[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]


 
                   REAUTHORIZATION OF THE PATRIOT ACT

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                      ONE HUNDRED TWELFTH CONGRESS

                             FIRST SESSION

                               __________

                             MARCH 9, 2011

                               __________

                           Serial No. 112-14

                               __________

         Printed for the use of the Committee on the Judiciary


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



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                       COMMITTEE ON THE JUDICIARY

                      LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr.,         JOHN CONYERS, Jr., Michigan
    Wisconsin                        HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina         JERROLD NADLER, New York
ELTON GALLEGLY, California           ROBERT C. ``BOBBY'' SCOTT, 
BOB GOODLATTE, Virginia                  Virginia
DANIEL E. LUNGREN, California        MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio                   ZOE LOFGREN, California
DARRELL E. ISSA, California          SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana                  MAXINE WATERS, California
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
STEVE KING, Iowa                     HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona                  Georgia
LOUIE GOHMERT, Texas                 PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio                     MIKE QUIGLEY, Illinois
TED POE, Texas                       JUDY CHU, California
JASON CHAFFETZ, Utah                 TED DEUTCH, Florida
TOM REED, New York                   LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas                DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona

      Sean McLaughlin, Majority Chief of Staff and General Counsel
       Perry Apelbaum, Minority Staff Director and Chief Counsel
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

                  LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia              ROBERT C. ``BOBBY'' SCOTT, 
DANIEL E. LUNGREN, California        Virginia
J. RANDY FORBES, Virginia            STEVE COHEN, Tennessee
TED POE, Texas                       HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah                   Georgia
TIM GRIFFIN, Arkansas                PEDRO PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania             JUDY CHU, California
TREY GOWDY, South Carolina           TED DEUTCH, Florida
SANDY ADAMS, Florida                 DEBBIE WASSERMAN SCHULTZ, Florida
BEN QUAYLE, Arizona                  SHEILA JACKSON LEE, Texas
                                     MIKE QUIGLEY, Illinois

                     Caroline Lynch, Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                             MARCH 9, 2011

                                                                   Page

                           OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     1
The Honorable Robert C. ``Bobby'' Scott, a Representative in 
  Congress from the State of Virginia, and Ranking Member, 
  Subcommittee on Crime, Terrorism, and Homeland Security........     2
The Honorable Lamar Smith, a Representative in Congress from the 
  State of Texas, and Chairman, Committee on the Judiciary.......     4
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     5

                               WITNESSES

Todd M. Hinnen, Acting Assistant Attorney General, National 
  Security Division, Department of Justice
  Oral Testimony.................................................     8
  Prepared Statement.............................................    10
Robert S. Litt, General Counsel, Office of the Director of 
  National Intellilgence
  Oral Testimony.................................................    16
  Prepared Statement.............................................    18
Nathan A. Sales, Assistant Professor of Law, George Mason 
  University
  Oral Testimony.................................................    24
  Prepared Statement.............................................    26
Julian Sanchez, Research Fellow, Cato Institute
  Oral Testimony.................................................    36
  Prepared Statement.............................................    38

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Report by the American Civil Liberties Union (ACLU) submitted by 
  the Honorable Henry C. ``Hank'' Johnson, Jr., a Representative 
  in Congress from the State of Georgia, and Member, Subcommittee 
  on Crime, Terrorism, and Homeland Security.....................    61

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, 
  Jr., a Representative in Congress from the State of Georgia, 
  and Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    99
Letter from Debra Burlingame, Co-Founder, and Timothy Killeen, 
  Executive Director, Keep America Safe..........................   101
Letter from J. Adler, National President, the Federal Law 
  Enforcement Officers Association (FLEOA).......................   102
Letter from Konrad Motyka, President, the Federal Bureau of 
  Investigation Agents Association...............................   105


                   REAUTHORIZATION OF THE PATRIOT ACT

                              ----------                              


                        WEDNESDAY, MARCH 9, 2011

              House of Representatives,    
              Subcommittee on Crime, Terrorism,    
                             and Homeland Security,
                                Committee on the Judiciary,
                                                    Washington, DC.

