute unconstitutional under the Fourth Amendment,
    Judge Marrero referred repeatedly to the amendments made by Section
    505. He noted as an example of the kind of abuse now authorized by the
    statute that it could be used to issue a NSL to obtain the name of a
    person who has posted a blog critical of the government, or to obtain a
    list of the people who have e-mail accounts with a given political
    organization.\18\ The government could not have obtained this
    information with an NSL prior to the Patriot Act amendment in Section
    505, unless the blogger or the people with such accounts were thought
    to be foreign powers or agents of foreign powers. The court also cited
    Patriot Act Section 505 as a reason it struck down the statute on First
    Amendment grounds. The court determined that the tie to foreign
    powers--eliminated by Section 505--``limits the potential abuse'' of
    the statute\19\ and distinguishes it from other intelligence search
    provisions that retain the requirement of such a tie and include a
    statutory gag provision.
    ---------------------------------------------------------------------------
        \18\ Id. at p. 75.
        \19\ Id. at p. 93.
    ---------------------------------------------------------------------------
        Because of the gag in 18 U.S.C. Section 2709(c), the government
    obtained a sealing order it has consistently used to suppress wholly
    innocuous information in the litigation. Until the court struck down
    the statute, the government prevented the ACLU from disclosing that it
    represented someone that had been served with an NSL, and from even
    acknowledging that the government had used a statutory power. The
    government has demanded that the ACLU redact a sentence that described
    its anonymous client's business as ``provid[ing] clients with the
    ability to access the Internet.'' Ironically, the government even
    insisted that the ACLU black out a direct quote from a Supreme Court
    case in an ACLU brief:

              ``The danger to political dissent is acute where the
            Government attempts to act under so vague a concept as the
            power to protect `domestic security.' Given the difficulty of
            defining the domestic security interest, the danger of abuse in
            acting to protect that interest becomes apparent.''

        The gag in Section 2709 would effectively prevent an ISP (or its
    lawyers) from disclosing other abuses of Section 2709. For example, if
    the government was targeting someone because of their First Amendment
    activity, or if the ISP was being forced to turn over First Amendment
    protected information about associational activities, the gag would bar
    disclosure of this abuse.
          examples of the chilling effects of patriot act section 215
        In July 2003, the ACLU filed suit on behalf of six community and
    non-profit organizations because it had learned of a serious chilling
    effect that resulted from Section 215 of the Patriot Act.\20\ Excerpts
    from some plaintiffs' declarations highlight how Section 215 chills
    political speech and hinder privacy rights:
    ---------------------------------------------------------------------------
        \20\ Muslim Community Association of Ann Arbor v. Ashcroft, Civil
    Action No. 03-72913 (E.D. Mich., filed July 30, 2003).
    ---------------------------------------------------------------------------
        The president of a community association: ``The enactment of
    Section 215 has significantly changed the way members of [the Muslim
    Community Association of Ann Arbor, or MCA] participate in the
    organization. Many previously active members have become passive ones.
    Attendance at daily prayer services, educational forums, and social
    events has dropped. Some members have totally withdrawn their
    membership from MCA. Charitable donations to MCA have decreased.'' \21\
    ---------------------------------------------------------------------------
        \21\ Nazih Hassan Decl. para. 22.
    ---------------------------------------------------------------------------
        A prominent member of the association: ``Although I had been very
    outspoken politically before passage of the Patriot Act, I became
    afraid after the Patriot Act was passed that if I continued to remain a
    vocal and visible Muslim, the government would target me for
    investigation and seek private records about me even though I had not
    done anything wrong.
        ``While I was upset by several policies of the U.S. and would have
    ordinarily taken a leadership role in protesting these policies, I
    decided to step out of the limelight to lessen the chances that the
    government would target me for an investigation under the Patriot
    Act.'' \22\
    ---------------------------------------------------------------------------
        \22\ John Doe (Member of MCA) Decl. para.para. 8-9.
    ---------------------------------------------------------------------------
        The administrator of a Christian refugee aid organization:
    ``Section 215 has harmed our ability to serve our clients in a number
    of different ways.
        ``Section 215 has caused Bridge to redirect resources from client
    assistance. Resources that we otherwise would have used to help clients
    are instead being used to re-evaluate our recordkeeping and record
    retention policies.
        ``Because we would not have an opportunity to challenge a Section
    215 order before complying with it, we have had no choice but to act
    now to ensure that our records do not contain personal or other
    sensitive information that we could be forced to disclose to the
    government. Accordingly, my staff and I have been deciding on a case-
    by-case basis to exclude some sensitive information from our files.
        ``While we believe that we have no practical choice but to adopt
    this policy, there is no question that the practice compromises the
    level of services we can provide to our clients.'' \23\
    ---------------------------------------------------------------------------
        \23\ Mary Lieberman Decl. para.para. 23-27.

                              Patriot Act Intelligence Authorities: Recommended Safeguards
    ----------------------------------------------------------------------------------------------------------------
                                                                                                      Recommended
     Intelligence Surveillance Power      Before 9/11             Now              Sunsets?          safeguard (if
                                                                                                  power is retained)
    ----------------------------------------------------------------------------------------------------------------
    FISA records FISA search orders.  FISA search orders  Now these orders    Yes...............  Congress should
      Patriot Act Sec.  215            were available      are available for                       enact legislation
                                       only for certain    any and all                             limiting such
                                       travel-related      ``tangible                              orders to where
                                       ``business''        things,''                               the FBI has
                                       records on basis    including library                       ``specific and
                                       of individualized   records, medical                        articulable
                                       suspicion           records, and                            facts''
                                       connecting          other highly                            connecting
                                       records to          personal records,                       records to
                                       foreign agent..     without                                 foreign agent. In
                                                           individual                              addition,
                                                           suspicion..                             Congress should
                                                                                                   provide a right
                                                                                                   to challenge the
                                                                                                   order, limits on
                                                                                                   the secrecy order
                                                                                                   and a right to
                                                                                                   challenge that
                                                                                                   order, and notice
                                                                                                   and an
                                                                                                   opportunity to
                                                                                                   challenge the use
                                                                                                   of such
                                                                                                   information in
                                                                                                   court.
                                                                                                    SAFE Sec.  4 (S.
                                                                                                   737, 109th Cong.)
    National security letters (no     Were available      Now available       No................  Congress shouild
     court order required) for         only where FBI      without                                 enact legislation
     financial records, telephone      could show          individual                              that restores the
     and ISP bills, consumer credit    ``specific and      suspicion;                              requirement of
     reports..                         articulable         definition of                           individual
      Patriot Act Sec.  505            facts''             ``financial                             suspicion,
      Intelligence Act for FY 2004     connecting          records'' greatly                       provides a right
     Sec.  334                         records to          expanded..                              to challenge
                                       foreign agent..                                             records demands,
                                                                                                   limits the
                                                                                                   secrecy order and
                                                                                                   provides for a
                                                                                                   right to
                                                                                                   challenge the
                                                                                                   secrecy order,
                                                                                                   and providing
                                                                                                   notice to persons
                                                                                                   when the
                                                                                                   governmennt seeks
                                                                                                   to use
                                                                                                   information from
                                                                                                   such demands
                                                                                                   against them in
                                                                                                   court.
                                                                                                    SAFE Sec.  5

    FISA secret searches and          Available only if   Permitted when      Yes...............  Congress should
     wiretaps in criinal               ``primary           ``primary                               clarify that FISC
     investigations.                   purpose'' is to     purpose'' is                            retains
      Patriot Act Sec.  218            obtain foreign      criminal                                supervisory power
                                       intelligence.       investigation, as                       to ensure FISA
                                                           long as ``a                             searches are not
                                                           significant                             directed or
                                                           purpose'' is                            controlled by
                                                           foreign                                 criminal
                                                           intelligence.                           prosecutors
                                                                                                    codify In re All
                                                                                                   Matters, 218 F.
                                                                                                   Supp. 2d 611
                                                                                                   (FISC 2002)
                                        ................    ................    ................  Congress should
                                                                                                   enact legislation
                                                                                                   to give the
                                                                                                   defense access to
                                                                                                   FISA applications
                                                                                                   and warrants,
                                                                                                   subject to the
                                                                                                   national security
                                                                                                   protections in
                                                                                                   the Classified
                                                                                                   Information
                                                                                                   Procedures Act
                                                                                                    S. 1552 Sec.  9
                                                                                                   (108th Cong.);
                                                                                                   Sec.  2528 Sec.
                                                                                                   401 (108th Cong.)
    Extended duration of FISA secret  Electronic          Initial electronic  Yes...............  Congress should
     searches and wiretaps.            surveillance        surveillance for                        extend the sunset
      Patriot Act Sec.  207            orders for 90       6 months,                               of this provision
                                       days, renewal for   renewals for 1                          and investigate
                                       90 days; physical   year; physical                          whether shorter
                                       search orders       search orders                           time periods to
                                       last 45 days.       last 90 days for                        ensure continued
                                                           U.S. persons and                        court oversight
                                                           6 months for                            are appropriate,
                                                           foreign visitors                        and should
                                                           and temporary                           increase
                                                           residents.                              appropriations to
                                                                                                   Justice
                                                                                                   Department and
                                                                                                   FISC to provide
                                                                                                   sufficient
                                                                                                   resources to
                                                                                                   process
                                                                                                   applications.

    FISA secret searches and          All secret search   For non-U.S.        Yes...............  Congress should
     wiretaps without connection to    and surveillance    persons, FISA                           allow the FISC to
     foreign power.                    orders required     secret search or                        presume that a
      Intelligence Reform Act of       probable cause of   surveillance                            non-U.S. person
     2004 Sec.  6001                   connection to       allowed for                             involved in
                                       foreign power.      persons                                 international
                                                           ``involved in                           terrorism is
                                                           international                           acting for a
                                                           terrorism'' or                          foreign
                                                           ``preparations                          government or
                                                           therefore''                             organization, but
                                                           without any                             should not make
                                                           foreign power                           such a
                                                           connection.                             presumption
                                                                                                   mandatory or
                                                                                                   eliminate
                                                                                                   altogether the
                                                                                                   ``foreign power''
                                                                                                   requirement
                                                                                                    Feinstein Amdt.
                                                                                                   to S. 113 (108th
                                                                                                   Cong.)
    FISA roving wiretaps............  No roving wiretaps  Now there are FISA  Yes...............  Congress should
      Patriot Act Sec.  206            under FISA, but     roving wiretaps,                        enact legislation
      Intelligence Act for FY 2002     were available      but unlike                              that would
     Sec.  314                         for criminal        criminal roving                         require FISA
                                       investigations.     wiretaps, FISA                          roving wiretaps
                                                           roving wiretaps                         to observe same
                                                           do not need to                          requirements as
                                                           specify target                          criminal roving
                                                           and agents need                         wiretaps, i.e.,
                                                           not ascertain                           they must (1)
                                                           target is using                         specify a target,
                                                           that telephone.                         and (2) would
                                                                                                   have to ascertain
                                                                                                   target is using
                                                                                                   that facility.
                                                                                                    Safe Act Sec.  2

    FISA surveillance of the          Available only for  Can be used for     Yes...............  Congress should
     Internet, other communications    facilities used     more broadly,                           require rules
     without probable cause with pen/  by agents of        including for                           that define
     trap authority.                   foreign power or    U.S. persons, and                       content for the
      Patriot Act Sec.  214            those involved in   regardless of                           Internet more
                                       international       what facility is                        clearly and
                                       terrorism           being monitored.                        prohibit
                                       activities.                                                 techniques that
                                                                                                   acquire content
                                                                                                   without probable
                                                                                                   cause.
                                                                                                    (no legislatove
                                                                                                   language)
                                      ..................  ..................  ..................  Congress should
                                                                                                   require
                                                                                                   determination of
                                                                                                   relevance to be
                                                                                                   based on a
                                                                                                   statement of
                                                                                                   ``specific and
                                                                                                   articulable
                                                                                                   facts,'' not on
                                                                                                   mere
                                                                                                   certification
                                                                                                    SAFE Act Sec.  6
    ----------------------------------------------------------------------------------------------------------------

     STATEMENT OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR AND CHIEF
     LEGISLATIVE COUNSEL, WASHINGTON LEGISLATIVE OFFICE, AMERICAN
                         CIVIL LIBERTIES UNION

        Mr. Nojeim. Thank you, Chairman Roberts.
        Chairman Roberts. Please understand that virtually every
    word of your very valuable testimony will be in the record and
    feel free to summarize and/or do what you deem appropriate
    under the circumstances.
        Mr. Nojeim. Thank you very much.
        It's a pleasure to testify before you today on behalf of
    the ACLU about the intelligence-related provisions of the USA
    PATRIOT Act. I come before you mindful that today marks the 10-
    year anniversary of the Murrah Building in Oklahoma City. That
    crime and the attacks of September 11, 2001, underscore a
    sobering truth--terrorism has been with us for a long time; it
    will likely be with us for generations to come. The decisions
    that you make in the coming months about the PATRIOT Act will
    be taken with an eye toward that reality.
        The PATRIOT Act became law only 45 days after the September
    11 attacks. Though it acted swiftly, Congress in its wisdom
    included approximately 12 provisions of the Act that sunset on
    December 31, 2005. I would focus your attention on just three
    PATRIOT Act provisions. Two of them deal with records requests
    under FISA and the other with roving wiretaps.
        The PATRIOT Act expanded two existing sections of law that
    allow the FBI to compel people in businesses to produce
    documents. Section 505 of the PATRIOT Act expanded the National
    Security Letter authority to allow the FBI to issue a letter
    compelling Internet service providers, financial institutions
    and consumer credit reporting agencies to produce records about
    people who use or benefit from their services. This power was
    later expanded to include records of car dealers, boat dealers,
    jewelers, real estate professionals, pawn brokers, and others.
        Section 215 of the PATRIOT Act expanded a different
    provision of law to authorize the FBI to more easily obtain a
    court order requiring a person or business to turn over
    documents or things ``sought for'' an investigation to protect
    against international terrorism or clandestine intelligence
    activities.
        In both cases, the PATRIOT Act removed from the law the
    requirement that the records produced pertain to an agent of a
    foreign power--that is, foreign countries, businesses, and
    terrorist organizations. This significantly expanded law
    enforcement access to records pertaining to Americans. In these
    days of data mining, one cannot ignore this stark fact: under
    these provisions the government can easily obtain records
    pertaining to thousands of Americans who have nothing to do
    with terrorism, so long as the records are sought for or are
    allegedly relevant to one of these investigations.
        Neither of these statutes signals the recipient of a letter
    or order that the recipient can challenge in court. Both
    statutes indicate that the recipient can tell no one that the
    recipient has received the order or letter, and that includes
    any attorney with whom they might want to consult. In common
    parlance, the recipient is gagged, and under the statutory
    language the gag stays in place forever.
        We do not ask that you repeal either of these sections of
    the law. Rather, we ask that you restore the agent of a foreign
    power requirement and that you amend the statute to time-limit
    the gag, exempt attorney-client communications from it, and
    allow for court challenges. If these changes are made to the
    NSL statute, they would satisfy the court that struck down that
    statute as a violation of the First and the Fourth Amendment.
        In addition, we ask that you conform the multi-point or
    roving wiretap authority that was created in the PATRIOT Act
    for intelligence wiretaps to the corresponding authority for
    roving wiretaps that appears in the criminal code. Doing this
    would entail borrowing from the criminal code the ascertainment
    requirement that ensures that law enforcement agents listen in
    only on the conversations to which the target is a party. It
    also entails requiring the government to specify in its
    application for a wiretap either identity of the person whose
    phone or computer would be tapped or to specify the facility
    that would be tapped.
        In short, we're not asking that law enforcement tools be
    taken away, rather that they be made subject to reasonable
    checks and balances, such as meaningful judicial oversight and
    appropriate disclosure to the public of the use of the power.
        Congress could easily adopt all of the reforms that I have
    mentioned and most of the reforms that I have mentioned in my
    written testimony by enacting the Security and Freedom
    Enhancement Act or SAFE Act, S. 737. This bipartisan
    legislation, co-sponsored by Senators Craig and Durbin,
    contains a series of carefully calibrated adjustments to the
    PATRIOT Act that would go a long way toward bringing it more
    into line with the Constitution and advancing the goal of
    keeping America both safe and free.
        Thank you.
        Chairman Roberts. We thank you. Mr. Dempsey, please.
        [The prepared statement of Mr. Dempsey follows:]

          Prepared Statement of James X. Dempsey, Executive Director,
                      Center for Democracy & Technology\1\

        Mr. Chairman, Sen. Rockefeller, Members of the Committee, thank you
    for the opportunity to testify at this important hearing. In CDT's
    view, there are few if any provisions in the PATRIOT Act that are per
    se unreasonable. We see not a single power in the Act that should
    sunset. The question before us--and it is one of the most important
    questions in a democratic society--is what checks and balances should
    apply to those powers. In our view, the investigative powers of the
    PATRIOT Act would be just as effective, maybe even more so, if subject
    to some basic checks and balances--
    ---------------------------------------------------------------------------
        \1\ The Center for Democracy and Technology is a non-profit, public
    interest organization dedicated to promoting civil liberties and
    democratic values for the new digital communications media. Among our
    priorities is preserving the balance between security and freedom after
    9/11. CDT coordinates the Digital Privacy and Security Working Group
    (DPSWG), a forum for computer, communications, and public interest
    organizations, companies and associations interested in information
    privacy and security issues.
    ---------------------------------------------------------------------------
         particularized suspicion,
         a minimal factual showing,
         judicial approval,
         eventual notice to targets in a wider range of
    circumstances, and
         more detailed unclassified reporting to Congress.
        In particular, we urge the Committee to enhance the role of the
    judiciary. We fully recognize that intelligence investigations must
    sometimes proceed with speed and that they often require secrecy. But
    in this age of cell phones, ubiquitous Internet access, encryption,
    BlackBerries and other communications technologies, it seems
    unnecessary to vest domestic intelligence agencies with extra-judicial
    powers. FBI agents and others operating domestically in intelligence
    matters--who have to seek supervisory approval for exercise of PATRIOT
    Act powers in almost all cases anyhow--could electronically prepare
    minimal fact-based applications for access to information, submit them
    to judges electronically, and receive approval electronically,
    promptly, efficiently, but with the crucial check provided by a neutral
    and detached magistrate.
        CDT supports the Security and Freedom Enhancement (SAFE) Act, a
    narrowly tailored bipartisan bill that would revise several provisions
    of the PATRIOT Act. It would retain all of the expanded authorities
    created by the Act but place important limits on them. It would protect
    the constitutional rights of American citizens while preserving the
    powers law enforcement needs to fight terrorism.

       PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF STANDARDS
                                 AND OVERSIGHT

        At the outset, let me stress some basic points on which I hope
    there is widespread agreement:
         Terrorism poses a grave and imminent threat to our nation.
    There are people--almost certainly some in the United States--today
    planning additional terrorist attacks, perhaps involving biological,
    chemical or nuclear materials.
         The government must have strong investigative authorities
    to collect information to prevent terrorism. These authorities must
    include the ability to conduct electronic surveillance, carry out
    physical searches effectively, and obtain transactional records or
    business records pertaining to suspected terrorists.
         These authorities, however, must be guided by the Fourth
    Amendment, and subject to Executive and judicial controls as well as
    legislative oversight and a measure of public transparency.

     SINCE 9/11, THERE HAVE BEEN EGREGIOUS AND COUNTERPRODUCTIVE ABUSES OF
            CIVIL LIBERTIES AND HUMAN RIGHTS OUTSIDE THE PATRIOT ACT

        Since 9/11, the Federal Government has engaged in serious abuses of
    constitutional and human rights, some now documented in official
    reports. The most egregious of these abuses have taken place outside of
    the PATRIOT Act or any other Congressional authorization. These
    include:
         The torture at Abu Ghraib and other locations.
         The detention of US citizens in military jails without
    criminal charges.
         The detention of foreign nationals in Guantanamo and other
    locations, under what the executive branch claimed was unreviewable
    authority, and the continuing detention of those individuals after the
    Supreme Court rejected the Administration's claims.
         The rendition of detainees to other governments known to
    engage in torture.
         Haphazard and prolonged post 9/11 detentions of foreign
    nationals in the U.S., the physical abuse of some and the blanket
    closing of deportation hearings.
         Abuse of the material witness law to hold individuals in
    jail without charges.

    CONCERNS WITH THE PATRIOT ACT: INTELLIGENCE SEARCHES--BROADER SCOPE AND
                 GREATER SECRECY CALL FOR COMPENSATING CONTROLS

        In the PATRIOT Act, not surprisingly given the pressures under
    which that law was enacted and the lack of considered deliberation, the
    pendulum swung too far, and Congress eliminated important checks and
    balances that should now be restored in the interest of both freedom
    and security. One of the most fundamental themes of the PATRIOT Act was
    the elimination of checks and balances on intelligence access to
    financial, communications and other records.
        As this Committee well knows, the FBI operates under two sets of
    authorities when investigating international terrorism: criminal and
    foreign intelligence/counterintelligence. Over the past 25 years, a
    series of intelligence authorities have grown up giving investigators
    the ability to conduct electronic surveillance and obtain access to
    stored records.
        Constitutionally speaking, there are two concerns with national
    security authorities:
         The scope of intelligence investigations is broader than
    criminal investigations. Intelligence investigations cover both legal
    and illegal activities. In criminal investigations, the criminal code
    provides an outer boundary, and a prosecutor is often involved to guide
    and control the investigation. An intelligence investigation is driven
    not by a desire to arrest and convict, but by a range of foreign policy
    interests. The breadth of disclosure of information is greater,
    including intelligence, military, diplomacy, policy development,
    protective, immigration, and law enforcement.
         Intelligence investigations require a greater degree of
    secrecy than criminal investigations. In criminal cases, an important
    protection is afforded by notice to the target and other affected
    parties as the government collects information and the notice and right
    to confront when a matter reaches trial. Under the intelligence rules,
    persons whose records are accessed by the government are never provided
    notice unless the evidence is introduced against them in court. While
    recipients of grand jury subpoenas can publicly complain about
    overbreadth and often can even notify the target, recipients of
    intelligence disclosure orders are barred from disclosing their
    existence.
        The PATRIOT Act failed to include protections that can respond to
    these difference and provide appropriate protection of Fourth Amendment
    principles.

    Particularized Suspicion and a Factual Basis for Disclosure Demands
        In the PATRIOT Act, Sections 214 (relating to pen registers under
    FISA), 215 (relating to travel records and other business records) and
    505 (relating to National Security Letters for credit reports,
    financial records and communications transactional data) all pose the
    same set of issues. Prior to the PATRIOT Act, the FBI was able to
    obtain access to certain key categories of information upon a showing
    that the information pertained to a foreign power or an agent of a
    foreign power:
         Real time interception of transactional data concerning
    electronic communications was available with a pen register or trap and
    trace order issued by the FISA court.
         Records regarding airline travel, vehicle rental, hotels
    and motels and storage facilities were available with a court order
    issued by the FISA court.
         Financial records, credit reports, and stored
    transactional records regarding telephone or Internet communications
    were available with a National Security Letter issued by a senior FBI
    official.
        In all cases, prior to PATRIOT, these records were available upon a
    certification or showing that there were ``specific and articulable
    facts'' giving reason to believe that the person whose records were
    being sought was a foreign power or an agent of a foreign power, or had
    been in contact with a foreign power or its agent. The FBI complained
    that this standard was too narrow. Rather than come up with a focused
    standard, the PATRIOT Act eliminated both prongs of this standard: It
    eliminated the particularity requirement; and it eliminated the
    requirement that the FBI have any factual basis for its interest in
    certain records.
        FBI and DOJ descriptions of these changes in guidance to the field
    and in statements to Congress suggest that the government does not
    interpret them as going as far as they seem to on their face. The FBI
    indicates that it still names particular subjects in its applications,
    and both DOJ and FBI indicate that there is some factual basis for
    every request.
        The fact that records must be relevant to an open investigation is
    not any real protection at all. Consider the following: there is
    undoubtedly a properly authorized FCI investigation of al Qaeda (or
    UBL). Under sections 214, 215 and 505, the FBI could get any records
    from any entity by claiming that they were relevant to that
    investigation. Even though 215 requires a court order, the statute
    requires the judge to grant the governments request in whole or part so
    long as the government makes the proper assertion--that the records are
    sought for an existing investigation, however broad that investigation.
    There is no requirement that the application or the court order or NSL
    name the person or account for which information is sought.
        Both the particularity requirement and the factual showing
    requirement should be made explicit in statute, in order to prevent
    overbroad or ill-focused searches and to provide clear guidance to the
    field and the FISA court.
        At the same time, the concept of a National Security Letter should
    be revisited. in this age of cell phones, ubiquitous Internet access,
    encryption, BlackBerries and other communications technologies, it
    seems unnecessary to vest domestic intelligence agencies with extra-
    judicial powers. FBI agents and others operating domestically in
    intelligence matters--who have to seek supervisory approval for
    exercise of PATRIOT Act powers in almost all cases anyhow--could
    electronically prepare minimal fact-based applications for access to
    information, submit them to judges electronically, and receive approval
    electronically, promptly, efficiently, but with the crucial check
    provided by a neutral and detached magistrate.

    Notice
        A second area in which the PATRIOT Act lacks adequate protections
    is in the area of notice. Under the PATRIOT Act, as in the past,
    intelligence authorities are exercised under a cloak of perpetual
    secrecy. In the world of spy versus spy, surveillances could go on for
    many years, the same techniques could be used in the same context for
    decades, and known spies would be allowed to operate with no overt
    action ever taken against them. To a certain extent, these secrecy
    interests remain paramount in counter-terrorism investigations. But the
    wall between intelligence and criminal has now been brought down, and
    information collected in intelligence investigations is now being ever
    more widely shared and used. The question of when and how individuals
    are provided notice needs to be reexamined. Especially individuals
    whose records were obtained by the government but who were later
    determined not to be of any interest to the government should be told
    of what happened to them.
        In ordinary criminal investigations, the PATRIOT Act created what
    might be called ``off the books surveillance.'' Section 212 authorizes
    an ISP to disclose e-mail, stored voicemail, draft documents and other
    stored information to law enforcement when government states that there
    is an emergency involving a threat to life. Section 217 authorizes the
    government to carry out real-time surveillance when an ISP, a
    university, or another system operator authorizes the surveillance on
    the grounds that there is a ``trespasser'' within the operator's
    computer network. Under both sections 212 and 217:
         There is never a report to a judge. (In contrast, under
    both Title III and FISA, when electronic surveillance is carried out on
    an emergency basis, an application must be filed after the fact.)
         There is no time limit placed on the disclosures or
    interceptions. (A Title III wiretap cannot continue for more than 30
    days without new approval.)
         There is never notice to the person whose communications
    are intercepted or disclosed.
         The interceptions and disclosures are not reported to
    Congress.
        DOJ, in its defense of Section 217 claims that the privacy of law-
    abiding computer users is protected because only the communications of
    the computer trespasser can be intercepted. But what if the system
    operator is wrong? What if there is a legitimate emergency, but law
    enforcement targets the wrong person. Under Sections 212 and 217, a
    guilty person gets more notice than an innocent person--the guilty
    person is told of the surveillance or disclosure but the innocent
    person need never be notified. That should be rectified.

    Congressional Oversight and Public Reporting
        Currently, the Justice Department is required to report to Congress
    on its use of some sections of the PATRIOT Act, such as its use of
    Section 215, but it is not required statutorily to report on its use of
    other sections. Although the Justice Department, under the pressure of
    the sunsets and with considerable prodding from Congress, has
    voluntarily reported some information on its use of other PATRIOT Act
    powers, like delayed notice warrants under Section 213, routine and
    more detailed reporting would increase both Congressional oversight and
    public transparency. Congress should codify reporting requirements,
    enabling Congress and the public to assess the efficacy of these
    provisions and to gauge the likelihood of their misuse.

                     SPECIFIC PROVISIONS OF THE PATRIOT ACT

        In this section, we will comment on specific provisions of the
    PATRIOT Act.

    Sneak and Peek Searches
        Section 213, which does not sunset but nevertheless should be re-
    examined, is a good idea gone too far. It is also a perfect example of
    how the PATRIOT Act was used to expand government powers, without
    suitable checks and balances, in areas having nothing to do with
    terrorism. Finally, it illustrates how, when rhetoric is left behind,
    it is possible to frame appropriate checks and balances for what, by
    any definition, are some especially intrusive powers.
        As a starting point, of course, in serious investigations of
    international terrorists, the government should be able to act with
    secrecy. But guess what proponents of Section 213 never mention? In
    international terrorism investigations, even before the PATRIOT Act,
    the government already had the authority to carry out secret searches.
    The Foreign Intelligence Surveillance Act was amended in 1994 to allow
    secret searches in intelligence investigations, including international
    terrorism cases; before 1994, the Attorney General authorized secret
    searches in intelligence investigations of terrorist groups without any
    judicial scrutiny. And during the limited debate over the PATRIOT Act,
    reasonable voices proposed that secret searches be statutorily
    authorized in criminal investigations of terrorism.
        As enacted, however, Section 213 was not limited to terrorism
    cases. It would astound most Americans that government agents could
    enter their homes while they are asleep or their places of business
    while they are away and carry out a secret search or seizure and not
    tell them until weeks or months later. It would especially astound them
    that this authority is available for all Federal offenses, ranging from
    weapons of mass destruction investigations to student loan cases. That
    is what Section 213 of the PATRIOT Act authorizes. Indeed, the Justice
    Department has admitted that it has used Section 213 sneak and peek
    authority in nonviolent cases having nothing to do with terrorism.
    These include, according to the Justice Department's October 24, 2003
    letter to Senator Stevens, an investigation of judicial corruption,
    where agents carried out a sneak and peek search of a judge's chambers,
    a fraudulent checks case, and a health care fraud investigation, which
    involved a sneak and peek of a home nursing care business.
        Section 213 fails in its stated purpose of establishing a uniform
    statutory standard applicable to sneak and peek searches throughout the
    United States. For a number of years, under various standards, courts
    had allowed delayed notice of sneak and peek searches. The term ``sneak
    and peek,'' by the way, was not contrived by opponents of the PATRIOT
    Act--before the PATRIOT Act, it was used by FBI agents, DOJ officials,
    and judicial opinions. Rather than ``codifying existing case law under
    a single national standard to streamline detective work,'' Section 213
    confuses the law. Rather than trying to devise a standard suitable to
    breaking and entering into homes and offices for delayed notice
    searches, Congress, in the haste of the PATRIOT Act, merely
    incorporated by reference a definition of ``adverse result'' adopted in
    1986 for completely unrelated purposes, concerning access to e-mail
    stored on the computer of an ISP. Under that standard, not only can
    secret searches of homes and offices be allowed in cases that could
    result in endangering the life of a person or destruction of evidence,
    but also in any case that might involve ``intimidation of potential
    witnesses'' or ``seriously jeopardizing an investigation'' or ``unduly
    delaying a trial.'' These broad concepts offer little guidance to
    judges and will bring about no national uniformity in sneak and peek
    cases.
        Section 213 also leaves judges guessing as to how long notice may
    be delayed. The Second and Ninth Circuits had adopted, as a basic
    presumption, a 7-day rule for the initial delay. Section 213 says that
    notice may be delayed for ``a reasonable period.'' Does this mean that
    lower courts in the Ninth Circuit and the Second Circuit no longer have
    to adhere to the 7-day rule? At the least, it suggests that courts
    outside those Circuits could make up their own rules. ``Reasonable
    period'' affords judges considering sneak and peek sneak and peek
    searches no uniform standard.
        If, as Section 213 supporters claim, sneak and peek searches are a
    ``time-honored tool,'' and if courts ``around the country have been
    issuing them for decades,'' as DOJ claims, why did the Justice
    Department push so hard in the PATRIOT Act for a Section 213 applicable
    to all cases? The answer, I believe, is that the sneak and peek concept
    stands on shaky constitutional ground, and the Justice Department was
    trying to bolster it with Congressional action--even action by a
    Congress that thought it was voting on an antiterrorism bill, not a
    general crimes bill.
        The fact is, there is a constitutional problem with Section 213:
    The sneak and peek cases rest on an interpretation of the Fourth
    Amendment that is no longer valid. The major Circuit Court opinions
    allowing sneak and peek searches date from the 1986, United States v.
    Freitas, 800 F.2d 1451 (9th Cir.), and 1990, United States v. Villegas,
    899 F.2d 1324 (2d Cir.). These cases were premised on the assumption
    that notice was not an element of the Fourth Amendment. United States
    v. Pangburn, 983 F.2d 449, 453 (2d Cir. 1993) starts its discussion of
    sneak and peek searches stating: ``No provision specifically requiring
    notice of the execution of a search warrant is included in the Fourth
    Amendment.'' Pangburn goes on to state ``The Fourth Amendment does not
    deal with notice of any kind. . . .''
        Yet in Wilson v. Arkansas, 514 U.S. 927 (1995), in a unanimous
    opinion by Justice Thomas, the Supreme Court held that the knock and
    notice requirement of common law was incorporated in the Fourth
    Amendment as part of the constitutional inquiry into reasonableness.
    Notice is part of the Fourth Amendment, the court held, directly
    repudiating the premise of the sneak and peek cases. Wilson v. Arkansas
    makes it clear that a search without notice is not always unreasonable,
    but surely the case requires a different analysis of the issue than was
    given it by those courts that assumed that notice was not a part of the
    constitutional framework for searches at all. A much more carefully
    crafted set of standards for sneak and peek searches, including both
    stricter limits of the circumstances under which they can be approved
    and a 7-day time limit, is called for.
        Section 213's attempted codification of the sneak and peek
    authority went too far. To fix it, Congress should leave the statutory
    authority in place but add several limitations:
         Congress should narrow the circumstances in which
    notification may be delayed so that Section 213 does not apply to
    virtually every search. Under Section 213, the government need only
    show that providing notice would seriously jeopardize an investigation
    or unduly delay a trial. This ``catch-all'' standard could apply in
    almost every case and therefore is simply too broad for this uniquely
    intrusive type of search. Congress should allow sneak and peek searches
    only if giving notice would likely result in: danger to the life or
    physical safety of an individual; flight from prosecution; destruction
    of or tampering with evidence; or intimidation of potential witnesses.
         Congress should require that any delay in notification not
    extend for more than 7 days without additional judicial authorization.
    Section 213 permits delay for a ``reasonable time'' period, which is
    undefined in the statute. Pre-PATRIOT Act case law in the Ninth and
    Second Circuits stated that 7 days was an appropriate time period.
    Indeed, DOJ' s internal guidance recognizes that 7 days is the most
    common period, but also suggests that it may seek much longer delays.
    Congress should set a basic 7 day rule, while permitting the Justice
    Department to obtain additional 7-day extensions of the delay if it can
    continue to meet one of the requirements for authorizing delay in the
    first instance.
         Section 213 only requires a judge to find ``reasonable
    cause'' to believe that an adverse result will happen if notice is not
    delayed. The Supreme Court has allowed a limited exception to the
    notice rule upon ``reasonable suspicion,'' by allowing police to enter
    and provide notice as they were entering when they faced a life-
    threatening situation in executing a warrant. Richards v. Wisconsin,
    520 U.S. 385 (1997). If ``reasonable suspicion'' is the standard for
    delaying notice by minutes, probable cause would be a more appropriate
    standard when notice is delayed for days or weeks.
         Finally, Congress should require the Justice Department to
    continue to report on its use of the ``sneak and peek'' power. Congress
    should codify a requirement that the Attorney General report the number
    of requests for delayed notification, the number of those requests
    granted or denied, the number of extensions requested, granted and
    denied, and the prong of the statutory test used for each case, so that
    Congress and the public can determine if this technique is being
    narrowly applied.
        Even with these changes, sneak and peek searches, especially of
    homes, stand on shaky constitutional ground except in investigations of
    the most serious crimes. Judicial caution is necessary. The reasonable
    changes outlined above would leave the statutory authority in place but
    bring it under more appropriate limitations and oversight.

    Section 215--Business Records
        As noted above, Section 215 amended the Foreign Intelligence
    Surveillance Act to authorize the government to obtain a court order
    from the FISA court or designated magistrates to seize ``any tangible
    things (including books, records, papers, documents, and other items)''
    that an FBI agent claims are ``sought for'' an authorized investigation
    ``to protect against international terrorism or clandestine
    intelligence activities.'' The subject of the order need not be
    suspected of any involvement in terrorism whatsoever; indeed, if the
    statute is read literally, the order need not name any particular
    person but may encompass entire collections of data related to many
    individuals. The Justice Department often says that the order can be
    issued only after a court determines that the records being sought are
    ``relevant'' to a terrorism investigation, but the PATRIOT Act
    provision says only that the application must specify that the records
    concerned are ``sought for'' an authorized investigation. And the judge
    does not determine that the records are in fact ``sought for'' the
    investigation--the judge only can determine whether the FBI agent has
    said that they are sought for an investigation. The PATRIOT Act does
    not require that applications must be under oath. It doesn't even
    require that the application must be in writing. It doesn't require, as
    for example the pen register law does, that the application must
    indicate what agency is conducting the investigation. Section 505 of
    the PATRIOT Act similarly expanded the government's power to obtain
    telephone and e-mail transactional records, credit reports and
    financial data with the use of a document called the National Security
    Letter (NSL), which is issued by FBI officials without judicial
    approval.
        The Justice Department argues that Section 215 merely gives to
    intelligence agents the same powers available in criminal cases, since
    investigators in criminal cases can obtain anything with a subpoena
    issued on a relevance standard. First of all, as noted, a criminal case
    is at least cabined by the criminal code--something is relevant only if
    it relates to the commission of a crime. But on the intelligence side,
    the government need not be investigating crimes--at least for non-U.S.
    persons, it can investigate purely legal activities by those suspected
    of being agents of foreign powers.
        There are other protections applicable to criminal subpoenas that
    are not available under Section 215 and the NSLs. For one, third party
    recipients of criminal subpoenas can notify the record subject, either
    immediately or after a required delay. Section 215 and the NSLs
    prohibit the recipient of a disclosure order from ever telling the
    record subject, which means that the person whose privacy has been
    invaded never has a chance to rectify any mistake or seek redress for
    any abuse. Second, the protections of the criminal justice system
    provide an opportunity for persons to assert their rights and protect
    their privacy, but those adversarial processes are not available in
    intelligence investigations that do not end up in criminal charges.

    Use of FISA evidence in criminal cases without full due process
        Before the PATRIOT Act, there was no legal barrier to using FISA
    information in criminal cases. The wall between prosecutors and
    intelligence officers, as it evolved over the years, was a secret
    invention of the FISA court, the Department's Office of Intelligence
    Policy and Review, and the FBI, with little basis in FISA itself. It
    did not serve either civil liberties or national security interests.
    The primary purpose standard did not have to be changed to promote
    coordination and information sharing.
        As a result of the PATRIOT Act and the decision of the FISA Review
    Court, criminal investigators are now able to initiate and control FISA
    surveillances. The number of FISA has gone up dramatically. The FISA
    court now issues more surveillance orders in national security cases
    than all the other Federal judges issue in all other criminal cases. In
    the past, when FISA evidence has been introduced in criminal cases, it
    has not been subject to the normal adversarial process. Unlike ordinary
    criminal defendants in Title III cases, criminal defendants in FISA
    cases have not gotten access to the affidavit serving as the basis for
    the interception order. They have therefore been unable to meaningfully
    challenge the basis for the search. Defendants have also been
    constrained in getting access to any portions of the tapes other than
    those introduced against them or meeting the government's strict
    interpretation of what is exculpatory. If FISA evidence is to be used
    more widely in criminal cases, and if criminal prosecutors are able to
    initiate and control surveillances using the FISA standard, then those
    surveillances should be subject to the normal criminal adversarial
    process. Congress should make the use of FISA evidence in criminal
    cases subject to the Classified Information Procedures Act. Congress
    should also require more extensive public reporting on the use of FISA,
    to allow better public oversight, more like the useful reports issued
    for other criminal wiretap orders.

    Definition of ``domestic terrorism''
        The PATRIOT Act's definition of domestic terrorism is a looming
    problem. Section 802 of the Act defines domestic terrorism as acts
    dangerous to human life that violate any State or Federal criminal law
    and appear to be intended to intimidate civilians or influence
    government policy. 18 USC 2331(5). Under the PATRIOT Act, this
    definition has three consequences--the definition is used as the basis
    for:
         Seizure of assets (Sec. 806)
         Disclosure of educational records (Secs. 507 and 508)
         Nationwide search warrants (Sec. 219)
        The definition appears many more times in Patriot II, where it
    essentially becomes an excuse for analysis and consideration. Congress
    should either amend the definition or refrain from using it. It
    essentially amounts as a transfer of discretion to the executive
    branch, which can pick and choose what it will treat as terrorism, not
    only in charging decisions but also in the selection of investigative
    techniques and in the questioning of individuals.

                                    SAFE ACT

        CDT strongly supports that the Security and Freedom Enhancement
    (SAFE) Act is a narrowly tailored bipartisan bill that would revise
    several provisions of the USA PATRIOT Act. It would retain all of the
    expanded authorities created by the PATRIOT Act but place important
    limits on these authorities. It would protect the constitutional rights
    of American citizens while preserving the powers law enforcement needs
    to fight terrorism.

    Section 2--FISA Roving Wiretaps (Section 206 of the PATRIOT Act)
        The SAFE Act would retain the PATRIOT Act's authorization of roving
    wiretaps and ``John Doe'' wiretaps under the Foreign Intelligence
    Surveillance Act (FISA), but would eliminate ``John Doe'' roving
    wiretaps, a sweeping power never before authorized by Congress. A
    ``John Doe'' roving wiretap does not identify the person or the phone
    to be wiretapped. The SAFE Act would also require law enforcement to
    ascertain the presence of the target of the wiretap before beginning
    surveillance. This would protect innocent Americans from unnecessary
    surveillance.

    Section 3--``Sneak & Peek'' Searches (Section 213)
        The SAFE Act would retain the PATRIOT Act's authorization of
    delayed notification or ``sneak and peek'' searches when one of an
    enumerated list of specific, compelling reasons to delay notice is
    satisfied. However, it would eliminate the catch-all provision that
    allows sneak and peek searches in any circumstances seriously
    jeopardizing an investigation or unduly delaying a trial. The SAFE Act
    would require notification of a covert search within 7 days, instead of
    the undefined delay that is currently permitted by the PATRIOT Act. A
    court could allow unlimited additional 21-day delays of notice in
    specific, compelling circumstances.

    Section 4--FISA Orders for Library and Other Personal Records (Section
            215)
        The SAFE Act would retain the PATRIOT Act's expansion of the FISA
    records provision, which allowed the FBI to obtain ``any tangible
    things'' from any entity. However, it would restore a standard of
    individualized suspicion for obtaining a FISA order and create
    procedural protections to prevent abuses. The government would be able
    to obtain an order if they could show facts indicating a reason to
    believe the tangible things sought relate to a suspected terrorist or
    spy. As is required for grand jury subpoenas, the SAFE Act would give
    the recipient of a FISA order the right to challenge the order, require
    a showing by the government that a gag order is necessary, place a time
    limit on the gag order (which could be extended by the court), and give
    a recipient the right to challenge the gag order. The SAFE Act would
    require notice to the target of a FISA order if the government seeks to
    use the things obtained from the order in a subsequent proceeding, and
    give the target an opportunity to challenge the use of those things.
    Such notice and challenge provisions are required for other FISA
    authorities (wiretaps, physical searches, pen registers, and trap and
    trace devices).

    Section 5--National Security Letters (Section 505)
        The SAFE Act would restore a standard of individualized suspicion
    for using an NSL, requiring that the government have reason to believe
    the records sought relate to a suspected terrorist or spy: As is the
    case for grand jury subpoenas, the SAFE Act would give the recipient of
    an NSL the right to challenge the letter and the nondisclosure
    requirement, and place a time limit on the nondisclosure requirement
    (which could be extended by the court). As is the case for FISA
    authorities, the SAFE Act would give notice to the target of an NSL if
    the government seeks to use the records obtained from the NSL in a
    subsequent proceeding, and give the target an opportunity to challenge
    the use of those records.

    Section 6--Pen Registers and Trap and Trace Devices (Section 216)
        The SAFE Act would retain the PATRIOT Act's expansion of the pen/
    trap authority to electronic communications. In recognition of the vast
    amount of sensitive information that law enforcement can now access,
    the SAFE Act would create modest safeguards allowing increased
    Congressional, public, and judicial oversight of pen/trap usage. The
    SAFE Act would require additional Congressional reporting, require
    delayed notice to individuals who are targets of pen/traps (pen/trap
    targets currently receive no notice, unlike the targets of wiretaps),
    and slightly raise the burden of proof for obtaining pen/trap orders.
    Under the current standard, the government need only to certify that
    the information sought is relevant, a certification that a judge has no
    power to question. Under the revised standard, the government would
    have to show facts indicating a reason to believe that the information
    sought is relevant.

    Section 7--Domestic Terrorism Definition (Section 802)
        The PATRIOT Act's overbroad definition of domestic terrorism could
    include acts of civil disobedience by political organizations. While
    civil disobedience is and should be illegal, it is not necessarily
    terrorism. The SAFE Act would limit the qualifying offenses for
    domestic terrorism to those that constitute a Federal crime of
    terrorism, instead of any Federal or State crime, as is currently the
    case.

    Section 8--FISA Public Reporting
        The PATRIOT Act made it much easier for law enforcement to use FISA
    to conduct secret surveillance on American citizens regardless of
    whether they are suspected of involvement in terrorism or espionage and
    whether the primary purpose of the underlying investigation is
    intelligence gathering. In 2003, the most recent year for which
    statistics are available, the number of FISA wiretaps exceeded the
    number of criminal wiretaps for the first time since FISA became law.
    It is important for Congress and the American people to learn more
    about how the FBI is using FISA since the passage of the PATRIOT Act.
    Therefore, the SAFE Act would require increased public reporting on the
    use of FISA.

                                   CONCLUSION

        In the debate over the PATRIOT Act, civil libertarians did not
    argue that the government should be denied the tools it needs to
    monitor terrorists' communications or otherwise carry out effective
    investigations. Instead, privacy advocates urged that those powers be
    focused and subject to clear standards and judicial review. The tragedy
    of the response to September 11 is not that the government has been
    given new powers--it is that those new powers have been granted without
    standards or checks and balances.
         Of course, the FBI should be able to carry out roving taps
    during intelligence investigations of terrorism, just as it has long
    been able to do in criminal investigations of terrorism. But the
    PATRIOT Act standard for roving taps in intelligence cases lacks
    important procedural protections applicable in criminal cases.
         Of course, the law should clearly allow the government to
    intercept transactional data about Internet communications (something
    the government was doing before the PATRIOT Act anyhow). But the pen
    register/trap and trace standard for both Internet communications and
    telephones, under both the criminal wiretap law and under FISA, is so
    low that judges are reduced to mere rubber stamps, with no authority to
    even consider the factual basis for a surveillance application.
         Of course, prosecutors should be allowed to use FISA
    evidence in criminal cases (they did so on many occasions before the
    PATRIOT Act) and to coordinate intelligence and criminal investigations
    (there was no legal bar to doing so before the PATRIOT Act). But FISA
    evidence in criminal cases should not be shielded from the adversarial
    process (as it has been in every case to date).
        We need limits on government surveillance and guidelines for the
    use of information not merely to protect individual rights but to focus
    government activity on those planning violence. The criminal standard
    and the principle of particularized suspicion keep the government from
    being diverted into investigations guided by politics, religion or
    ethnicity. Meaningful judicial controls do not tie the government's
    hands--they ensure that the guilty are identified and that the innocent
    are promptly exonerated.
                                     ______

                     Appendix--Overview of PATRIOT Sunsets

        Of over 150 provisions in the PATRIOT Act, only 16 provisions are
    covered by the sunset. Some of those covered are uncontroversial, while
    some of the most controversial provisions in the Act are not slated to
    sunset. The sunset does not apply to pending investigations.
        Here's what the sunset covers--bold indicates those that are
    controversial in CDT's view--we have no objections to the others:
        Sec. 201--certain terrorism crimes as wiretap predicates
        Sec. 202--computer fraud as wiretap predicate
        Sec. 203(b)--sharing criminal wiretap information w/intelligence
    agencies
        Sec. 204--technical clarification of no conflict between Title III
    and FISA
        Sec. 206--roving taps under FISA
        Sec. 207--extending duration of FISA taps of non-us persons
        Sec. 209--seizure of voice mail pursuant to warrant
        Sec. 212--emergency disclosures of e-mail w/o a court order
        Sec. 214-- lowering standard for pen registers and trap and trace
    devices under FISA
        Sec. 215-- access to business records under FISA (the ``library
    records'' provision)
        Sec. 217-- interception of computer trespasser communications w/o a
    court order
        Sec. 218--the ``significant purpose'' provision
        Sec. 220--nationwide service of search warrant for electronic
    evidence
        Sec. 223--civil liability for unauthorized disclosures of wiretap
    info
        Sec. 224--the sunset provision itself
        Sec. 225--immunity for compliance with FISA wiretap

        A number of highly controversial PATRIOT provisions are not covered
    by the sunset, and deserve to be reconsidered by Congress, including:

        Sec 203(a)--sharing grand jury information
        Sec. 213--sneak and peek searches
        Sec. 216--pen registers for the Internet
        Sec. 358--exceptions to the financial privacy laws
        Sec. 505--``National Security Letter'' exceptions to privacy laws
        Sec. 802--definition of domestic terrorism

     STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR
                        DEMOCRACY AND TECHNOLOGY

        Mr. Dempsey. Mr. Chairman, Vice Chairman Rockefeller,
    Senators, good afternoon. Thank you for the opportunity to
    testify at this important hearing.
        Let me start out by stressing that, in the view of the
    Center for Democracy and Technology, as a civil liberties
    advocacy organization, we see few, if any, provisions in the
    PATRIOT Act that are per se unjustified. We see not a single
    power in the Act that needs to sunset or go away entirely.
    However, there are serious and legitimate concerns with some of
    the provisions. That is understandable, given the haste with
    which the law was enacted.
        In 2001, in response to some legitimate complaints of the
    Administration that the prior rules for counterterrorism
    investigations were unreasonable or were out of date or ill-
    suited to the threat of terrorism, Congress adopted the PATRIOT
    Act, but it really didn't come up with better rules. In the
    anxiety of those weeks after
    9/11, Congress eliminated the old rules but didn't replace them
    with any new ones, giving the Executive branch too much
    latitude, in some cases almost carte blanche.
        The question before this Committee and before the Congress
    between now and December is what checks and balances should
    apply to these powers. As I will explain later, the bipartisan
    SAFE Act introduced in the Senate offers a set of modest but
    significant reforms that will leave all the PATRIOT Act powers
    in place but add the checks and balances that were left behind
    in October 2001.
        Unless reasonable checks and balances are added, I think
    there are some provisions of the PATRIOT Act that should
    continue to be subject to a sunset, perhaps another 5 years,
    until we can get those rules right. I think we have in front of
    us an opportunity to adopt those checks and balances.
        Now, what do I mean by ``checks and balances?'' Experience
    shows that in both criminal and intelligence investigations
    governmental powers are most effectively exercised and civil
    liberties are best protected if the intrusive data-gathering
    powers of the government are subject to certain principles.
    First among these is particularized suspicion, by which I mean
    that the government should focus its effort on individuals that
    it has some reason to believe are involved in planning
    terrorist activities or are members of a terrorist group or
    have some connection with a terrorist group or have some
    information that might lead to a terrorist group. This isn't
    about the government waiting for the crime to occur. This is in
    the context of preventive action, but to have some
    particularized focus, some particularized suspicion.
        Secondly, the factual basis that the government has to have
    to collect information doesn't have to be very detailed. We're
    not talking about anything close to probable cause. It can be
    as little as a shared address or the fact that someone received
    a phone call from or made a phone call to a suspected
    terrorist. There has to be some minimum specificity based on
    some documentable fact. This is what the FBI sometimes refers
    to as the predicate.
        Third, whenever feasible, intrusive data gathering or
    surveillance should have the prior approval of a judicial
    officer. I'll expand upon this a little bit more in a second.
    There may be emergency exceptions. Under the wiretap law, under
    FISA, there are emergency exceptions. By and large, the rule
    for access to both stored records and real-time communications
    should involve judicial approval.
        Fourth, while secrecy is important and especially important
    in intelligence investigations, as a general rule individuals
    should eventually receive notice of what has happened to them,
    when information has been collected about them, at least when
    the information is used to make decisions about them, not in
    the intelligence context but in the criminal justice context,
    in the immigration context. This is the concept of notice.
        Finally, of course, there needs to be congressional
    oversight, which I know this Committee takes very, very
    seriously, and the process that you are in the midst of now is
    certainly part of that, and you are to be congratulated on
    taking the care with looking at these laws. I also think there
    could be and needs to be some greater public oversight and
    accountability. I think it might actually to some extent
    increase trust in what the government is doing to actually have
    some more information about at least how often and to what
    extent these authorities are being used.
        We have the broader scope of intelligence investigations
    that are not only focused on criminal activity, are not
    cabined-in by the definitions of the criminal law, can clearly
    be used to collect information about legal activities. They
    don't lead up to that crucible of the trial, with the checks
    and balances and the adversarial process that that affords. We
    have the greater degree of secrecy and necessity. The question
    is, what compensating controls can be adopted?
        In considering specifically some of the investigative
    techniques of the PATRIOT Act, I think that there are five
    questions that you should ask. First of all, should the
    government have access to the information at issue? In almost
    every case, indeed I would say in every case covered by the
    PATRIOT Act, I don't question that the government should have
    the right to the information under certain circumstances.
        Secondly, does the investigation require speed? Obviously,
    yes, sometimes it does. Does it require secrecy? Usually, but
    maybe not forever, but certainly secrecy. Saying that the
    government needs the information, and it needs it quickly
    sometimes and it has to operate within secrecy, doesn't answer
    the final two questions.
        Who should be the approving officer for the technique, and
    what should be the standard of proof or the standard of
    justification for access to certain information?
        As I said, in our view, the judicial officer is very
    important. In this age of cell phones and Blackberries and
    encryption and almost ubiquitous Internet access, it seems
    unnecessary to vest domestic intelligence agencies with
    extrajudicial powers. FBI agents and others operating
    domestically in intelligence matters, who have to seek
    supervisory approval for exercise of PATRIOT Act authorities
    anyhow, could electronically prepare a minimal fact-based
    application, submit it electronically to judges, get the
    approval electronically.
        We allow search warrants to be obtained by telephone,
    orally, the FBI agent on one end--in criminal cases--the judge
    on the other end. The FBI agent can write it down by hand on
    his end and just signify the judge's approval. That's
    considered to be a sufficient warrant under the Fourth
    Amendment. We can have the speed, with that neutral magistrate
    in there asking, ``What is the factual basis for this? Explain
    to me a little bit why you think this particular information is
    relevant or necessary to an intelligence investigation.''
        The mere fact that there is an investigation is not
    sufficient, obviously, because we have some very broad
    investigations. There's clearly an ongoing investigation of
    Usama bin Ladin or UBL that's clearly a properly justified
    investigation. The mere fact of the investigation is not
    enough. Yet the PATRIOT Act says that the government can obtain
    pen registers, business records, and the transactional data
    available under National Security Letters just by saying,
    either to a judge or to itself, ``We have an investigation and
    the information is sought for that investigation.''
        That really does not give the kind of focus and the kind of
    minimal check and balance that is appropriate for intruding
    upon privacy by conducting a pen register, accessing business
    records, et cetera.
        We have concerns under the legislation as well with the
    roving tap authority. Clearly, there should be roving tap
    authority in intelligence cases of terrorist groups, just as
    there are criminal investigations of terrorist groups. As Mr.
    Nojeim pointed out, in trying to carry over the criminal
    concept of roving surveillance into the FISA--and they are
    somewhat different statutes, of course, that use different
    terminology--the roving tap concept was sort of pasted in,
    almost sort of shoe-horned into FISA, and I think a mistake was
    made in that process and some of the checks and balances were
    left out, and some of that may have been unintentional but
    certainly now is the time to go back and correct that. I would
    be happy to discuss in more length what I have in mind there.
        Sneak and peek searches has been another controversial
    provision. This one is unrelated to intelligence
    investigations. The sneak and peek authority has existed for a
    number of years under FISA, so intelligence investigations have
    always had the sneak and peek authority. We're talking here
    about criminal investigations. The sneak and peek authority in
    the PATRIOT Act is not limited to terrorism investigations. It
    applies to all Federal criminal investigations.
        The FBI used that to break into a judge's chambers about a
    year ago, using the PATRIOT Act to break into a judge's
    chambers and do a sneak and peek search. They went into an
    office of a health care provider in a Medicare investigation,
    sneak and peek. These are nonviolent crimes, and yet they were
    using PATRIOT Act authority, again without, in our view,
    adequate checks and balances.
        Mr. Chairman, with that I will conclude. I'm happy to go
    into greater depth on some of the individual provisions--the
    use of FISA in criminal proceedings, et cetera. Thank you, Mr.
    Chairman.
        Chairman Roberts. Mr. Dempsey, we thank you for your
    comprehensive statement. I am sure that some of those matters
    will be taken up by the questions. Let me just say that this
    open hearing is the first in a series of three that are
    designed to educate Members as the Senate considers the repeal
    of the sunset provisions and modifications to other
    intelligence authorities.
        On Thursday, the Committee will hold a closed hearing on
    operational matters relating to the Act. Next Wednesday, we
    will hear from the Attorney General and the Director of the FBI
    and the Director of Central Intelligence.
        Ms. MacDonald.
        [The prepared statement of Ms. MacDonald follows:]

            Prepared Statement of Heather MacDonald, Senior Fellow,
             Manhattan Institute for Policy Research, New York, NY

        Thank you, Mr. Chairman and members of the Committee. My name is
    Heather Mac Donald. I am a senior fellow at the Manhattan Institute for
    Policy Research, a think tank in New York City. I have written
    extensively on homeland security for the Washington Post, the Wall
    Street Journal, the Los Angeles Times, and City Journal, among other
    publications. I appreciate the opportunity to testify today on this
    important topic.
        The most powerful weapon against terrorism is intelligence. The
    United States is too big a country to rely on physical barriers against
    attack; the most certain defense is advanced knowledge of terrorist
    plans.
        In recognition of this fact, Congress amended existing surveillance
    powers after 9/11 to ready them for the terrorist challenge. The signal
    achievement of these amendments, known as the Patriot Act, was to tear
    down the regulatory ``wall'' that had prevented anti-terrorism
    intelligence agents and anti-terrorism criminal agents from sharing
    information. That wall was neither constitutionally nor statutorily
    mandated, but its effect was dire: it torpedoed what was probably the
    last chance to foil the 9/11 plot in August 2001. Thanks to the Patriot
    Act, all members of the anti-terrorism community can now collaborate to
    prevent the next tertoristrike before it happens.
        Besides dismantling the wall, the Patriot Act made other necessary
    changes to surveillance law: it extended to terrorism investigators
    powers long enjoyed by criminal investigators, and it brought
    surveillance law into the 21st century of cell phones and e-mail. Where
    the act modestly expands the government's authority, it does so for one
    reason only: to make sure that the government can gather enough
    information to prevent terrorism, not just prosecute it after the fact.
        Each modest expansion of government power in the Patriot Act is
    accompanied by the most effective restraint in our constitutional
    system: judicial review. The act carefully preserves the traditional
    checks and balances that safeguard civil liberties; 4 years after its
    enactment, after constant monitoring by the Justice Department's
    Inspector General and a host of hostile advocacy groups, not a single
    abuse of government power has been found or even alleged.
        This record of restraint is not the picture of the act most often
    presented in the media or by government critics, however. The Patriot
    Act has been the target of the most successful disinformation campaign
    in recent memory. From the day of its passage, law enforcement critics
    have portrayed it as an unprecedented power grab by an administration
    intent on trampling civil rights.
        As lie after lie accumulated, the administration failed utterly to
    respond. As a result, the public is wholly ignorant about what the law
    actually does. Hundreds of city councils have passed resolutions
    against the act; it is a safe bet that none of them know what is in it.
    The Committee is to be congratulated for taking the time to get the
    truth out.
        Though the charges against the Patriot Act have been dazzling in
    their number, they boil down to four main strategies. This afternoon I
    would like to dissect those strategies, with particular reference to
    the most controversial sections of the act: sections 215 and 213.
    Discredit the anti-Patriot Act strategies in those contexts, and you
    have the key for discrediting them in every other context.

