[Senate Hearing 110-193]
[From the U.S. Government Publishing Office]
S. Hrg. 110-193
RESPONDING TO THE INSPECTOR GENERAL'S FINDINGS OF IMPROPER USE OF
NATIONAL SECURITY LETTERS BY THE FBI
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 11, 2007
__________
Serial No. J-110-27
__________
Printed for the use of the Committee on the Judiciary
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36-642 PDF WASHINGTON DC: 2007
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COMMITTEE ON THE JUDICIARY
PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York LINDSEY O. GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island TOM COBURN, Oklahoma
Bruce A. Cohen, Chief Counsel and Staff Director
Michael O'Neill, Republican Chief Counsel and Staff Director
------
Subcommittee on the Constitution
RUSSELL D. FEINGOLD, Wisconsin, Chairman
EDWARD M. KENNEDY, Massachusetts SAM BROWNBACK, Kansas
DIANNE FEINSTEIN, California ARLEN SPECTER, Pennsylvania
RICHARD J. DURBIN, Illinois LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland JOHN CORNYN, Texas
Robert F. Schiff, Chief Counsel
Ajit Pai, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont,
prepared statement............................................. 36
WITNESSES
Barr, Bob, former Member of Congress, and Chairman, Patriots to
Restore Checks and Balances, Atlanta, Georgia.................. 3
Christian, George, Executive Director, American Library
Association, Library Connection, Inc., Windsor, Connecticut.... 5
Spaulding, Suzanne E., Principal, Bingham Consulting Group, and
of Counsel, Bingham McCutchen LLP, Washington, D.C............. 9
Swire, Peter P., C. William O'Neill Professor of Law, Moritz
College of Law, Ohio State University, and Senior Fellow,
Center for American Progress, Washington, D.C.................. 7
SUBMISSIONS FOR THE RECORD
Barr, Bob, former Member of Congress, and Chairman, Patriots to
Restore Checks and Balances, Atlanta, Georgia, statement....... 21
Christian, George, Executive Director, American Library
Association, Library Connection, Inc., Windsor, Connecticut,
statement...................................................... 26
Spaulding, Suzanne E., Principal, Bingham Consulting Group, and
of Counsel, Bingham McCutchen LLP, Washington, D.C., statement. 39
Swire, Peter P., C. William O'Neill Professor of Law, Moritz
College of Law, Ohio State University, and Senior Fellow,
Center for American Progress, Washington, D.C., statement...... 48
RESPONDING TO THE INSPECTOR GENERAL'S FINDINGS OF IMPROPER USE OF
NATIONAL SECURITY LETTERS BY THE FBI
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WEDNESDAY, APRIL 11, 2007
U.S. Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
Washington, D.C.
The Subcommittee met, pursuant to notice, at 3 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Russell D.
Feingold, Chairman of the Subcommittee, presiding.
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Chairman Feingold. I will call the Committee to order. Good
afternoon. Welcome to this hearing of the Constitution
Subcommittee entitled ``Responding to the Inspector General's
Findings of Improper Use of National Security Letters by the
FBI.''
We are honored to have with us this afternoon a
distinguished panel of witnesses to share their views on this
very important and timely issue. Let me start by making a few
opening remarks, and if a member of the minority comes, we will
certainly take an opening statement there, and then we will go
to our witnesses.
One month ago, the Inspector General of the Justice
Department issued the results of a Congressionally mandated
audit, an audit that examined the FBI's implementation of its
dramatically expanded authority under the USA PATRIOT Act to
issue National Security Letters, or NSLs. The Inspector General
found, as he put it, ``widespread and serious misuse of the
FBI's National Security Letter authorities. In many instances
the FBI's misuse of National Security Letters violated NSL
statutes, Attorney General guidelines, or the FBI's own
internal policies.''
The Inspector General's findings are of grave concern to me
and this Committee. Chairman Leahy has called hearings in
recent weeks to hear from the Inspector General himself, who
described his conclusions in detail, and also from the FBI
Director, who talked about some steps the FBI is planning to
take in response to the report.
I appreciate that the FBI agrees with the IG's conclusions
and recognizes that it needs to change the way it does business
when it comes to NSLs. But in my view, simply leaving it to the
FBI to fix this problem is not enough. Unfortunately, the FBI's
apparently lax attitude and in some cases grave misuse of these
potentially very intrusive authorities is attributable in no
small part to the USA PATRIOT Act. That flawed legislation
greatly expanded the NSL authorities, essentially granting the
FBI a blank check to obtain some very sensitive records about
Americans, including people not under any suspicion of
wrongdoing, without judicial approval.
Congress gave the FBI very few rules to follow and,
therefore, Congress has to share some responsibility for the
FBI's troubling implementation of these broad authorities. This
Inspector General report proves that ``trust us'' does not cut
it when it comes to the Government's power to obtain Americans'
sensitive business records without a court order and without
any suspicion that they are tied to terrorism or espionage. It
was a significant mistake for Congress to grant the Government
broad authorities and just keep its fingers crossed that they
would not be misused.
Congress has the responsibility to put appropriate limits
on Government authorities--limits that allow agents to actively
pursue criminals and terrorists, but also that protect the
privacy of innocent Americans. And we did not do that with
regard to the NSL authorities. Had it not been for the
independent audit conducted carefully and thoughtfully by the
Inspector General's office, Congress and the American public
might never have known how the NSL authorities were being
abused by the FBI. The NSL authorities operate in secret. The
Justice Department's classified reporting on the use of NSLs
was admittedly inaccurate. And when during the reauthorization
process Congress asked questions about how these authorities
were being used, we got nothing but empty assurances and
platitudes that we now know were mistaken.
Congress needs to exercise extensive and searching
oversight of those powers, but oversight alone is not enough.
Congress must also take corrective action. The Inspector
General report has shown both that the executive branch cannot
be trusted to exercise those powers without oversight and that
current statutory safeguards are inadequate.
Today we will hear from experts about steps that Congress
should take to respond to the IG's report. How should we change
the law to make sure these kinds of abuses never occur again?
Today's witnesses come at the issue from an array of
perspectives, and I look forward to their ideas and insights.
We will also hear from an individual who we should have
heard from when we were considering reauthorization of the
PATRIOT Act in 2005: one of the Connecticut librarians who
received a National Security Letter and challenged it in court.