    The Subcommittee met, pursuant to notice, at 1:30 p.m., in 
room 2141, Rayburn Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Smith, Gohmert, 
Lungren, Poe, Chaffetz, Griffin, Marino, Gowdy, Adams, Quayle, 
Scott, Conyers, Johnson, Chu, Wasserman Schultz, and Quigley.
    Staff present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Sarah Allen, Counsel; Arthur Radford Baker, 
Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk; 
(Minority) Bobby Vassar, Subcommittee Chief Counsel; Sam Sokol, 
Counsel; and Veronica Eligan, Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee will come to order.
    And welcome to today's hearing on the reauthorization of 
the PATRIOT Act. I would like to especially welcome our 
witnesses and thank you for joining us today.
    Presently I am joined by the distinguished Ranking Member 
and Chairman emeritus of the Subcommittee, Bobby Scott of 
Virginia. There will be more Members that will be coming later 
on.
    I yield myself 5 minutes for an opening statement.
    Today's hearing on the reauthorization of the PATRIOT Act 
will focus on three provisions set to expire May 27th: section 
206, roving authority; section 215, business records; and the 
``lone wolf'' definition.
    Last month, Congress approved a 90-day extension of these 
provisions to ensure their continued use by the intelligence 
community. The extension also affords this Committee the 
opportunity to review how these provisions are used and how to 
assist our national security investigations and to ensure that 
they are not being misused. The Committee plans to hold an 
additional hearing later this month on the permanent provisions 
of the PATRIOT Act.
    As the then Chairman of the House Judiciary Committee, I 
oversaw the enactment of the USA PATRIOT Act in response to the 
9/11 terrorist attacks. Title 2 of the act addressed enhanced 
foreign intelligence and law enforcement surveillance 
authority. 14 of the 16 sections of that title were made 
permanent by the 2005 PATRIOT Act reauthorization. The roving 
wiretap and business records provisions were extended to 
December 31st, 2009. Also set to expire on that date was 
section 6001 of the Intelligence Reform and Terrorist 
Prevention Act of 2004, which we call IRTPA, the lone wolf 
definition. Congress did not enact a reauthorization in 2009. 
Instead the expiring provisions were extended three times, 
first for 60 days, then for a year, and now for 90 days, and it 
is time for Congress to reauthorize this law.
    Congress should make permanent the lone wolf definition. 
This provision closes a gap in FISA that if allowed to expire 
could permit an additional terrorist to slip through the cracks 
and carry out his plot undetected. It has nothing to do 
whatsoever with any type of surveillance on these people. That 
is in other parts of the act.
    When FISA was originally enacted in 1978, America was 
concerned largely with collecting intelligence from foreign 
nations such as the Soviet Union or terrorist groups like the 
FARC in Colombia. Therefore, the law authorized intelligence 
gathering to foreign powers and their agents.
    The intelligence landscape has changed dramatically in the 
last 30 years. Today we are confronted with threats from 
individuals who may subscribe to certain beliefs but do not 
belong to a specific terrorist group. Without the lone wolf 
definition, our surveillance tools will be powerless against 
this growing threat to America's security.
    Section 206 of the PATRIOT Act authorizes the use of roving 
or multi-point wiretaps for national security and intelligence 
investigation. This allows the Government to use a single 
wiretap order to cover any communications device that the 
target is using or about to use. Without roving wiretap 
authority, investigators are required to seek a new court order 
each time a terrorist or spy changes cell phones or computers.
    Section 215 of the act allows FISA Courts to issue orders 
granting the Government access to business records and foreign 
intelligence, international terrorism, and clandestine 
intelligence cases. The 2005 reauthorization expanded 
congressional oversight and added additional procedural 
requirements and judicial review.
    Since the PATRIOT Act was enacted, these provisions have 
been scrutinized by Congress and have been either unchallenged 
or found constitutional. The lone wolf definition has never 
been challenged. Section 206 roving authority has never been 
challenged. The criminal roving wiretap authority was upheld 
under the Fourth Amendment to the Constitution by the Ninth 
Circuit in 1992. Section 215 business records was challenged, 
but after Congress made changes to that provision in the 2005 
reauthorization, the lawsuit was withdrawn. Each of these 
provisions is integral to defending America against enemy 
nations, terrorist groups, and individual terrorists and must 
be kept intact.
    I wish to welcome our witnesses and thank you for joining 
us today.
    And now I would like to recognize for his opening statement 
the gentleman from Virginia, Mr. Scott, who is the Ranking 
Member of the Subcommittee.
    Mr. Scott. Thank you, Mr. Chairman. I thank you for holding 
this hearing on the reauthorization of the expiring provisions 
of the USA PATRIOT Act. We are here on a temporary 3-month 
extension. The House passed a much longer extension. I am 
pleased that it was shorter extension, but I remain opposed to 
the extension of these provisions without changes to them to 
better ensure the rights of innocent Americans are not trampled 
upon.
    Three sections scheduled to sunset are deeply troubling. 
Section 215 of the PATRIOT Act authorizes the Government to 
secretly obtain any tangible thing so long as it provides, in 
an ex parte proceeding, a statement of facts showing that there 
is reasonable grounds to believe that the tangible things are 
relevant to a foreign intelligence, international terrorism, or 
espionage investigation. No showing of probable cause, no 
direct connection to a foreign power or agent is needed, and 
any tangible thing includes business records, library records, 
tax records, educational records, medical records, or anything 
else.
    Before the enactment of section 215, only specific types of 
records were subject to such orders and the Government had to 
show specific and articulable facts giving reason to believe 
that the person to whom the records pertain is a foreign power 
or an agent of a foreign power. While these extraordinary 
powers were authorized and defended under the rubric that they 
are necessary to protect us from patriotism, the secret dragnet 
style approach allows the Government to review personal records 
even if there is no specific and articulable facts giving 
reason to believe that the individual targeted had anything to 
do with terrorism. The justification of these extraordinary 
powers is to protect us from terrorism. Congress should either 
ensure that things collected with this power have a meaningful 
connection to at least suspected terrorism or the provision 
should expire.
    Section 206 provides for roving wiretaps, including a John 
Doe roving wiretap, which permit the Government to secretly tap 
phones it believes a non-U.S. person may use. The order may be 
against any phone, including a phone of a neighbor if the 
person has visited before and used the phone whether or not he 
is determined to be using the phone again or if the officials 
represent to a judge, on an ex parte basis, that the person is 
evasive in the use of phones.
    Section 6001, the so-called ``lone wolf'' provision, 
permits secret intelligence gathering of non-U.S. persons in 
the U.S. even if they are not affiliated with a foreign 
government or terrorist organization. We have traditionally 
limited this kind of Government power to situations that 
involve agents of foreign governments or foreign terrorist 
organizations. With the necessity for business people to 
operate in a global economy and the frequency with which 
American citizens interact with people from around the world, 
the risk that this provision poses for ordinary activities of 
such Americans to be subject to spying is unacceptable, 
especially since the Government testimony indicates that the 
lone wolf provision is rarely, if ever, used. And even if there 
was a case where there was good cause for the Government to 
keep tabs on such people, there is no reason to jeopardize the 
safeguards that protect the traditional rights and freedoms of 
Americans when we can pursue such persons under existing 
authorities which allow emergency warrants and just about any 
other Government action that is reasonably based on pursuing a 
suspect.
    It is encouraging that there was significant bipartisan 
opposition to the extension of these PATRIOT Act provisions. It 
shows a healthy skepticism of unrestrained Government power to 
spy on people in the United States. We need to restore our 
traditional respect for the right of every individual to be 
secure from unchecked Government intrusion. I hope that we can 
arrive at ways of doing so in our review of these authorities. 
We did so before under your leadership, Mr. Chairman, when we 
arrived at a version of the PATRIOT Act when it was originally 
passed that every Member of the House Judiciary Committee voted 
for, and I am confident that we can again under your leadership 
do the same thing.
    Thank you and I yield back.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The Chair now recognizes the Chairman of the Committee, the 
gentleman from Texas, Mr. Smith.
    Mr. Smith. Thank you, Mr. Chairman.
    The September 11th attack--and this September 11th marks 
the 10-year anniversary of the worst terrorist attack in U.S. 
history. America is fortunate not to have suffered another 
attack of such magnitude and devastation in the past decade. 
This does not mean that the terrorists have given up their plot 
to destroy America or that we should no longer be prepared for 
another large-scale attack. As we have seen in recent years, 
the absence of a major attack does not mean that America is 
secure.
    To avoid detection, terrorists have shifted their tactics 
away from complex, coordinated attacks by a group of terrorists 
to smaller, individualized plots by rogue terrorists.
    On Christmas Day 2009, a foreign terrorist from Nigeria 
attempted to detonate a bomb hidden under his clothes on a 
plane on the way to Detroit.
    Last spring, a radicalized American citizen from Pakistan 
tried to explode a car bomb in Times Square.
    Plots to attack both the Washington, D.C. Metro and New 
York subway systems have also been thwarted.
    And just 2 weeks ago, a 20-year-old student from Saudi 
Arabia was arrested in my home State of Texas for attempting to 
use weapons of mass destruction. Khalid Aldawasari entered the 
United States in 2008 on a student visa to complete English 
language training, but in reality, he came to the United States 
to carry out violent jihad on innocent Americans. Aldawasari 
had been planning his bombing plot for years, even seeking out 
a particular scholarship to attend school in the U.S. while 
carrying out this plot. According to prosecutors, Aldawasari 
obtained two of the three chemicals needed for a bomb over the 
last 3 months and had attempted to buy the third. He had also 
researched potential targets, including the Dallas residence of 
former President George W. Bush, several dams in Colorado and 
California, and the homes of three former military guards who 
served in Iraq.
    The PATRIOT Act was enacted to prevent both large-scale 
attacks and terrorist plots by individual terrorists acting 
alone like the one in Dallas. Unfortunately, the myths 
surrounding the PATRIOT Act often overshadow the truth, but 
this is not ``Law and Order'' or some criminal justice show 
painting the PATRIOT Act as a tool of ``Big Brother'' just for 
their ratings. This is the real world where we must address the 
real threat from foreign terrorists. As we review these 
expiring provisions, Congress must set aside fiction and focus 
on the facts.
    The three expiring national security provisions that 
Congress will consider this year are both constitutional and 
common sense. For example, the roving wiretap provision allows 
intelligence officials, after receiving approval from a Federal 
court, to conduct surveillance on terrorist suspects regardless 
of how many communication devices they use. We know terrorists 
use many forms of communication to conceal their plots, 
including disposable cell phones.
    Roving wiretaps are nothing new. Domestic law enforcement 
agencies have had roving authority for criminal investigations 
since 1986. If we can use this authority to track down a drug 
lord, why shouldn't we also use it to prevent a terrorist 
attack?
    The business records provision allows the FBI to access 
tangible items, including business records in foreign 
intelligence, international terrorism, and espionage cases. 
Again, this provision requires the approval of a Federal judge. 
That means the FBI must prove to a Federal judge that the 
documents are needed as part of a legitimate national security 
investigation.
    The third provision amends the legal definition of an agent 
of a foreign power to include a lone wolf provision. National 
security laws allow intelligence gathering on foreign 
governments, terrorist groups, and their agents. But what about 
a foreign terrorist who either acts alone or cannot be 
immediately tied to a terrorist organization? The lone wolf 
definition simply brings our national security laws into the 
21st century to allow our intelligence officials to answer the 
modern day terrorist threat.
    We cannot fight terror in this century with the tools of 
the last century. Congress must reauthorize these important 
national security laws. We simply cannot afford to leave our 
intelligence community without the resources it needs to 
dismantle terrorist organizations, identify threats from both 
groups and individuals, and interrupt terrorist plots of all 
sizes.
    Mr. Chairman, let me say in conclusion that I personally 
appreciate all the work that you have done on the PATRIOT Act. 
You were the Chairman of this Committee when it first passed. 
You have conducted oversight of the PATRIOT Act in the past. 
You are continuing to do so today. And I hope the results of 
all of our efforts will be to reassure individuals that these 
three provisions need to be extended and that they are doing a 
lot to protect the lives of Americans today.
    I yield back.
    Mr. Sensenbrenner. The Chair recognizes the most recent 
Chairman emeritus of the Committee, the gentleman from 
Michigan, Mr. Conyers.
    Mr. Conyers. I want to thank the most senior Chairman 
emeritus for recognizing me and to let you know that I do not 
know if you are, as our present Chairman, about to move the 
discussion of the PATRIOT Act from the Constitution 
Subcommittee to the Crime Subcommittee. That is your 
prerogative. And I noticed that is what the senior Chairman 
emeritus did when he was Chair. And here we are doing it again.
    Now, it is my understanding that many Members in the 
Subcommittee opposed this 3-month extension. They wanted it 
longer. I am satisfied with 3 months and apparently so is the 
other body.
    So we are here today. And I guess no one else has to 
recount all the horror stories of terrorism, incidents of 
terrorists, people arrested for terrorism and not yet 
prosecuted. That has all been done. But I am not sure if that 
is the main issue that surrounds us today because the most 
basic questions raised to me are what intrusions on our freedom 
and privacy will we accept, how much will we accept in this 
fight against terrorism. I noticed that the Chairmen of the 
Subcommittee and the full Committee have failed to even comment 
on that, which I consider to be the crux of us coming together. 
It is commented on by one of the witnesses here from the Cato 
Institute.
    What we are trying to do here today is reach a balance 
between protection and our liberties. I just want to read you 
what came from a former Senator from Minnesota--Wisconsin: ``Of 
course, there is no doubt that if we lived in a police state, 
it would be easier to catch terrorists. If we lived in a 
country that allowed the police to search your home at any time 
for any reason, if we lived in a country that allowed the 
Government to open your mail, eavesdrop on your conversations, 
intercept your email, if we lived in a country that allowed the 
Government to hold people in jail indefinitely based on what 
they write or think or based on mere suspicion that they are up 
to no good, then the Government would, no doubt, discover and 
arrest more terrorists. But that is not a country which we 
would want to live in and that would not be a country for which 
we could, in good conscience, ask our young people to fight and 
die for. In short, it would not be America.'' And so it is that 
set of concerns that to me bring us here today.
    And for all of us, I keep remembering that the Chairman's 
original PATRIOT bill was passed unanimously out of this 
Committee, and then not so mysteriously substituted in the 
Rules Committee for a bill that no one had ever seen before. 
And so it is against that backdrop that I join in welcoming all 
of the witnesses today for this discussion.
    Thank you.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    Without objection, Members' opening statements will be made 
a part of the record.
    And also without objection, the Chair will be authorized to 
declare recesses during votes on the House floor.
    It is now my pleasure to introduce today's witnesses.
    Todd Hinnen is the Acting Assistant Attorney General for 
National Security at the Department of Justice. Prior to 
assuming this position, Mr. Hinnen was the Deputy Assistant 
Attorney General for Law and Policy at the National Security 
Division of the Department of Justice. He also has previously 
served as chief counsel to then Senator Joseph Biden, Jr., and 
as a director in the National Security Council's Combating 
Terrorism Directorate and as a trial attorney in the Department 
of Justice's Computer Crime and Intellectual Property Section.
    Mr. Hinnen clerked for Judge Richard Tallman on the Ninth 
Circuit Court of Appeals and he is a graduate of Amherst 
College and Harvard Law School.
    Robert Litt is the General Counsel in the Office of the 
Director of National Intelligence. Before joining ODNI, Mr. 
Litt was a partner with the law firm of Arnold & Porter, LLP. 
He served as a member of the governing body of the American Bar 
Association's Criminal Justice Section and is a member of the 
advisory committee to the standing Committee on Law and 
National Security.
    From 1993 to 1999, Mr. Litt worked at the Department of 
Justice where he served as the Deputy Assistant Attorney 
General in the Criminal Division and then as the Principal 
Associate Deputy Attorney General. His duties at DOJ included 
FISA applications, covert action reviews, computer security, 
and other national security matters.
    He started his legal career as a clerk for Judge Edward 
Weinfeld of the Southern District of New York and Justice 
Potter Stewart of the United States Supreme Court. From 1978 to 
1984, he was an assistant U.S. attorney for the Southern 
District of New York. He also spent 1 year as a special advisor 
to the Assistant Secretary of State for European and Canadian 
Affairs.
    He holds a B.A. from Harvard college and an M.A. and J.D. 
from Yale University.
    Nathan Sales is an Assistant Professor of Law at the George 
Mason University School of Law where he teaches national 
security and administrative law. Prior to coming to George 
Mason, he was a Deputy Assistant Secretary for Policy 
Development at the U.S. Department of Homeland Security.
    He has previously served as counsel and then senior counsel 
in the Office of Legal Policy at the U.S. Department of 
Justice. In 2002, he received the Attorney General's Award for 
exceptional service for his role in drafting the USA PATRIOT 
Act.
    He graduated from Duke Law School magna cum laude where he 
joined the Order of the Coif and was research editor of the 
Duke Law Journal.
    He clerked for the Honorable David B. Sentelle of the U.S. 
Court of appeals for the D.C. Circuit, and from 2003 to 2005, 
he practiced at the Washington, D.C. law firm of Wiley, Rein & 
Fielding. He was the John N. Olin Fellow at Georgetown 
University Law Center in 2005 and 2006.
    Julian Sanchez is a research fellow at the Cato Institute 
who studies the intersection of privacy, technology, and public 
policy. He has written extensively about surveillance and the 
intelligence community for publishers across the political 
spectrum, from National Review to Newsweek and The Nation. As a 
journalist, Sanchez has covered these same issues as Washington 
editor of the technology site, Ars Technica, a blogger for the 
Economist, and an editor for Reason magazine. He studied 
philosophy and political science at New York University.
    Without objection, the witnesses' statements will appear in 
the record in their entirety. Each witness will be recognized 
for 5 minutes to summarize their written statement, and the 
Chair now recognizes Mr. Hinnen.

