[Congressional Record Volume 148, Number 122 (Tuesday, September 24, 2002)]
[Senate]
[Pages S9109-S9110]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           U.S.A. PATRIOT ACT

  Mr. HATCH. Mr. President, I ask unanimous consent that on behalf of 
the listed Senators, a joint statement of myself, Senator Thurmond, 
Senator Kyl, Senator DeWine, Senator Sessions, and Senator McConnell 
regarding the Committee on the Judiciary, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 The U.S.A. Patriot Act in Practice: Shedding Light on the FISA Process

       Prior to the U.S.A. PATRIOT Act of 2001, the Foreign 
     Intelligence Surveillance Act of 1978 authorized the 
     government to gather intelligence on agents of foreign powers 
     with less stringent requirements than those required for 
     surveillance of domestic criminals. The courts interpreted 
     FISA as requiring that gathering foreign intelligence be the 
     ``primary purpose'' of the surveillance of the foreign agent. 
     See United States v. Duggan, 743 F.2d 59, 77 (2nd Cir. 1984); 
     United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 
     1980), cert. denied, 454 U.S. 1154 (1982).
       This statutory regime worked well during the cold war for 
     conducting surveillance on spies who were either foreign 
     nationals employed by foreign government working under 
     diplomatic cover at foreign embassies in the United States, 
     or United States persons in this country who had been 
     recruited to spy by foreign intelligence agencies. Both were 
     clearly ``agents of a foreign power,'' and gathering foreign 
     intelligence on the activities of these targets was generally 
     the ``primary purpose,'' if not the only purpose, of the 
     surveillance.
       The statutory regime did not work as well with respect to 
     terrorists, who did not work for a foreign government, who 
     often financed their operations with criminal activities, 
     such as drug dealing, and who began to target American 
     interests. It was more difficult to determine if such 
     terrorists were ``agents of a foreign power'' and it was 
     difficult for the government to keep the appropriate types of 
     investigators, intelligence or criminal, involved in the 
     operation.
       To determine what the ``primary purpose'' of a surveillance 
     was, courts looked to what type of federal investigators were 
     managing and directing the surveillance operation. If 
     intelligence investigators managed and directed the 
     surveillance, courts interpreted the primary purpose of the 
     surveillance to be gathering foreign intelligence, thus 
     requiring the government to comply with the less stringent 
     FISA surveillance procedures. On the other hand, if criminal 
     investigators managed and directed the surveillance, courts 
     interpreted the primary purpose of the surveillance to be 
     gathering criminal evidence, thus requiring the government to 
     comply with the more stringent Title III wiretap procedures 
     or to exclude the evidence from court. In short, the courts 
     held that there could be only one primary purpose, and it was 
     either gathering foreign intelligence or gathering criminal 
     evidence. See, e.g., Truong, 629 F.2d at 912-13.
       The attacks on September 11, 2001, appeared to be 
     orchestrated by the Al Qaeda, an international terrorist 
     organization, with no embassies or diplomats, and whose 
     operatives were loosely associated small groups who often 
     engaged in criminal activities. The intelligence agencies and 
     criminal investigators were unable to analyze and disseminate 
     information needed to detect and prevent the September 11th 
     attacks partly because of restrictions on their ability to 
     share information and coordinate tactical strategies in order 
     to disrupt foreign terrorist activities. It was apparent that 
     the existing court interpretation of the FISA requirement of 
     ``primary purpose'' impeded the sharing and coordination of 
     information between criminal and intelligence investigators 
     on foreign terrorists.
       Accordingly, Congress enacted the USA Patriot Act, in part, 
     to replace the ``primary purpose'' requirement with a less 
     stringent requirement, and to increase consultation and 
     coordination efforts between intelligence and federal law 
     enforcement officers to investigate and protect against 
     foreign terrorist threats. See Sections 218 and 504. Three 
     replacement standards were discussed for determining how 
     large a purpose gathering foreign intelligence must be in 
     order for a FISA warrant to issue: (1) a substantial purpose; 
     (2) a significant purpose; and (3) a purpose. With multiple 
     purposes in an investigation of an international terrorist, 
     there could be only one ``primary'' purpose, but more than 
     one ``substantial'', ``significant,'' or ``a'' purposes. A 
     ``substantial'' purpose of gathering foreign intelligence 
     was viewed to be less than primary, but more than a de