                          STRATEGY #1: HIDE THE JUDGE

        The most pervasive tactic used against the Patriot Act is to
    conceal its judicial review provisions, as witnessed in the campaign
    against section 215. Section 215 allows anti-terror investigators
    access to business records in third party hands. The section may also
    be called the librarian's hysteria provision. The American Library
    Association has declared section 215 a ``present danger to the
    constitutional rights and privacy of library users,'' though the
    section says not a word about libraries. Such hyperbole is standard,
    and completely unwarranted.
        The section works as follows: Under Section 215, the FBI may ask
    the Foreign Intelligence Surveillance Court for permission to seek
    business records--the enrollment application of a Saudi national in an
    American flight school, say--while investigating terrorism. The section
    broadens the categories of institutions whose records the government
    may seek, on the post-9/11 recognition that lawmakers cannot anticipate
    what sorts of organizations terrorists may exploit. In the past, to
    trace the steps of a Soviet spy, it may have been enough to get hotel
    bills or storage-locker contracts (two of the four categories of
    records covered in the previous section of the Foreign Intelligence
    Surveillance Act that Section 215 amended); today, however, gumshoes
    may find they need receipts from scuba-diving schools or farm-supply
    stores to piece together a plot to blow up the Golden Gate Bridge.
        Section 215 removed the previous requirement in FISA that the
    records concern an ``agent of a foreign power,'' since the scope of an
    anti-terror investigation is hard to predict in advance. An unwitting
    bystander may have purchased fertilizer for a terrorist posing as an
    aspiring farmer; finding out whether and how much fertilizer was
    purchased may be an essential link in the investigative chain.
        These commonsensical reforms of existing investigative power have
    called forth a crescendo of hysteria. The ACLU warns that with section
    215, ``the FBI could spy on a person because they don't like the books
    she reads, or because they don't like the websites she visits. They
    could spy on her because she wrote a letter to the editor that
    criticized government policy.'' Librarians, certain that the section is
    all about them, are scaring library users with signs warning that the
    government may spy on their reading habits.
        The force of these charges rests on the strategy of hiding the
    judge. Critics of section 215 conceal the fact that any request for
    items under the section requires judicial approval. An FBI agent cannot
    simply walk into a flight school or a library and demand records. The
    bureau must first convince the Foreign Intelligence Surveillance Court
    that the documents are relevant to protecting against international
    terrorism. The chance that the FISA court will approve a 215 order
    because the FBI ``doesn't like the books [a person] reads . . . or
    because she wrote a letter to the editor that criticized government
    policy'' is zero. If the bureau can show, on the other hand, that
    someone using a library's computers was seen with other terror suspects
    in Lahore, Pakistan, and has traveled regularly to Afghanistan under a
    false passport, then the court may well grant an order to get the
    library's Internet logs. As Andrew McCarthy has pointed out, literature
    evidence was a staple of terrorism prosecutions throughout the 1990's.
    Terrorists read bomb manuals, and often leave fingerprints on pages
    spelling out explosive recipes that match the forensics of particular
    bombings (like the 1993 attack on the World Trade Center).
        Before the FBI can even approach the FISA court, agents must have
    gone through multiple levels of bureaucratic review just to open an
    anti-terror investigation. And to get to the court itself, intelligence
    agents must first persuade the Justice Department's Office of
    Intelligence and Policy Review that a section 215 order is warranted, a
    process of persuasion that traditionally has taken months of vetting
    and voluminous documentation.

                         STRATEGY #2: INVENT NEW RIGHTS

        Besides concealing judicial review requirements, anti-Patriot Act
    demagogues also invent new rights. A running theme of the campaign
    against section 215 is that it violates the Fourth Amendment right to
    privacy. But there is no Fourth Amendment privacy right in records or
    other items disclosed to third parties. A credit-card user, for
    example, reveals his purchases to the seller and to the credit-card
    company. He therefore has no privacy expectations in the record of
    those purchases that the Fourth Amendment would protect. As a result,
    the government, whether in a criminal case or a terror investigation,
    may seek his credit-card receipts without a warrant or ``probable
    cause'' to believe that a crime has been or is about to be committed.
        Despite librarians' fervent belief to the contrary, this analysis
    applies equally to library patrons' book borrowing or Internet use. The
    government may obtain those records without violating anyone's Fourth
    Amendment rights, because the patron has already revealed his borrowing
    and web browsing to library staff, other readers (in the days of
    handwritten book checkout cards), and Internet service providers. It is
    worth noting, however, that after all the furor raised about library
    users' privacy rights, section 215 has not once been used to obtain
    library or book store records.
        It is the lack of a Fourth Amendment privacy interest in third
    party records that has allowed prosecutors for decades to seek business
    and library records without any judicial review whatsoever. Section
    215, by requiring judicial review, is far more protective of privacy
    than longstanding subpoena power in ordinary criminal investigations.
    Patriot critics have provided no evidence that the subpoena power has
    been abused to spy on Americans' reading habits; there is no reason to
    believe that section 215 will be any more susceptible to abuse.
        Recipients of a section 215 production order may challenge the
    order in court, as Attorney General Alberto Gonzales recently
    testified, but they may not disclose the order in public. This is
    perfectly appropriate. Pre-emptive terror investigations cannot be
    conducted in the news media. The government would seek a terror
    suspect's airplane itineraries, for example, not in order to prosecute
    a hijacking after it happens, but to pre-empt a hijacking before the
    fact. The battleground is not the courtroom but the world beyond, where
    speed and secrecy can mean life or death.

                      STRATEGY #3: CONCEAL LEGAL PRECEDENT

        Attacks on the other most controversial section of the Patriot Act,
    section 213, illustrate the key ruse of concealing the act's legal
    precedents. Section 213 allows the government to delay notice of a
    search, something criminal investigators have been allowed to do for
    decades.
        Say the FBI wants to plumb Mohammad Atta's hard drive for evidence
    of a nascent terror attack. If a Federal agent shows up at his door and
    says: ``Mr. Atta, we have a search warrant for your hard drive, which
    we suspect contains information about the structure and purpose of your
    cell,'' Atta will tell his cronies back in Hamburg and Afghanistan:
    ``They're on to us; destroy your files--and the infidel who sold us
    out.'' The government's ability to plot out that branch of Al Qaeda is
    finished.
        To avoid torpedoing pre-emptive investigations, Section 213 lets
    the government ask a judge for permission to delay notice of a search.
    The judge can grant the request only if he finds ``reasonable cause''
    to believe that notice would result in death or physical harm to an
    individual, flight from prosecution, evidence tampering, witness
    intimidation, or other serious jeopardy to an investigation. In the
    case of Mohammad Atta's hard drive, the judge will likely allow a
    delay, since notice could seriously jeopardize the investigation, and
    would likely result in evidence tampering or witness intimidation.
        The government can delay notifying the subject only for a
    ``reasonable'' period of time; eventually officials must tell Atta that
    they inspected his hard drive.
        Section 213 carefully balances traditional expectations of notice
    and the imperatives of pre-emptive terror and crime investigations.
    That's not how left- and right-wing libertarians have portrayed it,
    however. They present Section 213, which they have dubbed ``sneak-and-
    peek,'' as one of the most outrageous new powers seized by former
    Attorney General John Ashcroft. The ACLU's fund-raising pitches warn:

              ``Now, the government can secretly enter your home while
            you're away . . . rifle through your personal belongings . . .
            download your computer files . . . and seize any items at will.
            . . . And, because of the Patriot Act, you may never know what
            the government has done.''

        Notice the ACLU's ``Now.'' Like every anti-213 crusader, the ACLU
    implies that section 213 is a radical new power. This charge is a rank
    fabrication. For decades, Federal courts have allowed investigators to
    delay notice of a search in drug cases, organized crime, and child
    pornography, for the same reasons as in section 213. Indeed, the
    ability to delay notice of a search is an almost inevitable concomitant
    of investigations that seek to stop a crime before it happens. But the
    lack of precise uniformity in the court rulings on delayed notice
    slowed down complex national terror cases. Section 213 codified
    existing case law under a single national standard to streamline
    detective work; it did not create new authority regarding searches.
    Those critics who believe that the target of a search should always be
    notified prior to the search, regardless of the risks, should have
    raised their complaints decades ago--to the Supreme Court and the many
    other courts who have recognized the necessity of a delay option.
        Critics of Section 213 raise the spectre of widespread surveillance
    abuse should the government be allowed to delay notice. FBI agents will
    be rummaging around the effects of law-abiding citizens on mere whim,
    even stealing from them, allege the anti-Patriot propagandists. But the
    government has had the delayed notice power for decades, and the anti-
    Patriot demagogues have not brought forward a single case of abuse
    under delayed notice case law. Their argument against Section 213
    remains purely speculative: It could be abused. But there's no need to
    speculate; the historical record refutes the claim.
        Moreover, such wild charges against Section 213 ``hide the judge.''
    It is a Federal judge who decides whether a delay is reasonable, not
    law enforcement officials. And before a government agent can even seek
    to delay notice of a search, he must already have proven to a judge
    that he has probable cause to conduct the search in the first place.
    This is hardly a recipe for lawless executive behavior--unless the
    anti-Patriot forces are also alleging that the Federal judiciary is
    determined to violate citizens rights. If that's what they mean, they
    should come out and say it.
        In fact, the recent history of government intelligence-gathering
    belies the notion that any government surveillance power sets us on a
    slippery slope to tyranny. There is a slippery-slope problem in terror
    investigations--but it runs the other way. Since the 1970's,
    libertarians of all political stripes have piled restriction after
    restriction on intelligence-gathering, even preventing two anti-terror
    FBI agents in the same office from collaborating on a case if one was
    an ``intelligence'' investigator and the other a ``criminal''
    investigator. By the late 1990's, the bureau worried more about
    avoiding a pseudo-civil liberties scandal than about preventing a
    terror attack. No one demanding the ever-more Byzantine protections
    against hypothetical abuse asked whether they were exacting a cost in
    public safety. We know now that they were.
        The libertarian certainty about looming government abuse is a
    healthy instinct; it animates the Constitution. But critics of the
    Patriot Act and other anti-terror authorities ignore the sea change in
    law enforcement culture over the last several decades. For privacy
    fanatics, it's always 1968, when J. Edgar Hoover's FBI was voraciously
    surveilling political activists with no check on its power. That FBI is
    dead and gone. In its place arose a risk-averse and overwhelmingly law-
    abiding Bureau, that has internalized the norms of restraint and
    respect for privacy.
        This respect for the law now characterizes intelligence agencies
    across the board. Lieutenant General Michael V. Hayden, the nominee for
    Principal Deputy Director of National Intelligence, told this committee
    last week that the challenge for supervisors in the National Security
    Agency was persuading analysts to use all of their legal powers, not to
    pull analysts back from an abuse of those powers.
        It is because of this sea-change in law enforcement culture that
    Patriot Act critics cannot point to a single abuse of the act over the
    last 4 years, and why they are always left to argue in the
    hypothetical.

                          STRATEGY #4: REJECT SECRECY

        A subtext of many Patriot Act critiques is a refusal to grant any
    legitimacy to government secrecy. Recipients of document production
    orders in terror investigations--whether Section 215 orders or national
    security letters under the 1986 Electronic Communications Privacy Act--
    should be able to publicize the government's request, say the critics;
    targets of searches should be notified at the time of the search. Time
    and again, law enforcement critics disparage the Foreign Intelligence
    Surveillance Court, because its proceedings are closed to the public.
    The ACLU, for example, opposes the roving wiretap authority for
    terrorism investigations in the Patriot Act (Section 206), even though
    criminal investigators have long had the roving wiretap option, because
    Section 206 wiretaps ``are authorized secretly without a showing of
    probable cause of crime.'' (Section 206 requests must demonstrate
    probable cause that the wiretap target is an agent of a foreign power
    and that he will be using the tapped communications devices.)
        This transparent approach may satisfy those on the left and right
    who believe that the American people have no greater enemy than their
    own government, but it fails to answer the major question: how would it
    possibly be effective in protecting the country? The Patriot Act
    critics fail to grasp the distinction between the prosecution of an
    already committed crime, for which probable cause and publicity
    requirements were crafted, and the effort to pre-empt a catastrophic
    attack on American soil before it happens. For pre-emptive
    investigations, secrecy is of the essence. Opponents of the Patriot Act
    have never explained how they think the government can track down the
    web of Islamist activity in public.
        These four strategies, in various combinations--hide the judge,
    invent new rights, conceal legal precedent, and reject secrecy--lie
    behind nearly all of the Patriot Act attacks. The crusade against
    Section 214, for example, which allows the government to record the
    numbers dialed from a phone if relevant to a terrorism investigation
    (the so-called pen register power), uses all four strategies. (A
    related section, Section 216, extends the longstanding rules on pen
    registers, to the 21st century technologies of e-mail. Section 216
    allows the government to capture only an e-mail's routing and
    addressing information, not its content.)
        Section 214 merely allows the agents investigating a terrorism case
    the same power that criminal investigators have. But the Electronic
    Frontier Foundation calls the section ``a serious threat to privacy.''
    This charge rests on inventing new rights. In fact, pen registers
    threaten no privacy rigths, as the Supreme Court has held, because
    there is no legitimate expectation of privacy in the numbers dialed
    from a phone, which are recorded already by telephone companies. Even
    though judicial authorization for a pen register is not
    constitutionally required, section 214 nevertheless mandates that the
    government obtain an order from the FISA court for their use. EFF
    dismisses the value of the court, however, because it ``operates in
    total secrecy.''
        In conclusion, the Patriot Act is a balanced updating of
    surveillance authority in light of the new reality of catastrophic
    terrorism. It corrects anachronisms in law enforcement powers, whereby
    health care fraud investigators, for example, enjoyed greater ability
    to gather evidence than Al Qaeda intelligence squads. It created no
    novel powers, but built on existing authorities within the context of
    constitutional checks and balances. It protects civil liberties while
    making sure that intelligence analysts can get the information they
    need to protect the country. The law should be re-enacted.

       STATEMENT OF HEATHER MacDONALD, SENIOR FELLOW, MANHATTAN
                     INSTITUTE FOR POLICY RESEARCH

        Ms. MacDonald. Mr. Chairman, thank you very much. I'm
    honored to be here today and I hope both you and the Vice
    Chairman will eventually share your wonderful opening
    statements with us. I would look forward to reading them.
        The PATRIOT Act has been subject to the most successful
    misinformation campaign in recent memory. From the day of its
    passage it was portrayed as an unprincipled power grab by an
    administration intent on trampling civil rights. As I've
    debated the Act across the country, I've been amazed by the
    universal ignorance about what the Act actually contains. I
    applaud the Committee for taking the time to finally get the
    facts out.
        The PATRIOT Act recognizes the fundamental truth about
    terrorism. Our only weapon against it is intelligence.
    Accordingly, Congress, in passing the Act, amended existing
    surveillance powers to ready them for the terrorist challenge.
    Its most important contribution was tearing down the wall that
    prevented information-sharing among all terror investigators.
    Today, thanks to Congress, all members of the anti-terror
    community can collaborate to try to prevent the next strike
    before it happens.
        The PATRIOT Act made other necessary changes to
    surveillance law as well. It extended to terrorism
    investigators powers long enjoyed by criminal investigators,
    and it brought our laws into the 21st century of cell phones
    and e-mail. Each of those changes was accompanied by the most
    powerful restraint we have in our Constitution, judicial
    review. The Act carefully preserves traditional checks and
    balances that safeguard civil liberties.
        For that reason, after 4 years of constant review by the
    Justice Department's Inspector General and a host of hostile
    advocacy groups, not a single abuse of power has been found or
    even alleged.
        Now I've observed four rhetorical strategies used to
    discredit the Act. I call them hide the judge, invent new
    rights, conceal legal precedents and oppose secrecy. I want to
    review these strategies
    in the context of the two most controversial provisions of the
    PATRIOT Act--section 215, the business records provision, and
    213, delayed notice.
        215 allows the government to get records in third party
    hands for terrorist investigations. It's been attacked as a
    massive violation of free speech. It's the librarians' hysteria
    provision. The librians are all convinced that the section is
    all about them, even though the Act doesn't mention libraries.
    What you never hear in the attacks on 215 is that the
    government cannot get any records without prior approval of the
    FISA Court. These are Article III judges who have pledged to
    protect our civil rights. They are not going to approve a
    search of somebody's records simply because the FBI doesn't
    like your reading habits, as the ACLU has alleged.
        It's also been blasted as a violation of Fourth Amendment
    privacy rights. Now we're getting into my second strategy,
    which is to invent new rights. Courts have long held there is
    no Fourth Amendment privacy rights in records held by third
    parties. For that reason, prosecutors or grand juries--your
    fellow citizens--can get those same records without any
    judicial review whatsoever. Section 215 is actually more
    protective of rights than the criminal powers that pre-existed
    it.
        Now the furor over section 213, the delayed notice
    provision, illustrates my third rhetorical strategy, which is
    concealing legal precedent. 213 allows the government to delay
    notice of a search--delay, not permanently put it off--if
    notice would have an adverse result such as witness
    intimidation, evidence tampering or jeopardizing an
    investigation.
        This has been portrayed by the ACLU and other groups as a
    radical new power that's going to unleash government tyranny.
    The gall of this claim, frankly, astounds me, because 213
    merely codifies two decades of existing judicial precedent. If
    delayed notice was the threat that its critics have made it out
    to be, we would have already heard about abuses that such a
    power leads to.
        As with every other provision of the Act, the critics have
    not been able to bring forth a single example of abuse over the
    last 20 years of the delayed notice authority.
        213 attacks also take advantage of the hide the judge
    strategy. You'll never hear that in order to even delay notice
    of a search first you need to go through your traditional
    probable cause hearing to justify a warrant and you need to
    persuade the judge that there is a necessity to delay notice.
        Ultimately what drives much of the criticism is a deep
    suspicion of government secrecy, the fourth strategy--deny the
    need for secrecy. I constantly hear the FISA Court disparaged
    as a mere rubber stamp because its proceedings are closed to
    the public. Opponents of 213 and other provisions apparently
    believe that if the government is investigating Mohammad Atta,
    for example, he should be notified in advance that the
    government wants to search his hard drive. This line of attack
    shows a complete obliviousness to the fact that what we're
    doing here is not a criminal investigation after the fact but
    we're trying to pre-empt a terrorist attack before it happens.
    Speed and secrecy are of the essence in preventing an attack.
        In conclusion, the PATRIOT Act is balanced. It's a
    reasonable response to the new threat of catastrophic
    terrorism. It has not led to a single abuse of civil rights.
    And it should be renewed.
        Thank you very much for your attention.
        Chairman Roberts. Ms. MacDonald, thank you very much for
    your statement.
        Members will have 5 minutes in the first round and we will
    go to a second round if necessary.
        I have a question in reference to section 218 and
    ``significant purpose.'' I think everybody seems to agree with
    the Foreign Intelligence Surveillance Court review that the
    ``significant purpose'' certification standard was not really
    needed to tear down the information-sharing walls--and that's
    my word--created by the Department of Justice and adopted by
    the Foreign Intelligence Surveillance Court.
        Nonetheless, the provision was the catalyst for policy
    changes that have greatly improved the FBI's ability to consult
    with prosecutors in national security investigations and share
    information both within the FBI and among other members of the
    intelligence community.
        Now, Mr. Nojeim, as I read your recommendations, it appears
    that you want to--this are my words, probably not your
    description--rebuild the walls between the FBI and national
    security investigators and prosecutors and restore the Foreign
    Intelligence Surveillance Court, what I think is a
    misinterpretation of the law. Why do you think it's a bad idea
    for the FBI agents conducting national security investigations
    to be able to consult with prosecutors to the same extent as
    the FBI agents who are conducting the domestic criminal
    investigation? How is it an end run around the Fourth Amendment
    to use FISA to pursue a terrorist group like the al-Qa'ida or
    spies like Robert Hansen?
        Mr. Nojeim. I never said in my testimony that they
    shouldn't be allowed to consult. What I did say was that the
    risk to the Fourth Amendment is this: FBI agents believe that
    such-and-such a person has committed a terrible crime. They
    want to search the person's home and they want to wiretap the
    person to get evidence of that crime, and to put him behind
    bars.
        Normally they would have to go in front of a judge and show
    probable cause of crime. Under the ``significant purpose''
    test, if they also have an intelligence rationale they no
    longer have to do that. Eventhough they are looking for
    evidence of a crime, they never have to show probable cause of
    crime because they can go around that requirement, search the
    home or eavesdrop on the telephone conversation if they meet
    the intelligence rationale under the PATRIOT Act and that
    intelligence gathering is a significant purpose of the
    surveillance.
        There is a problem. We have to admit that there is a
    problem about going around the Fourth Amendment. The issue is
    how do we deal with that problem. We suggest three things. The
    first I hope is easy. It's increased public reporting. We're
    not asking for the FBI to disclose sources and methods of
    intelligence gathering. Even the raw numbers of searches that
    involve the use of this power is not disclosed. Even whether
    the person who is being surveilled is a U.S. person, a citizen,
    or a lawful permanent resident, that's not disclosed either. So
    disclosure is one thing that needs to happen.
        Another thing that needs to happen----
        Chairman Roberts. If you can do the two real quickly, I've
    got a yellow light and I want to turn to Ms. MacDonald.
        Mr. Nojeim. Another thing that needs to happen is making it
    so that the person who is accused of a crime based on that
    information that's gathered in that intelligence surveillance
    can get access to the application that was used to gather that
    information. There's a ready process under the Classified
    Information Procedures Act that could be grafted onto the
    statute to make it work better.
        Ms. MacDonald. Can I just respond?
        Chairman Roberts. Ms. MacDonald.
        Ms. MacDonald. Mary Jo White, who before 9/11 was the most
    seasoned al-Qa'ida prosecutor, told me that there was no
    greater barrier to fighting terrorism than the wall. She said
    it was something that they beat their heads against all the
    time. The idea that the process of going before the FISA Court
    is some flippant, easy way to have a run around the Fourth
    Amendment is absurd.
        You need massive clearance within the FBI. Then you have to
    persuade the Office of Intelligence and Policy Review to bring
    your case before the FISA Court. I believe it was the Senate
    Select Committee itself that, several years before 9/11, was
    extremely concerned with the hurdles that were being placed by
    OIPR on FISA requests from the field.
        I think we also forget that there has been a massive sea
    change in law enforcement culture. For the civil liberties
    advocates, it's always 1968. We always have J. Edgar Hoover
    trampling civil rights. In fact, let's be honest. Law
    enforcement, the FBI, has internalized norms of restraint. As
    General Hayden told you last week, his challenge within the NSA
    was to try and persuade his agents to use their powers, not to
    pull them back from an abuse of power.
        The FISA process is basically, as the first head of OIPR,
    Mr. Bass, Kenneth Bass, said, it's basically a probable cause
    warrant.
        Chairman Roberts. Senator Rockefeller. Thank you, Ms.
    MacDonald.
        Vice Chairman Rockefeller. Thank you, Mr. Chairman.
        Perhaps I could ask this question of each of you and then
    have you rebut each other, all in 5 minutes. The liveliest part
    of this controversy is what we've just been talking about, and
    that's 215 on access to records. It's about the librarians,
    named, unnamed. Booksellers have been concerned about it. It's
    not limited to libraries and books.
        Now we have read and we have heard your separate arguments
    about that section. It would be helpful to each of us to hear
    those arguments side by side. Would you each take a minute to
    state your main point about section 215 and then a half minute
    to rebut what others say about that--a side-by-side approach.
        Ms. MacDonald. 215 gives the government access to business
    records that a criminal prosecutor already had access to for
    the mere after-the-fact investigation of a crime. This allows
    terrorism investigators to have access to those same records.
    It requires FISA Court approval. The fact that it removed the
    four narrow categories merely acknowledges the fact that we
    cannot predict the next terror attack.
        Who would have known that it would have been nice to have
    had flight school records before 9/11? Under 215 the government
    can get flight school records and it's not confined to storage
    lockers.
        Mr. Nojeim. Prior to the PATRIOT Act and after the PATRIOT
    Act the government had the power to, when it was investigating
    a crime, get a criminal subpoena. It could do that for
    terrorism crimes; it could do that for other crimes. It's
    inaccurate to imply that it couldn't do it for terrorism
    crimes.
        What we would like to see on section 215 is an increase in
    the standard of review. In particular, the notion that when the
    records are ``sought for'' an investigation is a very, very low
    standard. In addition, we suggest that these records requests
    be limited to records that pertain to an agent of a foreign
    power. We say that we want to restore the ``agent of a foreign
    power'' standard, and again this has nothing to do with
    information-sharing, which we do not oppose, when we say
    restore the ``agent of a foreign power'' standard, we say that
    because it protects records about people who have nothing to do
    with terrorism, and they are mostly Americans.
        Vice Chairman Rockefeller. Mr. Dempsey.
        Mr. Dempsey. Senators, as I said in my opening remarks,
    there's not a category of records that I can think of that the
    FBI shouldn't have access to in intelligence investigations.
    The expansion of 215 from some limited categories of records to
    any records, including library records, was appropriate.
    Libraries aren't really the issue, as we all know, and if there
    is something at a library that's valid and useful, the
    government should have access to that as well.
        The question is, shouldn't there be some factual basis for
    the government's request. I think the one-to-one comparison
    between the criminal side, where there are lots and lots of
    checks and balances all the way to right to counsel and the
    adversarial process, you get a subpoena, you can scream bloody
    murder about it, but these are secret. We have to have
    something compensating for that.
        The judge right now is a rubber stamp. If the government
    says we want them and signs a piece of paper, the judge has to
    approve it and does approve it, and there's----
        Vice Chairman Rockefeller. Do you disagree with that, Ms.
    MacDonald?
        Ms. MacDonald. I disagree. The language in 215 is identical
    to the pre-PATRIOT language on the standard of review. Under
    that standard pre-PATRIOT, there was still the months-long
    vetting on OIPR. In fact, there is basically, in practice, a
    factual predicate. That certification language is no different.
    Either there was the same problem pre-PATRIOT and we didn't
    know about it, or it's not a problem at all.
        As for restoring the ``agent of a foreign power'' standard,
    I think that would be a great mistake, for the same reason that
    I mentioned why we're expanding the documents. We can't predict
    in advance what the contours of a terror investigation are
    going to be. Somebody may have unwittingly bought fertilizer
    for a suspected terrorist. Under the agent of a foreign power
    standard, you're not going to be able to get those records of a
    farm supply store because it's not his records that you're
    looking for. It's a third party that's bought them.
        Finally, again there's no Fourth Amendment interest in
    records in third party hands. A prosecutor can already get
    them. They are no more available under the PATRIOT Act than
    they were before the PATRIOT Act.
        Vice Chairman Rockefeller. My time is up, Mr. Nojeim, but I
    will come back to you on the second round because I excluded
    you and I didn't mean to.
        Mr. Dempsey. Senator, could I have just one quick
    clarification?
        Vice Chairman Rockefeller. No, because we're being very
    strict about time. We will have a second round.
        Mr. Dempsey. Of course.
        Chairman Roberts. See, I was going to grant that, but this
    man is just an absolute tyrant with time, as you can see.
        [Laughter.]
        Chairman Roberts. Actually, he's a heavy-handed despot, but
    I'm not going to get into that any further.
        Senator Lott.
        Senator Lott. Thank you, Mr. Chairman. Thank you for your
    restraint that you've been exercising throughout this hearing.
    I thank the panel for being here.
        I must say to you, Ms. MacDonald, how impressed I am with
    your credentials and your resume and your testimony here today.
    I'm glad to hear somebody take the position that I agree with
    very strongly.
        The PATRIOT Act is coming up for reauthorization. We need
    to listen to complaints. We need to review how it has worked. I
    found it completely telling when you note, for instance, after
    constant monitoring by the Justice Department Inspector General
    and all kind of hostile advocacy groups horrified at what might
    happen, not a single abuse has occurred or been seriously
    alleged.
        That is what you're saying.
        Ms. MacDonald. That is what I'm saying. We've heard none
    today either. It's not just under the PATRIOT Act. Again, the
    most interesting issue for me is the delayed notice provision.
    We've had 20 years of delayed notice power that is now causing
    the public to fear that the FBI's going to be rummaging around
    their underwear drawer and not a single abuse has occurred for
    the last 20 years.
        Again, I think what this speaks to is the sea change in law
    enforcement culture and the fact that the checks and balances
    that exist before the PATRIOT Act and certainly exist after the
    PATRIOT Act are working.
        Senator Lott. Let me ask you to do this, then. As we look
    at this Act, let's not just look at some of the complaints
    about it. Let's look at are there some ways that maybe we could
    strengthen it even further, that would be helpful in trying to
    provide additional surveillance or investigative authorities
    that might help us to combat terrorism.
        Have you thought about that?
        Ms. MacDonald. I'm not going to take that on, Mr. Lott.
    It's hard enough to defend what exists. I know that the FBI has
    been asking for administrative subpoena power. I'm basically
    agnostic on that.
        Senator Lott. Well, with your presentation and with your
    credentials, I hope you'll meditate about that and think about
    it and see how maybe we can make it even better by making it
    stronger in some areas where maybe there are some weaknesses.
        Ms. MacDonald. I would say probably what would be more
    important is the political branches sending a message to law
    enforcement that they will be supported, if they are acting in
    good faith, that they don't need to worry about the
    hypothetical trumping up of civil liberties concerns, that the
    government, people like yourself, will support them in the full
    exercise of their power.
        Senator Lott. You know, you cannot be agnostic about
    privacy issues and protecting individual citizens' privacy
    rights. My question is, I guess, are there sufficient
    safeguards in this Act as it now exists?
        Ms. MacDonald. We have no stronger safeguard in our
    Constitutional system than judicial review. The FISA Court
    operates in secret, that's true, as it must. There is simply no
    way that you can conduct a pre-emptive terror investigation in
    public. You cannot have C-SPAN and CNN covering the proceedings
    before the FISA court and think that we're going to be able to
    beat this enemy.
        There is judicial review throughout the PATRIOT Act,
    whether it's before the FISA Court or before a regular Article
    III court. Again the results speak for themselves.
        Mr. Dempsey. Senator, may I respond?
        Senator Lott. Mr. Dempsey, I was going to ask if you have
    any comment on either of my two questions.
        Mr. Dempsey. Yes, sir. First of all, in terms of the
    abuses, when a provision says that the government gets anything
    they want just for asking for it, I don't see how that can be
    abused. I honestly don't. A standardless law, it's hard to say
    there's an abuse, and that is some of what we're talking about
    here.
        Now I think there have been what I would call abuses. I
    think using the PATRIOT Act to break into a judge's chambers
    and conduct a secret search in a non-terrorism case involving
    no threat of life and no intimidation or likelihood of
    intimidating witnesses, I don't think that that's what members
    of this body thought they were voting for when they approved
    the PATRIOT Act. I think that's an abuse.
        It's within the four corners of the law, but I think that's
    an abuse of the concept of this emergency legislation that was
    passed to address a compelling national security threat. I
    think that other of these provisions are so broadly written
    that they cannot be abused. I think they should be narrowed.
        Ms. MacDonald was referring to the judges. This law says
    that if an FBI agent comes in with a signed piece of paper
    saying--actually, it's interesting. It doesn't even say it has
    to be in writing. It doesn't even say that the officer has to
    name himself. If you compare this to some of the other laws on
    our books, some of the subpoena laws or the pen register
    statute for criminal cases, it has to be in writing. This
    doesn't even say it has to be in writing. It doesn't say he has
    to even name the case.
        All he has to do is come in and say, ``I want these records
    for an intelligence investigation,'' and the law says upon
    application, oral application probably, the judge shall enter
    an ex parte order as requested or as modified, period. Why even
    have the judge in that case? That's a rubber stamp.
        Now one thing that's interesting--and Ms. MacDonald
    referred to this earlier--if you actually look at the FBI's
    guidance on how to interpret this, it's actually better than
    the text of the law. The FBI guidance on this does say that
    they always have, internally at least, a factual basis and they
    always have, it seems, some particularized suspicion.
        Chairman Roberts. Mr. Dempsey, I'm going to have to
    interrupt at this point, and I do appreciate your point of
    view.
        Could you clarify for the Committee which judge we're
    talking about in terms of the chambers?
        Mr. Dempsey. I honestly don't know. It was in a letter that
    the FBI sent to Senator Stevens describing the use of the sneak
    and peek legislation.
        Chairman Roberts. All right. We can find that.
        Senator Bond.
        Senator Bond. Thank you very much, Mr. Chairman. I thank
    the panel. I think we've had a very good discussion of what has
    been widely abused and misused and misrepresented, as we now
    hear people with differing points of view agreeing that there
    is justification for this. I happen to be a strong supporter of
    the PATRIOT Act. For better or for worse, I, with my colleague
    from Maine, Senator Snowe, authored the Visa Integrity and
    Security Act provisions which have caused a lot of heartburn.
    We understand that any law like this should be reviewed and we
    very much appreciate the thoughtful comments.
        I go back to Mr. Dempsey and ask him briefly, you say on
    section 213 it was used to expand government powers with
    respect to delayed notice searches and that the section lacks
    suitable checks and balances. It was my understanding the
    PATRIOT Act merely codified pre-existing judicial precedent
    that allowed investigators to execute delayed notice criminal
    search warrants under certain limited circumstances.
        To what extent was 213 an expansion of authority? Why
    aren't the current limits unreasonable? If you have to have
    approval of a judge, why isn't it appropriate to delay notice
    in certain circumstances?
        Mr. Dempsey. Senator, a good question. Let me give you an
    example of how the provision failed in its stated goal of
    codifying existing practice.
        Senator Bond. All right.
        Mr. Dempsey. Two circuit courts had specifically ruled on
    the question of delayed notice. Each of them had come down in
    favor of a 7-day delay rule as the basic timeframe for which
    delay could be permitted, renewable for successive 7-day
    periods upon a good showing.
        The PATRIOT Act, rather than codifying that case law, says
    the delay can be for any reasonable period. Well, what are the
    judges of the Ninth Circuit supposed to do now? They had come
    up with a 7-day rule. The Congress has not taken up the 7-day
    rule and adopted a reasonable period rule.
        If you look at the Justice Department guidance, they say
    that up to 90 days would be a reasonable delay. That's an
    example of where we could have given specificity and clear
    standards and in fact failed to do so.
        Senator Bond. Maybe Congress thought that the judges should
    determine in the particular circumstances what is reasonable
    and that if you are looking at a multi-faceted investigation,
    as some of the ones that we have heard about here, there's no
    way you're going to get it finished in 7 days. I would think
    that the judge would have to be presented. They've said seven.
    Time's up. I want Ms. MacDonald to comment on that.
        Mr. Dempsey. If I could, Senator, just 1 second.
        Senator Bond. I want Ms. MacDonald to comment when Mr.
    Dempsey finishes his thought before we yellow light goes off.
        Chairman Roberts. Mr. Dempsey, please proceed.
        Mr. Dempsey. If we were going to leave it to the judges, we
    should have left it to the judges. We didn't need 213 at all. I
    think that the reason why the Justice Department pushed for 213
    is because they had come to the conclusion that that legal
    authority that everybody cites was on shaky ground, because if
    you look at those cases, there are some older cases that said
    that the Fourth Amendment has nothing to do with notice or says
    nothing about notice. Then the Supreme Court later came along
    and said that notice is part of the Fourth Amendment
    determination.
        Ms. MacDonald. Subsequent to that case itself, there's been
    a Seventh Circuit case that said that you can delay notice for
    reasonable periods of time. To my mind, reading the case law,
    there is no question that delayed notice is fully
    constitutional.
        I think it was wise of Congress to give judges and
    investigators the leeway to determine what a reasonable period
    of delay is. One of the problems that we had pre-PATRIOT Act
    was short time limits on warrants that were creating an
    enormous amount of paperwork.
        You know, again, we're fighting terrorism here. We're not
    trying to prosecute----
        Mr. Dempsey. Then let's limit this one to terrorism.
        Ms. MacDonald. OK. I want to respond as well to Mr.
    Dempsey's point about 215 when he asks, ``Why have a judge?''
    Again, let's remember that these documents are available
    without a judge. A prosecutor can get them on his own request.
    Why 215 is more problematic is a mystery to me. The standard by
    which the FISA Court decides a 215 request under the PATRIOT
    Act is the same standard as under FISA. It required a factual
    showing before the PATRIOT Act and it still requires it now.
        Chairman Roberts. Senator Wyden.
        Senator Wyden. Thank you, and thank all of you. We've got a
    good cross-section of views at this table.
        This Act is going to be renewed. There's just no question
    about that. I would be interested in just going right down the
    row--and we can start with you, Mr. Dempsey--and have each of
    you say what you think the most important areas are with
    respect to what the Congress should require in the way of
    reporting. In other words, take two items each, the two most
    important areas to you in terms of what is most important for
    reporting so as to strike this balance between protecting the
    public good and individual liberties.
        Mr. Dempsey.
        Mr. Dempsey. Recognizing that reporting is one aspect of
    the sort of checks and balances we're talking about.
        Senator Wyden. Right. I think one of the most important
    ones.
        Mr. Dempsey. I think reporting should apply to a couple of
    the sections that we haven't talked about yet, which are the
    emergency disclosure of e-mail section, which is section 212,
    again a relatively uncontroversial provision in some ways. I've
    been hearing that there have been a lot of requests. Again,
    these are non-terrorism cases. These are by and large criminal
    matters, and there's absolutely no reporting now for those
    extrajudicial disclosures where the government goes to the
    service provider, says there's an emergency, the service
    provider, without a court order, turns over the e-mail. We
    really don't have any kind of a handle on how often that's
    happening.
        In terms of FISA reporting, both on the electronic
    surveillance, physical surveillance and on 215, I think the
    issue there is to find a way to bring some of that more
    detailed information into the public light. I know this
    Committee receives the classified information. I would
    certainly urge you to look carefully at the applications,
    particularly the U.S. person ones. You may do that.
        If you do do that, it would be useful to have a report
    about that. In the early years of FISA there was a 5-year
    report on its application which was an unclassified, public
    report. I think that would be helpful. I think that could be
    done without compromising any classified information and could
    talk about what this Committee is doing behind the scenes as an
    oversight matter.
        I think there could be some more public reporting on FISA.
        Mr. Nojeim. To summarize, sections 215 and 505, the FISA
    records provisions, there ought to be reports under those
    provisions. In fact, AG Gonzales revealed for the first time
    just a couple weeks ago that section 215 had been used 35
    times. A year before that Attorney General Ashcroft had said it
    had never been used. It seems to me that if they can disclose
    selectively the number of times it's been used that an annual
    reporting requirement probably wouldn't damage national
    security.
        The section 215 reporting notion should be extended to
    section 505, National Security Letters, as well.
        In addition, sections 203(b) and 203(d) about information-
    sharing, they could be beefed up with additional notice to the
    court and to Congress about how information is being shared,
    because right now there aren't sufficient requirements about
    that.
        Then I'd like to follow up for just a second on what
    Senator Bond was saying earlier about sneak and peek warrants.
        Senator Wyden. My time is short and I want to get Ms.
    MacDonald in. If you could give us that a little bit later,
    that would be great.
        Ms. MacDonald. Thank you, Senator Wyden. I'll yield my time
    back to Mr. Nojeim because I don't feel qualified to answer
    that question. It's not something that I'd looked at on a
    section-by-section basis. My impression is, given the past
    reporting to the Judiciary Committee in the House, that the
    reporting requirements are very extensive.
        I'm not aware, really, of any gaps in reporting
    requirements that exist.
        Senator Wyden. I may have time for one additional question.
    I was going to ask about National Security Letters, because I
    have been troubled by the fact that there really isn't any
    court review on it. What I'm most interested in to start with
    is, do any of you know how frequently they've been used?
    Because if this is not a frequently used tool, that makes it a
    matter of lesser importance.
        Do any of you three know about how frequently they've been
    used?
        Mr. Dempsey. Not currently. The staff knows; it's reported,
    I think, to the Committee.
        Mr. Nojeim. It ought to be something that's reported to the
    public, the frequency of the use of those.
        Senator Wyden. Are they widely used? Ms. MacDonald, do you
    know?
        Mr. Dempsey. Oh, they are very widely used. It's a classic
    investigative technique.
        Senator Wyden. My time is up. I would only ask, if that's
    the case--and I was not aware of that, Mr. Chairman--I would
    like to work with both of you on that.
        Chairman Roberts. Senator Wyden, we do have that
    information that you requested. We will share that with you.
        Senator Wyden. My understanding, then, is, Mr. Chairman,
    that there are very few rules with respect to National Security
    Letters and if it's a widely used tool I would like to work
    with both of you and see if we can flesh out a bipartisan
    change there that would strike the right balance between
    security and individual rights, because as far as I can tell
    there's no standard for it.
        I thank you.
        Ms. MacDonald. Can I just make one response? The National
    Security Letter law was 1986 law, and it was Patrick Leahy that
    believed that they should be secret. Again, this is something
    we've had a very long time to look at whether it's a power
    that's been abused. Again, I'm not aware of abuses.
        Senator Wyden. Well, there are a variety of statutes that
    mandate National Security Letters. Other letters are
    permissive, Ms. MacDonald. That's why I think we're going to
    take a look at it.
        Thank you, Mr. Chairman.
        Chairman Roberts. Let the record show that we had a witness
    before the Committee who actually said that she didn't know
    about a question. I think that's remarkable.
        I want to let my colleagues and everybody be aware of the
    fact--I know Mr. Dempsey mentioned records and what the
    Committee might do--this is not our first review of the PATRIOT
    Act or the Foreign Intelligence Surveillance Act. We regularly
    hold hearings and conduct briefings and receive information in
    regard to the activities of the intelligence community.
        We conducted a closed hearing on the PATRIOT Act during the
    last Congress. We receive detailed reports from the Department
    of Justice every 6 months in regard to FISA, annual reports on
    the use of other surveillance tools. We're also in the final
    stages of completing our second audit of the procedures and
    practices and use of FISA. This comprehensive and classified
    analysis I think will represent one of the most thorough
    reviews of the Executive branch activities under FISA since the
    Act was enacted.
        That was in my opening statement and I wanted to make sure
    that everybody here understood that we are aggressively active.
        Senator Feinstein I think is next.
        Senator Feinstein. Thank you very much, Mr. Chairman.
        As a member of both this Committee and the Judiciary
    Committee, in our hearings on the PATRIOT Act I have really
    been hard-pressed to find any signs of bad use or overuse. I
    have pressed the Attorney General to provide a specific report.
    He has provided it. I've been though it. I have a hard time
    finding any instance of misuse of this Act.
        I would like the two people--Mr. Dempsey and Mr. Nojeim--to
    take their best shot and give me what the misuse has been or
    bad use and how it should be repaired.
        Mr. Nojeim. We wrote a letter to you about this.
        Senator Feinstein. I got that letter, a 12-page letter, I
    think.
        Mr. Nojeim. Let me just run through some of the points that
    we made. First, the PATRIOT Act was used to search the home of
    Brandon Mayfield. He's the Portland, Oregon, attorney who was a
    suspect in a crime, and that was the Madrid train bombing. It
    turned out that he was completely innocent and the PATRIOT Act,
    the ``significant purpose'' test of the PATRIOT Act was used to
    get the intelligence warrant to search his home. I could go
    into that case in a little bit more detail.
        Senator Feinstein. Let me stop you there, because I moved
    the amendment in Judiciary for the ``significant purpose.'' If
    you were to change it, how would you change it? Because I agree
    with Ms. MacDonald. I think in this world that we live in, the
    breaking down of that wall from ``primary purpose'' to
    ``significant purpose'' was really important to do.
        Mr. Nojeim. As we wrote in the letter to you, we're not
    asking that you support repeal of the ``significant purpose''
    test. We're asking that you increase reporting. We're asking
    that you----
        Senator Feinstein. You mean periodic reporting?
        Mr. Nojeim. Reporting, for example, of how many U.S.
    persons are searched under FISA. Brandon Mayfield is a native-
    born American.
        Senator Feinstein. I understand that.
        Mr. Nojeim. That's what we're asking for.
        Another thing that we're asking is that you put the Brandon
    Mayfields of the world--and there will be more of them--in a
    better position if the government doesn't come forward with the
    evidence showing that it wrongly accused them. Brandon Mayfield
    could have gone to trial accused of one of the worst crimes in
    history without getting access to the information that was used
    to search his home.
        What we're suggesting is that the Classified Information
    Procedures Act provides a good model that the Committee could
    adopt for giving a person like that, who is accused of a
    terrible crime, if it actually goes to trial, access to that
    information.
        Another thing that we mentioned, in our letter to you, as
    an abuse was the use of an unconstitutional statute. The
    National Security Letter statute has been struck down by a
    Federal district court. The statute was broadened
    substantially, rewritten by the PATRIOT Act, and one can't say
    that repeated use of an unconstitutional power is not a
    problem. It is a problem.
        We suggested a number of changes to the National Security
    Letter statute that we think would satisfy that court. For
    example, making it so that a person who gets one of those
    National Security Letters can talk to a lawyer, making it so
    that the gag that prevents them from saying they ever got a
    letter is time-limited, and putting in a meaningful standard of
    review for that letter.
        The other cases that we mentioned in our letter to you
    include the exclusion of a Muslim scholar under section 411 of
    the PATRIOT Act that appears to be based on the person's
    political opinion; in another one, the prosecution of a
    gentleman, Sammy L. Hussein, for, among other things, posting
    material to the Internet that he didn't even write. He posted
    things to the Internet that were links to what other people
    wrote. He was charged for providing material support for
    terrorism for doing that and for some other things.
        These are problems. We're suggesting that this Committee
    can deal with those.
        Senator Feinstein. Mr. Dempsey, quickly.
        Mr. Dempsey. I think the cases cited by Mr. Nojeim are real
    cases of abuse. I had cited in my dialog with Senator Lott
    others that I thought were not what Congress had intended,
    although they are within the four corners of the legislation--
    use of PATRIOT Act authority for nonviolent crimes having
    nothing to do with terrorism.
        I also think, looking at the Justice Department report on
    the PATRIOT Act sunsets, there's no evidence of abuse; also,
    for many of the provisions there's no evidence of use, not that
    they aren't used, but there's nothing one way or the other in
    this report saying good or bad about how those cases have been
    used.
        I'm not sure that the standards, particularly for
    intelligence authorities, should be documented abuses. I think
    we can now take the time, look at the authority, ask does the
    authority meaningfully advance the national security. I think
    in almost every case, if not every case, there is an argument
    that it does. Then ask ourselves what should be the
    circumstances surrounding that.
        Clearly Congress thought it was retaining some limits.
    Witnesses today have emphasized the role of the judiciary, for
    example. The fact that the government needs information doesn't
    mean that all the rules are off. We now have the time to go
    back. We've made what I think are significant proposals,
    relatively modest, but they would help focus the FBI and other
    intelligence agencies.
        Ms. MacDonald. Can I quickly respond?
        Senator Feinstein. My time is up, but could Ms. MacDonald
    comment?
        Chairman Roberts. Well, I certainly would like to recognize
    Ms. MacDonald for her quick-draw best shot.
        Ms. MacDonald. OK. Thank you.
        I think we've had a case of bait and switch here. I'm
    really perplexed by the Brandon Mayfield example. What we were
    hearing, the doom and gloom scenarios about getting rid of the
    ``primary purpose'' test was that you would have a sneaky
    prosecutor who wants to get some guy for drugs and he uses FISA
    because it's a lower standard of review.
        Brandon Mayfield was being investigated for terrorism. I
    don't see how that is a misuse of the PATRIOT Act. The problem
    was the fingerprinting was inaccurate. That was not a PATRIOT
    Act abuse. The system worked. He was exonerated. He was not
    prosecuted. I'm very perplexed by the Mayfield example.
        If that's all they've got, it's not much. The National
    Security Letter statute that Mr. Nojeim says was stuck down as
    unconstitutional, that's true, but they did not strike down the
    PATRIOT Act provision. They struck down the 1986 Electronic
    Communications Privacy Act and Senator Leahy's idea that there
    should be a gag order. Let's not way that the PATRIOT Act has
    been struck down as unconstitutional.
        The exclusion of a Muslim scholar because of his political
    opinion, I'd need to know the facts about that. Obviously if
    somebody is preaching jihad, in the worst case scenario, I do
    not think that we want to admit. There's no constitutional
    right of a foreigner to be admitted to this country. He has no
    First Amendment rights. Without knowing more about the case,
    that would be my initial reaction.
        Chairman Roberts. Senator Corzine.
        Senator Corzine. Thank you, Mr. Chairman, and I appreciate
    the hearing.
        I'd like to actually continue on this. I come at this by
    citing a quote in the 9/11 Commission.

              ``The burden of proof for retaining a particular governmental
            power should be on the Executive to explain that the power
            actually materially enhances security and that there's adequate
            supervision of the Executive's use of the power to ensure
            protection of civil liberties.''

        It goes on.
        I embrace that concept, and I think this discussion of
    abuses actually is one of those elements that maybe some of
    this needs to be done privately where you delve into it. The
    idea of a judge's quarters being interdicted into without any
    kind of authori-
    zation----
        Mr. Dempsey. There was a court order, just to be clear,
    Senator. There was a court order, but it was a secret search.
        Senator Corzine [continuing]. Strikes me as somewhat
    overreaching. I'd like to hear the response to Ms. MacDonald's
    comments about the Mayfield situation, which, if you were Mr.
    Mayfield, an American citizen, you'd wonder why you were being
    subjected outside of extraordinary causes, why you were being
    subject to an investigation without the kinds of checks and
    balances that American citizens believe that they have under
    the Constitution.
        Mr. Nojeim. A couple points in response to Ms. MacDonald.
        First, in the Mayfield case, the government never had to
    show probable cause of crime in order to break into his home.
    It's just a different standard. It's a lower standard. They
    used the PATRIOT Act to break into his home. They didn't give
    notice. They wouldn't have to give notice--I'm sorry. Pre-
    PATRIOT Act, they would have had to give notice. They would
    have had to, when they broke in and downloaded the computer
    hard drives, took 355 digital photographs, took 10 samples of
    DNA, they'd have to leave a notice saying this is what we took
    from your apartment.
        You know what Mayfield's most concerned about now? All this
    information that was gathered has now been shared. It's been
    shared under the information-sharing provisions of the PATRIOT
    Act. There's not a Rule 41 A-type procedure for Mayfield to get
    it all back, to get back what was downloaded from his computer.
    That's one of his concerns.
        The other point that Ms. MacDonald made was about the
    National Security Letter statute. This I need to illustrate.
    The PATRIOT Act rewrote the National Security Letter statute.
        This is 18 USC section 2709, before the PATRIOT Act.
        This is what the PATRIOT Act did to the National Security
    Letter statute. The parts that are in yellow were added by the
    PATRIOT Act. The parts that are crossed out were deleted by the
    PATRIOT Act.
        Chairman Roberts. If you can, Mr. Nojeim, speak up. I
    apologize that we don't have a rolling mike.
        Mr. Nojeim. This is what the Court did to 18 USC section
    2709. It struck the parts that were added by the PATRIOT Act
    and it struck the parts that were in the statute before the
    PATRIOT Act amended it that were not deleted by the PATRIOT
    Act. It struck every single sentence, every phrase, every comma
    of section 505(a) of the PATRIOT Act. It is simply not accurate
    to say that it didn't strike a section of the PATRIOT Act.
        [The chart referred to follows:]

        [GRAPHIC] [TIFF OMITTED] T4983.001

        [GRAPHIC] [TIFF OMITTED] T4983.002

        [GRAPHIC] [TIFF OMITTED] T4983.003

        Mr. Nojeim. In his opinion striking this National Security
    Letter statute, Judge Morero repeatedly, repeatedly referred to
    amendments made by section 505(a) of the PATRIOT Act. He noted
    as examples of abuses conduct that could not have been
    conducted prior to the PATRIOT Act changes. In particular with
    respect to the gag in section 505(a), he said that the
    requirement of the tie to an agent of a foreign power limits
    the potential for abuse and cited that as one of the reasons he
    was striking down this statute.
        Ms. MacDonald. I read that opinion very differently. The
    ACLU was challenging the 1986 law on the fact that there was a
    gag order in the National Security Letter 1986 law that was put
    there by Patrick Leahy. The PATRIOT Act changed the 1986 law to
    this extent: it removed the agent of a foreign power
    requirement. That is not the issue that was before the Court.
        The issue before the Court was the constitutionality of the
    gag order which was in 1986. Yes, it struck down the entire
    section because the PATRIOT Act merely amended that section.
    The PATRIOT Act changes were not what was at stake. It really
    is more accurate to say it struck down the 1986 law.
        On the Mayfield case, again they were breaking into his
    house because he was under investigation for terrorism, not for
    a garden variety crime. Pre-PATRIOT Act they would have had to
    have given notice. Do we want to be giving notice to suspects
    in terrorism cases? I don't think so. Now, are there going to
    be cases in the future, perhaps, where other American citizens
    are suspected of terrorism. Could be. I wish we knew that no
    American is ever going to be tempted to join into a terrorist
    plot.
        We don't have a rule to that effect. I think that the power
    to investigate terror suspects is properly limited by the
    PATRIOT Act. That was a terrorism investigation, not a criminal
    investigation.
        Chairman Roberts. Senator Rockefeller.
        Vice Chairman Rockefeller. Thank you, Mr. Chairman. I just
    have one question. Over the months, years of its history, it
    seems to me to have always been the core question. That is, I'm
    not sure which one said it, but one of you said that the FISA
    judges are nothing more than a rubber stamp.
        I think that there are those who oppose the PATRIOT Act or
    want to see it changed because they accept that. I'm not a
    lawyer and I would wish to hear each of you say why you think
    or what you think about that statement.
        Mr. Dempsey. Senator, that was my statement, so if I could
    first--let me make it clear. I don't think that the FISA judges
    are rubber stamps in reviewing the content interception orders
    or the physical search orders, and they have proven that
    because they have clearly pushed back against the FBI and
    against the Office of Intelligence Policy Review, which
    presents the orders to them. Absolutely, I don't think that
    they are rubber stamps.
        I think under 215 they don't want to be rubber stamps, but
    as I read the statute it sort of makes them function as rubber
    stamps. It basically says, there will be no facts in front of
    you and you cannot ask for facts or asking for facts is outside
    the scope of the statute. I think that court is an important
    institution. I think they may ultimately, as we go forward, be
    given additional responsibilities.
        I don't want them to be rubber stamps. The PATRIOT Act, at
    least 215, as adopted, and probably the pen register changes,
    if adopted, do pretty much make them into that.
        Vice Chairman Rockefeller. How would you respond to that,
    Ms. MacDonald?
        Ms. MacDonald. That was actually my statement. I said that
    in my impression I hear critics accusing the FISA court of
    being a rubber stamp because it's in secret. I think that is an
    insult to Article III judges who rotate in and out of that
    court. I have to assume that they are taking their
    responsibilities extraordinarily seriously.
        Let's not forget that FISA, the original law, was already a
    radical civil libertarian idea that a judge should be involved
    in foreign intelligence investigations in the first place. The
    whole wisdom of constitutional assumptions up to that point was
    that anything involving foreign espionage, foreign terrorism,
    was within the Executive branch's discretion, because judges
    don't have the knowledge to pass on such matters. The very fact
    that we have a court at all basically issuing warrants for
    foreign intelligence investigations I think is already a
    significant check on executive power.
        The idea that anything should be public about that court to
    me is preposterous.
        Vice Chairman Rockefeller. That I'm not questioning.
        Mr. Dempsey said that they have no facts before them. When
    you say that to the average American they say, ``Well, they
    must just be operating automatically or on automatic pilot.''
        Ms. MacDonald. They have the record that is presented to
    take a request before the FISA court.
        Vice Chairman Rockefeller. The facts that they do have
    reflect on the decision that they will proceed to make.
        Ms. MacDonald. That the records are relevant to a terrorism
    investigation.
        Vice Chairman Rockefeller. And, Mr. Dempsey, you would say?
        Mr. Dempsey. Well, I guess I have to say, Mr. Chairman, at
    some level I don't know, since I haven't seen a 215 or post-
    PATRIOT pen register application to the FISA court. As I read
    the statute, it says nothing about the factual determination.
    If there is one and if there is a factual showing--and, by the
    way, internally the FBI does prepare, internally, a factual
    basis for both the National Security Letters and 215, and I
    assume for the pen registers--if they do, I think that should
    be part of the statute.
        If they don't, then I think they are operating on
    autopilot, and that's where it would be good if this Committee
    could say something publicly about what it has seen, that 215
    and pen register applications do or do not have a factual
    predicate to them, and it is or is not something that would
    show relevance in the particularity of that request.
        National Security Letters, of course, never are presented
    to a judge. I think they should be. I think everything should
    be rolled into 215.
        Ms. MacDonald. if you have a judge, it's not enough, and if
    you don't have a judge, then it's not enough. The identical
    language was what was governing the FBI before 9/11 when this
    Committee raised the alarm that the FISA process was taking
    months and that the OIPR was putting probable cause standards
    that were completely unjustified by the statute.
        The practice is clearly to develop a substantial record to
    take to the court.
        Vice Chairman Rockefeller. You think that the necessity of
    getting--as you pointed out, I think very effectively, this is
    about terrorism and our Nation's security--that there is a
    certain rush to get decisions made for purposes of looking or
    not looking or whatever, and that some then would interpret
    that as, in and of itself, being avoiding their particular
    practices, which would not apply to a national security type
    situation, an ordinary law situation. Shakespeare could have
    said that better.
        Ms. MacDonald. Again let's just remember that your peers
    can get those records. A grand jury can subpoena those records
    with no judge involved at all. The PATRIOT Act gives you a
    judge. FISA gives you a judge. Those records are not protected
    by the Fourth Amendment. You do not need a probable cause
    warrant to get them. A prosecutor can say give me those records
    right now.
        Vice Chairman Rockefeller. Would you disagree with that,
    Mr. Nojeim?
        Mr. Nojeim. I would say that she's gone a little too far in
    saying that the records are completely unprotected by the
    Fourth Amendment because they're in the hands of a third party.
    For example, when I send an e-mail to you, that e-mail is in
    the hands of an Internet service provider. The content of that
    e-mail, I believe, is protected by the Fourth Amendment. So
    this notion that everything that's in the hands of a third
    party is unprotected I don't know that I would go that far.
        Ms. MacDonald. The PATRIOT Act does not make the content of
    that e-mail available. That is protected First Amendment
    information. Third party records----
        Mr. Nojeim. Actually, if I could just follow up on that,
    what happened in the PATRIOT Act was the pen register and trap
    and trace language that used to apply only to telephone records
    and was interpreted to apply to Internet records was explicitly
    applied to Internet records. It wasn't clarified that that
    language doesn't include, for example, content type information
    that might be in a person's search request when they make a
    search request under Google, for example.
        One of the things that we're suggesting that this Committee
    or Congress do is to clarify that that kind of information,
    which is content, would not be available under pen registers
    and trap and trace devices.
        Ms. MacDonald. That's fine. This is minutiae. The fact is,
    U.S. v. Miller, a Supreme Court case of 1976, said no Fourth
    Amendment privacy interest in records in third party hands.
    That's why a prosecutor can subpoena them.
        Vice Chairman Rockefeller. This has been enlightening and
    helpful. I thank you all.
        Chairman Roberts. Senator Corzine.
        Senator Corzine. I really just need to ask for the facts in
    the Mayfield case. Can someone give me the chronology about
    what authorizations occurred, didn't occur, and how soon the
    individual was made aware? What was the flow. I apologize if I
    didn't get through all my briefings, but actually looking at
    some of these individual cases----
        Chairman Roberts. Senator, could I make a suggestion, that
    we go into that in a closed session, as to chronological order
    that you requested? I want the witnesses to respond, if in fact
    you have something to say, but let me just say that I think you
    should raise that question again during the closed session so
    we can get a better answer.
        I would only say that at the time, I think it was Ms.
    MacDonald, indicated that it was a fingerprint mistake. We
    thought this gentlemen had the same fingerprint as was located
    on a bomb in Madrid. As you remember, we were going through
    quite a time here in regard to a consensus threat analysis
    that, as it turned out--I'll just stop right there.
        We did a lot in terms of security measures and everybody
    was very intense at that particular time, very concerned. As it
    turned out, that was not the case in regard to the level that
    perhaps was acted upon. I probably ought to quit talking about
    it.
        At any rate, it was at that particular time. We had
    officers around here, as you well remember, with gas masks and
    automatic weapons and security moved away, and parents of my
    staffers calling. One Senator just left. It was all based on
    the Madrid syndrome. You had a situation where you had a
    fingerprint mistake.
        I don't think that that's an abuse of the PATRIOT Act. That
    was a mistake by the FBI and the fingerprint. Now that didn't
    answer your question, and I apologize. At least I wanted to
    bring that up.
        If you would like to pursue that.
        Senator Corzine. I respect the idea that we ought to parse
    this, if we were to parse this, in private. What is in the
    public domain, if someone had a comment on it.
        I have a simple question. Was there a FISA request.
        Mr. Nojeim. Yes. There was a FISA request. The simple two-
    sentence explanation is, Mayfield enlisted in the Army and
    submitted a fingerprint. It was that fingerprint that was
    mistakenly matched with a fingerprint on some detonators of
    undetonated bombs that were found in Madrid. The government
    used that match to detain Mayfield on a material witness
    warrant, but prior to that it had secretly broken into his
    home, apparently a number of times, and also conducted
    electronic surveillance using the Foreign Intelligence
    Surveillance Act, as amended by the PATRIOT Act.
        Mr. Dempsey. Mr. Chairman.
        Chairman Roberts. Yes, Mr. Dempsey.
        Mr. Dempsey. Could I just make one brief comment, not on
    the Mayfield question but going back to the discussion of abuse
    and sort of what's the burden of proof, so to speak, on the
    PATRIOT Act. In November 2001 the National Security Law unit at
    the FBI sent a field memo out to agents explaining the National
    Security Letter provisions, pointing out that the National
    Security Letters are powerful investigative tools. However,
    they just be used judiciously. It said that the USA PATRIOT Act
    greatly broadened the FBI's authority to gather this
    information; however, the provisions in the Act relating to the
    NSLs are subject to a sunset provision that calls for the
    expiration of those provisions in 4 years. In deciding whether
    or not to reauthorize the broadened authority, Congress
    certainly will examine the manner in which the FBI exercised
    it.
        Now in that sense I think that the sunsets worked. The
    sunsets have required the government to be careful. There may
    be abuses, either in the Mayfield case or in some of the cases
    I cited, abuses may yet come to light, but because of the
    sunsets we did have this exercise of caution implicitly
    recommended by FBI headquarters.
        I think we need to either have another sunset or we need to
    find some checks and balances that will serve the same purpose
    and ensure that these are exercised carefully. Because if the
    sunsets go away, then I'm not sure what there is left.
        Chairman Roberts. Senator Chambliss. You are like Shane;
    you come back.
        Senator Chambliss. When you page me, Mr. Chairman, I come.
    I apologize for having to come and go, but this is too
    interesting a subject and too important a subject to not come
    back and dialog on a couple of issues.
        First of all, Mr. Dempsey, in your opening comments you
    talked about sneak and peek and the use of it relative to a
    couple of instances that you pointed out, one going into a
    judge's chamber to look for whatever I guess the FBI in that
    case was looking for and, second, in the office of a health
    care provider. In both those cases they used the PATRIOT Act.
        How could you use the PATRIOT Act in a non-terrorist
    situation in the two examples that you gave?
        Mr. Dempsey. Isn't that a fascinating question? That would
    perplex most people, Senator. The fact is that there are
    provisions in the PATRIOT Act that have nothing to do with
    terrorism. Sneak and peek is No. 1. Remember, for terrorism
    investigations the FBI has sneak and peek authority under FISA.
    If sneak and peek authority were needed for criminal
    investigations of terrorism, some Senators, including Senator
    Leahy, said, ``Well, OK, let's have a sneak and peek for
    terrorism cases.''
        ``Uh-uh'', said the Justice Department. We want it for all
    cases. We want it for student loan cases. We want it for
    Medicare fraud cases. We want it for judicial corruption cases.
    We want it for check-kiting cases. That's what was enacted and
    that's how it's being used. I think most people would be
    astonished to realize that the PATRIOT Act is being used for
    sneak and peek searches in non-
    terrorism, non-violent cases.
        Senator Chambliss. Is there a specific authorization for
    sneak and peek to be used in non-terrorist cases within the
    PATRIOT Act?
        Mr. Dempsey. Well, the section was generic in nature. It
    was a generic exception to the rule which generally requires
    notice in the execution of warrants. It was sort of shoehorned
    in there. It's a little bit of an odd provision.
        Senator Chambliss. Of course, sneak and peeks have been
    used, particularly in organized crime cases, drug cases, I know
    for years. Are you telling me that this was something
    different, that there was some additional authority given in
    the PATRIOT Act that allowed them to use this versus the
    previous sneak and peek authority?
        Mr. Dempsey. My own view is that the Justice Department was
    trying to bootstrap the existing authority, which I think was a
    little bit shaky, it couldn't be pushed too far, it had to be
    used with care, in my view it had to be confined to cases where
    there was risk of destruction of the evidence or risk of
    intimidation of witnesses or flight from prosecution or risk of
    loss of life or some violent act.
        What happened in the PATRIOT Act was that basically the
    Justice Department invoked the authority of the Congress to
    bolster that authority, expand the kind of cases in which it
    could be used, and in essence give a green light to the judges,
    backed up by Congress. Judges have allowed sneak and peeks in
    criminal cases before the PATRIOT Act.
        I think the Justice Department was a little worried about
    what ground that stood upon. Some Supreme Court cases had said
    that notice is more important than we had thought when the
    original sneak and peek cases were decided, and I think the
    Justice Department was trying to get Congress to sort of
    bolster that authority and expand it in the sense of putting it
    on what seemed to be a firmer foundation, although, of course,
    it's the Constitution that's the final test.
        I think that there was an effort by the Justice Department
    to take some somewhat uncertain, often used but still uncertain
    and cautiously exercised, judicial common law authority and
    bolster that with this emergency legislation. I think they
    shouldn't have done it for cases, non-terrorism-related. I
    think that is somewhat surprising, that it turned out that way.
        I think that now the judges, if anything, are probably more
    confused about what are the standards for sneak and peek
    searches. It looks a little bit like the constraints are off.
        Senator Chambliss. Ms. MacDonald, according to your opening
    comments, I don't think you agree with that. Am I right?
        Ms. MacDonald. That's a good supposition. The theory that
    somehow the authority to delay notice of a search was in any
    constitutional jeopardy before the PATRIOT Act I disagree with
    100 percent. The cases had upheld sneak and peek authority. In
    fact, I don't see how you can conduct any kind of pre-emptive
    investigation, be it criminal or terrorism, with notice. You
    can't.
        If sneak and peek hadn't existed, somebody would have had
    to invent it, because if you are trying to limn out the extent
    of a criminal conspiracy, you need secrecy up until the point
    when you have evidence. You need secrecy. Remember, the other
    point about this authority, which pre-existed the PATRIOT Act
    and which the PATRIOT Act merely codified, is that notice is
    only delayed.
        There is no authority to withhold notice for eternity. All
    that the PATRIOT Act did was change, in one case, a 7-day rule
    of thumb to the phrase ``reasonable period of delay.'' Courts
    all the time operate under that type of language, and we don't
    have a problem with it. It is in fact, in case law, quite rare
    to have specific numerical barriers on anything. This is why we
    have the common law system, because courts like to look at
    facts and use their own judgment.
        As far as getting rid of the limits that Mr. Dempsey said,
    that's not true. The PATRIOT Act points to the exact set of
    circumstances that he just enumerated--witness intimidation,
    destruction of evidence, jeopardizing a trial or unduly
    delaying a trial, putting somebody's life in jeopardy. Those
    existed pre-PATRIOT Act, they exist post-PATRIOT Act.
        I don't think the Justice Department was in any fear of the
    power being taken away from them. I think what they wanted was
    a uniform national standard for complex criminal or terror
    investigations so they didn't have to worry about what the
    Second Circuit's specific details were versus the Ninth
    Circuit's. Because we have national investigations, be they
    criminal or terror.
        Mr. Dempsey. Then let's write those standards. What the
    Congress did in the PATRIOT Act was to refer to a list of
    circumstances not drawn up for sneak and peek searches, not
    drafted for the PATRIOT Act but drafted a number of years ago
    in a law having to do with delayed notice of access to stored
    e-mail. The PATRIOT Act simply references those circumstances
    by referral--the risk of loss of life, absolutely, intimidation
    of witnesses, destruction of evidence, flight from prosecution.
    They also include otherwise unduly jeopardizing an
    investigation or delaying a trial.
        It turns out that the Attorney General report just last
    week that the majority of the sneak and peeks that have been
    approved under the PATRIOT Act in non-terrorism cases since it
    was adopted have been in that catch-all category of unduly
    delaying a trial or otherwise jeopardizing an investigation.
        If we want to give standards, if we want to give
    uniformity, if we want to give guidance to the courts, let's
    give them guidance. Let's think about what are the
    circumstances in which this technique is appropriate and write
    them and not reference some other circumstances developed for
    another purpose.
        I think it would be useful to actually look back at the
    cases. I'm not sure that any case has ever said that a delay in
    a trial is a reason to break secretly into somebody's house. I
    don't think there is a case on that.
        Chairman Roberts. I want to thank all the witnesses for a
    very challenging and intellectually stimulating hearing and for
    your advice and counsel as we go through the reauthorization of
    the Act. You have been most helpful and been patient and you
    have persevered, and we thank you very much for your
    attendance.
        The hearing is concluded.
        [Whereupon, at 4:44 p.m., the hearing adjourned.]