TESTIMONY OF TODD M. HINNEN, ACTING ASSISTANT ATTORNEY GENERAL, 
       NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE

    Mr. Hinnen. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The Chair may withdraw his recognition 
of Mr. Hinnen, seeing if we have some votes on the floor. We 
have three votes on the floor. We will wait until the votes are 
over with and then I will recognize you for 5 minutes.
    The Committee is recessed. Would Members please come back 
here promptly following the last vote?
    [Recess.]
    Mr. Sensenbrenner. The Subcommittee will be in order, and 
the Chair will re-recognize Mr. Hinnen for 5 minutes.
    Mr. Hinnen. Thank you, Mr. Chairman.
    Chairman Sensenbrenner, Ranking Member Scott, Ranking 
Member Conyers, and Members of the Subcommittee, thank you for 
inviting me to testify today concerning the three provisions of 
the Foreign Intelligence Surveillance Act currently scheduled 
to sunset in May: the roving wiretap provision, the lone wolf 
definition, and the business records provision.
    I will make four general observations about these 
provisions and then discussion each of them briefly.
    First, these provisions are constitutional. Two of them, 
the roving wiretap provision and the business records provision 
have close analogues in criminal law: Title III roving 
wiretaps, and grand jury subpoenas. The courts have upheld each 
of these criminal analogues as constitutional. The lone wolf 
definition is simply a specific application of FISA 
surveillance authority which the courts have also upheld as 
constitutional.
    Second, they are important to our ability to conduct 
effective national security investigations. Allowing them to 
expire even for a brief time would make America less safe from 
international terrorism and other foreign threats.
    Third, they are subject to robust protections for privacy 
and civil liberties that involve all three branches of 
Government. Each requires the Government to make certain 
showings to an independent court, the FISA Court. Each imposes 
strict rules governing how the Government handles information 
regarding United States persons. Each is subject to extensive 
executive branch oversight, and each is subject to 
congressional reporting requirements.
    Fourth, these authorities have been subject to extensive 
discussions between Congress and the executive branch, and 
Congress has already renewed them several times.
    My written testimony sets forth a detailed explanation of 
how each of them works. Let me summarize it briefly.
    First, the roving wiretap provision. Ordinarily when the 
Government demonstrates probable cause that a subject is an 
agent of a foreign power and is using a facility such as a 
telephone number, the FISA Court issues two orders. One order 
is to the Government authorizing the surveillance, and the 
second order is to the provider, the telephone company, 
directing it to assist the Government. When we demonstrate to 
the court that the subject may take steps to thwart 
surveillance, such as by switching telephone companies, the 
court can issue a roving order, directing any telephone company 
to assist the Government. When the Government identifies the 
new phone number that the subject is using and initiates 
surveillance, it must notify the court within 10 days and 
provide the facts indicating that the subject is using that 
phone number.
    As courts have repeatedly held in the criminal context, a 
roving order is not a general warrant. The Government may use 
roving surveillance only against that specific agent of a 
foreign power and on a specific phone number that person is 
using. The Government obtains roving authority about 20 times a 
year on average, generally where the subject is a highly 
trained foreign intelligence officer or a terrorist with 
particularly sophisticated tradecraft.
    Second, the lone wolf definition permits surveillance when 
the Government demonstrates probable cause that a subject is 
engaged in international terrorism, even if the Government does 
not demonstrate a connection to a terrorist organization. The 
Government may not use this authority against a United States 
citizen or lawful permanent resident. Although we have not used 
this authority to date, it fills an important gap in our 
collection capabilities. It allows us to collect on an 
individual engaged in terrorist activity who is inspired by but 
not a member of a terrorist group.
    Third, the business records provision allows the Government 
to apply to the FISA Court for an order directing the 
production of tangible things that are relevant to an 
authorized national security investigation. This authority is 
analogous to grand jury subpoena authority in criminal cases. 
In fact, the Government can only obtain records that could be 
obtained by subpoena in criminal cases. But this authority 
imposes more demanding requirements on the Government than a 
criminal subpoena. The Government must demonstrate relevance 
and obtain an order from an independent court. This provision 
is used about 40 times per year on average. It has never been 
used to obtain library circulation records or the titles of 
books borrowed.
    In closing, Mr. Chairman, it is appropriate to discuss 
these authorities which are so important to our national 
security and to Americans' privacy and civil liberties, and we 
appreciate the opportunity to do so. Congress based these 
provisions on well-established, time-tested authorities in the 
criminal context and has refined them since they were enacted. 
All three are on solid constitutional footing. All three are 
important to protect this country from international terrorism 
and other foreign threats, and all three are subject to robust 
protections for privacy and civil liberties. The Department 
urges Congress to renew them.
    I look forward to the Subcommittee's questions.
    [The statement of Mr. Hinnen follows:]

    
    
    
    
    
    
    
    
    
    
    
    

                               __________
    Mr. Sensenbrenner. Thank you, Mr. Hinnen.
    Mr. Litt?

         TESTIMONY OF ROBERT S. LITT, GENERAL COUNSEL, 
        OFFICE OF THE DIRECTOR OF NATIONAL INTELLILGENCE

    Mr. Litt. Thank you, Mr. Chairman. Chairman Sensenbrenner, 
Ranking Member Scott, Ranking Member Conyers, Members of the 
Subcommittee, thank you for inviting me here to testify today 
about the three expiring provisions of the Foreign Intelligence 
Surveillance Act.
    Mr. Chairman, I particularly want to thank you for your 
leadership on PATRIOT Act issues since 2001 which have been so 
helpful for the intelligence community.
    I want to start by making clear that the three expiring 
provisions are tools that are critical to help us defend our 
national security and they must be reauthorized. At the same 
time, I want to say that I think the distinguished Ranking 
Member of the full Committee correctly identified the issue 
which is what is the proper balance to strike between the tools 
to protect national security and the protection of civil 
liberties. I think our position is--and I hope to be able to 
persuade you--that these tools in fact do that.
    I do want to begin by giving you a couple of unclassified 
examples of how these tools have been used.
    For roving taps, I can tell you that we are currently using 
one against a foreign agent who changes cellular phones 
frequently. Without roving surveillance, there would be a gap 
in collection each time this agent switched phones because of 
the time we would need to get a new court order.
    The business records provision is also important. For 
example, recently a business record order was used to obtain 
information that was essential in the investigation of Khalid 
Aldawasari, which Chairman Smith referred to earlier, who was 
subsequently arrested in Texas.
    In another case, hotel records that we obtained under a 
business records order showed that over a number of years a 
suspected spy had arranged lodging for other suspected 
intelligence officers. These records provided information about 
the subject that helped the FBI ultimately to get full FISA 
coverage.
    As you know, many uses of the authorities under FISA are 
classified and we cannot discuss them publicly. This has led to 
some myths and misconceptions about FISA and the PATRIOT Act, 
and I want to take a couple of minutes to dispel some of those.
    First, although the lone wolf definition has not been used, 
it is nonetheless an important tool to have in our toolbox in 
light of the constantly evolving terrorism threat that we face. 
Michael Leiter, the Director of the National Counterterrorism 
Center, has testified that the availability of sophisticated 
extremist propaganda on the Internet means that terrorist 
organizations can reach out and incite individual extremists to 
attack us even when those extremists may not actually be agents 
of the terrorist organization. This is the kind of situation 
that the lone wolf definition applies to, and I want to 
reiterate what Todd Hinnen just said, which is that this 
applies only to foreigners, not to U.S. citizens or lawful 
permanent residents.
    Second, criminal law authorities are not always an adequate 
substitute for FISA authorities. In particular, criminal 
wiretaps under Title III have to be disclosed to the target 
which may make it impossible to protect critical intelligence 
sources and methods. And in some cases, for example, in many 
instances when we are tracking foreign spies, we may not have a 
criminal predicate to support a Title III wiretap.
    Third, despite what some claim, we cannot get a roving 
wiretap without identifying the target. The statute requires 
that we provide the identity, if known, or a description of the 
specific target of FISA electronic surveillance.
    Finally, it is critical that the public understand that 
these are not unchecked or unrestrained authorities. We 
recognize that effective oversight of the intelligence 
community is essential both because of the powers the 
intelligence community has and because those powers are often 
exercised in secret. And we welcome that oversight. There is, 
in fact, extensive and effective oversight of these provisions 
by all three branches of Government. The legal framework 
requires that we can't predicate investigations on activity 
that is protected by the First Amendment, that information we 
collect under these authorities has to be minimized in 
accordance with procedures that are approved by the court, and 
intelligence agencies are governed by rules that limit the 
collection, retention, and dissemination of information about 
U.S. persons.
    Each of these authorities, as Todd said, requires prior 
approval by the FISA Court, and I can say from my experience in 
a year and a half on this job, that the FISA Court is not a 
rubber stamp but gives a searching review to each application 
that comes before it and often requires changes and 
modifications. In addition, FISA applications get extensive 
high-level review within the executive branch even before they 
are submitted to the court. Agents and analysts who work in 
this area get regular training in the requirements of the law, 
and use of these authorities is subject to oversight by 
inspectors general, by the National Security Division of the 
Department of Justice, and by my office, the Office of the 
Director of National Intelligence.
    And finally, the use of these authorities, including 
classified details that we can't disclose publicly, is 
regularly reported to the appropriate committees of Congress in 
a variety of ways. So there is really an extensive oversight 
framework.
    And I just want to close by reiterating that, first, as the 
Attorney General and the DNI have said, we are prepared to 
consider appropriate additional protections for civil liberties 
that don't compromise the operational utility of these 
provisions, but it is important that these provisions be 
reauthorized and reauthorized for as long a period as possible.
    Thank you.
    [The statement of Mr. Litt follows:]

    
    
    
    
    
    
    
    
    
    
    
    


                               0_________
    Mr. Sensenbrenner. Mr. Sales?

