[Senate Report 108-40]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 32
108th Congress                                                   Report
                                 SENATE
 1st Session                                                     108-40

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



 
AMENDMENT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 TO ALLOW 
SURVEILLANCE OF NON-UNITED STATES PERSONS WHO ENGAGE IN OR PREPARE FOR 
 INTERNATIONAL TERRORISM WITHOUT AFFILIATION WITH A FOREIGN GOVERNMENT 
                    OR INTERNATIONAL TERRORIST GROUP

                                _______
                                

                 April 29, 2003.--Ordered to be printed

                                _______
                                

Mr. Hatch, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            ADDITIONAL VIEWS

                         [To accompany S. 113]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 113) to exclude United States persons from the 
definition of ``foreign power'' under the Foreign Intelligence 
Surveillance Act of 1978 relating to international terrorism, 
having considered the same, reports favorably thereon with 
amendment, and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................2
 II. Background on the Legislation....................................2
III. Need for the Legislation.........................................2
 IV. Hearings.........................................................6
  V. Committee Consideration..........................................6
 VI. Section-by-Section Analysis and Discussion.......................8
VII. Congressional Budget Office Cost Estimate........................8
VIII.Regulatory Impact Statement......................................9

 IX. Additional Views................................................10
  X. Appendix A--Excerpts from Joint Inquiry Briefing by Staff on 
     United States Government Counterterrorism Organizations and on the 
     Evolution of the Terrorist Threat and United States Response: 
     1986-2001, September 24, 2002...................................76
 XI. Appendix B--Letter from Judiciary Committee Chairman Hatch to 
     Senators Leahy, Grassley and Specter, dated February 27, 2003...79
XII. Appendix C--Letter from the Department of Justice to Senate Select 
     Committee on Intelligence Chairman Graham and Vice-Chairman 
     Shelby, dated August 6, 2002....................................86
XIII.Appendix D--Letter from the Department of Justice to Judiciary 
     Committee Chairman Leahy, dated December 23, 2002...............89
XIV. Appendix E--Letter from the Department of Justice to Senate Select 
     Committee on Intelligence Chairman Graham and Vice-Chairman 
     Shelby, dated July 31, 2002.....................................98
 XV. Changes in Existing Law........................................103

                               I. Purpose

    The purpose of S. 113 is to amend the Foreign Intelligence 
Surveillance Act of 1978 (FISA), title 50, United States Code, 
to permit surveillance of so-called ``lone wolf'' foreign 
terrorists. S. 113 would allow a FISA warrant to issue upon 
probable cause that a non-United States person is engaged in or 
preparing for international terrorism, without requiring a 
specific showing that the non-United States person also is 
affiliated with a foreign power. By eliminating the requirement 
of a foreign-power link for FISA warrants in such cases, S. 113 
would allow U.S. intelligence agencies to monitor foreign 
terrorists who, though not affiliated with a group or 
government, pose a serious threat to the people of the United 
States. In light of the significant risk of devastating attacks 
that can be carried out by non-United States persons acting 
alone, individual terrorists must be monitored and stopped, 
regardless of whether they operate in coordination with other 
individuals or organizations.

                   II. Background on the Legislation


                           THE 107TH CONGRESS

    In the 107th Congress, S. 2586 was introduced on June 5, 
2002 by Senators Schumer and Kyl. S. 2586 was identical to S. 
113 as introduced in the 108th Congress.

                           THE 108TH CONGRESS

    In the 108th Congress, Senator Kyl introduced S. 113 on 
January 9, 2003. Senate Judiciary Committee Chairman Hatch, 
Senator DeWine, and Senator Schumer were original co-sponsors 
of S. 113. Senator Chambliss and Senator Sessions became co-
sponsors of S. 113, on January 28, and February 6, 2003, 
respectively.