     THE HISTORY AND APPLICATION OF THE USA PATRIOT ACT AND THE IMPORTANCE
          OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 (FISA)

                                  ----------

                                    DAY TWO

                           WEDNESDAY, APRIL 27, 2005

                          United States Senate,
               Senate Select Committee on Intelligence,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:37 a.m., in
    room SH-216, Hart Senate Office Building, Hon. Pat Roberts
    (Chairman of the Committee) presiding.
        Committee Members Present: Senators Roberts, DeWine, Snowe,
    Rockefeller, Levin, Wyden and Mikulski.

            OPENING STATEMENT OF HON. PAT ROBERTS, CHAIRMAN

        Chairman Roberts. The Committee will come to order.
        The Senate Select Committee on Intelligence today continues
    its ongoing oversight of the USA PATRIOT Act. This is the third
    in a series of three hearings designed to educate Members and
    the public as the Senate considers the repeal of the sunset
    provision, and modification to other intelligence authorities.
        Last week, the Committee heard from a panel of outside
    experts with regard to the authorities contained in the PATRIOT
    Act. Later in the week, the Committee held a very informative
    closed hearing on the use by the intelligence community field
    operatives of the tools provided by the PATRIOT Act, and today
    it is my opinion that I have heard nothing to substantiate the
    allegations that abuses of the tools that are provided by the
    USA PATRIOT Act have led to violations of the civil rights of
    American citizens. I have, however, heard testimony and
    received other information that clearly demonstrates how the
    PATRIOT Act has been instrumental in helping our intelligence
    community agencies, in particular the FBI, identify and
    interdict terrorists and other national security threats.
        The purpose of today's hearing is to receive testimony
    concerning the Administration's position on the authorities
    provided in the PATRIOT Act, including those provisions subject
    to sunset. We have a distinguished panel--the Honorable Alberto
    Gonzales, Attorney General of the United States; the Honorable
    Robert Mueller, the Director of the Federal Bureau of
    Investigation; and the Honorable Porter Goss, the Director of
    the Central Intelligence Agency. The Committee thanks all of
    our witnesses for being here today, and for taking time out of
    your very valuable schedule.
        This series of hearings is not the Committee's first review
    of the USA PATRIOT Act or the Foreign Intelligence Surveillance
    Act, also known as FISA. The Committee regularly holds hearings
    and conducts briefings and receives information in regard to
    activities of the intelligence community. The Committee
    conducted a closed hearing on the PATRIOT Act during the last
    Congress. We receive detailed reports from the Department of
    Justice every 6 months in regard to FISA collection, and annual
    reports on the use of other surveillance tools.
        The Committee is also in the final stages of completing its
    second audit of the procedures and practices in the use of
    FISA. This comprehensive classified analysis will represent one
    of the most thorough reviews of the executive branch activities
    under FISA since the USA PATRIOT Act was enacted.
        Now, before I recognize the Vice Chairman, I want to
    reiterate some fundamental principles that will inform our
    consideration of the USA PATRIOT Act reauthorization and any
    other modifications to law or policy governing intelligence
    activities. First, our intelligence agencies need flexible
    authorities to confront terrorists, spies, and proliferators
    and other national security threats.
        Second, as we seek to protect the national security, we
    must also ensure that civil liberties and privacy are not
    sacrificed in the process. This is not a zero sum game,
    however. As former Supreme Court Justice Arthur Goldberg noted,
    while the Constitution does protect against invasions of
    individual rights, it is not a suicide pact.
        Third, these are not matters of first impression. During
    their interpretation of the Constitution and the President's
    responsibility to protect national security, Federal courts
    have wrestled with many of these issues before. And the courts
    have recognized the authority of the President to conduct
    warrantless electronic surveillance of foreign powers and their
    agents. Well established judicial precedents also make clear
    that certain records, even of the most private information,
    lose their constitutional protection when voluntarily exposed
    publicly or to a business or to a third party.
        Finally, I will support reasonable modifications to the USA
    PATRIOT Act provisions or other authorities that clarify legal
    uncertainties, but I will oppose modifications that place
    unnecessary hurdles in the path of lawful intelligence
    investigations.
        Now, the Senate's consideration of modifications to section
    215 of the US PATRIOT Act will serve as a good example of how I
    intend to apply these fundamental principles. I had previously
    expressed my support for the modifications made to FISA by
    section 215. The ``business records'' that our investigators
    now have access to, following a review by a Federal judge, are
    very important pieces of the intelligence puzzle. They form the
    basis for further investigation of national security threats.
        Despite all of the talk that has been directed at section
    215, and obvious concern, I have heard of no substantial
    allegation of abuse or misuse. There may have been some
    mistakes, but it certainly didn't have anything to do with the
    PATRIOT Act. In fact, I believe the FBI's use of the authority
    may have been a little bit too judicious. While I recognize
    that some clarifying modifications to section 215 may be
    necessary, I will oppose any modification that increased the
    standard for a business record order above ``relevance'' or
    alterations that place unreasonable barriers between these
    records and the intelligence officials.
        Those provisions of the USA PATRIOT Act, including section
    215, that will expire at the end of the year must be
    reauthorized. The alternative is a return to a failed,
    outdated, and illogical limit on national security
    investigations that tied our hands prior to the 9/11 attacks.
    The dangers are real, and we should give our people every
    constitutional tool available to fight and defeat terrorism.
        I now recognize the distinguished Vice Chairman for any
    remarks he might wish to make.

            OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV

        Vice Chairman Rockefeller. Thank you, Mr. Chairman.
        I greet all three of you distinguished leaders of your
    agencies and express embarrassment that there are only four
    Members of our Committee here. If there are any that choose to
    listen to this on in-Senate television, we would welcome their
    coming in and participating in this Committee meeting. This is
    not an impressive display of government oversight.
        I do welcome you. Our principle focus has been on one title
    of the PATRIOT Act, which is Title II on enhanced surveillance
    procedures. That has, as we discussed before, 16 provisions
    that will cease to have effect or sunset on December 31st of
    this year. In addition, the recently enacted Intelligence
    Reform Act authorizes the use of the FISA, the Foreign
    Intelligence Surveillance Act, in the case of so-called lone
    wolf terrorists. That new authority is also subject to sunset
    at the end of this year.
        So these hearings and related hearing before the Senate
    Judiciary Committee and in the House also will help Congress to
    resolve two basic questions. First, on the basis of experience
    and further reflection since September 11, 2001, should any of
    the expiring authorities be amended? And second, as originally
    enacted or as amended, should the expiring provisions be made,
    in fact, permanent?
        From last week's hearings it appears that there is broad
    support for the proposition. Even a critic of parts of the
    PATRIOT Act conceded that, ``we see not a single power in the
    Act that needs to sunset or go away entirely.'' Rather, the
    issue is whether several sections of the Act should be amended
    to provide additional checks and balances. It's my hope that we
    can now begin to focus on the suggestions for improving several
    of the provisions that are now scheduled to expire at the end
    of this year.
        In the Senate there is a bipartisan bill, S. 737, the
    Security and Freedom Enhancement Act, or SAFE Act, introduced
    by Senator Craig. Senator Corzine of our Committee is one of
    the 10 bipartisan cosponsors of this Act. The SAFE Act would
    make permanent most of the PATRIOT Act's investigative tools
    without change and amend several other PATRIOT Act tools to
    provide additional safeguards. I have reached no conclusions
    myself about the particulars of the SAFE Act, or I choose not
    to at this point, which has been referred to the Judiciary
    Committee and also will be studied by our colleagues very
    carefully in that body.
        I do believe on the basis of the breadth of its sponsorship
    and the supporting testimony that we have heard that the
    legislation merits our serious consideration. I look forward to
    hearing from our witnesses today about the proposals in the
    SAFE Act, including any objections or alternative suggestions
    that you may have for ensuring both sufficient focus on
    suspected terrorists and sufficient judicial and congressional
    oversight.
        We need effective investigative tools against terrorism.
    Nobody can argue that. We need to be mindful of our
    Constitution and our values. And we need to build a broad
    public consensus that sustains our efforts against a war on
    terrorism which I think will last for decades, in those years
    to come. This will require intensive effort by the executive
    and legislative branches, to give the American public
    additional confidence that powerful investigative tools will be
    used effectively and that they will be used judiciously. I
    think this can be done, but the American public is not easily
    sold on such matters. On the other hand, fighting a war on
    terrorism has its own requirements by themselves.
        Today's witnesses head the three organizations that are
    responsible, along with the Department of Defense, for
    developing, issuing and carrying out the legal and operational
    guidance at the heart of our interrogation program, and that is
    another matter for another day.
        Mr. Chairman, I thank you, and again I welcome the
    witnesses.
        Chairman Roberts. We are pleased to have the Attorney
    General and the Director of the FBI and the Director of the CIA
    with us. And in the following order they will be recognized--
    the Attorney General, and the FBI Director, and the CIA
    Director. So General Gonzales, if you would like to proceed,
    sir, you are most welcome to do so at this time.
        [The prepared statement of Attorney General Gonzales and
    Director Mueller follows:]
      Prepared Statement of Alberto R. Gonzales and Robert S. Mueller III
        Chairman Roberts, Vice Chairman Rockefeller, and Members of the
    Committee:
        We are pleased to be here today to discuss the government's use of
    authorities granted to it by Congress under the Foreign Intelligence
    Surveillance Act of 1978 (FISA). In particular, we appreciate the
    opportunity to have a candid discussion about the impact of the
    amendments to FISA made by the USA PATRIOT Act and how critical they
    are to the government's ability to successfully prosecute the war on
    terrorism and prevent another attack like that of September 11 from
    ever happening again.
        As we stated in our testimony to the Senate Judiciary Committee, we
    are open to suggestions for strengthening and clarifying the USA
    PATRIOT Act, and we look forward to meeting with people both inside and
    outside of Congress who have expressed views about the Act. However, we
    will not support any proposal that would undermine our ability to
    combat terror ism effect ively.

                               I. FISA STATISTICS

        First, we would like to talk with you about the use of FISA
    generally. Since September 11, the volume of applications to the
    Foreign Intelligence Surveillance Court (FISA court) has dramatically
    increased.
         In 2000, 1,012 applications for surveillance or search
    were filed under FISA. As the Department's public annual FISA report
    sent to Congress on April 1, 2005 states, in 2004 we filed 1,758
    applications, a 74 percent increase in 4 years.
         Of the 1,758 applications made in 2004, none were denied,
    although 94 were modified by the FISA court in some substantive way.
            ii. key uses of fisa authorities in the war on terrorism
        In enacting the USA PATRIOT Act, the Intelligence Authorization Act
    for Fiscal Year 2002, and the Intelligence Reform and Terrorism
    Prevention Act of 2004, Congress provided the government with vital
    tools that it has used regularly and effectively in its war on
    terrorism. The reforms contained in those measures affect every single
    application made by the Department for electronic surveillance or
    physical search of suspected terrorists and have enabled the government
    to become quicker and more flexible in gathering critical intelligence
    information on suspected terrorists. It is because of the key
    importance of these tools to the war on terror that we ask you to
    reauthorize the provisions of the USA PATRIOT Act scheduled to expire
    at the end of this year. Of particular concern is section 206's
    authorization of multipoint or ``roving'' wiretaps, section 207's
    expansion of FISA' s authorization periods for certain cases, section
    214's revision of the legal standard for installing and using pen
    register/trap and trace devices, and section 215's grant of the ability
    to obtain a Court order requesting the production of business records
    related to national security investigations.
        In addition, the Intelligence Reform and Terrorism Prevention Act
    of 2004 includes a ``lone wolf' provision that expands the definition
    of ``agent of a foreign power'' to include a non-United States person,
    who acts alone or is believed to be acting alone and who engages in
    international terrorism or in activities in preparation therefor. This
    provision is also scheduled to sunset at the end of this year, and we
    ask that it be made permanent as well.

    A. Roving Wiretaps
        Section 206 of the USA PATRIOT Act extends to FISA the ability to
    ``follow the target'' for purposes of surveillance rather than tie the
    surveillance to a particular facility and provider when the target's
    actions may have the effect of thwarting that surveillance. In the
    Attorney General's testimony at the beginning of this month before the
    Senate Judiciary Committee, he declassified the fact that the FISA
    court issued 49 orders authorizing the use of roving surveillance
    authority under section 206 as of March 30, 2005. Use of roving
    surveillance has been available to law enforcement for many years and
    has been upheld as constitutional by several Federal courts, including
    the Second, Fifth, and Ninth Circuits. Some object that this provision
    gives the FBI discretion to conduct surveillance of persons who are not
    approved targets of court-authorized surveillance. This is wrong.
    Section 206 did not change the requirement that before approving
    electronic surveillance, the FISA court must find that there is
    probable cause to believe that the target of the surveillance is either
    a foreign power or an agent of a foreign power, such as a terrorist or
    spy. Without section 206, investigators will once again have to
    struggle to catch up to sophisticated terrorists trained to constantly
    change phones in order to avoid surveillance.
        Critics of section 206 also contend that it allows intelligence
    investigators to conduct ``John Doe'' roving surveillance that permits
    the FBI to wiretap every single phone line, mobile communications
    device, or Internet connection the suspect may use without having to
    identify the suspect by name. As a result, they fear that the FBI may
    violate the communications privacy of innocent Americans. Let me
    respond to this criticism in the following way. First, even when the
    government is unsure of the name of a target of such a wiretap, FISA
    requires the government to provide ``the identity, if known, or a
    description of the target of the electronic surveillance'' to the FISA
    Court prior to obtaining the surveillance order. 50 U.S.C.
    Sec. Sec. 1804(a)(3) and 1805(c)(l)(A). As a result, each roving
    wiretap order is tied to a particular target whom the FISA Court must
    find probable cause to believe is a foreign power or an agent of a
    foreign power. In addition, the FISA Court must find ``that the actions
    of the target of the application may have the effect of thwarting'' the
    surveillance, thereby requiring an analysis of the activities of a
    foreign power or an agent of a foreign power that can be identified or
    described. 50 U.S.C. Sec. 1805 (c)(2)(B). Finally, it is important to
    remember that FISA has always required that the government conduct
    every surveillance pursuant to appropriate minimization procedures that
    limit the government's acquisition, retention, arid dissemination of
    irrelevant communications of innocent Americans. Both the Attorney
    General and the FISA Court must approve those minimization procedures.
    Taken together, we believe that these provisions adequately protect
    against unwarranted governmental intrusions into the privacy of
    Americans. Section 206 sunsets at the end of this year.

    B. Authorized Periods for FISA Collection
        Section 207 of the USA PATRIOT Act has been essential to protecting
    the national security of the United States and protecting the civil
    liberties of Americans. It changed the time periods for which
    electronic surveillance and physical searches are authorized under FISA
    and, in doing so, conserved limited OIPR and FBI resources. Instead of
    devoting time to the mechanics of repeatedly renewing FISA applications
    in certain cases--which are considerable--those resources can be
    devoted instead to other investigative activity as well as conducting
    appropriate oversight of the use of intelligence collection authorities
    by the FBI and other intelligence agencies. A few examples of how
    section 207 has helped arc set forth below.
        Since its inception, FISA has permitted electronic surveillance of
    an individual who is an agent of foreign power based upon his status as
    a non-United States person who acts in the United States as ``an
    officer or employee of a foreign power, or as a member'' of an
    international terrorist group. As originally enacted, FISA permitted
    electronic surveillance of such targets for initial periods of 90 days,
    with extensions for additional periods of up to 90 days based upon
    subsequent applications by the government. In addition, FISA originally
    allowed the government to conduct physical searches of any agent of a
    foreign power (including United States persons) for initial periods of
    45 days, with extensions for additional 45-day periods.
        Section 207 of the USA PATRIOT Act changed the law as to permit the
    government to conduct electronic surveillance and physical search of
    certain agents of foreign powers and nonresident alien members of
    international groups for initial periods of 120 days, with extensions
    for periods of up to 1 year. It also allows the government to obtain
    authorization to conduct a physical search of any agent of a foreign
    power for periods of up to 90 days. Section 207 did not change the time
    periods applicable for electronic surveillance of United States
    persons, which remain at 90 days. By making these time periods
    equivalent, it has enabled the Department to file streamlined combined
    electronic surveillance and physical search applications that, in the
    past, were tried but abandoned as too cumbersome to do effectively.
        As the Attorney General testified before the Senate Judiciary
    Committee, we estimate that the amendments in section 207 have saved
    OIPR approximately 60,000 hours of attorney time in the processing of
    applications. Because of section 207's success, we have proposed
    additional amendments to increase the efficiency of the FISA process.
    Among these would be to allow coverage of all non-U.S. person agents
    for foreign powers for 120 days initially with each renewal of such
    authority allowing continued coverage for 1 year. Had this and other
    proposals been included in the USA PATRIOT Act, the Department
    estimates that an additional 25,000 attorney hours would have been
    saved in the interim. Most of these ideas were specifically endorsed in
    the recent report of the WMD Commission. The WMD Commission agreed that
    these changes would allow the Department to focus its attention where
    it is most needed and to ensure adequate attention is given to cases
    implicating the civil liberties of Americans. Section 207 is scheduled
    to sunset at the end of this year.

    C. Pen Registers and Trap and Trace Devices
        Some of the most useful, and least intrusive, investigative tools
    available to both intelligence and law enforcement investigators are
    pen registers and trap and trace devices. These devices record data
    regarding incoming and outgoing communications, such as all of the
    telephone numbers that call, or are called by, certain phone numbers
    associated with a suspected terrorist or spy. These devices, however,
    do not record the substantive content of the communications, such as
    the words spoken in a telephone conversation. For that reason, the
    Supreme Court has held that there is no Fourth Amendment protected
    privacy interest in information acquired from telephone calls by a pen
    register. Nevertheless, information obtained by pen registers or trap
    and trace devices can be extremely useful in an investigation by
    revealing the nature and extent of the contacts between a subject and
    his confederates. The data provides important leads for investigators,
    and may assist them in building the facts necessary to obtain probable
    cause to support a full content wiretap.
        Under chapter 206 of title 18, which--has been in place since 1986,
    if an FBI agent and prosecutor in a criminal investigation of a bank
    robber or an organized crime figure want to install and use pen
    registers or trap and trace devices, the prosecutor must file an
    application to do so with a Federal court. The application they must
    file, however, is exceedingly simple: it need only specify the identity
    of the applicant and the law enforcement agency conducting the
    investigation, as well as ``a certification by the applicant that the
    information likely to be obtained is relevant to an ongoing criminal
    investigation being conducted--by that agency.'' Such applications, of
    course, include other information about the facility that will be
    targeted and details about the implementation of the collection, as
    well as ``a statement of the offense to which the information likely to
    be obtained . . . relates,'' but chapter 206 does not require an
    extended recitation of the facts of the case.
        In contrast, prior to the USA PATRIOT Act, in order for an FBI
    agent conducting an intelligence investigation to obtain FISA authority
    to use the same pen register and trap and trace device to investigate a
    spy or a terrorist, the government was required to file a complicated
    application under title IV of FISA. Not only was the government's
    application required to include ``a certification by the applicant that
    the information likely to be obtained is relevant to an ongoing foreign
    intelligence or international terrorism investigation being conducted
    by the Federal Bureau of Investigation under guidelines approved by the
    Attorney General,'' it also had to include the following: information
    which demonstrates that there is reason to believe that the telephone
    line to which the pen register or trap and trace device is to be
    attached, or the communication instrument or device to be covered by
    the pen register or trap and trace device, has been or is about to be
    used in communication with:

              (A) an individual who is engaging or has engaged in
            international terrorism or clandestine intelligence activities
            that involve or may involve a violation of the criminal laws of
            the United States; or
              (B) a foreign power or agent of foreign power under
            circumstances giving reason to believe that the communication
            concerns or concerned international terrorism or clandestine
            intelligence activities that involve or may involve a violation
            of the criminal laws of the United States.

        Thus, the government had to make a much different showing in order
    obtain a pen register or trap and trace authorization to find out
    information about a spy or a terrorist than is required to obtain the
    very same information about a drug dealer or other ordinary criminal.
    Sensibly, section 214 of the USA PATRIOT Act simplified the standard
    that the government mast meet in order to obtain pen/trap data in
    national security cases. Now, in order to obtain a national security
    pen/trap order, the applicant must certify ``that the information lkely
    to be obtained is foreign intelligence information not concerning a
    United States person, or is relevant to an investigation to protect
    against international terrorism or clandestine intelligence
    activities.'' Importantly, the law requires that such an investigation
    of a United States person may not be conducted solely upon the basis of
    activities protected by the First Amendment to the Constitution.
        Section 214 should not be permitted to expire and return us to the
    days when it was mare difficult to obtain pen/trap authority in
    important national security cases than in normal criminal cases. This
    is especially true when the law already includes provisions that
    adequately protect the civil liberties of Americans. I urge you to re-
    authorize section 214.

    D. Access to Tangible Things
        Section 215 of the USA PATRIOT Act allows the FBI to obtain an
    order from the FISA Court requesting production of any tangible thing,
    such as business records, if the items are relevant to an ongoing
    authorized national security investigation, which, in the case of a
    United States person, cannot be based solely upon activities protected
    by the First Amendment to the Constitution. The Attorney General also
    declassified earlier this month the fact that the FISA Court has issued
    35 orders requiring the production of tangible things under section 215
    from the date of the effective date of the Act through March 30th of
    this year. None of those orders was issued to libraries and/or
    booksellers, and none was for medical or gun records. The provision to
    date has been used only to order the production of driver's license
    records, public accommodation records, apartment leasing records,
    credit card records, and subscriber information, such as names and
    addresses, for telephone numbers captured through court-authorized pen
    register devices.
        Similar to a prosecutor in a criminal case, issuing a grand jury
    subpoena for an item relevant to his investigation, so too may the FISA
    Court issue an order requiring the production of records or items that
    are relevant to an investigation to protect against international
    terrorism or clandestine intelligence activities. Section 215 orders,
    however, are subject to judicial oversight before they are issued--
    unlike grand jury subpoenas. The FISA Court must explicitly authorize
    the use of section 215 to obtain business records before the government
    may serve the order on a recipient. In contrast, grand jury subpoenas
    are subject to judicial review only if they arc challenged by the
    recipient. Section 215 orders arc also subject to the same standard as
    grand jury subpoenas--a relevance standard.
        Section 215 has been criticized because it does not exempt
    libraries and booksellers. The absence of such an exemption is
    consistent with criminal investigative practice. Prosecutors have
    always been able to obtain records from libraries and bookstores
    through grand jury subpoenas. Libraries and booksellers should not
    become safe havens for terrorists and spies. Last year, a member of a
    terrorist group closely affiliated with al Qaeda used Internet service
    provided by a public library to communicate with his confederates.
    Furthermore, we know that spies have used public library computers to
    do research to further their espionage and to communicate with their
    co-conspirators. For example, Brian Regan, a former TRW employee
    working at the National Reconnaissance Office, who was convicted of
    espionage, extensively used computers at five public libraries in
    Northern Virginia and Maryland to access addresses for the embassies of
    certain foreign governments.
        Concerns that section 215 allows the government to target Americans
    because of the books they read or websites they visit are misplaced.
    The provision explicitly prohibits the government from conducting, an
    investigation of a U.S. person based solely upon protected First
    Amendment activity. 50 U.S.C. Sec. 1861(a)(2)(B). However, some
    criticisms of section 215 have apparently been based on possible
    ambiguity in the law. The Department has already stated in litigation
    that the recipient of a section 215 order may consult with his attorney
    and may challenge that order in court. The Department has also stated
    that the government may seek, and a court may require, only the
    production of records that are relevant to a national security
    investigation, a standard similar to the relevance standard that
    applies to grand jury subpoenas in criminal cases. The text of section
    215, however, is not as clear as it could be in these respects. The
    Department, therefore, is willing to support amendments to Section 215
    to clarify these points. Section 215 also is scheduled to sunset at the
    end of this year.

    E. The ``Wall''
        Before the USA PATRIOT Act, applications for orders authorizing
    electronic surveillance or physical searches under F1SA had to include
    a certification from a high-ranking Executive Branch official that
    ``the purpose'' of the surveillance or search was to gather foreign
    intelligence information. As interpreted by the courts and the Justice
    Department, this requirement meant that the ``primary purpose'' of the
    collection had to be to obtain foreign intelligence information rather
    than evidence of a crime. Over the years, the prevailing interpretation
    and implementation of the ``primary purpose'' standard had the effect
    of sharply limiting coordination and information sharing between
    intelligence and law enforcement personnel. Because the courts
    evaluated the government's purpose for using FISA at least in part by
    examining the nature and extent of such coordination, the more
    coordination that occurred, the more likely courts would find that law
    enforcement, rather than foreign intelligence collection, had become
    the primary purpose of the surveillance or search.
        During the 1980's, the Department operated under a set of largely
    unwritten rules that limited to some degree information sharing between
    intelligence and law enforcement officials. In 1995, however, the
    Department established formal procedures that more clearly separated
    law enforcement and intelligence investigations and limited the sharing
    of information between intelligence and law enforcement personnel even
    more than the law required. The promulgation of these procedures was
    motivated in part by the concern that the use of FISA authorities would
    not be allowed to continue in particular investigations if criminal
    prosecution began to overcome intelligence gathering as an
    investigation's primary purpose. The procedures were intended to permit
    a degree of interaction and information sharing between prosecutors and
    intelligence officers while at the same time ensuring that the FBI
    would be able to obtain or continue FISA coverage and later use the
    fruits of that coverage in a criminal prosecution. Over time, however,
    coordination and information sharing between intelligence and law
    enforcement personnel became more limited in practice than was allowed
    in reality. A perception arose that improper information sharing could
    end a career, and a culture developed within the Department sharply
    limiting the exchange of information between intelligence and law
    enforcement officials.
        Sections 218 and 504 of the USA PATRIOT Act helped to bring down
    this ``wall'' separating intelligence and law enforcement officials.
    They erased the perceived statutory impediment to more robust
    information sharing between intelligence and law enforcement personnel.
    They also provided the necessary impetus for the removal of the formal
    administrative restrictions as well as the informal cultural
    restrictions on information sharing.
        Section 218 of the USA PATRIOT Act eliminated the ``primary
    purpose'' requirement. Under section 218, the government may conduct
    FISA surveillance or searches if foreign intelligence gathering is a
    ``significant'' purpose of the surveillance or search. This eliminated
    the need for courts to compare the relative weight of the ``foreign
    intelligence'' and ``law enforcement'' purposes of the surveillance or
    search, and allows increased coordination and sharing of information
    between intelligence and law enforcement personnel. Section 218 was
    upheld as constitutional in 2002 by the FISA court of Review. This
    change, significantly, did not affect the government's obligation to
    demonstrate that there is probable cause to beliew that the target is a
    foreign power or an agent of a foreign power. Section 504--which is not
    subject to sunset--buttressed section 218 by specifically amending FISA
    to allow intelligence officials conducting FISA surveillances or
    searches to ``consult'' with Federal law enforcement officials to
    ``coordinate'' efforts to investigate or protect against international
    terrorism, espionage, and other foreign threats to national security,
    and to clarify that such coordination ``shall not'' preclude the
    certification of a ``significant'' foreign intelligence purpose or the
    issuance of an authorization order by the FISA court.
        The Department moved aggressively to implement sections 218 and
    504. Following passage of the Act, the Attorney General adopted new
    procedures designed to increase information sharing between
    intelligence and law enforcement officials, which were affirmed by the
    FISA court of Review on November 18, 2002. The Attorney General has
    also issued other directives to further enhance information sharing and
    coordination between intelligence and law enforcement officials. In
    practical terms, a prosecutor may now consult freely with the FBI about
    what, if any, investigative tools should be used to best prevent
    terrorist attacks and protect the national security. Unlike section
    504, section 218 is scheduled to sunset at the end of this year.
        The increased information sharing facilitated by the USA PATRIOT
    Act has led to tangible results in the war against terrorism: plots
    have been disrupted; terrorists have been apprehended; and convictions
    have been obtained in terrorism cases. Information sharing between
    intelligence and law enforcement personnel, for example, was critical
    in successfully dismantling a terror cell in Portland, Oregon,
    popularly known as the ``Portland Seven'' as well as a terror cell in
    Lackawanna, New York. Such information sharing has also been used in
    the prosecution of several persons involved in al Qaeda drugs-for-
    weapons plot in San Diego, two of whom have pleaded guilty; nine
    associates in Northern Virginia of a violent extremist group known as
    Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and
    sentenced to prison terms ranging from 4 years to life imprisonment;
    two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and Molishen Yahya
    Zayed, who were charged and convicted for conspiring to provide
    material support to al Qaeda and HAMAS; Khaled Abdel Latif Dumeisi, who
    was convicted by a jury in January 2004 of illegally acting as an agent
    of the former government of Iraq as well as two counts of perjury; and
    Enaam Arnaout, the Executive Director of the Illinois-based Benevolence
    International Foundation, who had a long-standing relationship with
    Osama Bin Laden and pleaded guilty to a racketeering charge, admitting
    that he diverted thousands of dollars from his charity organization to
    support Islamic militant groups in Bosnia and Chechnya. Information
    sharing between intelligence and law enforcement personnel has also
    been extremely valuable in a number of other ongoing or otherwise
    sensitive investigations that we arc not at liberty to discuss today.
        While the ``wall'' primarily hindered the flow of information from
    intelligence investigators to law enforcement investigators, another
    set of barriers, before the passage of the USA PATRIOT Act, often
    hampered law enforcement officials from sharing information with
    intelligence personnel and others in the government responsible for
    protecting the national security. Federal law, for example, was
    interpreted generally to prohibit Federal prosecutors from disclosing
    information from grand jury testimony and criminal investigative
    wiretaps to intelligence and national defense officials even if that
    information indicated that terrorists were planning a future attack,
    unless such officials were actually assisting with the criminal
    investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however,
    eliminated these obstacles to information sharing by allowing for the
    dissemination of that information to assist Federal law enforcement,
    intelligence, protective, immigration, national defense, and national
    security officials in the performance of their official duties, even if
    their duties arc unrelated to the criminal investigation. (Section
    203(a) covers grand jury information, and section 203(b) covers wiretap
    information.) Section 203(d), likewise, ensures that important
    information that is obtained by law enforcement means may be shared
    with intelligence and other national security officials. This provision
    does so by creating a generic exception to any other law purporting to
    bar Federal law enforcement, intelligence, immigration, national
    defense, or national security officials from receiving, for official
    use, information regarding foreign intelligence or counterintelligence
    obtained as part of a criminal investigation. Indeed, section 905 of
    the USA PATRIOT Act requires the Attorney General to expeditiously
    disclose to the Director of Central Intelligence foreign intelligence
    acquired by the Department of Justice in the course of a criminal
    investigation unless disclosure of such information would jeopardize an
    ongoing investigation or impair other significant law enforcement
    interests.
        The Department has relied on section 203 in disclosing vital
    information to the intelligence community and other Federal officials
    on many occasions. Such disclosures, for instance, have been used to
    assist in the dismantling of terror cells in Portland, Oregon and
    Lackawanna, New York and to support the revocation of suspected
    terrorists' visas.
        Because two provisions in section 203: sections 203(b) and 203(d)
    are scheduled to sunset at the end of the year, we provide below
    specific examples of the utility of those provisions. Examples of cases
    where intelligence information from a criminal investigation was
    appropriately shared with the Intelligence Community under Section
    203(d) include:
         Information about the organization of a violent jihad
    training camp including training in basic military skills, explosives,
    weapons and plane hijackings, as well as a plot to bomb soft targets
    abroad, resulted from the investigation and criminal prosecution of a
    naturalized United States citizen who was associated with an al-Qaeda
    related group;
         Travel information and the manner that monies were
    channeled to members of a seditious conspiracy who traveled from the
    United States to fight alongside the Taliban against U.S. and allied
    forces;
         Information about an assassination plot, including the use
    of false travel documents and transporting monies to a designated State
    sponsor of terrorism resulted from the investigation and prosecution of
    a naturalized United States citizen who had been the founder of a well-
    known United States organization;
         Information about the use of fraudulent travel documents
    by a high-ranking member of a designated foreign terrorist organization
    emanating from his criminal investigation and prosecution revealed
    intelligence information about the manner and means of the terrorist
    group's logistical support network which was shared in order to assist
    in protecting the lives of U.S. citizens;
         The criminal prosecution of individuals who traveled to,
    and participated in, a military-style training camp abroad yielded
    intelligence information in a number of areas including details
    regarding the application forms which permitted attendance at the
    training camp; after being convicted, one defendant has testified in a
    recent separate Federal criminal trial about this application practice,
    which assisted in the admissibility of the form and conviction of the
    defendants; and
         The criminal prosecution of a naturalized U.S. citizen who
    had traveled to an Al-Qaeda training camp in Afghanistan revealed
    information about the group's practices, logistical support and
    targeting information.
        Title Ill information has similarly been shared with the
    Intelligence Community through section 203(b). The potential utility of
    such information to the intelligence and national security communities
    is obvious: suspects whose conversations arc being monitored without
    their knowledge may reveal all sorts of information about terrorists,
    terrorist plots, or other activities with national security
    implications. Furthermore, the utility of this provision is not
    theoretical: the Department has made disclosures of vital information
    to the intelligence community and other Federal officials under section
    203(b) on many occasions, such as:
         Wiretap interceptions involving a scheme to defraud donors
    and the Internal Revenue Service and illegally transfer monies to Iraq
    generated not only criminal charges but information concerning the
    manner and means by which monies were funneled to Iraq; and
         Intercepted communications, in conjunction with a sting
    operation, led to criminal charges and intelligence information
    relating to money laundering, receiving and attempting to transport
    night-vision goggles, infrared army lights and other sensitive military
    equipment relating to a foreign terrorist organization.
        Section 203 is also critical to the operation of the National
    Counterterrorism Center. The FBI relies upon section 203(d) to provide
    information obtained in criminal investigations to analysts in the new
    National Counterterrorism Center, thus assisting the Center in carrying
    out its vital counterterrorism missions. The National Counterterrorism
    Center represents a strong example of section 203 information sharing,
    as the Center uses information provided by law enforcement agencies to
    produce comprehensive terrorism analysis; to add to the list of
    suspected terrorists on the TIPOFF watchlist; and to distribute
    terrorism-related information across the Federal Government.
        In addition, last year, during a series of high-profile events--the
    G-8 Summit in Georgia, the Democratic Convention in Boston and the
    Republican Convention in New York, the November 2004 Presidential
    election, and other events--a task force used the information sharing
    provisions under Section 203(d) as part and parcel of performing its
    critical duties. The 2004 Threat Task Force was a successful inter-
    agency effort where there was a robust sharing of information at all
    levels of government.

    F. Protecting Those Complying with FISA Orders
        Often, to conduct electronic surveillance and physical searches,
    the United States requires the assistance of private communications
    providers to carry out such court orders. In the criminal context,
    those who assist the government in carrying out wiretaps arc provided
    with immunity from civil liability. Section 225, which is set to
    sunset, provides immunity from civil liability to communication service
    providers and others who assist the United States in the execution of
    FISA orders. Prior to the passage of the USA PATRIOT Act, those
    assisting in the carrying out of FISA orders enjoyed no such immunity.
    Section 225 simply extends the same immunity that has long existed in
    the criminal context to those who assist the United States in carrying
    out orders issued by the FISA court. Providing this protection to
    communication service providers for fulfilling their legal obligations
    helps to ensure prompt compliance with FISA orders.

                                   CONCLUSION

        It is critical that the elements of the USA PATRIOT Act subject to
    sunset in a matter of months be renewed. Failure to do so would take
    the Intelligence Community and law enforcement back to a time when a
    full exchange of information was not possible and the tools available
    to defend against terrorists were inadequate. This is unacceptable. The
    need for constant vigilance against terrorists wishing to attack our
    Nation is real, and allowing USA PATRIOT Act provisions to sunset would
    damage our ability to prevent such attacks.
        We thank the Committee for the opportunity to discuss the
    importance of the USA PATRIOT Act to this nation's ongoing war against
    terrorism. This Act has a proven record of success in protecting the
    American people. Provisions subject to sunset must be renewed. We look
    forward to working with the Committee in the weeks ahead. We appreciate
    the Committee's close attention to this important issue. We would be
    pleased to answer any questions you may have. Thank you.

       STATEMENT OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY
                      GENERAL OF THE UNITED STATES

        Attorney General Gonzales. Thank you, Mr. Chairman.
        Chairman Roberts, Vice Chairman Rockefeller, Members of
    this Committee, I am pleased to be here to talk about
    reauthorization of the PATRIOT Act. I really appreciate this
    opportunity to come before Congress to discuss our successes in
    the war on terror and to find new ways to fight for freedom
    more effectively and consistent with the values that we all
    cherish as Americans.
        As the distinguished Members of this Committee know, the
    threat of terrorism remains very serious and it is critical
    that Congress continues to provide tools that enable
    prosecutors and law enforcement to both confront terrorism and
    investigate and prosecute other serious crimes.
        I believe the authorities in the PATRIOT Act have enabled
    us to better protect America. But, the exercise of government
    authority is always worthy of respectful and accurate
    discussion. I'm open to suggestions for strengthening and
    clarifying the Act, but I cannot support amendments that will
    weaken our ability to protect our nation.
        The PATRIOT Act, as we know, has helped dismantle the wall
    that used to separate law enforcement from intelligence
    officials. Prior law, as interpreted and implemented, sharply
    limited the ability of law enforcement and intelligence
    officers to share information and connect the dots in terrorism
    and espionage investigations.
        As we know, section 203 and section 218 of the PATRIOT Act,
    which are scheduled to sunset at the end of this year, brought
    down this wall. And together these provisions have reduced the
    statutory and cultural barriers to information sharing. And it
    is information sharing, as the 9/11 Commission and the WMD
    Commission made clear, and as this Committee knows full well,
    that will make the difference in our ongoing efforts to prevent
    terrorism.
        This Committee is familiar with the successful use of
    section 218, including investigation of the Portland Seven and
    the Virginia Jihad. Section 203 along with section 218 was used
    extensively during the investigation of the Holy Land
    Foundation in 2004. Law enforcement professionals tell me that
    allowing sections 203 and 218 to expire would discourage
    information sharing, making it more difficult for us to disrupt
    terrorist plots.
        There are other similar commonsense PATRIOT Act provisions
    that also will expire if Congress does not take action. Section
    206, which provides national security investigators with an
    authority long possessed by criminal investigators, authorizes
    the use of multi-point or roving wiretaps, tied to a specific
    target rather than a specific communications facility. Before
    the PATRIOT Act these orders were not available for a national
    security investigation under FISA, a gap in the law that we
    believe sophisticated terrorists or spies could easily exploit.
    Although specific examples of the use of multi-point wiretaps
    under section 206 remain classified, I can represent in this
    open hearing that this authority has been very valuable.
        As of March 30 this year we have used this authority 49
    times. Importantly, 206 contains numerous safeguards to protect
    civil liberties. The FISA court can only issue a roving wiretap
    order upon a finding of probable cause, the order must always
    be connected to a particular target, and minimization
    procedures must be followed concerning the collection, the
    retention and dissemination of information about U.S. persons.
        Section 215 also filled a gap in the law. It granted
    national security investigators authority to seek a court order
    for the production of records relevant to a foreign
    intelligence investigation, similar to a prosecutor's authority
    to use grand jury subpoenas as the building blocks of criminal
    investigations. Use of this provision has been judicious. We
    have used this authority 35 times as of March 30 of this year.
    Moreover, we have not sought a Section 215 order to obtain
    library or bookstore records, medical records, or gun sale
    records. Let me be clear, the reading habits of ordinary
    Americans are of no interest to those investigating terrorists
    or spies.
        Section 213, although not scheduled to sunset is another
    valuable provision of the PATRIOT Act. Section 213 codified one
    consistent process and standard for delayed notice search
    warrants, which can be used in limited circumstances, with
    judicial approval, to avoid tipping off criminals who otherwise
    might flee, destroy evidence, intimidate or kill witnesses,
    cutoff contact with associates, or take other action to evade
    arrest.
        Now the portion of Section 213 that has received the most
    attention is the provision allowing a court to authorize
    delayed notice if immediate notice would ``seriously
    jeopardize'' an investigation. I would like to describe one
    actual case where immediate notice would have seriously
    jeopardized an investigation.
        In this case, the Justice Department obtained a delayed
    notice search warrant for a Federal Express package that
    contained counterfeit credit cards. At the time of the search
    it was very important not to disclose the existence of a
    Federal investigation, as this would have exposed a related
    Title III wiretap that was ongoing for major drug trafficking
    activities. An organized crime drug enforcement task force,
    which included agents from the DEA, the IRS, the Pittsburgh
    police department and other State and local agencies was
    engaged in a multi-year investigation that resulted in the
    indictment of the largest drug trafficking organization ever
    prosecuted in the western district of Pennsylvania.
        While the drug trafficking investigation was ongoing it
    became clear that several leaders of the drug trafficking
    conspiracy had ties to an ongoing credit card fraud operation.
    An investigation into the credit card fraud was undertaken and
    a search was made of a Federal Express package that contained
    fraudulent credit cards. Had notice of the Federal Express
    search tied to the credit card fraud investigation been
    immediately given, it could have revealed the ongoing drug
    trafficking investigation prematurely and the drug trafficking
    investigation might have been seriously jeopardized. Even
    modest delay would not have been available if this provision of
    section 213 were deleted. It is critical that law enforcement
    continue to have this vital tool for those limited
    circumstances where a court finds good cause to permit the
    temporary delay of notification of a search.
        Finally, I'd like to close by addressing a common question
    that must be answered by this Committee and this Congress--the
    issue of whether we should continue to impose sunset provisions
    on critical sections of the PATRIOT Act. The PATRIOT Act was a
    swift and decisive response to the attacks of September 11. In
    the weeks and months following the attacks in Washington,
    Pennsylvania, and New York, Democrats and Republicans came
    together to address the vulnerabilities in our nation's
    defenses.
        Both Congress and the administration worked with
    experienced law enforcement, intelligence and national security
    personnel to design legislation to better protect the American
    people. Although there was extensive consideration in 2001, and
    although it is unusual to impose sunsets on statutory
    investigative tools, Congress included sunsets for certain
    provisions of the PATRIOT Act because Members wanted to ensure
    that we were not risking the very liberties we were setting out
    to defend. And I think today we can all be proud.
        The track record established over the past 3 years has
    demonstrated the effectiveness of the safeguards of civil
    liberties put in place when the Act was passed. There has not
    been one verified case of civil liberties abuse. Our Nation is
    stronger and safer; our bipartisan work has been a success.
        The Department of Justice has exercised care and restraint
    in the use of these important authorities because we are
    committed to the rule of law. We have followed the law because
    it is the law, not because it is scheduled to sunset. With or
    without sunsets, our dedication to the rule of law will
    continue. The Department will strive to continue to carry out
    its work lawfully and appropriately, and as a citizen I expect
    Congress will continue its active oversight over our use of the
    PATRIOT Act, not because it sunsets but because oversight is a
    constitutional responsibility of Congress.
        So, given the Department's record in using these
    authorities, the obvious effectiveness of these tools in
    stopping violent crimes and protecting our nation, and the
    authority of Congress to re-examine these provisions at any
    time to correct abuses, the sunset provisions are, in my
    judgment, no longer necessary and should be repealed.
        The authorities in the PATRIOT Act are critical to our
    nation's efforts in the war against terrorism. The Act has a
    proven record of success in protecting the security of the
    American people while simultaneously respecting civil
    liberties. And I question how we can afford to allow its most
    important provisions to sunset. The efforts of the terrorists
    to strike our country surely will not sunset.
        I look forward to continuing to work with this Committee in
    the period ahead, listening to and responding to your concerns,
    and joining together again to protect the security of the
    American people.
        Thank you, Mr. Chairman.
        Chairman Roberts. Thank you, General.
        We now recognize Director Mueller. Welcome back to the
    Committee, Bob.

     STATEMENT OF THE HONORABLE ROBERT S. MUELLER, III, DIRECTOR,
                    FEDERAL BUREAU OF INVESTIGATION

        Director Mueller. Thank you, and good morning, Mr.
    Chairman. Senator Rockefeller, and other Members of the
    Committee, good morning. I'm also pleased to be here today to
    talk about the PATRIOT Act and how it has assisted us in the
    war on terror.
        Indeed, the PATRIOT Act has changed the way the FBI
    operates, and I will say that many of our operational
    counterterrorism successes since September 11 are the direct
    result of the changes incorporated in the PATRIOT Act. The
    formal statement that was submitted by the Attorney General and
    myself focuses on the key areas and the key uses of the FISA
    authorities in the war on terrorism. And as is set forth in
    that statement, I share the Attorney General's belief that
    these vital tools that have been used regularly and effectively
    in our efforts to prevent another attack should be renewed.
        This morning I would like to emphasize the importance of a
    portion of the PATRIOT Act, that portion that relates to
    information-sharing, and address the fundamental manner in
    which those provisions have changed the way we do business.
        Last week I know this Committee heard directly from our
    operational personnel, who provided in a classified setting
    specific examples of how the PATRIOT Act information-sharing
    provisions have altered the landscape for conducting terrorism
    investigations. The Committee heard not only from FBI
    headquarters and FBI field office personnel but also from our
    partners in the CIA and our partners at the NSA about the
    coordinated teamwork approach that has guided our operations
    over the past 3 years.
        Such interagency teamwork has successfully foiled
    terrorist-related operations and cells from Seattle to Detroit
    to Lackawanna, New York. And while the law prior to the PATRIOT
    Act provided for some exchange of information, that law was
    complex and, as a result, agents often erred on the side of
    caution and refrained from sharing information.
        Our current integrated approach, which grew from the
    PATRIOT Act's information-sharing provisions, eliminated that
    hesitation and now allows agents to more openly work with other
    governmental agencies, whether they be at the Federal, the
    State or the local level.
        Prior to the PATRIOT Act, the Federal law was interpreted
    to limit the ability of our criminal investigators to disclose
    criminal wiretap or grand jury information to counterparts
    working on intelligence investigations. Sections 203(a) and (b)
    of the PATRIOT Act eliminated these barriers to information
    sharing, allowing for the routine sharing of information
    derived from these important criminal tools. And section 203(b)
    ensures that information developed through law enforcement
    methods other than grand jury subpoenas or criminal wiretaps
    can also be shared with our intelligence partners at the
    Federal, State and local levels, as well as our partners
    overseas.
        Although information does not flow between agencies with a
    PATRIOT Act label on it, it is quite clear that information
    derived from the FBI's investigations is now assisting other
    agencies in performing their missions, principally overseas. As
    an example, an FBI field office obtained information of
    intelligence value while conducting a criminal investigation
    and shared this information with the CIA and other intelligence
    entities. In this particular investigation, a Title III
    intercept showed that the subject of the investigation was in
    contact with an overseas number.
        Taking that number, investigation undertaken by the CIA and
    others determined links between this number and a number
    associated with a subject of a terrorism investigation who had
    been captured. This sharing of information permitted additional
    investigation by each of the intelligence community components,
    integrating information that had been found and put together in
    the United States with information that had been found and put
    together overseas.
        This sharing of information is absolutely fundamental to
    the safety of the American public in the future. And while
    section 203 removed barriers to sharing criminally-derived
    information with our intelligence community partners, section
    218 of the PATRIOT Act was the first step in dismantling the
    wall between the criminal and our intelligence investigators.
    It eliminated the primary purpose requirement that arose from
    statutory interpretation by the FISA court and replaced it with
    a ``significant purpose'' test. As a result, FBI agents working
    on intelligence and counterintelligence matters now have
    greater latitude to consult criminal investigators or
    prosecutors without putting their investigations at risk.
        The increased coordination and information sharing between
    intelligence and law enforcement agents facilitated by the
    PATRIOT Act has allowed us, the FBI, to approach our cases as a
    single integrated investigation using all of its tools, both
    criminal and intelligence, as long as the requirements for each
    of those tools are properly met. The successes of these cases
    are entirely dependent on the free flow of information between
    respective investigators and analysts.
        Mr. Chairman, I would like to close with making one point
    that I do think has been not fully amplified in the debate, in
    the public debate, on the PATRIOT Act and its tools, and that
    is the role of the Federal judiciary. For example, the FBI must
    seek authority from a Federal judge to utilize a roving wiretap
    and that judge must find that there is probable cause to
    believe that the target of the surveillance is either a foreign
    power or an agent of a foreign power, such as a terrorist or a
    spy.
        If the name of the individual on whom we are seeking roving
    surveillance is not known to us, we must provide a description
    of the individual and that person's activities to satisfy a
    Federal judge that, again, there is probable cause to believe
    that this person is a terrorist or a spy and that his actions
    may have the effect of thwarting surveillance.
        Similarly, under 215, the FBI does not write a warrant
    authorizing access to business records; rather, it is a Federal
    judge that issues the order upon a certification by the
    government that the items requested are relevant to an ongoing
    national security investigation. And finally a judge authorizes
    the government to conduct a search, and only the Federal judge
    can then authorize the government to delay notification, upon
    making of a showing--delay notification to the subject of that
    search.
        Mr. Chairman, the role of the Federal judiciary is vital to
    protecting the rights of individuals, particularly where more
    intrusive means of investigation are utilized. In addition to
    the oversight by Federal judges, the activities of the FBI and
    DOJ prosecutors are always tethered to the Constitution, and we
    take our responsibility exceptionally seriously.
        As the Attorney General has already noted, I as well am
    unaware of any substantiated allegation that the government has
    abused its authority under the PATRIOT Act. This is a tribute
    to the men and women in Federal law enforcement and the men and
    women in the intelligence community as well as the Federal
    prosecutors, all of whom are committed to responsibly using the
    statutes provided by Congress. In renewing these provisions
    scheduled to sunset at the end of this year, Congress will
    ensure that the FBI will continue to have the tools we need to
    combat the very real threat to America posed by terrorists and
    their supporters.
        Thank you for the opportunity to appear here today. I'm
    happy to answer any questions.
        Chairman Roberts. Mr. Director, we thank you very much for
    a comprehensive statement.
        We now recognize Director Goss.
        [The prepared statement of Director Goss follows:]

                      Prepared Statement of Porter J. Goss

        Good morning, Mr. Chairman, Mr. Vice Chairman, and Members of the
    Committee.
        I appreciate the opportunity to appear before you today to discuss
    the important role the USA PATRIOT Act has played in improving the
    ability of the Intelligence Community to fight the global war on
    terrorism. As you recall, in October 2001, Members of Congress worked
    together in a united effort to create legislation that would give
    Federal law enforcement and intelligence officials the additional legal
    authorities needed to combat the terrorist threat to our country. I can
    assure you that the tools you provided in the PATRIOT Act have greatly
    assisted intelligence officials in the on-going effort to interdict and
    disrupt terrorist groups and individuals who seek to do harm to our
    country and our citizens. I will now briefly discuss how the PATRIOT
    Act has been most helpful to intelligence officers, and, along with my
    colleagues, the Attorney General, and the Director, FBI, urge you to
    renew permanently those provisions of the Act due to expire at the end
    of this year.

                              INFORMATION SHARING

        The PATRIOT Act has played a large role in an information-sharing
    transformation throughout the Federal law enforcement and intelligence
    communities, permitting a cultural shift in previously unshakeable
    paradigms. Today, intelligence officers have the ability to receive
    foreign intelligence information from Federal law enforcement officials
    that has been obtained during the course of criminal investigations,
    and the PATRIOT Act makes it clear that this information may include
    information obtained from grand jury proceedings and criminal
    investigative wiretaps. If the various provisions of the PATRIOT Act
    that authorize this foreign intelligence information sharing are
    permitted to sunset, we will lose some of the essential weapons used to
    counter the grave threats posed by al-Qaeda and other terrorist groups.
    Now is not the time to engage in unilateral disarmament.
        Of particular concern is the ``wall'' that served to limit the
    sharing of information between intelligence and law enforcement
    officers. The wall was a barrier against full and discerning dialog and
    greatly impinged on the effective use of critical tools necessary to
    fight terrorism. Continuation of the PATRIOT Act information sharing
    provisions ensures while we do not hamstring ourselves in this vital
    area of intelligence and law enforcement collaboration we will also
    take the appropriate steps to protect the privacy rights and civil
    liberties of Americans.
        If the information sharing provisions of the PATRIOT Act are
    permitted to expire, currently robust information sharing relationships
    may be adversely impacted as officials seek guidance on what
    information sharing is permitted absent the PATRIOT Act authorities,
    because the clarifying and instructive benefits of the PATRIOT Act will
    be lost. As any war-fighter will tell you, a necessary tool in fighting
    the battle is the ability to share information freely to get the job
    done expeditiously and effectively. Constructs that otherwise preclude
    information sharing had to be torn down, and the PATRIOT Act provisions
    accomplished that end. Resurrection of these obstacles will
    significantly impede the war effort.
        If, however, the provisions scheduled to sunset are renewed,
    ongoing efforts by government officials to use the PATRIOT Act
    authorities to improve information sharing, to utilize highly valuable
    limited resources most effectively, and to continue the cooperation
    between agencies, will continue. One of the most positive illustrations
    of this collaborative environment may be found in the National
    Counterterrorism Center (NCTC).
         NCTC is a specific example of how the information-sharing
    authorities of the PATRIOT Act have been leveraged to benefit the
    Federal Government as a whole.
              NCTC personnel assigned from multiple Federal law
            enforcement and intelligence community entities receive foreign
            intelligence information from the FBI that is obtained by the
            Bureau during criminal investigations and disseminated to NCTC
            under authorities granted by the PATRIOT Act.
              This information is compiled with other foreign
            intelligence information obtained through traditional
            intelligence collection methods and is used to produce all-
            source terrorism analysis that is subsequently disseminated
            throughout the Intelligence Community and to officers within
            the Department of Homeland Security and the FBI.
              NCTC officials also use terrorist identity
            information disseminated by Federal law enforcement officials
            under PATRIOT Act authorities to maintain TIPOFF, a data base
            used to prevent known and suspected terrorists from entering
            the United States. NCTC officials estimate that the number of
            known or suspected terrorists that have been intercepted at US
            borders, based on FBI reporting alone, has increased due to the
            information sharing provisions of the PATRIOT Act.
        In addition to talking about the information sharing provisions
    that are due to expire in a few months, I wanted to also highlight the
    importance of another information sharing authority in the PATRIOT Act.
    This provision, section 905 of the Act, not only permits, but also
    generally requires the Attorney General to expeditiously disclose to
    the DCI, and now to the DNI under the Intelligence Reform Act of 2004,
    foreign intelligence information acquired by the Department of Justice
    during the course of criminal investigations. This provision, like the
    expiring information sharing provisions, encourages the free flow of
    intelligence information by removing any doubt from the minds of
    Federal law enforcement officials that sharing is authorized.

                              FISA PRIORITIZATION

        My colleagues from the Department of Justice will discuss with you
    how Federal law enforcement officials have benefited from amendments
    made to the Foreign Intelligence Surveillance Act (FISA) by the PATRIOT
    Act. I would like to advise you how authority granted by the PATRIOT
    Act has enabled the DCI to improve the process for submitting FISA
    requests to the Attorney General and the Foreign Intelligence
    Surveillance Court.
        The PATRIOT Act called upon the DCI to establish requirements and
    priorities for foreign intelligence information to be collected under
    the FISA and to assist the Attorney General with the dissemination of
    FISA-derived intelligence. The DNI is now charged with these
    responsibilities under the Intelligence Reform and Terrorism Prevention
    Act of 2004.
        In June 2003, the DCI implemented this provision of the PATRIOT Act
    by creating an interagency panel to prioritize requests seeking
    authorization to engage in foreign intelligence collection operations
    under the FISA. The panel, coordinated by the ADCI for Collection,
    includes representatives from the CIA, DOJ, FBI, and NSA. The
    prioritization mechanisms established by the panel are working well and
    have enabled intelligence officials to carefully weigh and accommodate
    competing priorities for FISA-authorized collection operations, making
    the best use of the limited resources of the FBI, NSA, CIA, and the
    Department of Justice, and most specifically, the FISA Court.

