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



                PERMANENT PROVISIONS 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 30, 2011

                               __________

                           Serial No. 112-15

                               __________

         Printed for the use of the Committee on the Judiciary



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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 30, 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........     3
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     4

                               WITNESSES

Todd M. Hinnen, Acting Assistant Attorney General for National 
  Security, Department of Justice
  Oral Testimony.................................................     6
  Prepared Statement.............................................     9
Kenneth L. Wainstein, Partner, O'Melveny & Myers LLP
  Oral Testimony.................................................    22
  Prepared Statement.............................................    25
Michael German, Senior Policy Counsel, American Civil Liberties 
  Union
  Oral Testimony.................................................    31
  Prepared Statement.............................................    33

 
                        PERMANENT PROVISIONS OF 
                            THE PATRIOT ACT

                              ----------                              


                       WEDNESDAY, MARCH 30, 2011

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

    The Subcommittee met, pursuant to call, at 10:01 a.m., in 
room 2141, Rayburn Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
    Present: Representatives Sensenbrenner, Gohmert, Goodlatte, 
Lungren, Poe, Griffin, Gowdy, Quayle, Scott, Conyers, Johnson, 
Deutch, Jackson Lee, and Quigley.
    Staff present: (Majority) Caroline Lynch, Subcommittee 
Chief Counsel; Sam Ramer, Counsel; Saran Allen, Counsel; Arthur 
Radford Baker, Counsel; Anthony Angeli, Counsel; Lindsay 
Hamilton, Clerk; (Minority) Bobby Vassar, Subcommittee Chief 
Counsel; Joe Graupensberger, Counsel; Ron LeGrand, Counsel; 
Liliana Coranado, Counsel; Sam Sokol, Counsel; and Veronica 
Eligan, Professional Staff Member.
    Mr. Sensenbrenner. The Subcommittee on Crime will be in 
order.
    Today's hearing is on the permanent provisions of the 
PATRIOT Act which are the 14 provisions that were made 
permanent in the 2006 authorization.
    And I would like to especially thank our witness for coming 
and thank you for joining us today.
    I am joined today by my colleague from Virginia, the 
Ranking Member of the Subcommittee, Bobby Scott, and the junior 
Chairman emeritus, John Conyers of Michigan.
    I recognize myself for 5 minutes.
    Today's hearing will examine the permanent provisions of 
the PATRIOT Act. As Chairman of the Judiciary Committee in 
2005, I spearheaded the reauthorization of the Act which made 
permanent 14 of the 16 temporary provisions. These 14 
provisions provide a variety of law enforcement and 
intelligence gathering tools to identify and prevent terrorist 
threats of the 21st century.
    Perhaps the most significant of those provisions is 
designed to remove the information sharing wall that existed 
prior to the 9/11 terrorist attacks. The 9/11 Commission report 
provided a detailed description of the evolution of the wall 
which prevented information sharing between law enforcement and 
intelligence agencies. As the report notes, the wall was not 
erected by a single act of Congress, court ruling, or 
administrative order. Rather, it was built slowly over time 
based upon the interpretation and often misinterpretation of 
Federal law and Justice Department procedural memos.
    Sections 203 and 208 of the Act helped tear down the wall 
by implementing important changes to FISA and the Federal 
Criminal Procedures. As the Department noted in 2005, the new 
ability to share critical information has significantly altered 
the entire manner in which terrorism investigations are 
conducted, allowing for a much more coordinated and effective 
approach than was possible prior to the passage of the USA 
PATRIOT Act.
    The need for information sharing is perhaps even more 
critical today as America continues to encounter isolated plots 
carried out by individual terrorists. The preemption of these 
plots is often dependent upon the timely ability of our 
intelligence and law enforcement agencies to work together to 
connect those dots.
    The 2005 reauthorization also made permanent laws that 
designate terrorism-related offenses wiretap predicates, 
authorize emergency disclosure of electronic surveillance, 
modernize search warrant authorities, and authorize law 
enforcement assistance to victims of cyber attacks.
    Many will agree that these provisions are common sense and 
largely noncontroversial, including civil liberties 
organizations such as the Center for Democracy and Technology. 
Their permanence has neither diminished Congress' ability to 
oversee their use nor increased the potential for misuse by the 
Government.
    The other investigative tools, including National Security 
Letters and delayed notice search warrants, are often thought 
to be products of the 2001 PATRIOT Act. That is not true. 
National security letters were first authorized by Congress 15 
years before the PATRIOT Act in legislation sponsored by 
Senator Leahy and former Wisconsin Congressman Robert 
Kastenmeier. NSL's are similar to administrative or grand jury 
subpoenas but can only be used to acquire specific categories 
of third party records such as telephone toll records, credit 
reports, and bank records. The 2001 PATRIOT Act confirmed the 
NSL standard to bring it in line with the over 300 other 
Federal administrative subpoena authorities. The 2005 
reauthorization added several additional NSL procedures, 
including the express authorization for NSL recipients to 
consult their attorneys and judicial review of NSL's and 
nondisclosure orders.
    Current legislation in the Senate would revert the NSL's 
back to the original Leahy-Kastenmeier pre-9/11 standard. 2 
weeks ago, the FBI Director Mueller testified before the 
Committee that he opposes this change, explaining that National 
Security Letters are the building blocks which enable the FBI 
to collect information. Changing the standard or sunsetting 
NSL's would undercut the FBI's authority to undertake the kinds 
of investigations that led to the disruptions in the last 9 
years.
    Delayed notice search authority also predates the PATRIOT 
Act. In 1979, the Supreme Court found that the Fourth Amendment 
does not require law enforcement to give immediate notice of 
the execution of a search warrant. Three Federal courts of 
appeals have considered and upheld the constitutionality of 
delayed notice search warrants since 1979. Section 213 of the 
PATRIOT Act codified the courts' ability to delay notice to a 
target of a search under a certain set of circumstances. The 
notice may not be delayed indefinitely. Initial delay may 
extend for up to 30 days and the delay may only be extended by 
the court for an additional 90 days based upon a showing of 
good cause.
    The Senate proposal would reduce the 30-day time frame to 7 
days and Director Mueller testified against this change, 
notifying that the 30-day time frame works well and he sees no 
advantage to drawing it back to 7 days.
    Congress must be careful not to undermine the tools we have 
in place that have helped the FBI and other agencies prevent 
another 9/11 attack and preempt the increasing number of 
smaller individualized terrorist plots.
    It is now my pleasure to recognize for his opening 
statement the Ranking Member of the Subcommittee, the gentleman 
from Virginia, Mr. Scott.
    Mr. Scott. Thank you, Mr. Chairman, and thank you for 
holding this hearing following on the Subcommittee's recent 
hearing about the three expiring provisions of the U.S. PATRIOT 
Act. So I am glad that now we are examining the rest of the law 
and we will have additional hearings.
    In the wake of the attacks on September 11th, we rushed to 
enlarge the power of Government with respect to privacy and 
other fundamental rights. Whatever we say about the PATRIOT 
Act, I do not think that we are any more free today because of 
it. In my mind a major cause of concern is that these 
extensions of Government powers created greater incentives for 
Government to use them even in contexts most of us would agree 
were not appropriate.
    A good example of this is the documented abuse of the 
National Security Letters. The PATRIOT Act significantly 
loosened the standards for the FBI to issue those demands for 
certain types of personal information, and two Inspector 
General reports found significant abuses of NSL's. While the 
Justice Department and FBI have taken steps to address the 
abuses, the abuses themselves underscore the danger in hastily 
expanding such powers that do not involve oversight by an 
individual magistrate or judge.
    Also, the PATRIOT Act allows greater use in criminal cases 
of information gathered in intelligence investigations. We 
generally allow intelligence information to be obtained under 
different rules and standards than those applied to criminal 
law. Once again, we need to be concerned about the incentives 
we give to Government when we loosen these restrictions. The 
use of intelligence gathering tools to avoid otherwise 
applicable constitutional constraints on law enforcement poses 
a grave threat to the fundamental protections our Founders 
established. We saw this from the abuses in COINTELPRO and 
other abuses exposed by the Church Commission hearings led by 
then Senator Frank Church. While we should provide for 
appropriate sharing of information between the CIA and the FBI 
in instances such as preventing terrorism, I believe that the 
PATRIOT Act went too far in authorizing information gathering 
and sharing of intelligence by law enforcement.
    Finally, I mentioned the PATRIOT Act's relaxation of 
standards by which FISA orders may be obtained. Previously the 
requirement was that the primary purpose of such order was to 
gather foreign intelligence. That was exchanged to now the 
Government must only show a significant purpose, not the 
primary purpose of the order is to gain intelligence 
information. This, of course, gives law enforcement not only 
the authority but incentive to seek FISA orders in what are 
largely criminal investigations rather than having to meet the 
higher standards required for criminal warrants.
    To make matters worse, targets of an inappropriate FISA 
order may never find out that their privacy was breached and 
may never have an opportunity to challenge it. It is difficult 
to uncover abuses in such cases, and it makes it hard for us to 
conduct appropriate oversight.
    Ultimately I don't believe we need to choose between being 
safe and being free. We can reasonably achieve both and we 
should constantly strive to assure both. But there is good 
reason to provide the probable cause and other things for 
criminal warrants. They may not be appropriate for intel, but 
the information sharing gives the incentive to get the warrants 
through the intelligence approach with the lesser standard.
    Ben Franklin famously said to those who would give up 
essential liberty to purchase a little temporary safety, 
deserve neither liberty nor safety. And that is why I am 
pleased that we are having this hearing today to further 
examine the USA PATRIOT Act and look forward to the testimony 
of our witnesses.
    And I yield back.
    Mr. Sensenbrenner. I thank the gentleman from Virginia.
    Now, would the junior Chairman emeritus want an opening 
statement?
    Mr. Conyers. Well, after considerable deliberation, my 
answer is yes, Mr. Senior Chairman Emeritus.
    Mr. Sensenbrenner. This is just like the Senate with senior 
and junior Senators. The gentleman is recognized for 5 minutes.
    Mr. Conyers. I want to begin by commending you, Chairman 
Sensenbrenner, in terms of the work that you have done on this 
Committee that starts with the Voting Rights Act of 1981, the 
amendments of 2006, the Americans with Disabilities legislation 
that you have championed throughout your career, and the 
original PATRIOT Act that came out of this Committee 
unanimously in 2001.
    Because of that, we come here today to request of you that 
we have another meeting on this subject without the 
distinguished witnesses that are here where we can discuss some 
of the unclassified and classified materials that would be the 
subject of such a meeting. I am fully aware that the month 
after next we are going to have to dispose of this matter, and 
I think that this would be a very important meeting in terms of 
reaching some kind of consensus about where we are.
    Now, I guess the problem that bothers me most is the fact 
that we have now allowed the Government to legally secretly 
enter anybody's home in the United States to search and to keep 
secret that they broke into someone's home for the purposes of 
any criminal investigation. And it can be kept secret for 
longer than 90 days by merely getting an extension. I would 
like this discussed here today, of course, but I would like us 
to meet with the Committee in a nonpublic hearing on that 
issue.
    In addition, we have National Security Letters which first 
started off outside of the PATRIOT Act and now have been 
included and extended inside of the PATRIOT Act. The FBI issues 
tens of thousands of such letters every year. It has been 
determined by the Inspector General that there is widespread 
abuse of this power, and to me this is not acceptable. We need 
to decide what we are going to do on this or this whole bill is 
going to be, I can predict, in some serious difficulty.
    Frequently national security powers are brought to ordinary 
cases. Section 218 of this act allows the executive to use full 
national security powers in ordinary criminal investigations so 
long as it claims a significant purpose of gathering foreign 
intelligence.
    And so I look forward to our discussion this morning. I 
thank you for the extension of time.
    Mr. Sensenbrenner. I thank the gentleman from Michigan.
    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 DOJ. He also previously served as chief counsel to 
then Senator Joseph R. Biden, Jr., 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. He clerked for Judge 
Richard Tallman of the Ninth Circuit Court of Appeals and is a 
graduate of Amherst College and Harvard Law School.
    Ken Wainstein is a partner at O'Melveny & Myers in 
Washington, D.C. and a member of the white collar defense and 
corporate investigations practice. Prior to his work at 
O'Melveny, Mr. Wainstein spent 19 years with the Department of 
Justice. From 1989 to 2001, he served as an assistant U.S. 
Attorney both in New York and Washington. In 2001, he was 
appointed Director of the Executive Office of U.S. Attorneys 
where he provided oversight and support to the 94 U.S. 
attorneys offices. The next year he joined the FBI to serve 
first as general counsel and then as chief of staff to Director 
Robert S. Mueller. In 2004, Mr. Wainstein was appointed and 
later confirmed as the U.S. Attorney for Washington, D.C. He 
was confirmed again by the Senate in 2006 after being nominated 
as the first Assistant Attorney General for National Security 
in the Justice Department. He established and led the new 
division which consolidated DOJ's law enforcement and 
intelligence activities on counterterrorism and 
counterintelligence matters. In 2008, he was named Homeland 
Security Advisor to then President Bush. In that position he 
advised the President and oversaw the interagency coordination 
process for our homeland security and counterterrorism 
programs. He received his bachelor of arts in government and 
international relations from the University of Virginia and his 
juris doctor from the University of California-Berkeley in 
1988.
    Mike German is the Policy Counsel for National Security and 
Privacy for the American Civil Liberties Union, Washington 
Legislative Office. Prior to his work at the ACLU, he served as 
a special agent for the FBI for 16 years. Mr. German's final 
assignment with the FBI was as a counterterrorism instructor at 
the FBI National Academy. There he taught courses on extremism 
in democratic societies and developed a graduate level training 
program for State, local, and international law enforcement 
officers. He left the FBI in 2004 and joined the ACLU in 2006. 
He received his bachelor of arts in philosophy from Wake Forest 
University and his juris doctor from Northwestern University 
Law School.
    Without objection, all Members' opening statements will 
appear in the record in their entirety.
    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 without objection, the Chair will be authorized to 
declare recesses during roll call votes in the House if they 
happen.
    The Chair now recognizes Mr. Hinnen for 5 minutes.