George Christian wanted to be heard in Congress in 2005, but
was prevented from speaking out because of the blanket gag
order imposed on all NSL recipients. He has now been released
from the gag order, and I am very pleased that he is here with
us today.
We will now turn to our panel of witnesses. We will proceed
from left to right, and I would ask the witnesses to limit
their oral testimony to 5 minutes. Your complete statements
will be included in the record. Will the witnesses please stand
and raise your right hands to be sworn.
Do you swear or affirm that the testimony that you are
about to give before the Committee will be the truth, the whole
truth, and nothing but the truth, so help you God?
Mr. Barr. I do.
Mr. Christian. I do.
Mr. Swire. I do.
Ms. Spaulding. I do.
Chairman Feingold. Thank you and you may be seated.
Our first witness, I am pleased to say, will be the
Honorable Bob Barr, who is no stranger to this Committee. He
served four terms in the House of Representatives where he was
a member of the House Judiciary Committee. Mr. Barr is the CEO
of Liberty Strategies LLC and Chair of Patriots to Restore
Checks and Balances, an alliance of conservative and
progressive organizations committed to protecting the
Constitution. New York Times columnist Bill Safire has called
him ``Mr. Privacy.'' Mr. Barr has a wealth of experience
relevant to today's hearing. He has served as U.S. Attorney for
the Northern District of Georgia and was an official in the
CIA.
Mr. Barr, thank you for making the time to be here today,
and you may proceed.
STATEMENT OF BOB BARR, FORMER MEMBER OF CONGRESS, AND CHAIRMAN,
PATRIOTS TO RESTORE CHECKS AND BALANCES, ATLANTA, GEORGIA
Mr. Barr. Senator, Mr. Chairman, it is a tremendous honor
as always to appear at a hearing before you. It is a special
honor and great pleasure to appear before you not just as
Senator Feingold but as Chairman Feingold of this very, very
important Committee. I very much appreciate the honor extended
to me of being invited to appear here today, especially in the
company of such a very distinguished panel, as you have already
noted. And I look forward to hearing their testimony and
learning from it, as I am sure you do.
I would like to also offer a very special word of thanks,
Senator, to your staff for the outstanding work, not just in
preparation for this hearing; but every other time we have had
a hearing or called on them, they are absolutely tremendous in
terms of providing support and assistance, answering questions,
and working out the logistics. And I very much appreciate that.
The report to which this hearing today is concerned, the IG
Report, really is nothing short of a constitutional wake-up
call for this country, Senator, as I think you certainly more
than perhaps any of your other colleagues realize, having had,
I suspect, many of the concerns reflected in this report
foremost in your mind before probably many of your other
colleagues in your prescient vote against the USA PATRIOT Act
back in 2001. So I suspect that as with yourself and with
myself and many others, the abuses that are chronicled in the
IG Report come as, unfortunately, no surprise.
I think it is important also, Mr. Chairman, to recognize
that the remedies for the problems chronicled in the IG Report
cannot, absolutely cannot, be remedied by simply tweaking the
regulations, tweaking the procedures, issuing new guidelines,
having another training session for FBI officials. The problems
that we see chronicled in the IG Report and its sister report,
the report on the Section 215 abuses, reflect and derive from
the fundamental nature of the unaccountability built into the
powers expanded and granted in the USA PATRIOT Act. Those
powers were granted and expanded by statute, and the only way
to assure ourselves or really to afford ourselves any assurance
at all that these problems can be remedied has to be by
statute. And if we look at the statute and the statutory
remedies--and in my written remarks, which we have submitted, I
identified a number of specific statutory measures that we
believe, I believe, and many others believe need to be
addressed. Most importantly, a meaningful standard for the
issuance of National Security Letters based on more than simply
happenstance that a U.S. person or another person protected
under the Fourth Amendment to the Bill of Rights, for example,
finds himself or herself all of a sudden a part of a database
based on an NSL that was issued on absolutely nothing more than
they happen to be in a certain place at a certain time. Or
perhaps they were not even in that certain place at a certain
time, but their records may have something in somebody's mind
to do with a terrorist, a suspected terrorist, or even a
suspected associate of a terrorist. And even after the National
Security Letter is issued, even after the data is accumulated,
oftentimes, as the IG Report indicates, it just sort of sits
somewhere or goes into some database. Tens of thousands of
people have access to it. Foreign governments and foreign
entities may have access to it. And even if, in fact,
information on a particular individual, such as a U.S. person,
that we now know that the majority, strangely--perhaps not so
strange--of these National Security Letters are being issued
regarding U.S. persons not foreign persons. The U.S. person
finds himself or herself--basically, unless statutory
limitations are placed on the retention of the information,
they are in there for the duration. There is no way that they
would know or have any way, or even the Congress would have any
way of extracting information on a person who was roped up in
one of these National Security Letter investigations and the
information or the very thin reason for putting their name in
there in the first place turned out to be not so.
So we need to address, I believe the Congress needs to
address meaningful standards for issuance: constitutional
nondisclosure orders, court review, mandatory court review,
verifiable reporting regimes, limitations on data retention,
and limitations on the data sharing.
Even if all of these measures, and others that I know the
Senator is considering, are enacted by statute, the National
Security Letters will remain a very robust mechanism for the
FBI and, indeed, indirectly other Federal agencies to employ.
The sky is not going to fall if these measures are put in
place. While some have characterized the National Security
Letter expanded powers as the ``bread and butter'' of the FBI's
antiterrorism and counterintelligence effort, the fact of the
matter is that that bread and that butter still needs to be
utilized, spread, and eaten within the confines of the
Constitution. It still has to meet constitutional muster. And
we believe it has to be done by statute.
Mr. Chairman, we appreciate, I appreciate very much your
holding this hearing, which I suspect will be one of a series
that you will be holding on these issues and stand ready either
today or in the future to answer any questions that you might
have.
[The prepared statement of Mr. Barr appears as a submission
for the record.]
Chairman Feingold. Thank you very much, Representative. I
appreciate your comments and certainly the message very much.
Thank you.
Our next witness will be George Christian. Mr. Christian is
Executive Director of Library Connection, Inc., a consortium of
27 Connecticut libraries. Library Connection received an NSL
from the FBI in 2005 and brought a court challenge against the
constitutionality of the statute. But throughout the litigation
and throughout Congress' consideration of the reauthorization
of the PATRIOT Act, Mr. Christian and his colleagues were
subject to a strict gag order and could not reveal that they
had received an NSL.