       TESTIMONY OF NATHAN A. SALES, ASSISTANT PROFESSOR 
                OF LAW, GEORGE MASON UNIVERSITY

    Mr. Sales. Thank you, Mr. Chairman. Chairman Sensenbrenner, 
Ranking Member Scott, Ranking Member Conyers, thank you for 
your time. Members of the Subcommittee, thank you for your 
time.
    My name is Nathan Sales. I am a law professor at George 
Mason Law School.
    My testimony today is that the three provisions that are up 
for renewal, roving wiretaps, business records, and lone wolf, 
are actually quite modest. Generally speaking, these tools 
simply let counter-terrorism investigators use some of the same 
investigative methods that ordinary cops have been using for 
decades, tools in fact that the Federal courts repeatedly have 
upheld. Plus, the law contains elaborate safeguards. In several 
respects, these safeguards under the PATRIOT Act are even 
stronger than the laws that apply in the ordinary criminal 
context.
    Take, for instance, roving wiretaps. Sophisticated 
criminals like drug dealers and mobsters sometimes try to evade 
surveillance by using burner cell phones or swapping out their 
SIM cards. The result is a drawn-out game of cat and mouse. 
Investigators get a court order to tap a particular phone, only 
to find out that he already switched to an even newer one. So 
it is back to the courthouse for a fresh warrant.
    Now, in 1986, Congress solved this problem for criminal 
investigators by letting them use roving wiretaps, basically a 
wiretap--a court order that applies to particular people rather 
than to particular devices. Agents, thus, can monitor a cell 
phone--a suspect regardless of what cell phone he happens to be 
using without first heading back to court for yet another 
order.
    Now, roving wiretaps have been upheld by no fewer than 
three Federal appellate courts, the Ninth, the Fifth, and the 
Second Circuits. To my knowledge, no appellate court has 
disagreed.
    So what the PATRIOT Act did was allow the same sort of 
investigative technique in terrorism cases. The basic idea is 
to level the playing field. If a roving wiretap is good enough 
for Tony Soprano, it is good enough for Mohamed Atta.
    In addition, the law contains strict safeguards. A court 
order is necessary. FBI agents can't unilaterally eavesdrop on 
every phone a person uses. They have to convince a judge that 
there is probable cause first. Agents also have to follow 
minimization procedures. That means they have to follow rules 
that limit their collection, retention, and sharing of 
information about innocent Americans, information that is 
inadvertently collected.
    Now, there may be cases where agents don't yet know the 
precise name of a terrorist. Indeed, that's one of the reasons 
why you investigate the terrorist. But even then, the law 
requires agents to provide the FISA Court with--and I am 
quoting now--a description of the specific target. They cannot 
just run a dragnet under the law.
    Second, let us focus on the business records provision. In 
criminal cases, grand juries routinely subpoena documents from 
entities like online retailers and banks. The PATRIOT Act lets 
investigators do the same sort of thing in national security 
cases, but only if they persuade the FISA Court that the 
documents they seek are relevant to an ongoing and authorized 
investigation. This provision isn't aimed at libraries, though 
it conceivably might be applied to them, although as we have 
heard, it has not yet been so. Still, that is not unusual. 
Grand juries sometimes demand business records from libraries 
in ordinary criminal investigations. Indeed, the Iowa Supreme 
Court once upheld a library subpoena in a case involving cattle 
mutilation. If we can investigate cattle mutilators, hopefully 
we can investigate international terrorists using the same 
technique.
    In fact, the PATRIOT Act's protections are even stronger 
than the protections that apply to grand jury rules. Federal 
prosecutors can issue grand jury subpoenas more or less on 
their own, but PATRIOT requires the FBI to get a court's 
approval first. In addition, PATRIOT expressly bars 
investigators from investigating Americans based on their First 
Amendment protected activities. It also imposes special limits 
when investigators seek sensitive records such as medical 
records or library records. Grand jury rules offer no such 
guarantees.
    Finally, there is lone wolf, which wasn't in the PATRIOT 
Act but which Congress adopted in 2004. Sometimes it is 
difficult to prove that a suspect is formally linked to a 
terrorist organization overseas. The FBI faced a similar 
problem just before 9/11. It was suspected that Zacarias 
Moussaoui was up to no good, but agents hadn't yet connected 
him to any foreign terrorists. As a result, it was unclear 
whether they had legal authority under FISA to search his 
apartment or search his laptop. The 9/11 Commission would go on 
to speculate later that if agents had been able to investigate 
Moussaoui, they might have unraveled the entire 9/11 plot.
    There is another reason for lone wolf: the growing danger 
of what might be called ``entrepreneurial terrorism.'' Solitary 
actors who are inspired by al Qaeda are on the rise, and they 
are capable of causing just as much death and just as much 
destruction as those who are formally members of that group.
    PATRIOT fixes these problems. Now investigators can get a 
court order to monitor any target who is engaging in 
international terrorism. There is no need to make the 
additional showing that he is engaging in international 
terrorism on behalf of a foreign power. Again, PATRIOT provides 
robust protection for civil liberties, perhaps the most 
important of which is that investigators can't start monitoring 
a lone wolf who is engaging in domestic terrorism. There is 
still a foreign nexus. Investigators can only investigate 
international terrorism.
    Thank you, Mr. Chairman. Thank you, Members of the 
Subcommittee. I would be happy to answer any questions.
    [The statement of Mr. Sales follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you, Mr. Sales.
    Mr. Sanchez?