                                   CONCLUSION

        Let me conclude my comments today by saying that the PATRIOT Act
    has improved the ability of intelligence officials to fight the war on
    terrorism by removing legal and cultural impediments that previously
    prohibited or discouraged the sharing of foreign intelligence obtained
    by Federal law enforcement officials during the course of criminal
    investigations, and by enhancing the ability of the intelligence and
    law enforcement communities to collect and analyze vital information to
    wage an effective and continuing effort to disrupt international
    terrorist activities. Failure to renew the provisions due to sunset
    will ill-serve the national security of the United States.
        I thank you for inviting me to speak with you today, and for your
    continued support.

     STATEMENT OF THE HONORABLE PORTER J. GOSS, DIRECTOR, CENTRAL
                          INTELLIGENCE AGENCY

        Director Goss. Thank you, Mr. Chairman. Good morning. Good
    morning, Mr. Vice Chairman, Members of the Committee.
        I would propose that I ask, in the interest of time and not
    to repeat some things that I would like to say that have
    already been said, that you would accept my full statement and
    allow me to abbreviate it.
        Chairman Roberts. Without object it is so ordered, and your
    request is gladly approved.
        Director Goss. I thank you.
        I do associate myself very much with the statements made by
    the Attorney General and the Director of the FBI. There are a
    couple points I would like to make as the Director of the
    Central Intelligence Agency, although I would also be very
    happy to answer questions as the DCI, which I was when some of
    this material was going on, and I have had the responsibility
    of signing FISA requests and a somewhat different role in that
    position, which now Ambassador Negroponte, of course, has
    assumed.
        I would simply say that it is extremely important for us
    not to under-emphasize the information sharing, the
    coordination, cooperation, change of cultures, breaking down of
    walls, breaking of stovepipes, if you will. Remember how much
    time was spent by Members of Congress and various Committees,
    oversight boards, specially set-up commissions, independent
    commissions, and so forth, after 9/11 that said we must work
    better together.
        And there is no question that the manifestation of that has
    been made possible by the PATRIOT Act in enterprises such as
    TTIC, the Terrorist Threat Integration Center, which has now
    graduated into the National Counterterrorism Center, which is
    probably a showcase of where we can point out how we bring
    information together and how it works well for the safety of
    our country in dealing with the terrorist threat.
        Obviously I am here today representing the national foreign
    intelligence program as seen through the CIA's eyes and there
    is a lot I will not be able to say in open session but I am
    very happy to talk about in closed session.
        Certainly, sources and methods are involved in the PATRIOT
    Act, in our programs, but authorities are appropriate for us to
    discuss. These authorities are particularly essential for the
    intelligence community, in particular 203(d) and 214. These
    represent areas in sharing, breaking down the ``wall'' that has
    been referred to already--and talk a little bit about
    modernization, of being able to keep up with the advantages we
    have to deal with terrorists using technology as it exists
    today, which, of course, the terrorists are taking advantage
    of. We need to be able to deal with that, counter that, and get
    ahead of it for our own purposes.
        I think those two provisions, from our perspective, are
    critically important, although I would suggest that the PATRIOT
    Act has served this country extremely well across the board.
    And I also am not aware of any serious problems with it in
    terms of invasion of rights or liberties.
        I do admire the safeguards that Director Mueller has
    referred to. I have spent some time coming in and signing FISA
    requests as the DCI. There is a clear need to prioritize and
    understand each request, understand what is going on. I think
    that process works well. I'm not sure what other testimony has
    been on that, but my testimony on it is that it works timely;
    it works well. It deals with the crush of business, as it were,
    on a prioritization basis, which is very important. And it does
    provide fresh eyes.
        In my case, I must have looked at a couple of dozen things
    that I hadn't seen before because somebody else had signed them
    or they had come in under a different channel, and I was very
    satisfied that this process was working exactly the way any
    American would want it, which would be to stay out of their
    business but to be applied to people who are trying to infringe
    our liberties and damage our people, innocent people, from far
    shores--people we call terrorists.
        So I think this is a very good use of time, Mr. Chairman,
    to be reviewing this matter and being suggestive of the
    position that we've got a success here; perhaps we could make
    it a little better. But I certainly don't want to give away the
    tools that, I can assure you, the intelligence community is
    using well.
        Thank you, sir.
        Chairman Roberts. Senators will be recognized for 5 minutes
    in the order of their arrival and there will be a second round,
    if needed.
        I have a question in regards to administrative subpoenas.
    In the past, the President and Director Mueller have asked
    Congress to authorize the FBI to issue what's called an
    administrative subpoena in international terrorism
    investigations. If the government can use administrative
    subpoenas in health care fraud investigations and in drug
    cases, then the obvious question is why can't we use them in
    the international terrorism investigations. It seems to me that
    the administrative subpoena tool should be available for all
    authorized national security investigations that are conducted
    in accordance with the Attorney General guidelines, not just
    terrorism cases.
        I was surprised, however, that the prepared statement by
    the Department of Justice and the FBI does not echo these
    earlier requests for administrative subpoenas. Has the
    President changed his mind on this issue? That's my first
    question.
        Attorney General Gonzales, are you in favor of Congress
    authorizing the administrative subpoena in national security
    investigations? And I would also pose the same question to
    Director Mueller.
        General.
        Attorney General Gonzales. Mr. Chairman, the President has
    not changed his position. We believe administrative subpoenas
    would be an additional valuable tool to deal with the terrorist
    threat. And so I want to reassure the Committee that we
    continue to believe that that is a necessary tool and would
    respectfully request a serious consideration of that request.
        Chairman Roberts. Director Mueller.
        Director Mueller. Certainly, yes, we believe that it would
    be an exceptionally helpful tool in filling the gaps in getting
    us the information we need in our national security
    investigations. I will say that I spent a substantial amount of
    time on that in our prepared statement before the Judiciary
    Committee. It was in looking at a sense of brevity that I did
    not mention it in my opening remarks.
        But yes, we continue to press for administrative subpoenas.
    We think it is a very useful tool. As you have pointed out, Mr.
    Chairman, if it is available in health care fraud cases, child
    pornography cases, narcotics cases--I think there are
    approximately 300 separate statutes to provide for the utility
    or the use of administrative subpoenas--it makes very good
    sense for us to have that tool available when it comes to
    national security investigations.
        Chairman Roberts. I thank you both for your responses.
        We're in the process of finishing up our audit report on
    the FISA process. One of the things that we have found out was
    that the Department of Justice and the FBI--I don't know what
    grade I would give it, but it's not a 92; it doesn't rate that
    high; maybe 70, passing, I'm not quite sure--of implementing
    the FISA business records provisions, section 215 of the
    PATRIOT Act, took more than 2\1/2\ years to issue the first
    application.
        Regardless, your joint statement indicates that
    approximately 35 FISA--I think maybe you said 39--business
    record court orders have been issued since then, and most of
    these were issued for telephone numbers captured through the
    court-authorized pen registers. My question to you is, why
    isn't this technique being used more?
        Director Mueller. Well, we have the possibility in some
    areas of using National Security Letters, as you're well aware.
        Chairman Roberts. Yes.
        Director Mueller. We have, in those cases where it's being
    handled jointly as an intelligence as well as perhaps a grand
    jury investigation, it may well be that we're using grand jury
    subpoenas. But in those areas where 215 fills the void, we have
    gone through the 215 process.
        If you're comparing on the one hand the use of the 215
    process and the administrative subpoena process, they're night
    and day. The fact of the matter is, the 215 process is somewhat
    burdensome. Nonetheless, that is the way the PATRIOT Act
    established it. It does go before a judge. So we have had,
    particularly in the last couple of years, occasions where we
    have utilized that tool.
        Attorney General Gonzales. Mr. Chairman, I think one
    message that we would like to leave with the Committee today is
    that we take all these authorities very seriously and we try to
    act responsibly and judiciously in exercising these
    authorities. If we need to exercise a 215 authority, it will be
    exercised. If we don't need to exercise it, because there are
    other ways of getting information, we'll pursue other avenues.
        Chairman Roberts. I have a yellow light here, but I'm going
    to try to sneak the last question in, with apologies to my
    colleagues.
        Mr. Attorney General and Director Mueller, at a hearing we
    held last week, the FBI's investigation of Brandon Mayfield was
    cited as an abuse of the PATRIOT Act. I know that your answer
    might be circumscribed somewhat by the fact that there's a
    pending lawsuit over this case. But could you please respond to
    that allegation?
        Attorney General Gonzales. I'd be happy to, Mr. Chairman.
        You're right; I am limited in what I can say. We have done
    an exhaustive review of the allegations made by communication
    from the ACLU to Senator Feinstein specifically about Brandon
    Mayfield. I am told there was not an abuse of the PATRIOT Act.
    There are misimpressions about what authorities were in fact
    used in connection with that investigation. People have the
    mistaken belief that the section 213 authority, delayed
    notification search warrant, was used there, but that's not the
    case. It was a straightforward FISA application in connection
    with that case.
        I think we all need to understand, though, when people ask
    the question, was the PATRIOT Act implicated or used at all in
    connection with that investigation, sure it was, to the extent
    that FISA was amended by the PATRIOT Act in areas of
    information sharing like 218.
        And so to the extent that the PATRIOT Act caused changes in
    FISA, then clearly it was implicated. But from what we can
    tell, there was no abuse or misuse of the PATRIOT Act in
    connection with that investigation.
        Chairman Roberts. So if somebody makes a mistake on a
    fingerprint, that isn't the fault of the PATRIOT Act?
        Attorney General Gonzales. That was not the fault of the
    PATRIOT Act, that's correct, sir.
        Chairman Roberts. Senator Rockefeller.
        Vice Chairman Rockefeller. Thank you, Mr. Chairman.
        In section 206--I address this to both of you in that you
    gave joint testimony--section 206 of the PATRIOT Act authorizes
    roving wiretaps under the Foreign Intelligence Surveillance
    Act. As it has been explained to us, the SAFE Act would retain
    roving wiretaps, allowing surveillance where the target, for
    example, uses multiple cell phones in order to evade detection.
    And the SAFE Act would retain John Doe wiretaps where the
    target cannot be named. But the SAFE Act would eliminate the
    combination of the two--John Doe, roving wiretaps--where
    neither the location of the surveillance nor the identity of
    the target is known.
        So my question is, what would be the impact of this
    provision on the activities of the Bureau? And second, would
    the elimination of the John Doe roving wiretaps increase the
    protection of innocent Americans from unnecessary surveillance?
    And third, what protection against unnecessary surveillance
    exists in the statute as written?
        Attorney General Gonzales. Senator, let me begin by
    emphasizing that we have to go before a Federal judge in order
    to get a search warrant under 206. There has to be probable
    cause that the target is in fact a foreign power or an agent of
    a foreign power. In addition, 206 does include extensive
    minimization procedures so that we do ensure that steps are
    taken to protect the rights of innocent Americans.
        I believe that under 206 we have to go to a Federal judge
    and provide sufficient information to identify a specific
    target. There may be instances where we don't know the exact
    identity of someone we believe is a terrorist. Nonetheless, we
    have to provide sufficient information for the judge to
    identify that person. If we discover later on that we've made a
    mistake, that in fact we should be conducting surveillance on
    Person B as opposed to Person A because we were wrong in our
    identification, we'd have to go back to a Federal judge and get
    a new court order.
        Additionally, I'd like to add that we also have to have
    probable cause that the facility that we want to target or
    place that we want to target, that the terrorist is either
    using or about to use. And so we believe that 206 contains an
    abundant number of safeguards to ensure that we've got a
    limited search under the supervision of a Federal judge and
    that there are adequate safeguards to protect the privacy
    interests of Americans.
        Director Mueller. The recommended change does not make much
    sense to me. As was pointed out by the Attorney General, if we
    have an individual whom we accurately can describe, to
    differentiate that individual from everybody else, and the
    person is an individual which would satisfy the requisite
    specificity so that a judge can issue the order allowing us to
    intercept his conversations, and the person is roving--in other
    words, utilizing a number of cell phones over a period of
    days--what this statute would mean is that we would have to go
    back when we identify another device that he's using and get
    another court order.
        If we satisfy the prerequisites of 206 as it is written
    now, in my mind that is certainly an adequate safeguard to
    protect the innocent. Again, I'd emphasize, it goes before a
    judge; you have to be specific in terms of the individual, and
    you have to be specific in terms of the usage of that
    individual of various devices. And persuading a judge that you
    have probable cause to satisfy those prerequisites in my mind
    satisfies the need to protect the innocent.
        Vice Chairman Rockefeller. OK. I'll save my next questions
    for the next round.
        Thank you very much.
        Chairman Roberts. Senator Levin.

                  OPENING STATEMENT OF HON. CARL LEVIN

        Senator Levin. Thank you, Mr. Chairman. Let me add my
    welcome to all three of you and my thanks for your service.
        The morning paper tells us that the State Department has
    decided to drop from its annual report the number of serious
    international terrorist incidents that occurred during the
    previous year. It's a very disturbing report to us.
        This law requiring an annual report on terrorist incidents
    has been on the books for a long time, long before 9/11. But
    suddenly we read the State Department has decided they're no
    longer going to tell the American people what the numbers of
    those incidents were in the previous year; they're going to
    drop that information.
        I'm wondering whether--and I'll ask each of you--whether or
    not you were consulted by the State Department prior to this
    important information being dropped, or at least the decision
    being made by them to drop it and to suppress information which
    is really significant in many people's eyes to understanding
    whether or not we are making progress.
        So General, let me start with you. Were you consulted by
    the State Department on that issue?
        Attorney General Gonzales. Senator, I was not personally
    consulted; whether or not the department was consulted, I'd
    have to find out. But I was not personally consulted.
        Senator Levin. Fair enough.
        Director Mueller.
        Director Mueller. I was not. I was not involved in the
    issue. But I'm not certain I would agree with the predicate of
    the question.
        Senator Levin. I understand.
        Director Goss.
        Director Goss. I believe my role was pretty much limited to
    making sure that whatever the NCTC had was made available to
    the State Department.
        Senator Levin. Thank you.
        Let me first thank you, General Gonzales, for your strong
    statement of support for oversight by Congress, calling it a
    constitutional responsibility. You disagree on whether or not
    sunset was needed. But nonetheless, in terms of the importance
    of oversight, you made a very ringing endorsement of that and
    we appreciate that.
        And Director Mueller, let me thank you for your endorsement
    of the role of the courts.
        Both of those endorsements are significant. We appreciate
    them.
        On section 206, let me ask you, Mr. Attorney General, about
    the roving wiretaps issue. I understand that, under existing
    criminal law, in addition to identifying the target and the
    location so that a court is satisfied to grant a roving
    wiretap, before the wiretap is triggered that there must be an
    authentication that the person involved in the conversation is
    the subject of the authorized wiretap, but that that
    requirement of authentication is not present in the Act that
    we're reviewing. Is that accurate?
        Attorney General Gonzales. If I understand your question as
    to whether or not there is an ascertainment requirement in the
    criminal context, my understanding, Senator, is that the
    ascertainment requirement in the criminal context only applies
    or only is there with respect to oral communications, like
    bugging. It does not exist in a criminal context in connection
    with electronic surveillance. And so I think that in that
    respect 206 would be consistent with the current requirements
    in the criminal context.
        Senator Levin. In terms of bugging, is it consistent?
        Attorney General Gonzales. I do not--it's my understanding
    that with respect to oral communications there is an
    ascertainment requirement in the criminal code.
        Senator Levin. What about in the PATRIOT Act?
        Attorney General Gonzales. There is no ascertainment
    requirement per se. But again, let me emphasize that we do have
    to show probable cause as to two very important facts--No. 1,
    that the target is a foreign power or agent of a foreign power,
    and No. 2, probable cause that the facility or place which
    you're targeting, that the target is in fact using or about to
    use that facility.
        Senator Levin. No, I got that. But why should there not be
    the same ascertainment requirement in the PATRIOT Act that
    there is in criminal law, just the way there is for electronic
    communications?
        Attorney General Gonzales. I don't believe that there is
    such a similar requirement.
        Senator Levin. Should there not be?
        Attorney General Gonzales. I don't know if I can answer
    that question, Senator.
        Senator Levin. Let me ask Director Mueller.
        Is there any reason why we shouldn't have that same
    ascertainment to protect privacy of American citizens to make
    sure that in fact the ascertainment occurs, to make sure that
    it's not somebody who should not be the subject who in fact is
    being bugged?
        Director Mueller. I would have to go and check the statute
    more clearly, more carefully on that particular proviso and
    look at the import.
        I will say generally, though, that the FISA statute relates
    to finding probable cause that we're dealing with a foreign
    power and we're dealing and looking at and undertaking
    investigative techniques of a foreign power or an agent of a
    foreign power. And that, in my mind, is a different set of
    concerns than one would have when we are investigating
    individuals for their possible breaking of the criminal laws.
        There are a number of areas that are different because of
    the different subjects we're looking at under the FISA statute
    than those subjects we're looking at under Title III of the
    criminal statutes.
        Senator Levin. My time's up. So why don't you just expand
    for the record, after reviewing the law, as to whether we
    should not have that same ascertainment requirement for the
    bugging as we do in criminal law when it comes to the PATRIOT
    Act?
        Thank you.
        Chairman Roberts. Senator Wyden. Let's try Senator
    Mikulski.

             OPENING STATEMENT OF HON. BARBARA A. MIKULSKI

        Senator Mikulski. Thank you very much, Mr. Chairman, and
    good morning to our panelists.
        I think we all remember what it was like in October 2001
    after America had been attacked and we knew that 19--or maybe
    even more--people had come into our own country and had planned
    the most despicable and dastardly deeds against us. And out of
    that came the PATRIOT Act, because we knew we needed to get
    more information and that we had old rules based on old
    thinking about old technology.
        So out of this came the PATRIOT Act, but yet the great idea
    of sunset, because I think we were all concerned that in our
    zeal to protect the country we would not be overzealous and
    then create a set of rules we either found dysfunctional or not
    in keeping with our Constitution. So I think this is why this
    debate is important now.
        Let me get to my questions.
        There are a lot of concerns, as you know, among the
    American people about jealously guarding their right of
    privacy. There's a built-in tension between the right of
    privacy and our national security. This is what we're trying to
    resolve--how to protect both.
        One of the questions that people have when they talk to me
    is they think anybody in the Federal Government, under the
    PATRIOT Act, can now spy on them. So I'm going to ask a series
    of questions, and perhaps, Mr. Gonzales, you can answer this.
        No. 1: What agencies within the Federal Government
    can,''spy'' or place American citizens under surveillance--
    Federal agencies?
        Attorney General Gonzales. I mean, the FBI. The Department
    of Justice is the agency that has----
        Senator Mikulski. So can the CIA spy on the American
    people?
        Attorney General Gonzales. The primary responsibility falls
    upon the Department of Justice, not the CIA.
        Senator Mikulski. Can the CIA spy on the American--I'll get
    to another question about the so-called wall.
        Attorney General Gonzales. No.
        Senator Mikulski. Can the National Security Agency, the
    great electronic snooper, spy on the American people?
        Attorney General Gonzales. There are limits upon the NSA in
    terms of what they can do in spying upon the American people.
        Let me just emphasize one additional thing, Senator. Even
    with respect to the authorities that are granted, many of the
    authorities----
        Senator Mikulski. These are not hostile questions.
        Attorney General Gonzales. No. And I understand----
        Senator Mikulski. These are clarifying. Clarify after I ask
    my next question.
        Then let's go to the wall that Mr. Goss talked about in his
    written statement. That was the whole issue. And then it goes
    into the information sharing that Director Mueller talked
    about. Everybody's working together; let's say it's in the
    Counterterrorism Center. The NSA picks up something--say a
    foreign agent.
        They're a person of interest, even a person of suspicion.
    They're coming into the United States. They're mingling with
    people who are already in the United States. They're
    communicating. NSA has picked all of this up. They're following
    these people with their computer, their cell phone, whatever
    techno stuff they have.
        Then when they're there, do they stop and hand it over to
    the FBI, and the FBI keeps on doing it? Or do they keep on
    following these persons of interest or suspicion? And what are
    they allowed to do under the law?
        Attorney General Gonzales. Well, they are always----
        Senator Mikulski. And clarify anything you want. But see,
    these are the questions, which is, who does what, when?
        Attorney General Gonzales. There are minimization
    requirements under law on Federal agencies that engage in
    surveillance to ensure that the privacy interests of all
    Americans are protected. In addition to requirements under the
    statute, there are additional guidelines within the Department
    of Justice to ensure that the privacy interests of Americans
    are protected.
        Senator Mikulski. Well, Mr. Mueller, how would this work
    from a practical standpoint? Do you see what I'm getting at?
    Because people really worry that everybody can spy on them--the
    DOD, et cetera--and that they can come in carte blanche.
        Director Mueller. Surveillance of American citizens for
    national security matters is in the hands generally of the FBI.
    The investigation or development of intelligence overseas is in
    the hands of the CIA and NSA. And I would say generally they
    are not allowed to spy or to gather information on American
    citizens, but there are limited exceptions to that. Depending
    on the type of investigation, there would be, thanks to the
    PATRIOT Act and additional rulings of the FISA court, we would
    now have the ability to share the information that may have
    been, pursuant to its authorities, obtained by the NSA, maybe
    overseas, maybe between somebody overseas and somebody in the
    United States, or obtained by the CIA overseas, and now be able
    to use it in the United States.
        Senator Mikulski. Did you need the PATRIOT Act to be able
    to do that?
        Director Mueller. The PATRIOT Act and changes to the FISA
    statute--not changes to the FISA statute, but a
    reinterpretation of the FISA statute by the FISA appellate
    court in order to do that, yes.
        Senator Mikulski. And had those changes not occurred, would
    you or your agents have felt shackled in some way or
    discouraged from pursuing certain things?
        Director Mueller. Absolutely. I think if you look at the--
    go back and read the report of the 9/11 commission, it was well
    pointed out there the constraints under which we were operating
    prior to September 11 that stymied, cutoff the flow of
    information between the agencies whose responsibility is
    protecting the security within the United States and those
    agencies whose responsibility of protecting the security of the
    United States outside the United States. And the PATRIOT Act
    and the interpretation of the FISA statute has broken down that
    wall.
        Senator Mikulski. Mr. Gonzales, you wanted to clarify, and
    then I have another question I just want to put in, which is,
    has the PATRIOT Act had any constitutional challenges directed
    at it through the court system? And have any parts of the
    PATRIOT Act been struck down as unconstitutional?
        Attorney General Gonzales. The only clarification I wanted
    to make, Senator, was to repeat one thing that Director Mueller
    said in his opening statement. And that is, of course, that
    many of the authorities exercised by the Federal Government in
    the area of surveillance are done oftentimes under the
    supervision of a Federal judge, and also that there are strong
    minimization requirements imposed by statute and by regulation
    to protect the privacy interests of Americans.
        There have been numerous challenges to the PATRIOT Act, and
    to my knowledge they have all withstood challenge--successful
    challenges in the courts.
        Senator Mikulski. Mr. Chairman, I think I'll wait for my
    next round of questions to go to another set. Thank you.
        Chairman Roberts. The questions you had were follow-on
    questions, which is why the Chairman thought it would be
    perhaps a good thing to let you get to the end of that chain of
    questions in regards to the understandability of the answers
    and the questions. But we will have a second round.
        Senator Mikulski. Well, and, Mr. Chairman, I think some of
    those questions, knowing the colleagues before us, have to
    almost go into a closed session to get more detail and get more
    of the mechanics of how it works and so on that, again, we have
    privacy concerns here.
        But I appreciate the answers.
        Chairman Roberts. Senator Snowe will be now recognized.
        Let me point out the Committee did hold a closed hearing on
    the use by the intelligence community field operatives in
    regard to the tools provided by the PATRIOT Act. These same
    questions were brought up at that particular time, and their
    responses were very helpful in regards to the questions that
    the Senator has asked.
        Senator Snowe.

               OPENING STATEMENT OF HON. OLYMPIA S. SNOWE

        Senator Snowe. Thank you, Mr. Chairman. And I thank all of
    you for being here today.
        I think one of the fundamental issues surrounding the
    PATRIOT Act as we consider its reauthorization is a lack of
    public reporting with respect to the way in which it's applied.
    And I'd really like to hear from all of you, given your
    perspectives and the different positions that you represent, as
    to how we could do a better job, how you could do a better job
    in informing the public in which instances the PATRIOT Act is
    applied because I think so often now what I hear from my
    constituents is a concern that it's used for domestic
    investigations, that there is excessive secrecy with respect to
    how it's used.
        And I think we need to have more public disclosure in
    examining and assessing its impact. I think it would enhance
    the public's confidence in the way in which this additional and
    broader authority is being used.
        So could you give us some ideas as to how we could improve
    upon the public reporting dimensions without compromising,
    obviously, valuable investigations concerning terrorists and
    terrorism?
        Mr. Gonzales, proceed.
        Attorney General Gonzales. Well, I agree with you. I think
    that we have a responsibility to not only use these tools
    wisely, but to reassure the American people that we're using
    these tools wisely, and to provide as much information as we
    can without compromising our ability to effectively deal with
    this threat, to do the best we can to provide information not
    only to the Congress but to the American people.
        In the past few weeks we have tried to be more open about
    providing additional numbers about how many times these
    authorities have been used. As you know, some of these
    provisions do impose reporting requirements upon the Executive
    branch as to how these authorities are being used.
        I must tell you, Senator, based on my very short stint at
    the Department of Justice, there are a lot of folks at the
    department who spend a great deal of time gathering up
    information to provide to Congress. And I understand that
    sometimes it takes a little longer than some Senators like. We
    want to be very careful. We want to be very accurate in
    providing good information to the Congress.
        And so there already is a lot of information that's being
    provided to the Congress. We provide reports twice a year
    regarding the use of FISA, and I'm beginning to learn that
    sometimes some Members of Congress don't take advantage of the
    opportunity to review that report, and they don't understand
    what information is already being provided to the Congress.
        So we're always happy to see what we can do more, but I
    would just emphasize that I think there is a lot of information
    that is currently being shared about how these authorities are
    being used.
        Senator Snowe. You don't think we should do anything
    further than those additional reports? I mean, I think you
    provide them biannually.
        Attorney General Gonzales. Senator, I'm happy to sit down
    with you and your staff and consider additional ways that we
    could better educate the Congress and the American people. I'm
    happy to do that.
        I just want to--I don't need to remind you, but there is in
    my judgment a lot of information that is currently being
    provided already by the Executive branch.
        Senator Snowe. Well, somehow I think that we really have to
    do a better job in conveying that to the American people so
    that it doesn't undermine the integrity of the process and how
    it's being applied, I think, in the final analysis, and its
    impact. I mean, we understand to what extent you--you know,
    obviously, certain activities have to remain secret. We
    understand that. But on the other hand, I think we have to go
    the extra mile whenever we can to convey to the public that
    this is being used in the most appropriate way and we're not
    encroaching on people's civil liberties.
        Attorney General Gonzales. I couldn't agree more, Senator.
        Senator Snowe. Mr. Mueller.
        Director Mueller. Following up on what the Attorney General
    said, the information that's been provided I think should be
    helpful in allaying some of the concerns, particularly of
    individual groups, about the abuse of the PATRIOT Act. For
    instance, the fact that we have not used the PATRIOT Act 215 to
    obtain records from a library should allay some of the
    concerns.
        We have provided a great deal of information to Congress. I
    have here a letter of October 24, 2003, to the Honorable Ted
    Stevens, as chairman of the Committee on Appropriations. In it,
    it lists something like 15 instances where we've utilized the
    delayed notification in various of our cases, indicating how
    important that particular provision is and how it has not been
    abused.
        Part of the problem that we have is the fact that to
    disclose our successes, we have to do it in closed session. The
    closed session I believe you had a couple of weeks ago, I
    believe was informative in showing you exactly how we're using
    those provisions, but to disclose much of that material would
    educate the terrorists, would educate those whom we're
    investigating. But my hope is that through hearings such as
    this, continued scrutiny from Congress, that much of the
    concern will be allayed.
        Director Goss. Senator, I have a great deal of empathy for
    your question because I have participated from the situation
    you find yourself in as responsible to a constituency. And I
    think it's very important that we reassure the constituency
    that we have safeguards in place in our government.
        I certainly think that the Oversight Committee role is
    very, very important in that. And I think, therefore, a
    frequent, very candid exchange on matters of concern needs to
    be undertaken just to make sure that we do assuage those
    concerns that might be out there, so that people who are
    respected in their communities can get up and say, I've
    examined this, I'm on top of this, and I can understand your
    concerns, but I think everything is working OK and, on balance,
    in fact, this is helping us catch terrorists or prevent
    terrorist acts from happening.
        I think that is the system that we have embraced in our
    form of representative government for dealing with these kinds
    of problems, and it's one that I think does work pretty darn
    well, but I certainly am aware of the balance problem.
        I know right now that there are people who have terrorist
    concerns, terrorist thoughts, may be associated with
    terrorists, actually people maybe in terrorist organizations,
    who are probably watching this discussion. I am very concerned
    that we understand that in the audience these days, because of
    technology, we have not only the people we're trying to
    reassure and we want to go out there and tell them how wisely
    we're employing these tools, it would be not helpful to tell
    the terrorists that.
        There is a huge amount of denial and deception and
    cleverness going on in the terrorist community, as loosely as
    it is organized. But it is good. They are smart, clever people.
    They take benign things like aircraft that we use to fly around
    for our commerce and our comfort in this country and they turn
    them into weapons of doom and tragedy. They can do that with
    other simple things that we count on every day, like going to
    the store and buying aspirin or things like that. It doesn't
    take much imagination.
        So I am very concerned that we draw a line with all the
    American people to understand we may have to be looking into
    things from time to time that terrorists are trying to take
    advantage of and use against us, things that we consider benign
    in our daily life. And those explanations have to be credible
    and they have to be accurate. And we need all the partners in
    our great enterprise to do that, both legislative, executive,
    and I would add the media would help too, if we could have
    accuracy in what's actually going on.
        I do think we have the things in place. The last thing any
    of us want in the intelligence community--and again, we are
    overseas, so I speak from that point of view--is a feeding
    frenzy over a poster child because we abused the authority.
    This authority is too important. We don't want to lose it. We
    are very careful not to abuse it.
        Senator Snowe. Thank you. Thank you, Mr. Chairman. Thank
    you all.
        Chairman Roberts. Senator Rockefeller. I'm sorry, Senator
    Wyden is next, and he has returned.

                  OPENING STATEMENT OF HON. RON WYDEN

        Senator Wyden. Thank you very much, Mr. Chairman, and thank
    all of you for your cooperation.
        I want to begin with you, Director Mueller, and also
    express my thanks to you. You've always been responsive
    whenever I've called and whenever I've had concerns, and I'm
    very appreciative of that.
        I want to start with the library provision of the PATRIOT
    Act and the debate about 215. You all constantly say there has
    never been a case where you forced a library to turn over
    records. I've heard that again and again and again. But my
    understanding is that you get cooperation from libraries by
    using what you call--these are your words, not mine--a
    ``discreet inquiry'' by a member of the Bureau. And I'd like to
    know, No. 1, what a discreet inquiry of a library is and, No.
    2, how many of them have there been since the PATRIOT Act?
    Because I constantly hear from my libraries, you know, about
    this.
        I think Porter Goss is absolutely right. We need to strike
    a balance here. We ought to be fighting terrorism ferociously
    without gutting civil liberties. And I really want to get on
    top of this library issue. So tell me what you mean when you
    say you get cooperation from libraries through discreet
    inquiries.
        Director Mueller. Let me start off by saying that I have
    not, I don't believe, ever said that we have never forced
    libraries to give records. We have never used 215 as a vehicle
    to get records from libraries. In the past, in criminal
    investigations we have used grand jury subpoenas. So I want to
    make certain that we're clear that I was talking about 215 we
    have not used to ask libraries to provide records to us.
        In terms of discreet inquiries, and I'm not certain of the
    context in which I may have----
        Senator Wyden. You said it to the Judiciary Committee.
        Director Mueller [continuing]. Said that. But I think what
    was in my mind is we've had a couple of occasions at least in
    which we have been contacted by persons who believe that they
    have information that needs to come in the hands of the FBI,
    and these are librarians. And in colloquy with these
    individuals, they've decided to provide us records. Now, it may
    have been with some paper. But when I'm talking about discreet
    inquiries, it has been triggered--in my mind it's been
    triggered on those occasions by librarians themselves that have
    come forward to us and said this is something you ought to look
    into.
        Senator Wyden. So, since the PATRIOT Act was enacted, there
    has not been an increase in discreet inquiries that the
    department has initiated with libraries?
        Director Mueller. Not to my knowledge, no.
        Senator Wyden. All right. Would you----
        Director Mueller. Now let me just make one----
        Senator Wyden. Would you check on that and give me the
    numbers with respect to times when the department initiated
    what you all call this discreet inquiry?
        Director Mueller. Well, I wouldn't put a tag on discreet
    inquiries. I may have used the word ``discreet inquiries'' to
    describe what I believe were two situations in which librarians
    had come to us and we had a colloquy with the librarians. It
    never got to the point of 215s because the librarians believed
    we needed the information.
        I would be happy to try to go back and look at the number
    of occasions where we have utilized--we have not used 215--the
    number of occasions that we have utilized process on libraries.
    But it would be very difficult for me to go back and say, ``OK,
    when has one of our agents talked to a librarian?''
        Senator Wyden. I understand. I think you get my point as
    well. These librarians are very fearful. They're patriotic
    Americans. They want to assist their government and at the same
    time, like the rest of us, they're concerned about fishing
    expeditions. And I want to make sure I understand what these
    issues are all about. And why don't we say I intend to go into
    this more in the closed session as well to make sure I'm on top
    of that.
        Director Mueller. Can I make one last point in this regard?
        Senator Wyden. Of course.
        Director Mueller. I am quite certain that had we engaged in
    fishing expeditions with libraries that it would have come--
    attention would have been brought to that fishing expedition by
    either the librarian society or the ACLU. And we have not had
    brought to our attention an abuse of our role in interacting
    with libraries.
        Senator Wyden. Director, what I'm concerned about is that
    it may not be getting to that point because essentially people
    show up from the Bureau, ask these kinds of questions, and
    these librarians say, ``Look, we don't want to be seen as
    disloyal; we're just going to cooperate.'' I want to know more
    about this. I'm not making any allegations here. All I know is
    I saw you say the words ``discreet inquiry,'' and I'm hearing
    from these librarians. I want to get on top of this.
        Question for you, if I might ask, General Gonzales. You
    said that there had not been an instance where a court has
    found any abuses under the PATRIOT Act. Are you aware of Doe v.
    Ashcroft? That was the case where the Federal judge struck down
    the authority for National Security Letters for customer
    records of communication service providers which had been
    expanded by the PATRIOT Act.
        Now the court held that the government had failed to
    provide any explicit right for a recipient to challenge the
    letter, a search order, and that violated the Fourth Amendment,
    and that the automatic secrecy rule violated the First
    Amendment, and the department has appealed the decision to the
    2nd Circuit. Are you aware of that, or----
        Attorney General Gonzales. I am generally aware of that
    case. You are correct; the courts had indicated that there were
    problems under the First and Fourth Amendment, even though the
    Department of Justice conceded that this request by the
    government could be disclosed and could in fact be challenged
    in the courts. Nonetheless, the court chose to disregard our
    concession and issue its ruling.
        My understanding of that case, Senator, is that the court
    specifically, though, focused on a provision that predated the
    PATRIOT Act, and that was the provision that was in fact struck
    down. And it did not reflect a decision by a Federal judge to
    strike down a particular provision created by the PATRIOT Act.
    But I will confirm that and get back to you.
        Senator Wyden. Why not require a judge to approve these
    National Security Letters? I mean, that could be done
    electronically, it could be done quickly. My concern about
    these National Security Letters is that there would be a way to
    strike the balance that Porter Goss has talked about, a view
    that I share, relatively simply--that, you know, you could have
    judges approve the National Security Letters electronically and
    quickly. I'm concerned that a lot of these recipients aren't
    given notice of their right to challenge search orders. And it
    would seem to me that this would be something consistent with
    this balance that we've been talking about that we could do.
        Do you have any concern about what I've just described?
        Attorney General Gonzales. My understanding, Senator, with
    respect to the use of National Security Letters, I mean, one of
    the benefits of it is speed. There may be instances where you
    need to get them so quickly that you might lose valuable
    information if, in fact, you have to track down a Federal
    judge.
        I would also emphasize that the use of National Security
    Letters is limited to certain types of entities that you can
    gather information from, and it's limited as to certain types
    of information you can try to get under National Security
    Letters.
        Senator Wyden. Well, again, what is hard for us to address
    here is that we're to some extent doing oversight in the dark.
    We are trying to figure out how to strike this balance.
    Director Mueller and I are going to talk a bit more in closed
    session about the library provisions.
        The Department of Justice is required to report to this
    Committee on the use of National Security Letters by the FBI.
    We haven't gotten the report for 2004. We haven't gotten it. So
    that makes it hard for us to do oversight, which is why Members
    of this Committee show up and ask these questions.
        So I hope that all of you will work with us on this because
    in an area like this, National Security Letter, I sort of
    operate under the Ronald Reagan theory, ``trust but verify.''
    And what I do know is that we haven't gotten the report that
    was supposed to be filed on these National Security Letters, so
    we come here and ask these questions.
        And if we have a second round, Mr. Chairman, I'll ask some
    more. Thank you.
        Chairman Roberts. Senator Rockefeller.
        Vice Chairman Rockefeller. Thank you, Mr. Chairman.
        This is a specific question about FISA orders for business
    records, ``any tangible things.'' In 215 in the PATRIOT Act it
    authorizes FISA orders issued by the FISA court for ``any
    tangible things'' from any entity. Under section 215 the
    government only needs to make, with respect to terrorism
    investigations, a showing that the records in question are for
    ``an authorized international terrorism investigation.'' In
    your joint statement you indicated that the department would
    support an amendment that requires that the records be
    ``relevant'' to a national security investigation.
        Section 215 also provides that no person shall disclose to
    any other person that the FBI has sought or obtained records
    except for persons necessary to producing, obviously, the
    records. In your statement you indicated that the department
    would support an amendment that the recipient of a section 215
    order may consult with an attorney and may challenge the order
    in court. The questions I have are twofold.
        Would you support limiting the scope of section 215 to
    those records for which there was at least some specific
    information for believing that the records related to a
    suspected terrorist or other agent of a foreign power, No. 1,
    yes/no?
        Secondly, your statement indicates that you support
    modification of section 215 to give the recipient of the FISA
    order the right to consult an attorney and to challenge the
    order in court. Do you support the provisions of the SAFE Act
    that would require the government to show why nondisclosure is
    necessary and place a time limit on a nondisclosure
    requirement? Why or why not?
        Attorney General Gonzales. I think that the ``relevant''
    standard is the appropriate standard with respect to 215
    business order requests. We have indicated that we believe that
    it is a relevant standard. The words are not used in the
    statute, but we believe it is implicit. But nonetheless, we
    would support making it clear that the appropriate standard is
    a relevance standard.
        I think to go above that to require a higher standard would
    make the use of 215 sort of a dead letter. I don't think
    investigators would use 215.
        We look at 215 orders as a search for--not a search, but a
    request for information, much like a grand jury subpoena, where
    the standard there is also relevance. It's part of the building
    block of the case in order to get information to see whether or
    not there is sufficient information to develop probable cause
    that would support a search. And my own judgment is that if the
    standard were changed, that 215 would no longer continue to be
    useful.
        And I'm sorry, sir, I don't remember the second part of
    your question.
        Vice Chairman Rockefeller. That was the SAFE Act would
    require government to show why nondisclosure is necessary and
    place a time limit on nondisclosure requirements.
        Attorney General Gonzales. Well, I think in this case we'd
    be talking about information that is classified. And it just
    sort of turns the presumption on its head that classified
    information--the presumption is is that it would become public
    unless you showed certain things. I mean, it is classified
    information, and I think there's a reason it is classified
    information and should remain classified information.
        Vice Chairman Rockefeller. Well, then help me understand.
    You would say, then, that a nondisclosure requirement is not
    desirable?
        Attorney General Gonzales. I would not support it. I mean,
    I think we all understand that these investigations involve
    very sensitive matters. Talking about in the FISA context, this
    is the most sensitive information. And to disclose information
    to a target or someone who's not a target of an investigation
    but someone who then shares the information unknowingly to the
    target may jeopardize a very important, serious investigation.
    And so we would have concerns about such a requirement.
        Vice Chairman Rockefeller. OK. One more. This is on
    ``significant purpose,'' about those requirements.
        Section 218 of the PATRIOT Act amended the certification
    requirement of FISA such that the collection of foreign
    intelligence must be ``a significant purpose'' of the
    surveillance or the search. Prior to the PATRIOT Act, the
    certification requirement had to be interpreted to require that
    foreign intelligence collection be, quote, ``the primary
    purpose'' of a surveillance or search. Section 218 has been
    credited with ``helping to bring down the wall separating
    intelligence agencies from law enforcement agencies.''
        Other provisions of the PATRIOT Act such as section 203
    allow information to flow from law enforcement officials to
    national security officials and to members of the intelligence
    community, as we know.
        The question is, in terms of protecting the United States
    from another attack, what difference have these information-
    sharing acts made, in your judgment? Second, can you describe
    the relative use and importance of, first, a provision allowing
    the sharing of criminal investigative information with
    intelligence officials, the importance of that, and second, in
    the other direction, provisions allowing the sharing of
    intelligence information with law enforcement agencies at a
    lower level?
        Attorney General Gonzales. Well, I think it is probably one
    of the most important aspects of the PATRIOT Act, provisions
    like sections 218 and 203, which have made it clear for law
    enforcement and the intelligence community that it is OK to
    share information. And, as the 9/11 commission and the WMD
    commission, the reports from those commissions, both indicated,
    part of the reasons for the attack on September 11 and the
    problems we've had is the fact that the government has been
    unwilling because of a perception that they're unable to share
    information. And section 218 and other provisions like 203 have
    made it clear that it's OK to share information.
        So, it's very, very important. I think sharing of
    information, to be successful in that, is so important in
    winning the war on terror.
        Vice Chairman Rockefeller. General, I'm in agreement with
    that, but the question was, has it made a difference?
        Attorney General Gonzales. It has made a difference. Yes,
    sir.
        Director Mueller. If I could speak to that just for a
    second, it has made a tremendous difference in our ability to
    conduct what has been called by the 9/11 commission
    ``transnational intelligence investigations.'' Terrorists
    operate, as we saw on September 11--they developed their plans
    in Afghanistan; they habituate Hamburg, Germany; and launched
    their plans in the United States.
        We've had a number of occasions since September 11 in which
    we have discovered information in the course of criminal
    proceedings here that has been passed on to the CIA and enabled
    the CIA to wrap up persons overseas with the help of their
    counterparts. That would not be possible without the provisions
    of the PATRIOT Act.
        We had convicted yesterday, in Northern Virginia, an
    individual by name of Tamimi, who in the wake of September 11
    had encouraged a number of individuals to go to Pakistan to
    obtain training in order to fight against the troops in
    Afghanistan. He was convicted as a result of the ability to
    share information that may have come from the intelligence side
    of the house but can be used in the criminal side of the house.
        Last year, in the spring of last year, I believe it was,
    there was an individual by the name of al-Hindi, who was
    arrested by the British authorities. He is the individual who
    had undertaken surveillance of The Prudential and a number of
    financial institutions in the United States. If we had not been
    able to look at some of his co-conspirators, both criminally as
    well as from the intelligence perspective, we would not have
    been successful in obtaining the plea of a principal member
    here in the United States, nor would we have been half as
    successful in coordinating and cooperating with our
    counterparts overseas in terms of exchanging information with
    them that enabled them to wrap up and prosecute al-Hindi.
        One can talk about the successes due to breaking down the
    walls for a good several hours. I'm sure you heard in the
    closed session last week a number of instances where breaking
    down the wall by the PATRIOT Act and the rulings of the FISA
    court has made a tremendous difference in our ability to
    protect the American public.
        Vice Chairman Rockefeller. I happen to agree with that, and
    I think it's important that the public hear that clearly.
        Chairman Roberts. Senator Levin.
        Senator Levin. Thank you, Mr. Chairman.
        Director Goss, I welcome--I think all of us do--your strong
    support for congressional oversight which you have made in your
    testimony. I think we've fallen short in Congress of carrying
    out those responsibilities and I very much welcome your
    statement of support.
        And, more importantly, I welcome your following through
    with documents which you have supplied to me, which I have been
    waiting for from the former CIA Director for a year. You came
    to office, said you would be cooperative. You have come
    through, followed through with the actual documents I've been
    waiting for. I can only say I wish the Department of Defense
    were as forthcoming with documents as you have been, but I
    don't expect you to comment on that.
        [Laughter.]
        Senator Levin. Thank you.
        The money-laundering provisions in the PATRIOT Act. Title
    III contains provisions that Congress enacted to strengthen our
    laws against money laundering and terrorist financing. They're
    not subject to sunset, but nonetheless we should be reviewing
    these provisions, whether they're sunsetted or not, as you
    said, General. I agree with that.
        Have they been useful to you, the anti-money laundering
    provisions in the PATRIOT Act?
        Attorney General Gonzales. I'm told that they've been very
    useful to the department. I don't have specific examples.
    Perhaps Direct Mueller does. But money laundering and those
    kinds of schemes to finance terrorist activities is so very
    important in our ability to deal with this threat. Without
    financing, it's very difficult for terrorists to attack this
    country. But, to respond, yes, it's been very important.
        Senator Levin. And, Director Mueller, have the provisions
    of the PATRIOT Act relative to anti-money laundering in general
    been useful to you, without getting into too many specifics
    because of the time limit on our questions?
        Director Mueller. Yes. Let me just mention a couple of
    provisions that were incorporated in the PATRIOT Act that were
    tremendously important.
        Money transmitting businesses, which have become a
    mechanism for exchanging funds around the world, the PATRIOT
    Act gave us provisions helping us to address those. The
    provisions relating to treasuries, the rules and regulations
    with regard to banks, so that banks, not only in the United
    States but around the world, adopt ``know-your-customer'' rules
    are tremendously important.
        So just to mention two of those provisions, I'm sure we
    have other examples from Treasury in which the ability to
    forfeit funds in interbank accounts has been useful, but I'd
    have to get you details on that.
        Senator Levin. That's fine. That's very helpful, thank you.
        General, section 214 is the subject of the next question.
    You've made reference to the fact that there's got to be a
    certification of the information that you seek authority to
    obtain being relevant to an ongoing investigation. And my
    question is, do you think it is appropriate in that request for
    that judicial authority that the way in which the information
    is expected to be relevant should be set forth?
        Attorney General Gonzales. Senator, I'm not sure I
    understand your question.
        Senator Levin. Well, you said that there's a requirement in
    section 214 that when agencies install pen registers, tap and
    trace devices through FISA procedures, that there's a
    requirement that you allege, you certify, that what you are
    seeking authority to do is relevant to an ongoing
    counterterrorism or counterespionage investigation.
        My question to you is, do you think it would unreasonable
    to require that you state in that request how it is relevant to
    your investigation--not just the conclusion that it is
    relevant, but how it is relevant. If you could just give me a
    yes or no, or expand for the record, I'd appreciate it.
        Attorney General Gonzales. Senator, it's hard for me to
    plead ignorance, but it may be the fact that we do have to
    explain how it's done. I don't know that.
        Senator Levin. If not, I would hope you would consider
    supporting an amendment to the statute which would require that
    you state how it's relevant, if it's not already required.
    Could you give us that for the record?
        Attorney General Gonzales. I will look at that.
        Senator Levin. Now, in section 215, we've got a situation
    where the application--this is on the records we've been
    talking about, including library records--the application to
    the court goes, as I understand it, to the institution, the
    business, or whatever. Is that correct?
        Attorney General Gonzales. No, it's the order. The
    application goes to the court and then an order is issued, and
    then we seek the records pursuant to that order.
        Senator Levin. To an institution or an entity?
        Attorney General Gonzales. The entity holding the record
    that is being pursued.
        Senator Levin. My question is, do you think it's reasonable
    that when the entity is ordered to provide records, that the
    specific target of the investigation be the subject of the
    records being sought rather than a general ``we want all your
    records'' relating to some subject? Is there any reason why the
    law should not require you, if you're not already required, to
    identify whose records it is that you seek and that it is not
    an American's record, and that the records are not connected to
    First Amendment rights?
        Attorney General Gonzales. Well, there is, of course, a
    requirement under 215 that the information sought is relevant
    to an intelligence investigation.
        Senator Levin. Right.
        Attorney General Gonzales. I worry about the additional
    requirement that you have suggested. I'd have to look at it,
    but I'd worry about going beyond what's already within 215.
        Senator Levin. All right.
        Director Mueller. Can I add something on that? I would be
    opposed to that.
        Senator Levin. All right.
        Director Mueller. I think the court should review the
    application. The court issues the order. If it's overly broad,
    the court can make a finding and require additional
    information. There will be occasions where to, as you say,
    specify in the order the individual who is the target of the
    investigation where that would be akin to alerting the person
    and risking the investigation as a whole.
        Senator Levin. How would that be alerting the person?
        Director Mueller. Well, if it goes to an institution, the
    institution can well turn around and alert the person if they
    know a particular target. There may be circumstances where we
    look for discreet groups of records. In those records may be
    records we want on a particular target or targets. And I
    believe we ought to have the ability and capability to present
    to the judge the circumstances where we want a broader order
    for those records from a particular institution.
        Senator Levin. Thank you. Thank you, Mr. Chairman.
        Chairman Roberts. Senator Wyden.
        Senator Wyden. Thank you, Mr. Chairman.
        I want to follow up on an area that Senator Levin was
    touching on and see if I can go at it a different way, and I'll
    do this with you, Director Mueller.
        The PATRIOT Act, of course, eliminated, with respect to the
    National Security Letters and the FISA warrants, the
    requirement that you meet what was called the specific
    articulable fact test. And what was put in place was a
    requirement that when you want records, it has to be relevant
    to an open investigation. That's, I think, where we are in
    terms of the law.
        What I am interested in knowing is, what is necessary at
    this point, Director Mueller, to initiate an investigation
    within the FBI?
        Director Mueller. Well, it can be an allegation. It could
    be information provided to us by another agency, and we will
    generally open what's called a preliminary investigation. And
    the preliminary investigation enables us to do some limited
    work in terms of verifying the information, following up on the
    information before we can go to a full investigation. And the
    full investigation enables us to use a variety of additional
    tools.
        So it is a staged development of information where we have
    to make a showing in our files of what is warranting the use of
    additional investigative techniques. It is based on
    predication. In other words, the initial predication for
    opening an investigation can come anywhere from an e-mail from
    an anonymous source saying that somebody's going to commit an
    attack in New York tomorrow, and then we'll do whatever is
    necessary to either corroborate that information or disprove
    that information.
        Senator Wyden. Is it fair to say then, Director, that this
    staged development of information, as you describe it, is in
    fact the new standard of proof for issuing a FISA warrant and a
    National Security Letter?
        Director Mueller. No.
        Senator Wyden. All right, then tell me why not, because you
    just said that to initiate an investigation within the FBI, you
    can do it, essentially, with an allegation. Then you said that
    there is this--I guess you call it the process of proof, sort
    of a ladder kind of arrangement. And that, based on an absence
    of any other information, strikes me as something pretty close
    to the new standard of proof, and I'm just trying to find out
    what the standard of proof is.
        Director Mueller. It's not a standard of proof. The
    evaluation of information has a number of purposes. One is, is
    it worth opening a file? Is it worth documenting the allegation
    that's come in? We have a number of allegations that come in we
    don't open a case on because it may be an anonymous e-mail
    message that comes in to our website. But for our practical
    purposes in terms of what we need to do to further the
    investigation, we are limited at the preliminary stage to
    documenting and furthering----
        Senator Wyden. But what is the standard of proof, then?
        Director Mueller. There is no particular standard of proof.
    We don't have to prove to anybody. It's not probable cause.
    It's is there information that leads us to believe--if you want
    to say, leads us to believe--that further investigation is
    warranted in a particular case?
        Senator Wyden. I think that's a pretty sweeping comment
    that there really isn't any standard of proof, that there isn't
    any, to your terminology, no particular standard of proof.
        And I'm going to want to follow up with you on this,
    Director, because I think we used to have one. It was, you
    know, the specific, articulable fact requirement. Then we said
    that it's got to be relevant to an open investigation. Then you
    told me you can do an investigation on the basis of an
    allegation. I'd like now to know what the standard of proof is
    for these warrants and National Security Letters, and you said
    there really isn't any particular standard.
        Director Mueller. Well, there's a standard for issuance of
    a grand jury subpoena, for instance: it's relevance. There's a
    standard for issuance of a National Security Letter. In order
    to get a particular process there is a standard. But for us to
    conduct investigations internally, we don't have to meet any
    particular standard of proof. What I'm saying is, this is the
    process we have adopted over the years to assure that we have
    predication for each step of an investigation.
        Senator Wyden. With all due respect, Mr. Director, as I've
    said, you've worked very well with me. This is not what we've
    done over the years. Over the years, we had this specific
    articulable fact standard. We don't have it anymore, and that's
    why I'm pursuing this.
        Director Mueller. Happy to pursue with it you, Senator.
        Senator Wyden. Good. I want to ask this. Could I ask an
    additional question? Are we on the third round?
        Chairman Roberts. Well, of course.
        Senator Wyden. Third round, or do you want me to proceed
    now, Mr. Chairman?
        Chairman Roberts. No, right now.
        Senator Wyden. Thank you.
        I want to ask this of General Gonzales, and it involves the
    privacy and the Civil Liberties Oversight Board with respect to
    domestic intelligence. The Senate had a different view with
    respect to how the board would work than ended up in the final
    law. And the board, by the Senate version, would be in a
    position to issue subpoenas. That's not how the law came out.
        I'm curious whether you would be supportive of a request,
    General Gonzales, from the board, to issue a subpoena? It seems
    to me that if they, right from the get-go, don't have that kind
    of authority, the kind of authority that was envisioned by the
    Senate, that you limit some of their powers. And I'm just
    interested in how you would view a request from them.
        Attorney General Gonzales. Well, if we got such a request,
    then obviously we would seriously consider it. But there are
    certain standards that the department would feel would have to
    be met in connection with the issuance of any subpoena. And
    simply because this privacy board requested a subpoena, no one
    should walk away from this hearing----
        Senator Wyden. If the privacy board met the constitutional
    standards, what you're telling me is you would not rule out
    giving them a subpoena.
        Attorney General Gonzales. If we believe that a subpoena
    should be issued, we would issue a subpoena.
        Senator Wyden. Very good.
        One last question, if I might, for you, Director Goss, on
    an area I think that involves a matter we both have a great
    interest in.
        When you were here the last time, I asked about information
    sharing between the Counterterrorism Center and various
    intelligence agencies. It was based on my understanding that
    while information can be shared among the analysts assigned to
    the terrorism center, analysts have to seek special approval to
    share this information with their home agencies.
        And this approval is required, despite the fact that there
    is this finite number of people working on terrorism in the
    intelligence community. All of them have a need to know, all
    are trained to handle sensitive data on persons and foreign
    nationals. How do you think this ought to be addressed? And
    since we talked about it a bit the last time, I thought it made
    sense to follow it up.
        I still think something along the lines of a special
    terrorism analyst, you know, program, so as to allow all the
    analysts access to the same data would make sense. But since we
    talked about it the last time, I just wanted to follow up and
    get your sense of where we were.
        Director Goss. My sense of where we are is that we are
    beginning to work better as a team. I don't think it's what I
    would call a finished product yet. I think it's still a work in
    progress. Obviously, as you know, I want to be very circumspect
    in what I respond because Ambassador Negroponte has been given
    the responsibility for that in his role as DNI, and I no longer
    have those responsibilities. But when I left the ship, the
    direction was for more sharing and more compatibility in
    systems so that the goals that we both have ascribed to about
    getting information where you need it, when you need it, to the
    right analyst, would be available.
        I cannot assure you that's going to be accomplished
    immediately. There are still a lot of different systems
    involved, a lot of different procedures, a lot of concerns
    about a need to know because need-to-know still is a principle
    that comes into the business. The trick is sharing with the
    people who need to know and not having a gratuitous release of
    information that could be harmful otherwise.
        A lot of that is going to have to be worked out on a sort
    of experiential basis as we go along building the NCTC. We're
    still a little bit in the dark about what strategic planning
    actually will entail in the NCTC. As I say, I've left those
    matters in very good hands with Ambassador Negroponte and we've
    already had some conversations about some of the efforts that
    will be necessary out there and that's within the scope of what
    we've talked about.
        Senator Wyden. My concern is, and I'll wrap up with this
    Mr. Chairman, that the pre-9/11 set of walls has been replaced
    with a new set of walls preventing information sharing. And,
    for the life of me, when we have this limited number of people,
    all with the need to know, all who are trained to handle
    sensitive data, it just seems putting them through this kind of
    water torture exercise to share information is pointless and
    doesn't serve any of the interests that you three have talked
    about.
        I thank you very much, Mr. Chairman, for the extra time.
        Chairman Roberts. Senator Levin.
        Senator Levin. Thank you, Mr. Chairman. I just have one
    additional question.
        Sections 214 and 215 protect American citizens from being
    investigated, having their phone calls traced, who they're
    calling, who's calling them, as well as having their records
    obtained ``solely on the basis of activities that are protected
    by the First Amendment.''
        So, you cannot be investigated as an American citizen under
    either 214 or 215 solely on that basis. That's a word which is
    deeply troubling to me because let's say part of the motivation
    is your First Amendment activities for being investigated. And
    I know this isn't your intent. I'm talking about what the law
    permits. I'm not talking about what you in your practice do.
        Why should we suggest in the law, in any way, that if an
    investigation of an American citizen is based significantly or
    partly on their First Amendment activities that that would be
    OK? Or should we?
        Attorney General Gonzales. Well, I think that provision was
    included by Congress to provide additional protections for the
    lawful activities of American citizens. But if American
    citizens are involved or have information or are in any way
    affiliated with terrorist activities, we should have the right
    to gather additional information through 214 and 215.
        Senator Levin. Sure. But then the motivation is that
    participation. The motivation is not, even in part, their First
    Amendment activities.
        Attorney General Gonzales. That would be correct, as far as
    I'm concerned.
        Senator Levin. Yeah. Director.
        Director Mueller. Well, I mean, you can take Eric Rudolph,
    who may claim First Amendment protection for his acts against
    abortion clinics. It may have some First Amendment motive--
    protected beliefs. But the fact that he engaged in--we ought to
    be able to investigate an Eric Rudolph.
        Senator Levin. Of course.
        Director Mueller. He can sit there and say, ``Look, I'm
    against abortion clinics, but that doesn't mean he has a right
    to bomb them.''
        Senator Levin. Of course.
        Director Mueller. And so, I think it makes some sense that
    we cannot investigate someone solely on, but if they're engaged
    in someway in exercising their First Amendment rights but there
    is the possibility or the actuality of violence, it makes some
    sense to me, quite obviously, that we should.
        Senator Levin. Of course. But the purpose of the
    investigation is not to investigate his exercise of First
    Amendments rights, is it?
        Director Mueller. No.
        Senator Levin. That's what I'm driving at. And I think
    Americans are concerned about their rights. And we ought to be
    sensitive to that and you indicate you want to be sensitive to
    that. We ought to go after any acts of terrorism or support of
    acts of terrorism with all of our might. But we have to be very
    clear, as you were in your testimony, I think, that we're not
    after people for exercise of their constitutional rights. We're
    after them if they participate, encourage, in any way
    contribute to terrorist acts in some knowing way. Then we're
    going to go after them with the full weight of the law.
        But the word ``solely'' in there has been troubling to a
    lot of people. It is to me and I think you ought to give some
    thought to eliminating that suggestion that we're not--our
    motivation is not to go after people's exercise of their
    rights, period. That's not the motivation. It's to go after any
    illegal activity.
        Would you agree with that?
        Attorney General Gonzales. I agree with that sir.
        Director Mueller. Yes.
        Senator Levin. Thanks. Thank you, Mr. Chairman.
        Chairman Roberts. Thank you, Senator. I have one question
    but I'm going to opine. I don't know if that's a verb or not
    but I'll use it.
        Attorney General Gonzales, we're going to call you Jericho
    in terms of these walls. And I noted the discussion of walls in
    your written testimony. The views of your lawyers, including
    the lawyers in the Office of Intelligence Policy and Review,
    basically laid the foundation for and ultimately constructed
    the walls between law enforcement and intelligence officials
    which were then adopted by the Foreign Intelligence
    Surveillance court.
        Some would say that these views were overly cautious--and
    I'm being generous. However, as the Foreign Intelligence
    Surveillance court, in their view, made clear, these ``walls''
    were not mandated by the Constitution case law or the plain
    language of the FISA statute. Now that's an opinion upon which
    I do agree.
        Nonetheless, my concern is with the current implementation
    of FISA. General Hayden testified before this Committee. He
    indicated the problem was not really preventing NSA employees
    from stepping over the line. It was getting NSA employees to
    even come close to the line. It took the FBI and the DOJ more
    than 2\1/2\ years after the passage of the PATRIOT Act to
    obtain the first FISA business record court order. We've gone
    over that.
        And so the question that I was going to ask, but I'm just
    going to make it as a statement, is hopefully your attorneys
    are not still shying away from the line and hopefully they are
    doing what it takes to fully use the tools we gave you in the
    PATRIOT Act.
        Now the FISA has become one of the nation's most important
    tools in protecting national security and the Department of
    Justice, as you know, plays a key role in supporting the
    intelligence community's use of the Act. The OIPR is at the
    forefront of this support, whether submitting applications to
    the Foreign Intelligence Surveillance court or reviewing the
    Attorney General-approved implementing guidelines. The
    attorneys at OIPR should be fully cognizant of the important
    role they play in the intelligence activities of the United
    States. I think it's extremely important that the OIPR be
    considered and that they consider themselves to be a full
    partner with the intelligence community.
        The question I had was to you, sir, and for Director
    Mueller and for Director Goss, do you agree with that
    statement? Let the record show that you all three said yes.
        [Laughter.]
        Chairman Roberts. While we recognize the role that the OIPR
    plays in ensuring the integrity of the process, too many times
    in this Committee's oversight OIPR has shown itself--this is my
    words, about 6 months ago during hearings--a rusty gate, if you
    will, that prevents the full use of intelligence authorities. I
    think OIPR should focus on enabling collection and ensuring
    compliance with the applicable laws.
        Now, Senator Wyden's pointed out that we have not received
    your required semi-annual reports--I'm talking to the Attorney
    General--on the usage of National Security Letters for 2004 and
    we're here at the last of April. Mr. Gonzales, could you please
    look into why we haven't received those reports in a timely
    fashion? I know you will do so, sir.
        Finally, I have a copy of the letter from the Attorney
    General which responds to a number of allegations from the ACLU
    about the Patriot Act abuses. Without objection, I want to
    enter this letter in the record.
        [The information referred to follows:]

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        Chairman Roberts. That concludes the hearing, and we thank
    you for your time.
        [Whereupon, at 11:28 a.m., the Committee adjourned.]