The Government finally fully lifted the gag on Library
Connection last summer after the reauthorization process was
over, and Mr. Christian is now free to discuss his experience.
He received his MBA and Master's degree from the University of
Bridgeport and has also worked at JP Morgan.
Mr. Christian, I look forward to your testimony and you may
proceed.
STATEMENT OF GEORGE CHRISTIAN, EXECUTIVE DIRECTOR, LIBRARY
CONNECTION, INC., WINDSOR, CONNECTICUT
Mr. Christian. Thank you Mr. Chairman. Thank you for this
opportunity to share my experience as an NSL recipient. My
three colleagues, who were equally involved, and I very much
wanted to do this, as you have said, while Congress was
considering the renewal of the PATRIOT Act. But we were
prevented from doing so by a gag order that was later ruled
unconstitutional. We are the only recipients of a National
Security Letter that can legally discuss this experience. The
recipients of several hundred thousand other NSLs must carry
the secret of their experiences with them to their graves.
As librarians, we share a deep commitment to patron
confidentiality that assures that libraries are places of free
inquiry. Connecticut is one of 48 States that have laws
protecting the privacy of library patrons and charging
librarians with the responsibility of guarding that privacy.
However, we also fully accept our civic obligation to cooperate
with law enforcement agencies when they can provide warrants or
other court orders that indicate that an independent judiciary
has approved their inquiry.
In July 2005, we were served with a 2-month-old NSL
requesting all of the subscriber information of any person or
entity related to a specific IP address for a 45-minute period
back in February. Since there was no way of determining who was
using the computers in the library 5 months after the fact,
this meant that our NSL was a request for the information we
had on all of the patrons at that library. We were very
disturbed by the sweeping nature of this request, by the fact
that it showed no sign of judicial review, and by the fact that
it came with a perpetual gag. We were shocked to learn that the
NSL statute was part of the PATRIOT Act, because Attorneys
General Ashcroft and Gonzales had both declared that the
PATRIOT Act had not been and would be used against libraries.
When we learned that a district court in New York had
judged the NSL statute to be unconstitutional, we decided to
contest compliance with our letter. Fortunately, the American
Civil Liberties Union agreed to represent us. Our gag was
removed by a Federal district court, but the decision was
appealed by the Justice Department. Meanwhile, because the
Government failed to redact all our names, two of our names
appeared in many articles in the New York Times, the Washington
Post, and other papers. This created many professional and
personal difficulties for us. However, in appellate court, the
Government maintained that we should remain gagged because no
one in Connecticut reads the New York Times.
We also sought immediate relief from the gag order in order
to be able to tell Congress that the NSL statute was being used
against libraries and library patrons while Congress was
debating the PATRIOT Act. And although the Government failed to
redact our names, they did redact our claim that 48 States had
statutes protecting the privacy of library patrons. We could
not understand how these laws threatened national security, but
we did note that Attorney General Gonzales claimed to Congress
that there was no statutory justification for the concept of
privacy.
On March 9, 2006, President Bush signed into law the
revised PATRIOT Act. A few weeks after that, the Justice
Department decided that we no longer needed to be gagged. And a
few weeks beyond that, they declared that they no longer needed
the information sought by the NSL they had served us with. We
ended up being silenced until after the PATRIOT Act was
renewed, and by dropping our case altogether, the Government
made sure that the NSL statute would be removed from the threat
of court review.
Based on our experience, we urge Congress to require
judicial reviews of NSL requests, especially in libraries and
bookstores, where a higher First Amendment standard of review
should be considered. We believe that you can make changes to
the law that do not compromise law enforcement's abilities to
pursue terrorists, yet maintain the civil liberties guaranteed
by the United States Constitution. Terrorists win when fear of
them induces us to destroy the rights that make us free.
Again, I thank you for this opportunity to testify, and I
ask that you please submit my full written testimony to the
record.
[The prepared statement of Mr. Christian appears as a
submission for the record.]
Chairman Feingold. Well, thank you for that useful
testimony. It is very important. It would have been useful a
while back, as you well indicated, but it is certainly going to
help us as we, I hope, try to reform the law, as Representative
Barr suggested we need to do. Thank you.
Our next witness will be Professor Peter Swire, an expert
in the field of privacy law. Professor Swire currently teaches
law at Ohio State University and is a senior fellow at the
Center for American Progress. From 1999 to 2001, he served as
chief counsel for privacy in the Executive Office of the
President. Professor Swire has also taught law at the
University of Virginia and George Washington University and has
spent time in private practice. He graduated from Yale School.
Professor Swire, thank you for being here today, and I want
you to know I rooted for Ohio State, even though we are still
licking our wounds from not making it farther in the
tournament.
Mr. Swire. Well, the Badgers should have made it much
further, Senator.
Chairman Feingold. Thank you. That is a good answer.
[Laughter.]
Chairman Feingold. You may proceed.
STATEMENT OF PETER P. SWIRE, C. WILLIAM O'NEILL PROFESSOR OF
LAW, MORITZ COLLEGE OF LAW, OHIO STATE UNIVERSITY, AND SENIOR
FELLOW, CENTER FOR AMERICAN PROGRESS, WASHINGTON, D.C.
Mr. Swire. Thank you very much, and, Mr. Chairman, thank
you for the invitation to testify here today.
The biggest point in my written testimony is that the
Congress has never agreed to anything like the program that the
Inspector General's report has revealed. Here is one way to see
how different the public understanding has been from what, in
fact, was going on.
In March 2003, the Washington Post ran a front-page story,
and here is a quote from it: ``The FBI, for example, has issued
scores of National Security Letters that require businesses to
turn over electronic records about finances, telephone calls,
e-mail, and other personal information, according to officials
and documents.''
Scores of letters--that was the best we knew in the
Washington Post and in public in 2003. The actual number, we
now find out, was over 39,000 in 2003 alone. That is quite a
difference. That could even be considered misleading, perhaps,
if officials were saying scores of times, when it is 39,000.
So there is a difference between what Congress thought and
the American people thought was going on and what we know now
was going on.
In my written testimony, I offer four main conclusions.
First, the PATRIOT Act fundamentally changed the nature of
NSLs in ways that create unprecedented legal powers in the
executive branch and pose serious risk to privacy and civil
liberties.
Second, as I have said, Congress has never agreed to
anything like the current scale and scope of NSLs.