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

    Mr. Hinnen. Mr. Chairman, Ranking Member Scott, Ranking 
Member Conyers, and Members of the Subcommittee, thank you for 
inviting me to testify again on behalf of the Department of 
Justice as you consider reauthorization of the USA PATRIOT Act. 
3 weeks ago, I addressed the three FISA provisions that are due 
to expire in May. Today you have asked me to discuss other 
PATRIOT Act provisions.
    As you know, the PATRIOT Act contained provisions amending 
a wide variety of laws, including those affecting immigration, 
border protection, victim's rights, criminal investigations and 
prosecutions, and foreign intelligence. I understand that the 
Subcommittee would like us to focus today on the criminal and 
intelligence investigative authorities affected by the PATRIOT 
Act.
    The PATRIOT Act amendments to these authorities achieved 
several objectives. First, the Act provided national security 
officers with tools similar to those commonly used in routine 
criminal investigations. It permitted the Government to apply 
for roving FISA surveillance orders and business records 
orders, each of which has a well established criminal analog as 
we discussed 3 weeks ago.
    It also amended existing National Security Letter 
authorities so that they operated more like grand jury 
subpoenas. In particular, it allowed NSL's to be issued out of 
field offices, not just FBI headquarters, and it permitted the 
FBI to issue an NSL if the records sought were relevant to an 
authorized national security investigation, a standard similar 
to but still more demanding than that for grand jury subpoenas.
    Second, the Act modernized a number of criminal 
investigative authorities. For instance, it permitted the 
Government to use the criminal pen trap statute to intercept 
email data in addition to phone numbers.
    Third, the Act streamlined the use of investigative 
authorities, reducing administrative burdens so that the 
Government could focus its finite resources on identifying and 
disrupting terrorist plots and bringing the perpetrators to 
justice. For instance, it extended the duration of FISA 
surveillance orders against non-Americans so that agents, 
attorneys, and judges do not have to undertake the labor-
intensive process of renewing them as often. It also allowed 
the Government in criminal investigations to obtain pen 
register and stored communications orders from any court that 
had jurisdiction over the crime rather than forcing 
investigators in one State to go before a court in another 
State just because that is where the Internet service provider 
happened to be.
    Fourth, the Act permitted intelligence and law enforcement 
officers to share information and work together to protect 
Americans from national security threats. It removed the so-
called ``FISA wall,'' clarifying that intelligence collected 
through FISA surveillance could be shared with criminal 
investigators and support criminal prosecutions. It also 
permitted information obtained through criminal wiretaps and 
grand jury investigations to be shared with intelligence 
officials.
    Many of these changes proved uncontroversial. Those that 
were set to expire were renewed, some with amendments. They are 
now a permanent part of the authorities we use to protect the 
country against terrorism and other national security threats.
    I understand that the Subcommittee would also like me to 
address the authorities governing National Security Letters. 
Like grand jury subpoenas in routine criminal investigations, 
NSL's allow the FBI during predicated national security 
investigations to obtain certain basic information that forms 
the building blocks of most investigations. For example, NSL's 
are used to obtain telephone calling records and email 
transaction records. These records can help the FBI identify 
co-conspirators. NSL's can also be used to obtain information 
regarding bank accounts being used to fund terrorist 
activities. NSL's were used to obtain substantial information 
regarding the 11 Russian deep-cover spies caught last year, 
including information about payments they received in financial 
accounts. In short, NSL's are a critical tool in the national 
security toolbox and their absence would significantly 
hamstring the FBI in its ability to protect the country.
    Although NSL's are used in much the same way as grand jury 
subpoenas, they are subject to far greater statutory 
constraints and much more rigorous oversight. Additionally, 
NSL's are subject to congressional reporting requirements.
    As the Subcommittee is no doubt aware, in 2007 DOJ's 
Inspector General issued a report that was critical of how the 
FBI had used NSL's from 2003 to 2005. As he testified before 
the House Judiciary Committee, the IG did not--and I quote--
``find evidence of deliberate or intentional violations of the 
NSL statutes, Attorney General guidelines, or FBI policy.'' The 
Department and the FBI worked hard to address the issues raised 
in the 2007 IG report, and in 2008, the IG issued a follow-on 
report praising the substantial progress the FBI had made in 
tightening the internal controls and processes involved in the 
issuance of NSL's. That progress has continued.
    As many of your staffers have seen, the FBI now issues 
NSL's using a centralized computer system that minimizes 
errors. The system ensures that before an NSL can be issued, 
the agent must articulate how the information sought is 
relevant to an authorized national security investigation, an 
FBI attorney must review the request, and a high level 
signatory must approve it.
    Mr. Chairman, I see I am out of time. I can address some 
additional safeguards during the question and answer period. 
Thank you. I look forward to your questions.
    [The prepared statement of Mr. Hinnen follows:]
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you, Mr. Hinnen.
    Mr. Wainstein?