         TESTIMONY OF JULIAN SANCHEZ, RESEARCH FELLOW, 
                         CATO INSTITUTE

    Mr. Sanchez. Thank you, Mr. Chairman, and thanks again to 
the Committee for soliciting Cato's perspective on these 
important issues.
    I am drawing in my remarks today on a forthcoming Cato 
paper focusing on these issues, which I hope to be able to make 
available within the next few days. I just want to pull out a 
few important issues about each provision here.
    With respect to lone wolf, I think it is important to 
recall that prior to the passage of this provision, the 
architecture of FISA tracked the constitutionally salient 
distinction made by a unanimous Supreme Court in the Keith case 
between ordinary national security investigations and those 
involving foreign powers which present special challenges and 
obstacles to investigations. In the absence of those special 
needs, which may justify the extraordinary breadth and secrecy 
of FISA surveillance, I think the criminal authority that a 
bipartisan Senate report found would have been available and, 
indeed, was used on 9/11 to obtain records and the laptop of 
Zacarias Moussaoui should be the norm. It is just hard to see 
why that authority is justified when we are dealing with 
persons who don't have access to the resources of a global 
terror network.
    With respect to roving wiretaps, I think it is important to 
emphasize that everyone agrees that roving authority should be 
available to intelligence investigators as it is in criminal 
cases, but that the same requirement of identifying a named 
target that the Ninth Circuit emphasized was crucial to 
allowing that criminal authority to meet the particularity 
requirements of the Fourth Amendment and limit the discretion 
of investigators so that, as the Ninth Circuit put it, there 
was virtually no possibility of error or abuse, be added on 
this side to match.
    Now, again, the roving surveillance constitutes about 22 of 
the FISA warrants issued every year, which is a tiny fraction 
of FISA surveillance. Most of those cases we have to assume do, 
in fact, involve a named target. So closing this loophole would 
affect a relatively tiny percentage of FISA warrants issued.
    I think it is also important to recognize that on the 
criminal side, there are important structural differences 
between the way surveillance is subject to scrutiny after the 
fact. The FISA Court may be informed about the nature of roving 
surveillance, but what we don't have on the FISA side is the 
assumption that surveillance collection is for the purpose of 
criminal trial where the parties will learn that they have been 
targeted by surveillance, where defense counsel will have an 
opportunity to seek disclosure and have an incentive to impose 
that kind of distributed surveillance of the enormous volume of 
collection. Again, recall, we are talking about surveillance 
that takes in essentially hundreds of years' worth of audio 
every year, millions of digital files. Without that kind of 
distributed scrutiny, there is much greater need for checks on 
the front end limiting the discretion of agents, especially in 
the context of online surveillance where I think, again, we are 
not in the situation at all where there is, as the Ninth 
Circuit put it, virtually no possibility of error or abuse.
    Finally, with respect to section 215--and I want to suggest 
that 215 orders and national security letters be grouped 
together. These are complementary orders, and so changes to one 
authority are likely to affect the scope of the other. The 
Inspector General found that it is the extraordinary breadth of 
national security letters that account for the relatively 
sparing use that has been made of section 215.
    I would like to see greater use made of 215 insofar as that 
would replace essentially agency fiat with judicial scrutiny. I 
don't need to recount for the Committee the widespread and 
serious abuse that the Inspector General has found in the case 
of national security letters. I do want to mention that former 
Senator Russ Feingold believes that 215 has been misused but 
was unable to specify in an unclassified setting what that 
might consist of.
    But I think it may actually be a mistake to focus too much 
on formal misuses of authorities that are already so broad and 
that after the PATRIOT Act permit records to be acquired that 
pertain to people who have no even suspected connection to the 
target of a terror investigation. This creates a situation 
where we have enormous and ever-growing databases consisting of 
billions of records about Americans who again are not under 
suspicion. These third party records are generally subject to 
less Fourth Amendment scrutiny which is why the probable cause 
standard here as a general rule doesn't apply. But in the last 
decade, we have seen courts increasingly finding that certain 
categories of third party records like location information do, 
in fact, merit Fourth Amendment protection in a way that has 
previously been assumed not to obtain. And there are other 
First Amendment interests often implicated by, in particular, 
telecommunication records. And so I would suggest that the 
analogy between these criminal side authorities is not always 
appropriate.
    [The statement Mr. Sanchez follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you very much.
    The Chair will now recognize the Members alternatively by 
sides in the order in which they appear after Mr. Scott and I 
are able to question the witnesses. And I yield myself 5 
minutes.
    Mr. Sanchez, you really haven't complained very much about 
the section 215 orders and have taken off after the national 
security letters to a much greater extent. Are you aware that 
the national security letters were authorized in 1986 
legislation sponsored by Senator Leahy?
    Mr. Sanchez. I am, of course. But I believe it is 
important----
    Mr. Sensenbrenner. No, no. Okay. You know that that was not 
a part of the original PATRIOT Act.
    Are you aware that there were civil liberties protections 
that were put into the national security letter statute at the 
time of the 2006 reauthorization?
    Mr. Sanchez. Certainly.
    Mr. Sensenbrenner. What is wrong with those protections?
    Mr. Sanchez. Well, I think the problem here is that as, for 
example, the recent WikiLeaks disclosures have made clear, when 
databases, however protected or classified they may be, are 
allowed to contain so many records about so many different 
people without the requirement of some sort of individualized 
suspicion, it takes only really one bad actor to enable 
enormous disclosure of----
    Mr. Sensenbrenner. But does that mean that the tools of 
section 215 and the national security letters should be 
completely thrown out the window because of one bad actor?
    Mr. Sanchez. No. What I would suggest, however----
    Mr. Sensenbrenner. Okay. Well, then when the 
reauthorization was done, section 215 was declared 
unconstitutional by a Federal court. I believe it was in 
Michigan. And after the Congress did the reauthorization that 
many of my friends opposed, the plaintiffs withdrew their 
lawsuit. Now, were the changes that caused the plaintiffs to 
withdraw their lawsuit inadequate in any respect, and if so, 
how?
    Mr. Sanchez. Well, I would suggest, again to return to what 
I alluded to----
    Mr. Sensenbrenner. Answer the question if they were 
inadequate in any respect.
    Mr. Sanchez. I believe that one the changes that was 
considered by not implemented ultimately but that was approved 
by the Senate unanimously creating a requirement that there be 
at least a one-removed nexus to a terror suspect would have 
narrowed that authority in a way that----
    Mr. Sensenbrenner. But section 215 is directed at people 
who hold business records, and the courts have already 
determined that they are not subject to the protections of the 
Fourth Amendment because the potential criminal defendant or 
terrorist, if you would, was not in possession of those 
records. And there is a pretty significant difference that the 
courts have recognized.
    Now, you know, again I am asking if the protections were 
inadequate.
    Mr. Sanchez. Well, let me suggest two differences.
    Mr. Sensenbrenner. No. Just tell me how they were 
inadequate because there hasn't been a ruling of 
unconstitutionality.
    Mr. Sanchez. Nor, of course, covert authorities and so----
    Mr. Sensenbrenner. You know, yes, they are, but in the 
amendments, we gave anybody who got a section 215 FISA Court 
order the opportunity to go to court and to get it quashed or 
cancelled, and to my knowledge, there has been no court that 
has done that.
    Mr. Sanchez. Well, if you look at what the Inspector 
General has found about----
    Mr. Sensenbrenner. No. I am looking at what the courts have 
been saying, sir. You know, the Inspector General has got an 
opinion just as the Attorney General has an opinion. I don't 
know that since the changes in 2006 were made there has been 
any finding by a court that there is unconstitutionality.
    Mr. Sanchez. One problem is that in the criminal context 
where----
    Mr. Sensenbrenner. But we are not talking about the 
criminal context. We are talking about FISA here.
    Mr. Sanchez. But I wanted to suggest a contrast in that----
    Mr. Sensenbrenner. No. There is no need for a contrast 
because we are talking about either extending a provision of 
FISA or letting a provision of FISA drop.
    Mr. Sanchez. The third option, though, would be to extend 
it suitably narrowed to compensate for the fact that third 
party record custodians, where the acquisition of records does 
not ultimately become public, lack the incentive that they have 
on the criminal side and we see frequently in challenges to 
subpoenas for records that----
    Mr. Sensenbrenner. Well, just because they don't have the 
incentive doesn't take away their right to go to court to get 
it quashed.
    Okay. Let me talk about roving wiretaps. You know, we have 
heard from the previous witnesses that if roving wiretaps are 
okay for the Sopranos, you know, why not for Mohamed Atta. Why 
not for Mohamed Atta?
    Mr. Sanchez. I do not oppose these roving wiretaps in 
intelligence investigations.
    Mr. Sensenbrenner. Okay, thank you very much.
    My time has expired.
    The gentleman from Virginia, Mr. Scott?
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Hinnen, on the lone wolf provision, it is my 
understanding that these cannot be used against U.S. persons. 
Is that right?
    Mr. Hinnen. That is correct.
    Mr. Scott. Are they limited to terrorism as opposed to 
routine foreign intelligence?
    Mr. Hinnen. Yes. The statutory definition requires that the 
individual be engaged in or preparing for international 
terrorism.
    Mr. Scott. And what do you need to represent to a court to 
get a lone wolf----
    Mr. Hinnen. You need to demonstrate to the court probable 
cause that the individual is engaged in or preparing for 
international terrorism and probable cause that he is using or 
is about to use the telephone that you want to surveil.
    Mr. Scott. The information that you have to show that--
would that not be sufficient to get a Title III normal criminal 
warrant?
    Mr. Hinnen. It might in some cases.
    Mr. Scott. How can you have that information and it not be 
sufficient? How could it not be sufficient?
    Mr. Hinnen. It may in most cases be sufficient. I think 
that because the criminal statute requires proof of probable 
cause that a crime is being committed, whereas the FISA statute 
requires probable cause that the individual be engaged in or 
preparing to engage in international terrorism, there is a 
possibility that there might be some slight difference, but I 
will certainly grant the Congressman's point----
    Mr. Scott. International terrorism is a crime.
    Mr. Hinnen [continuing]. That they are very similar.
    Mr. Scott. International terrorism is a crime. Is that 
right?
    Mr. Hinnen. There are jurisdictional elements to criminal 
statutes as well, and we need to ensure that those are 
satisfied.
    Mr. Scott. On 215, you are entitled to get information 
relevant to foreign intelligence. Is that right?
    Mr. Hinnen. That is correct.
    Mr. Scott. Is that limited to terrorism?
    Mr. Hinnen. No, that is not limited to terrorism. That 
includes counter-intelligence as well and information regarding 
the national defense or foreign affairs.
    Mr. Scott. Foreign affairs, diplomacy.
    Mr. Hinnen. Correct.
    Mr. Scott. What was done before the USA PATRIOT Act in 
getting information? What do you get under the PATRIOT Act that 
you couldn't get otherwise?
    Mr. Hinnen. Under these specific authorities?
    Mr. Scott. Right.
    Mr. Hinnen. I think these authorities provide an 
opportunity for the intelligence community to obtain in a 
secure way, while at the same time protecting classified 
information and sources and methods, records that are relevant 
to national security investigations.
    Mr. Scott. You couldn't get that before USA PATRIOT Act?
    Mr. Hinnen. We could get it before the USA PATRIOT Act. 
Certainly the grand jury subpoena authority was available then. 
Of course, the----
    Mr. Scott. What about just FISA?
    Mr. Hinnen. You know, I don't know the answer to that 
question. I wasn't practicing in this area before the PATRIOT 
Act.
    Mr. Scott. Mr. Litt, were you practicing then?
    Mr. Litt. I am going out on a limb here. I have a 
recollection that there may have been some authority prior to 
the PATRIOT Act that was expanded in the PATRIOT Act, but I am 
not certain of that. I wouldn't want to be quoted on that. 
There certainly was NSL authority.
    Mr. Scott. But, Mr. Hinnen, what you get is information 
relevant to foreign intelligence. Do you need to show any 
probable cause of any crime or speculation or terrorism?
    Mr. Hinnen. You don't for a business records order. As with 
the grand jury subpoena----
    Mr. Scott. Do you have show that the records are connected 
to a foreign agent?
    Mr. Hinnen. Collected through a foreign agent?
    Mr. Scott. Connected to a foreign agent.
    Mr. Hinnen. You need to show that they are relevant to a 
national security investigation.
    Mr. Scott. Which includes foreign intelligence, not just 
terrorism.
    Mr. Hinnen. Correct.
    Mr. Scott. When people hear of national security, they 
think terrorism, but you are talking just normal diplomacy kind 
of stuff.
    Mr. Hinnen. No. It includes spies and espionage and that 
sort of thing as well.
    Mr. Scott. Now, on the roving wiretap, how is the standard 
to get a roving wiretap different from the normal Title III 
warrant?
    Mr. Hinnen. The difference with respect to a roving wiretap 
is that the Government has to demonstrate, in addition to 
probable cause, that the individual is an agent of a foreign 
power and is using or is about to use a telephone number. The 
Government also has to demonstrate to the court that the 
individual may take steps to thwart the surveillance.
    Mr. Scott. Now, is the roving wiretap under this authority 
limited to terrorism as opposed to 215 which is any kind of 
spying?
    Mr. Hinnen. No.
    Mr. Scott. Is the roving wiretap limited to----
    Mr. Hinnen. Excuse me. It too permits the collection of 
foreign intelligence information.
    Mr. Scott. Which----
    Mr. Hinnen. Which is the broad definition that we have been 
discussing, Congressman.
    Mr. Scott. And the minimization. You said collection, 
dissemination, and retention. Does the minimization include 
collection?
    Mr. Hinnen. It does for surveillance, yes, Congressman.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from South Carolina, Mr. Gowdy.
    Mr. Gowdy. Thank you.
    Mr. Sanchez, you cited the Ninth Circuit which from my 
perspective is the most reversed, least likely to be correct 
circuit in the country. Can you cite any other authority for 
your concerns?
    Mr. Sanchez. As Mr. Sales mentioned, there are three 
Federal appellate courts that have examined roving wiretaps in 
the criminal context, and I think--back me up--that all three 
have stressed the additional requirement in the case of roving 
taps that a named target be identified as important to allowing 
those taps to meet the particularity standard.
    Mr. Gowdy. Would you agree with me that the United States 
can indict Fnu Lnu?
    Mr. Sanchez. Yes.
    Mr. Gowdy. Well, then why can't they investigate Fnu Lnu?
    Mr. Sanchez. I am not opposed to investigation and 
certainly of persons who are reliably believed to be connected 
to terror groups. The issue is not whether the investigation 
should happen but what constraints should exist to narrow the 
investigation to ensure that the information pertaining to 
innocent people is not swept up especially given the relative 
lack of the kind of back-end constraints that exist in the 
criminal context.
    Mr. Gowdy. Well, if you don't know the name of the person, 
if his first name is unknown and his last name is unknown, how 
are you going to investigate him under your recommendations?
    Mr. Sanchez. Well, if his first name is unknown and the 
last name unknown, how are you sure you are investigating that 
person?
    Mr. Gowdy. There are lots of people in the criminal context 
that you know a crime was committed. You don't have any idea 
what their first name or last name is. Trust me from 16 years 
of doing it. A name is sometimes the last piece of information 
that you get.
    Mr. Sanchez. And what can be done in that context is to 
target a facility. Again, both FISA and criminal warrants 
permit a facility where there is an evidentiary nexus 
connecting it to a crime or in this case an agent of a foreign 
power can be specified. The question is whether the agent in a 
case where the target is not known, where there isn't that 
anchor, has discretion to choose new facilities not----
    Mr. Gowdy. When you say the target is not known, there is a 
difference between not being known and not being identified. 