                     III. Need for the Legislation

    S. 113 expands the Foreign Intelligence Surveillance Act of 
1978 to permit surveillance or physical searches relating to 
non-United States persons where there is probable cause to 
believe that such individual is involved in international 
terrorism, without regard to whether such persons are 
affiliated with a foreign government or terrorist group.
    The September 11, 2001 terrorist attacks on the people of 
the United States underscored the need for this legislation. 
Several weeks before those attacks, federal law enforcement 
agents identified one of the participants in that conspiracy as 
a suspected international terrorist. These agents sought to 
obtain a FISA warrant to search his belongings. One of the 
principal factors that prevented the issuance of such a warrant 
was FISA's requirement that the target be an agent of a foreign 
power. Even if federal agents had been able to demonstrate that 
this person was preparing to commit an act of international 
terrorism, based on the suspicious conduct that had first 
brought him to the attention of authorities, the agents would 
not have been able to obtain a warrant to search him absent a 
link to a foreign power. As a result, these federal agents 
spent three critical weeks before September 11 seeking to 
establish this terrorist's tenuous connection to groups of 
Chechen rebels--groups for whom we now know this terrorist was 
not working.
    It is not certain that a search of this terrorist would 
necessarily have led to the discovery of the September 11 
conspiracy. We do know, however, that information in this 
terrorist's effects would have linked him to two of the actual 
September 11 hijackers, and to a high-level organizer of the 
attacks who was captured in 2002 in Pakistan. And we do know 
that suspending the requirement of a foreign-power link for 
lone-wolf terrorists would have eliminated the major obstacle 
to federal agents' investigation of this terrorist--the need to 
fit this square peg into the round hole of the current FISA 
statute.\1\
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    \1\ In their joint additional views, Senators Leahy and Feingold 
express some confusion as to why the investigation of the suspected 
20th September 11 hijacker was impeded by FISA's current requirement 
that every suspected international terrorist also be shown to be an 
agent of a foreign power. Senators Leahy and Feingold suggest that the 
F.B.I. had ``all the evidence it needed to procure'' a warrant for this 
individual. To the extent that Senators Leahy and Feingold refer to a 
FISA warrant, it would appear that they do not appreciate the meaning 
of the term ``agent'' as employed by FISA. The current FISA's ``agent'' 
requirement, and its effect on the investigation of the September 11 
conspiracy, were described by the FBI in a September 24, 2002 joint 
hearing before the Intelligence Committees. The relevant passages from 
that hearing are attached as Appendix A to this report.
---------------------------------------------------------------------------
    FISA allows a specially designated court to issue an order 
authorizing electronic surveillance or a physical search upon 
probable cause that the target of the warrant is ``a foreign 
power or an agent of a foreign power.'' 50 U.S.C. 
Sec. 1805(a)(3)(A), Sec. 1824(a)(3)(A). The words ``foreign 
power'' and ``agent of a foreign power'' are defined in 
Sec. 1801 of FISA. ``Foreign power'' includes ``a group engaged 
in international terrorism or activities in preparation 
therefor,'' Sec. 1801(a)(4), and ``agent of a foreign power'' 
includes any person who ``knowingly engages in sabotage or 
international terrorism, or activities that are in preparation 
therefor, for or on behalf of a foreign power.'' 
Sec. 1801(b)(2)(C).
    Requiring that targets of a FISA warrant be linked to a 
foreign government or international terrorist organization may 
have made sense when FISA was enacted in 1978; in that year, 
the typical FISA target was a Soviet spy or a member of one of 
the hierarchical, military-style terror groups of that era. 
Today, however, the United States faces a much different 
threat. The United States is confronted not only by specific 
groups or governments, but by a movement of Islamist 
extremists. This movement does not maintain a fixed structure 
or membership list, and its adherents do not always advertise 
their affiliation with this cause. Moreover, in response to the 
United States' efforts to fight terrorism around the world, 
this movement increasingly has begun operating in a more 
decentralized manner.\2\
---------------------------------------------------------------------------
    \2\ Senator Leahy has included with his additional views an 
appendix with a 37-page report prepared by Senators Leahy, Grassley and 
Specter critiquing the FBI's pre-September 11 intelligence activities 
and the FBI in general, which itself is accompanied by a substantial 
appendix of exhibits. Senator Leahy previously has introduced the same 
document into the Congressional Record. On February 27, 2003, Chairman 
Hatch presented to Senator Leahy a letter identifying numerous 
inaccuracies, errors, and apparent misunderstandings in Senator Leahy's 
personal report. We include Chairman Hatch's letter as Appendix B to 
this report.
    Senators Leahy and Feingold also suggest that more information 
about U.S. intelligence agencies' surveillance of suspected terrorists 
and other counterintelligence activities should be made public. The 
Department of Justice previously has indicated to Senator Leahy that 
the disclosures that he recommends would reveal sensitive information 
about U.S. anti-terrorism efforts to terrorist organizations. A copy of 
the Department's letter to Senator Leahy is included in Appendix C to 
this report.
    Senators Leahy and Feingold also question the propriety of FISA 
investigations that extend to public libraries, raising the specter of 
J. Edgar Hoover. The Department of Justice previously has explained to 
Senator Leahy in responses to written questions the relevant legal 
standards governing FISA investigations, and why some investigations 
lead to public libraries. The Department has indicated, for example, 
that some FBI offices ``followed up on leads concerning e-mail and 
Internet use information about specific [September 11] hijackers from 
computers in public libraries.'' We include the relevant Department of 
Justice responses to written questions in Appendix D to this report.
---------------------------------------------------------------------------
    The origins and evolution of the Islamist terrorist threat, 
and the difficulties posed by FISA's current framework, were 
described in detail by Spike Bowman, the Deputy General Counsel 
of the FBI, at a Senate Select Committee on Intelligence 
hearing on the predecessor to S. 113. Mr. Bowman testified:

    When FISA was enacted, terrorism was very different from 
what we see today. In the 1970s, terrorism more often targeted 
individuals, often carefully selected. This was the usual 
pattern of the Japanese Red Army, the Red Brigades and similar 
organizations listed by name in the legislative history of 
FISA. Today we see terrorism far more lethal and far more 
indiscriminate than could have been imagined in 1978. It takes 
only the events of September 11, 2001, to fully comprehend the 
difference of a couple of decades. But there is another 
difference as well. Where we once saw terrorism formed solely 
around organized groups, today we often see individuals willing 
to commit indiscriminate acts of terror. It may be that these 
individuals are affiliated with groups we do not see, but it 
may be that they are simply radicals who desire to bring about 
destruction.

           *       *       *       *       *       *       *

    [W]e are increasingly seeing terrorist suspects who appear 
to operate at a distance from these [terrorists] organizations. 
In perhaps an oversimplification, but illustrative 
nevertheless, what we see today are (1) agents of foreign 
powers in the traditional sense who are associated with some 
organization or discernible group (2) individuals who appear to 
have connections with multiple terrorist organizations but who 
do not appear to owe allegiance to any one of them, but rather 
owe allegiance to the International Jihad movement and (3) 
individuals who appear to be personally oriented toward 
terrorism but with whom there is no known connection to a 
foreign power.
    This phenomenon, which we have seen * * * growing for the 
past two or three years, appears to stem from a social movement 
that began at some imprecise time, but certainly more than a 
decade ago. It is a global phenomenon which the FBI refers to 
as the International Jihad Movement. By way of background we 
believe we can see the contemporary development of this 
movement, and its focus on terrorism, rooted in the Soviet 
invasion of Afghanistan.

           *       *       *       *       *       *       *

    During the decade-long Soviet/Afghan conflict, anywhere 
from 10,000 to 25,000 Muslim fighters representing some forty-
three countries put aside substantial cultural differences to 
fight alongside each other in Afghanistan. The force drawing 
them together was the Islamic concept of ``umma'' or Muslim 
community. In this concept, nationalism is secondary to the 
Muslim community as a whole. As a result, Muslims from 
disparate cultures trained together, formed relationships, 
sometimes assembled in groups that otherwise would have been at 
odds with one another[,] and acquired common ideologies. * * *
    Following the withdrawal of the Soviet forces in 
Afghanistan, many of these fighters returned to their 
homelands, but they returned with new skills and dangerous 
ideas. They now had newly acquired terrorist training as 
guerrilla warfare [had been] the only way they could combat the 
more advanced Soviet forces.