 TESTIMONY OF KENNETH L. WAINSTEIN, PARTNER, O'MELVENY & MYERS 
                              LLP

    Mr. Wainstein. Thank you, Mr. Chairman, Ranking Member 
Scott, Members of the Subcommittee. Thank you for inviting me 
to this important hearing. I am honored to join my two 
distinguished co-panelists in the continued national dialogue 
about the PATRIOT Act.
    In assessing the PATRIOT Act, it is important that we first 
recognize the historical context in which it was passed. Before 
the morning of September 11th, 2001, the Nation had not fully 
awakened to the deadly threat that we faced from international 
terrorists. That all changed with the attacks of September 
11th. Our Nation immediately put itself on a war footing, a war 
that the Government is vigorously pursuing to this day, and 
undertook to mobilize the Nation's resources toward the goal of 
preventing another 9/11 attack.
    A crucial part of that mobilization took place up here on 
Capitol Hill when Congress took stock of our national security 
authorities, found them inadequate, and acted quickly passing 
the original PATRIOT Act on October 25th, 2001. The passage of 
this legislation marked a sea change in our approach to 
international terrorism in a number of ways.
    For one, it gave our national security professionals a 
number of important tools that had long been available to 
criminal investigators, tools like the roving surveillance 
authority.
    Second, the PATRIOT Act enhanced the Government's ability 
to anticipate and prevent terrorism by, for example, reducing 
the evidentiary threshold for issuance of Section 215 orders 
and National Security Letters for third party records about a 
person, allowing agents to use these tools to investigate leads 
and connect the dots at the first indication that that person 
might somehow be relevant to a national security investigation.
    Third, the PATRIOT Act reduced a number of administrative 
burdens that had previously complicated and slowed the pace of 
our national security investigations.
    And finally and arguably most significantly, the PATRIOT 
Act lowered the perceived wall between our law enforcement and 
intelligence community personnel--that set of procedures that 
had grown out of the rules of practice in the FISA Court and 
that prevented our law enforcement officers and our 
intelligence agents from coordinating operations and sharing 
information about terrorist suspects, thereby bifurcating our 
counterterrorism operations just when we needed them to be 
fully integrated to meet the growing threat from international 
terrorism.
    Congress lowered this procedural wall in the PATRIOT Act, 
and with these changes we now have the ability to deploy all of 
our national counterterrorism personnel and assets in a 
coordinated, worldwide campaign against what the President has 
aptly described as al Qaeda's far-reaching network of violence 
and hatred.
    It is worth noting that all of these significant 
legislative improvements were drafted, considered, and enacted 
within a mere 45 days of the 9/11 attacks. Congress is to be 
commended for moving with such urgency but also for taking the 
hurried enactment into account and building into the law the 
sunset provisions that required a future examination of these 
authorities and their implementation.
    In 2005, Congress went through a lengthy process of 
carefully scrutinizing each and every provision and identifying 
those where additional limitations or oversight could provide 
valuable protection against misuse without reducing their 
operational effectiveness. This process resulted in the 2006 
reauthorization act which added significant new safeguards for 
many of the PATRIOT Act authorities.
    In addition to these new safeguards, the executive branch 
has substantially increased its own internal national security 
oversight in the years since 9/11. That effort can be seen in a 
number of initiatives that have been pursued by the FBI and the 
National Security Division at main Justice, especially in the 
aftermath of the Inspector General's 2007 report finding 
serious flaws in the FBI's use of the NSL authority.
    In 2007, the FBI established its Office of Integrity and 
Compliance which is tasked with establishing and implementing 
compliance policy throughout the bureau, and that same year, 
the National Security Division in main Justice established a 
new section devoted to oversight of the FBI's national security 
operations. This was actually an historic development. While 
DOJ attorneys had previously had a role in conducting oversight 
into certain areas of national security operations, that role 
was limited. It was only upon the stand-up of the Oversight 
Section that Justice Department attorneys were given the 
complete mandate to examine all aspects of the FBI's national 
security program. These two new offices reflect the Justice 
Department's commitment to compliance and have gone a long way 
toward institutionalizing and embedding effective oversight 
within the operations of our national security program.
    Over this past decade, the executive branch and Congress 
have succeeded in building investigative infrastructure and 
capabilities that are necessary to protect our national 
security. Thanks to the determined efforts of our law 
enforcement and intelligence leadership and personnel, we now 
have a formidable counterterrorism program that has succeeded 
in preventing another 9/11 attack and keeping al Qaeda off 
balance. And thanks to Congress' forceful but careful effort to 
bring our national security authorities into line with today's 
threat from international terrorism, we now have a well 
balanced legislative framework governing our counterterrorism 
operations. In light of this history, we have every reason to 
approach the 10-year anniversary of the PATRIOT Act with 
confidence that its authorities and safeguards will continue to 
contribute both to the defense of our national security and to 
the protection of our civil liberties.
    Thank you, Mr. Chairman. I would be happy to answer any 
questions you may have.
    [The prepared statement of Mr. Wainstein follows:]
    
    
    
                               __________

    Mr. Sensenbrenner. Thank you very much.
    The Chair recognizes Mr. German for 5 minutes.