Correct?
    Mr. Sanchez. It borders on metaphysics, but yes.
    Mr. Gowdy. Well, it doesn't border on metaphysics. It is a 
fact. You can not know the identity of someone and still know 
that that person exists. Correct?
    Mr. Sanchez. Certainly.
    Mr. Gowdy. So there is a difference between being 
identified and being known.
    Mr. Sanchez. And when a target is known by description, 
which will often be connected to the facility which is 
originally monitored, I think that anchor should limit the 
extent of the warrant until identification of information about 
the identity of that person can be obtained.
    Mr. Gowdy. You don't have serious concerns about the roving 
wiretap. Correct? If I understood your testimony correctly.
    Mr. Sanchez. If it is narrowed to match the criminal 
authority, no.
    Mr. Gowdy. You are upset about national security letters, 
but that is not part of what we are doing.
    Mr. Sanchez. I was tying those with----
    Mr. Gowdy. But that is not part of this reauthorization.
    Mr. Sanchez. That is true.
    Mr. Gowdy. So roving wiretaps, not that much of an issue 
with roving wiretaps.
    Lone wolf----
    Mr. Sanchez. There is potential for roving--for these John 
Doe warrants, but I think that is, again, a very narrow set of 
cases. And so closing that loophole would----
    Mr. Gowdy. We have Fnu Lnu indictments. That would even be 
worse than a Fnu Lnu warrant. Wouldn't it? I mean, we indict 
unknown people.
    Mr. Sanchez. In the context of a criminal investigation 
where the point is, of course, to identify that person and to 
have trial in a public fashion.
    Mr. Gowdy. Business records. A Federal prosecutor can send 
a subpoena without going to any Article III judge and getting 
permission, without getting any permission from anyone, can do 
it on behalf of a grand jury anytime she or he wants to. 
Correct?
    Mr. Sanchez. Yes.
    Mr. Gowdy. So you would agree that there is an additional 
layer of protection in these cases that doesn't even exist in 
drug cases or child pornography cases or carjacking cases or 
bank robbery cases.
    Mr. Sanchez. But there is an absent layer of protection 
insofar as there is no independent grand jury in these cases 
and also insofar as the secrecy removes----
    Mr. Gowdy. Wait a second. What do you mean there is an 
absence? You think an Article III judge who has a job for life 
is less independent than a grand jury?
    Mr. Sanchez. Well, there is a difference in terms of the 
nature of the scope of the investigation. Again, on the 
criminal side, we are talking about in most cases some kind of 
nexus to a crime that has been or is being committed. And then 
again----
    Mr. Gowdy. But you would concede we cannot wait in these 
cases until a crime is committed. So that analogy falls. I 
mean, the goal is not to wait until a crime has been committed 
in these cases and then do a really good job prosecuting it. 
Correct?
    Mr. Sanchez. But to the extent that scope difference 
creates more discretion, additional protections I think are 
appropriate.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The junior Chairman emeritus of the Committee, the 
gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Hinnen and Mr. Litt, I understand that the Judiciary 
Committee in the other body is considering a bill that would 
make some changes in some of this law that we are discussing, 
S. 290. Do any of you have any operational concerns about 
anything in this bill that you would like to bring to our 
attention this afternoon?
    Mr. Hinnen. Mr. Ranking Member, I am not sure exactly which 
bill S. 290 is. Who is the sponsoring Senator, please?
    Mr. Conyers. Chairman Leahy.
    Mr. Hinnen. Congressman, Mr. Ranking Member, with the 
caveat that that bill is currently going through markup or at 
least was until very recently and we may not have reviewed the 
most recent set of changes, the Administration had reached a 
point where it was supporting a very similar bill to that at 
the end of the last Congress when these provisions were set to 
expire. So without knowing every jot and title that may have 
been changed in the recent markup, we are prepared to support a 
bill that is similar to the one that was considered at the 
close of the last Congress.
    Mr. Conyers. Mr. Litt?
    Mr. Litt. Mr. Ranking Member, that bill--I think the 
provisions in there are examples of the kinds of provisions 
that I described in my statement as provisions that would 
provide enhanced protection for civil liberties without 
affecting operational utility. So, yes, that is our view on 
those.
    Mr. Conyers. Thank you both.
    Mr. Sanchez, it has been a fairly difficult afternoon, 
hasn't it? [Laughter.]
    Mr. Sanchez. I am having fun.
    Mr. Conyers. Could I inquire if you are an attorney?
    Mr. Sanchez. I am not.
    Mr. Conyers. Well, that may account for some of the 
difficulty.
    What would you tell a Member of this Committee this 
afternoon who might be thinking about voting against this 3-
year extension?
    Mr. Sanchez. Well, first of all, in terms of the 
operational impact, there is a grandfather clause. That means 
these powers would continue to be in effect for investigations 
already underway. So the immediate operational impact I think 
would likely be limited by that.
    I would suggest that certainly all three appear to--well, 
in one case, not used at all; in the other cases, used in a 
fairly limited way.
    But I would suggest that at least with respect to roving 
wiretaps in 215, what would be desirable is to sufficiently 
constrain them so that they are narrowed to minimize the 
collection of information about innocent Americans in a way to 
account, again, for the structural differences between 
intelligence and criminal investigations and that fixing these 
provisions so that they can be made permanent is actually 
preferable to allowing them to expire.
    Mr. Conyers. Does anyone here want to comment on that 
suggestion?
    Mr. Hinnen. I would just say, Congressman, that I think the 
reference to a distinction in the constitutional architecture 
between a group and an individual--I actually, with due 
respect, disagree with the assertion that that is what Congress 
did in 1978 and that that is what the Keith case does. What 
those cases do and what the Fourth Amendment cases that focus 
on this do is distinguish between the Government's interest in 
criminal investigation and the Government's interest in 
protecting the national security. They don't distinguish 
between--the distinction of constitutional significance is not 
one between an individual and a group.
    Mr. Litt. I think from the intelligence community's point 
of view, we certainly share the hope that we can reach the 
stage where these authorities can be authorized on a permanent 
basis. From our point of view, while we encourage oversight, 
having to run up against repeated expirations is not something 
that we particularly enjoy doing. I guess at the generic level, 
I can share the sentiment that I hope we get to the stage where 
we all agree on what the appropriate way is that we can 
authorize these permanently. We may disagree as to what the 
details of that are.
    Mr. Conyers. Professor?
    Mr. Sales. I think, if I may--I know we are very short on 
time. So I will be as brief as I can, which is hard for a 
professor to do.
    I think Congress has struck the right balance with the 
provisions as they exist. Since the PATRIOT Act was enacted, 
Congress has revisited these provisions time and time again, 
each time adding additional layers of oversight and additional 
safeguards. I think those additional mechanisms to protect 
privacy and civil liberties would justify a permanent extension 
of these provisions now without any additional tinkering.
    Thank you, sir.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The Vice Chair of the Subcommittee, the gentleman from 
Texas, Judge Gohmert?
    Mr. Gohmert. Thank you, Mr. Chairman.
    I appreciate your all's testimony.
    One of the things I got hit up--when we were talking about 
extending 206, 215 of the PATRIOT Act, was that under 206, 
apparently somebody had been talking about it on TV that that 
could allow the FBI to get a wiretap on an entire neighborhood 
because the person being pursued had used a neighbor's phone 
before and therefore might be likely to use other people's 
phones in the neighborhood. Has anybody here ever heard of an 
entire neighborhood being wiretapped under 206?
    Mr. Hinnen. No, Congressman, and I think that would be 
inconsistent with the terms of the statute which require the 
Government to demonstrate probable cause that the specific 
agent of a foreign power is using a specific telephone number.
    Mr. Litt. In addition to that, when you do get a roving 
wiretap order, every time the agents go up on a new telephone, 
they have to report that to the FISA Court within 10 days and 
they have to report the specific basis on which they believe 
that the particular facility was being used. And I would doubt 
that that would pass muster with the FISA Court if anybody 
tried that.
    Mr. Gohmert. In my understanding with the roving wiretap, 
the goals was to go after cell phones that could be disposed of 
quickly and not give time to go after the new phone. Is that 
correct?
    Mr. Hinnen. And other similar kinds of tradecraft where 
individuals cycle through providers quickly in order to try and 
shake surveillance, yes.
    Mr. Gohmert. Professor, do you have any comment on that? Do 
you think it is plausible, possible even to get a wiretap of an 
entire neighborhood under 206?
    Mr. Sales. No, sir. I think that would be inconsistent with 
the terms of FISA as it is written. As my colleagues have said, 
FISA is very clear about what is required in order to initiate 
surveillance. You must establish, in the case of 206, probable 
cause to believe that the target is engaging in international 
terrorism. I think it would be extraordinarily difficult to 
persuade the FISA Court that there is probable cause to believe 
that an entire neighborhood is engaging in international 
terrorism.
    In addition, it must be shown that there is probable cause 
to believe that the target is using a specific facility in 
question. If there is a terrorist using a phone, then we should 
be listening to it, but it is inconceivable to me that the FISA 
Court would approve dragnet surveillance like this. I think 
that is the most important part. It is the court that decides, 
not the FBI.
    Mr. Gohmert. Well, Mr. Sanchez, you brought up NSL's. I 
think most of us were quite alarmed when the IG came in with a 
report that they had been badly abused and they were not 
getting the supervision we had been assured that NSL's would 
get. And you had FBI agents just doing fishing expeditions 
without proper supervision.
    If I understood you correctly, you seem to think that 215 
could take care of the needs that are currently given to--or 
the power that is currently under the national security 
letters. Is there anybody else that you know of that agrees 
with that? If you just did away with national security letter 
power----
    Mr. Sanchez. I am not proposing doing away with the 
national security letter power.
    Mr. Gohmert. Oh, you are not? What is your specific 
proposal?
    Mr. Sanchez. My suggestion is that if the national security 
letter authority were narrowed further, for example, as it 
previously did, to permit the acquisition of records that 
pertain to a suspected terrorist and in the case of 
communications records for basic subscriber information for 
persons believed to be in contact with a suspected terrorist, 
that narrower authority could allow the kind of initial 
investigation on the basis of relatively limited records that 
don't sweep in people 2 and 3 degrees removed. And if that kind 
of greater breadth is necessary, 215 orders could be employed 
for those categories of records.
    Mr. Gohmert. So you think national security letters do 
perform an important function. They just need to be narrowed. 
Is that correct?
    Mr. Sanchez. I think that is accurate, yes.
    Mr. Gohmert. I see my time has expired and I yield back.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from Georgia, Mr. Johnson?
    Mr. Johnson. Thank you, Mr. Chairman, for holding this very 
important hearing.
    I have--well, before I go down that line, let me say that 
section 215, the business records section, can be used against 
Americans who are alleged to be an agent of a foreign power. Is 
that correct?
    Mr. Hinnen. Yes, that is correct.
    Mr. Johnson. And you would just simply need specific and 
articulable facts giving reason to believe that an American may 
be assisting a foreign power or an agent of a foreign power, in 
other words, not probable cause but a level below probable 
cause.
    Mr. Hinnen. Certainly the relevant standard is a more 
lenient or a minimal standard as opposed to probable cause.
    What the business records provision actually allows us to 
do is to get records from a third party custodian, to go to a 
bank and get an individual's bank records or that kind of 
thing. And so that is why the importance is demonstrating their 
relevance to a national security investigation, not necessarily 
anything specific about the individual because they don't 
actually act against the individual directly.
    Mr. Litt. Let me here--just to be clear, in those FISA 
authorities which do depend upon a finding that somebody is an 
agent of a foreign power, that finding is based on probable 
cause by the court.
    Mr. Johnson. The finding that the person is an agent of a 
foreign power looks to me that it simply requires a showing of 
specific and articulable facts as opposed to probable cause. I 
am correct on that, am I not?
    Mr. Hinnen. That was the distinction, Congressman, I was 
trying to draw. I don't think I articulated it very well. What 
the business records provision requires the Government to show 
is something with respect to the investigation itself rather 
than something----
    Mr. Johnson. Yes. Well, I understand that part. That is 
probable cause, the fact that it may be related to a terrorism 
or a security investigation, national security.
    But the person whose documents are being subpoenaed, if you 
will--that person can be an American and they can be 
established as an agent of a foreign power merely through an 
articulable, reasonable suspicion as opposed to probable cause.
    Now, I have serious concerns about the possible abuse and 
misuse of counter-terrorism technologies developed by Federal 
contractors under the authority of the PATRIOT Act and the 
Homeland Security Act. Are either one of you familiar with the 
recent Chamber leaks controversy?
    Mr. Litt. I am sorry. The recent what?
    Mr. Johnson. Chamber leaks, a situation where there was a 
group of----
    Mr. Litt. The Chamber of Commerce?
    Mr. Johnson. Yes.
    Mr. Litt. I am familiar from reading it in the newspapers, 
yes.
    Mr. Johnson. So the technologies that were developed by 
these security contractors which could have been unleashed on 
American citizens for domestic illegitimate purposes, the 
mining of social network sites, the planting of false personas 
and things like that, false documentation--these are 
technologies that are depended upon by individuals who are 
executing their authority under the PATRIOT Act. Correct?
    Mr. Litt. Well, I don't specifically know what technologies 
those people planned to use, but I do know----
    Mr. Johnson. Let me ask you are you familiar with Palantir 
Technologies, Bar Code technologies, or HBGary Federal and 
whether or not the Department of Justice or the national 
security agency which you belong to, Mr. Litt, contracts with 
any of those firms for their software?
    Mr. Litt. I am familiar with the names of the companies. I 
don't know whether there are any contracts between the 
intelligence community and any of those companies.
    Mr. Johnson. Well, I have asked for a congressional hearing 
to take place in Judiciary, and I look forward to hearing back 
from the Chairman of the full Committee as to whether or not 
there will be hearings held on this most important topic, which 
is directly related to our subject matter today.
    Thank you.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from California, Mr. Lungren?
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Mr. Sanchez, you talked about the Ninth Circuit. I am a 
little familiar with the Ninth Circuit. They were, during the 
time I had experience with them, the most reversed circuit in 
the entire United States. I think 1 year they had 19 out of 20 
cases reversed; 1 year, 21 out of 22, a number of them that my 
office brought before the Supreme Court.
    But I was interested in the language that you cited as 
exemplary for what we ought to be using. It really caught my 
attention because you quoted their language saying that they 
approved it in the criminal context because there is virtually 
no possibility of abuse or mistake. I guess my question is, 
should that be the standard that we use, virtually no 
possibility of mistake, before we are allowed to have a roving 
wiretap in a case in which we are trying to stop an attempted 
terrorist attack?
    Mr. Sanchez. Well, I should say in the context----
    Mr. Lungren. I mean, that is the language that you used. So 
I assume that you meant that that is the kind of standard we 
ought to have, virtually no possibility of mistake.
    Mr. Sanchez. I think in fact, again in particular when we 
are talking about online surveillance or surveillance of 
electronic communications, anytime a tap is roving, there is 
inherently some possibility of error, but that is dramatically 
magnified without the anchor of----
    Mr. Lungren. So that would not be your standard. I 
appreciate that.
    Mr. Litt and Mr. Hinnen, sort of the general talk about 
roving wiretap--can you tell me how many times it has been 
utilized under section 206?