    PROPOSED CHANGES TO THE UNITING AND STRENGTHENING AMERICA BY PROVIDING
      APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA
                              PATRIOT) ACT OF 2001

                                  ----------

                                   DAY THREE

                             TUESDAY, MAY 24, 2005

                          United States Senate,
                      Select Committee on Intelligence,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 9:41 a.m., in
    room SD-106, Dirksen Senate Office Building, Hon. Pat Roberts
    (Chairman of the Committee) presiding.
        Committee Members Present: Senators Roberts, Hatch, Bond,
    Lott, Snowe, Chambliss, Rockefeller, Levin, Feinstein, Wyden
    and Bayh.

                 OPENING STATEMENT OF HON. PAT ROBERTS

        Chairman Roberts. The Committee will come to order. I
    apologize for the lateness of the arrival of the Chair. We are
    operating under a 2-hour rule, which I think everybody
    understands.
        This morning, the Senate Select Committee on Intelligence
    continues its series of hearings on the USA PATRIOT Act. Over
    the past 4 weeks, the Committee has conducted three hearings--
    two open and one closed--concerning the use and reauthorization
    of the PATRIOT Act. Those hearings, our oversight activities,
    and the Committees comprehensive classified analysis of
    Executive branch activities under the Foreign Intelligence
    Surveillance Act form the basis of our legislative actions.
        The purpose of our hearing this morning is to receive
    testimony on specific legislative proposals prior to the
    Committee's mark-up of PATRIOT Act legislation. This morning we
    will hear from two distinguished panels. First, the Committee
    will hear from Ms. Valerie Caproni, the General Counsel of the
    Federal Bureau of Investigation.
        Our second panel will consist of Mr. David Kris, a former
    Associate Deputy Attorney General in the Department of Justice;
    Mr. Joe Onek, Senior Counsel and Director of the Liberty and
    Security Initiative at the Constitution Project; Mr. Daniel
    Collins, also a former Associate Deputy Attorney General and
    Chief Privacy Officer at the Department of Justice; and Mr.
    James Dempsey, Executive Director of the Center for Democracy
    and Technology.
        I want to thank you all and the Committee thanks you all
    for being here today.
        The Committee also has received the views of Professor
    Richard Seamon of the University of Idaho College of Law with
    regard to section 203 of the draft legislation. Without
    objection, Mr. Seamon's letter will be included in the record.
        [The information referred to follows:]

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        Chairman Roberts. Before recognizing the distinguished Vice
    Chairman for any comments he might have, I want to comment
    briefly on the draft bill we provided to our witnesses.
        This draft bill does reflect, I think, a balanced approach,
    addressing both concerns about the use of existing authorities
    and identified gaps in investigative tools that are needed. The
    draft legislation accomplishes three simple goals.
        First, it permanently authorizes nine intelligence-related
    provisions set to expire at the end of the year. I believe
    there is strong bipartisan support for these provisions.
        Second, it extends to national security investigators tools
    already used in Federal criminal cases. It does not create new
    authority.
        And, third, it addresses some of the concerns expressed by
    critics of the PATRIOT Act by establishing new reporting
    requirements and standards for use of certain tools under the
    Act.
        Let me emphasize that the investigative tools that this
    bill extends to FBI national security investigators are the
    same tools that have been used by Federal criminal
    investigators for years to access information relevant to their
    investigations. For example, the mail cover provision is simply
    the statutory authorization of an authority which the FBI has
    had under Postal Service regulations for 30 years.
        Additionally, the administrative subpoena provision is
    similar to 335 other legislatively enacted administrative
    subpoenas currently being used by the Executive branch. Such
    administrative subpoenas have been upheld against
    Constitutional challenges for over 50 years.
        In fact, the Secretary of Labor can use administrative
    subpoenas to enforce the Fair Labor Standards Act. The Federal
    Maritime Commission can issue administrative subpoenas to
    support its investigations. And Federal criminal investigators
    can use administrative subpoenas in health care fraud, child
    pornography, and also any case dealing with drugs or narcotics.
        Federal investigators, however, cannot use them to
    investigate spies and international terrorists. The Secret
    Service can issue an administrative subpoena to investigate
    threats against the President, but the President can not use an
    administrative subpoena to investigate threats against America
    posed by terrorists and spies.
        I have yet to hear any reasonable reason to deprive
    national security investigators of well-established and long-
    used investigative tools. We expect the men and women of the
    FBI to protect us and yet some advocate constraints that would
    tie their hands, I think unnecessarily. I believe that national
    security investigators should be able to use every
    Constitutional tool at their disposal to protect the United
    States.
        This is the Committee's fourth hearing on the USA PATRIOT
    Act this year. In prior hearings, the Committee has received
    testimony from panels of outside experts, law enforcement and
    intelligence officials who have used PATRIOT Act tools in the
    field, and the Attorney General, the Director of the FBI, and
    the Director of the CIA.
        Moreover, with regard to the specific provisions that are
    being discussed and considered by this Committee, we have tried
    to go out of our way to ensure that every member has had the
    opportunity to be fully informed of the provisions included in
    the draft legislation. Our General Counsel has briefed the
    Members' designated staff and has been available to meet with
    any Member to discuss any concern about any provision of the
    bill.
        Additionally, last week, the Committee held a briefing for
    all Members at which counsel from both sides of the aisle went
    through the legislation and were available for questions.
        Finally, at my direction, the Committee staff has worked
    very diligently with those who have concerns about provisions
    in the bill in an effort to resolve those concerns. As a
    result, the staff has been able to reach a number of agreements
    that may be presented at markup as amendments are considered or
    as part of a managers' amendment.
        More than 3\1/2\ years have passed since enactment of the
    PATRIOT Act. Members of Congress have had ample opportunity to
    inquire into the implementation of these authorities and to
    debate and consider the reauthorization of the expiring
    provisions. While fundamental differences will, no doubt,
    remain, I am committed to working with any Member of this
    Committee in an effort to address his or her concerns prior to
    markup.
        At this time, I'd like to recognize the distinguished Vice
    Chairman, Senator Rockefeller, for any statement he would like
    to make.
        Vice Chairman Rockefeller. Thank you, Mr. Chairman, very
    much, and I welcome our witnesses, all of them. I want to make
    just a couple of comments to set my sense of the perspective of
    the hearing.
        We meet, obviously, to hear testimony on a draft bill,
    which makes permanent certain PATRIOT Act authorities, and some
    of them are amended and others are added, like the
    investigative powers.
        I support reauthorizing the PATRIOT Act and I am inclined
    to support adding investigative authorities, but only if it can
    be shown that these new authorities are necessary and would not
    infringe on the constitutional rights of Americans, which is a
    subjective subject.
        I would like to identify several questions that the
    Committee, in my opinion, must address and that I hope the
    witnesses will before reporting the bill. The views of the
    witnesses, as I indicated, will be greatly appreciated.
        The first question concerns the renewal of expiring
    authorities.
        In its May 18 letter to the Committee last week, the
    Department of Justice quoted the President's statement of
    earlier this year, in which he said that ``to protect the
    American people, the Congress must promptly renew all
    provisions of the PATRIOT Act this year.''
        Congress, most certainly, will--to use the President's
    word--``renew'' all expiring provisions of the PATRIOT Act. In
    most cases, I believe that Congress will do that by making
    those provisions permanent. But should a new sunset date, such
    as in 4 years, be set for a few expiring provisions, much as we
    did on earlier ones, in order to ensure they are examined again
    before deciding whether they should be permanent? Does one go
    from zero to permanency or does one put in a time of review?
        For example, the draft bill contains proposals to amend the
    FISA title on orders for business records and other tangible
    things. In light of this, I think Congress extend rather than
    repeal the sunset of Section 215 of the PATRIOT Act on FISA
    Court orders for records and revisit this title in a few years
    to see how these amendments and others in the draft bill have
    worked out.
        The second area I raise is the proposed changes to Section
    215. The Attorney General has told this Committee and the
    Judiciary Committee that the Department of Justice is willing
    to support amendments that clarify Section 215 of the PATRIOT
    Act on several points. One of those matters is judicial review.
        The draft bill that you have is silent on judicial review
    of Section 215 orders for business records and other tangible
    things. There are discussions within the Committee about an
    amendment to carry out the Attorney General's commitment.
        I welcome the views of the witnesses about what is required
    to make the review meaningful. It will be essential to have
    rules that protect national security information. But should
    the statute also ensure that the applicant has access to the
    nonclassified parts of the Government's case and argument or to
    declassified summaries of classified information?
        And what statutory language will be necessary to ensure
    that the applicant is able to raise, and the Court has the
    authority to decide, all appropriate questions of privilege and
    unreasonableness?
        The third area deserving careful attention, in my judgment,
    is that of administrative subpoenas. The draft bill proposes to
    give to the Director of the FBI, or designees down to special
    agents in charge, the power to issue subpoenas for records in
    national security investigations. The Congress frequently
    grants subpoena authority to various agencies, boards, and
    officials who exercise economic or health and safety regulatory
    functions. This is not new. On several recent occasions it has
    given subpoena authority to the Attorney General in law
    enforcement circumstances. I am not aware of any time in which
    Congress has given, directly to the FBI, subpoena authority.
        That doesn't make it right or wrong, but I think that needs
    to be thought about. I would like to know the views of the
    witnesses on a number of questions as we consider providing
    this expanded investigative authority:
        What is the problem with the Department of Justice's and
    the FBI's current authority? The FBI is able to obtain records
    through National Security Letters, which are not subpoenas. If
    subpoenas or orders for records are needed, the FBI is able to
    obtain them--from the FISA Court or by way of grand jury
    subpoenas--through the Department of Justice. Has the
    Department of Justice demonstrated to the Committee that any
    investigations have faltered, even for one critical moment,
    because of the lack of administrative subpoena authority? I
    don't prejudge this; I raise this question for discussion.
        If additional authority is needed, does the draft bill
    provide the right authority and the right protections?
        As with judicial review of Section 215 orders, do the
    provisions on judicial review provide subpoenaed parties with a
    fair opportunity, and provide courts with sufficient authority,
    to challenge and prevent abuse?
        Finally, the Committee would benefit from the views of the
    witnesses on two other notable changes contained in the
    proposed legislation.
        The draft bill calls for an amendment to the definition of
    foreign intelligence information. The amendment has the
    potential to change the scope of FISA surveillance, search, and
    record production authorities. The draft bill also would
    provide for a new title in FISA on mail covers, an
    investigative power currently set forth in regulations but not
    statute.
        I will be interested in the views of our witnesses, and I
    thank the Chairman.
        Chairman Roberts. Our first witness is Ms. Valerie Caproni,
    the General Counsel of the Federal Bureau of Investigation. Ms.
    Caproni, please proceed.
        [The prepared statement of Ms. Caproni follows:]

                     Prepared Statement of Valerie Caproni

        Chairman Roberts, Vice Chaiiman Rockefeller, and Members of the
    Committee, it is my pleasure to appear before you this morning to
    discuss legislation that would reauthorize many important provisions of
    the USA PATRIOT Act and provide important new tools to national
    security investigators. Over the course of the last 7 weeks, the
    Department of Justice has made its case for why each one of the 16 USA
    PATRIOT Act provisions scheduled to sunset at the end of 2005 must be
    made permanent. In numerous hearings as well as classified and
    unclassified briefings for Members of Congress, we have explained how
    the Department has used those authorities contained in the USA PATRIOT
    Act to safeguard the safety and security of the American people. Thanks
    to the Act, we have been able to identify terrorist operatives,
    dismantle terrorist cells, disrupt terrorist plots, and capture
    terrorists before they have been able to strike. Moreover, the record
    demonstrates that we have done this while protecting the privacy rights
    and civil liberties of the American people.
        Many of the most important provisions of the USA PATRIOT Act,
    however, are scheduled to sunset at the end of this year, and the
    Department therefore applauds this Committee for taking up legislation
    that would make permanent those provisions of the Act falling under
    this Committee's jurisdiction. We are also heartened that this
    Committee has come forward with novel and worthwhile ideas for
    strengthening the Department's counterterrorism capabilities. Prior to
    this Committee's April 27, 2005, oversight hearing on the USA PATRIOT
    Act, Attorney General Gonzales and Director Mueller submitted detailed
    written testimony on utility of the provisions of the Act that are
    scheduled to expire at the end of the year, and I will not repeat that
    testimony today.
        Rather, I will simply reiterate the Department's strong support for
    making permanent those USA PATRIOT Act provisions covered by section
    101 of this Committee's draft legislation: sections 203(b), 203(d), and
    218, which toppled the wall separating intelligence investigators from
    law enforcement investigators and have allowed vital information
    sharing of immeasurable value in the war against terrorism; section
    206, which provided national security investigators with the ability to
    obtain certain court-approved roving surveillance orders that had
    previously been available exclusively to criminal investigators;
    section 207, which has increased the efficiency of the Foreign
    Intelligence Surveillance Act (FISA) application process by lengthening
    the maximum duration of FISA electronic surveillance and physical
    search orders targeting certain non-United States persons; section 214,
    which allows national security investigators to utilize court-approved
    pen register or trap and trace devices to obtain information relevant
    to international terrorism or espionage investigations; Section 215,
    which allows national security investigators to obtain court orders
    requesting the production of records relevant to international
    terrorism or espionage investigations; and section 225, which provides
    those individuals and companies assisting in the implementations of
    FISA surveillance orders the same legal immunity granted to those
    assisting in the implementation of criminal investigative wiretaps.\1\
    ---------------------------------------------------------------------------
        \1\ As called for in section 101 of the Committee's draft
    legislation, the Department also supports making permanent section 204,
    which is essentially a technical amendment.
    ---------------------------------------------------------------------------
        The Department also supports making permanent section 6001(a) of
    the Intelligence Reform and Terrorism Prevention Act of 2004. This
    provision, which has come to be known as the ``Lone Wolf '' provision,
    allows the government to gain court approval for FISA surveillance of a
    non-United States person when there is probable cause to believe that
    he or she is engaged in or preparing to engage in international
    terrorism, whether or not he or she is known to be affiliated with a
    larger terrorist group. While this provision is currently scheduled to
    sunset at the end of this year, unfortunately, the threat to the United
    States posed by known or apparent Lone Wolf terrorists will not
    similarly cease on December 31, 2005. Therefore, the Department
    strongly endorses the enactment of section 102 of the Committee's draft
    legislation, which would remove the sunset on the Lone Wolf provision.
        Besides reauthorizing important counterterrorism authorities that
    are scheduled to expire at the end of this year, the Committee's draft
    legislation also contains other vital provisions that will enhance the
    Department's ability to safeguard the American people from our Nation's
    terrorist enemies. Section 216, for example, would extend the maximum
    duration for certain FISA surveillance, search, and pen register orders
    targeting non-United States persons, thus allowing the Department to
    take resources currently devoted to the mechanics of repeatedly
    renewing FISA applications in certain cases--which are considerable--
    and instead allow them to be focused on other investigative activities
    as well as conducting additional oversight of the use of intelligence
    collection authorities by the FBI. Indeed, as the Attorney General
    testified before the Committee, the Department estimates that, had
    these amendments been included in the USA PATRIOT Act, 25,000 attorney
    hours that were devoted by personnel in the Department's Office of
    Intelligence Policy and Review to processing FISA applications would
    already have been saved. That figure, moreover, does not include the
    time that would have been saved by agents and attorneys at the FBI. The
    bipartisan WMD Commission recently agreed that many of the changes
    contained in section 216 would allow the Department to focus its
    attention where it is most needed, and to ensure that adequate
    attention is given to cases implicating the civil liberties of
    Americans. The Department therefore commends the Committee for
    including this important provision in its draft legislation.
        The Department also supports section 212 of the Committee's draft
    legislation, which relates the availability of mail covers in national
    security investigations. Mail covers are concerned with recording
    information appearing on the outside of mail and thus do not implicate
    the reasonable expectation of privacy that exists with respect to the
    contents of sealed mail. Notwithstanding the relatively non-intrusive
    nature of mail covers, however, the ability to obtain the type of
    information they provide promptly and effectively can be of great
    importance in the national security context. For example, if there is
    information indicating that a person may be involved in terrorist or
    terrorism-support activities, information showing that he has been in
    contact by mail with other persons who are known to be involved in
    international terrorism can be critical to advancing and determining
    the priority of the investigation.
        As part of reforms made by Congress following the attacks of
    September 11, 2001, Congress has already acted to strengthen the legal
    procedures for obtaining comparable sender/receiver information in
    relation to electronic mail and telephone communications. Specifically,
    18 U.S.C. Sec. 2709 provides access to electronic communication
    transactional records and telephone toll billing records information,
    on certification by FBI officials at appropriately high supervisory
    levels that the information is relevant to an authorized investigation
    to protect against international terrorism or espionage. But there is
    no comparable statutory specification concerning national security mail
    covers. The current standards governing their availability are defined
    by United States Postal Service regulations, and the determination
    whether they will be conducted in particular cases ultimately depends
    on decisions by Postal Service personnel.
        The FBI is, however, in the best position to assess whether
    investigative activity is needed in particular circumstances to protect
    against international terrorism or espionage, and whether the use of a
    mail cover is warranted in the context of such an investigation. As
    noted, Congress has recognized this point in relation to the
    corresponding information for electronic mail in existing statutory
    provisions. Section 212 would simply extend the same principle and
    similar procedures to information observable on the outside of physical
    mail and would thus enable the FBI to carry out more effectively its
    central mission of protecting Americans from terrorist attacks.
        The Department also welcomes section 213 of the Committee's draft
    legislation, which responds to the President's call to provide for
    administrative subpoena authority in terrorism investigations. In
    combating terrorism, prevention is key: we cannot wait to disrupt
    terrorist acts or to prosecute terrorist crimes after they occur. To
    stay a step ahead of the terrorists, investigators need tools allowing
    them to obtain relevant infollnation as quickly as possible.
        An administrative subpoena is one such tool. An administrative
    subpoena is a request from a government official instructing the
    recipient to provide information relevant to the investigation. This
    type of subpoena authority would allow investigators to obtain relevant
    information quickly in terrorism investigations, where time is often of
    the essence.
        Like any subpoena, administrative subpoenas are subject to judicial
    review. If a recipient refuses to comply with a request for the
    production of records, investigators may not simply seize those
    records; rather, they are required to ask a court to enforce it.
    Furthermore, recipients of administrative subpoenas need not wait for
    investigators to go to court. Instead, they may file their own
    challenges to the legality of the subpoena. But for those recipients
    who wish to assist investigators, administrative subpoenas provide a
    mechanism allowing them to quickly turn over relevant records while at
    the same time shielding themselves from civil liability.
        The constitutionality of such subpoenas is well established, and
    executive branch agencies now have the authority to issue
    administrative subpoenas in more than 300 other areas. Such subpoenas,
    for example, may be issued by the Appalachian Regional Commission,
    Chemical Standard and Hazard Investigation Board, Commodity Futures
    Trading Commission, Consumer Product Safety Commission, and Corporation
    for National Community Service, just to name those departments and
    agencies whose names begin with a letter from A to C. These subpoenas
    are not, however, currently available in terrorism investigations, even
    though the consequences of a terrorist attack could be far more severe
    than those of the many other areas in which Congress has permitted the
    use of administrative subpoenas. Simply put, the Department believes
    that terrorism investigators should have at least the same
    investigative tools currently available to the Department in
    investigations ranging from health care fraud to child abuse. In 2001,
    for example, the Department issued 2,102 administrative subpoenas in
    Federal health care investigations and 1,783 in child abuse and
    exploitation investigations. Administrative subpoenas are a time-tested
    tool, and the Department looks forward to working with the Members of
    the Committee on this important proposal.
        Before concluding my testimony, three other provisions in the
    Committee's draft legislation deserve mention. First, as the Attorney
    General recently disclosed, the Department has recently obtained
    Section 215 orders from the FISA Court to obtain subscriber information
    related to phone numbers captured through court-approved FISA pen
    register devices, just as such information is routinely obtained in
    criminal investigations through 18 U.S.C. Sec. 2703(d) or a grand jury
    subpoena. Section 215 of the Committee's draft legislation, however,
    would allow the Department to instead obtain this information simply
    through a pen register order issued by the FISA Court. The Department
    believes that this proposal would reduce unnecessary paperwork and
    increase the efficiency of the FISA application process without
    impacting the privacy or civil liberties of the American people, and
    the Department is eager to work with the Committee on this initiative.
        Second, the Department supports section 214 of the Committee's
    draft legislation, which would simplify reporting requirements under
    section 108 of FISA. And third, the Department backs the amendment to
    FISA's definition of the term ``agent of a foreign power'' contained in
    section 201 of the draft legislation.
        In closing, the Department welcomes the Committee's effort to
    reauthorize critical intelligence tools contained in the USA PATRIOT
    Act and to provide terrorism investigators with additional tools
    necessary to protect the safety and security of the American people. We
    look forward to working with you closely as this bill makes its way
    through legislative process, and I would be happy to answer any
    questions you may have.

     STATEMENT OF VALERIE CAPRONI, GENERAL COUNSEL, FEDERAL BUREAU
                            OF INVESTIGATION

        Ms. Caproni. Chairman Roberts, Vice Chairman Rockefeller,
    members of the Committee, it's my pleasure to appear before you
    this morning to discuss legislation that would reauthorize many
    important provisions of the USA PATRIOT Act and provide
    important new tools to national security investigators.
        Over the course of the last 7 weeks the Department of
    Justice has made its case for why each one of the 16 USA
    PATRIOT Act provisions scheduled to sunset at the end of 2005
    should be made permanent. I know that time is short this
    morning, so I will keep my oral statement very brief, since
    written testimony has been submitted.
        The Department applauds this Committee for taking up
    legislation that would make permanent those provisions of the
    PATRIOT Act that fall under this Committee's jurisdiction, as
    well as the Lone Wolf provision enacted in section 6001(a) of
    the Intelligence Reform and Terrorism Prevention Act of 2004.
        We are also heartened that this Committee has taken the
    time during these hearings to gain a good understanding of how
    the authorities provided for in the PATRIOT Act work in real
    life. Additionally, you have advanced new ideas for
    strengthening the Department's counterterrorism capabilities,
    for which we are appreciative.
        We look forward to working with you closely on this bill as
    it makes its way through the legislative process, and I would
    be happy to answer any questions that you may have this
    morning.
        Chairman Roberts. Members will be recognized for 5 minutes
    in order of their appearance.
        Ms. Caproni, in June 2004, before the Senate Judiciary
    Committee, Principal Deputy Attorney General Rachel Brand said
    this--and I'm quoting.

              ``In combating terrorism, prevention is key. It is not good
            enough to prosecute terrorist crimes after they occur. For the
            law enforcement officers, responsibility for staying a step
            ahead of the terrorists in these investigations, time is very
            critical. Even a brief delay can be disastrous.''

        Obviously everybody on this committee understands that.

              ``These officers need tools that allow them to obtain
            information and act as quickly as possible. Administrative
            subpoenas are the one tool that will enable investigators to
            avoid any costly delays.''

        Ms. Caproni, is there any real question in regard to the
    constitutionality of administrative subpoenas?
        Ms. Caproni. As a general matter, Chairman, no, there's no
    question that administrative subpoenas as an instrument are
    constitutional. The key is that there needs to be the
    opportunity for meaningful judicial review. So long as there is
    an opportunity for meaningful judicial review, the courts have
    typically upheld the administrative subpoena power.
        Chairman Roberts. We need some examples, if you will. Can
    you give us some examples of how the FBI might use an
    administrative subpoena in an international terrorist
    investigation?
        Ms. Caproni. Sure. I'll give you two. One actually happened
    and the other would be a hypothetical, and I think the one that
    actually happened has been discussed previously in hearings.
        But shortly after 9/11, investigators were attempting to
    run down all leads, and one of their leads took them to a hotel
    somewhere--I think it was in Virginia. They wanted and needed,
    in connection with the investigation, records of who was
    staying at the hotel on a particular night. The hotel was not
    being cooperative. I'm not criticizing the hotel, but they were
    not being cooperative in this regard.
        At that point, they didn't have an AUSA available to issue
    a grand jury subpoena, and even if they had, there wasn't a
    grand jury sitting the next day that the records could be
    returned to. That would be an example where an administrative
    subpoena would have been an excellent tool in order to get the
    hotel to provide the records that the investigators needed.
        To use a hypothetical example, suppose that the
    investigators are aware of a particular individual and they
    have information that the person is about to do something bad--
    commit a terrorist act. And through the course of their
    investigation they know that this person has an EZ Pass device
    on their car, but they don't know where the person is right
    now.
        One set of documents that we would want to investigate
    would be the records of the EZ Pass device, because that may
    well give us a very good lead as to where the car is and where
    the car is going. We could use an administrative subpoena to
    the EZ Pass organization in order to get those records and to
    get them very quickly for purposes of our investigation.
        So those are just two examples. I could probably sit here
    and come up with lots of hypothetical examples of where the
    need to get a record quickly exists and where needing to go to
    an AUSA to get a grand jury subpoena may not be the best way to
    go, and where an NSL is not available. In neither the EZ Pass
    sample nor the hotel example is an NSL an available tool.
        And then the other alternative would be to go for a 215
    order, and that is not going to be done in a matter of hours.
        Chairman Roberts. Now, when Mrs. Brand testified regarding
    terrorism, she said we know that terrorism may be the No. 1
    threat facing the nation, but espionage certainly remains a
    serious concern of the FBI. My question is, would the ability
    to use a constitutionally valid administrative subpoena in
    espionage investigations also provide the same kind of timely
    access that you are asking for to this kind of very crucial
    information?
        Ms. Caproni. Administrative subpoenas are always going to
    be able to provide us with quick access to information. It at
    least is a tool that we can use to serve on the party that
    holds the records. It may not get us the records because there
    could be resistance, but it is at least the tool to start the
    process for getting the records.
        As this Committee knows probably beyond all other
    committees in Congress, certainly in the Senate, espionage
    cases are extremely important. Through our history we have seen
    incredible damage done to the national security through
    espionage, both by virtue of our assets overseas being
    compromised as well as secrets that we hold within the
    government being compromised to other countries.
        And for those reasons espionage cases are extremely
    important. So anything that we can do in order to get records
    in connection with those investigations quickly is important to
    the FBI.
        Chairman Roberts. I have one other observation, but in the
    interest of time and with my time running out, I recognize
    Senator Rockefeller.
        Vice Chairman Rockefeller. I'm going to continue a little
    bit on the same track but put it differently. Do you have any
    examples of where FBI investigations in fact faltered even for
    a moment because of the lack of administrative subpoena
    authority? Can you give an example?
        Ms. Caproni. I think the example with the hotel was one
    where it faltered for a while. We ultimately were able to get
    the records, and in that case it did not result in harm to the
    national security.
        But it could have. And that's the problem with a lot of
    these tools; is we need the records, we need them quickly. Can
    we show you that because we didn't get the record a bomb went
    off? We cannot.
        Vice Chairman Rockefeller. And was that a period of several
    hours?
        Ms. Caproni. I think it was several hours; that's correct.
        Vice Chairman Rockefeller. That can make a difference.
        Ms. Caproni. It certainly can make a difference. It doesn't
    always, but it certainly can make a difference.
        Vice Chairman Rockefeller. Again, how many statutes--and,
    if you can, name some of them--confer administrative subpoena
    authority on the FBI Director.
        Ms. Caproni. There are a number of them. The ones that
    immediately come to mind and the ones that are probably used
    most often are the ones that provide administrative subpoena in
    narcotics cases and administrative subpoenas in health care
    fraud and child pornography cases. Those are the ones that are
    used the most.
        Vice Chairman Rockefeller. And that we've discussed in the
    committee. I thank you for that.
        The draft bill provides for administrative subpoenas for
    records. It does not provide to administrative subpoenas for
    testimony. Does the administration agree that the
    administrative subpoena authority should be limited to records
    and should not include testimony?
        Ms. Caproni. I think we're prepared to discuss that. I
    think as a realistic matter during the course of national
    security investigations and terrorism investigations the
    likelihood for needing testimony is low. Whether it's
    nonexistent, I'm not prepared to say that. But it is unlikely.
        Again, the real need for speed typically resolves around
    the need for documents. If the FBI agents need to talk to
    someone, they will make efforts to talk to them. If they need
    to compel them to come forward, which an administrative
    subpoena for testimony would, that would be a different issue.
    And up to now I have not heard a lot of complaints that that's
    what the agents need in order to further the investigation and
    they don't have that authority.
        Again, there's always the possibility and the available,
    though not immediately, to get a grand jury subpoena and to
    compel the person to appear before the grand jury to provide
    testimony.
        Vice Chairman Rockefeller. I'm right, aren't I, in
    suggesting that National Security Letters do not have anything
    attached to them that gets you a subpoena?
        Ms. Caproni. That's correct. The National Security Letter
    is a request for documents.
        Vice Chairman Rockefeller. So it would have to be the
    administrative subpoena authority or else it wouldn't work.
        Ms. Caproni. To get the documents through compulsion, the
    administrative subpoena compels the party who receives the
    subpoena to provide us with the documents. The National
    Security Letter requests the documents.
        Vice Chairman Rockefeller. My final question is, what
    current problems exist for the FBI and the Postal Service in
    the requesting, receiving and carrying out of mail cover
    authorities, and how would establishing these authorities in
    statute rectify those problems?
        Ms. Caproni. I don't want to say that there are problems
    between us and the Postal Service. We have a long history with
    the Postal Service which is a warm and cooperative
    relationship. Postal Inspectors sit on the Joint Terrorism Task
    Forces and we work very well together with the postal
    authorities.
        However, the current regime for mail covers, as you've
    noted, is a regulatory regime. And under the current regs the
    requirement is that a request for a national security mail
    cover has to come from a high FBI headquarters official, and
    there are a limited number of individuals within the Postal
    Inspection Service that are then authorized to actually execute
    the mail cover.
        Further, as it is written, it gives to the Postal Service
    discretion to decide whether or not to actually execute the
    mail cover. As a philosophical or jurisprudential matter, it is
    odd, to say the least, that the FBI is the agency that is
    charged with protecting the country from terrorist attacks and
    from spies, and yet our ability to use this very basic tool of
    a mail cover is charged to the discretion of another agency.
        Vice Chairman Rockefeller. Thank you. In my remaining 14
    seconds, in the last year how many National Security Letter
    requests have not been complied with, that you can think of?
        Ms. Caproni. Well, one ended up in litigation, and that
    National Security Letter has not been complied with.
        Vice Chairman Rockefeller. So one?
        Ms. Caproni. I know of one. I do not know the number of how
    many have not been complied with. I know that there are times
    when we have less than quick compliance from the party on whom
    have served the National Security Letter on.
        Vice Chairman Rockefeller. I thank you, and I thank the
    Chairman.
        Chairman Roberts. So basically your answer is that it is
    more subjective in terms of the time required. I don't know as
    we could put a criteria on that in terms of a timeframe, but
    you might want to get back to the committee with a further
    statement on that, as opposed to a particular incident or the
    number from the timeframe. Of course you already spoke to that
    prior to that, but it might be a little difficult to say 6 or 7
    of 27, for that matter, in regards to the time.
        Ms. Caproni. We will try to get the Committee information
    in terms of the speed with which we get compliance with
    National Security Letters.
        Chairman Roberts. I think that would be helpful to Senator
    Rockefeller's question.
        Senator Wyden.
        Senator Wyden. Thank you, Mr. Chairman.
        Mr. Chairman, first a little bit of business. I would hope,
    Mr. Chairman, that Thursday's markup would be held in an open
    session. It seems to me that there is so much that we have to
    do in closed session because of the implications for national
    security that that's appropriate, but I don't think that's the
    case here.
        I think this is a matter of great public concern, and I
    just wanted to weigh in and say I hope that Thursday's session
    can be done in public.
        Also, Mr. Chairman, we still have not heard from the FBI on
    the matter of the so-called discrete inquiries that are made of
    libraries. I've asked for this information more than a month
    ago, and it certainly causes me to wonder exactly how many of
    these so-called discrete inquiries are made. And I've been told
    that we can't even get a timetable when the department will get
    us that information. I just want to say I remain concerned on
    it.
        Chairman Roberts. Well, as the Senator knows, we are
    backing him up on his questions for the record, and I will take
    his suggestion for an open meeting under advisement.
        We have had now three open meetings, but I intend to ask
    questions, event-oriented, that deal with classified
    information from the intelligence community on how the PATRIOT
    Act actually works. So we're going to have to go through that
    and make a determination. My off-the-cuff commentary is that
    that might be very difficult to do.
        But I thank the Senator for his suggestion and he is
    recognized for 5 minutes.
        Senator Wyden. I thank the Chair for his thoughtfulness,
    and I do appreciate your consideration.
        It seems to me, Ms. Caproni, the heart of your case is that
    you feel that it is now time to intertwine the criminal justice
    system and the intelligence system. In effect, what's used for
    criminal investigations should be used for foreign intelligence
    operations. And you are certainly blurring the lines here in a
    way that concerns me.
        Foreign intelligence investigations have to be much more
    secretive. They don't require evidence that a crime has been
    committed. They are broader. Tell me what the argument is for
    making this dramatic shift now in public policy and sort of
    intertwining these two areas the way you do and essentially
    giving us the argument that what you use in a criminal
    investigation now should be used in a foreign intelligence
    investigation.
        Ms. Caproni. Senator, I think I have a couple of different
    answers to that. First off, I don't think there's ever been a
    bright line nor should there have ever been a bright line
    between criminal on the one side and foreign intelligence/
    national security investigations on the other side. That to
    some extent, as the FISA Court of Review said, is a false
    dichotomy.
        The reality is that many of the things that we investigate
    as foreign intelligence matters are also criminal conduct.
    Furthermore, individuals who are agents of a foreign power
    commit crimes. So there is inevitably a cross-over between the
    two notions of a foreign intelligence investigation and a
    criminal investigation.
        The second relates to the use of tools. I don't think we're
    suggesting that there should be a cross-over of the tools. I
    think what we're suggesting is that administrative subpoena
    power has been available in criminal investigations for a long
    time, and it's available in lots of different sorts of criminal
    investigation. It is a great tool for investigators. It has not
    supplanted other tools. The reality is that grand jury
    subpoenas are still used in narcotics cases, in health care
    fraud cases, and in child pornography cases, though
    administrative subpoenas are also used in the same
    investigations.
        Criminal investigators have the opportunity to decide what
    is the best tool in this particular incident to get the
    materials that I need for this investigation. It's anomalous
    and odd that in national security investigations, where we're
    trying to protect the national security of the country, that
    same tool and that same ability for the investigators to look
    at the situation and say what's the best tool for me to use
    here--is the best tool for me to use to walk down the street to
    my friendly AUSA and say, ``Hey, let's open a grand jury
    investigation on this,'' or is the best tool to use is to come
    to headquarters and say we need a 215 order, or is another tool
    a better tool.
        We believe--and we have been saying this now for several
    years--that an administrative subpoena is a tool that we need
    in national security investigations.
        Senator Wyden. As I read the administrative subpoena
    proposal that you've made, essentially without going to a
    judge, an FBI field office head can basically go and ask
    anybody for anything, just asserting that it's constitutional
    and relevant to an investigation. Tell me how you would differ
    in terms of your assessment of it?
        I mean, I can see somebody in a regional office showing up
    at a hospital, saying I want all the records of the patients.
    The hospital administrator could hand them over unless later on
    he wanted to challenge it in court. Tell me where the checks
    are in this kind of process.
        Ms. Caproni. The checks, Senator, are the same checks that
    exist in other processes.
        Senator Wyden. After the fact.
        Ms. Caproni. Well, with an administrative subpoena the
    check is both after the fact from a judicial standpoint but
    there is a before-the-fact check as well, which is agents are
    bound by the Attorney General guidelines in conducting their
    investigations. There is an attorney in every field office in
    this country who is responsible for making sure that agents
    don't go off on wild tears.
        To legislate, respectfully, from the position of some agent
    somewhere may screw up is not how we would like to see you
    legislate. We put checks in place. There are judicial checks in
    place. This committee exercises oversight and gets to see how
    the FBI uses the tools that we have been provided.
        We believe that from an internal perspective it would be--I
    can assure you that the Director would have some harsh words
    for the SAC who authorized an agent to serve an administrative
    subpoena for all records of a hospital in connection with a
    national security investigation. I'm not saying it's not
    possible that that would be the correct way to go, but I can
    assure you that we would have wanted to hear about it at
    headquarters and talked through those issues.
        So I think that from the standpoint of the FBI as an
    organization that is steeped in the need to comply with the
    Constitution, we need to respect the privacy rights of
    individuals, I don't think an administrative subpoena from this
    standpoint for those investigations is any more subject to
    abuse than the administrative subpoenas in the other fields
    where we have the ability to serve administrative subpoenas.
        Senator Wyden. Thank you, Mr. Chairman.
        Chairman Roberts. Senator Bond.
        Senator Bond. Thank you, Mr. Chairman.
        Ms. Caproni, I agree with you that certainly while
    narcotics violations, health care fraud and child pornography
    are critically important issues, national security should at
    least be treated with the same degree of power for the FBI
    agents.
        You have said that the agents are bound by the Attorney
    General's guidelines and if somebody screws up there will be
    harsh words. Now I'm not sure harsh words will satisfy people.
    What other remedies are offending agents, who get off the
    reservation, likely to face and what is the sanction against
    some agent who may go on an unwarrantedly broad fishing
    expedition?
        Ms. Caproni. Well, again I think in the first instance we
    try to prevent those unwarranted fishing expeditions.
        Senator Bond. Right.
        Ms. Caproni. Along those lines, though, to the extent we
    gathered up a bunch of information on individuals that had
    nothing to do with the national security investigation, that
    information would be clamped down. It wouldn't be generally
    available to the agents to simply go pawing through.
        An agent who intentionally engages in misconduct is subject
    to discipline. They are subject to being investigated. They are
    subject to being suspended and being fired if they
    intentionally engage in misconduct during the course of an
    investigation.
        Senator Bond. That's the point I wanted to raise.
        With respect to administrative procedures, you've touched
    on it. Can you go through for us the other safeguards that are
    in place to protect affected U.S. citizens and legal aliens in
    the issuance? What are the panoply of protections to safeguard
    their constitutional rights?
        Ms. Caproni. We'll start with the way the bill works right
    now. An administrative subpoena would have to be authorized by
    the special agent in charge of the individual office. That
    means, as a practical matter, it has to come up the chain of
    the FBI within the field office, which means that an attorney
    would look at it, and they would review it to determine whether
    or not it is in compliance with the Attorney General guidelines
    for national security investigations. That would be the first
    check.
        The second check would be on the individual who receives
    the subpoena. A hospital who receives a subpoena for all of
    their health records is likely to move to quash it.
        Senator Bond. So there is a judicial remedy before they
    comply? They do have access to the courts to challenge the
    subpoena if the recipient of the subpoena views it as unduly
    broad?
        Ms. Caproni. Correct. Under the bill that this Committee is
    considering, the recipient could move to quash or move to
    modify.
        Senator Bond. How frequently does that happen in other
    settings? In what percentage of the cases are those
    administrative subpoenas which the FBI is now empowered to
    issue challenged in court and what is the success rate of the
    challenge?
        Ms. Caproni. Senator, I don't have those statistics, but it
    is a rare motion to quash. But that's not surprising. Motions
    to quash grand jury subpoenas are also rare. The reality is,
    these tools are typically served on third party custodians.
    They will move to quash if you are going to shut them down in
    order for them to comply with the subpoena.
        But as a general matter, investigators narrowly tailor
    their requests. Investigators don't like to have to paw through
    lots of irrelevant documents. So with a narrowly tailored
    request to a third party document custodian, the percentage of
    custodians who move to quash is very low.
        Senator Bond. Do they succeed very often?
        Ms. Caproni. Generally not.
        Senator Bond. All right. You have mentioned the hotel
    example. Are there other examples that you can tell us in an
    open hearing or are there examples that you can describe to us
    in a closed hearing where the enhanced authorities, the broader
    enhanced authorities, would have been useful in the post-9/11
    terrorist investigation? Any other things that come to mind or
    are there things that you can share with us with a different
    setting?
        Ms. Caproni. I don't think there are any others that I can
    share in this setting. Certainly any time the materials that we
    need were stuff that was not available through a National
    Security Letter, so that we had to resort to other tools, any
    of those examples would be good examples of where an
    administrative subpoena would have been helpful.
        Senator Bond. And we may have the opportunity to learn more
    about that in another setting.
        Just very quickly, the modification in Title II, section
    211, the addition of the explicit relevance requirement, how
    could that enhance your authorities?
        Ms. Caproni. Senator, I don't think it enhances our
    authority, but it certainly clarifies the law in a way that
    some have objected to. So we would support the notion of
    clarifying that the standard to be used in a 215 order is that
    the materials are relevant to a national security
    investigation.
        Senator Bond. Thank you, Mr. Chairman.
        Chairman Roberts. Senator Feinstein.
        Senator Feinstein. Thanks very much, Mr. Chairman.
        I'd ask that my full statement be incorporated in the
    record.
        Chairman Roberts. Without objection, it is so order.
        Senator Feinstein. Thank you, Mr. Chairman.
        [The prepared statement of Senator Feinstein follows:]

                  Prepared Statement of Hon. Dianne Feinstein

        I thank you for holding this open hearing to discuss the
    Committee's draft legislation to reauthorize and amend the PATRIOT Act
    and to provide the executive branch with new authorities to use in the
    war on terror. It would be my preference to hold our mark-up on this
    legislation in an open forum as well and urge you to consider that
    course of action.
        The PATRIOT Act was enacted just 45 days after the September 11,
    2001 attacks after less than 1 month of Congressional debate. Congress
    moved quickly to provide new tools for prosecuting the war on terror,
    fearing that more attacks might come at any moment. As a safeguard, we
    built in a mechanism to force review and reconsideration of several
    sunset provisions.
        After careful review on this Committee and on the Judiciary
    Committee, I am now prepared to support the reauthorization of the
    intelligence-related PATRIOT Act provisions. In reaching this position,
    I have reviewed both the implementation of the authorities by the
    Department of Justice and the FBI and the allegations of misuse. I have
    found that the implementation has been reasonable in scope and tailored
    to the needs of our intelligence and law enforcement communities. Some
    have stated that it is only because of the sunsets placed in the
    PATRIOT Act that the FBI has tread lightly for now, and that abuses are
    more likely to occur in the future. For this reason, continued
    Congressional oversight will remain critically important.
        I also support several provisions included in Title II of today's
    legislation, such as the ones extending the duration of surveillance
    orders and reporting requirements to Congress in order to reduce
    bureaucratic hurdles at the Department of Justice. It is my hope that
    this will allow Justice and FBI employees to spend more time conducting
    intelligence investigations than passing papers through the
    bureaucracy. Perhaps that can be a first step in much larger changes
    that are needed to turn the FBI into a true intelligence agency, and
    not a place recently described by the Inspector General as one where
    professional analysts are treated like clerical staff.
        Finally, I support the legislation's language to add protections to
    Section 215 of the PATRIOT Act (the Business Records section). This
    section adds an explicit ``relevance'' standard to the law; provides
    useful relief from the nondisclosure provision without risking
    intelligence operations; requires minimization procedures to protect US
    Persons; and recognizes the sensitivity of library and bookseller
    records, gun purchases, health information, and tax forms.
        I thank you, Mr. Chairman, for including these changes to the
    Business Records section. They respond to the concerns this committee
    has heard that the language was too broad, but they won't get in the
    way of conducting effective counterterrorism investigations. I believe
    this is the model that the Congress should follow: reviewing the
    implementation of existing law, addressing legitimate concerns, and
    reviewing requests for additional authorities.
        In this light, I am concerned with two sections of this legislation
    and hope they will be removed or modified at mark-up.
        Section 203 adds criminal prosecution to the definition of foreign
    intelligence. Supporters of this section say this language is necessary
    to remove forever the so-called ``wall'' between intelligence and law
    enforcement. In fact, this provision goes much further than that. This
    language would, in effect, eliminate the much-needed distinction
    between intelligence conducted under FISA and traditional law
    enforcement, by making law enforcement a subset of foreign
    intelligence.
        We have heard time and time again that information sought for
    either intelligence or law enforcement purposes have to be shared
    quickly and fully to the other. Removing the wall between the two, both
    when requesting investigative authorities under FISA and in sharing
    information so gathered, was the most important achievement of the
    PATRIOT Act, particularly under Section 203.
        The Act, however, recognized that FISA needs to remain rooted in
    the intelligence world and should not be used exclusively as a law
    enforcement tool. Intelligence is a prospective effort where any
    information possibly available is collected and analyzed to enhance our
    understanding of possible future actions. Criminal prosecution is, by
    definition, a backwards-looking action, where law enforcement seeks
    information in connection with one or more specific events. In
    hindsight, it is possible to say what is and what is not relevant to an
    investigation. Despite arguments to the contrary, there is no abiding
    reason why law enforcement and intelligence investigations should
    proceed under the same governing authorities. There is no need to lump
    ``criminal prosecution'' into the definition of foreign intelligence as
    this legislation would do.
        In 2001, Congress struggled with the right formulation to
    specifically allow intelligence and law enforcement personnel to be
    involved in the same investigation. To that end, I worked with Attorney
    General Ashcroft to write the ``significant standard'' language,
    incorporated in the PATRIOT Act as Section 218. This language replaced
    the ``primary standard'' that the Justice Department had used in
    practice for so long. The new standard allows the FBI to use FISA
    authorities for law enforcement, including prosecution, so long as
    there is a ``significant'' intelligence purpose of the investigation.
    The FISA Court of Review commented on this specific point and found
    that this language is the only thing stopping the FBI from pursuing
    FISA warrants solely for law enforcement matters involving
    international terrorism. I believe this is a good thing, and thus
    oppose section 203 of today's legislation, which would remove this
    boundary between intelligence and law enforcement.
        Since enactment of the ``significant purpose'' test I have heard
    not a single argument from either our law enforcement or intelligence
    elements that this fix did not solve the problem. In fact, Attorney
    General Gonzales, in his April 5, 2005 remarks on the Patriot Act had
    this to say about the current law: ``Section 218 of the Act, in
    particular, helped to tear down the ``wall'' by eliminating the
    ``primary purpose'' requirement under FISA and replacing it with a
    ``significant purpose'' test. Under section 218, the Department may now
    conduct FISA surveillance or searches if foreign-intelligence gathering
    is a ``significant purpose'' of the surveillance or search. As a
    result, courts no longer need to compare the relative weight of the
    ``foreign intelligence'' and ``law enforcement'' purposes of a proposed
    surveillance or search and determine which is the primary purpose; they
    simply need to determine whether a significant purpose of the
    surveillance is to obtain foreign intelligence. The consequence is that
    intelligence and law enforcement personnel may share information much
    more freely without fear that such coordination will undermine the
    Department's ability to continue to gain authorization for surveillance
    under FISA.''
        I note that in its recent statement on the pending legislation, the
    Department of Justice supported several provisions, but provided no
    support for this section.
        Second, I am troubled by the addition of administrative subpoenas
    in this legislation. I want to make clear that I am not opposed to
    providing the FBI and the rest of the Intelligence Community with new
    tools. But we should do so only where there is a clear and compelling
    need and suitable checks on investigative authority.
        To be sure, the Bush Administration has requested administrative
    subpoena authority for counterterrorism many times. But that request
    has been for subpoena authority for the law enforcement side of the
    FBI, not under FISA. In fact, Director Mueller has repeatedly told me,
    and the Judiciary Committee, that his highest priority legislation was
    a Title 18 administrative subpoena for terrorism cases. I have heard no
    similar requests, and certainly neither the Director of Central
    Intelligence or his successor, the Director of National Intelligence,
    for this remarkable expansion of the intelligence powers granted to the
    FBI.
        It is one thing to have administrative subpoena in the criminal or
    regulatory context--in fact, supporters of the criminal administrative
    subpoena have often argued that there are more than 300 other such
    subpoena now authorized by law. It is entirely different to add a
    sweeping new power to the intelligence arsenal.
        Let me be clear--if this provision is passed into law, all of our
    discussion about Section 215 will be rendered superfluous, as the
    administrative subpoena--with no judicial supervision of its issuance--
    would replace the FISA business records. When the Attorney General
    recently told this Committee that he supported adding the ``relevance''
    language to Section 215, I cannot imagine that he took this position
    with the knowledge or expectation that we would soon pass a separate
    law making Section 215 obsolete.
        Section 213 of this bill would allow FBI officials at the field
    office level the authority to subpoena any ``records or other materials
    that are relevant to an authorized investigation. . . .'' This
    authority could be delegated to a Special Agent in Charge, with no
    prior approvals from any subordinate to the Attorney General, from any
    court, or even by a prosecutor as is done under a grand jury subpoena
    arrangement.
        The only case where such a sweeping authority could be justified is
    where a field agent needs intelligence information so quickly that a
    FISA Court order, National Security Letter, or grand jury subpoena were
    impossible to obtain. Yet this legislation does not limit the use of
    administrative subpoenas to such exigent circumstances. Indeed, as I
    have said, this authority would have the effect of making FISA business
    records requests obsolete.
        The idea of replacing the most controversial authority in the
    PATRIOT Act with one that doesn't even contain prior approval and can
    be used in basically any national security investigation is not
    responsible lawmaking. I urge that this committee use the mark-up to
    address some of these concerns.