 TESTIMONY OF MICHAEL GERMAN, SENIOR POLICY COUNSEL, AMERICAN 
                     CIVIL LIBERTIES UNION

    Mr. German. Good morning, Chairman Sensenbrenner, Ranking 
Member Scott, and Members of the Subcommittee. Thank you for 
the opportunity to testify on behalf of the American Civil 
Liberties Union as Congress revisits the USA PATRIOT Act.
    The PATRIOT Act vastly and unconstitutionally expanded the 
Government's authority to pry into people's private lives with 
little or no evidence of wrongdoing, violating Fourth Amendment 
protections against unreasonable searches and seizures and 
First Amendment protections of free speech and association.
    Worse, it allows this expanded spying to take place in 
secret with few protections to ensure these powers are not 
abused and little opportunity for Congress to determine whether 
these authorities are actually making America safer.
    There has not been a full public accounting about how all 
the powerful tools of the PATRIOT Act have been used against 
Americans. But the little information that has been made public 
points to repeated abuse. Inspector General audits ordered in 
the PATRIOT Act reauthorization revealed significant abuse of 
National Security Letters, and courts have found several 
PATRIOT Act provisions unconstitutional, including the NSL gag 
orders, certain material support provisions, ideological 
exclusion provisions, and the FISA ``significant purpose'' 
standard.
    One of the most abused provisions of the PATRIOT Act is the 
National Security Letter authority. These requests for 
communication, financial and credit information are issued by 
the FBI without review by a court or Department of Justice 
attorney. And because of the PATRIOT Act provisions to the NSL 
statutes, they may be used to gather records about anyone the 
FBI deems relevant to an investigation, even if they are not 
suspected of wrongdoing.
    The Department of Justice Inspector General confirmed that 
the FBI issues upwards of 50,000 NSL's a year, often against 
people two and three times removed from the suspected terrorist 
or agent of foreign power under investigation. The majority of 
NSL's are used against U.S. persons. The FBI reported that it 
has addressed a number of mismanagement issues identified in 
the Inspector General report, but the NSL's fundamental flaw, 
its use to collect sensitive information on people who are not 
suspected of doing anything wrong, and the indefinite retention 
and use of that information, must be addressed by Congress.
    The ACLU has endorsed a number of proposals to amend the 
NSL statute short of repealing the PATRIOT Act NSL provision, 
including Ranking Member Conyers' reauthorization bill from 
last year and the Justice Act that was introduced in the House 
and Senate in the 111th Congress. Those bills would limit the 
use of NSL's to the collection of information that pertains to 
a foreign power, an agent of a foreign power's activities, or 
someone in contact with an agent of a foreign power. Requiring 
such a nexus would permit the Government to collect 
information, pertinent information, while protecting wholly 
innocent information from being caught in a massive Government 
dragnet. The NSL gag provisions, which have been deemed 
unconstitutional, should also be remedied by statute.
    Congress should also amend the material support statute. 
While the statute has been in existence for some time, the 
PATRIOT Act and subsequent reauthorization legislation has 
expanded and redefined what material support means. We all 
acknowledge the Government's legitimate and compelling interest 
in protecting the Nation from terrorism and in stemming 
material support that furthers the unlawful violent acts of 
terrorist groups. But this overbroad statute does not make an 
exception for associational or humanitarian activity that does 
not in fact further an organization's illegal activities, and 
it therefore chills charitable efforts that the Government 
should be encouraging. The generosity of the American people 
toward those in need around the world is an asset to U.S. 
counterterrorism efforts, and Congress should remedy this 
unintended chill on legitimate humanitarian efforts by revising 
the statute.
    In addition to these sections, there are other permanent 
provisions of the PATRIOT Act that violate the Constitution and 
civil liberties and they are addressed in my written testimony. 
For example, the so-called ``sneak and peek'' authority, 
ideological exclusion provisions, and amendments to the Foreign 
Intelligence Surveillance Act. Surveillance authorities outside 
the PATRIOT Act should be reviewed as well so Congress can get 
a comprehensive picture of how these authorities work together.
    Despite some claims to the contrary, much of the PATRIOT 
Act was not controversial and the provisions that do not 
infringe on privacy need not necessarily be repealed. 
Overwhelmingly common sense amendments can be adopted to 
protect privacy while permitting the Government to gather 
information about those it actually suspects are probable 
terrorists or spies. We urge the Committee to include such 
protections in any legislation it reports.
    Thank you very much.
    [The prepared statement of Mr. German follows:]
    
    
    

