[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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                       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

                              ----------                              

                    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

                              ----------                              


                       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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