[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
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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.]