                               __________
    Mr. Sensenbrenner. Thank you very much.
    We now get to questions. I am going to call on people 
alternatively by side in the approximate order in which they 
appeared, and the Chair is going to defer his questions until 
the end. So the gentleman from Virginia, Mr. Scott, is 
recognized for 5 minutes.
    Mr. Scott. Thank you.
    Mr. Hinnen, you mentioned the importance of National 
Security Letters because of national security. Can they be used 
for things--one of the things that has occurred to me is 
sometimes we get into a discussion where you have a process 
that works for mass murderers, weapons of mass destruction, and 
shoplifting. What else can you use the National Security 
Letters for other than national security terrorism-related 
investigations?
    Mr. Hinnen. Mr. Ranking Member, National Security Letters 
can only be used in a predicated national security 
investigation, and they can only be used to collect information 
that is relevant to an authorized investigation that is 
investigating international terrorism or counterintelligence 
activities. They could not be used for ordinary crimes such as 
shoplifting.
    Mr. Scott. Why are the NSL processes inappropriate for 
criminal investigations?
    Mr. Hinnen. I think that, as I mentioned in my opening 
statement, part of what the PATRIOT Act did is bring the NSL 
requirements closer to criminal investigative statutes, and I 
think the one large remaining difference is the secrecy that 
NSL's provide in investigating national security crimes, the 
kind of secrecy that is necessary when the evidence that the 
Government relies upon to make its showing is classified and 
where it needs to protect classified sources and methods in an 
ongoing national security investigation. So I think it is the 
extra secrecy that is so uniquely suited to national security 
investigations.
    Mr. Scott. Why is that inappropriate for a criminal 
investigation?
    Mr. Hinnen. Well, Congressman, I think there are a number 
of statutes that authorize delayed notice in criminal 
investigations where it is deemed appropriate by the court. I 
think the determination that Congress made is that national 
security investigations are a type of investigation in which 
that kind of secrecy is almost always authorized. And so it 
simply switched the default. The Government still has to 
certify that nondisclosure is important, but the default is, in 
that sense, in favor of nondisclosure.
    Mr. Scott. If it is a case where the primary purpose is a 
criminal investigation but a significant purpose may be 
national security, you get the more streamlined approach 
without the protections. Is that right?
    Mr. Hinnen. Well, under FISA and under the change made to 
the FISA standard, the Government now can demonstrate that a 
significant purpose is foreign intelligence collection rather 
than the primary purpose, I think reflecting what the courts 
had found before the amendment----
    Mr. Scott. If you are using the national security purpose, 
what could be the primary purpose if it is not national 
security? When Attorney General Gonzales was asked that 
question, he said you could be running a criminal 
investigation.
    Mr. Hinnen. Well, Congressman, I think the courts did 
recognize that there is no mutual exclusivity between 
collecting foreign intelligence and prosecuting national 
security crimes. It just stands to reason that if one is 
collecting foreign intelligence on a foreign spy, that one may 
ultimately prosecute him under criminal provisions that are 
intended to outlaw spying.
    Mr. Scott. NSL's have gag orders. How would a target find 
out that he was the subject to an abusive NSL search?
    Mr. Hinnen. The way the mechanism works in NSL's is the 
recipient of the NSL, the third party that holds the records, 
is required to assert any problem that that individual sees 
with the NSL.
    Mr. Scott. And why would someone who has no interest in 
revealing someone's private information have an incentive to 
hire lawyers to protect somebody else's rights?
    Mr. Hinnen. Well, I think the recipients often do have an 
interest in protecting the privacy of their customers or 
subscribers. For instance, telecommunication providers and 
Internet service provides take the privacy of their customers 
and subscribers very seriously and I think are often an 
effective proxy for defending those rights.
    Mr. Scott. Mr. German, what is wrong with that?
    Mr. German. Well, the evidence shows that in the case of 
the exigent letters that the telecommunications companies were 
not looking out for the privacy of their customers and instead 
were engaged with FBI agents in circumventing the law by 
allowing information about their customers to pass over to the 
FBI with post-it notes and other informal mechanisms.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from South Carolina, Mr. Gowdy, is recognized 
for 5 minutes.
    Mr. Gowdy. Thank you, Mr. Chairman.
    Mr. German, I noted in your written testimony there are 
many unfortunate examples that the Government abused these 
authorities in ways that both violate the rights of innocent 
people and squander precious national security resources. Can 
you cite me to courts of record, courts of appeals preferably, 
where panels have held that agents have intentionally violated 
constitutional rights?
    Mr. German. When you say courts of appeals, you know, there 
were a number of cases, including the NSL gag order which was 
found to be unconstitutional.
    Mr. Gowdy. No, no, no. You talked about abuses by bureau 
agents or others. I want to know if there are reported cases by 
courts of appeals where there have been findings by a district 
court judge, upheld by a court of appeals, of intentional 
abuses by bureau agents.
    Mr. German. There is ample evidence in the record. The 
Inspector General reports had----
    Mr. Gowdy. Mr. German, I did not----
    Mr. German [continuing]. You are limiting it----
    Mr. Gowdy [continuing]. I did not ask about Inspector 
Generals. I asked about courts of record, courts of appeals. I 
will settle for district court judges. Can you name me a 
district court judge that has found a bureau agent 
intentionally abusive?
    Mr. German. Certainly in the Brandon Mayfield case, there 
were courts that determined that it was unconstitutional the 
way they used FISA's significant purpose test instead of the 
criminal Title III authority. So, yes, there are cases.
    Mr. Gowdy. Well, you cited one.
    Mr. German. I can go through. Doe v. Holder is the NSL gag 
order. Library----
    Mr. Gowdy. Are they in higher percentages than bureau 
agents who are acting outside of PATRIOT Act who are just, in 
your judgment, violating other constitutional provisions?
    Mr. German. I don't know that there has been an examination 
to determine that, and I think that is something important to 
find out whether these authorities are abused more often than 
other authorities and what would cause that.
    Mr. Gowdy. But so far, there is no evidence to support 
that.
    Mr. German. Well, that is part of our concern. Most of 
these authorities are exercised under such secrecy that it is 
really very difficult for us to know what is happening, and 
that is why it takes an Inspector General report to reveal 
these abuses.
    You know, out of well over 200,000 National Security 
Letters that went out from the FBI, there were only a handful 
of third party holders of information that actually 
challenged----
    Mr. Gowdy. What can the bureau get from an NSL that an AUSA 
can't get from the grand jury subpoena?
    Mr. German. But there are checks with the grand jury----
    Mr. Gowdy. What? What? I was one. What check was there?
    Mr. German. Number one, you, the U.S. attorney.
    Mr. Gowdy. So you trust Federal prosecutors more than you 
do bureau agents.
    Mr. German. Certainly having an independent prosecutor 
determine whether that request for information was appropriate 
and the grand jury authorizes----
    Mr. Gowdy. So if an NSL had to go through a Federal 
prosecutor, you would support it.
    Mr. German. We support a number of reforms short of----
    Mr. Gowdy. Would you support the permanency of NSL's in 
their current form if a Federal prosecutor had to review it 
before a bureau agent issued the letter?
    Mr. German. That would certainly be an important reform. I 
haven't seen that proposal on the table, so we haven't 
evaluated how that would be. We think narrowing----
    Mr. Gowdy. You can propose it today.
    Mr. German. Well, I wish I had that authority at the ACLU.
    Mr. Gowdy. Me too.
    Mr. German. But we would support narrowing the scope of the 
NSL's in the way that it has been proposed in the Justice Act 
and in Chairman Conyers' bill--or I am sorry--Ranking Member 
Conyers' bill.
    Mr. Gowdy. All right. You also said the PATRIOT Act vastly 
and unconstitutionally expanded the Government's authority to 
pry into people's private lives with little or no evidence of 
wrongdoing.
    Mr. German. Right.
    Mr. Gowdy. I have never seen wrongdoing as the standard by 
which an investigation is started. You have got articulable 
suspicion. You got probable cause. You got a hunch. What 
evidentiary standard do you think the bureau should have to 
reach before they can start investigating someone when the 
crime has not been committed yet.
    Mr. German. I think they need articulable suspicion in the 
FISA context, which most of the PATRIOT Act refers to, that 
somebody is an agent of a foreign power, which was the original 
NSL authority, in order for them to use this tool. The use of 
this tool against people who are not even suspected--I mean, 
one of the interesting things as a former FBI agent that I 
found interesting about the IG report on NSL's was that they 
were being used on people two and three times removed from the 
subject of the investigation and were being used----
    Mr. Gowdy. My time is almost up. I don't have enough time 
to ask Mr. Hinnen what punishments were meted out for bureau 
agents that intentionally violated bureau guidelines or the 
law. I would be very interested in knowing that. I share your 
concern for that.
    I have run out of time.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Michigan, Mr. Conyers, is recognized for 
5 minutes.
    Mr. Conyers. Thank you very much.
    Mike German, can you tell us what seems to be in dispute 
and maybe not in agreement with the two other witnesses here on 
the panel with you? In other words, did you hear anything that 
you would like us to know about that we should be checking up 
on?
    Mr. German. I think there was the discussion of the finite 
resources that the Government has and how we want those focused 
on real threats. I think that is an important part of this 
discussion, and that is what some of your review of this should 
be. If what these powers are being used for is to collect 
information about innocent people that is then retained and 
clogs these important databases with innocuous or irrelevant 
information, that is a problem. I agree that information 
sharing is a very important goal, but if the information we are 
sharing is irrelevant or erroneous, that doesn't help national 
security.
    By protecting the privacy of innocent people, you are 
actually making the Government more effective in focusing on 
people who are real threats to the community, and certainly the 