Third, the gag rule under NSLs is an especially serious
departure from good law and past precedent.
And, fourth, legislative change is needed, such as the SAFE
Act or H.R. 1739, and a group of public interest organizations
today has a statement, a joint statement, that suggests ways to
go on legislation.
And so in my testimony I suggest a new meaning for the
acronym of NSLs. I think we should call it ``Never seen the
like.'' This is really out of bounds from the way our checks
and balances, our three branches operate.
The Inspector General's recent report has put NSLs on the
front page and prompted today's hearing, but as given in more
detail in my written testimony, this has been an area clouded
by secrecy and in many cases by misleading statements about
what is going on, and now we have pulled back the veil just a
little bit.
I think then that the legislative discussion right now
should be seen as one where there is no stare decisis, there is
no precedent that the current law is really the right way to
go. For the Judiciary Committee, we can say this is sort of
like an issue that has never been argued in previous cases. Now
we are briefing the issue. We have got this IG's report. We are
seeing a great big mess. We are seeing that secrecy with no one
looking over the shoulders predictably leads to the mess, and
it is time to write a statute that is based on what we know.
So this is really a greenfields project how to write about
NSLs. There should be no presumption that the current law,
where the FBI has now said they got an F in implementing it,
there is no presumption that you award this F with basically
the status quo.
In my written testimony, I emphasize the problems with the
gag rules that we have and how far they depart from the way we
do law ordinarily in the United States of America. There has
long been a specialized rule for wiretaps, that it stay secret,
and that is because it really undermines the effectiveness of a
wiretap to say that so-and-so is being wiretapped. They just
stop using the phone. But for record searches, the history of
the United States has not been that it is a state secret and
you cannot tell that you have had your records searched. Just
like the landlord who gets asked about a tenant. There is no
gag order on the landlord. The landlord or the record holder
cannot tip off the criminal. That is obstruction of justice,
and that is how we handle it. If you tip off the bad guys, then
you are a bad guy yourself. But, ordinarily, we start with free
speech. We start with the idea that librarians can say, hey, we
have got this problem. We go to Congress; we go to the press.
We say there is overreaching by Government. And that is the way
that the law is written.
I wrote a long and probably excessively boring law review
article in 2004 talking about gag rules and NSLs and saying why
it is just out of bounds with precedent. And I do not think
that has been addressed well by the administration. I think it
is a big problem. And so I think the presumption of gag rules,
the idea that we draft our librarians and our pawnbrokers and
our travel agents into lifelong secrecy--and that is just what
we have to do because that what America is now--I think that is
just a bizarre approach. It is bad law, and there are other
ways to address the problems of preserving secrets.
In my testimony, I make various suggestions for legislative
points, and some of those issues might come back in the
question session. I would like to highlight one idea that has
not been mentioned previously, at least not that I have seen. I
suggest that issuing NSLs could be accompanied in the future by
a statement of rights and responsibilities. You get the request
for records, and then the person receiving it--a librarian, in
our instance, who has never heard of this thing before--would
say, You have a right to consult an attorney, you have a right
to appeal this to court, you have an obligation not to tip off
the target of the investigation--a balanced and legal set of
authorities. That way the people who get it know what the rules
are, and the people who are handing it out, the FBI, will see
what their rules are. And this way, this sort of simple
statement can lead to a much better chance at compliance with
the law instead of the widespread violations we saw in the
report.
So, with that, I thank you for the invitation to
participate today. I look forward to helping your staff in
answering questions today in any way I can.
[The prepared statement of Mr. Swire appears as a
submission for the record.]
Chairman Feingold. Thank you, Mr. Swire, for that very
clear testimony. Thank you.
Our next witness will be Suzanne Spaulding. Ms. Spaulding's
expertise on national security issues comes from 20 years of
experience in Congress and the executive branch. She has worked
on both the House and Senate Intelligence Committees and has
served as legislative director and senior counsel to Senator
Specter. She has served as the Executive Director of two
different Congressionally mandated commission focused on
terrorism and weapons of mass destruction and has worked at the
CIA. She is currently a principal at Bingham Consulting Group
and is the immediate past Chair of the American Bar
Association's Standing Committee on Law and National Security.
Ms. Spaulding, thank you for taking the time to be here,
and you may proceed.
STATEMENT OF SUZANNE SPAULDING, PRINCIPAL, BINGHAM CONSULTING
GROUP, OF COUNSEL, BINGHAM MCCUTCHEN LLP, WASHINGTON, D.C.
Ms. Spaulding. Chairman Feingold, thank you for inviting me
to participate in today's hearing. I would like to begin my
testimony today by emphasizing the point you made in the
introduction, which is that I have spent 20 years working on
national security issues for the U.S. Government, starting in
1984 as senior counsel to Arlen Specter, and I developed over
those two decades a strong sense of the seriousness of the
national security challenge that we face and a deep respect for
the men and women in our national security agencies, including
the FBI, who work so hard to keep us safe.
We owe it to those professionals to ensure that they have
the tools they need to do their job. Equally important, they
deserve clear rules and careful oversight. Unfortunately, it
appears both were lacking in the implementation of the National
Security Letter authorities.
As important as it is to examine the lessons learned from
the IG report, however, I would urge Congress not to stop
there, but to take a broader approach. The various authorities
for gathering information inside the United States, including
the authorities in the Foreign Intelligence Surveillance Act,
or FISA, should be considered and understood in relation to
each other, not in isolation.
There are press reports today that the Director of National
Intelligence is going to be seeking to expand the Government's
surveillance authority by liberalizing FISA provisions on
eavesdropping and on access to records held by phone companies
and ISPs. Changes to FISA may indeed be appropriate, but I
would urge Congress not to act without first getting all the
facts, and not to act on one domestic intelligence collection
tool in isolation. In fact, I would urge Congress to undertake
a comprehensive review of all domestic intelligence
collection--not just by FBI but also by other national security
agencies engaged in domestic intelligence collection, and that
includes the Central Intelligence Agency, the Department of
Defense, the National Security Agency, and others.
A joint inquiry or task force could be established by the
Senate leadership with representation from the most relevant
committees to carefully examine the nature of the threat inside
the United States and the most effective strategies for
countering it. Then Congress and the American public can
consider whether we have the appropriate institutional and
legal framework for implementing those strategies, with
adequate safeguards and appropriate oversight. This would
include a review of FISA, National Security Letters, the
PATRIOT Act, the National Security Act of 1947, various
Executive orders, et cetera.