        Senator Feinstein. Thank you, Mr. Chairman. The reason is
    because I express my concern with two sections. One of them is
    what is happening today on the administrative subpoena. And I'd
    like to speak as a member of the Judiciary Committee.
        We had a hearing last year in my subcommittee, Technology
    and Terrorism, on Senator Kyl's bill. At that time Mr. Mueller
    asked for an administrative subpoena under Title 18, a criminal
    administrative subpoena, not under Title 50. As I understand
    it, the FBI has always maintained that the Title 18 criminal
    subpoena, not a FISA administrative subpoena, was its top
    legislative priority in this area. Am I correct?
        Ms. Caproni. Senator, I believe the FBI's priority is for
    an administrative subpoena. The issue of whether it's under
    Title 50 or Title 18 I have not personally discussed with
    Director Mueller, but I believe we would like administrative
    subpoena authority.
        Senator Feinstein. Well, let me just say that's my
    recollection as a member of the Judiciary Committee, that it
    has always been Title 18. And I'm very concerned about this, so
    I just want to say I'm drafting an amendment which would
    replace section 213 of Senator Roberts' bill with a provision
    to give the FBI the criminal administrative subpoena authority
    it requested, with two limitations. The first is a requirement
    that the FBI only use this new power in circumstances for which
    it is needed, where there are emergency circumstances which
    prevent the use of existing mechanisms, such as the one you
    just described, and the existing mechanism, of course, would be
    a grand jury subpoena.
        And second, a requirement that a Department of Justice
    Assistant U.S. Attorney sign off on this subpoena, perhaps only
    via telephone, but at least there is some check and balance on
    the use of that subpoena.
        I'd like you to take that back to the FBI. I'd like to get
    an opinion of it. But I'm very concerned. This is the first
    time I have ever heard the request for a Title 50
    administrative subpoena, and if there is such a request
    anywhere in writing by the FBI, I'd like to have it, if I
    might.
        Ms. Caproni. Senator, again the FBI has been very
    consistent that we would like administrative subpoena
    authority. The issue of whether it's in Title 18 or Title 50 I
    don't express any opinion on.
        I am prepared to address the issue of whether there should
    be an emergency requirement or the requirement of an AUSA
    signoff on it.
        Senator Feinstein. If you would, that would be great.
        Ms. Caproni. As you know, those requirements do not exist
    in any other administrative subpoena that we currently have.
    And the reality is that--again to go back to my answer I
    believe to Senator Wyden--it's anomalous to have different
    standards that are applied when the FBI is conducting national
    security investigations, the most important investigations that
    we conduct, that are not present in routine criminal
    investigations.
        In terms of an AUSA signoff, I love AUSAs--some of my best
    friends are AUSAs, I'm a former AUSA. So I'm not denigrating
    AUSAs. They are great people. However, it seems to me that
    asking for an AUSA to sign off takes us back to the world where
    the answer to terrorism was criminal prosecution. That's how
    you need to think. You need to think about criminal
    prosecution. I think it subtly sends the message to the agents
    who are conducting these investigations that a criminal
    prosecution is necessarily part of the answer here.
        Again, AUSAs are great people, but it's sort of like going
    to a surgeon for a tummy ache. They're going to take out your
    appendix. They cut. AUSAs prosecute.
        Senator Feinstein. My time is almost up. Let me just
    indicate, Mr. Chairman, what my concern is.
        This is a very broad power. When used directly, the
    individual would know about it. In this case, they would have
    no recourse to court. If it's used in a secondary way, not
    affecting the individual, such as you go to somewhere to
    collect data that the individual would not know, there really
    is no check on the power.
        So you're really giving this subpoena carte blanche to go
    out on any kind of fishing expedition, with no necessary
    stricture that determines exactly how it can be used. And
    that's why I think some form of signoff, just as judges are
    duty judges and they sign off on certain things, it seems to me
    that the U.S. Attorney should provide that kind of a signoff,
    just as a guarantee. Because this is a new area.
        Chairman Roberts. I thank the Senator for her views. We are
    under a rather strict time limit.
        Senator Hagel.
        Senator Hagel. Mr. Chairman, thank you.
        Ms. Caproni, as you have noted generally this morning,
    administrative subpoenas have been used and are being used. And
    I'd like to ask a question regarding how the administrative
    subpoena function in the PATRIOT Act differs, if it does, from
    what the FBI has used in the past regarding using the
    administrative subpoenas for drug enforcement.
        Ms. Caproni. I'm sorry, you mean the administrative
    subpoena proposal that's in this bill?
        Senator Hagel. Yes, is there a difference? Would there be a
    difference?
        Ms. Caproni. I think it would work essentially the same
    way, depending on how it gets delegated down into the field.
        Senator Hagel. How far down into the field--special agent
    in charge? Do you think that's appropriate, to push it down
    that far?
        Ms. Caproni. Yes, I think it is appropriate to push it down
    that far, and in fact, if it wasn't pushed down to the special
    agents in charge of the field offices, its benefit to the
    Bureau will be limited. The advantage of having it pushed to
    the field office level is that you have, one, a high-level FBI
    agent, the special agent in charge, who has to sign off on it.
    So you have accountability and you have someone who's charged
    with running an office and is a member of the senior executive
    service. They have come a long way within the Bureau and they
    are charged with making sure that we conduct our investigations
    appropriately.
        If it's not delegated down to the special agent in charge
    and everybody has to come back to headquarters, that again will
    slow things down and it will make the tool not nearly as
    effective to the agent in the field as it is in the other sorts
    of investigations--again, narcotics, health care and child
    pornography.
        Senator Hagel. In order to issue these subpoenas, the
    desired information must be relevant to the investigation. Can
    you explain why the relevance standard is particularly
    appropriate in regard to the subpoenas that we're talking about
    today and how that works? What are the limitations and
    difficulties you've had in the past, in drug enforcement, for
    example?
        Ms. Caproni. Well, in drug enforcement that would be the
    same standard. Are the materials that you're seeking relevant
    to the investigation you are conducting? Relevance is a
    standard that agents understand. They are taught from the time
    they come into Quantico that they need evidence that is
    relevant, that it tends to prove something that's important to
    the investigation. So it's a concept that's familiar to them.
        In certain prior provisions that were modified as part of
    the PATRIOT Act there was a higher standard that had to be met
    for certain tools. National Security Letters, for example. It
    used to be that you had to show specific and articulable facts
    that the records were relevant to an agent of a foreign power.
    That essentially meant that you needed to know where you were
    going before you got the basic tools to determine whether or
    not the person was an agent of a foreign power.
        The PATRIOT Act reduced that to a relevance standard across
    all the tools, which we think is appropriate. Again, it's a
    standard that everyone understands. It means that you cannot
    simply go on a wild fishing expedition for matters that have
    nothing to do with the investigation that you're conducting.
        Senator Hagel. If I could go back to a general question on
    administrative subpoenas, you have provided this Committee here
    in the last few minutes with some specific examples of uses.
        Focus on the potential use of this administrative subpoena
    for dealing with terrorists. Give the Committee a couple of
    examples of how you could see this would be particularly
    important in dealing with terrorists.
        Ms. Caproni. The example I started with would be, we know
    the terrorist or we believe the terrorist is about to do
    something bad. We don't know exactly where he is. We want his
    Easy Pass records. That would be a record that is not
    obtainable by an NSL and to get it through a 215 order would
    require coming to Washington, writing up fairly detailed papers
    in order to get it.
        Senator Hagel. So timeliness would be one dynamic of this.
        Ms. Caproni. Timeliness is a huge dynamic. I think the
    other dynamic is that as investigators work there is something
    to be said about being able to stand in front of the person,
    ask for the records. When the person says no, either I can't
    give them to you or I won't give them to you, to be able to
    come back promptly and say here's the instrument that requires
    you to give them to me, if you still don't want to give them to
    me, you have to go to court.
        But that dynamic of being able to keep the investigation
    moving forward and get the documents and the materials that the
    investigator needs to continue the investigation are important.
    Those are important aspects of an administrative subpoena.
        Senator Hagel. Mr. Chairman, thank you.
        Chairman Roberts. Senator Hatch.
        Senator Hatch. Well, thank you, Mr. Chairman. Welcome to
    the Committee. We're happy to have you here again, and we
    appreciate the testimony you give because of your experience
    and background, just to mention a few things.
        Now, as I understand it, as one who worked very strongly on
    the PATRIOT Act, it's been used very efficiently and well by
    the FBI, the Justice Department and other law enforcement
    personnel in protecting us ever since 9/11. Isn't it true that
    before the PATRIOT Act we were not up to speed with regard to
    the laws regarding international terrorism?
        Ms. Caproni. Senator, it's certainly the case that there
    were many of our tools that were used in national security
    investigations that had not been updated to recognize the
    reality of a world where Internet communication was a very
    common way that individuals communicate, that tradecraft
    required agents of foreign powers to move and change telephones
    very quickly. Those sorts of tools were definitely in need of
    update, and the PATRIOT Act did that.
        Senator Hatch. How many layers of FBI hierarchy look at the
    use of administrative subpoenas before agents in the field use
    them?
        Ms. Caproni. If this bill passes, as it's laid out, it
    would certainly go from a line agent to a supervisor, probably
    to an assistant special agent in charge, through the chief
    division counsel, who is a lawyer, to the special agent in
    charge.
        Senator Hatch. So there are lots of checks.
        Ms. Caproni. There are lots of checks.
        Senator Hatch. A lot more checks then you have in general
    anticrime laws where the administrative subpoena is in use,
    right?
        Ms. Caproni. That's correct. It is quite easy for an agent
    to issue an administrative subpoena. Again, this bill requires
    it to go up to the special agent in charge. And I would note
    that that is more review certainly in some offices than a grand
    jury subpoena gets.
        When I was a brand new AUSA, I could issue a grand jury
    subpoena by reaching in my drawer and typing it up, and I was
    still wet behind the ears.
        Senator Hatch. In section 211 and 213 of the proposed bill
    there are significant provisions for congressional oversight,
    including specific reporting for libraries, book sellers and
    others. Are there examples of terrorists using libraries for
    these activities?
        Ms. Caproni. There are certainly examples of where spies
    have used computers that are located within libraries in order
    to engage in communication activities. I think we've probably
    provided another example of where an individual, who I guess
    could be considered a terrorist, posted a bomb threat on an FBI
    web site. That individual did that from a library computer.
        So libraries are certainly used in the course of terrorist
    conduct.
        Senator Hatch. And, of course, that illustration of the
    Uni-
    bomber is one that's often used as well.
        Ms. Caproni. That's correct. The Unibomber, the book that
    he received through his local library was certainly a valuable
    piece of evidence tending to point to him as being the
    Unibomber during the period of time when they were trying to
    put together a search warrant.
        Senator Hatch. So looking in libraries is not a relatively
    new thing.
        Ms. Caproni. It's definitely not relatively new, but I
    would also say that the FBI going to libraries to get records
    is an extremely rare thing. It is not something we do every
    day. It is not common. We've tried, in response to questions
    from this committee as well as from other committees, to try to
    figure out how often and what were the circumstances that we
    received materials from libraries. I know Senator Wyden has an
    outstanding question for the record concerning the FBI's
    appearance in libraries to get materials.
        We don't track records that way. We don't track conduct
    that way, although if this bill was passed and we issue
    subpoenas to libraries it will certainly be something that we
    would have to keep track of. But it's not something that we do
    every day--very different from a phone company or an ISP, where
    we regularly receive records from them.
        Senator Hatch. In fact, you've hardly used that power so
    far.
        Ms. Caproni. The 215 power?
        Senator Hatch. Right.
        Ms. Caproni. That's correct. The AG declassified the
    numbers, and it was less than 40.
        Senator Hatch. OK. I want the FBI to get the information
    they need. I also want people to feel secure in conducting
    legal business in the country. Now, how do you assure us that
    administrative subpoena powers will stay in check?
        Ms. Caproni. Again, as this bill has set out, there are
    several things that would keep this power in check. One is that
    we are still bound by the Attorney General guidelines. The
    subpoenas can only be issued if they are relevant to an
    investigation. The party receiving the subpoena, just like the
    recipient of any other administrative subpoena that the
    government has the power to issue, has the power to go to court
    to move to quash it. That is, the ultimate power lies in the
    hand of the recipient. So there's the possibility of judicial
    review.
        This bill asks for extensive reporting of the use of it. So
    this committee and the other intelligence committee, if this
    bill passes, would have the ability to provide oversight.
        Senator Hatch. Thank you. Thank you, Mr. Chairman.
        Chairman Roberts. Senator Levin.
        Senator Levin. Thank you, Mr. Chairman.
        You indicated in response to Senator Rockefeller that there
    was only one case known to you where a National Security Letter
    was challenged in court. Can you tell us approximately how many
    of those NSLs have been issued? Is it in the hundreds a year?
        Ms. Caproni. That number is classified; I'm sorry. It's a
    classified number. It's provided to this Committee as part of
    our regular reporting.
        Senator Levin. I see. But it's not classified that you only
    know of one that's been challenged? That's not classified?
        Ms. Caproni. That case is a public case. It's a public
    case. It's DOE versus Department of Justice or Ashcroft. I
    don't remember.
        Senator Levin. Are you able to tell us in an unclassified
    setting whether the number of NSLs is in the hundreds or
    thousands a year? Can you give us a range in a public setting?
        Ms. Caproni. I can't, but it is a very rare action to have
    an NSL challenged.
        Senator Levin. No. How many are issued is the question.
        Ms. Caproni. I can't give you that number in open session.
        Senator Levin. Not even a range or an estimate? So we don't
    know if it's a hundred, a thousand, ten thousand a year?
        Ms. Caproni. I'm sorry. I'll provide you the exact number
    in a classified setting.
        Senator Levin. No problem.
        On the administrative subpoena issue, currently, as I
    understand your testimony, there are three places where
    administrative subpoenas can be issued. Is that correct?
    There's three areas--drug enforcement----
        Ms. Caproni. I think there are like more than 300 different
    types of administrative subpoenas. The ones that intersect most
    commonly with the FBI are in narcotics, health care fraud and
    child pornography cases. There are many other administrative
    subpoenas.
        Senator Levin. And in those cases, in those three types of
    cases, where there is common intersect, right now nobody below
    the agent in charge, special agent in charge, inside the FBI
    can authorize it, but there are people in the Justice
    Department that can authorize it. Is that accurate, in those
    areas?
        Ms. Caproni. I don't think that's accurate.
        Senator Levin. Can anyone below a special agent in the FBI
    authorize it?
        Ms. Caproni. I believe they can in narcotics cases and also
    in child pornography cases. I'm not positive, but I believe
    they can.
        Senator Levin. In the bill that you support, nobody below
    the special agent in charge in the FBI could authorize it, or
    somebody in the Justice Department; is that correct?
        Ms. Caproni. That's how this bill is written.
        Senator Levin. Is that what you support?
        Ms. Caproni. We support the notion of administrative
    subpoenas.
        Senator Levin. I got that, but do you support authorizing
    people below the special agent in charge in the FBI to
    authorize an administrative subpoena?
        Ms. Caproni. I think that under the current circumstances,
    where this would be a new power in a national security
    investigation, and where there is significant concern that the
    power could be misused, it is not unreasonable at this time to
    have the delegation go to the special agent in charge of the
    office.
        Senator Levin. And nobody below?
        Ms. Caproni. That's correct.
        Senator Levin. Thank you.
        Under FISA, is there the ability to challenge in court an
    order for access to records?
        Ms. Caproni. Under Section 215 of the PATRIOT Act? It
    doesn't clearly state that. I think the AG has made it clear
    that he would support an amendment that clearly provides that a
    recipient of a 215 order could move to set aside or to modify
    the order.
        Senator Levin. And that would be under FISA or the PATRIOT
    Act. You would support that?
        Ms. Caproni. Correct.
        Senator Levin. There's a provision--if I can find it--under
    section 214 of the Act--and this is the application for a trap
    and trace or pen register under FISA--it says there that the
    reason for requesting that authority cannot be solely based on
    First Amendment protected activity. Are we together so far,
    under section 214?
        Ms. Caproni. Is it 214 of the PATRIOT Act? Yes.
        Senator Levin. OK. Let's assume that one of the purposes
    violates the First Amendment rights of somebody. Would that be
    allowed? You've got two purposes. One is legitimate and one
    would violate the First Amendment rights of a citizen. Do you
    think we ought to tolerate that, if one of the purposes of
    seeking an order is to trap and trace phone calls?
        Ms. Caproni. No agent should have, as a purpose, to violate
    someone's First Amendment rights. I don't think that's what
    that provision is driving at. The provision provides that we
    can't investigate a U.S. person--we can't investigate them--
    based solely on their First Amendment activities.
        On the other hand----
        Senator Levin. The word ``solely'' is what troubles me,
    because, given your answer of 10 seconds ago, even partly, if
    that's the partial motive, it would be deeply troubling.
        Ms. Caproni. What I'm concerned about is the suggestion
    that the agent would be, part of his goal would be to violate
    the First Amendment rights of a person. That's not what this is
    getting at. I think what this is getting at is, if all you know
    about the person is First Amendment protected activity, you
    cannot investigate them for those reasons. You have to have
    something else. You have to have some other reason to believe
    they are engaged in this conduct.
        Senator Levin. But if one of the reasons for investigating
    that person is to violate his First Amendment rights or would
    impinge on his First Amendment rights illegally, under the
    wording ``solely'' that would seem to be permitted. I don't
    think it should be, and I don't think you think it should be.
    And you don't think that's the purpose of the language.
        Ms. Caproni. That's correct. I think the notion is you
    could have someone who is engaging in oral conduct, who,
    sitting by itself--if that's all you know about the person--
    everyone would say that's First Amendment conduct.
        But if you put in other stuff that you know, then it ceases
    to be protected First Amendment conduct but is part of criminal
    conduct. Just because you are speaking doesn't mean that it's
    not criminal. If that's all you know, it could be First
    Amendment conduct that we would not use solely to conduct an
    investigation.
        But if we know other things about them, that may color what
    their oral conduct is, which might otherwise be viewed as First
    Amendment activity. I think that's the reason that the statute
    is written that way--that if all you know about the person is
    their protected activity, you can't open an investigation on
    them.
        Senator Levin. Thank you.
        Chairman Roberts. The Senator's time has expired.
        Chairman Roberts. Senator Bayh.
        Senator Bayh. Ms. Caproni, thank you for your time and for
    your service to our country.
        Several of my colleagues have asked questions along the
    lines that I'd like to pursue, so if some of this is redundant,
    I apologize in advance. I think we're all trying to get our
    hands around just how significant an impediment this has been
    to your ability to conduct national security investigations.
        So my first question is, how many investigations have been
    adversely impacted by not having the advisory subpoena
    authority?
        Ms. Caproni. Senator, I can't give you those numbers. It's
    not a number that we would collect.
        Senator Bayh. How are we supposed to decide this issue if
    we don't have any idea whether this has been material to your
    ability to carry out your responsibilities? Is this all
    hypothetical or are there actual cases? I understand we can't
    discuss the specific cases, but has this hampered you 1 percent
    of the time, 50 percent of the time, or has it never hampered
    you?
        Ms. Caproni. It definitely does hamper us. The inability to
    promptly get information that we need. As I think I indicated
    in response to Senator Roberts, I'm not sure that we can show--
    and I know we can't--that because our investigation was delayed
    for a day or 2 days or a month or 2 months----
        Senator Bayh. Well, then I guess the nature of my question
    would be what percentage of the investigations that you've
    conducted have been delayed because you don't have this
    authority?
        Ms. Caproni. I can't give you percentage. I can tell you
    there are circumstances where, because we don't have
    administrative subpoena authorities and have to resort to other
    methods to get materials, that those investigations have been
    delayed.
        Senator Bayh. So we have no way of knowing whether these
    delays are extraordinarily unlikely or whether they happen all
    the time. I'm just trying to get my hands around how material
    this is. Is this something that has just occurred once where
    it's been an inconvenience or a delay, or is this something
    that repeatedly comes up that is really hampering you in your
    ability to conduct these investigations frequently.
        Ms. Caproni. The think about national security
    investigations and terrorism investigations is that even if it
    only happens once, if that once is in the wrong case, then it
    would have a catastrophic effect.
        Senator Bayh. Well, then that's something I'd like to
    pursue in closed session, if in fact that's happened.
        Ms. Caproni. Again, I'm not saying it has happened, but I'm
    saying that these tools are available in other circumstances
    where the possibility of the detrimental effect of delay are
    less than in a terrorism case. Again, can we show you a precise
    example of where, because of delay, a bomb went off? We cannot.
    But could it happen tomorrow? It could.
        This is a tool that is readily available in other contexts.
    It again is an anomaly that it's not available in a national
    security investigation, where I think the American public would
    like the FBI to have the broadest range of tools available,
    recognizing that they need to use them responsibly.
        Senator Bayh. The best I can tell here today, this is
    something that you are prospectively concerned about, that
    there may be cases crop up where this might materially hamper
    you. You can't really say it's happened yet, but it might, and
    therefore we ought to err on the side of doing more rather than
    less.
        Ms. Caproni. There are examples where, because we didn't
    have the administrative subpoena authority, we had to go in
    other ways to get the material and it took longer.
        Senator Bayh. How often is the administrative subpoena
    authority used in the criminal context, these 300-some areas
    where you're allowed to use it now? Is this the kind of thing
    that happens all the time or is it kind of a rare occurrence?
        Ms. Caproni. It depends. I thought I saw the statistic last
    night, like on a year-in/year-out basis maybe 3,000 are issued
    a year. I'm not sure if those numbers are right, but we'll get
    back to you on the numbers of administrative subpoenas that are
    issued.
        Senator Bayh. I'm just trying to get my hands around how
    material this is, how often this crops up and therefore how big
    an issue it is for you.
        Ms. Caproni. Within a national security investigation,
    anytime we need a record and we don't have a willing
    custodian--sometimes we have willing custodians, but if we
    don't have a willing custodian, we need some mechanism to get
    the documents.
        Senator Bayh. I've only got a few seconds left, so in rapid
    fire I'd like to follow up on something my colleagues, Senator
    Wyden, asked you about, where he spoke about the criminal
    context and now we're getting into the security/intelligence
    realm. And you pointed out that very often potential terrorism
    suspects are committing criminal acts, that kind of thing.
        But then there's going to be a subset where in fact they've
    not committed a crime or are suspected of committing a crime.
    Can you give us any idea about those percentages in terms of
    how many are actually suspected of criminal activity and how
    many would be investigated for intelligence reasons that are
    not suspected of criminal activity?
        Ms. Caproni. I think we may be able to get you some at
    least approximate numbers on that, but it would be classified.
        Senator Bayh. Well, let me ask you about the mail covers.
    As I understand it, this is currently in the hands of the
    Postal Service; is that correct?
        Ms. Caproni. That's correct.
        Senator Bayh. And there's a somewhat different threshold
    for approving this than would be embodied in the legislation
    we're considering here; is that correct?
        Ms. Caproni. I think that's right, and I think this
    legislation would make it mandatory, if we request it, as
    opposed to the current regulatory scheme, which puts it in the
    discretion of the Postal Inspector.
        Senator Bayh. And do you have any sense about the checks
    that the Postal Inspector has in place to ensure that the use
    of this kind of authority is not misused versus the kind of
    checks that you would have in place to make sure that it's not
    misused?
        Ms. Caproni. Well, the checks that are in place by the
    Postal Inspector is that they review our requests, and this to
    some extent varies between postal inspector and postal
    inspector.
        Senator Bayh. Do they kind of grant your request routinely,
    or is it the kind of thing they really scrutinize and sort of
    agonize over and say, ``Gee, should we really do this or not?''
        Ms. Caproni. I have to say it varies and it also depends to
    some extent on postal inspector to postal inspector. They are
    not a rubber stamp. They believe that they have the discretion
    to decide, yes or no, whether they're going to proceed with the
    mail cover.
        Senator Bayh. My time is up. I believe the courts have
    already ruled, have they not, that you have the ability to, for
    example, if someone puts their trash out on the curb, the
    courts have ruled you've got no privacy expectation on that; is
    that correct?
        Ms. Caproni. That's correct.
        Senator Bayh. Other things that you put out in the public
    domain are already kind of out there for private investigators
    and others to kind of access.
        Ms. Caproni. You run the risk that someone's going to steal
    your garbage and go through it.
        Senator Bayh. And that may not be the kind of thing I think
    is right, but that's the way it is.
        Ms. Caproni. That's what the courts have held, that once
    you abandon the property to the garbage man, you've abandoned
    your expectation of privacy in it.
        Senator Bayh. So one of the things here is whether mail
    should be treated as other things that are put out and once it
    leaves your zone of privacy.
        Ms. Caproni. Again, there are court cases on this.
        Senator Bayh. Whether you should have access to that kind
    of information, just as anybody else can have access to it, in
    some ways.
        Ms. Caproni. Again, the courts have considered the
    constitutionality of mail covers, and the rationale is that
    mail covers are constitutional. You don't need a search warrant
    for them. And it's for the same general idea, that this
    information, which is only what's on the exterior of the
    envelope----
        Senator Bayh. You're not going inside the mail.
        Ms. Caproni. We're not opening the mail, no. We would need
    court approval to open the mail.
        Senator Bayh. Thank you, ma'am.
        Chairman Roberts. I had one other observation before we
    have the next panel come up, and Senator Snowe was next but she
    has indicated she will pass.
        If administrative subpoenas are constitutional
    investigative tools that provide timely access to crucial
    information necessary to protect national security, with the
    significant checks and balances of the judicial review,
    minimization procedures and congressional oversight, I see no
    reason why investigations of terrorists and spies should not
    have the same tool provided to the investigators that they now
    have in regard to health care fraud, child pornography and
    narcotics trafficking.
        Using the logic in regard to some of the questions that
    have been raised, you could call for more hoops--well, hoops is
    probably a bad word--more safeguards in those cases as well in
    terms of the time involved that it takes to investigate health
    care fraud, a child pornography case or narcotics trafficking
    or 335 other instances where the Federal Government does use
    this tool.
        So, with that, we thank you for your testimony and we now
    ask the second panel to please come forward.
        We would like to welcome the second panel: Mr. David Kris,
    Mr. Joe Onek, Mr. Daniel Collins, Mr. James Dempsey.
        Mr. Kris, would you please proceed?
        [The prepared statement of Mr. Kris follows:]

                      Prepared Statement of David S. Kris

        Chairman Roberts, Vice Chairman Rockefeller, and Members of the
    Committee: Thank you for the opportunity to testify about the Foreign
    Intelligence Surveillance Act (FISA) and related provisions in the
    Committee's draft bill. I join the Department of Justice (DOJ) in
    applauding the bill for addressing several difficult and important
    issues. Having first seen it less than a week ago, however, I have not
    yet mastered all of its policy implications or technical aspects. This
    is a very complicated area of law. Accordingly, while I pledge my
    continuing availability, this morning I can offer only tentative views
    based on a few days' consideration. Subject to that caveat, set forth
    below are a few general comments, and several specific comments, on the
    bill. In appearing before you today, I speak only for myself, and not
    for any former or current employer, including DOJ and Time Warner.
        In general, the Committee's draft bill authorizes and regulates
    several vitally important investigative tools, and I am therefore not
    surprised that DOJ has expressed its support. For example, Sections 101
    and 203 will prevent any resurgence of the FISA ``wall'' separating
    intelligence and law enforcement. As I testified in the House last
    month,\1\ the wall is extremely dangerous; this bill will help keep it
    down. Section 101 of the bill will also help ensure the government's
    continuing authority to conduct ``roving'' FISA surveillance, a tool
    that appears to be very valuable, and that already contains strong
    protections for civil liberties. Section 102 makes permanent the lone-
    wolf provision of FISA, which I understand DOJ strongly supports. Two
    other provisions of the bill, Sections 201 and 216, will likely ease
    administrative burdens on the FBI and DOJ by extending the duration of
    FISA authorization orders involving non-U.S. persons (Sections 214 and
    215 may have similarly helpful effects). In an era of increasing FISA
    activity, this helps focus resources on cases involving U.S. persons,
    where civil liberties concerns are preeminent.
        This bill should also enjoy substantial support from civil
    libertarians. For example, Section 213 would authorize administrative
    subpoenas that are similar to existing national security letters, but
    with an express provision for motions to quash. Another part of the
    bill, Section 211, would expand the disclosure rights of persons who
    receive a FISA tangible things order, and permit them to consult with
    counsel. Section 211 would also require special minimization procedures
    governing the retention and dissemination of information obtained from
    a tangible things order. And it would expand the government's reporting
    obligations.
        I do have questions about certain provisions in the bill. In
    Sections 202 and 212, for example, I wonder whether it offers
    legislative solutions to problems that the executive branch ought to be
    able to resolve internally. I believe that Congress should change FISA
    only to address specific shortcomings not amenable to other remedies.
    However, I also think that law and policy should reflect operational
    experience. My own operational experience in this area, once extensive,
    is now 2 years out of date. I may not recognize or understand all of
    the problems facing government today. The Department of Justice, and
    you and your staff, are the real experts in this area, and I hasten to
    defer to your expertise. In any event, I do not think that Sections 202
    and 212 threaten civil liberties.
        Finally, in evaluating this bill, particularly Section 213, I urge
    you to consider not only whether ``the government''--meaning the
    executive branch as a whole--should have certain investigative power,
    but also which parts of government should have power. Although I have
    no doubts about the constitutionality or importance of Section 213, I
    believe strongly that government is more effective, and civil liberties
    are better protected, when FBI agents and DOJ lawyers work as closely
    and cooperatively in national security investigations as they do in
    traditional criminal investigations. Until late 2002, of course, the
    FISA wall effectively prohibited this. As we emerge from the shadow of
    the wall, broad structural changes, such as the creation of a DOJ
    National Security Division, may be necessary to foster the cooperative
    model. But substantive bills like the Committee's draft should also do
    so where they can.
        Thank you again for the opportunity to be here. The balance of this
    submission presents a section-by-section review of the Committee's
    draft bill. Again, in light of the complexity of the legal issues and
    the speed with which I have prepared this testimony, I emphasize the
    tentative nature of my comments.

                           SECTIONS 101, 102 AND 203

        Sections 101 and 102 of the Committee's draft bill are designed to
    eliminate the upcoming sunset for several provisions of the USA Patriot
    Act,\2\ and for the lone-wolf provision of last year's Intelligence
    Reform and Terrorism Prevention Act.\3\ You and your counterparts in
    the House of Representatives have already heard from many witnesses on
    both sides of the sunset debate. By and large, I support renewal of the
    Patriot Act, but I would like to focus today on two important
    provisions: Section 218 of the Patriot Act, the ``significant purpose''
    amendment to FISA (in connection with which I also discuss Section 203
    of the Committee's bill); and Section 206 of the Patriot Act, the
    ``roving surveillance'' amendment to FISA.

    1. Patriot Act Section 218: Significant Purpose
        On April 28, 2005, I testified about Section 218 before the
    Subcommittee on Crime, Terrorism, and Homeland Security of the House
    Judiciary Committee.\4\ My position then (as now) was that Congress
    should renew Section 218. I also urged the Subcommittee explicitly to
    endorse the reasoning and decision of the Foreign Intelligence
    Surveillance Court of Review (FISCR or Court of Review) interpreting
    Section 218 and other provisions of FISA.\5\ I testified:

              Whether or not you agree with its outcome, the Court of
            Review's opinion is a very sophisticated and technically sound
            interpretation of a complex statute. If Congress were to adopt
            its reasoning, it would provide guidance that is equally
            sophisticated and sound. That, above all, is what the country
            needs in this area.\6\

        I maintain that view today, and I therefore renew my recommendation
    that Congress adopt the Court of Review's reasoning, either through
    explicit legislative history or a specific provision of public law.\7\
        Repealing the sunset for Patriot Act Section 218 intersects with
    another provision of the Committee's bill, Section 203. Section 203
    would amend the definition of ``foreign intelligence information'' to
    make explicit that information is ``foreign intelligence information''
    even if it is sought for use in law enforcement efforts (such as
    criminal prosecution) to protect against terrorism and other foreign
    intelligence threats.\8\ As a technical matter, I believe that Section
    203 will accomplish what it is evidently meant to accomplish--that is,
    it will make clear Congress's intent to allow FISA searches or
    surveillance for the primary purpose, or even the exclusive purpose, of
    obtaining evidence for the prosecution of a foreign spy or
    terrorist.\9\
        As a policy matter, however, you know from my House testimony that
    I do not support such an amendment for two reasons.\10\ First, Section
    203 of the Committee's bill would further expand governmental power at
    a time when the Department of Justice itself has not asked for broader
    authority. Second, a related point, I fear that any operational benefit
    from the amendment would not justify the resulting cost in uncertainty
    about the state of the law. As I stated at the outset, I believe that
    FISA should not be amended except where the amendment is genuinely
    necessary.\11\
        If you disagree, and decide to enact Section 203 of your bill, you
    should consider how it will interact with Patriot Act Section 218. That
    is because, when read together, the two provisions could produce
    strange results. As explained above, Section 203 would allow the
    government to use FISA exclusively, not just primarily, to gather
    evidence for the prosecution of a foreign spy or terrorist--because
    Section 203 defines ``foreign intelligence information'' to include
    evidence sought for such a prosecution. Under Patriot Act Section 218,
    however, acquisition of ``foreign intelligence information'' need only
    be a ``significant purpose'' of a FISA search or surveillance. Thus,
    with both provisions on the books, the government might have authority
    to use FISA for a significant purpose of prosecuting a spy or
    terrorist, but with the primary purpose of something else--ranging from
    ordinary law enforcement, to civil debt collection, to (maybe) sheer
    voyeurism.\12\ I myself support the status quo through renewal of
    Patriot Act Section 218 and adoption of the Court of Review's decision.
    A reasonable person might disagree and prefer Section 203 of your bill.
    If you both renew Section 218 and enact Section 203, I recommend that
    you include strong legislative history to guard against any misreading.

    2. Patriot Act Section 206: Roving Surveillance
        I believe the current debate over roving FISA surveillance has gone
    awry. Some have claimed that under Patriot Act Section 206, ``[t]he
    government can now issue `John Doe' roving wiretaps that fail to
    specify a target or a telephone, and can use wiretaps without checking
    that the conversations they are intercepting actually involve a target
    of the investigation.'' \13\ I disagree. As I try to demonstrate below
    by analyzing the two statutes, FISA's rules on roving surveillance
    compare favorably with those in Title III,\14\ its counterpart in
    conventional criminal law.

                                  a. Title III

        The conduct that fundamentally justifies and underlies all Title
    III electronic surveillance is the commission of a specified criminal
    offense.\15\ To obtain a normal (non-roving) surveillance order under
    Title III, the government must identify the offense.\16\ However, it
    need not identify or describe the person suspected of committing the
    offense,\17\ and it need not establish a nexus between any person and
    the location, telephone, or other facility to be monitored. Instead,
    under Title III, the government establishes a nexus between the offense
    and the location, telephone or other facility to be monitored.\18\
        By contrast, when the government obtains a roving surveillance
    order under Title III, these requirements are effectively reversed. For
    obvious reasons, in such cases, the government must identify the person
    committing the specified offense and whose communications are to be
    intercepted.\19\ However, the government need not identify the
    facilities from which or the place where the communications are to be
    intercepted, and it need not establish a nexus between those facilities
    or places and the specified offense.\20\ Unlike ordinary Title III
    surveillance, roving Title III surveillance focuses on the target, not
    the facility being used in connection with a crime.\21\
        To use Title III's roving surveillance provisions, the government
    must also make certain additional showings. To obtain a roving
    surveillance order with respect to what Title III defines as ``oral
    communications,'' \22\ the government must persuade the court that it
    is not ``practical'' to establish a nexus between the underlying
    conduct and the location to be monitored,\23\ and may not begin the
    monitoring until ``the place where the communication is to be
    intercepted is ascertained.'' \24\ With respect to what Title III
    defines as ``wire communications'' \25\ or ``electronic
    communications'' \26\ the government must establish probable cause that
    the actions of the person committing the underlying conduct ``could
    have the effect of thwarting interception from a specified facility,''
    \27\ and the roving surveillance order must be ``limited to
    interception only for such time as it is reasonable to presume that the
    person * * * is or was reasonably proximate to the instrument through
    which such communication will be or was transmitted.'' \28\

                                    b. FISA

        FISA establishes a different regime. In a normal (non-roving) FISA
    case, the government must identify or describe the target of the
    surveillance,\29\ and must also show that the target is engaged in the
    underlying conduct that justifies the surveillance.\30\ Under FISA, of
    course, that underlying conduct is whatever makes the target a foreign
    power or an agent of a foreign power, which may (but need not always
    be) criminal conduct--e.g., for a U.S. person, knowing engagement in
    international terrorism, or for a non-U.S. person, serving as a foreign
    country's diplomat in the United States.\31\ The government must also
    establish a nexus between the target and the facility to be monitored,
    by showing that the target is using, or about to use, the facility.\32\
    However, the government need not establish a nexus between the target's
    underlying conduct and the facility--e.g., it need not show that the
    facility is being used in connection with international terrorism.\33\
        All of the foregoing requirements apply equally to roving FISA
    surveillance. The only difference between ordinary and roving FISA
    surveillance is that in a roving case, where the FISC ``finds that the
    actions of the target * * * may have the effect of thwarting the
    identification of a specified person'' who can assist the government in
    accomplishing the electronic surveillance, the FISC may order such
    assistance from ``other persons'' as well as the specified persons
    normally included in a secondary order.\34\ Thus, for example, rather
    than issuing a secondary order directing assistance from a particular
    telecommunications company, the FISC can issue a generic order
    directing any telecommunications company to assist the government. The
    government can use this order to follow the target wherever he goes.
        Or can it? As discussed above, in normal surveillance cases, both
    Title III and FISA require some showing of a nexus between the
    telephone or other facility that will be wiretapped, and either the
    target (under FISA) \35\ or the specified criminal offense (under Title
    III \36\ Title III eliminates that nexus requirement in roving cases--
    On the theory that in such cases the government cannot make the showing
    because it ``may not know, until shortly before the communication,
    which telephone line will be used by the person under surveillance.''
    \37\ FISA seems to recognize this same theory, because (as amended in
    2002) it requires the FISC's authorization order to specify the nature
    and location of each facility to be surveilled only ``if known.'' \38\
    Nonetheless, FISA does not eliminate the nexus requirement: In roving
    cases as well as ordinary cases, it demands probable cause that ``each
    of the facilities or places at which the electronic surveillance is
    directed is being used, or is about to be used, by a foreign power or
    an agent of a foreign power.'' \39\ How can the government make that
    showing in a roving case, where--by definition--it cannot even identify
    the facilities or places at the time the FISC enters its order?
        In my view, the best answer lies in FISA's minimization provisions.
    As you know, those provisions require the Attorney General to propose,
    and the FISC to approve (as proposed or as modified), specific
    procedures ``that are reasonably designed in light of the purpose and
    technique of the particular surveillance, to minimize the acquisition *
    * * of nonpublicly available information concerning unconsenting United
    States persons consistent with the need of the United States to obtain
    * * * foreign intelligence information.'' \40\ If the minimization
    procedures require a nexus before the government commences roving
    surveillance on a new facility--e.g., through observation of the target
    using the facility, or some other method--they ought to satisfy the
    requirement that each facility ``is'' being used or about to be used by
    the target before the surveillance begins.\41\
        In practical effect, instead of finding probable cause with respect
    to particular facilities not yet known, the FISC finds that there
    necessarily will be probable cause under the minimization procedures it
    imposes as part of its authorization order. This is roughly equivalent
    to Title III's provisions eschewing a formal nexus requirement to any
    particular facility but requiring that roving surveillance of wire or
    electronic communications be ``limited to interception only for such
    time as it is reasonable to presume that the [target] * * * is or was
    reasonably proximate to the instrument through which such communication
    will be or was transmitted.'' \42\ It is broader than Title III in that
    it could be satisfied by something other than proximity to a
    communications instrument (e.g., where the target uses one facility to
    communicate through another, remote facility), but it is narrower in
    that mere proximity is not necessarily sufficient (e.g., where the
    target walks past a pay phone but does not use it).

                                 c. Conclusion

        In light of the foregoing, if I am reading the statute correctly,
    it is ironic that civil libertarians have raised concerns about ``John
    Doe'' roving FISA orders. Every provision in FISA that applies to
    ordinary surveillance applies to roving surveillance; there are no
    exceptions. One of those FISA provisions requires probable cause that
    the target is using, or is about to use, ``each'' facility subjected to
    surveillance. As a question of roving surveillance compared to ordinary
    surveillance, you literally could not ask for more (other than,
    perhaps, what I describe in the next paragraph).\43\
        There is one amendment to FISA that might address some of the
    concerns raised by civil libertarians without unduly inhibiting the
    government. In essence, FISA roving surveillance resembles a highly
    circumscribed form of emergency surveillance. In a typical emergency
    surveillance case, the government determines unilaterally whether it
    can satisfy all of the provisions of FISA (subject to later
    ratification by the FISC).\44\ In a roving case, the government
    determines unilaterally only whether it can satisfy the nexus
    requirement (the FISC determines in advance all other issues, such as
    whether the target is an agent of a foreign power). As in emergency
    cases, therefore, it may be worth considering whether the government
    should be required to submit to the FISC, within some reasonable time
    after commencing roving surveillance on a new facility, a description
    of the information upon which it relied to do so. Such a provision
    would read something like this:

                 Sec. XXX. Report in Roving Surveillance Cases

        Subsection 105(c)(2) of the Foreign Intelligence Surveillance Act
    (50 U.S.C. Sec. 1805(c)(2)) is amended by adding the following new
    subsection (E):

            that, in any case in which the Court finds that the actions of
            the target of the application may have the effect of thwarting
            the identification of a specified person as described in
            subsection (c)(2)(B) of this section, and in which the
            electronic surveillance is directed against any facility or
            place the nature and location of which is not specified in the
            Court's order under subsection (c)(1)(B) of this section, the
            applicant or another Federal officer promptly report to the
            Court the information relied upon determine that the target of
            the surveillance was using, or was about to use, such facility
            or place.

        This amendment should assuage fears about FISA roving surveillance
    by requiring judicial review, albeit shortly after the fact. Obviously,
    if the FISC found the government's submission unsatisfactory, it could
    terminate surveillance on the new facility (on the theory that the
    government had not complied with the minimization procedures).
        I do not know what the Department of Justice will say in response
    to this amendment, but it seems reasonable to me in concept. If the
    word ``promptly'' is unsatisfactory for any reason--I borrowed it from
    50 U.S.C. Sec. 1824(c)(2)(E), the provision requiring the government to
    file a return following execution of a physical search--a fixed period
    (3 days, 7 days, 10 days), or a ``reasonable period to be determined by
    the Court,'' could be used instead.

                               SECTIONS 201 & 216

        Section 201 of the Committee's bill would amend FISA's definition
    of ``agent of a foreign power'' in 50 U.S.C. Sec. 1801(b)(1)(A). As you
    know, 50 U.S.C. Sec. 1801(b)(1)(A) currently applies to any non-U.S.
    person who ``acts in the United States as * * * a member of '' a group
    engaged in international terrorism or activities in preparation
    therefor.\45\ Another provision, 50 U.S.C. Sec. 1801(b)(2)(E),
    currently applies to any person (including a U.S. person) who
    ``knowingly aids or abets any person in the conduct of,'' or
    ``knowingly conspires with any person to engage in,'' sabotage or
    international terrorism, or activities that are in preparation
    therefor, for or on behalf of a foreign power.\46\ Section 201 of the
    bill would add to 50 U.S.C. Sec. 1801(b)(1)(A) the aiding-and-abetting
    and conspiracy language from 50 U.S.C. Sec. 1801(b)(2)(E).
        This proposal would not change FISA's definitions in any
    substantive way. It would neither expand nor contract the reach of
    FISA, because anyone who would fall under Section 201 of the bill is
    already covered by 50 U.S.C. Sec. 1801(b)(2)(E). The principal effect
    of Section 201 would be to extend the duration of FISA search or
    surveillance orders applicable to such persons (if they are not U.S.
    persons), from 90 days, to an initial order of 120 days and renewal
    orders of 1 year each.\47\ A subsidiary effect would be to eliminate
    FISA's civil damages remedy for such persons.\48\
        As a policy matter, Section 201 seems reasonable. If longer periods
    of surveillance and search authority are appropriate for non-U.S.
    persons who are ``members'' of groups engaged in international
    terrorism or activities in preparation therefor,\49\ then they seem
    tolerable for non-U.S. persons who knowingly aid and abet or conspire
    to engage in sabotage, international terrorism, or activities in
    preparation therefor. In keeping with my basic view that FISA should be
    amended only when necessary, however, I would defer to the Department
    of Justice on whether Section 201 of the bill would in fact ease a
    burden--by reducing the number of applications that must be filed--or
    otherwise solve a real problem in the administration of the statute.
        Section 216 is a related provision that specifically amends the
    duration provisions of FISA. Under Section 216, FISA electronic
    surveillance and physical searches targeting non-U.S. persons who are
    agents of foreign powers could be conducted for an initial period of
    120 days and for renewal periods of 1 year. This would change current
    law, under which those longer authorization periods apply only to
    officers or employees of foreign powers, and to members of
    international terrorist groups.\50\ If Section 216 is enacted, Section
    201 becomes superfluous (except for its effect on FISA's civil damages
    remedy as discussed above). (Of course, there is nothing wrong with
    including both provisions in the bill at this stage of the legislative
    process.) Section 216 would also extend from 90 days to 1 year the
    initial and renewal authorization periods for FISA pen-trap
    surveillance where the applicant certifies that the ``information
    likely to be obtained is foreign intelligence information not
    concerning a United States person.''

                                  SECTION 202

        Section 202 of the bill would amend FISA's definition of
    ``contents'' \51\ essentially to conform to the definition of the same
    term in Title III.\52\ I think I understand the motivation for this
    amendment, but I question the need for it.
        Since its enactment in 1978, FISA has allowed the government to
    seek, and the FISC to issue, orders authorizing pen-trap surveillance.
    For the first 20 years of the statute's existence, however, the
    government could do so under FISA only by satisfying the requirements
    for a full-content ``electronic surveillance'' order.\53\ In 1998,
    Congress amended FISA to allow the government to obtain pen-trap orders
    under a different, and less demanding, set of standards.\54\
        FISA's 1998 provisions define the terms ``pen register'' and ``trap
    and trace device'' by reference to the pen-trap provisions applicable
    in criminal investigations.\55\ Under the criminal provisions, a pen
    register is a device or process which records or decodes dialing,
    routing, addressing, or signaling information transmitted by an
    instrument or facility from which a wire or electronic communication is
    transmitted, provided, however, that such information shall not include
    the contents of any communication, but such term does not include any
    device or process used by a provider or customer of a wire or
    electronic communication service for billing, or recording as an
    incident to billing, for communications services provided by such
    provider or any device or process used by a provider or customer of a
    wire communication service for cost accounting or other like purposes
    in the ordinary course of its business.\56\
        Reduced to its essentials, this definition means that a pen
    register is supposed to detect the destination of outbound
    communications from a monitored telephone or other facility, without
    detecting the contents of the communication being sent.\57\ A pen
    register on your telephone can identify whose number you call, but not
    what you say if someone answers.
        A trap and trace device is the reciprocal of a pen register: It is
    supposed to detect the source of inbound communications to a monitored
    facility. Thus, a trap and trace on your telephone can identify whose
    telephone number called you, but not what you say. As a technical
    matter, a trap and trace device defined to be a device or process which
    captures the incoming electronic or other impulses which identify the
    originating number or other dialing, routing, addressing, and signaling
    information reasonably likely to identify the source of a wire or
    electronic communication, provided, however, that such information
    shall not include the contents of any communication.\58\ Since 2001, a
    pen register and a trap and trace device may either be a ``device'' or
    a ``process,'' which includes software as well as hardware methods of
    gathering information.\59\
        Typically, pen register orders are used to obtain the numbers being
    dialed from a targeted telephone number, and trap and trace orders
    obtain the numbers of telephones making calls to a targeted number.\60\
    Under amendments enacted in the Patriot Act, however, neither FISA nor
    the criminal pen-trap statute is limited to telephone numbers. Those
    statutes may now be used to obtain any ``dialing, routing, addressing,
    or signaling information'' that identifies the destination or source of
    an electronic communication, including email and Internet
    communications.\61\ But a pen-trap order may not be used to obtain the
    ``contents of any communication.'' \62\
        Although FISA itself defines the term ``contents,'' that definition
    does not govern FISA pen-trap surveillance.\63\ Indeed, if it did
    apply, the statute would effectively forbid what it authorizes, because
    FISA defines ``contents'' to include ``any information concerning the
    identity of the parties to [a] communication or the existence * * * of
    that communication'' \64\--a standard that clearly includes the routing
    and addressing information acquired by a pen-trap.
        This, I believe, is the concern that underlies Section 202 of the
    Committee's bill: A concern that FISA's broad definition of
    ``contents'' somehow calls into question the validity of FISA pen-trap
    surveillance.\65\ I believe the concern is misplaced for two
    reasons.\66\
        First, FISA's pen-trap provisions clearly take their definition of
    ``contents'' from Title III \67\ which (as noted above) defines the
    term more narrowly than FISA to mean ``any information concerning the
    substance, purport, or meaning of [a] communication,'' \68\ but does
    not include information concerning the identity of the parties or the
    existence of the communication. Thus, a FISA pen-trap order allows
    acquisition of routing and addressing information that is not
    ``contents'' as defined by Title III, even if such information is
    ``contents'' as defined by FISA. Put another way, having narrowed Title
    III's definition of ``contents'' in 1986,\69\ and cross-referenced the
    narrower definition in FISA's pen-trap provisions, you need not amend
    FISA's definition of ``contents'' today.
        Second, FISA's pen-trap provisions, and their incorporation of
    Title III's narrow definition of ``contents,'' do not conflict with
    FISA's electronic surveillance provisions and their broad definition of
    ``contents.'' On the contrary, FISA authorizes pen-trap surveillance
    ``[n]otwithstanding any other provision of law'' and ``in addition to
    the authority'' granted to conduct electronic surveillance.\70\ Thus,
    FISA pen-trap surveillance remains lawful, and there is no need for any
    change to FISA's definition of ``contents.''
        In sum, FISA seems clearly to authorize pen-trap surveillance
    without a full-blown ``electronic surveillance'' order issued under 50
    U.S.C. Sec. 1805. The government has in fact been conducting FISA pen-
    trap surveillance for many years. If agents or others in the executive
    branch remain concerned, perhaps it highlights the need for more
    training and outreach efforts. But I am not aware of any statutory
    problem in need of repair.

                                  SECTION 211

        Section 211 amends FISA's ``tangible things'' provisions in four
    ways. First, it makes two changes to the language of 50 U.S.C.
    Sec. 1861(a)(1). As amended by Section 211, 50 U.S.C. Sec. 1861(a)(1)
    would provide (with deleted text in strikeout and added text in
    redline):

              The Director of the Federal Bureau of Investigation or a
            designee of the Director (whose rank shall be no lower than
            Assistant Special Agent in Charge) may make an application for
            an order requiring the production of any tangible things
            (including books, records, papers, documents, and other items)
            for relevant to an investigation to obtain foreign intelligence
            information not concerning a United States person or to protect
            against international terrorism or clandestine intelligence
            activities, provided that such investigation of a United States
            person is not conducted solely upon the basis of activities
            protected by the first amendment to the Constitution.

        I have no objection to the first change--replacing ``for'' with
    ``relevant to.'' \71\ And in view of the First Amendment provision that
    remains in 50 U.S.C. Sec. 1861(2)(B),\72\ I have no objection to the
    Committee's deletion of what amounts to a redundant First Amendment
    provision from Section 1861(a)(1).
        Second, Section 211 would change the non-disclosure provision in
    the tangible things statute. Today, that provision states simply that
    ``[n]o person shall disclose to any other person (other than those
    persons necessary to produce the tangible things under this section)
    that the Federal Bureau of Investigation has sought or obtained
    tangible things under this section.'' \73\ Section 211 would add
    several exceptions to this general prohibition, including disclosure to
    ``an attorney to obtain legal advice with respect to the production of
    things in response to the order,'' and ``other persons as permitted
    by'' the FBI Director or his designee. Recipients of disclosure are
    subject to the same general non-disclosure obligations and must be so
    advised by the person making the disclosure to them.
        These changes seem to be motivated by (and reasonable in light of)
    Doe v. Ashcroft,\74\ which struck down on First Amendment grounds a
    similar non-disclosure provision in one of the national security letter
    statutes.\75\ The court in Doe recognized that ``the Government's
    interest in protecting the integrity and efficacy of international
    terrorism and counterintelligence investigations is a compelling one,''
    and that non-disclosure rules further that interest.\76\ But the court
    found that the ``categorical, perpetual, and automatic ban on
    disclosure is not a narrowly tailored means to advance those legitimate
    public interests.'' \77\
        I don't know whether Doe was correctly decided--I believe the
    government has appealed--but it seems reasonable in any event to
    consider additional exceptions to the non-disclosure rules in FISA's
    tangible things provisions. Of course, any exception creates some
    risk--disclosure to a lawyer could be dangerous, as illustrated by the
    recent prosecution of Lynne Stewart--but there is no way to keep the
    orders absolutely secret. More importantly, I am very sympathetic to
    persons who receive these strange-looking papers from the FISA Court by
    way of the FBI. I know the FISA statute pretty well, but if I someone
    handed me a tangible things order, I'd want to consult with a lawyer
    before responding.\78\
        An additional disclosure exception, not presently in Section 211 of
    the Committee's bill, may be worth considering. One of the concerns in
    Doe was the unlimited duration of the ban on disclosure. That may seem
    a marginal concern, but under the First Amendment, concerns at the
    margin of a statute's application can have far-reaching
    consequences.\79\ I think the problem is solved, however, if the ban on
    disclosure endures only so long as the underlying application and order
    remain properly classified under the ordinary rules governing
    classification.\80\ There should be no First Amendment problem with
    requiring recipients of properly classified information generally to
    keep it secret.\81\
        Third, Section 211 would direct the Attorney General to adopt
    ``minimization procedures governing the [FBI's] retention and
    dissemination'' of tangible things. As a policy matter, this
    requirement is unobjectionable--indeed, I support the use of
    minimization procedures as important safeguards for civil liberties. I
    do, however, have a few, minor technical concerns. First of all, as far
    as I can tell, the ``minimization procedures'' mentioned here would not
    be reviewed and approved by the FISC. Thus, they are not ``minimization
    procedures'' as that term is used elsewhere in FISA.\82\ If that is
    correct, the provision may not be necessary, at least as far as U.S.
    persons are concerned. Under Executive Order 12333, ``[a]gencies within
    the Intelligence Community are authorized to collect, retain or
    disseminate information concerning United States persons only in
    accordance with procedures established by the head of the agency
    involved and approved by the Attorney General.'' \83\ If the provision
    is to remain in the statute, and these ``minimization procedures'' are
    not meant to be reviewed by the FISC, a different term should be used
    to avoid confusion.
        Fourth and finally, Section 211 would expand the government's
    reporting obligations to include the total number of tangible things
    orders granted, and the total number of them directed at libraries and
    certain other specified establishments. This seems reasonable enough,
    and I defer to the Department of Justice, which has recently revealed
    similar statistics in public testimony.\84\

                                  SECTION 212

        Section 212 amends FISA to direct the United States Postal Service
    to comply with a request for a mail cover from a designated official of
    the FBI. As far as I can tell, Section 212 codifies many of the
    provisions now set out at 39 CFR Sec. 233.3, and changes certain of
    them.\85\ Normally, I would say that Section 212 presents a legislative
    solution to a sub-legislative problem, and that concerns about the mail
    cover regulations should be taken up by the FBI with the Postal
    Service. However, if--as I understand may be the case--sub-legislative
    remedies have been exhausted,\86\ a statutory fix becomes more
    plausible. From a civil liberties perspective, Section 212 also has the
    advantage of requiring Congressional oversight of the use of national
    security mail covers.
        Under the current postal regulations, the FBI can get a mail cover
    by asking the Postal Service. A mail cover is available to ``[p]rotect
    national security,'' a term that is defined to include most of the
    threats specified in the first half of FISA's definition of ``foreign
    intelligence information.'' \87\ To obtain a mail cover, a ``law
    enforcement agency,'' which is defined to include ``any authority of
    the Federal Government * * * one of whose functions is to * * * protect
    the national security,'' \88\ submits a written request (or when time
    is of the essence, an oral request\89\) to the Chief Postal Inspector
    or his designee with ``reasonable grounds to demonstrate the mail cover
    is necessary to * * * Protect the national security.'' \90\ In national
    security cases, a mail cover can remain in effect for 120 days, and
    longer with the approval of certain Postal Service officials.\91\ A
    national security mail cover must be approved personally by the head of
    the agency requesting it, or by a single designee at the requesting
    agency's headquarters.\92\
        I can understand why the FBI might chafe at certain of these
    requirements--particularly the one concerning high-level approval of
    any national security request, and the fact that compliance with a
    request is not mandatory. In my view, this sort of inter-agency dispute
    is usually best resolved within the Executive Branch.\93\ Were it not
    for the fact that the Attorney General had personally raised this issue
    with the Postmaster General more than 6 months ago, I would be very
    skeptical of Section 212. As it is, I can understand DOJ's desire to
    seek the Committee's aid. I note with interest the Department's views
    letter of May 18, 2005, in which it expresses support for Section 212,
    and I assume (in accord with OMB Circular A-19) that the Administration
    does not object to that expression of support. Perhaps the possibility
    of a legislative amendment will concentrate the Postal Service's mind
    and cause it to reconsider.

                                  SECTION 213

        Section 213 of the Committee's bill would allow certain designated
    FBI officials to issue administrative subpoenas in the context of
    national security investigations authorized under Executive Order 12333
    \94\ and not premised solely on First Amendment activities. It allows
    enforcement of such a subpoena by the Attorney General through the
    FISC, and also provides for motions to quash filed in the FISC or in
    the recipient's local United States District Court. Proceedings in
    courts other than the FISC are to be closed and subject to
    nondisclosure rules, and the government may submit materials to such
    courts ex parte and in camera. The Director of the FBI is directed to
    establish regulations for the implementation of the subpoena
    provisions, and the Attorney General is directed to establish
    minimization procedures governing retention and dissemination of
    information obtained by subpoena. There is a provision for
    congressional oversight through the Intelligence Committees.
        The government needs the power to compel production of documents
    and other materials in national security investigations, and
    administrative subpoenas are one important way to grant such power.
    From a civil liberties standpoint, Section 213 is, if anything, an
    improvement over current law. Unlike the current version of FISA's
    tangible things provisions,\95\ Section 213 provides expressly for
    disclosure to an attorney. Moreover, unlike even the version of the
    tangible things provisions proposed by Section 211 of the Committee's
    bill, Section 213 provides for judicial review of a subpoena upon a
    motion to quash filed by the recipient. It allows private litigants
    access to the FISC, which may be viewed by civil libertarians as a good
    thing regardless of what is litigated. There are now several
    administrative subpoena provisions on the books for use in
    investigations pertaining to such things as health care fraud, child
    sexual abuse, and threats against protected persons,\96\ as well as
    drug cases.\97\ Thousands of administrative subpoenas have been issued
    in these kinds of cases.\98\ Administrative subpoenas in national
    security cases, with the same or similar protections--including
    authorization for motions to quash--seem unob-
    jectionable by comparison.
        I have two other observations about Section 213. First, I am
    concerned about the invitation to private litigants to file motions in
    the FISC. This is not so much a philosophical concern as a pragmatic
    one. If thousands of subpoenas are issued, several motions to quash may
    be filed.\99\ As far as I know, the FISC is simply not equipped to
    handle that kind of litigation. Indeed, the FISC is not really equipped
    to handle any litigation involving private parties--it has no publicly
    accessible space, and a relatively small staff. To be sure, these
    logistical obstacles could be overcome, but only by changing the FISC's
    nature and focus. With the dramatic increases in FISA activity over the
    past few years, I think the FISC should remain centered on its core
    function of reviewing applications. If the recent statistics revealing
    substantial numbers of denials and modifications of FISA applications
    are any guide, the FISC has been doing a careful job. I would not
    lightly open the FISC to adversary proceedings, particularly over
    something like an administrative subpoena. But I have no similar
    objection to motions to quash filed in ordinary district courts, as
    long as the government is prepared to assume the risk of a leak. And
    ultimately, I largely defer to the Department of Justice with respect
    to what is workable here, at least in the first instance.
        My second concern arises because Section 213 grants administrative
    subpoena power to the Director of the FBI, and orders the Director to
    establish regulations for the use of such subpoenas. I think the
    authority should be granted to the Attorney General, who may delegate
    (and in some other cases has delegated\100\) the authority to the
    Director. This may seem a trivial point--and in many respects it is--
    but I believe it relates to a broader and vitally important concern. I
    think it may be helpful to the Committee if I lay out that broader
    concern, using Section 213 as an illustration.
        As the Committee is aware, the executive branch is now considering
    whether and how to restructure the government to deal with domestic
    counterintelligence matters. Spurred by the 9-11 Commission Report, and
    the more recent WMD Commission Report, some have suggested splitting
    the FBI to create an American version of MI-5--that is, a domestic
    counterintelligence agency separate from Federal law enforcement. The
    FBI obviously opposes that idea. I also oppose creating an American MI-
    5, primarily because I think such a major change would take years to
    bear fruit, and would create chaos in the interim. Unfortunately, our
    adversaries will not let us call a time-out while we restructure.
        In my view, the more promising approach is to mandate significantly
    increased coordination between the FBI and DOJ prosecutors and other
    lawyers. Such coordination should, in my view, be required in
    individual cases and investigations, in national-level programs, and
    also in policymaking (both intra- and inter-agency). As I explained
    last month in my testimony before the House,\101\ bringing agents and
    lawyers together would make the Department and the FBI more efficient
    and effective, and would also enhance protection of civil liberties. It
    would do this by taking advantage of the DOJ/FBI culture and training
    that have been in effect for many years in all investigative areas
    except national security. Agents and lawyers working together produce
    better results than either group working alone.
        In keeping with this view, I support legislative measures that tend
    to unite agents and lawyers in national security investigations.
    Section 213 will not do that because, like the current national
    security letter statutes, it allows the FBI to take investigative
    action unilaterally. It thus stands in contrast to grand jury
    subpoenas, which cannot be issued without the involvement of
    prosecutors. I believe Section 213 should encourage cooperation between
    agents and lawyers by requiring lawyers' involvement, or at least by
    giving the Attorney General the option to do so. The Attorney General
    controls both DOJ proper and the FBI, and he may therefore decide to
    delegate administrative subpoena power directly to the FBI. On the
    other hand, particularly if DOJ creates a National Security Division,
    he might delegate the power to the head of that division, and/or to
    specially designated Assistant U.S. Attorneys in the field. I recommend
    that Section 213 be changed to grant administrative subpoena authority
    to the Attorney General.

                                  SECTION 214

        Section 214 would eliminate the current requirement that the
    Department of Justice report to Congress on the number of cases in
    which FISA information has been authorized for use in criminal
    cases.\102\ The obligation to report authorizations for use of FISA
    information at trial would remain.\103\ If, as I hope, this provision
    reflects a vastly expanded administrative burden arising from vastly
    expanded sharing of intelligence information with law enforcement
    officials, then I take it as a very promising sign that dots are being
    connected.

                                  SECTION 215

        Section 215 would allow the government to obtain subscriber
    information, of the sort normally acquired by a FISA tangible things
    order, as part of FISA pen-trap surveillance. Thus, for example,
    instead of obtaining only the telephone numbers called by a monitored
    telephone, the government could get the telephone numbers and the
    names, addresses, length of service, and other information about the
    subscribers to those telephone numbers. This appears to be patterned
    after 18 U.S.C. Sec. 2703(c)(2). This seems like a reasonable effort to
    spare the government the need to file two applications instead of one,
    but again I would defer in the first instance to the Department of
    Justice on the question whether Section 215 would in fact remove a real
    burden. If Section 215 is desirable, I would also consider whether DOJ
    wants similar authority for FISA ``electronic surveillance'' orders
    issued under 50 U.S.C. Sec. 1805.

                                    Endnotes

        1. Written Testimony of David S. Kris before the House Committee on
    the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security
    (April 28, 2005) (hereinafter Kris House Testimony). I have, of course,
    made that testimony available to your staff. As of this writing, it is
    also available at http://judiciary.house.gov/media/pdfs/kris042805.pdf.
        2. Uniting and Strengthening America by Providing Appropriate Tools
    Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot
    Act or Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001).
    Section 224 of the Patriot Act provides:
              (a) IN GENERAL.--Except as provided in subsection (b), this
            title and the amendments made by this title (other than
            sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219,
            221, and 222, and the amendments made by those sections) shall
            cease to have effect on December 31, 2005.
              (b) EXCEPTION.--With respect to any particular foreign
            intelligence investigation that began before the date on which
            the provisions referred to in subsection (a) cease to have
            effect, or with respect to any particular offense or potential
            offense that began or occurred before the date on which such
            provisions cease to have effect, such provisions shall continue
            in effect.
    115 Stat. 295.
        3. Intelligence Reform and Terrorism Prevention Act of 2004
    (IRTPA), Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). Section
    6001 of the IRTPA provides:
              (a) IN GENERAL.--Section 101(b)(1) of the Foreign
            Intelligence Surveillance Act of 1978 (50 U.S.C.
            Sec. 1801(b)(1)) is amended by adding at the end the following
            new subparagraph:
                 ``(C) engages in international terrorism or activities in
            preparation therefore; or''.
              (b) SUNSET.--The amendment made by subsection (a) shall be
            subject to the sunset provision in section 224 of Public Law
            107-56 (115 Stat. 295), including the exception provided in
            subsection (b) of such section 224.
    118 Stat. 3742.
        4. See Kris House Testimony.
        5. In re Sealed Case, 310 F.3d 717 (FISCR 2002).
        6. Kris House Testimony at 13.
        7. Your legislative staff and the Department of Justice's Offices
    of Legislative Affairs and Legal Counsel would be better equipped than
    I am to determine the best way for Congress to express its endorsement
    of the Court of Review's decision. With some Justices and judges
    increasingly wary of legislative history, however, an enacted provision
    of public law may be more authoritative than even the clearest
    committee report or floor statement. See, e.g., Shannon v. United
    States, 512 U.S. 573, 583 (1994) (citing cases and noting that
    ``Members of this Court have expressed differing views regarding the
    role that legislative history should play in statutory
    interpretation'').
        8. Under 50 U.S.C. Sec. 1801(e), as amended by Section 203 of the
    Committee's bill, the term ``foreign intelligence information'' would
    be defined as follows (with Section 203's proposed language in
    redline):
              (1) information that relates to, and if concerning a United
            States person is necessary to, the ability of the United States
            to protect (including protection by use of law enforcement
            methods such, as criminal prosecution) against--
                 (A) actual or potential attack or other grave hostile acts
            of a foreign power or an agent of a foreign power;
                 (B) sabotage or international terrorism by a foreign power
            or an agent of a foreign power; or
                 (C) clandestine intelligence activities by an intelligence
            service or network of a foreign power or by an agent of a
            foreign power; or
              (2) information with respect to a foreign power or foreign
            territory that relates to, and if concerning a United States
            person is necessary to--
                 (A) the national defense or the security of the United
            States; or
                 (B) the conduct of the foreign affairs of the United
            States.
        9. In my House testimony last month, I stated:

              If you decide that you want to expand DOD's authority along
            these lines, and remove any statutory doubt, you should amend
            the definition of ``foreign intelligence information'' by
            adding the phrase ``including protection against the foregoing
            using law enforcement methods, such as criminal prosecution,''
            immediately after 50 U.S.C. Sec. 1801(e)(1)(C).

        Kris House Testimony at note 91 (emphasis in original). Section 203
    of the bill uses almost 18 identical language in a slightly different
    place in the definition. Professor Richard Seamon, a thoughtful
    academic commentator in this area, has recommended a similar approach.
    See Richard Seamon and William Gardner, The Patriot Act and the Wall
    Between Intelligence and Law Enforcement, 28 Harv. Journal on Law and
    Pub. Policy 319, 458-459 (Spring 2005) (recommending an amendment to 50
    U.S.C. Sec. 1801(e)(1) to provide that foreign intelligence information
    means ``information that relates to, and if concerning a United States
    person is necessary to, the ability of the United States, by law-
    enforcement or other lawful means, to protect against'' specified
    threats).
        For a detailed explanation of why and how this sort of amendment
    would function, see Kris House Testimony at 1-4, 9-12.
        10. See Kris House Testimony at 12-14 & n.90.
        11. I know at least one very intelligent person who disagrees. See
    Letter from Professor Richard Seamon to Chairman Howard Coble, House
    Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland
    Security (May 4, 2005).
        12. A full explanation for why this is the case appears on pages 9-
    12 of my House testimony last month. Here is an abbreviated
    explanation: The Court of Review interpreted Section 218 as codifying
    the ``false dichotomy'' between law enforcement methods and all other
    methods of protecting national security. It explained: ``The government
    heroically tries to give [Section 218] a wholly benign interpretation.
    It concedes that `the significant purpose amendment recognizes the
    existence of the dichotomy between foreign intelligence and law
    enforcement,' but it contends that `it cannot be said to recognize (or
    approve) its legitimacy.' Supp. Br. of U.S. at 25 (emphasis in
    original). We are not persuaded.'' In re Sealed Case, 310 F.3d at 734-
    735. On that basis, the Court of Review read Section 218 to permit FISA
    searches and surveillance primarily for law enforcement methods of
    protecting national security (id. at 734):

            as a matter of straightforward logic, if a FISA application can
            be granted even if `foreign intelligence' is only a
            significant--not a primary--purpose, another purpose can be
            primary. One other legitimate purpose that could exist is to
            prosecute a target for a foreign intelligence crime.

        Section 203 of the Committee's bill would eliminate the false
    dichotomy, and so also the premise of the Court of Review's
    interpretation of Section 218. To paraphrase from the block quote
    above, if the ``foreign intelligence'' purpose now includes the purpose
    to prosecute a target for a foreign intelligence crime (because of
    Section 203), then the ``other purpose'' that can be primary under
    Patriot Act Section 218 would have to be something different than
    prosecuting a target for a foreign intelligence crime--and indeed,
    different than anything that protects national security. Allowing FISA
    to be used primarily for something other than a ``foreign
    intelligence'' purpose (once ``foreign intelligence'' has been defined
    to include prosecution) seems unnecessary and unwise.
        13. Testimony of Gregory T. Nojeim, Associate Director and Chief
    Legislative Counsel Washington Legislative Office, American Civil
    Liberties Union, before the Subcommittee on Crime, Terrorism and
    Homeland Security of the House Judiciary Committee (April 28, 2005)
    (available at http://judiciary.house.gov/media/pdfs/nojeim042805.pdf)
        14. 18 U.S.C. Sec. Sec. 2510-2522.
        15. A Title III application must contain ``details as to the
    particular offense that has been, is being, or is about to be
    committed.'' 18 U.S.C. Sec. 2518(1)(b)(i). To grant the application,
    the court must find ``probable cause for belief that an individual is
    committing, has committed, or is about to commit a particular offense
    enumerated in section 2516 of this chapter.'' 18 U.S.C.
    Sec. 2518(3)(a). These provisions apply to all Title III cases, roving
    and non-roving.
        16. See note 15, supra.
        17. A Title III application must include ``the identity of the
    person, if known, committing the [specified] offense and whose
    communications are to be intercepted.'' 18 U.S.C. Sec. 2518(1)(b)(iv)
    (emphasis added). To grant the application, the court must find
    probable cause that ``an individual is committing, has committed, or is
    about to commit a particular [specified] offense.'' 18 U.S.C.
    Sec. 2518(3)(a) (emphasis added). In keeping with these provisions, the
    Supreme Court has held that ``when there is probable cause to believe
    that a particular telephone is being used to commit an offense but no
    particular person is identifiable, a [non-roving] wire interception
    order may, nevertheless, properly issue under the statute.'' United
    States v. Kahn, 415 U.S. 143, 157 (1974).
        18. A Title III application in a non-roving case must include ``a
    particular description of the nature and location of the facilities
    from which or the place where the communication is to be intercepted.''
    18 U.S.C. Sec. 2518(1)(b)(ii). To grant the application, the court must
    find probable cause either (1) that ``the facilities from which, or the
    place where, the wire, oral, or electronic communications are to be
    intercepted are being used, or are about to be used, in connection with
    the commission of [the specified] offense,'' or (2) that those
    facilities or places are ``leased to, listed in the name of, or
    commonly used by [the] person'' committing the specified offense. 18
    U.S.C. Sec. 2518(3)(d). However, the Department of Justice has publicly
    revealed that ``[for prudential reasons,'' it is ``often cautious about
    using the 'listed, leased, or commonly used' provision of Title III
    absent evidence that the facility is in fact being used in connection
    with the predicate offense.'' Supplemental Brief for the United States
    in In re Sealed Case, 310 F.3d 717 (FISCR 2002), at 18 n.6.
        19. To obtain Title III roving surveillance authority for oral
    communications, the government must ``identif[y] the person committing
    the offense and whose communications are to be intercepted.'' 18 U.S.C.
    Sec. 2518(11)(a)(ii). To obtain Title III roving surveillance authority
    for wire and electronic communications, the government must
    ``identif[y] the person believed to be committing the offense and whose
    communications are to be intercepted.'' 18 U.S.C. Sec. 2518(11)(b)(ii).
        20. Under 18 U.S.C. Sec. 2518(11), the requirements of 18 U.S.C.
    Sec. Sec. 2518(1)(b)(ii) and (3)(d), discussed in note 18, supra, ``do
    not apply'' if the government meets the other requirements for Title
    III roving surveillance of oral, wire, or electronic communications.
        21. Here is the description of roving Title III surveillance
    authority from the United States Attorneys' Manual (Sec. 9-7.111):

              Pursuant to 18 U.S.C. Sec. 2518(11)(a) and (b), the
            government may obtain authorization to intercept wire, oral,
            and electronic communications of specifically named subjects
            without specifying with particularity the premises within, or
            the facilities over which, the communications will be
            intercepted. (Such authorization is commonly referred to as
            ``roving'' authorization.) As to the interception of oral
            communications, the government may seek authorization without
            specifying the location(s) of the interception when it can be
            shown that it is not practical to do so. See United States v.
            Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct.
            1644 (1994); United States v. Orena, 883 F. Supp. 849 (E.D.N.Y.
            1995). An application for the interception of wire and
            electronic communications of specifically named subjects may be
            made without specifying the facility or facilities over which
            the communications will be intercepted when it can be shown
            that the subject or subjects of the interception have
            demonstrated a purpose to thwart interception by changing
            facilities. See United States v. Gaytan, 74 F.3d 545 (5th Cir.
            1996); United States v. Petti, 973 F.2d 1441 (9th Cir. 1992),
            cert. denied, 113 S. Ct. 1859 (1993); United States v.
            Villegas, 1993 WL 535013 (S.D.N.Y. December 22, 1993).