excessive secrecy not only harms our ability to protect civil 
rights but actually harms the Government. And we have seen that 
with Senator Lieberman and Collins' Fort Hood report where 
there is still the problem of excessively classified 
information that even agents doing investigations don't have 
access to certain databases.
    Mr. Conyers. Well, we know about the wars between the 
agencies in which--well, isn't that how we got into 9/11? One 
agency was keeping information from another and a third agency 
was keeping information from the other two.
    What else? I mean, can't we all get along here? I mean, if 
you only had one thing that you are in disagreement with--what 
else did they say that you didn't agree with, Mr. German?
    Mr. German. Well, I would disagree that the internal 
mechanisms that the FBI created and the Department of Justice 
created to address the National Security Letter abuse are 
sufficient. I think those are insufficient. I think the 
Inspector General's 2008 report indicated there were problems 
with fulfilling the recommendations that he suggested. I think 
his 2010 report on exigent letters was even more troubling 
where the FBI has created a novel approach or legal opinion 
about what transactional information they can collect from 
telephone company providers, and that was supported by the 
Department of Justice, and the Inspector General asked Congress 
to review that. So I think there are outstanding issues about 
those abuses that need to be addressed.
    Mr. Conyers. I will give you one more observation, if you 
want it.
    Mr. German. I have highlighted in my oral statement the 
material support provision. I mean, clearly Congress did not 
pass the material support provision and amend it under the 
PATRIOT Act to impair legitimate humanitarian aid to crisis and 
conflict areas, but that is having that effect and I would hope 
that the Congress would address that and make sure that people 
providing legitimate humanitarian aid aren't impeded by a 
possibly overbroad law.
    Mr. Conyers. All right. Mr. Hinnen, you can stop shaking 
your head now. I will recognize you.
    Mr. Hinnen. Thank you, Mr. Ranking Member. I think there 
are a number of things that we agree upon. Even many of the 
things that Mr. German was asserting that we disagree upon in 
his response I think we agree upon.
    The Government would wholeheartedly agree that it is not in 
our interest to collect information that is irrelevant to 
national security. I think the fact that the standard for 
national security is that we demonstrate that it is relevant to 
national security addresses that issue.
    The Government also agrees that excessive secrecy is not 
necessary, and the showings that the Government is required to 
make in order to keep many of these processes secret are, I 
think, appropriate to make sure that happens.
    And finally, I would just say that the Government 
appreciates and agrees with the sentiment that it is important 
to protect privacy and civil liberties and that in doing that, 
we often make Government more efficient. So I think there is a 
great deal that we agree on.
    Mr. Sensenbrenner. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Goodlatte, is recognized 
for 5 minutes.
    Mr. Goodlatte. Thank you, Mr. Chairman. I appreciate your 
holding this hearing, and I appreciate the participation of all 
these witnesses.
    I would like to direct my first question to Mr. Hinnen, and 
it is a follow-up, sort of, to the discussion we have just had 
with Mr. German about the NSL's. Can you explain the automated 
system that is used to process NSL's and does this system 
increase or decrease the time to process an NSL and does it 
minimize errors?
    Mr. Hinnen. Yes, Congressman, I can do that. The system 
that was imposed is a centralized computer system that requires 
agents to walk through the NSL process step by step. It 
populates the document with appropriate legal language. It then 
requires that the document go to an FBI lawyer for legal review 
before it is then passed on to a high-level signatory special 
agent in charge for approval prior to issuance.
    That process does not significantly increase the time that 
is required to issue an NSL, and the limited increase in time I 
think is appropriate to ensure that some of the concerns that 
the IG rightly pointed out in his 2007 report are addressed. 
And it has had an effect of limiting and minimizing errors.
    Mr. Goodlatte. And are there some proposed enhancements to 
the system that would track voluntary disclosures under title 
18-2702, and does this system assist the FBI with their 
congressional reporting requirements in the law?
    Mr. Hinnen. My understanding is that the FBI is, in fact, 
developing a similar system that would facilitate the issuance 
of 2702 requests, requests for customer and subscriber 
information, when the provider has a good faith belief that 
there is an emergency involving risk of death or serious bodily 
injury. Because the subsystem centralizes data with respect to 
NSL requests, yes, it does address many of the issues and 
facilitate the collecting of information to allow us to meet 
our congressional reporting requirements.
    Mr. Goodlatte. Thank you.
    Mr. Wainstein, do you support reducing the time frame for 
delayed notice from 30 to 7 days, and will this afford any 
benefit to the target of an investigation?
    Mr. Wainstein. I don't support that, Congressman. I think 
just to step back for a second and look at this in an 
historical context, delayed search warrant notification has 
been around for a long time, as the Chairman mentioned. It was 
authorized by courts of appeals and the Supreme Court. And it 
has been used in the criminal context for years in drug cases 
and the like. And it was codified in the PATRIOT Act and has 
been used very effectively in both criminal and national 
security cases.
    Mr. Goodlatte. So it is not just used in intelligence 
gathering.
    Mr. Wainstein. No. It actually has been used primarily in 
criminal cases. It has been tremendously effective, especially 
in drug cases where you know there is a stash of drugs but you 
want to leave it there until you find out who the bad guys are 
who actually you can associate with those drugs.
    Mr. Goodlatte. Mr. Gowdy challenged Mr. German's comment 
about the PATRIOT Act vastly and unconstitutionally expanding 
the Government's authority to pry into people's private lives 
with little or no evidence of wrongdoing. I am quoting Mr. 
German there. Do you agree with his statement?
    Mr. Wainstein. I would put it a little differently. I would 
say that the PATRIOT Act authorized tools to be used in an 
earlier stage in the investigation such as 215 orders and 
National Security Letters. It allows investigators to find out 
about individuals before they have probable cause or proof 
beyond a reasonable doubt that those individuals are involved 
in terrorism. The importance of that is it is often too late 
once you get to the point of having probable cause or proof 
beyond a reasonable doubt. You need to find out early on if a 
particular suspect is a bad guy, then find out if that person 
is associated with a plot, unwind the plot and neutralize it.
    Mr. Goodlatte. I take it from your comment that you don't 
believe it was done unconstitutionally.
    Mr. Wainstein. No. I think it was done for the very 
practical reason that we needed to prevent the next 9/11 
attack.
    Mr. Goodlatte. And do you think it was constitutional?
    Mr. Wainstein. Yes.
    Mr. Goodlatte. And he also claims that those provisions 
have few, if any, built-in protections and little opportunity 
for Congress to review. Do you agree with that?
    Mr. Wainstein. No. I mean, there are a number of 
protections. We have talked about them here today. A number of 
them were added as safeguards in 2005 after Congress did a very 
careful scrub of all the authorities. And as you know, there 
are very comprehensive reporting requirements to Congress so 
that Congress can exercise as much oversight as it wishes as to 
the use of NSL's by the FBI.
    Mr. Goodlatte. Mr. German, National Security Letters are 
similar to administrative subpoenas which almost universally 
require only a showing of relevance to the particular 
investigation. There are hundreds of instances of 
administrative subpoenas currently in law. For example, the 
recent health care law authorized administrative subpoenas.
    Do you oppose administrative subpoenas, and if so, why? If 
not, why should the Government be able to investigate health 
care matters by subpoena but not international terrorists and 
foreign powers that wish to do us harm?
    Mr. Sensenbrenner. The gentleman's time has expired but the 
witness may answer the question.
    Mr. German. Yes, we oppose the expansion of any 
administrative subpoena authority. The IG report on exigent 
letters indicated that there was--National Security Letters and 
section 215 authorities. It actually pointed out that there was 
some abuse of administrative subpoenas in the audit that he was 
conducting. So we are concerned about any unchecked use of 
authority----
    Mr. Sensenbrenner. The gentleman's time has expired.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Mr. Sensenbrenner. The gentlewoman from Texas, Ms. Jackson 
Lee, is recognized for 5 minutes.
    Ms. Jackson Lee. I thank the Chairman very much, and I 
appreciate the comments and associate myself with the comments 
of the Ranking Member of the full Committee, Mr. Conyers, that 
we reflect on 9/11. We know that a large part of our problem 
was the lack of communication, the sort of silo-type security 
measures that were occurring. For that reason, I am glad we 
have gotten better, and I want to thank the Department of 
Justice and many of our security agencies for finding ways of 
cooperating. I sit on the Homeland Security Committee and 
intelligence gathering is enormously important for the work 
that we do.
    But let me just cite as an example--lay a premise on 
something that is not related but gets the crux of some of the 
concerns. The IRS is busy and in many instances it gets its 
hands around individuals who are well intentioned, want to pay 
their taxes. They wait too long and, as you well know, it kicks 
into the Department of Justice. These are Americans who have 
committed no real crime other than they have delayed and 
thought they had paid or argued that they had paid or were 
trying to pay. But certainly as the Department of Justice gets 
it, they really want to pay.
    But the interesting thing is that as they want to pay, the 
harder it gets to pay because the Department of Justice will 
not allow discussion, will not allow, if you will, the release 
of information, will not allow that taxpayer just to write a 
check. It gets into the claws of the system and there is no 
engagement. There is no constituency engagement. It is secret. 
You are subject to criminal penalties yourself if you were to 
engage trying to help a taxpayer who wants to write a check.
    Sometimes secrecy is, if you will, the undermining of 
getting something done, either saving a Nation or getting tax 
dollars back to the Nation as needed.
    So I ask this question about the national security 
investigation that requires a certain amount of secrecy, Mr. 
Hinnen, often a very significant amount. But I worry that once 