    Mr. Hinnen. I am afraid we don't have that number with us 
today. As I mentioned in my testimony, we obtain the 
authorization about 20 times a year. The set of circumstances 
doesn't always eventuate such that we need to use the authority 
despite the fact that we have gotten it. So it would be 
something less than 20 times a year.
    Mr. Lungren. There would be some people that would believe 
perhaps, if they heard some of the commentary today, that my 
goodness, if we don't have the same restrictions that you have 
in a criminal case, this must give rise to your ability to have 
a wide-ranging, exploratory search with no specificity. As I 
read the statute, it doesn't allow that. Could you explain 
exactly what you have to do in order to obtain the authority 
for a roving wiretap in a section 206 case?
    Mr. Hinnen. Sure. Thank you, Congressman.
    The Government has to make three important showings in that 
case. It has to make the two showings that are required for 
regular FISA surveillance in any case: probable cause to 
believe the individual is an agent of a foreign power and 
probable cause that the individual will use the specific phone 
number----
    Mr. Lungren. The individual. It is an individual even 
though you may not know the individual's name.
    Mr. Hinnen. That is correct. I thought Congressman Gowdy 
did an excellent job of demonstrating the difference between 
being able to identify someone and being able----
    Mr. Lungren. But I want to make sure that as you understand 
the statute, it requires you to have some specificity with 
respect to an individual who is the target of your inquiry.
    Mr. Hinnen. That is correct, Congressman. Specificity both 
with respect to a specific individual and with respect to a 
specific phone number.
    Mr. Lungren. And if in fact in the process of using the 
roving wiretap, you move it to another instrumentality, do you 
not have to then inform the court of that?
    Mr. Hinnen. We do. We have to inform the court of the facts 
that lead us to believe that the target for whom we have 
already shown probable cause that he was an agent of a foreign 
power is using a specific phone number at that new provider.
    Mr. Lungren. So there is a continuing oversight by the 
court in that context?
    Mr. Hinnen. That is correct.
    Mr. Lungren. And obviously in a criminal case and in a case 
such as this, when you allowed to have a roving wiretap, I 
assume you collect conversations with people who are not 
targets.
    Mr. Hinnen. That is certainly correct that when the 
Government conducts surveillance, not every conversation 
relates to the conduct being----
    Mr. Lungren. And the Government has done this for years and 
years in the criminal context. I presume that you handle it in 
this context in a similar manner, that is, you are required to 
minimize those conversations of people who are not targets. 
Correct?
    Mr. Hinnen. Although the minimization process works 
slightly differently, yes, there is a strict minimization 
requirement in the FISA statute.
    Mr. Lungren. Would you explain for the record what that 
minimization process is?
    Mr. Hinnen. In a criminal context, real-time minimization 
is required. In other words, an agent literally listens to the 
phone call, and if it appears to be a call to mom about picking 
up milk on the way home, the call is dropped. Because Congress 
recognized that spies and terrorists don't always operate that 
way, there may be language issues, there may be issues of 
talking in code, there may be tradecraft issues, the FISA 
statute does not require real-time minimization. It requires 
after-the-fact minimization.
    Mr. Lungren. But minimization nonetheless.
    Mr. Hinnen. Minimization nonetheless.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentlewoman from California, Ms. Chu?
    Ms. Chu. I was interested in a couple of anecdotes from the 
Inspector General report, the first case where the FBI was 
collecting information about a certain telephone line. During 
this time the phone company assigned the number to a different 
person but failed to inform the FBI of this fact for several 
weeks, and as a result, the FBI collected information about an 
innocent person who was not connected to the investigation.
    And then a second anecdote where the FBI learned that a 
source who had provided significant information about the 
target changed his mind and no longer believed that the target 
was involved with a particular terrorist group, but the change 
was not reported to the court until about a year later. Hence, 
all that information was collected.
    Well, let me ask about these roving wiretaps, Mr. Hinnen or 
Mr. Litt. The criminal law also permits roving wiretaps, as it 
should, but it also includes a critical protection that section 
206 of the PATRIOT Act does not. It requires the Government to 
specifically identify the target if it is not going to identify 
a device and rove with an individual. There have been 
legislative fixes proposed for almost 10 years to put this 
common sense protection into FISA. Do you oppose this proposal 
or do you support this proposal? Please explain what your 
position is on this.
    Mr. Litt. I must say I think that proposal is entirely 
unnecessary. As Mr. Hinnen explained before, the FISA statute 
already requires that we either identify the person by name or 
give a sufficient description of him so that we know who it is.
    I must say I spent a number of years at the beginning of my 
career as an assistant U.S. attorney, and I encountered 
situations where we would wiretap somebody and the target of 
the wiretap would be, you know, John Doe, aka, Chico. All we 
knew was a nickname, but we knew enough to know who it was so 
that when we were listening to the phone, as Mr. Hinnen said, 
we could turn it off if we didn't have our target on the line.
    It is the same principle here. We may not know the person's 
name and we certainly may not know that we know his true name, 
but we can't get a FISA order unless we know enough to convince 
the court that we know who the person is and that that person 
is an agent of a foreign power. And that requires 
particularity.
    Ms. Chu. Well, another protection in criminal wiretaps is 
that the Government must ascertain that the subject is actually 
using the device before it begins recording, thereby greatly 
reducing the number of innocent people that are inadvertently 
recorded by the Government. As you can see here in the anecdote 
that I just named, the suspected person wasn't even using that 
particular phone.
    Do you oppose putting this protection into FISA, and if so, 
why?
    Mr. Hinnen. Congresswoman, that protection is in FISA for 
surveillance. The Government must show, in addition to probable 
cause that the targeted individual is an agent of a foreign 
power, probable cause that the individual is using or is about 
to use the phone. I suspect--and I am not familiar with that 
particular passage of the Inspector General's report, but I 
expect that that was a mistake. I won't sit here and tell you 
that mistakes never occur in this area of human endeavor, just 
like they occur in all others. But the FISA statute does 
require the Government to demonstrate probable cause that the 
individual is using or about to use the specific number that 
the Government wants to conduct surveillance on.
    Ms. Chu. Mr. Sanchez, how do you respond to this?
    Mr. Sanchez. I think what is crucial to keep in mind when 
talking about the equivalence between two powers is the larger 
framework in which they are embedded. So as Mr. Hinnen already 
discussed, collection in the first instance is much broader, is 
weighted toward, as the FISA Court has said, the Government's 
need to acquire foreign intelligence, and that even when it is 
minimized, often that doesn't entail the destruction of 
information. So there have been a number of cases where FISA 
recordings that were nominally minimized were when the 
Government was faced with the Brady obligation to provide 
exculpatory information, they were actually able to ultimately 
retrieve many, many times more hours of recording than had been 
not minimized.
    So in particular, in the context of where you are talking 
about roving across facilities where I think the inherent 
possibility of using an identifier like Chico creates a lot 
more slippage, a lot more potential for error, the need to 
compensate on the front end means that the protections on the 
discretion of agents need to be at least as strong as they are 
on the criminal side where, again, there is going to be a lot 
more back-end scrutiny in a distributed fashion if not by the 
court itself.
    Mr. Sensenbrenner. The time of the gentlewoman has expired.
    The gentleman from Pennsylvania, Mr. Marino?
    Mr. Marino. Thank you, Mr. Chairman.
    Gentlemen, I think you have been asked a question to a 
certain extent, but before I ask you to answer my question, am 
I correct there are two attorneys and two non-attorneys? Or 
there are three attorneys and one non-attorney. Got it. All 
right.
    Just for the interest of brevity, I would like to start at 
the left end, my left, of the table. Could you please 
succinctly describe the difference between a Title III search 
warrant and a FISA warrant? I think that is critical at this 
point because as a U.S. attorney for 6 years and a district 
attorney for 12 years, to some extent I had more latitude as a 
district attorney in acquiring a Title III warrant than I did a 
FISA warrant.
    Mr. Hinnen. Yes, Congressman. The principal differences 
between a Title III warrant and a FISA order are that in the 
first case the Government needs to demonstrate that the 
individual target is an agent of a foreign power, not an 
individual committing a crime but must show probable cause in 
both cases.
    Second, Congress decided in 1978 that it would be harmful 
to foreign intelligence investigations if the strict notice 
requirements in Title III also existed in the criminal context. 
You would essentially in every case in which you conducted 
surveillance against a spy or a terrorist have to notify him 
within a certain amount of time after that surveillance had 
occurred.
    And then the last is one that we have already discussed 
here today as well which is in the technical manner in which 
the minimization is applied to the information collected.
    Mr. Marino. Attorney Litt, please. Can you follow up on 
that?
    Mr. Litt. I agree with that.
    Mr. Marino. Good.
    Professor?
    Mr. Sales. Thank you, Congressman.
    I agree with that and one additional and important 
difference between the Title III context and the FISA context 
is the internal approval mechanism for a wiretap order. In the 
Title III context--let me talk about the FISA context first.
    The FISA context requires incredibly high-level sign-off 
from the highest levels within the Justice Department. The FBI 
Director is involved. The Deputy Attorney General is personally 
involved. The Attorney General is personally involved. That is 
much more rigorous internal executive branch scrutiny than you 
have for a Title III wiretap which I suspect may explain your 
own experience of the relative ease of obtaining a Title III 
versus a FISA.
    Mr. Marino. And it hinges on the credibility of the United 
States attorney and the FBI agent or whatever agent requesting 
that. Okay.
    Mr. Marino. Sir?
    Mr. Sanchez. I think they have covered it fairly well, but 
I would stress again the distinction between minimization in 
real time and minimization after the fact as again weighted 
toward broad acquisition of most of the information flowing 
through a facility unless it could not be foreign intelligence 
information which almost anything could. So again, just the 
idea that there is much broader initial collection.
    Mr. Marino. Broader initial collection where?
    Mr. Sanchez. That is to say as opposed to the case where 
information is recorded only when there is some nexus to the 
predicate offense, there is generally recording of all 
communications.
    Mr. Marino. You know, with all due respect you are throwing 
out first-year law school criminal law terms, ``predicate 
offense,'' ``nexus,'' you know, the whole 9 yards, something 
that any one of us can get off the Internet. But you are not 
getting specifics. Do you understand, sir, with all due 
respect, the delineation between the two and what one has to go 
through for the FISA order compared to the Title III?
    Mr. Sanchez. I do. I am referring only to, again, the 
question of when minimization occurs, which everyone else here 
has, I think, already alluded to.
    Mr. Marino. Thank you.
    I yield my time.
    Mr. Sensenbrenner. The gentleman from Arkansas, Mr. 
Griffin?
    Mr. Griffin. Thank you, Mr. Chairman.
    I want to follow up with some questions for you, Mr. 
Sanchez. I was reading in your written statement when you were 
talking about--and these pages are not numbered. You have a 
section here where you are talking about the transparency that 
normally surrounds the acquisition of documents via grand jury 
subpoena.
    Mr. Sanchez. Yes.
    Mr. Griffin. And you indicate that it is impossible to 
overstate the significance of the transparency that normally 
surrounds the acquisition of documents by those means, those 
means being via the grand jury subpoena. Could you talk a 
little bit about what that transparency is?
    Mr. Sanchez. Well, insofar as normally on the criminal side 
that those processes do not involve gag orders, as 215 orders 
and national security letters normally do, the incentives I 
believe are different for companies served with those orders. 
They are not always incentivized to stand up for the privacy 
rights of their customers, the people whose records they are in 
custody of. But we see frequently booksellers or companies like 
Google moving to quash subpoenas specifically citing the ground 
that they fear that their reputation would be damaged by the 
disclosure of the fact that they were turning over sensitive 
records without making any kind of move to limit the scope of 
the subpoenas.
    By contrast, what we have seen, again, in at least the 
national security letter and 215 cases, is that often when 
there have been identified misuses, they have typically 
occurred with the enthusiastic collaboration of the record 
custodians, often violating the rules because of 
overproduction.
    Mr. Griffin. I am limited on time here.
    So I guess in my experience, I haven't seen a lot of 
transparency, not that it is warranted. The whole nature of a 
grand jury process is secrecy. I am not sure where you are 
going with your transparency argument. But the grand jury 
issues the subpoena in secrecy. It is issued and complied with 
in secrecy. The documents are obtained and brought to the grand 
jury. So I am not exactly sure what that argument is that you 
are making there.
    But I also want to go over here. You talk about the PATRIOT 
Act's roving wiretap provision includes no parallel requirement 
that an individual target be named. We just discussed that. We 
were given the example of at least identifying the individual 
even if we don't know the name.
    But then you go on and you say, quote, this is disturbingly 
close to the sort of general warrant the Founders were so 
concerned to prohibit when they crafted our Bill of Rights. A 
little hyperbole there maybe.
    Mr. Litt, would you comment on that?
    And this gets me to the broader question, and this is what 
I have heard a lot back home. If you would each--I know I am 
running out of time--just briefly comment on the 
constitutionality of the three provisions that we just voted to 
extend. Do you any of you have constitutionality concerns? And 
if this was asked previously, I apologize.
    Why do we not just start on the end and go down?
    Mr. Hinnen. No, Congressman.
    Mr. Griffin. Mr. Litt?
    Mr. Litt. No. No, I don't. I think the only two issues that 
have been raised--with respect to the lone wolf provision, I 
think there has been concern expressed that this may be beyond 
the national security powers as set out in the Keith case. And 
I think that when you have a situation where you are talking 
about non-U.S. persons who are engaged in international 
terrorism and a collection which is certified to be for the 
purpose of collecting foreign intelligence, I don't think that 
is a serious constitutional concern.
    And similarly, for the reasons we previously discussed, I 
think that the roving wiretap adequately meets the 
particularity requirement of the Fourth Amendment.
    Mr. Griffin. Mr. Sales?
    Mr. Sales. Thank you, Congressman.
    I agree with that as well.
    I think we are pretty far away from the days of King George 
III. FISA, as amended by the PATRIOT Act, doesn't allow the 
sort of general warrant dragnets that our founders justifiably 
worried about 200 years ago. That is not the situation that 
FISA authorizes. In all cases, FISA, as amended by the PATRIOT 
Act, requires probable cause to believe that the target is an 
agent of a foreign power, i.e., somebody who is a spy or a 
terrorist. That seems like it meets the particularity 
requirement pretty precisely to me.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    Mr. Griffin. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. I would like to thank all of our 
witnesses today for their testimony. I think it has been very 
enlightening and elucidating.
    Without objection, all Members will have 5 legislative days 
to submit to the Chair additional written questions for the 
witnesses which we will forward and ask the witnesses to 
respond as promptly as they can so that their answers may be 
made part of the record.
    The gentleman from Georgia?
    Mr. Johnson. Thank you, Mr. Chairman.
    I would ask unanimous consent to introduce into the hearing 
record a report by the American Civil Liberties Union titled 
``Reclaiming Patriotism.''
    Mr. Sensenbrenner. Without objection.
    [The information referred to follows:]