[[Page S9110]]

     minimis purpose. A ``significant'' purpose of gathering 
     foreign intelligence was deemed to be less than 
     ``significant,'' but more than a de minimis purpose. And 
     ``a purpose'' of gathering foreign intelligence was deemed 
     to include a de minimis purpose.
       Congress chose the word ``significant'' purpose to replace 
     the existing FISA requirement of a ``primary'' purpose. By 
     this we intended that the purpose to gather intelligence 
     could be less than the main or dominant purpose, but 
     nonetheless important and not de minimis. Because a 
     significant purpose of gathering foreign intelligence was not 
     the primary or dominant purpose, it was clear to us that in a 
     FISA search or surveillance involving multiple purposes, 
     gathering criminal evidence could be the primary purpose as 
     long as gathering foreign intelligence was a significant 
     purpose in the investigation. See generally, e.g., United 
     States v. Soto-Silva, 129 F.3d 340, 347 (5th Cir. 1997) 
     (holding that a defendant who maintained a house for the 
     ``primary purpose'' of taking care of a family member also 
     maintained the house for a ``significant purpose'' of 
     distributing marijuana).
       The Department of Justice confirmed the meaning of the 
     change from primary purpose to significant purpose in a 
     letter supporting the amendment sent on October 1, 2001, to 
     the Chairmen and Ranking Members of the House and Senate 
     Judiciary and Intelligence Committees. The Department stated 
     that the amendment would recognize that ``the courts should 
     not deny [the President] the authority to conduct 
     intelligence searches even when the national security purpose 
     is secondary to criminal prosecution.''
       The understanding of increased cooperation between 
     intelligence and law enforcement was confirmed by voices in 
     the House and the Senate in the days and weeks immediately 
     following the new FISA standard. ``This legislation 
     authorizes the sharing of information between criminal 
     investigators and those engaged in foreign intelligence-
     gathering. It provides for enhanced wiretap and surveillance 
     authority. It brings the basis building blocks of a criminal 
     investigation, pen registers and trap and trace provisions, 
     into the 21st century to deal with e-mails and Internet 
     communications.'' 147 Cong. Rec. H7196 (daily ed. Oct. 23, 
     2001) (statement of Rep. Sensenbrenner). ``The core 
     provisions of the legislation we passed in the Senate 2 weeks 
     ago remain firmly in place. For instance, in the future, our 
     law enforcement and intelligence communities will be able to 
     share information and cooperate fully in protecting our 
     Nation against terrorist attacks.'' 147 Cong. Rec. S11016 
     (daily ed. Oct. 25, 2001) (statement of Sen. Hatch).
       In addition, a news publication confirmed the general 
     understanding on Capitol Hill during the consideration of the 
     U.S.A. PATRIOT Act. The Congressional Quarterly reported 
     separately on October 8, 9, and 23, 2001: ``Under the 
     measure, for example, law enforcement could carry out a FISA 
     operation even of the primary purpose was a criminal 
     investigation.'' Congr. Q., House Action Reports, Fact Sheet 
     No. 107-33, at p. 3 (Oct. 9, 2001); see Cong. Q., House 
     Action Reports, Legislative Week, at p. 3 (Oct. 23, 2001); 
     Cong. Q., House Action Reports, Legislative Week, a p. 13 
     (Oct. 8, 2001). FISA may not be used ``even if the primary 
     purpose is a criminal investigation.'' Cong. Q. Billwatch 
     Brief, H.R. 3162 (Oct. 23, 2001).
       It was our intent when we included the plain language of 
     Section 218 of the U.S.A. PATRIOT Act and when we voted for 
     the Act as a whole to change FISA to allow a foreign 
     intelligence surveillance warrant to be obtained when ``a 
     significant'' purpose of the surveillance was to gather 
     foreign intelligence, even when the primary purpose of the 
     surveillance was the gathering of criminal evidence.

                          ____________________