you start down the path of secrecy, it simply becomes a default 
position and more and more information is kept secret that 
doesn't really need such tight control.
    What steps have you or other leaders at the DOJ taken to 
ensure that information is not overclassified and that 
information that can safely be made public is released, 
somewhat similar to why can't people settle their IRS once it 
gets to the DOJ? Do you think there is more that could be done? 
And what is the purpose of the FBI's NSL subsystem?
    Mr. Hinnen. Thank you, Congresswoman. I will try and 
address those questions in order.
    I would also note that my mind turns naturally to the IRS 
this time of year too, and I will communicate your concerns 
back to my colleagues in the Tax Division.
    Ms. Jackson Lee. I appreciate it very much.
    Mr. Hinnen. With respect to secrecy and the effect that 
secrecy has on our investigations, I think some of the 
information sharing mechanisms you referred to in your comments 
within the Government ensure that information is shared 
adequately, that we are able to use it to effectively protect 
national security. I think beginning with the PATRIOT Act, 
removing the wall, we have made great steps to make sure that 
that information is shared.
    I understand part of your question also to be about 
transparency and sharing of information with the American 
public. I think we----
    Ms. Jackson Lee. And the NSL subsystem.
    Mr. Hinnen. Subsystem, yes.
    We are also involved in a review of much of the information 
that relates to these authorities. We have worked with Senator 
Wyden on the other side of the Hill to ensure that we have a 
review process for FISA opinions and orders to determine 
whether any of that information can be declassified so that it 
can be shared with the public. And so I think we are making 
steps in that regard as well.
    With respect to the NSL subsystem, it is an effort to both 
ensure that every step that we deem necessary in order to issue 
an NSL consistent with law, policy, and practice of the FBI is 
taken and to ensure that that happens efficiently.
    Ms. Jackson Lee. Let me get Mr. German. Thank you very 
much.
    Mr. German, what is your concern about an NSL subsystem, 
and can an FBI agent abuse the National Security Letters, say, 
to spy on their wife? And if you could quickly talk about the 
gag orders, nondisclosure orders.
    Mr. German. Certainly. We are concerned. The system again 
is simply internal checks. They don't have an outside, 
independent party checking, and that creates concerns about 
oversight and particularly the use of FBI lawyers. I mean, the 
IG reports are very clear that FBI lawyers were intimately 
involved in the misuse of NSL's and the Section 215 authority. 
So it is very clear that FBI lawyers aren't necessarily the 
best check on potential abuse within the FBI. The FBI lawyers 
were intimately involved in the exigent letters. So that is a 
concern for us.
    With the gag orders, obviously, the ACLU has successfully 
sued to find the gag orders unconstitutional, and those 
reforms, reportedly by the FBI, have been put into practice, 
but we believe it is important to put them into statute and 
also to look at the Section 215 gag order as well which is 
framed in the same way so that the reform there wouldn't 
require additional legislation but actually would be 
implemented by Congress.
    Mr. Sensenbrenner. The time of the gentlewoman has expired.
    The gentleman from California, Mr. Lungren, is recognized 
for 5 minutes.
    Mr. Lungren. Mr. German, I would like to sort of focus in 
on the general overall criticism or misgivings the ACLU has 
about the issues before us. And the first is that in answer to 
a couple questions ago, there was mention of the fact why there 
is a distinction between the way we go about it in a criminal 
context and the way we go about it here in an anti-terrorism 
context and the idea that you need to sort of frontload the 
system a little bit, if you understand. And my question is, 
does the ACLU have a problem with that? That is, are we 
constricted by the protections in the Constitution such that we 
are not able to frontload the system, that is, to try and do 
investigations with these techniques prior to the time that you 
would actually be able to do some things in the criminal 
context?
    Mr. German. First of all, I disagree with the idea that 
criminal law enforcement techniques can't be used proactively 
because I used them proactively in terrorism cases as an FBI 
agent in undercover investigations. So, number one, the 
distinction between proactive and post hoc I think is not----
    Mr. Lungren. Precisely my question is do you say we do not 
need these in the way that was articulated, or even though they 
may be needed, the Constitution's protections would not allow 
us to do that? That is what I am trying to find out, where your 
problem is.
    Mr. German. And I am not sure I am answering your question 
directly, but what we are concerned about is in the criminal 
system there are back-loaded protections, as I think you are 
referring to that don't exist in the intelligence system. So if 
some law enforcement officer engaged in unconstitutional 
misconduct, the chances of that being caught through the 
criminal process where there is public exposure, right to 
counsel, those things gets caught. In the intelligence system, 
it remains secret, so it is impossible for the person who is 
harmed to ever find out or very difficult to have those 
violations of rights addressed. So in authorizing the FBI to 
have powers, we want to make sure that those powers are 
narrowly circumscribed so that those possible Constitution----
    Mr. Lungren. Right, and so I guess my question is, are you 
saying if we vary in any significant degree from the 
protections that are placed in the criminal justice context for 
the anti-terrorism context, that goes too far because those 
protections aren't there, number one, and number two, it is 
unnecessary for us to do that?
    Mr. German. I don't think we would go that far as you are 
suggesting. We have supported legislation that just makes very 
minor changes.
    Mr. Lungren. Okay. One of the criticisms you have lodged--
and I don't know if anybody talked about this beforehand, but 
in your prepared testimony you describe the FISA judges in not 
so endearing terms, suggesting that--well, you contrasted them 
with neutral and disinterested magistrates. Are you suggesting 
that the FISA Court construct is somehow inappropriate, that 
the FISA judges are not disinterested, that somehow that kind 
of a system is not working? They are not thoroughly independent 
enough to be able to protect the rights of Americans as 
contemplated by Congress in its legislation?
    Mr. German. I intended to cast no aspersions on FISA Court 
judges.
    Mr. Lungren. Well, you seem to contrast FISA Courts with 
neutral and disinterested magistrates. I am I misreading your 
testimony, or are you suggesting otherwise?
    Mr. German. I am suggesting that in an open court process, 
that is a much more effective check against any abuse.
    Mr. Lungren. Well, I understand that, but are you 
suggesting that because it is not an open court system, we 
can't trust the FISA Court judges to be neutral and 
disinterested magistrates? Because that, it seems to me, would 
be the claim.
    Mr. German. That was not my intent to say that they weren't 
neutral----
    Mr. Lungren. I mean, they are Article III judges. Right?
    Mr. German. Yes.
    Mr. Lungren. And they serve pursuant to a term of service. 
They don't give up the Constitution, as I understand it, when 
they serve there. So what I am trying to find out is why do you 
feel that that does not give the protections? We cannot trust 
these judges because they are not in open court?
    Mr. German. Well, we can't trust a system that is closed.
    Mr. Lungren. Well, the system is the people--no, no, no, 
the judges.
    Mr. German. But the people have no--oh, you mean the actual 
individuals involved.
    Mr. Lungren. Yes.
    Mr. German. They have no access to the information, and in 
a closed system, it is difficult for them to get the 
information that is necessary to determine the entire----
    Mr. Lungren. You understand in camera proceedings. Right?
    Mr. German. Certainly.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The gentleman from Georgia, Mr. Johnson, is recognized for 
5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman.
    We have got--what--thousands of FBI agents in the United 
States. Is that correct?
    Mr. Hinnen. Yes, Congressman.
    Mr. Johnson. And of those thousands, are each of them 
authorized to issue National Security Letters?
    Mr. Hinnen. Only those FBI agents who are working on an 
authorized national security investigation would be able to 
issue a National Security Letter.
    Mr. Johnson. Approximately how many FBI agents would have 
that authority theoretically?
    Mr. Hinnen. I don't have that number here today but my 
colleague from the FBI is pointing out that the authority to 
actually issue a National Security Letter is only the special 
agent in charge of each field office or FBI officer of a 
similar level.
    Mr. Johnson. How many field offices?
    Mr. Hinnen. Fifty-six.
    Mr. Johnson. Fifty-six. So you are saying it would be about 
56 individuals authorized to issue a National Security Letter.
    Mr. Hinnen. Plus a few individuals at headquarters, yes, 
Congressman.
    Mr. Johnson. Now, when those National Security Letters are 
issued, records are kept.
    Mr. Hinnen. Correct. That is one of the benefits of the new 
subsystem. They are kept in a centralized database.
    Mr. Johnson. And they are kept there forever? Are they ever 
purged? The requests and the responses to the requests and 
narratives, reports, things like that, those things are kept 
for how long?
    Mr. Hinnen. Well, Congressman, I am not clear whether you 
are asking about the applications themselves or whether you are 
asking about the documents produced in response to them.
    Mr. Johnson. Both.
    Mr. Hinnen. Both. The applications themselves are kept in 
accordance with the FBI's document retention policies.
    Mr. Johnson. Is that forever or is it at some point the 
documents are purged?
    Mr. Hinnen. I believe they are purged at some point, 
Congressman, but I would need to check and get back to you on 
that.
    Mr. Johnson. How many people would have access to those 
records?
    Mr. Hinnen. Well, Congressman, that depends on what has 
been produced and what has been provided in response. Documents 
can only be widely shared if they are determined to be within 
the scope of an NSL, in other words, not an overproduction, and 
if they are determined to have investigative value.
    Mr. Johnson. And these records that are kept, they just 
simply need to be denoted as relevant to national security 
investigations.
    Mr. Hinnen. Yes, Congressman.
    Mr. Johnson. It doesn't have to be information that 
pertains to a foreign power or an agent of a foreign power.
    Mr. Hinnen. The records themselves don't have to pertain 
specifically to an agent of a foreign power and they have to be 
relevant to a national security investigation. That is correct.
    Mr. Johnson. And that national security investigation can 
be focused on an American citizen who happens to have an 