In the meantime, as this Committee focuses on National
Security Letters, I would urge a broader examination in that
context as well, not just on the specific problems in the
report but on National Security Letter authorities generally,
especially the changes which were included in the PATRIOT Act.
The first of these changes was the change to the standard
for issuing National Security Letters, which, as you know,
moved from the need to show specific facts providing a reason
to believe that the records were those of a foreign power or an
agent of a foreign power, to the far broader standard that the
records be merely relevant to an investigation to protect
against international terrorism.
As the IG noted, this allows the Government to get
information about individuals who are not themselves the
subject of an investigation, ``parties two or three steps
removed from their subject, without determining if these
contacts reveal suspicious connections.''
For example, Congress should examine the facts surrounding
the nine NSLs in one investigation that were, according to the
IG report, used to obtain information regarding over 11,000
different phone numbers. NSLs should not become a mechanism for
gathering vast amounts of information about individuals with no
known connections to international terrorism for purposes of
data mining. Some clear link to a known or suspected terrorist
should be required.
At least as troubling is the provision in the PATRIOT Act
that allows the Government to demand full credit reports and
all other information that a credit bureau has on individuals.
This intrusive authority was actually granted not just to the
FBI, but to any agency authorized to conduct investigations or
even engage in intelligence analysis regarding international
terrorism. This again would include CIA, NSA, DOD, and a host
of other agencies.
Given the problems uncovered in the FBI's use of NSL
authorities, Congress needs to thoroughly examine how this
authority is being used by these additional agencies and
seriously consider restricting this authority to the FBI only,
as with other NSL authorities.
The PATRIOT Act also moved the authority to approve NSLs
from senior officials in Washington down to all 56 special
agents in charge of the various field offices throughout the
country. Thus, the legal review comes from attorneys in those
offices who work for those special agents in charge, and the
Inspector General found that this chain of command has
significantly undermined the independence of those lawyers and
led some to believe that they cannot challenge the legal basis
for the NSLs or their connection to investigations.
In order to ensure more independent and consistent
oversight of the NSL process, Congress should consider
transferring the FBI's authority to issue NSLs to DOJ attorneys
in the National Security Division. This is a suggestion made by
David Kris, who was the Associate Deputy Attorney General and
Director of the Executive Office for National Security Issues
at the Department of Justice from 2000 to 2003. He points out
that in the criminal context, DOJ attorneys are involved with
all of the most effective investigative techniques, including
the issuance of subpoenas, searches, surveillance, and certain
undercover operations. But DOJ has not had this close working
relationship with the FBI intelligence investigators because of
the legacy of ``the wall.'' And yet in this area, careful
oversight from DOJ attorneys may be most important.
In closing, Mr. Chairman, I want to emphasize that the FBI
and DOJ are to be commended for having welcomed this report as
an important wake-up call and initiating changes to address
some of the problems identified, particularly with regard to
the ``exigent circumstances'' letters. Other areas requiring
clearer guidance, however, include data retention and the need
to tag NSL information as it moves through the system and makes
its way into intelligence products and criminal proceedings.
Mr. Chairman, I want to commend the Committee for holding
this hearing and again urge that the lessons learned on NSLs
lead to a broader examination of intelligence collection inside
the United States. Nearly 6 years after 9/11, it is time to
more carefully craft an effective and sustainable framework for
this long-term challenge, rather than relying on a patchwork
built on fear and in haste. We owe it to the men and women who
undertake this vital and sensitive work on our behalf to make
sure we get it right.
Thank you.
[The prepared statement of Ms. Spaulding appears as a
submission for the record.]
Chairman Feingold. Thank you, Ms. Spaulding. I welcome your
specific suggestion on NSLs and your very powerful point about
the need to take a broader look. I also serve on the
Intelligence Committee, and having experienced these different
revelations, both here and there, and thinking about how these
all interrelated, it is very complex. But it is just like the
broader issue of fighting terrorism after 9/11. We can either
choose to look at the whole picture and understand it or not.
And your testimony is about getting the whole picture before us
and making decisions on that basis. So I thank you, and all of
you. This is exactly the kind of record we need. And although
it may seem quiet in this room and not a lot of Senators here,
these kinds of hearings are extremely valuable as we go down
the road to be able to have authorities like you on the record
saying this.
I will turn to questions. Before I begin, I would like to
place the following items in the record of the hearing: a
statement from Lisa Graves, Deputy Director of the Center for
National Security Studies; and a statement from James Dempsey,
Policy Director of the Center for Democracy and Technology.
Without objection, they will be included in the record.
Mr. Christian, again, thank you for being here. I think we
can all agree that libraries should not be safe havens for
criminals or terrorists, but also that the privacy of library
records should be carefully protected. There has been some
confusion over what types of library records the FBI can
request under the NSL statute, and the NSL that you received
was hardly a model of clarity. It admittedly covered only a
specific and limited time period, but it was not at all clear
exactly what the FBI was asking for. And you received it a full
5 months after the date in question.
For you to fully comply with the FBI's National Security
Letter that you received in July 2006, as you understood it,
exactly what records do you believe you would have had to turn
over?
Mr. Christian. At a minimum, Senator, we would have had to
turn over the entire patron database for that particular
library and perhaps some of the circulation records.
You are quite correct to say that we have learned through
experience the NSL statute is really only about electronic
records. However, these days in libraries, all records are
electronic. And libraries are working to provide patrons the
maximum use of the electronic records that are available. Not
only is the card catalogue not a card catalogue, it is an
electronic catalogue. But libraries are working to link
searches in the catalogue with searches in electronic databases
and with searches on the Internet, all automatically. It is
called ``federated searching.''
So if I were looking for something in a card catalogue, I
would see what my library had on the shelf. I would also see
what resources were available from electronic databases that
the library subscribed to. And I would see appropriate websites
to my query on the Internet. So that is all one search. If you
are turning over to the FBI what the patron was looking for,
how can you divide that up?
The address that the FBI was looking for led to a router at
the building. Routers use address translation to mask the
identity of the computers behind them to prevent hacking or to
make hacking more difficult.
Every time a computer is turned on, the router randomly
assigns it a different address. Five months after the fact, we
would have had to tell the FBI, well, it is one of all of the
computers in the library, an there is no record of which patron
was using what. So I guess they would have wanted to know about
all the patrons. And if they were looking for electronic
records, they may have wanted to know everything that we have,
which includes the circulation records.