    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                               __________

    Mr. Sensenbrenner. Also without objection, all Members will 
have 5 legislative days to submit any additional materials for 
inclusion in the record, and without objection, the hearing is 
adjourned.
    [Whereupon, at 3:54 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a 
   Representative in Congress from the State of Georgia, and Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security
    Mr. Chairman, on October 26, 2001, in a time of fear and 
uncertainty that followed the terrorist attacks of September 11, 2001, 
President George W. Bush signed the Uniting and Strengthening America 
by Providing Appropriate Tools Required to Intercept and Obstruct 
Terrorism Act of 2001, commonly referred to as the PATRIOT Act, into 
law.
    The PATRIOT Act is one of the most controversial laws to date. It 
was more than 300 pages long and was passed a little over a month after 
the September 11th attacks.
    I am not down-playing the significance of the September 11th 
attacks; it was the worst terrorist attack in American history.
    While the threat of terrorism is real, and law enforcement must 
have the right tools to protect Americans, any counterterrorism 
measures must have a solid Constitutional footing and respect the 
privacy and civil liberties of the American people.
    The framers of the Constitution recognized the inherent danger of 
giving the government unbridled authority to look into our private 
lives and put checks and balances in place to curb government abuses.
    As we started off the 112th Session, my colleagues on the other 
side of the aisle demonstrated their commitment to the Constitution by 
reading it on the House floor.
    Surely, they are familiar with the Fourth Amendment which states 
``[t]he right of the people to be secure in their persons, houses, 
papers, and effects, against unreasonable searches and seizures, shall 
not be violated, and no Warrants shall issue, but upon probable cause, 
supported by Oath or affirmation, and particularly describing the place 
to be searched, and the persons or things to be seized.''
    The provisions of the PATRIOT Act that will sunset on May 27, 2011 
are disconcerting and expand the government's authority to meddle in 
our lives with little or no evidence of illegal conduct.
    Section 215 of the PATRIOT Act allows the government to seize ``any 
tangible thing,'' from an American who has not been suspected of 
terrorism, including library records and diaries, relevant to a 
terrorism investigation, even if there was no showing that the 
``thing'' pertains to suspected terrorists or terrorist activities.
    Section 206 of the PATRIOT Act, commonly referred to as the 
``roving wiretap'' provision, is less controversial. Roving wiretaps 
are commonly used by law enforcement and it is reasonable to make it 
available to intelligence officers. Under the Foreign Intelligence 
Surveillance Act (``FISA''), ``John Doe'' wiretaps that do not specify 
the person's identity are allowed. This standard could be tightened to 
decrease the likelihood that the wrong person will be targeted.
    Finally, Section 6001 of the Intelligence Reform and Terrorism 
Prevention Act of 2004 (``IRTPA''), also known as the ``lone wolf'' 
provision, permits secret service intelligence surveillance of non-U.S. 
persons suspected of being involved in terrorist activities even if 
they are not connected to any overseas terrorist group. Because the 
``lone wolf'' provision operates in secret, it could be subject to 
government abuses. To date, this provision has never been used.
    There is bipartisan consensus, evidenced by the 26 Republican 
Members who voted against reauthorization of the expiring provisions of 
the PATRIOT Act on February 17th, that they need improvement to 
preserve the rights of the American people.
    If Congress reauthorizes these provisions again with no changes, 
Americans merely visiting a website, mentioning a matter under 
investigation on social networks, or checking out a ``controversial'' 
book from a library is enough not only to invade the privacy of law-
abiding Americans, but to also do so without any of them knowing that 
the Feds are watching.
    One of the most difficult tasks for Congress is balancing the 
nation's need for security against Americans' rights to privacy, but 
this is a duty that should not be ignored.
    I look forward to hearing from the witnesses about how we can 
achieve this goal.
    Thank you, Mr. Chairman, and I yield back the balance of my time.





                                

    Letter from Debra Burlingame, Co-Founder, and Timothy Killeen, 
                 Executive Director, Keep America Safe




                                

               Letter from J. Adler, National President, 
        the Federal Law Enforcement Officers Association (FLEOA)









                                

                 Letter from Konrad Motyka, President, 
         the Federal Bureau of Investigation Agents Association







                                 
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