incidental conduct or contact with someone who a National 
Security Letter has been issued for in the past, and their name 
comes up in some kind of a database.
    Mr. Hinnen. No, Congressman. If we determined that the only 
basis that we had with respect to an individual was incidental 
conduct, we would not be conducting a national security 
investigation of that individual.
    Mr. Johnson. Well, you know, I have great respect for 
members of the law enforcement community, FBI, but I am 
concerned about the secrecy involved, the fact that abuse can 
never be uncovered or discovered, and the number of persons 
with access to information that may or may not have been purged 
that gets put into some other context and used for an 
investigation that may have an illicit purpose. These instances 
are created when we have a culture of secrecy that I think was 
legislatively imposed by the hastily passed PATRIOT Act.
    Mr. Sensenbrenner. The time of the gentleman has expired.
    The Chair recognizes himself for 5 minutes.
    I have a few questions to ask of you, Mr. Hinnen, that I 
don't think need much elaboration, just a yes or no answer.
    Mr. Hinnen. I will try to be very brief.
    Mr. Sensenbrenner. Okay.
    Relative to NSL gag orders, that was litigated in Doe v. 
Mukasey that went to the Second Circuit. And isn't it true that 
the Second Circuit said that any infirmity could be corrected 
by the Government amending their procedures?
    Mr. Hinnen. That is correct.
    Mr. Sensenbrenner. Okay. Did the FBI do so and when?
    Mr. Hinnen. Yes, it did, Mr. Chairman, shortly after the 
Second Circuit's decision in Doe v. Mukasey.
    Mr. Sensenbrenner. Now, has anyone exercised that authority 
since the procedures were put in place?
    Mr. Hinnen. It has been exercised once.
    Mr. Sensenbrenner. Just once. And how long was that over 
what period of time?
    Mr. Hinnen. Well, since I believe 2008.
    Mr. Sensenbrenner. It is just once since 2008. So 2-plus 
years.
    Now, the Mayfield case which was brought up. Wasn't that 
case reversed by the appellate court?
    Mr. Hinnen. Yes, Congressman. The district court's decision 
is no longer standing.
    Mr. Sensenbrenner. Now, in Doe v. Mukasey, was that a 
finding of a defect in the statute, not agent abuse?
    Mr. Hinnen. In Doe v. Mukasey, yes, that was the finding of 
a defect in the statute. Correct.
    Mr. Sensenbrenner. Now, isn't it true that FBI agents face 
investigation by the Office of Professional Responsibility and 
ultimately dismissal for neglect of duty or misconduct?
    Mr. Hinnen. That is correct.
    Mr. Sensenbrenner. Now, have there been any cases on FBI 
overreach brought before the OPR to your knowledge since the 
PATRIOT Act was passed?
    Mr. Hinnen. There have been matters associated with the 
errors the IG identified in his reports referred to OPR and, in 
addition, referred to the Public Integrity Section of the 
Department of Justice.
    Mr. Sensenbrenner. And was anybody either prosecuted or 
dismissed as a result of what the Inspector General had 
identified?
    Mr. Hinnen. My understanding is that no one was.
    Mr. Sensenbrenner. Now, Mr. German. You know, you keep on 
talking about the necessity of intelligence activity, 
litigation, application for FISA orders or warrants or anything 
like that being open. How are we able to get the information we 
need if all of this is in open court and the people who are 
being investigated or proposed to be investigated know that law 
enforcement is on to them relative to the possible commission 
of a terrorist act?
    Mr. German. I did not suggest that there should be no 
secrecy involved in the process. I mean, clearly even in the 
criminal system, there is secrecy involved in the process as 
the investigation proceeds. But where there is a system that is 
set up that is a closed system that doesn't allow an 
adversarial process to challenge the Government's position or 
facts, you have to put in strong guidelines on the front end to 
make sure that that authority isn't being----
    Mr. Sensenbrenner. Well, with respect to National Security 
Letters, didn't we put those guidelines in in the 2005 PATRIOT 
Act reauthorization so much so that the plaintiff in a case, as 
a result of the amendment of the law, ended up dropping the 
case?
    Mr. German. That was an ACLU case on section 215 I think 
you are referring to.
    Mr. Sensenbrenner. Yes.
    Mr. German. And while we appreciate that the gag was 
narrowed a bit, the reason we dropped the case wasn't because 
we don't still have problems with the gag. We do. We were 
actually litigating that same issue with regard to NSL's, and 
so that was just a----
    Mr. Sensenbrenner. But didn't the Justice Department and 
the FBI change their NSL procedure in response to complaints?
    Mr. German. Yes, reportedly they did. And all we----
    Mr. Sensenbrenner. Well, I appreciate the fact the ACLU is 
an advocate, but there has got to be some balance involved in 
this because you might be protecting a couple of people who 
would be receiving these court orders or are under 
investigation, but I think the whole purpose of treating 
terrorism different than criminal acts is to protect maybe tens 
of thousands of people who would be placed at risk if there was 
a terrorist attack on the Super Bowl or the World Series or 
some other place where people congregated. This Subcommittee 
Chair when he was the full Committee Chair really made an 
effort to do that, but I guess what I am hearing from you, Mr. 
German, is that it is never good enough.
    Thank you very much. My time has expired.
    The gentleman from Texas, Mr. Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    Mr. German, I think you would acknowledge that despite the 
public concerns over section 215 and business records, the real 
problem where we have had reports of problems has been with the 
National Security Letters. Correct? That has been the main----
    Mr. German. There were problems with the Section 215 
authority that were identified in the IG report, but the number 
of 215 orders is vastly smaller.
    Mr. Gohmert. Compared to the NSL's. Correct? Yes.
    Now, you have talked about narrowing the scope of the NSL's 
before. How specifically would you recommend the scope be 
narrowed?
    Mr. German. Well, we have supported legislation that has 
been proposed in the House that would narrow it to use against 
an agent of a foreign power, information about a foreign 
power's activities, or someone in contact with an agent of a 
foreign power. So we support that legislation.
    Mr. Gohmert. So that is the only proposal you have as far 
as narrowing the scope. It has to be an agent of a foreign 
power?
    Mr. German. Well, that is not what it says. It has to be an 
agent of a foreign power. There is a three-pronged test. Agent 
of a foreign power, information about an agent of a foreign 
power's activities, or someone in contact with an agent of a 
foreign power.
    Mr. Gohmert. And that is your proposal for narrowing the 
scope.
    Mr. German. Well, that is not our proposal. That is what 
has been proposed----
    Mr. Gohmert. Well, see, my question was to you. What would 
you personally--you are here testifying and you went into what 
has been proposed by somebody else. I am asking you the 
question. What would you propose personally as a way to narrow 
the scope specifically?
    Mr. German. You know, we have called for in the past 
bringing it back to the pre-9/11----
    Mr. Gohmert. Now, you say ``we.''
    Mr. German. The ACLU has----
    Mr. Gohmert. I know, but I am asking what you think would 
be the best way to narrow the scope, you, Mr. German.
    Mr. German. Well, I am here representing the American Civil 
Liberties Union, so----
    Mr. Gohmert. So you don't have an opinion. All right.
    Mr. German. Well, my opinion is in line with the American 
Civil Liberties Union.
    Mr. Gohmert. Oh, okay. All right. And their opinion is 
specifically to narrow the scope how? Those things you just 
mentioned or is there something else?
    Mr. German. Right. I mean, you could narrow the scope in a 
number of different ways, but what I am saying is we have 
supported the legislation that has narrowed it in that way. So 
that would be an effective way of doing it.
    Mr. Gohmert. Is there some other way specifically you would 
recommend?
    Mr. German. Sure. You could make it just an agent of a 
foreign power, I mean, just the way it was pre-9/11. So there 
are a number of ways you can do it, but we are supporting 
legislation that does it in that way.
    Mr. Gohmert. That way being the three prongs?
    Mr. German. The three-pronged test.
    Mr. Gohmert. All right. Thank you.
    Do you believe that the NSL's could be adequately served by 
using the 215 power?
    Mr. German. I am sorry?
    Mr. Gohmert. Do you think that the information that would 
be pursued by NSL's could be adequately addressed by Section 
215 requests?
    Mr. German. You know, certainly the Section 215 authority 
has an independent view that would be a very effective way of 
adding some oversight to the use of NSL's. We are concerned 
still about the low relevance standard of the Section 215 
authority and we would ask that that authority also be raised 
to the three-pronged test that is in the legislation regarding 
the NSL's.
    Mr. Gohmert. And for our other two witnesses, I know that 
the suggestion continues to be or the argument continues to be, 
well, gee, there is nothing that 215 does that a grand jury 
subpoena can't do. But you would each surely acknowledge that 
in the grand jury process, even though a great prosecutor could 
arguably indict a ham sandwich, that nonetheless you have 
independent people who are not associated with law enforcement, 
with the Justice Department who are on a grand jury who 
actually bring in an independent view to reviewing those 
subpoenas before they are made. You all would surely 
acknowledge that. Correct? I mean, that is a difference that a 
grand jury subpoena has that an NSL does not have since it is 
all interagency. Correct?
    Mr. Hinnen. I thought your question initially was going to 
business records orders, in which case----
    Mr. Gohmert. Well, 215 and NSL's.
    Mr. Hinnen. With respect to business records orders, there 
is actually an independent Article III judge who reviews it.
    Mr. Gohmert. Right. You are right. Correct. So it really 
goes to NSL's.
    Mr. Hinnen. With respect to National Security Letters, they 
aren't submitted to a grand jury prior to their issuance, but 
they are reviewed by the recipients and their lawyers when they 
receive them. So there is independent review.
    Mr. Gohmert. Well, I am talking about before they are sent 
out.
    I see my time has expired. Thank you.
    Mr. Sensenbrenner. Yes, it is. Thank you very much, 
gentleman from Texas.
    I would like to thank all of our witnesses for their 
testimony and answers to Committee Members' questions today.
    Without objection, all Members will have 5 legislative days 
in which 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.
    Without objection, all Members will have 5 legislative days 
to submit any additional materials for inclusion in the record.
    And without objection, this hearing stands adjourned.
    [Whereupon, at 11:24 a.m., the Subcommittee was adjourned.]

                                 
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