Chairman Feingold. Thank you so much.
Professor Swire, you have studied these statutes for a long
time. Did it surprise you to learn that the FBI has issued an
NSL to a library entity and that the NSL was worded in this
confusing way?
Mr. Swire. I think in the last several years, libraries
have become famous in many ways in the PATRIOT Act debates
partly because librarians have been so courageous about
speaking up about these issues and have been very organized and
understand what is at stake. And what we have heard here is
essentially a sort of haystack problem where to be able to
figure out who the one person is, you would have to send the
whole haystack over to the FBI. And that is because we do not
want to have the far more intrusive rules that would require,
for instance, every time somebody goes to the library to
register what sites they are going to or register exactly to
that computer, that would be a level of sort of intrusion and
required surveillance that would be far worse.
So it is not a surprise that libraries have been targeted,
and it is not a surprise that you would end up with this
haystack and very little usable information.
Chairman Feingold. Thank you, Professor.
Mr. Barr, a major concern that you raise in your testimony
is the potential breadth of the relevance standard for the
NSLs. When I pressed FBI Director Mueller on this issue a
couple weeks ago, he basically acknowledged that the relevance
standard would permit the FBI to use NSLs to obtain some
records of innocent Americans that it probably should not.
Do you agree that the relevance standard would permit the
FBI to obtain the records of individuals two or three times
removed from a suspect?
Mr. Barr. The relevance standard, I think common sense
tells us, as well as those of us such as yourself, Mr.
Chairman, and members of this panel, including myself, with
experience in Government, is an absolutely meaningless
standard. It has no relevance to a standard.
Simply saying that the FBI can use a National Security
Letter to obtain information on any person or persons that they
want so long as it is relevant to an investigation that they
have determined is an appropriate one, without any review,
without any accountability, without any objective standard, has
rendered it meaningless.
Therefore, as we saw in the IG report, obtaining vast
amounts of data on individuals two or three or perhaps even
more times removed, simply because an individual perhaps uses
the same business establishment as a suspected or known
terrorist or because an individual, a U.S. person, goes to the
same medical facility as a suspected or known terrorist, the
hypothetical--they are not really hypotheticals. The examples
go on and on.
So there has to be a standard, and that standard needs to
be based on a reasonable and articulable suspicion that there
is suspicious activity that that person on whom the National
Security Letter is directed to obtain information on that
person above and beyond simply that they might have been in the
same place at the same time or in the same place at a different
time than the true target. That is why we see these vast
amounts of data similar to what occurred as we found out after
the crumbling of the Soviet bloc, STASI, for example, the East
German intelligence service, once the government there fell,
and we were able to gain access to vast warehouses of
information, including physical evidence or suspected physical
evidence on virtually everybody that lived in a certain area or
that worked in a certain industry, not because they were
suspected of having done anything in particular, but perhaps at
some point in the future they might be.
That is what these NSLs are being used for, and the
relevance standard is the vehicle that allows them to do that.
Chairman Feingold. Thank you.
Ms. Spaulding, I think I explicitly heard you say that you
thought this could go to people two or three times removed from
a suspect, and I take it, Professor Swire, you would agree with
that as well. Correct? You both would agree with that; is that
right?
Ms. Spaulding. And, in fact, the Inspector General said as
much in his report.
Chairman Feingold. Professor, do you agree?
Mr. Swire. Yes, and one idea about relevance, in the first
year of law school people learn about the Federal Rules of
Civil Procedure and discovery as to everything that is relevant
to a case. And we know that that is just about as wide open as
could be, and so everybody on Judiciary would sort of know
that.
Ms. Spaulding. The other point to be made there, Senator,
is that it is relevant to what. It is not even relevant to an
investigation into terrorist activities. It is relevant to an
investigation to protect against international terrorism, which
I think, you know, potentially is wide open.
Chairman Feingold. That sort of relates to my next
question. Proponents of the relevance standard often point to
grand jury subpoenas and argue the standard should be the same
for both NSLs and the grand jury subpoenas. For any of you, is
that an apt analogy? Ms. Spaulding?
Ms. Spaulding. I think it is not for a number of reasons,
but one of the most important I think often gets lost in this
argument that if we have this authority to go after ordinary
criminals, we should have the exact same authority to go after
international terrorists in an intelligence investigation.
What is lost is that intelligence investigations are
looking for suspicious activity. When the grand jury subpoena
has to be relevant to a criminal investigation, what people
have to remember is that crimes, pursuant to our Constitution,
have to be clearly defined so that every American knows which
side of that line they are on and you do not accidentally
wander into criminal territory where you would be subject to
Government surveillance, et cetera.
In the intelligence context, when you now simply have to be
relevant to an investigation to protect against international
terrorism and you are looking for suspicious activity, we have
not defined that. And how Americans can know whether they are
on the right or wrong side of that suspicious activity line is
a real challenge and it makes a significant difference between
relevant to a criminal investigation and relevant to an
intelligence investigation.
Chairman Feingold. I recall this being one of the hardest
parts of trying to persuade people that there needed to be
changes in the PATRIOT Act, because the administration and
others would always say, well, you know, in Medicaid fraud a
person does not have these rights, why should a terrorist? You
know, trying to get people to be able to hear the complexity of
this but still the validity of these differences was really
tough.
Professor?
Mr. Swire. So there are at least three differences right
off the bat, in addition to crime versus everything that is
national security related.
In a grand jury situation, when an FBI agent thinks there
is a lead, first he or she has to convince the prosecutor:
Look, Prosecutor, this is actually true. Then the prosecutor
goes to the grand jury.
Second, the prosecutor has to convince the grand jury. If
it is embarrassing, if it is a fishing expedition, if it is
silly, the citizens are there, the prosecutor simply will not
do it.
But the third and most important thing is there is no gag
order. Right? So what happens is if I am a witness called for a
grand jury, I am allowed to walk out afterwards and say here
were the ten questions, here is what I said. But under NSLs, I
am not. I am under the lifelong ban, and that changes
everything. And one of the checks against abuse is if somebody
is asking a question--I can go to the press, I can go to the
Congress. If the FDA overreaches in an administrative subpoena,
if they ask for too much from a drug company, you know those
pharmaceutical companies will be--in a minute complaining about
it. That is what cannot happen under NSLs. Our checks and
balances based on openness is entirely lacking.