        22. Under Title III, the term ``oral communication'' means ``any
    oral communication uttered by a person exhibiting an expectation that
    such communication is not subject to interception under circumstances
    justifying such expectation, but such term does not include any
    electronic communication.'' 18 U.S.C. Sec. 2510(4). Oral communications
    would be intercepted by, e. g. , a concealed microphone.
        23. 18 U.S.C. Sec. 2518(11)(a). Section 2518(11)(a) provides:
        The requirements of subsections (1)(b)(ii) and (3)(d) of this
    section relating to the specification of the facilities from which, or
    the place where, the communication is to be intercepted do not apply
    if--
        (a) in the case of an application with respect to the interception
    of an oral communication--
        (i) the application is by a Federal investigative or law
    enforcement officer and is approved by the Attorney General, the Deputy
    Attorney General, the Associate Attorney General, an Assistant Attorney
    General, or an acting Assistant Attorney General;
        (ii) the application contains a full and complete statement as to
    why such specification is not practical and identifies the person
    committing the offense and whose communications are to be intercepted;
    and
        (iii) the judge finds that such specification is not practical.
        24. 18 U.S.C. Sec. 2518(12). The legislative history of this
    provision explains with respect to this ``ascertainment'' language:

              Proposed subsection 2518(12) of title 18 provides * * * that
            where the Federal Government has been successful in obtaining a
            relaxed specificity order, it cannot begin the interception
            until the facilities or place from which the communication is
            to be intercepted is ascertained by the person implementing the
            interception order. In other words, the actual interception
            could not begin until the suspect begins or evidences an
            intention to begin a conversation. * * * This provision puts
            the burden on the investigation agency to ascertain when the
            interception is to take place.

    S. Rep. No. 99-541, 99th Cong., 2d Sess. 32 (Oct. 17, 1986)
    (hereinafter ECPA Senate Report).
        25. Under Title III, the term ``wire communication'' means ``any
    aural transfer made in whole or in part through the use of facilities
    for the transmission of communications by the aid of wire, cable, or
    other like connection between the point of origin and the point of
    reception (including the use of such connection in a switching station)
    furnished or operated by any person engaged in providing or operating
    such facilities for the transmission of interstate or foreign
    communications or communications affecting interstate or foreign
    commerce.'' 18 U.S.C. Sec. 2510(1). Under Title III, a telephone call
    is a wire communication.
        26. Under Title III, the term ``electronic communication'' means
    ``any transfer of signs, signals, writing, images, sounds, data, or
    intelligence of any nature transmitted in whole or in part by a wire,
    radio, electromagnetic, photoelectronic or photooptical system that
    affects interstate or foreign commerce, but does not include--(A) any
    wire or oral communication; (B) any communication made through a tone-
    only paging device; (C) any communication from a tracking device (as
    defined in section 3117 of this title); or (D) electronic funds
    transfer information stored by a financial institution in a
    communications system used for the electronic storage and transfer of
    funds.'' 18 U.S.C. Sec. 2510(12). Under Title III, an electronic mail
    message is an electronic communication.
        22 27. 18 U.S.C. Sec. 2518(11)(b)(ii)-(iii). Section 2518(11)
    provides:
        The requirements of subsections (1)(b)(ii) and (3)(d) of this
    section relating to the specification of the facilities from which, or
    the place where, the communication is to be intercepted do not apply
    if--

        * * * *
        (b) in the case of an application with respect to a wire or
    electronic communication--
        (i) the application is by a Federal investigative or law
    enforcement officer and is approved by the Attorney General; the Deputy
    Attorney General, the Associate Attorney General, an Assistant Attorney
    General, or an acting Assistant Attorney General;
        (ii) the application identifies the person believed to be
    committing the offense and whose communications are to be intercepted
    and the applicant makes a showing that there is probable cause to
    believe that the person's actions could have the effect of thwarting
    interception from a specified facility;
        (iii) the judge finds that such showing has been adequately made;
    and
        (iv) the order authorizing or approving the interception is limited
    to interception only for such time as it is reasonable to presume that
    the person identified in the application is or was reasonably proximate
    to the instrument through which such communication will be or was
    transmitted.
        28. 18 U.S.C. Sec. 2518(11)(b)(iv). Under 18 U.S.C. Sec. 2518(12),
    ``[a] provider of wire or electronic communications service that has
    received [a roving surveillance order] may move the court to modify or
    quash the order on the ground that its assistance with respect to the
    interception cannot be performed in a timely or reasonable fashion.''
        29. A FISA application for electronic surveillance must include
    ``the identity, if known, or a description of the target of the
    electronic surveillance.'' 50 U.S.C. Sec. 1804(a)(3).
        30. A FISA application for electronic surveillance must include ``a
    statement of the facts and circumstances relied upon by the applicant
    to justify his belief that--(A) the target of the electronic
    surveillance is a foreign power or an agent of a foreign power.'' 50
    U.S.C. Sec. 1804(a)(4)(A). To grant the FISA application, the Foreign
    Intelligence Surveillance Court (FISC) must find, ``on the basis of the
    facts submitted by the applicant,'' that ``there is probable cause to
    believe that--(A) the target of the surveillance is a foreign power or
    an agent of a foreign power.'' 50 U.S.C. Sec. 1804(a)(4)(A).
        31. See 50 U.S.C. Sec. 1801(a)-(b) (defining ``foreign power'' and
    ``agent of a foreign power'').
        32. A FISA application for electronic surveillance must include ``a
    statement of the facts and circumstances relied upon by the applicant
    to justify his belief that * * * (B) each of the facilities or places
    at which the electronic surveillance is directed is being used, or is
    about to be used, by a foreign power or an agent of a foreign power.''
    50 U.S.C. Sec. 1804(a)(4)(B). To grant the FISA application, the FISC
    must find, ``on the basis of the facts submitted by the applicant,''
    that ``there is probable cause to believe that * * * (B) each of the
    facilities or places at which the electronic surveillance is directed
    is being used, or is about to be used, by a foreign power or an agent
    of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(B). See note 32, supra.
        33. The certification that is part of every FISA application must
    designate the type of foreign intelligence information being sought by
    the electronic surveillance, and explain the basis for the designation.
    50 U.S.C. Sec. 1804(a)(7)(D) and (E)(i).
        34. 50 U.S.C. Sec. 1805(c)(2)(B).
        35. See note 32, supra.
        36. As discussed in notes 18 and 32, supra, the government normally
    satisfies Title III by establishing probable cause that ``the
    facilities from which, or the place where, the wire, oral, or
    electronic communications are to be intercepted are being used, or are
    about to be used, in connection with the commission of [the underlying]
    offense,'' 18 U.S.C. Sec. 2518(3)(d), and FISA requires probable cause
    that ``each of the facilities or places at which the electronic
    surveillance is directed is being used, or is about to be used, by a
    foreign power or an agent of a foreign power.'' 50 U.S.C.
    Sec. 1805(a)(3)(B).
        37. ECPA Senate Report at 31.
        38. 50 U.S.C. Sec. 1805(c)(1)(B).
        39. 50 U.S.C. Sec. 1805(a)(3)(B)
        40. 50 U.S.C. Sec. 1801(h)(1).
        41. The nexus requirement applies only to each facility at which
    surveillance ``is'' directed, but the use of the present tense plainly
    would not support an argument that roving surveillance--which occurs in
    the future--is exempt from the requirement. On the contrary, even in an
    ordinary (non-roving) FISA case, the surveillance commences in the
    future--i.e., after the FISC has issued its order.
        42. 18 U.S.C. Sec. 2518(11)(b)(iv).
        43. Roving FISA surveillance is in fact being done. The Department
    of Justice revealed that there had been 49 roving FISA surveillance
    orders issued as of March 30, 2005. Testimony of James A. Baker,
    Counsel for Intelligence Policy, before the Subcommittee on Crime,
    Terrorism, and Homeland Security, Committee on the Judiciary, U.S.
    House of Representatives, April 28, 2005 (available at http://
    judiciary.house.gov/media/pdfs/baker042805.pdf) (hereinafter Baker
    House Testimony).
        The Department supports roving FISA surveillance with arguments
    similar to, but not identical to, the ones I advance here. As James
    Baker, the Counsel for Intelligence Policy, testified on April 28,
    2005:

              Let me respond to this criticism [concerning ``John Doe''
            warrants] in the following way. First, even when the government
            is unsure of the name of a target of such a wiretap, FISA
            requires the government to provide ``the identity, if known, or
            a description of the target of the electronic surveillance'' to
            the FISA Court prior to obtaining the surveillance order. 50
            U.S.C. Sec. Sec. 1804(a)(3) and 1805(c)(1)(A). As a result,
            each roving wiretap order is tied to a particular target whom
            the FISA Court must find probable cause to believe is a foreign
            power or an agent of a foreign power. In addition, the FISA
            Court must find ``that the actions of the target of the
            application may have the effect of thwarting'' the
            surveillance, thereby requiring an analysis of the activities
            of a foreign power or an agent of a foreign power that can be
            identified or described. 50 U.S.C. Sec. 1805(c)(2)(B). Finally,
            it is important to remember that FISA has always required that
            the government conduct every surveillance pursuant to
            appropriate minimization procedures that limit the government's
            acquisition, retention, and dissemination of irrelevant
            communications of innocent Americans. Both the Attorney General
            and the FISA Court must approve those minimization procedures.
            Taken together, we believe that these provisions adequately
            protect against unwarranted governmental intrusions into the
            privacy of Americans.

    Baker House Testimony at 2 (emphasis in original).
        44. See 50 U.S.C. Sec. 1805(f).
        45. Under 50 U.S.C. Sec. 1801(b)(1)(A), an ``agent of a foreign
    power'' is defined to include:
        (1) any person other than a United States person, who--
        (A) acts in the United States as an officer or employee of a
    foreign power, or as a member of a foreign power as defined in
    subsection (a)(4) of this section.
        Under 50 U.S.C. Sec. 1801(a)(4), a ``foreign power'' is defined to
    include ``a group engaged in international terrorism or activities in
    preparation therefor.''
        Under 50 U.S.C. Sec. 1801(c), ``international terrorism'' is
    defined to mean activities that:
        (1) involve violent acts or acts dangerous to human life that are a
    violation of the criminal laws of the United States or of any State, or
    that would be a criminal violation if committed within the jurisdiction
    of the United States or any State;
        (2) appear to be intended--
        (A) to intimidate or coerce a civilian population;
        (B) to influence the policy of a government by intimidation or
    coercion; or
        (C) to affect the conduct of a government by assassination or
    kidnapping; and
        (3) occur totally outside the United States, or transcend national
    boundaries in terms of the means by which they are accomplished, the
    persons they appear intended to coerce or intimidate, or the locale in
    which their perpetrators operate or seek asylum.
        46. Under 50 U.S.C. Sec. 1801(b)(2), an ``agent of a foreign
    power'' is defined to include: any person who--
        (A) knowingly engages in clandestine intelligence gathering
    activities for or on behalf of a foreign power, which activities
    involve or may involve a violation of the criminal statutes of the
    United States;
        (B) pursuant to the direction of an intelligence service or network
    of a foreign power, knowingly engages in any other clandestine
    intelligence activities for or on behalf of such foreign power, which
    activities involve or are about to involve a violation of the criminal
    statutes of the United States;
        (C) knowingly engages in sabotage or international terrorism, or
    activities that are in preparation therefor, for or on behalf of a
    foreign power;
        (D) knowingly enters the United States under a false or fraudulent
    identity for or on behalf of a foreign power or, while in the United
    States, knowingly assumes a false or fraudulent identity for or on
    behalf of a foreign power; or
        (E) knowingly aids or abets any person in the conduct of activities
    described in subparagraph (A), (B), or (C) or knowingly conspires with
    any person to engage in activities described in subparagraph (A), (B),
    or (C).
        47. See 50 U.S.C. Sec. Sec. 1805(e)(1)(B), (e)(2)(B) (electronic
    surveillance), 1824(d)(1)(B), (d)(2)(B) (physical searches).
        48. See 50 U.S.C. Sec. Sec. 1810 (``An aggrieved person, other than
    a foreign power or an agent of a foreign power, as defined in section
    1801(a) or (b)(1)(A) of this title, respectively, who has been
    subjected to an electronic surveillance or about whom information
    obtained by electronic surveillance of such person has been disclosed
    or used in violation of section 1809 of this title shall have a cause
    of action against any person who committed such violation and shall be
    entitled to recover'' money damages); 1828 (``An aggrieved person,
    other than a foreign power or an agent of a foreign power, as defined
    in section 1801(a) or (b)(1)(A), respectively, of this title, whose
    premises, property, information, or material has been subjected to a
    physical search within the United States or about whom information
    obtained by such a physical search has been disclosed or used in
    violation of section 1827 of this title shall have a cause of action
    against any person who committed such violation and shall be entitled
    to recover'' money damages).
        49. See 50 U.S.C. Sec. Sec. 1801(b)(1)(A), 1805(e)(1)(B). FISA's
    legislative history explains that the ``term `member' means an active,
    knowing member of the group or organization which is a foreign power.
    It does not include mere sympathizers, fellow-travelers, or persons who
    may have merely attended meetings of the group or organization.'' H.R.
    Rep. No. 1283, Part I, 95th Cong., 2d Sess. 34 (1978) (hereinafter
    House Report) This is, of course, a fact-intensive inquiry.
        50. 50 U.S.C. Sec. Sec. 1805(e)(1)(B), (2)(B), 1824(d)(1)(B),
    (d)(2)(B); see 50 U.S.C. Sec. Sec. 1801(b)(1)(A).
        51. 50 U.S.C. Sec. Sec. 1801(n) (``Contents', when used with
    respect to a communication, includes any information concerning the
    identity of the parties to such communication or the existence,
    substance, purport, or meaning of that communication'').
        52. 18 U.S.C. Sec. 2510(8) (``contents', when used with respect to
    any wire, oral, or electronic communication, includes any information
    concerning the substance, purport, or meaning of that communication'').
        53. See House Report at 51 (stating that pen registers were
    intended to be included in the definition of ``electronic
    surveillance'' in 50 U.S.C. Sec. 1801(f)(2)), 67 (``devices such as pen
    registers are included''); see also S. Rep. No. 185, 105th Cong., 2d
    Sess. 27 (1998) (noting that pen registers were considered electronic
    surveillance under the original version of FISA) (hereinafter Senate
    Intelligence Pen-Trap Report).
        54. Pub. L. No. 105-272, Sec. 601, 112 Stat. 2396 (Oct. 20, 1998),
    codified at 50 U.S.C. Sec. Sec. 1841-1846. Pen-trap orders may be
    obtained on a lesser showing than would be necessary for electronic
    surveillance or a physical search because the Supreme Court has held
    that limited information concerning the source or destination of a
    communication is not protected by the Fourth Amendment. See Smith v.
    Maryland, 442 U.S. 735 (1979). The Court in Smith reasoned that a
    person does not have a reasonable expectation of privacy in the numbers
    dialed from a telephone and therefore that a pen register does not
    constitute a ``search'' within the meaning of the Fourth Amendment. Id.
    at 742-46. Absent the statutory requirements to obtain a court order,
    therefore, the government could employ pen-trap devices without any
    judicial authorization.
        55. See 50 U.S.C. Sec. 1841(2) (defining pen register and trap and
    trace by reference to 18 U.S.C. Sec. 3127).
        56. 18 U.S.C. Sec. 3127(3).
        57. See note 62, infra.
        58. 18 U.S.C. Sec. 3127(4).
        59. See www.usdoj.gov/criminal/cybercrime/PatriotAct.htm. A trap
    and trace device is still defined in the statute as a trap and trace
    ``device'' even if it is in fact a process, rather than a device.
        60. See United States v. New York Tel. Co., 434 U.S. 159, 161 n.1
    (1977) (``A pen register is a mechanical device that records the
    numbers dialed on a telephone by monitoring the electronic impulses
    caused when the dial on the phone is released. It does not overhear
    oral communications and does not indicate whether calls are actually
    completed.'').
        61. See U.S. Internet Service Provider Association, Electronic
    Evidence Compliance--A Guide for Internet Service Providers, 18
    Berkeley Tech. L. J. 945, 956 (2003) (``Law enforcement may also use
    pen register and trap and trace orders to trace communications on the
    Internet and other computer networks.''). Prior to the Patriot Act, pen
    registers had been used to obtain computer routing and addressing
    information, but it was not well settled that this was the correct
    interpretation of the statute. See www.usdoj.gov/criminal/cybercrime/
    PatriotAct.htm.
        62. 18 U.S.C. Sec. 3127(3) & (4). FISA does not incorporate a
    provision of the criminal code that requires the government to use
    ``technology reasonably available to it that restricts'' pen-trap
    interceptions ``so as not to include the contents of any wire or
    electronic communications.'' 18 U.S.C. Sec. 3121(c). However, Section
    2.4 of Executive Order 12333 imposes similar restrictions, requiring
    Intelligence Community agencies, which include the intelligence
    elements of the FBI, to ``use the least intrusive collection techniques
    feasible within the United States or directed against United States
    persons abroad.''
        63. It applies only to the subchapter of FISA regulating electronic
    surveillance. Under the first sentence of 50 U.S.C. Sec. 1801, the
    definitions in that section apply only to ``this title,'' or Title I of
    FISA. The pen-trap provisions are in Title IV of FISA. Although
    Congress chose to incorporate by reference into the FISA pen-trap
    provisions many of the definitions applicable to electronic
    surveillance, it did not incorporate FISA's definition of ``contents.''
    See 50 U.S.C. Sec. 1841.
        64. 50 U.S.C. Sec. 1801(n).
        65. There may, of course, be another reason for Section 202, but if
    so I am unaware of it.
        66. One other concern might arise from 18 U.S.C. Sec. 2511(2)(f),
    which provides in relevant part that ``procedures in [Title III] or
    [the Stored Communications Act, 18 U.S.C. Sec. Sec. 2701-2712] and the
    Foreign Intelligence Surveillance Act of 1978 shall be the exclusive
    means by which electronic surveillance, as described in [50 U.S.C.
    Sec. 1801], and the interception of domestic wire, oral, and electronic
    communications may be conducted.'' FISA's broad definition of
    ``contents'' means that its definition of ``electronic surveillance''
    is correspondingly broad, see 50 U.S.C. Sec. 1801(f)(1)-(3), and
    includes pen-trap surveillance. This might give rise to the concern
    that Section 2511(2)(f) forbids criminal pen-trap surveillance because
    it provides that FISA and Title III are the ``exclusive means'' for
    conducting such surveillance. In other contexts, however, the courts of
    appeals have rejected arguments that Section 2511(2)(f) forbids
    domestic law enforcement investigative conduct that is ``electronic
    surveillance'' under FISA but not under Title III. See, e.g., United
    States v. Koyomejian, 970 F.2d 536. 540-541 (9th Cir. 1992) (en banc)
    (silent video surveillance, which is ``electronic surveillance'' as
    defined by FISA but is not regulated by Title III, may be conducted
    against domestic, criminal targets without following either FISA or
    Title III). This is a very complex area, in which I may not know all
    the relevant facts, but in any event, my sense is that if an amendment
    is needed, the provision to be amended should be 18 U.S.C.
    Sec. 2511(2)(f), not FISA.
        67. See 50 U.S.C. Sec. 1841(2) (FISA pen-trap devices defined by
    cross-reference to criminal pen-trap statute), 18 U.S.C. Sec. 3127(3)-
    (4) (criminal pen-trap surveillance may not intercept ``contents''), 18
    U.S.C. Sec. 3127(1) (defining ``contents'' for criminal pen-trap
    statute by cross-reference to Title III), 18 U.S.C. Sec. 2510(8)
    (defining ``contents'' in Title III as ``any information concerning the
    substance, purport, or meaning of [a] communication'').
        68. 18 U.S.C. Sec. 2510(8).
        69. See Electronic Communications Privacy Act (ECPA), Pub. L. 99-
    508, Sec. 101(a)(5), 100 Stat. 1848, amending 18 U.S.C. Sec. 2510(8);
    see also ECPA Senate Report at 13-14.
        70. 50 U.S.C. Sec. Sec. 1842(a)(1), (a)(2).
        71. As a technical drafting matter, the bill should specify that
    the change pertains to the second use of the word ``for'' in the
    provision.
        72. There are similar First Amendment provisions in other parts of
    FISA. See 50 U.S.C. Sec. Sec. 1805(a)(3)(A), 1824(a)(3)(A) (``no United
    States person may be considered * * * an agent of a foreign power
    solely upon the basis of activities protected by the first amendment to
    the Constitution of the United States''). (The electronic surveillance
    version of this standard applies to foreign powers and agents of
    foreign powers; the physical search version applies only to agents of
    foreign powers. I doubt the omission was intentional.) See also 50
    U.S.C. Sec. 1842(a)(1), (c)(2), 1843(a), (b)(1) (similar provisions for
    pen-trap surveillance).
        73. 50 U.S.C. Sec. 1861(d).
        74. 334 F. Supp.2d 471 (S.D.N.Y. 2004).
        75. 18 U.S.C. Sec. 2709. Section 2709 provides that ``[a] wire or
    electronic communication service provider shall comply with a request
    for subscriber information and toll billing records information, or
    electronic communication transactional records in its custody or
    possession made by the Director of the Federal Bureau of
    Investigation.'' 18 U.S.C. Sec. 2709(a). It also provides that ``[n]o
    wire or electronic communication service provider, or officer,
    employee, or agent thereof, shall disclose to any person that the
    Federal Bureau of Investigation has sought or obtained access to
    information or records under this section.'' 18 U.S.C. Sec. 2709(c).
        76. 334 F. Supp.2d at 514.
        77. Id.
        78. The Department of Justice is apparently of the same view. See
    Baker House Testimony at 3-4 (``some criticisms of section 215 have
    apparently been based on possible ambiguity in the law. The Department
    has already stated in litigation that the recipient of a section 215
    order may consult with his attorney and may challenge that order in
    court. The Department has also stated that the government may seek, and
    a court may require, only the production of records that are relevant
    to a national security investigation, a standard similar to the
    relevance standard that applies to grand jury subpoenas in criminal
    cases. The text of section 215, however, is not as clear as it could be
    in these respects. The Department, therefore, is willing to support
    amendments to Section 215 to clarify these points.'').
        79. See, e.g., Los Angeles Police Dep't v. United Reporting
    Publishing Co., 528 U.S. 32, 37-39 (1999) (explaining First Amendment
    overbreadth doctrine); cf. United States v. Salerno, 481 U.S. 739, 745
    (1987) (``The fact that [a statute] might operate unconstitutionally
    under some conceivable set of circumstances is insufficient to render
    it wholly invalid, since we have not recognized an `overbreadth'
    doctrine outside the limited context of the First Amendment'').
        80. See, e.g., Executive Order 12958 (as amended).
        81. See, e.g., Snepp v. United States, 444 U.S. 507, 510 n.3
    (1980).
        82. 50 U.S.C. Sec. Sec. 1801(h), 1805(a), 1805(c)(2)(A), 1821(4),
    1824(a), 1824(c)(2)(A).
        83. Executive Order 12333 Sec. 2.3; see also id. Sec. 1.14. The
    intelligence elements of the FBI are in the intelligence community. Id.
    Sec. 3.4(f)(6).
        84. Baker House Testimony at 3 (``The Attorney General also
    recently declassified the fact that the FISA Court has issued 35 orders
    under section 215 from the effective date of the Act through March 30th
    of this year. The Attorney General also declassified the types of
    business records sought by these orders. They include driver's license
    records, public accommodation records, apartment leasing records,
    credit card records, and subscriber information, such as names and
    addresses, for telephone numbers captured through court-authorized pen
    register devices. None of those orders were issued to libraries and/or
    booksellers, or were for medical or gun records.'').
        85. I have not reviewed Section 212 word-by-word against the
    current postal regulations.
        86. I was recently made aware of a November 19, 2004 letter from
    Attorney General Ashcroft to the Postmaster General, in which the
    Attorney General asked the Postmaster General to amend the mail
    regulations. The requested changes were not made.
        87. Compare 39 C.F.R. Sec. 233.3(c)(1)(i) and (9)(i)-(iii), with 50
    U.S.C. Sec. 1801(e)(1).
        88. 39 C.F.R. Sec. 233.3(c)(3)(8).
        89. 39 C.F.R. Sec. 233.3(e)(3).
        90. 39 C.F.R. Sec. 233.3(e)(2)(i).
        91. 39 C.F.R. Sec. 233.3(g)(5)-(6).
        92. 39 C.F.R. Sec. 233.3(g)(8).
        93. Under 39 U.S.C. Sec. 201, the Postal Service is ``an
    independent establishment of the executive branch.'' For a discussion
    of the status and corporate governance structure of the Postal Service,
    see United States Postal Service v. Flamingo Industries (USA) Ltd., 540
    U.S. 736, 740 (2004).
        94. The current guidelines for national security investigations
    issued under Executive Order 12333 are classified in part. See
    www.usdoj.gov/olp/nsiguidelines.pdf and www.usdoj.gov/olp/
    nsifactsheet.pdf. An earlier version of these guidelines, issued in May
    1995, is also classified in part. See www.usdoj.gov/ag/readingroom/
    terrorismintel2.pdf.
        95. 50 U.S.C. Sec. Sec. 1861-1862.
        96. 18 U.S.C. Sec. 3486.
        97. 21 U.S.C. Sec. 876 (``In any investigation relating to his
    functions under this subchapter with respect to controlled substances,
    listed chemicals, tableting machines, or encapsulating machines, the
    Attorney General may subpoena witnesses, compel the attendance and
    testimony of witnesses, and require the production of any records
    (including books, papers, documents, and other tangible things which
    constitute or contain evidence) which the Attorney General finds
    relevant or material to the investigation.''). For what appears to be a
    truly comprehensive list of administrative subpoena authorities held by
    Executive Branch entities, see United States Department of Justice,
    Office of Legal Policy, Appendices A, B & C Accompanying Report to
    Congress on the Use of Administrative Subpoena Authorities by Executive
    Branch Agencies and Entities Pursuant to Public Law 106-544, available
    at www.usdoj.gov/olp/appendixal.pdf, www.usdoj.gov/olp/appendixa2.pdf,
    www.usdoj
    .gov/olp/appendixb.pdf, and www.usdoj.gov/olp/appendixc.pdf.
        98. See United States Department of Justice, Office of Legal
    Policy, Report to Congress on the Use of Administrative Subpoena
    Authorities by Executive Branch Agencies and Entities Pursuant to
    Public Law 106-544, Table I at 40-41, available at http://
    www.usdoj.gov/olp/intro.pdf (hereinafter DOJ Administrative Subpoena
    Report).
        99. Between October 26, 2001, and January 21, 2003, the FBI issued
    what appears to be several hundred national security letters, although
    the precise number is apparently classified. See www.aclu.org/patriot
    foia/FOIA/NSLLists.pdf.
        100. DOJ Administrative Subpoena Report at 41 (noting delegation
    from Attorney General to FBI Director of authority to issue subpoenas
    under 18 U.S.C. Sec. 3486 in investigations of child sex abuse).
        101. See Kris House Testimony at 16-18.
        102. See 50 U.S.C. Sec. 1808(a)(2)(A) (semi-annual report shall
    describe ``each criminal case in which information acquired under this
    Act has been passed for law enforcement purposes during the period
    covered by such report''). See also 50 U.S.C. Sec. 1806(b) (``No
    information acquired pursuant to this subchapter shall be disclosed for
    law enforcement purposes unless such disclosure is accompanied by a
    statement that such information, or any information derived therefrom,
    may only be used in a criminal proceeding with the advance
    authorization of the Attorney General.'').
        103. Under 50 U.S.C. Sec. 1808(a)(2)(B), the semi-annual report
    must include a description of ``each criminal case in which information
    acquired under this chapter has been authorized for use at trial during
    such reporting period.''

     STATEMENT OF DAVID S. KRIS, FORMER ASSOCIATE DEPUTY ATTORNEY
                     GENERAL, DEPARTMENT OF JUSTICE

        Mr. Kris. Yes. Chairman Roberts, Vice Chairman Rockefeller,
    thank you very much for the opportunity to testify about your
    draft bill. I am speaking this morning as a private citizen and
    for myself only. But as a former government lawyer I would like
    to begin by joining the Department of Justice in applauding the
    bill. I think several provisions of it will help to keep us
    safe.
        For example, the renewal of several provisions from the
    Patriot Act is, in my view, a good idea about which I know
    you've heard a lot.
        My written testimony singles out two PATRIOT Act
    provisions, the ones pertaining to the FISA wall, Section 218,
    and the one pertaining to FISA roving surveillance, where I
    think I've made some observations that may not be obvious and
    may be helpful to you.
        I also applaud the bill as a private citizen and one who
    cares about and values privacy and civil liberties. There are a
    couple of provisions in the bill worthy of mention in that
    regard--section 211 which expands the disclosure rights and the
    reporting obligations for FISA tangible things orders; and
    section 213, which, in authorizing administrative subpoenas,
    also specifically provides for motions to quash such subpoenas
    filed by the recipients either in their local U.S District
    Courts or even in the Foreign Intelligence Surveillance Court.
    Actually, I have to say that that, in my view, is a
    questionable provision although it is protective of civil
    liberties, I think.
        At some sort of basic level it seems to me pretty clear
    that the Department and the FBI need to have the authority to
    compel the production of documents and other things in national
    security investigations, whether it be by National Security
    Letters or tangible things orders or administrative subpoenas,
    just as they have corresponding authority by administrative
    subpoena or grand jury subpoena in criminal cases.
        The question, it seems to me, is under what circumstances
    and what conditions will that authority be exercised? And just
    in sitting here listening to the dialog I sort of sketched out
    what I think are five or six factors that might or might not be
    applied to the exercise of administrative subpoena power.
        There is first the requirement for high level executive
    branch approval before such a subpoena could be issued; a
    requirement for a submission or a certification by an applicant
    in front of a judicial officer; advance judicial review, either
    substantive--looking at the certification and questioning it or
    procedural--making sure that the certification has all the
    required elements. There would be consultation rights and
    nondisclosure rules governing recipients. And then finally
    there would be the possibility of after-the-fact judicial
    review, either in a motion to quash by the recipient or maybe
    in some kind of ratification by a court of the administrative
    subpoena in the same way that FISA emergency orders are
    ratified after the fact.
        So those it seems to me are the factors. And this bill it
    seems to me is aiming for a balanced approach to the question
    of granting authority but also conditioning it in appropriate
    ways. At a minimum, it strikes me as a good place to begin the
    dialog.
        One other thing that I think is worth thinking about in
    considering the administrative subpoena provisions and the
    other provisions in this bill: it is not just a question of
    whether the government as a whole should have this power or
    should not have this power under certain conditions. I think
    it's also a question of which parts of the government have the
    power, because in a bureaucracy as big as the executive branch,
    every time you grant power to one part you change the way it
    relates to the others.
        And in my view, it is important to grant the authority here
    to the Attorney General, for two reasons--first to reaffirm
    once again that the Attorney General is, in fact, in charge
    both of DOJ proper and of the FBI, and also because I think it
    is important as we go forward, sort of emerging from the shadow
    of the FISA wall, to encourage wherever possible the
    interaction of agents and lawyers, whether they be prosecutors
    or other lawyers, within the Department of Justice.
        And so I think the Attorney General ought to have the
    authority to delegate this power of administrative subpoenas,
    if it's granted, to whomever he or she believes is the
    appropriate recipient, maybe with some floor set by statute.
        For example, right now there is a discussion I believe,
    according to the New York Times, about whether to create a
    national security division within the Department of Justice.
    And if such a division were created the Attorney General might
    well choose to delegate this power to the assistant attorney
    general for that division rather than to the Director. So I
    think the statute should give the Attorney General that
    authority.
        And now I would obviously be happy to answer any of your
    questions.
        Chairman Roberts. We thank you for your testimony, Mr.
    Kris.
        Mr. Onek.
        [The prepared statement of Mr. Onek follows:]

                       Prepared Statement of Joseph Onek

        Mr. Chairman, Senator Rockefeller, Members of the Committee. I
    greatly appreciate this opportunity to testify on the pending proposals
    to extend and amend provisions of the Patriot Act and the Foreign
    Intelligence Surveillance Act. The Patriot Act and FISA are important
    tools in the fight against terrorism, but both raise significant civil
    liberties issues. We therefore need to subject them to careful and
    continuing scrutiny.

                            ADMINISTRATIVE SUBPOENAS

        The draft legislation proposes to amend FISA by providing for
    administrative subpoenas in national security investigations.
    Administrative subpoenas are now used in many types of investigations,
    and the government asks why they shouldn't also be used by the FBI in
    the fight against terrorism. But the government ignores some very
    crucial facts.
        First, administrative subpoenas are typically used for discrete
    purposes and to obtain limited types of records. But here the subpoenas
    would be seeking records relating to foreign intelligence and
    terrorism. The range of activities that relate foreign intelligence and
    terrorism is enormous and, therefore, there is virtually no limit to
    the type of records the FBI will be able to subpoena. The FBI will seek
    financial records, employment records, transportation records, medical
    records and yes, sometimes, library records. The collection of this
    massive array of records creates special problems. Inevitably, FBI
    investigations will sweep up sensitive information about innocent, law-
    abiding people. How do we assure this information is not abused? The
    FBI will also sweep up information about people who have nothing
    whatsoever to do with terrorism but who may have committed other
    infractions, both minor and major. What will the FBI do with this
    information? Should it use the information in criminal prosecutions or
    other proceedings unrelated to terrorism? Does it make any difference
    that a highly disproportionate amount of this information will be
    collected about people who (quite naturally and innocently) happen to
    write, visit and send money to places such as Pakistan and Iraq?
        I am not suggesting that the Committee now address these complex
    privacy and profiling issues. But I do believe the Committee should
    keep these issues in mind as it considers whether to give the FBI
    essentially unlimited subpoena authority.
        There is a second crucial difference between the ordinary use of
    administrative subpoenas and proposal before the Committee. As set
    forth in the draft, the FBI's subpoenas must be kept completely secret
    whenever the FBI says that national security requires non-disclosure.
    This means that a record holder who receives a subpoena that is
    overbroad or impinges on first amendment rights will not be able to
    complain to the press, the Congress or the public.
        This is not an insignificant disadvantage. Just last year, a
    Federal prosecutor in Iowa served grand jury subpoenas on Drake
    University and members of the university community in connection with a
    peaceful antiwar forum. The university community protested loudly, the
    press took up the controversy, and the subpoenas were promptly
    withdrawn. This cannot happen when the subpoenas are secret.
        If subpoenas covering a vast array of records are going to be
    served in secret, there must be additional safeguards. The most obvious
    safeguard is prior judicial approval, such as is provided, however
    inadequately, in Section 215 of the Patriot Act. We should not permit,
    for the first time in our history, the massive use of secret subpoenas
    that have not been approved by a judge.
        I recognize that the proposed draft provides record holders with
    the opportunity to challenge any subpoena in Federal court. But this
    opportunity is no substitute for prior judicial approval. Third party
    record holders will generally have no incentive to undertake the
    burdens of a Federal court challenge, and the secrecy provisions
    further reduce the likelihood of a challenge. If, for example, a
    hospital receives a subpoena for a massive number of medical records
    and the subpoena is made public, the medical staff and patient groups
    might pressure the hospital to file a challenge. There will be no such
    pressure with a secret subpoena. Thus, there will be little judicial
    supervision of the FBI's use of secret subpoenas.
        The FBI should be required to obtain a court order when it seeks
    access to business records. I believe the current standards for issuing
    such orders, as set forth in Section 215 of the Patriot Act, should be
    tightened along the lines suggested by the SAFE Act. Subpoena power
    should be limited to records involving or pertaining to an ``agent of a
    foreign power'' as defined in FISA. But in any event there must be a
    requirement for judicial approval. Such a requirement imposes a
    salutary discipline on the government. It forces the government to
    think through and describe, in the words of Deputy Attorney General
    Comey, the ``meaningful, logical connection between the record sought
    and the subject of the investigation.'' If the government believes that
    obtaining a court order is too slow in certain circumstances, it should
    propose procedures for the prompter handling of urgent requests.
        In sum, I believe the Committee should not go forward with the
    proposal for new subpoena authority for the FBI. But if the Committee
    does go forward, it should clarify and improve certain provisions.
        Section 808(a)(3)(b), providing for judicial review, states that
    upon the government's request the court ``shall'' receive government
    submissions ex parte and in camera. Of course, there may be a need for
    the government to submit classified information to the court ex parte
    and in camera. But under the section as written the government could
    make a submission to the court without even notifying the opposing
    party of that fact and without disclosing those portions of its
    submission, such as discussions of legal precedents, that do not
    require special protection. This section should be modified to grant
    the court discretion to assure that, as in the Classified Information
    Procedures Act, both the government's interest in protecting national
    security and the private party's interest in a fair hearing are
    appropriately accommodated.
        Section 808(d), Standard of Review, is ambiguously worded. The
    standard for court modification of a subpoena is whether compliance
    would be ``unreasonable or oppressive'', while the standard for setting
    aside a subpoena is ``abuse of discretion.'' What is the relationship
    between the two standards? Can there be an unreasonable or oppressive
    subpoena that does not constitute an abuse of discretion? Can there be
    an abuse of discretion based on other factors?

                                  MAIL COVERS

        In addition to granting the FBI new subpoena power, the draft
    legislation proposes to amend FISA to authorize the FBI to request mail
    covers from the Postal Service. As with the subpoena power, it is not
    clear why this new authority is necessary. The FBI already has the
    ability to request mail covers under Postal Service regulations.
        Perhaps, however, this is an opportunity to make the laws
    regulating FBI investigations more coherent. Mail covers are
    conceptually similar to the pen registers and trap and trace devices
    that are presently regulated by Title IV of FISA. Why shouldn't they be
    treated in a similar fashion under FISA? This would require the FBI to
    obtain a court order for mail covers. As you know from previous
    Committee hearings, there is some dispute about the standards for the
    issuance of pen register and trap and trace orders. I will not go into
    that here. The crucial point is that there should be some judicial
    supervision and some coherence in the law.

                                   LONE WOLF

        The Committee draft repeals the sunset of the ``Lone Wolf ''
    provision that was enacted just a few months ago. I believe the ``Lone
    Wolf '' provision may well be unconstitutional and that, in light of
    criminal surveillance authorities, it is unnecessary. The Committee has
    not yet received the government's first report on the provision and
    cannot have an adequate record as to how the provision has been used
    and whether alternative surveillance authorities were available. I
    suggest, therefore, that the current sunset requirement be extended
    until December 31, 2007. This will give the Committee and the Congress
    a better opportunity to assess the need for the provision.

                               OTHER FISA ISSUES

        Section 203 of the Committee's draft amends FISA by stating that
    ``foreign intelligence information'' includes information relating to
    national security criminal prosecutions. Once again, I am not sure why
    this amendment is necessary, since there is widespread agreement that
    the ``wall'' no longer exists. But the amendment does underscore the
    very significant fact that today an increasing number of criminal cases
    involve the use of FISA evidence. This requires a re-examination of
    whether current procedures for the use of FISA evidence in criminal
    cases are fair.
        As Jim Dempsey testified before this Committee in April, criminal
    defendants in most cases can obtain access to the affidavit that served
    as the basis for the wiretap order or search warrant and thus can
    challenge the basis for the wiretap or search in an adversarial
    proceeding. By contrast, defendants in FISA cases have never been
    granted such access and have never had a meaningful opportunity to
    challenge the basis for the search. Congress should assure that normal
    criminal adversary procedures apply when FISA evidence is used against
    individuals, with appropriate use of the Classified Information
    Procedures Act to protect government interests.
        There is another problem with FISA that has not been adequately
    addressed. Under FISA, the government can obtain an order to conduct
    secret searches of any home or office. Unlike the ``sneak and peek''
    searches authorized in Section 213 of the Patriot Act, these searches
    remain secret forever unless the government chooses to disclose them or
    there is a criminal trial involving evidence seized during the search.
    This means that innocent Americans have had, and will have, their most
    intimate records and belongings searched by the government without ever
    being informed of the search. Similarly, although Title III wiretaps
    are ultimately disclosed, FISA wiretaps are not.
        I believe that FISA should be amended to assure that individuals
    are informed they have been subject to a secret FISA search or wiretap
    unless there are valid national security grounds to continue the
    secrecy. In cases where there has been a secret search or wiretap but
    no disclosure of that fact in a criminal trial the government should be
    required to periodically file a motion with the FISA court requesting
    and justifying continued non-disclosure.

                                   CONCLUSION

        In concluding, I would like to commend the Committee for its
    attention to congressional oversight, including the reporting
    requirements contained in the draft legislation. Congressional
    oversight is crucial and must be pursued vigorously. But executive
    branch accountability requires more than congressional oversight; it
    requires judicial oversight and as much openness as is consistent with
    national security. When, as in terrorism investigations, a high degree
    of secrecy is warranted, a meaningful role for the judiciary becomes
    all the more important. The Committee should not eviscerate that role
    by granting broad subpoena power to the FBI.

     STATEMENT OF JOSEPH ONEK, SENIOR POLICY ANALYST, OPEN SOCIETY
          INSTITUTE, AND SENIOR COUNSEL, CONSTITUTION PROJECT

        Mr. Onek. Thank you, Chairman Roberts, Vice Chairman
    Rockefeller, members of the committee.
        I'd like to begin, if I may, by talking about the Lone Wolf
    provision because I think it may get lost in the shuffle. This
    provision was not passed 3\1/2\ years ago; it was passed just a
    few months ago. Yet the draft legislation would repeal the
    sunset for it. And I think this may be a good example of what
    Senator Rockefeller had described earlier of a provision where
    the sunset should clearly be extended.
        I happen to believe that the Lone Wolf provision may be
    unconstitutional and that, in light of other criminal
    surveillance authorities, it's unnecessary.
        But the crucial point is that this Committee has not yet
    received the government's first report, because the 6-month
    period isn't up yet, on this provision. The Committee can't
    have an adequate record as to how often or when the provision
    has been used and whether alternative surveillance authorities
    are available.
        So I think this is the perfect occasion, certainly, to take
    up Senator Rockefeller's suggestion about these provisions. And
    in this case I think it's clear the sunset provision should be
    extended for 3 or 4 years. This would give the Committee and
    the Congress a better opportunity to assess the need for the
    Lone Wolf provision.
        I'd like to turn to administrative subpoenas. There's been
    a discussion of how often they've been used in other contexts.
    There's also already been a discussion about the fact that here
    we're dealing with a much, much broader array of records.
    Indeed, because we're investigating foreign intelligence and
    terrorism, there's essentially no limit on the kinds of records
    that can be subpoenaed. And I think this raises all sorts of
    privacy and profiling issues, which I'd be glad to discuss in
    the questioning.
        But there's another difference between these subpoenas and
    the other uses of administrative subpoenas. These are going to
    be largely secret. That means that the recipient can't complain
    to the press, can't complain to the public, can't complain to
    the Congress.
        And this isn't insignificant. Just last year in Iowa, a
    Federal prosecutor requested records from Drake University and
    members of the community in connection with a peaceful antiwar
    forum. The university community got up in arms and protested.
    The press took up the controversy. And the subpoenas were
    withdrawn 3 days later. Now, that just can't happen when the
    subpoenas are secret.
        So if you're going to have secret subpoenas, I think there
    have to be additional safeguards. And the obvious and best
    safeguard is prior judicial approval, as is provided, for
    example, in Section 215. Now there can be an exception for
    emergency cases, as Senator Feinstein suggested, and FISA
    already has exceptions in Title I and Title III for
    emergencies.
        But never in our history, I don't believe, has there ever
    been a situation where there's been massive use of secret
    subpoenas without prior judicial approval. This is a totally
    new thing. All the other subpoenas they're talking about are
    not secret, and the people who get them have a chance to
    complain about them.
        This is a very different situation. You'd be creating, for
    the first time in our history, a regime of mass secret
    subpoenas, because I'm sure this is going to be used a great
    deal. Most of the time they will be secret. And under those
    circumstances I think prior judicial approval is required.
        Post-judicial approval won't work. Ms. Caproni was very
    candid with this Committee when she pointed out that very few
    third-party record-holders ever move to quash a subpoena. She
    was very clear on that. So I don't think that post-hoc judicial
    review is going to take place. It just ain't going to happen.
        And by the way, it's going to happen even less because of
    the secrecy. For example, if you subpoena hospital records and
    was public, maybe the patient groups and the medical staff
    would pressure the hospital into challenging the subpoena. But
    if it's a secret subpoena and, as in this legislation, the
    hospital has immunity from giving the records over, its just
    going to give them over.
        So after-the-fact judicial review is not going to happen.
    This is a classic case where we should have judicial approval.
    If you're going to have vast numbers of secret subpoenas, the
    real safeguard you must have is prior judicial approval as in
    Section 215. I happen to believe that the standard in Section
    215 should be tightened. We can, of course, discuss that in the
    question-and-answer period.
        Thank you.
        Chairman Roberts. We thank you for your testimony, sir.
        Mr. Collins.
        [The prepared statement of Mr. Collins follows:]

                    Prepared Statement of Daniel P. Collins

        Chairman Roberts, Vice-Chairnian Rockefeller, and Members of the
    Committee, I am grateful for the opportunity to testify before you
    today. Three and one-half years ago, the USA PATRIOT Act was signed
    into law by President Bush with overwhelming support in both Houses of
    Congress. See Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). That
    strong bipartisan consensus reflected the gravity and importance of the
    chief objective of that legislation, which was set forth right in the
    title: ``providing appropriate tools required to intercept and obstruct
    terrorism.'' As the horrific events of September 11 demonstrated, there
    are few priorities more pressing than detecting and preventing
    terrorist attacks. It is critical that the men and women whose job it
    is to protect us have the tools they need to get that job done, and to
    get it done in a manner that both enhances security and respects
    liberty.
        However, as the Committee is well aware, several provisions of
    Title II of the PATRIOT Act are scheduled to expire on December 31,
    2005, absent action by Congress. Id., Sec. 224(a), 115 Stat. at 295.
    Under Section 101 of the draft legislation that is the subject of this
    hearing, nine of the PATRIOT Act provisions that are currently subject
    to sunset would be made peiivanent. See Section 101 (repealing the
    sunset of sections 203(b), 203(d), 204, 206, 207, 214, 215, 218, and
    225 of the PATRIOT Act). I agree that these nine provisions should be
    made permanent. Today, as in 2001, they are ``appropriate tools'' in
    the war on terror.
        My perspective on these matters is informed by my service over the
    years in various capacities in the Justice Department. Most recently, I
    served from June 2001 until September 2003 as an Associate Deputy
    Attorney General (``ADAG'') in the office of Deputy Attorney General
    Larry Thompson. During the same period, I also served as the
    Department's Chief Privacy Officer, and in that capacity, I had the
    responsibility for coordinating the Department's policies on privacy
    issues. I also served, from 1992 to 1996, as an Assistant United States
    Attorney in the Criminal Division of the U.S. Attorney's Office for the
    Central District of California in Los Angeles. And prior to that, I had
    served from 1989 to 1991 as an Attorney-Advisor in the Office of Legal
    Counsel in Washington, D.C. I am now back in private practice in Los
    Angeles, and I emphasize that the views I offer today are solely my
    own.
        Before turning to the nine relevant PATRIOT Act provisions that are
    up for ``sunset'' review by this Committee, I think it is useful to
    outline some of the basic principles that should guide an analysis of
    these provisions. The overarching question whether a particular
    surveillance authority is an ``appropriate tool'' ultimately turns on
    whether that tool assists in detecting and preventing terrorism, and
    whether it does so in a manner that preserves and enhances privacy. In
    making that judgment, it is important not to fall into the fallacy of
    ``zero-sum'' thinking, whereby every expansion of government
    surveillance authority is somehow deemed inherently to represent a loss
    of privacy. This sort of thinking does not make much sense either from
    a national security perspective or from a civil liberties perspective.
    The question instead is whether the conditions placed on the
    availability and use of a particular tool are sufficient to permit it
    to be deployed effectively when warranted, but only in a manner that is
    respectful of privacy and basic civil liberties.
        Beyond that very general statement, there is, I think, general
    agreement on a number of more specific principles that help to inform
    any judgment about the propriety and adequacy of the conditions place
    upon the use of a particular tool:
         Unwavering fidelity to the Constitution. Privacy is a
    cherished American right. Among the various ways in which the
    Constitution protects that right, the Fourth Amendment specifically
    reaffirms the right of the people to be free from unreasonable searches
    of their ``houses, papers, and effects.'' Our laws must scrupulously
    respect the limits established by the Constitution. As many have said,
    we have to think outside the box, but not outside the Constitution. But
    while the Constitution sets the minimum, our laws have long properly
    reflected the judgment that, from a policy perspective, there should be
    additional statutory protections for privacy. I do not question that
    judgment.
         Not all privacy interests are the same. Not all privacy
    interests are of the same magnitude, and it makes no policy sense to
    act as if they were. For example, some categories of information are
    more important and more sensitive than others. The fact that the
    supermarket club could maintain a computerized stockpile of information
    about my personal buying habits may raise a privacy concern, but it is
    not on the same level as someone eavesdropping on my phone
    conversations or reading my medical records. The nature and severity of
    the privacy intrusion at issue are certainly important factors to
    consider.
         Privacy is not always the most important value. It is
    essential to keep in mind that, while privacy is an important right, it
    is by no means the only important value. Human society, by its very
    nature, involves some loss of personal privacy. Competing concerns
    raised by new technology may also justify particular intrusions on
    privacy: no one can deny that airport inspections are essential to
    public safety, regardless of the cost to privacy.
         If it's good enough for fighting the mob, it's good enough
    for fighting terrorism. Any tool that is already available to fight any
    other type of crime--be it racketeering, drug trafficking, child
    pornography, or health care fraud--should be available for fighting
    terrorism, and should have an appropriate analog in the foreign
    intelligence context. If the judgment has already been made that the
    tool is appropriate for fighting these other crimes, and that any
    privacy interests at stake must yield to that effort, then surely the
    tool should also be available to fight terrorism.
         The law of inertia must not be a principle of privacy
    policy. It does not make much sense to perpetuate outmoded ways of
    doing things simply because it has always been done that way. As times
    and technologies change, the judgments that are reflected in existing
    statutory rules may need to be re-evaluated.
         The importance of technological neutrality. In applying
    privacy principles to new and emerging technologies, an important
    benchmark is the concept of ``technological neutrality.'' The idea is
    that, just because a transaction is conducted using a new technology,
    there should not have to be a loss of privacy when compared to similar
    transactions using older technologies. To use an example, the privacy
    protection for ordinary email should be roughly equivalent to that of
    an ordinary postal letter. Conversely, the emergence of new
    technologies should not provide foreign agents with new ways to thwart
    legitimate and legally authorized foreign intelligence activities. The
    notion of technological neutrality takes into account both sides of the
    coin.
        With these basic principles in mind, let me explain why I think
    each of the nine pertinent sections of the PATRIOT Act that would be
    made permanent by Section 101 of the proposed legislation are ones that
    properly enhance the abilities of intelligence officials in a manner
    that respects and preserves our freedoms.

                       (1)-(2) SECTIONS 203(B) AND 203(D)

        These provisions, which authorize certain forms of information
    sharing between law enforcement officers and intelligence officials,
    are among the most important in the PATRIOT Act.
        Specifically, section 203(b) authorizes the sharing of Title III
    wiretap information with intelligence and national security officials,
    subject to several conditions: (1) the information must have been
    obtained ``by any means authorized by this chapter,'' i.e., in
    accordance with the strict requirements of Title III; (2) the
    information to be shared must ``include foreign intelligence or
    counterintelligence'' or ``foreign intelligence information'' as those
    terms are specifically defined by the relevant statutes; (3) the
    information may only be used by such official ``as necessary in the
    conduct of that person's official duties''; (4) any such official must
    also comply with ``any limitations on the unauthorized disclosure of
    such information''; and (5) to the extent the information ``identifies
    a United States person,'' the disclosure must comply with statutorily
    mandated guidelines issued by the Attorney General. See Pub. L. No.
    107-56, Sec. 203(b), (c), 115 Stat. at 280-81.
        Section 203(d) more generally authorizes sharing of information
    ``obtained as part of a criminal investigation,'' subject to the
    following restrictions: (1) the information to be shared must comprise
    ``foreign intelligence or counterintelligence'' or ``foreign
    intelligence information'' as those terms are specifically defined by
    the relevant statutes; (2) the information may only be used by such
    official ``as necessary in the conduct of that person's official
    duties''; and (3) any such official must also comply with ``any
    limitations on the unauthorized disclosure of such information.'' See
    Pub. L. No. 107-56, Sec. 203(d), 115 Stat. at 281.
        As the 9/11 Commission and others have noted, the need for
    appropriate sharing of information between law enforcement and
    intelligence officials is absolutely critical to detecting and
    preventing terrorism. Moreover, the safeguards imposed by section
    203(b) and section 203(d) seem properly tailored to ensure that law
    enforcement officials will only share information that qualifies as ``
    foreign intelligence or counterintelligence'' or ``foreign intelligence
    information'' and will do so only subject to appropriate restrictions.
    It must be emphasized that these modest provisions do not, as some
    critics have wrongly claimed, put the CIA in the business of ``spying
    on Americans.'' By definition, all information subject to sharing under
    sections 203(b) and 203(d) has been obtained by the lawful
    investigative activities of law enforcement officials either under
    Title III or ``as part of a criminal investigation.''

                                (3) SECTION 204

        Section 204 is a largely technical amendment that clarifies the
    relationship between the authorities under the criminal statute
    governing ``pen registers'' and ``trap-and-trace'' devices and the
    authorities under otherwise applicable Federal law concerning certain
    foreign intelligence activities. Pub. L. No. 107-56, Sec. 204, 115
    Stat. at 281. I am not aware of an substantial reason why this
    provision should not be made permanent.

                                (4) SECTION 206

        Section 206 of the PATRIOT Act addresses the subject of so-called
    ``roving wiretaps'' under the Foreign Intelligence Surveillance Act of
    1978 (``FISA''). In my view, section 206 strikes an appropriate balance
    on this subject and should be preserved.
        Under the current version of Section 105(c)(1)(B) of FISA, a FISA
    order authorizing electronic surveillance only needs to specify the
    nature and location of each such facility or place ``if known.'' 50
    U.S.C. Sec. 1805(c)(1)(B). Notably, the addition of the phrase ``if
    known'' was not made by the PATRIOT Act, but rather by the Intelligence
    Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108,
    Sec. 314(a)(2)(A), 115 Stat. 1394, 1402 (2001); that amendment is
    therefore not subject to the PATRIOT Act's sunset provision. Although
    current law thus dispenses with a specification requirement when the
    exact nature and location of the facilities or places are not known in
    advance, the existing version of Section 105(a)(3)(B) continues
    unambiguously to State that an authorizing order may only be issued if,
    inter alia, ``there is probable cause to believe that . . . each of the
    facilities or places at which the electronic surveillance is directed
    is being used, or is about to be used, by a foreign power or an agent
    of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(B). Reading these
    provisions together, it would seem clear that, even when it cannot be
    specified in advance what are the particular facilities and places that
    will be surveilled, the Government must nonetheless provide a
    sufficient description of the categories of facilities and places that
    will be surveilled (presumably by describing their connection to the
    target) so as to permit the court to make the finding that remains
    required by Section 105(a)(3)(B).
        The pertinent change made by Section 206 of the PATRIOT Act was
    merely to eliminate the requirement that the authorizing order in all
    cases specify in advance those third parties (e.g., wire carriers) who
    were directed to supply assistance in carrying out the order. See Pub.
    L. No. 107-56, Sec. 206, 115 Stat. at 282 (amending 50 U.S.C.
    Sec. 1805(c)(2)(B)). Instead, the PATRIOT Act states that, if the court
    finds that ``the actions of the target of the application may have the
    effect of thwarting the identification of a specified person,'' the
    order may require the cooperation of other such persons who have not
    been specified. Id. This modest change makes perfect sense: the prior
    third-party-assistance specification requirement had the obvious
    potential to allow targets to defeat surveillance simply by changing,
    for example, from one cell phone to another. Indeed, it is hard to see
    why one would want to allow this specific amendment to sunset: there is
    no apparent advantage to requiring the Government to go back to the
    FISA Court merely because the target has shifted from one wire service
    provider to another.
        Some have called for making the roving wiretap provisions of FISA
    more analogous to those for ordinary criminal roving wiretaps in Title
    III. Under 18 U.S.C. Sec. 2518(11), the requirement in ' 2518(1)(b)(ii)
    to provide a ``particular description of the nature and location of the
    facilities from which or the place where the communication is to be
    intercepted'' does not apply if, inter alia, the application
    ``identifies the person believed to be committing the offense.''
    Setting aside the issue about what the ``identification'' requirement
    thus imposed by Title III requires here, the apparent intent of these
    critics of Section 206 is that FISA should mimic Sec. 2518(11) by
    imposing an identification requirement in any case in which the
    requirement to specify particular places has been waived. The analogy,
    however, is flawed, because of a crucial difference between ' 2518(11)
    and Section 105 of FISA.
        In addition to waiving the specification-of-places requirement in
    Sec. 2518(1)(b)(ii), the roving wiretap provision of Title III also
    waives the requirement in Sec. 2518(3)(d) that the court must first
    find probable cause to believe that ``the facilities from which, or the
    place where, the wire, oral, or electronic communications are to be
    intercepted are being used, or are about to be used, in connection with
    the commission of such offense, or are leased to, listed in the name
    of, or common used by [the target].'' See 18 U.S.C. Sec. 2518(11)
    (stating that the ``requirements of subsections (1)(b)(ii) and 3(d) of
    this section relating to the specification of the facilities from
    which, or the place where, the communication is to be intercepted do
    not apply'' to roving wiretaps authorized under Title III). As I
    explained above, FISA's analog to Sec. 2518(3)(d) of Title III is
    contained in Section 105(a)(3)(B) of FISA, which states that an
    authorizing order may only be issued if, inter alia, ``there is
    probable cause to believe that . . . each of the facilities or places
    at which the electronic surveillance is directed is being used, or is
    about to be used, by a foreign power or an agent of a foreign power.''
    50 U.S.C. Sec. 1805(a)(3)(B). It is important to note that nothing in
    the roving wiretap provisions of FISA waives this requirement. The
    apparent effect of that difference is that unlike Title III, a FISA
    roving wiretap application must still provide, as I explained earlier,
    a sufficient description of the categories of facilities and places
    that will be surveilled (presumably by describing their connection to
    the target) so as to permit the court to make the additional probable
    cause finding that remains required by Section 105(a)(3)(B). This
    additional safeguard strikes a different balance from Title III, but an
    appropriate one, and it makes any analogy to Title III inapt. That is,
    in light of FISA's preservation of this requirement, the need for a
    requirement to ``identify'' the target is doubtful. Indeed, because it
    overlooks this crucial additional requirement that only FISA imposes,
    the clear effect of incorporating Title III's restrictions would be to
    make FISA roving wiretaps harder to obtain that Title III wiretaps.

                                (5) SECTION 207

        Section 207 extends the time periods for which the FISA Court can
    initially authorize, and later extend, electronic surveillance and
    physical searches. See Pub. L. No. 107-56, Sec. 207, 115 Stat. at 282.
    Notably, Section 207 only peimits these more generous time periods to
    be used with respect to a FISA target who is not ``a United States
    person.'' 50 U.S.C. Sec. 1805(e)(1)(B), (e)(2)(B) (limiting this
    authority to ``an agent of a foreign power, as defined in section
    1801(b)(1)(A) of this title''); id., Sec. 1801(b)(1) (stating that the
    definition in that paragraph applies only to a ``person other than a
    United States person'') (emphasis added). Pre-existing law had already
    permitted more generous authorization periods for FISA orders directed
    at entities, organizations, and groups that constitute ``foreign
    powers,'' 50 U.S.C. Sec. 1805(e)(1)(A),(e)(2)(A), and Section 207
    properly permits longer authorization periods to also be used only for
    that subset of agents of foreign powers who are not United States
    persons. There seems to be little advantage to allowing this provision
    to sunset; the net effect would merely be more paperwork and a
    diversion of scarce resources that would be more appropriately deployed
    on other matters.