Chairman Feingold. Professor Swire, as you point out, the
NSL statutes have changed significantly since they were first
enacted. NSLs are not only available at the lower threshold,
but they also cover many more types of records. Based on the
history of these statutory provisions, is it sensible to permit
the Government to obtain what has become a vast range of
records, all under the very same low standard, without a court
order? And just to take an example, which is mentioned with the
FBI Director, aren't the contents of full credit reports far
more sensitive than the name of the subscriber associated with
a particular phone number?
Mr. Swire. Well, when it comes to credit reports, the first
U.S. Federal privacy law was the Fair Credit Reporting Act in
1970. So that came first. So we know credit reports are
sensitive. That is what Congress acted on first. And then I
think as Congressman Barr and others on the panel have said,
these are the reasons we go to judges first because there is
such a range of records and because they are held for so long
and because there is no way to dispute them. And with that
range of records being involved, we should have judges first.
Chairman Feingold. I think Mr. Barr wanted to say something
about the grand jury analogy, if you can do that now.
Mr. Barr. Thank you very much, Mr. Chairman. I would just
add one additional point to the several points that my
colleagues on the panel have noted as differences between the
NSL and the grand jury subpoena, and that is, there is a
judicial open mechanism that is available to the citizen, the
U.S. person, or the recipient of a grand jury subpoena. There
are established procedures that are known, that are provided
for in law and in the Rules of Procedure to contest the
overbreadth, for example, of a grand jury subpoena, a move to
quash it.
These are not remedies that are available in any way shape
or form either from a practical standpoint or a legal
procedural standpoint to a recipient of an NSL. So I would add
that to the differences between the two for those who would
say, well, the NSL is simply another form of a grand jury
subpoena.
Chairman Feingold. Thank you.
Mr. Christian, the NSL gag order had a significant effect
on your professional and personal life and relationships. Your
situation is very unusual in that, as you pointed out, your gag
has been lifted. But we were recently reminded by an op-ed
published in the Washington Post by the John Doe in the New
York NSL lawsuit that for him and others the gag is permanent.
What would it be like for you and the other plaintiffs now
if you were still subject to the gag order and still could not
explain to your staff and family what you were going through?
Mr. Christian. I think it would eventually become simply
impossible. You are living at least a tacit lie with all these
groups--with your family, with your professional colleagues,
with your workers. My big concern, in addition to not being
able to talk to librarians or even my staff, was that I pride
myself on my integrity, and yet it was obvious to my entire
board of directors and to the entire membership in our
organization that I was concealing something that was really
big.
I did not know whether I had their full support or most of
their support or whether there was a significant minority
opinion that I should consider. I could not ask. I could not
discuss it. I had to outright lie to our auditors. I am
supposed to testify to the auditors every year whether or not
Library Connection is involved in any major lawsuits, and I
could not say, ``no'', and add, in parentheses, except for the
fact we are suing the Attorney General. I would not have wanted
to do that year in and year out, especially if the press
coverage continued. At some point the auditor would look me
back in the eye and say, ``I do not believe you.'' And then
where would we be? It was just awful.
On the other hand, at least I had the sympathy of people,
especially my colleagues, because it was in the press: These
poor people, like the John Doe in New York, they really have to
keep it bottled up within themselves; it must be awful.
Chairman Feingold. Thank you.
Professor Swire, one statutory provision that the Inspector
General report highlighted, which I do not think any of us have
had a great opportunity to pay much attention to, is the
emergency authority to obtain communication records under
Section 2702 of Title 18. That is the authority that the FBI
was apparently supposed to be invoking when it issued more than
700 illegal exigent letters.
In light of the IG report, should Congress consider changes
to that emergency provision?
Mr. Swire. Congressman, I saw that in the IG's report, and
it seems like a stretch to me on first reading. I have not had
a chance to dive deeply into that. But I think it shows a
general point, which is there are a lot of these different
statutes that fit together, as Ms. Spaulding and others have
said, and there may be all sorts of other emergency authorities
that someone is claiming somewhere or other to do things that
we never dreamed of, and this is one that has turned up through
the IG's audit.
It might be useful to find out what the list of other
emergency exceptions is that folks are using for electronic
surveillance.
Chairman Feingold. Thank you, Professor.
Mr. Christian, again, during reauthorization of the PATRIOT
Act, Congress for the first time explicitly provided for
judicial review of the gag order that comes along with
receiving an NSL, but it made the standard for overcoming the
gag order extremely difficult to actually meet. The Government
simply asserts that lifting the gag would harm national
security. That assertion is presumptively conclusive. To
overcome it, recipients must prove the assertion was made in
bad faith, which would be virtually impossible to do.
Having been on the receiving end of an NSL, do you think
that is a fair standard for judicial review of the gag order?
Mr. Christian. Absolutely not, Senator. I think that is
horrible. In our case, which was heard by Judge Janet Hall in
Bridgeport, Connecticut, in the district court, when she told
the Justice Department that she would consider the arguments in
the case but she was really leaning towards lifting the gag
order, their response was that, well, it would jeopardize their
case. And she said, ``Well, what evidence do you have that it
would jeopardize your case?'' And they said, ``We are sorry. It
is a national security secret.'' She was able to say, ``Well,
before I was appointed to the bench, I had the highest national
security clearance, so I would like to look at that evidence.''
And she made her ruling not only on the basis of a perpetual
gag order being prior restraint, but having looked to see
whether there was any mitigating evidence that really did
entail national security, and she ruled that there was none.
But that can no longer happen. It would not matter that Judge
Hall had the appropriate security clearance to look at the
FBI's evidence. She cannot. She just has to take their word for
it.
I think we have seen clearly enough that ``take my word for
it'' leads to abuse, but I don't know how this case could be
argued in the future. Our case was plain and simple: A
perpetual gag order is prior restraint. Technically, the gag
order for NSLs in the renewed PATRIOT Act is not a perpetual
gag order. It expires in a year and it has to be renewed. But I
am quite sure that it will be perpetually renewed. It is a
terrible change in the law.
Chairman Feingold. For any of you, are there options that
Congress should be considering beyond legislation? For example,
should we be asking the Inspector General to do any follow-up
work in addition to the report he is doing on the use of NSLs
in 2006? Ms. Spaulding?