                                (6) SECTION 214

        Section 214 is one of several provisions of the PATRIOT Act that
    properly endeavor to ensure that there will be appropriate analogs, in
    foreign intelligence investigations, for the various tools that are
    available to assist law enforcement in criminal investigations. In
    particular, Section 214 addresses the use of ``pen registers'' and
    ``trap and trace devices,'' i.e., instruments for collecting
    information about the address or routing of a communication (e.g., the
    telephone numbers of outgoing calls dialed on a telephone and the
    telephone numbers of incoming calls), but not the content of the
    communication.
        The Supreme Court held long ago that the proper use of a pen
    register does not implicate the Fourth Amendment, because there is no
    reasonable expectation of privacy in the numbers dialed on a
    telephone--numbers that, by definition, the dialer has voluntarily
    turned over to a third party (i.e., the telephone company). Smith v.
    Maryland, 442 U.S. 735, 744 (1979). Since 1986, however, Congress has
    appropriately regulated the use of such devices, requiring (inter alia)
    an attorney for the Government to make an application to a court in
    which the attorney certifies that the information to be collected is
    relevant to an ongoing criminal investigation. 18 U.S.C.
    Sec. 3122(b)(2). Prior to Section 214, FISA analogously allowed the use
    of pen registers and trap and trace devices in foreign intelligence
    investigations, but the limitations imposed by FISA on such devices
    were much more restrictive than in the criminal context. Specifically,
    in contrast to the more generous ``relevance'' standard imposed in
    criminal cases, FISA limited the use of such devices to situations
    where the facilities in question have been or are about to be used in
    communication with ``an individual who is engaging or has engaged in
    international terrorism or clandestine intelligence activities'' or a
    ``foreign power or an agent of a foreign power.'' 50 U.S.C.
    Sec. 1842(c)(3) (2000 ed.). Section 214 amended FISA's standards to
    permit appropriate use of such devices upon a certification that the
    device is likely to obtain (1) ``foreign intelligence information not
    concerning a United States person'' or (2) information that is
    ``relevant to an ongoing investigation to protect against international
    terrorism or clandestine intelligence activities.'' See Pub. L. No.
    107-56, Sec. 214(a)(2), 115 Stat. at 286. In the latter context,
    Section 214 provides explicit protection for the First Amendment rights
    of United States persons. Id.
        Under Section 214, the ability to use pen registers and trap and
    trace devices under FISA is thus rendered more analogous in scope to
    its criminal counterpart. With respect to information concerning a
    United States person, Section 214 imposes the same standard of
    ``relevance'' to an ongoing investigation, but it also specifies that
    the investigation must be one to protect against ``international
    terrorism'' or ``clandestine intelligence activities.'' Given that 18
    U.S.C. Sec. 3122 imposes a relevance standard in all ordinary criminal
    cases, it is hard to see why that standard is not sufficient in an
    intelligence investigation to protect against international terrorism
    and clandestine intelligence activities. That is, if relevance to an
    ongoing investigation is a sufficient basis for authorizing a pen
    register in, say, a fraud case or a drug case, why would it not be a
    sufficient basis for permitting the use of such a device to investigate
    international terrorism?

                                (7) SECTION 215

        Section 215 of the PATRIOT Act is another provision designed to
    ensure that a tool available to assist law enforcement in ordinary
    criminal investigations will have an appropriate counterpart in foreign
    intelligence investigations. For a very long time, grand juries have
    had very broad authority to obtain, by subpoena, records and other
    tangible items that may be needed during the course of a criminal
    investigation. Section 215 provides a narrow analog to such subpoenas
    in the context of certain intelligence investigations under FISA.
    Indeed, in many respects, Section 215 contains more protections than
    the rules governing grand jury subpoenas:
         A court order is required. 50 U.S.C. Sec. 1861(c).
         The court is not merely a rubber-stamp, because the
    statute explicitly recognizes the court's authority to ``modif[y]'' the
    requested order. Id., Sec. 1861(c)(1).
         The section has a narrow scope, and can be used in an
    investigation of a U.S. person only ``to protect against international
    terrorism or clandestine intelligence activities.'' Id.,
    Sec. 1861(a)(1), (b)(2). It cannot be used to investigate domestic
    terrorism.
         The section provides explicit protection for First
    Amendment rights. Id., Sec. 1861(a)(1), (a)(2)(B).
        The draft bill would make the important clarification that the
    records may only be obtained if they are ``relevant'' to an
    investigation to protect against international terrorism or clandestine
    intelligence activities. See Section 211(a)(1)(A), (2). As I understand
    it, this amendment would not alter the current understanding of the
    provision, but would merely eliminate any doubt about whether the
    relevance standard is applicable here.
        Some have called for a standard that is higher than ``relevance''
    to an investigation, and have instead suggested that a Section 215
    order should be granted only upon a showing of specific and articulable
    facts giving reason to believe that the person to whom the records
    pertain is a foreign power or an agent of a foreign power. This is much
    too narrow a standard. Suppose that FBI agents suspected that an as-
    yet-unidentified individual foreign agent may have consulted certain
    specific technical titles on bomb-making or on nuclear power
    facilities, and they are informed that 5 persons have checked out those
    specific titles from public libraries in the relevant area and time
    period. Because it cannot be said that there are ``specific and
    articulable facts'' to suspect all 5 persons who checked out the books
    as all being foreign agents (the most that can be said is that one of
    them may be), application of such a high standard would seemingly
    require more evidence before any of the records could be obtained. Even
    if one were to agree that the general business records authority in
    Section 215 might benefit from greater reticulation in the contexts of
    particular types of records, this particular requirement seems too
    strict. Given the various safeguards already in place in Section 215,
    which adequately take account of the difference between investigations
    under FISA and ordinary criminal investigations, there is insufficient
    justification for a standard that is so much more demanding than the
    ordinary ``relevance'' standard that has long governed grand jury
    subpoenas in criminal investigations (some of which, like the Versace
    murder and Zodiac gunman investigations, did consult library records).
        Despite what some of its critics seem to imply, the narrowly
    drafted business records provision in Section 215 has no special focus
    on authorizing the obtaining of ``library records.'' On the contrary,
    because the provision specifically forbids the use of its authority to
    investigate U.S. persons ``solely upon the basis of activities
    protected by the first amendment to the Constitution,'' the provision
    explicitly does not authorize Federal agents to rummage through the
    library records of ordinary citizens. Because I think this language
    properly addresses a concern that has been raised about Section 215's
    sweep, I would recommend against retaining Section 211(a)(1)(B) of the
    draft legislation, which would appear to eliminate this clause of
    Section 215, i.e., the clause that provides specific protection for
    first amendment rights. That is, while I disagree with those who
    recommend imposing additional significant substantive limitations on
    Section 215, I would also recommend against eliminating the substantive
    safeguards that are currently contained in the provision.
        The draft legislation properly declines to create any sort of
    carve-out for libraries from the otherwise applicable scope of Section
    215: that would simply establish libraries and library computers as a
    ``safe harbor'' for international terrorists. Indeed, over the years,
    grand juries have, on appropriate occasions, issued subpoenas for
    library records in connection with ordinary criminal investigations. In
    my view, a sensible privacy policy should allow an appropriately
    limited analog in the FISA context, and Section 215 is just that.
        Section 211(b) of the draft bill would make appropriate and
    necessary clarifying changes to Section 215 by specifying that the
    prohibition on nondisclosure of Section 215 orders is not intended to
    preclude the recipient of such an order from consulting with counsel or
    from requesting permission from the FBI to make other appropriate
    consultations (e.g., perhaps consulting an accountant with respect to
    an order requesting financial records).
        Section 211(c) properly establishes additional procedural
    protections by requiring the Attorney General to adopt ``minimization
    procedures governing the retention and dissemination'' of any items
    obtained under a Section 215 order.
        The Attorney General, in his testimony before this Committee on
    April 27, 2005, indicated that the Department of Justice agreed that a
    recipient of a Section 215 order could bring a challenge to such an
    order in court. Section 215 is silent as to where and how such a review
    might be carried out, as is the draft bill. I would recommend that
    specific provisions establishing the proper venue and procedures for
    such challenges be set forth in legislation.

                                (8) SECTION 218

        Despite being only one sentence long, Section 218 is one of the
    most important provisions in the PATRIOT Act. Prior to Section 218, an
    application for electronic surveillance under FISA had to contain a
    certification that ``the purpose'' of the surveillance ``is to obtain
    foreign intelligence information.'' 50 U.S.C. Sec. 1804(a)(7)(B) (2000
    ed.). Section 218 changed the phrase ``the purpose'' to ``a
    significance purpose,'' thus clarifying that the presence of other
    purposes (such as a possible criminal prosecution) did not preclude a
    FISA application. In doing so, Section 218 disapproved the ``primary
    purpose'' test that had been engrafted onto the pre-PATRIOT Act
    language. In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. of
    Rev. 2002). This amendment, as many have noted, was important in
    tearing down the ``wall'' between intelligence personnel and law
    enforcement personnel. It should not be permitted to lapse. Moreover,
    allowing Section 218 to expire could potentially put the law in a state
    of confusion, because the Foreign Intelligence Surveillance Court of
    Review has cast doubt on whether the ``primary purpose'' test was a
    correct reading of the pre-PATRIOT Act statutory language. In re Sealed
    Case, supra. As a result, there is considerable room for argument over
    what exactly would be the effect of allowing this provision to lapse.
    The Congress should ensure clarity in this important area of the law by
    making Section 218 permanent. Section 101 of the draft legislation does
    that, and Section 203 also includes a further, appropriate amendment
    confirming the correctness of the Court of Review's conclusion that
    FISA Section 101(e)(1)'s reference to c, protect[ing]'' against
    international terrorism, etc., includes protecting by means of a
    criminal prosecution that disables the foreign agents involved.

                                (9) SECTION 225

        This section extends to the FISA statute the same immunity from
    civil liability that exists under Title III for wire or electronic
    communications service providers who assist in carrying out a court
    order or an emergency request for assistance under FISA. Pub. L. No.
    107-56, Sec. 225, 115 Stat. at 295-96. There is no good reason the
    immunity of a service provider for carrying out court orders for
    surveillance should depend upon whether the order was issued under
    Title III or under FISA. This provision should be made permanent.

                 ADDITIONAL PROVISIONS OF THE DRAFT LEGISLATION

        The draft bill also contains detailed provisions providing for the
    use of ``administrative subpoenas'' in certain intelligence
    investigations, and codifying (with changes) the use of so-called
    ``mail covers'' in such investigations. See Sections 213 and 212. The
    authorization of administrative subpoenas by Section 213 would appear
    to be an appropriate invocation of the principle that, if a tool is
    available to fight other crimes, it should be available to fight
    terrorism. Under 18 U.S.C. Sec. 3486(a), administrative subpoenas are
    currently authorized in the investigation of, inter alia, a ``Federal
    health care offense'' and ``a Federal offense involving the sexual
    exploitation or abuse of children.'' As I said before, if the judgment
    has already been made that this tool is appropriate for fighting these
    other crimes, and that any privacy interests at stake must yield to
    that effort, then surely the tool should also be available to fight
    terrorism, and should have an analog in the foreign intelligence
    context. The appropriate questions should, in my view, instead focus on
    the technical issues concerning how such authority would be granted in
    the FISA context. Thus, for example, to the extent that the procedures
    specified in Section 213 differs from those in 18 U.S.C. Sec. 3486, are
    those differences warranted by differential factors unique to the FISA
    context? Moreover, what should be the relation between the scope of the
    administrative subpoena authority in Section 213 of the draft bill and
    the business records provision in Section 215 of the PATRIOT Act? These
    are questions that I think warrant careful study and consideration. But
    I find it very hard to say that administrative subpoena authority is
    just fine when it comes to health care fraud, but is somehow a grave
    threat to liberty when it comes to fighting terrorism.
        The ``mail cover'' provisions in Section 212 relate solely to
    information on the exterior of mail that is not subject to any
    reasonable expectation of privacy, such as addressing information. The
    provision appears to be fairly narrowly drafted in terms of the scope
    of the authority it confers, the high-level approval it requires, and
    the requirement for ``minimization'' with respect to retention and
    dissemination of records obtained by a mail cover under this section.
    Notably, the provision only applies to requests made to the ``United
    States Postal Service.'' The apparent intent of the provision is to
    ensure appropriate cooperation from the Postal Service, while leaving
    the judgment whether to request the mail cover with the FBI. That
    formal allocation of authority seems sensible (since only the FBI will
    be privy to the full context of the intelligence investigation that
    leads to the request). The Committee should evaluate whether it is
    needed as a practical matter in light of the history on this issue
    between the FBI and the Postal Service.
        I would also like to make a brief comment about Section 202 of the
    draft bill. This section would amend FISA's definition of ``content''
    so that it more closely conforms with the definition of ``content''
    under the Title III wiretap statute, 18 U.S.C. Sec. 2510(8). This
    appears to be a sensible change. By defining ``any information
    concerning the identity of the parties to [a] communication'' as
    ``contents,'' FISA's current definition could be misconstrued as
    casting doubt on whether mere addressing information, not derived from
    the substance of the communication, is ``contents.'' As the pen
    register statutes reflect, mere addressing information is not
    ordinarily considered to be ``contents,'' and there is no harm in
    eliminating a perceived potential ambiguity in FISA on this score.
        I would be pleased to answer any questions the Committee might have
    on this subject.

        STATEMENT OF DANIEL P. COLLINS, FORMER ASSOCIATE DEPUTY
    ATTORNEY GENERAL AND CHIEF PRIVACY OFFICER, U.S. DEPARTMENT OF
                                JUSTICE

        Mr. Collins. Chairman Roberts, Vice Chairman Rockefeller,
    members of the Committee, I'm pleased to testify before you
    today on the important bill and the important subject that
    you've taken up.
        The title of the PATRIOT Act, we're used to calling it the
    PATRIOT Act but that stands for Providing Appropriate Tools
    Required to Intercept and Obstruct Terrorism. And part of this
    Committee's work is evaluating whether, in light of the
    opportunity since enactment of the PATRIOT Act to review those
    tools, whether they are still judged to be appropriate.
        The draft bill before the Committee would make nine of
    those tools permanent, and I agree with that assessment. Today,
    as in 2001, they remain appropriate tools in the war on terror.
    I've addressed all nine of those in my written statement. I'd
    like to focus on two of them and then make a few comments on
    administrative subpoenas.
        Section 206 on roving wiretaps has been a subject of
    significant controversy--section 206 of the PATRIOT Act. As
    I've set forth in my written statement, I think that it's based
    on a misunderstanding of the differences between FISA and Title
    III, because the primary criticism toward section 206 is that
    it does not incorporate all of the restrictions that are
    contained on roving wiretaps in Title III on the criminal side.
    But that is because Title III, on the other hand, waives
    certain other restrictions that are present in FISA.
        So you have actually a different set of restrictions on
    each side of the ledger. It's a different balance struck on
    each side. But I think in both cases it's an adequate balance
    that is struck, and that therefore that provision should be
    made permanent without modification.
        Section 215 of the PATRIOT Act is another provision that's
    designed to ensure that on the intelligence and national
    security side, there are counterparts in terms of investigative
    tools to the tools that are present on the criminal side. And
    that is the provision that allows for access with a court order
    to business records.
        And the current version of Section 215 contains a number of
    protections. A court order is required. The court is not merely
    a rubber stamp, because the statute explicitly recognizes the
    right of the court to modify the requested order. It has a
    narrow scope that is specified in the statute. It can't be used
    to investigate, for example, domestic terrorism. And it
    provides explicit protection for First Amendment rights, a
    provision that I think should be retained in that statute.
        The draft bill that's before the Committee would make this
    permanent, would make, I think, an important clarification that
    the relevance standard, which is actually not reflected on the
    text of the current provision, is meant to be in the provision
    and that is made explicit in the provision as modified by the
    bill before this Committee.
        Also, the bill properly establishes additional procedural
    protections by requiring the Attorney General to adopt
    minimization procedures governing the retention and
    dissemination of any items obtained under a Section 215 order.
        There's been reference this morning to the fact that the
    Attorney General, in his testimony before this Committee on
    April 27, indicated that judicial review should be available to
    challenge 215 orders. That is not a subject that is currently
    addressed in Section 215 and I would respectfully submit would
    be profitably addressed in draft legislation.
        The draft bill also contains a provision which has been the
    subject of much discussion concerning administrative subpoenas.
    With respect to that provision, my basic approach to that is
    that with respect to terrorism--which is essentially one of our
    most important priorities, is fighting terrorism--there should
    be something equivalent to a most-favored-nations clause.
        If we have a tool that is available for some other crime,
    for some lesser harm, and we have presumably already made the
    choice that privacy interests that are at stake with respect to
    that tool must yield in those other circumstances, then I think
    the burden is on those to say why that tool should not be
    extended to terrorism. It would seem that without more, it
    should be applied terrorism. And I think that is the basic
    logic behind the extension of the administrative subpoena here.
        The placement of the administrative subpoena authority on
    the FISA side does raise, I think, a number of questions that
    need to be addressed. First and foremost is, what is the
    relationship between that authority and the authority that
    exists within Section 215, because there's certainly a
    significant overlap between the business records authority, and
    indeed the standards are described similarly in the two
    devices.
        Senator Feinstein suggested that the administrative
    subpoena should apply only in emergency situations, and
    presumably would leave the Section 215 authority to be the
    authority that is invoked in the non-emergency situations.
    Another possibility would be, in crafting the regime of
    judicial review for Section 215, to make the standards more
    lenient--in other words, that the judicial review would be less
    searching on the Section 215 side than it might be on the
    administrative subpoena side if the Department went to the
    trouble of getting judicial review of the order before it was
    actually issued. There are a number of possibilities the
    Committee could consider in that regard.
        Mr. Kris has raised the issue of delegation, that if
    there's concern about whether it should be placed with the
    Director or particular officials within the Bureau, that it
    could be raised to the Attorney General and leave the Attorney
    General with flexibility to change the designation.
        There's also the issue of the court that should conduct the
    review. The current provision on administrative subpoenas here
    would give any district court in the United States the
    authority to hear the challenges. Another possibility would be
    to model the judicial review after, in a sense, the pen/trap
    provision that's in FISA, which allows the FISA court or, in
    that case, its magistrate judges, a list of magistrate judges
    publicly designated by the Chief Justice.
        You could have a similar model apply to the districts
    across the country so that we would know that you were
    selecting venues that would have the capacity to act quickly in
    terms of the facilities, et cetera, to handle something that
    would involve in-camera review of sensitive material.
        I would be pleased to answer any questions the committee
    may have.
        Chairman Roberts. We thank you very much for your
    testimony, Mr. Collins. Mr. Dempsey, you're next. And I would
    like to put a bug in your ears. I'm not asking for a rendition
    of Capital Gang or anything that's on television, but if each
    of you would have a comment on any of the others' comments in
    terms of a suggestion, why, we would be interested in that
    after Mr. Dempsey finishes his testimony.
        And so we will now ask Mr. Dempsey for his commentary,
    please.
        [The prepared statement of Mr. Dempsey follows:]

          Prepared Statement of James X. Dempsey, Executive Director,
                       Center for Democracy & Technology*

        Chairman Roberts, Vice Chairman Rockefeller, Members of the
    Committee, thank you for the opportunity to testify this morning. I
    previously testified before the Committee on April 19, at which time I
    urged the Committee to preserve the PATRIOT Act powers but to adopt
    checks and balances to make them more effective and less subject to
    abuse. In particular, I stressed the role of prior judicial review
    based upon a factual showing and particularized suspicion. The draft
    bill before the Committee takes some small steps in the right
    direction, but overall the draft shifts radically in exactly the wrong
    direction.
    ---------------------------------------------------------------------------
        * The Center for Democracy and Technology is a non-profit, public
    interest organization dedicated to promoting civil liberties and
    democratic values for the new digital communications media. Among our
    priorities is preserving the balance between security and freedom after
    9/11. CDT coordinates the Digital Privacy and Security Working Group
    (DPSWG), a forum for computer, communications, and public interest
    organizations, companies and associations interested in information
    privacy and security issues.
    ---------------------------------------------------------------------------
        In particular, I will focus on the proposal for administrative
    subpoenas in national security investigations. This is a big deal. The
    first, threshold question of need has not been addressed. And contrary
    to what has been said by some, there is no precedent in existing law
    for the grant of administrative subpoena power to the FBI in national
    security cases. Given the unique nature of intelligence investigations,
    which call for greater not lower standards, we urge the Committee to
    reconsider and reject this proposal.
        At the outset, let me re-emphasize some basic points on which I
    hope there is widespread agreement:
         Terrorism poses a grave and imminent threat to our nation.
    There are people--almost certainly some in the United States--today
    planning additional terrorist attacks, perhaps involving biological,
    chemical or nuclear materials.
         The government must have strong investigative authorities
    to collect information to prevent terrorism. These authorities must
    include the ability to conduct electronic surveillance, carry out
    physical searches effectively, and obtain transactional records or
    business records pertaining to suspected terrorists.
         These authorities, however, must be guided by the Fourth
    Amendment, and subject to meaningful judicial controls as well as
    executive and legislative oversight and a measure of public
    transparency.

    INTELLIGENCE INVESTIGATIONS ARE MORE DANGEROUS TO LIBERTY THAN CRIMINAL
        INVESTIGATIONS--THEY ARE BROADER, CAN ENCOMPASS FIRST AMENDMENT
     ACTIVITIES AND ARE MORE SECRETIVE AND LESS SUBJECT TO AFTER-THE-FACT
         SCRUTINY--AND THEREFORE INTELLIGENCE POWERS REQUIRE STRONGER
                            COMPENSATING PROTECTIONS

        Throughout the PATRIOT Act debate, and now in the context of
    administrative subpoenas, the government has argued that it should have
    the same powers subject to the same standards in intelligence
    investigations that it has in criminal investigations. As we will
    explain below, administrative subpoenas are not normally available in
    criminal investigations, but even if they were, there are strong
    reasons not to extend criminal justice norms (like ``relevance'') to
    intelligence investigations.
        Intelligence investigations are special, in ways that make them
    preferable to the government, but also in ways that make them more
    dangerous to liberty than criminal investigations. First, intelligence
    investigations are broader. They are not limited by the criminal code.
    They can investigate legal activity. In the case of foreign nationals
    in the United States, they can focus solely on First Amendment
    activities. Even in the case of U.S. persons, they can collect
    information about First Amendment activities. In this context, the
    concept of ``relevance'' has little meaning. Look at Section 215 and
    the proposed administrative subpoena authority. They refer to ``an
    investigation to protect against international terrorism.'' The
    standard does not say ``an investigation into international terrorism
    activities''--that would at least mean that there was some specific
    terrorism activity being investigated. Instead, it says ``an
    investigation to protect against international terrorism.'' Think about
    an investigation to ``protect against'' tax fraud. Or an investigation
    to ``protect against'' bank robbery. How broad would that be?\1\
    ---------------------------------------------------------------------------
        \1\ This point was articulated by Suzanne Spaulding in her May 10,
    2005 testimony before the Senate Judiciary Committee.
    ---------------------------------------------------------------------------
        Second, intelligence investigations are conducted in much greater
    secret than criminal cases, even perpetual secret. When a person
    receives a grand jury subpoena or an administrative subpoena in an
    administrative proceeding, normally he can publicly complain about it.
    In a criminal case, even the target is often notified while the
    investigation is underway. Most searches in criminal cases are carried
    out with simultaneous notice to the target. Even though wiretaps are
    conducted in secret, the target is notified afterwards. Notice is an
    important element of Fourth Amendment norms, but most searches and
    wiretaps in intelligence investigations are secret forever. Under the
    proposed administrative subpoena authority, the FBI can compel the
    recipient to perpetual secrecy.
        Third, the big show in a criminal investigation is the trial. A
    prosecutor knows that, at the end of the process, his actions will all
    come out in public. If he is overreaching, if he went on a fishing
    expedition, that will all be aired, and he will face public scrutiny
    and even ridicule. That's a powerful constraint. Similarly, an
    administrative agency like the SEC or the FTC must ultimately account
    in public for its actions, its successes and its failures. But most
    intelligence investigations never result in a trial or other public
    proceeding. The evidence is used clandestinely. Sometimes the desired
    result is the mere sense that the government is watching.
        Since intelligence investigations are broader, more secret and
    there is no after the fact scrutiny, protections must be built in at
    the beginning. That is where the PATRIOT Act fell short and where the
    proposal for administrative subpoenas falls short.

      THE DIGITAL REVOLUTION IS PLACING MORE AND MORE INFORMATION IN THE
                             HANDS OF THIRD PARTIES

        Section 215 of the PATRIOT Act and to an even greater degree the
    administrative subpoena authority are of especially grave concern
    because they exploit trends in technology that threaten to almost
    eliminate privacy. More and more information about our lives is
    collected in daily transactions by those with whom we transact
    business. Grocery stores, other merchants, hotels, travel agents,
    insurance companies, and banks all collect computerized information
    about our actions. Credit cards, EZ passes, cell phones, and the
    Internet generate digital fingerprints giving a broad picture of our
    interests and associations. Congress has tried to keep pace, with laws
    on financial privacy and medical privacy, but the administrative
    subpoena provisions of the draft bill would wipe those protections
    away.
        Moreover, a storage revolution is sweeping the field of information
    and communications technology. ISPs, websites and other online service
    providers are offering very large quantities of online storage, for
    email, calendars, photographs and even voicemail. Increasingly,
    ordinary citizens are storing information not in their homes or even on
    portable devices but on networks, under the control of service
    providers who can be served with compulsory process and never have to
    tell the subscribers that their privacy has been invaded.

           THE THRESHOLD QUESTION--THERE HAS BEEN NO SHOWING OF NEED

        The 9/11 Commission concluded that the burden of proof for
    retaining--and equally so for adding--a particular governmental power
    should be on the executive to explain that the power actually
    materially enhances security. To show that a power is needed, the
    government must show that current powers are inadequate. With respect
    to administrative subpoenas, the government has not met that burden.
        As the Justice Department itself has noted, the rationale behind
    administrative subpoenas is that ``Without sufficient investigatory
    powers, including some authority to issue administrative subpoena
    requests, Federal governmental entities would be unable to fulfill
    their statutorily imposed responsibility to implement regulatory or
    fiscal policies.'' U.S. Department of Justice, Office of Legal Policy,
    ``Report to Congress on the Use of Administrative Subpoena Authorities
    by Executive Branch Agencies and Entities, pursuant to Public Law 06-
    544'' (2002) at p. 6. As the DOJ goes on to note, limiting this
    authority ``would leave administrative entities unable to execute their
    respective statutory authorities.'' Id at 7.
        Under current law, the FBI already has far-reaching and sufficient
    compulsory powers to obtain any relevant information when it is
    investigating terrorism, under both its criminal and intelligence
    authorities:
         Search Warrants. In any criminal investigation of
    international terrorism, the FBI can obtain a search warrant for
    documents or other materials if there is a judicial finding of probable
    cause that a crime is being planned. Search warrants can be issued not
    only to search a suspect's home, but also to obtain documents from any
    other third party if they constitute evidence of a crime.
         Grand Jury Subpoenas. The FBI also can use grand jury
    subpoenas in any criminal investigation of international terrorism to
    obtain any documents or other materials.
         FISA Orders and NSLs. In internatiional terrorism cases,
    the FBI has sweeping authority to obtain business records and any other
    tangible things under the Foreign Intelligence Surveillance Act, as
    amended by the PATRIOT Act. This authority exists not only in Section
    215, but also in the five National Security Letter authorities for
    those categories of records considered especially pertinent to
    intelligence investigations.
        The government has made no showing that these powers are
    insufficient. To the contrary, it has repeatedly praised the PATRIOT
    Act as providing the necessary tools to prevent terrorism and to
    prosecute a host of terrorism-related cases. Given these broad existing
    powers, and given the widespread public and Congressional concern that
    some of the existing PATRIOT Act powers are not subject to sufficient
    checks and balances, there is no justification for going even further
    down the path of unchecked authority.

       THERE IS NO PRECEDENT FOR GIVING THE FBI ADMINISTRATIVE SUBPOENA
     POWER--WHAT WE DO WITH ``CROOKED DOCTORS'' HAS NO BEARING ON NATIONAL
                            SECURITY INVESTIGATIONS

        Contrary to what has been said by some, there is no precedent for
    giving the FBI administrative subpoena power. The FBI has long sought,
    and Congress has long rejected granting it, the authority to issue its
    own orders compelling disclosure of records. This is an issue that goes
    back to the momentous debates around the ``FBI Charter'' in the late
    1970s and early 1980s, when administrative demand authority was one of
    the most contentious issues. More recently, in July 1996, after the
    Oklahoma City bombing, the Administration sought administrative
    subpoena authority and Congress rejected it. In 2001, in the original
    PATRIOT Act proposal, the Administration again sought administrative
    subpoena power and again Congress rejected it.
        Congress has repeatedly denied the FBI the power to write its own
    compulsory orders for good reason. An administrative subpoena is an
    extraordinary device. In this case, it is essentially a piece of paper
    signed by an FBI official that requires any recipient to disclose any
    documents or any other materials. (We note that the proposed
    administrative subpoena in the Committee draft would not convey the
    power to compel a person to give testimony to the FBI. This, at least,
    is an important line to draw.)
        In a 2002 study, the Department of Justice identified approximately
    335 administrative subpoena authorities existing in the law.\2\ Of
    those, 330 are for administrative agencies and not really relevant
    here, since, to say the least, the FBI's intelligence division is not
    an administrative agency. The 330 are in the context of administrative,
    regulatory programs--such as OSHA and the SEC. They are subject to
    various checks and balances. They often issue directly to the subjects
    of investigations. They are generally not subject to secrecy rules.
    Only 5 are for use primarily in criminal investigations and even those
    have histories and limitations that make them unsuitable as analogies
    for what the FBI is seeking:
    ---------------------------------------------------------------------------
        \2\ U.S. Department of Justice, Office of Legal Policy, ``Report to
    Congress on the Use of Administrative Subpoena Authorities by Executive
    Branch Agencies and Entities, pursuant to Public Law 06-544'' (2002).
    See also Charles Doyle, Congressional Research Service,
    ``Administrative Subpoenas and National Security Letters in Criminal
    And Foreign Intelligence Investigations: Background and Proposed
    Adjustments'' (April 15, 2005).
    ---------------------------------------------------------------------------
         21 USC 876--Controlled Substances Act. When the FBI in
    1982 was given joint jurisdiction with the DEA over drug enforcement,
    it got for drug cases the administrative subpoena authority that went
    with the enforcement of the regulatory system for controlled
    substances. The subpoenas are served, for example, on pharmacies and
    doctors suspected of engaging in the diversion of controlled substances
    to the black market. According to CRS, ``The earliest of the three
    Federal statutes used extensively for criminal investigative purposes
    appeared with little fanfare as part of the 1970 Controlled Substances
    Act. . . . [T]he legislative history of section 876 emphasizes the
    value of the subpoena power for administrative purposes--its utility in
    assigning and reassigning substances to the acct's various schedules
    and in regulating the activities of physicians, pharmacists and the
    pharmaceutical industry. . . .''
         5 U.S.C. App. (III)--Inspectors General Act. The Inspector
    General system is unique, because it is largely focused inward, toward
    the conduct of Federal agencies and programs. The Inspectors General
    seek to achieve systemic reform, and their powers are quasi-regulatory.
    They oversee the administration of Federal procurements, the use of
    Federal resources and the administration of Federal procurements.
         U.S.C. 3486(a)(1)(A)(i)(I)--In a little-noticed provision
    in the Health Insurance Portability and Accountability Act (HIPAA), the
    massive medical insurance law of 1996, the Department of Justice was
    given administrative subpoena authority for investigation of Medicare
    and Medicaid fraud. Notably, the Attorney General has not delegated his
    administrative subpoena power to the FBI in health care fraud
    investigations. The medical care sector is highly regulated. Medicare
    and Medicaid involve Federal tax dollars. Generally, in these cases,
    the government serves the subpoena on the entity it is investigating,
    not some third party. Thus, when the Justice Department demands records
    from a hospital or insurance company as part of a health care fraud
    investigation, it is investigating that hospital or insurance company--
    not the customers of those entities. That creates some built-in checks
    on the administrative subpoena process. Indeed, the HIPAA rules for
    administrative subpoenas require that individuals' health information
    contained in those records can be depersonalized whenever possible.
         18 U.S.C. 3486(a)(1)(A)(i)(II)--The administrative
    subpoena provision for child abuse cases was also adopted without much
    debate and is used mainly to obtain subscriber account information from
    Internet Service Providers. See 18 U.S.C. 3486(a)(1)(C).
         18 U.S.C. 3486(a)(1)(A)(ii)--The Secret Service has
    authority to issue administrative subpoenas, but only in cases
    involving an ``imminent'' threat to one of its protectees. According to
    the Department of Justice, ``Where a finding of ``imminence'' is not
    appropriate, the Secret Service does not seek an administrative
    subpoena but proceeds, instead, through the process of procuring a
    grand jury subpoena through a local United States Attorney's office.''
    DOJ report, p. 39. The provision was adopted in 2000, but the authority
    was not delegated to the Secret Service until November 2001, and in
    calendar 2001, neither the Secretary of the Treasury nor the Secret
    Service issued a single administrative subpoena.
        It is apparent from the foregoing that the FBI's administrative
    subpoena authority is limited to only two situations, drug matters and
    child abuse cases. The former is largely related to the administration
    of a regulatory scheme and is often subject to the accountability that
    comes from serving the subpoena on the target (a drug company or
    pharmacy), rather than secretly on a third party. By contrast, the
    administrative subpoena proposal in the Committee draft is designed to
    allow the FBI to obtain information, in secret, from entities that are
    not under investigation themselves but have customers whose records the
    FBI is seeking. The person under investigation never knows that the FBI
    has sought or obtained those records. With no other external check like
    a court or grand jury, the FBI would have almost limitless power to
    collect sensitive personal information.

     JUDICIAL CHALLENGE IS A LIMITED PROTECTION, INSUFFICIENT TO OVERCOME
                          CONCERNS WITH THE AUTHORITY

        The Committee bill would allow the recipient of an administrative
    subpoena to challenge it, and consideration is being given to providing
    some form of judicial challenge for Section 215 orders. While judicial
    challenge is appropriate, it does not resolve our concerns, for two
    reasons:
        First, few recipients of Section 215 orders or administrative
    sybpoenas would be likely to challenge them. These disclosure orders
    are not served on individuals. They are served on businesses--airlines,
    hotel chains, and other third parties. These businesses are provided
    immunity for complying. They never have to tell their customers that
    there records have been soought and the customers never receive notice.
    So why would such a business go to the expense of challenging a Section
    215 order or administrative subpoena? A business has little incentive
    to spend its money challenging a subpoena for records that pertain to
    someone else. And since the business is prohibited from notifying its
    customer of the existence of the subpoena, the customer has no right to
    challenge the subpoena.
        Second, the rules for administrative subpoenas require the courts
    to be extremely deferential to executive branch agencies. Courts must
    defer to an agency's determination of relevancy ``so long as it is not
    `obviously wrong.' '' United States v. Hunton & Williams, 952 F. 2d.
    843, 845 (3rd Cir. 1995). The Third Circuit noted that the
    ``reasonableness'' inquiry in such cases is even more deferential than
    the Administrative Procedure Act's ``arbitrary and capricious''
    standard for review of agency action. Id. As the Justice Department
    admits, ``the burden of proof imposed on a challenger to an
    administrative subpoena is steep.'' DOJ Report. For example, a
    challenge based on bad faith will be successful only upon a showing of
    ``institutionalized bad faith, not mere bad faith on the part of the
    official issuing the subpoena.'' United States v. LaSalle Nat'l Bank,
    437 U.S. 298, 316 (1978).

       INTELLIGENCE INVESTIGATIONS POSE UNIQUE RISKS AND REQUIRE SPECIAL
                                  PROTECTIONS

        The argument is made, if over 300 agencies have administrative
    subpoena power, why shouldn't the FBI in intelligence investogations.
    The answer is that no doctor will be deatined and deported in a secret
    proceeding following use of the HIPAA administrative subpoena power, no
    pharmacist will be held in a military prison as an illegal enemy
    combatant based on information provided under the Controlled Substances
    Act, no subject of an administrative subpoena will be sent to Egypt via
    ``rendition'' in a child abuse investigation. The governemnt has
    claimed an extraordinarily broad range of powers in intelligence
    investigation, especially against foreign nationals but also against
    citizens. Given the secrecy with which these investigations are
    conducted, their breadth, and the lack of after-the-fact checks and
    balances, protections of liberty must come up front, in the form of
    meaningful judicial review based on a factual premise and
    particularized suspicion.

                                  MAIL COVERS

        We will say only a few words on the provisions related to mail
    covers. First, we know of no justification for this provision. We
    suspect that the problems the FBI has encountered with the Postal
    Service are minor and could be resolved by negotiation, perhaps
    mediated by this Committee.
        Second, though, we fear that the proposal is not merely a
    codification of existing practice but rather than shift of power from
    the Postal Service to the FBI. We note that the Postal Services
    regulations start with an affirmation of the policy that the ``U.S.
    Postal Service maintains rigid control and supervision with respect to
    the use of mail covers.'' 39 CFR 233.3. We are concerned that the FBI
    may not be as careful.
        Finally, we note a fundamental question: Is the concept of a mail
    cover, whether administered by the Postal Service or the FBI, outdated?
    Congress has moved to bring a variety of intelligence processes under
    the supervision of the FISA court. Section 215 applies to business
    records, and FISA also requires court approval for use of pen registers
    and trap and trace devices. The mail cover is a little like a
    transactional record, although it requires effort to create it. The
    mail cover is also comparable to a pen register or trap and trace
    device: A mail cover collects to and from information on surface mail,
    a pen register collects to and from information on a telephone call or
    email. The records provision of FISA and the pen/trap are both subject
    to judicial approval. If the Committee really found a need to codify
    mail cover authorities, then it should consider making all
    transactional record provisions subject to the same standard: judicial
    approval, based on a factual showing and particularity.

                                   CONCLUSION

        Twenty-five public interest organizations from across the political
    spectrum have written to oppose the administrative subpoena provision.
    Their letter states:

              At the very time when there seems to be an emerging consensus
            around adding meaningful checks and balances to PATRIOT Act
            powers to protect against government abuse, ``administrative
            subpoenas'' would represent a new, unchecked power. At the very
            time when the Attorney General is supporting amendments to
            strengthen judicial oversight of orders under Section 215 of
            the PATRIOT Act, authorization of ``administrative subpoenas''
            would move radically in the opposite direction.
              Indeed, Attorney General Gonzales has repeatedly emphasized
            that the prior judicial approval required for Section 215
            orders is a safeguard against abuse. The Attorney General's
            assurances would be meaningless, however, if the FBI could
            issue disclosure orders with no judicial approval.

        The Center for Democracy and Technology looks forward to working
    with you to strike the right balance, to ensure that the government has
    the tools it needs to prevent terrorism, and that those tools are
    subject to appropriate checks and balances.

     STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR
                        DEMOCRACY AND TECHNOLOGY

        Mr. Dempsey. Chairman Roberts, Vice Chairman Rockefeller,
    good morning. Thank you for the opportunity to testify at this
    hearing.
        The premise of my testimony, Mr. Chairman, is that
    terrorism poses a grave and urgent threat to our Nation and
    that the government must have strong investigative powers to
    collect information to prevent terrorism, and that these
    authorities must be subject to clear standards and meaningful
    judicial controls, as well as executive and legislative
    oversight.
        Although we have serious concerns about the mail-cover
    proposal--and I'll be happy to address some of the other
    questions that Vice Chairman Rockefeller raised--I will focus
    on the proposal for administrative subpoenas.
        What the bill proposes is a very big step. The first
    threshold question of need has not been addressed adequately.
    And, contrary to what has been said, administrative subpoena
    power is not generally available in criminal cases. Even if it
    were, the argument that the government should have the same
    powers, subject to the same standards, in intelligence
    investigations that it has in other investigations is off
    track.
        The fact is, the government is seeking the tools of
    administrative or criminal investigations without the checks
    and balances. Intelligence investigations are different from
    criminal investigations in ways that make them preferable to
    the government but also in ways that make them more dangerous
    to liberty.
        First, intelligence investigations are broader. They're not
    limited by the criminal code. They can investigate legal
    activity. Even in the case of U.S. persons, they can collect
    information about First Amendment activities.
        Terrorism is uniquely ideological. By definition, it
    involves political views. In this context, the concept of
    relevance has little meaning.
        Second, intelligence investigations are conducted in much
    greater secrecy than criminal or administrative cases, even
    perpetual secrecy. When a person receives a grand jury subpoena
    or an administrative subpoena, often he can complain about it
    at the time, and any secrecy imposed is limited. Intelligence
    investigations, of course, are generally kept secret forever.
        Third, the big show in a criminal investigation is the
    trial. The prosecutor knows that at the end of the process, his
    actions will all come out in public. If he was on a fishing
    expedition, that will come out. He could be subject to
    ridicule. That's a powerful constraint.
        Now, if the government really wanted the same powers in
    intelligence investigations that they have in criminal
    investigations, I would be inclined to say, ``Fine, let them
    issue subpoenas publicly without secrecy. Let them inform the
    target. Let them be focused and limited only to investigating
    crimes.'' But that's not what intelligence investigations are
    about. And that's why they need special protections.
        Now, on the threshold question, there's been no showing of
    need. The government has failed to show need, with the one
    exception of speed--and I'll address the question of urgency or
    emergencies. Other than that, they have not shown that their
    current counter-
    terrorism powers are inadequate.
        Senator, why do 330 administrative agencies have
    administrative subpoena power? Because otherwise they could not
    do their jobs. They have no grand jury power. They have no
    National Security Letter authority. They have no orders under
    Section 215 of the PATRIOT Act and FISA. The justification for
    the administrative subpoenas is that those are non-criminal
    agencies.
        In the absence of a showing of need, one argument for
    administrative subpoenas has been that, well, everybody else
    has it. But, if you look at the record closely, you will see
    that there is no precedent for granting the FBI administrative
    subpoena power in national security cases. This is an issue
    that goes back decades. I always tell people I have in my files
    on this mimeographed documents. Back in the momentous debate
    over the FBI charter in the seventies and eighties, the FBI
    sought administrative subpoena power, Congress declined to give
    it.
        More recently, in 1996 after the Oklahoma City bombing and
    the African embassy bombings, the administration sought
    administrative subpoena power and Congress rejected it. In
    2001, in the original PATRIOT Act proposal, the administration
    sought administrative subpoena power, and the Congress rejected
    it.
        In 2002, the Justice Department completed a study in which
    they identified approximately 335 administrative subpoena
    authorities existing in law. Of those, 330 are for
    administrative agencies and not really relevant here since, to
    say the least, the FBI national security division is not an
    administrative agency. Only five of the administrative subpoena
    powers on the books are primarily used in criminal
    investigations and, of those, only two are available to the
    FBI.
        Everybody talks about crooked doctors. The administrative
    subpoena power for health care investigations grows out of a
    regulatory scheme for Medicare and Medicaid and the
    administration of those systems. And as far as I know, that
    administrative subpoena power resides in the Justice Department
    and has not been delegated by the Attorney General to the FBI.
    If anybody has any information to the contrary, I'd welcome it,
    but, as far as I know, that is not an FBI power for health care
    investigations.
        Second, is Inspectors General but they largely look inward.
    They administer government programs. There's no inspector
    general for the FBI, and there's no inspector general
    administrative subpoena power at the FBI. The Secret Service
    has administrative subpoenas, but only for imminent threats to
    protectees. Otherwise, the Secret Service has to go the grand
    jury route as well.
        So, we come down to two--one for drugs, which also grows
    out of an administrative process; the whole scheduling of
    prescription drugs and narcotics, and the regulation of
    pharmacies to make sure drugs aren't diverted into the illegal
    market. And then one for child abuse cases, which is largely
    limited, if you look at the statute, to obtaining customer
    identifying information in the case of communications, which
    for national security investigations, the FBI already has with
    the National Security Letter.
        So the issue seems to boil down to the question of speed
    and, if so, then the solution is clear. And I think Senator
    Feinstein has offered it--an emergency exception to Section
    215, the business records provision. Title III, the criminal
    wiretap law, the criminal pen register law, FISA for electronic
    surveillance, FISA for physical searches, all have emergency
    exceptions.
        You have to go get a court order, generally, to do a
    wiretap or to get a pen register, but there's an emergency
    exception. Section 215 could have--maybe should have--an
    emergency exception, not as a matter of course, not as a
    general rule, but in those situations where speed is of the
    issue.
        Intelligence investigations pose unique risks, and they
    require special protections. No doctor will be detained and
    deported in secret proceedings based upon an administrative
    subpoena issued in a healthcare investigation. No subject of an
    administrative subpoena will be sent to Egypt via rendition in
    a child abuse case. The Inspectors General are not worried
    about the use of political demonstrations as a cover for
    terrorism, but the FBI is.
        The government has claimed an extraordinarily wide range of
    powers in intelligence investigations. Given the secrecy with
    which these investigations are conducted, their breadth, and
    the fact that most of them never come to light, that the
    subjects never know that they were being conducted, protections
    of liberty must come up front in the form of meaningful
    judicial review based on a factual premise and particularized
    suspicion.
        I'll be happy to discuss mail covers and some of the other
    issues posed by both the Committee draft bill as well as the
    PATRIOT Act.
        Thank you, Mr. Chairman. I look forward to your questions.
        Chairman Roberts. We thank you Mr. Dempsey.
        As I indicated, if any member of the panel has any comment
    to make at this particular time, hearing the summation of the
    total panel, now would be the time to offer any commentary. And
    we already have a hand raised with Mr. Onek.
        Mr. Onek. I'd like to take off on two comments by Mr.
    Collins. The first is when he talked about the most-favored
    nation rules. As I think my testimony and Mr. Dempsey's
    testimony suggest, we'll live by that rule, because there is no
    comparable subpoena power anywhere else. There is no subpoena
    power that's as broad and there is no subpoena power that's as
    secret. So, the most-favored nation rule is fine because
    there's nothing equivalent, and what is being suggested here is
    absolutely new.
        Second, Mr. Collins was discussing Section 215, and
    definitely, and he said the court order is not a rubber stamp.
    And this is interesting because the administration, throughout
    the debate on the PATRIOT Act, as been going around the country
    saying how wonderful Section 215 is. Now, we tend to disagree,
    although we like the fact that Section 215 does have a court
    order, but now, after going around the country and saying how
    wonderful Section 215 is, they're eviscerating it. Section 215
    will become unnecessary, because the FBI will simply be able to
    use administrative subpoenas.
        So it's just inconsistent. You can't go around defending
    Section 215 and saying it's good because the judge is not a
    rubber stamp and the judge can do this and the judge can do
    that, and he can modify the order, et cetera, et cetera, and
    then propose something which just wipes Section 215 off the
    map. It's just totally inconsistent.
        Chairman Roberts. Mr. Collins, I presume you would like to
    say something.
        Mr. Collins. Yes I would, Mr. Chairman.
        I think it is not accurate to say that there's no
    precedent. I think Mr. Dempsey has incorrectly described the
    scope of the administrative subpoena authority, for example, in
    child porn cases. He indicated that it was limited to the NSL-
    type information that can be requested under 2709.
        If you look at 18 USC 3486, which describes the scope of
    the administrative subpoena authority in child porn cases,
    there is a specific provision that governs subpoenas in those
    cases to providers of electronic communications. That's in
    subparagraph C, but in the paragraph before, it says, except as
    provided in subparagraph C--so we treat electronic service
    providers differently--a subpoena issued under subparagraph A
    may require ``the production of any records or other things
    relevant to the investigation'' and ``testimony by the
    custodian of the things required to be produced concerning the
    production and authenticity of those things.''
        It is as broad; it is indeed the model, so far as I can
    tell, for the draft bill that is before the Committee, where
    relevance is the operative standard. Indeed the draft bill
    before the Committee is in one respect narrower in that it does
    not authorize the actual taking of physical testimony. It does
    not require anyone to actually show up, but merely requires
    production of the documents and a certification. So in one
    respect, actually, it's even narrower than the child porn model
    that's already in existing law on the criminal side.
        Chairman Roberts. Mr. Dempsey, do you have any response to
    that?
        Mr. Dempsey. All I'll say, Mr. Chairman, is that the most
    important evidence in a child porn investigation is what's
    stored on the computer, or what's with the service provider.
        Chairman Roberts. Or the child.
        Mr. Dempsey. Well, you're trying to find the child, which
    means you're trying to find the person who might have him, and
    the administrative subpoena power is limited to subscriber
    identifying information.
        Chairman Roberts. The distinguished vice chairman has a
    question.
        Vice Chairman Rockefeller. What interests me about all of
    this--neither the Chairman nor myself are lawyers, which is----
        Chairman Roberts. A good thing.
        [Laughter.]
        Vice Chairman Rockefeller. Which is a good thing. But it
    also causes us to look at the way people who are lawyers,
    whether they're from the FBI or formerly associated with other
    administrations, look at things. And it occurs to me that
    people get very hung up on precedents or the possibility of
    something going wrong and that somebody's rights might get
    violated.
        I think we look at that, and without being conclusive in
    our thinking, as I indicated in my opening statement, this is
    kind of a new era. Now, we put into place the PATRIOT Act
    shortly after 9/11. There were a lot of new things in that, and
    some of them have--I would say for the most part, I have been
    impressed at how little criticism it has received except in
    some quarters, and there it's very, very hard, hard shell.
        What is wrong in taking ideas, like an administrative
    procedures approach--subpoenas approach--and not making the
    conclusion that the government will set out to violate rights,
    but understanding that in a new world--and when I say that, I
    say that with the fullest, deepest concern about the future of
    our country--and homeland security is not only the great weak
    link, but homeland security also affects this conversation. So,
    it's a form of homeland security, security of the American
    people, also the rights of the American people.
        What is wrong in taking something which could do good and
    which could very well pick up that person at the hotel more
    quickly that the DOJ witness referred to, and saying, as I
    think you did Mr. Kris--you just nodded, so I just picked on
    you--that you go with that.
        You worry about it, but you don't make it permanent. You do
    what we did in fact with the original PATRIOT Act, which is to
    say we are introducing new concepts here, because 9/11 was
    extraordinary, and by the way, the situation in Iraq and across
    the world, in my judgment, generally speaking and not of
    interest to this panel, is that the world is getting worse
    quickly and that there will be results from that, and that you
    go with something with which you can nail down somebody who
    would do substantial damage to the country through a dirty bomb
    or something of that sort, but you don't let it be permanent.
    You say, let's come back and look at it in 4 years, just as we
    have done on the original parts of the PATRIOT Act. What is
    wrong with that?
        Mr. Onek. Senator, I was originally skeptical--I have to
    admit--of the sunsets, but in retrospect they were brilliant.
    They have worked. I think I cited to this Committee--but if I
    didn't, I think it's highly relevant--that the FBI's own
    internal memos on the PATRIOT Act talk about the fact that the
    sunsets are there, that these authorities will be subject to
    scrutiny, and therefore the FBI general counsel's office
    advised the field, be careful how you use these authorities
    because you're going to be subject to that sunset scrutiny.
        Now, if we remove the sunsets entirely, where do the
    countervailing checks and balances come from? I would suggest
    that they should come from meaningful judicial review before
    the fact in all but emergency cases. I think the after-the-fact
    review is limited, as Ms. Caproni recognized. But if we remove
    the sunsets entirely, such as on Lone Wolf, which hasn't even
    been in effect for 6 months now, and on some of these other
    provisions that we may not be sure of, then where does the
    constraint come from?
        Chairman Roberts. If I might, I think some of that review
    comes from the Congress. As Chairman of the Committee, and as
    Vice Chairman of the Committee, I know that both of us feel
    very strongly, as do all members of the Committee, if it were a
    sunset of 4 years that means that we would have reviewed it
    eight times if it's on the 6-month basis; if it were more
    frequent than that, that would be the case.
        And let me assure everyone here that while much of this is
    closed because of the classified nature of the operations, we
    do take this very, very seriously. I don't mean that you
    implied anything otherwise, but I did want to point out that
    this doesn't happen in a vacuum, that we do take it very
    seriously, we do review it very seriously, and I interrupted
    somebody.
        Yes, Mr. Onek.
        Mr. Onek. Senator, we are in a new world, but as we just
    heard from the FBI spokesperson, all they've said is there may
    be emergency situations. So if that's the case, then I don't
    see why the Committee should do more than create some sort of
    new emergency provision. The ideal one, from our standpoint,
    would be a new emergency provision under FISA, just as you
    already have under FISA for searches and for wiretaps. Why do
    they need the total package--administrative subpoenas for
    everything when the only reason they really cite to is an
    emergency.
        So, give them that, and if they feel somehow that that's
    not enough, or the emergency provision that the Congress writes
    is inadequate, they, of course, can come back and tell us. But
    they have not given any justification here or anywhere else for
    the broad sweeping power that they ask for.
        The 9/11 Commission, which was certainly concerned with
    security, as are we all, said when the government asks for a
    new authority, it has to justify why it needs it. And the most
    we have heard here today is that there may be some emergency
    situations like the hotel situation. Fine, let's deal with that
    situation, but they're going way, way beyond it. They're
    asking--remember, what they are asking for is the ability to
    circumvent Section 215 altogether.
        The Congress spent a lot of time on that provision in the
    PATRIOT Act. But the proposed legislation will do away with it.
    Why would anybody ever have to use Section 215 for anything,
    whether it's a library record, a medical record, if they can
    just issue a subpoena?
        You're throwing away Section 215 of the PATRIOT Act. Why?
    The witness was right here. The most she could say was, ``Gee,
    we sometimes have emergencies.'' I don't want to make light of
    that because obviously one emergency can obviously mean saving
    thousands of lives, so let's have an emergency exception. But
    why have this general, sweeping legislation way beyond anything
    that the government has ever seen before?
        Don't kid yourself. Mr. Collins says, ``Gee, there's broad
    authority under child porn.'' Well, yes, but it's about child
    porn only. There's only a narrow set of records you can get.
    The FBI, when it's investigating foreign intelligence, can
    potentially get every record about everything. And, of course,
    there's secrecy here that doesn't exist in these other
    situations. Why do you want to go down that road? It doesn't
    make any sense. What makes sense, if there is any emergency
    need, is an emergency exception, and as Jim Dempsey has pointed
    out, there are several models. There are emergency exceptions
    in Title III and in FISA, and there may be other models you can
    use. Sit down and work that out.
        But there's no justification for something beyond an
    emergency provision. I just don't see it.
        Vice Chairman Rockefeller. I hear what you're saying, all
    of you, and I will need to decide what makes sense to me. Thank
    you.
        Chairman Roberts. Mr. Kris, I think you have something to
    say.
        Mr. Kris. Yes, I guess I just wanted to sort of follow up.
    I was struck in listening to the testimony that both Mr.
    Dempsey and Mr. Onek both favor ex-ante judicial review over
    ex-post in a motion to quash.
        And I don't speak for the government any longer, but if I
    were the government, I would happily trade motions to quash,
    particularly motions to quash filed in the Foreign Intelligence
    Surveillance Court, in exchange for a requirement for ex-ante
    judicial review before a magistrate, particularly if we want to
    spread the authority out into the field with an emergency
    exception.
        I don't know if DOJ would make that trade, but once we get
    into the horse trading part of legislative deliberations it
    seems to be that that's a good bargain for the government, and
    I'm interested in the fact that the sort of civil libertarians
    are more focused on and think there is more value in ex-ante
    than ex-post judicial review.
        Chairman Roberts. Yes, Mr. Collins.
        Mr. Collins. Let me make one brief comment. The existing
    HIPAA and child porn administrative subpoena provision doesn't
    have a sunset and isn't limited to emergencies. If it were a
    choice between those two, I would probably lean in favor of a
    sunset over an emergency, because at least the sunset allows
    you to see it in operation and then make the informed choice at
    the end in light of the data actually received.
        Because at that point you may have the same reaction that
    Mr. Dempsey had to the child porn, which is that, well, that
    hasn't turned out to be a problem because they actually look
    only at a narrow set of records. You could make that judgment
    rather than speculate about it.
        Mr. Dempsey. Why not both? Why not emergency only and
    sunset? A sunset would certainly be better than no sunset, but
    when there's no justification for going beyond emergency, I
    think it would be extraordinary for this Committee to do that,
    truly extraordinary, sunset or not.
        Chairman Roberts. I'm just having a little trouble
    subscribing to the notion that if you have something that would
    be an infrequent use of the constitutional investigative tool,
    that that means it should not be provided. Nor do I think, at
    least at this juncture, that we shouldn't provide or extend
    authority because another tool may be used less.
        I don't know. Maybe it's because every week in this place,
    in the hallowed halls of Congress, we find ourselves in the
    park or someplace, the train station, some other area allegedly
    that is safe, and I think most people are getting a little
    tired of it, and I know my staff is and I know their parents
    are back in Kansas.
        Maybe that's not analogous to the statements that have been
    made, but it just seems to me that we need more tools, not
    less, when it comes to terrorism and espionage, and by saying
    that, don't misunderstand me. I appreciate all of your
    suggestions, more especially in regards to privacy and civil
    rights.
        Mr. Dempsey, I was a bit struck, although it's not being
    fair because I was in the back and I heard you--I wasn't here
    but I was here; I was sort of in-camera, so to speak. But I
    think you asserted that the concept of relevance has no meaning
    in a terrorism investigation. What does that mean?
        Mr. Dempsey. Well, Senator, look at Section 215 of the
    PATRIOT Act, the business records provision, or Section 214.
    They talk about investigations ``to protect against''
    international terrorism--not investigations of international
    terrorism, not investigations of terrorist activities, but
    investigations ``to protect against'' international terrorism.
        Think about an investigation to protect against tax fraud
    or an investigation to protect against bank robbery. How broad
    would that be? In the terrorism area, the intelligence area,
    the standard is foreign power and agent of a foreign power,
    which applies to organizations that engage in legal as well as
    illegal activity, and the scope of those investigations can
    encompass legal activity. In the case of non-U.S. persons,
    those investigations can be predicated solely on the basis of
    legal activity.
        So, in an investigation to protect against international
    terrorism, I think the agent may think he knows what he's
    doing, but I think there should be some factual premise for
    that. The reason I have a problem with Section 215 is that it
    involves a judge, but the government comes in and says this
    information is relevant to an investigation to protect against
    international terrorism. They don't have to say which
    investigation, they don't have to say who they are looking for,
    they don't have to provide any factual evidence.
        And the statute says the judge ``shall'' issue the order,
    as requested or modified. He can't even ask, tell me where this
    is going, why do you need these particular records? I agree
    with you entirely, Mr. Chairman, and with the Vice Chairman as
    well, the government needs access to information to prevent
    terrorism. But we know people under pressure--and absolutely
    the FBI and the other homeland security and intelligence
    agencies are under pressure--people under pressure cut corners.
    They do the easy thing rather than the hard thing. They go off
    on false tangents.
        I don't think that it's incompatible with our national
    security to have checks and balances. I don't think that we're
    only talking here about privacy or civil liberties, although
    definitely we are. I think we're also talking about guidance,
    focus, effectiveness, ensuring that investigations are going
    somewhere, because the threats are pouring in every day, as you
    suggested--fleeing the Capitol here in response to what turned
    out to be in two cases false alarms.
        There are a lot of false alarms out there and the agencies
    are drowning in information. They need more focus, not less.
    They need more standards and guidelines, not fewer. Sure, give
    them the tools, but make sure those tools are subject to
    controls.
        And this Committee takes very seriously its oversight role,
    but given all the rest that this Committee has to deal with and
    that the members of this Committee have to deal with, it's very
    hard to look at those individual FISA applications. I don't
    know, I would hesitate to wonder how many people here have
    actually read a pen register/trap and trace FISA application.
    There are thousands of them. There's a thousand FISA orders.
        So, Committee is important. You know, Germany has a purely
    parliamentary approach to the approval of national security
    wiretaps. But that's not the route we've chosen to go here.
    We've chosen to combine judicial oversight. The U.K. has, of
    course, just ministerial, AG-type approval, but we've chosen to
    go with both judicial approval and with legislative and
    executive oversight based upon our system of checks and
    balances. And I think that should apply throughout, including
    to the mail covers.
        Chairman Roberts. I think I've opened up Pandora's Box
    here.
        Mr. Kris.
        Mr. Kris. Let me just make a very brief and pretty narrow
    technical response to that. It's true that under section 1861
    of FISA you can get records and tangible things if you certify
    that they're sought for an investigation against terrorism.
        What I'm about to say, I don't know if it will make people
    feel better or worse, but if you compare that to the standards
    that govern a routine criminal grand jury investigation, I
    don't think they're very different. The Supreme Court has held
    in a case called The United States against R. Enterprises that
    a grand jury can issue a subpoena, which means effectively,
    that a grand jury, through an Assistant U.S. Attorney, can
    issue a subpoena to investigate even rank hearsay and gossip
    suggesting the possibility of a crime or even just to satisfy
    itself that no crime is being committed at all.
        And the standards for trying to quash a grand jury subpoena
    are extremely difficult to meet. So, again, I don't know if
    that makes you feel better or worse, but I do think that
    standard in FISA is not all that different conceptually from
    the standard that governs a grand jury investigation. Those
    standards have to be low, because the acquisition of records
    occurs very early in an investigation when the government
    doesn't have all of the information that it has at the end.
        Chairman Roberts. Well, I want to thank all of you members
    for your testimony. I think it's been very helpful and we will
    consider all of your suggestions and comments as we continue
    the markup of this legislation. As I've indicated before, this
    is an open process in which all members concerned will be
    seriously considered.
        I would just say that I would hope that after the many
    incidents that we have seen happen not only in the United
    States but also throughout the world, that we do have an
    international problem and that we do want to stop terrorism
    before it counts, to detect and deter it as opposed to getting
    into the tragedy of consequence management.
        I don't think it's a good idea to go back and to try to
    investigate it as a crime, and I don't mean that to perjure
    anything that anybody has said here in regard to this panel. I
    think you've offered some very fine advice and suggestions and
    I thank you for coming.
        And since I'm the only person here that you would be
    testifying to, perhaps it's a good time to say the Committee
    stands adjourned.
        [Whereupon, at 11:47 a.m., the Committee adjourned.]