Ms. Spaulding. Well, as I indicated in my testimony, I
would urge Congress to perhaps direct the IGs of the other
national security agencies and really virtually any agency that
would fit within that definition of a Government agency
involved in either an investigation or intelligence activities
or analysis of international terrorism to look at what each of
those agencies is doing in terms of implementing their National
Security Letter authority.
These are agencies that typically are not used to dealing
with collection of intelligence information inside the United
States and the tremendous sensitivities that come into play in
that context.
Chairman Feingold. Mr. Barr?
Mr. Barr. Thank you, Mr. Chairman. The IG report, which is
the subject or the base for our discussion here today, is not
even comprehensive. It is based on a sampling that was
conducted of a number of offices and only a number of files. It
barely scratched the surface, and yet it uncovered very
substantial abuses of the system.
I think that the Congress in both its oversight capacity as
well as in its financial or appropriations capacity needs to
ensure that these matters are gone into in much greater detail.
There clearly are problems there, but based on a sampling we do
not know even today the true extent of these problems, even
before we have reached the statutory fixes that we are
recommending and that I know the Chairman is considering.
Chairman Feingold. Professor?
Mr. Swire. Thank you, Senator. In my testimony, I talk
about an interesting sentence from FBI testimony in the House
just a couple weeks ago, so that was in March. And the FBI
stated in that testimony that it had found reporting problems
on the numbers of NSLs, that they had seriously understated the
number of NSLs to Congress. They found out on their own before
the Inspector General went in, and the quote is, ``We
identified deficiencies in our system for generating data
almost 1 year ago.''
Now, that was March 2007. President Bush signed the
reauthorization in March 2006. So they flagged it to Congress,
it sounds like, immediately after the President signed the
reauthorization that they had miscounted this.
Now, that is pretty interesting. And so the question is:
When did the FBI know that it had significantly underreported
to Congress on the number of NSLs? Apparently they flagged it
in March or April, and so questions about what happened there
seem appropriate just based on their own sworn testimony,
because Congress was trying to rely on the FBI to decide what
to do, and Congress might have been relying on known incorrect
information.
Chairman Feingold. Mr. Christian, you were able to secure
free legal representation to challenge the NSL that you
received. What would you have done if you were unable to find
lawyers willing to bring your case without charge?
Mr. Christian. I don't think we would have been able to
pursue the case very far at all. We are nonprofit corporation.
We receive no Federal, State, county, or even grant funding. We
are entirely supported by our 27 member libraries, and it costs
about $1 million a year for our operations. So that tapping
into our libraries for pursuing this case as far as it went--
and it did go briefly to the Supreme Court--would have just
been too large a burden, and justice should not come with a
burden like that.
Chairman Feingold. Mr. Swire, how should we amend the gag
rule for National Security Letters? And should we consider
similar changes to the gag rule that is associated with Section
215?
Mr. Swire. Yes, 215 should be changed in the same way. I
actually believe that the gag order should be repealed, and can
be safely, and the reason is, if I am served with--and I go
into this in detail in my long and boring law review article.
The reason is that if I am served with an NSL and then I tip
off the bad guys, we have material-support-for-terrorism
statutes, we have obstruction-of-justice statutes, we have
penalties that happen for that. And those are serious criminal
penalties, and are criminal penalties that are similar to the
NSL criminal penalties, except probably longer times, and that
is the way we have handled investigations for the last 200 and
however many years in the United States of America. The cops
are investigating somebody, and they go knock on the door or
ask for records, and the people who are subject to search can
talk about it, but they are not allowed to conspire with the
criminals or the suspects.
So I actually think that is a complete answer, and I have
not seen any statement back about why that is not good enough.
Chairman Feingold. Very, very helpful.
I know Senator Durbin wanted to be here, but he is chairing
his own hearing. I know he is interested in this. There are
other members on both sides of the aisle on this Committee who
have expressed interest in this, so, again, I said it before
but I will repeat it, how valuable this testimony is today.
We any of you like to make any quick concluding remarks at
all?
Mr. Christian. Mr. Chairman, I would just like to echo Mr.
Swire's remark. I am not an expert in law the way he is, but as
the victim of a gag order, I felt it was totally unnecessary in
our case. We had no intention of finding out who the FBI was
after, let alone informing them. But we did want to let
Congress know that National Security Letters were being served
on libraries, and we did want to let libraries know that now it
was the policy of the Government to use the PATRIOT Act against
libraries and that they should take appropriate measures.
Chairman Feingold. Ms. Spaulding?
Ms. Spaulding. Mr. Chairman, in response to your earlier
question about other areas that might require some additional
investigation, there is a very troubling incident relayed in
the IG's report with respect to the Terrorist Financing
Operations Section and their interaction with the Assistant
General Counsel from the FBI's Office of General Counsel, where
certain key facts with respect to requests being made to
Federal Reserve banks were misrepresented to the Assistant
General Counsel and guidance from that lawyer was ignored. And
I think it would be important to find out more of the facts
surrounding that incident and whether anybody faced any
disciplinary action and what has been done in response to that.
Thank you.
Chairman Feingold. Thank you.
Representative Barr?
Mr. Barr. Thank you, Mr. Chairman. I would simply urge the
Chairman both in his capacity as Chairman of this Subcommittee
and to urge his colleagues to move forward with very aggressive
oversight at this particular time. In my experience both in the
executive branch and in the oversight that we conducted in the
House counterpart to the Committee of which this Subcommittee
is a part, as bad as the abuses that we have seen are, at times
of uncertainty when leadership is lacking or confused, such as
the current situation at the Department of Justice, these
problems are going to be compounded. They will not get better
in the current environment over there. They will get worse.
There is great potential for further abuse right now.
So I think it is very important that these matters be
pursued from an oversight standpoint, immediately, repeatedly,
and very aggressively. Otherwise, it will get worse. And if, in
fact, the abuses that we have seen chronicled by simply
scratching the surface, as the IG did here, become
institutionalized by repetitive use over time, as they do
during periods where leadership is confused or you do not have
clear lines of authority, it becomes that much harder to
dislodge those abusive patterns of behaviors and those
practices.
Chairman Feingold. That is a very timely warning. I
appreciate it. Well, again, I thank all of you. This is exactly
what I had hoped it would be, and I look forward to working
with you on this in the future.
This concludes the hearing.
[Whereupon, at 4:01 p.m., the Subcommittee was adjourned.]
[Submissions for the record follow.]
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