           *       *       *       *       *       *       *

    Information from a variety of sources repeatedly carries 
the theme from Islamic radicals that expresses the opinion that 
we just don't get it. Terrorists world-wide speak of jihad and 
wonder why the western world is focused on groups rather than 
on concepts that make them a community.

           *       *       *       *       *       *       *

    The lesson to be taken from [how Islamist terrorists share 
information] is that al-Qaida is far less a large organization 
than a facilitator, sometimes orchestrator of Islamic militants 
around the globe. These militants are linked by ideas and 
goals, not by organizational structure.

           *       *       *       *       *       *       *

    The United States and its allies, to include law 
enforcement and intelligence components worldwide[,] have had 
an impact on the terrorists, but [the terrorists] are adapting 
to changing circumstances. Speaking solely from an operational 
perspective, investigation of these individuals who have no 
clear connection to organized terrorism, or tenuous ties to 
multiple organizations, is becoming increasingly difficult.
    The current FISA statute has served the nation well, but 
the International Jihad Movement demonstrates the need to 
consider whether a different formulation is needed to address 
the contemporary terrorist problem.

    The Committee notes that when FISA was enacted in 1978, the 
Soviet invasion of Afghanistan had not yet occurred and both 
Iran and Iraq were considered allies of the United States. The 
world has changed. It is the responsibility of Congress to 
adapt our laws to these changes, and to ensure that law 
enforcement and intelligence agencies have at their disposal 
all of the tools they need to combat the terrorist threat 
currently facing the United States. The Committee concludes 
that enactment of S. 113's modification of FISA to facilitate 
surveillance of lone-wolf terrorists would further Congress's 
fulfillment of this responsibility.\3\
---------------------------------------------------------------------------
    \3\ In a separate statement of additional views on S. 113, Senator 
Feingold expresses concerns about the constitutionality of allowing 
surveillance of lone-wolf terrorists pursuant to FISA. He suggests that 
by allowing searches of persons involved in international terrorism 
without regard to whether such persons are affiliated with foreign 
powers, S. 113 ``writes out of the statute a key requirement necessary 
to the lawfulness of such searches.'' In order to address Senator 
Feingold's concerns, the Committee attaches as Appendix E to this 
report a letter presenting the views of the U.S. Department of Justice 
on S. 2586, the predecessor bill to S. 113.
    The Department of Justice's letter provides a detailed analysis of 
the relevant Fourth Amendment jurisprudence, concluding that the bill's 
authorization of lone-wolf surveillance would ``satisfy constitutional 
requirements.'' The Department emphasizes that anyone monitored 
pursuant to the lone-wolf authority would be someone who, at the very 
least, is involved in terrorist acts that ``transcend national 
boundaries in terms of the means by which they are accomplished, the 
persons they appear intended to coerce or intimidate, or the locale in 
which their perpetrators operate or seek asylum.'' (Quoting 50 U.S.C. 
Sec. 1801(c)(3).) Therefore, a FISA warrant obtained pursuant to this 
authority necessarily would ``be limited to collecting foreign 
intelligence for the `international responsibilities of the United 
States, and the duties of the Federal Government to the States in 
matters involving foreign terrorism.' '' (Quoting United States v. 
Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The Department concludes ``the 
same interests and considerations that support the constitutionality of 
FISA as it now stands would provide the constitutional justification 
for S. 2568.'' The Department additionally notes that when FISA was 
enacted it was understood to allow surveillance of groups as small as 
two or three persons. The Department concludes that ``[t]he interests 
that the courts have found to justify the procedures of FISA are not 
likely to differ appreciably as between a case involving such a group * 
* * and a case involving a single terrorist.''
---------------------------------------------------------------------------

                              IV. Hearings

    S. 2586 was originally referred to the Senate Select 
Committee on Intelligence. It held one hearing on S. 2586 on 
July 31, 2002, and then referred the matter to the Judiciary 
Committee for consideration.
    Testimony at the July 31, 2002 hearing was received from 
six witnesses: Senator Charles E. Schumer of New York; Mr. 
James Baker, Counsel for Intelligence Policy, Officer of 
Intelligence and Policy Review, Department of Justice; Mr. 
Marion E. (Spike) Bowman, Deputy General Counsel, Federal 
Bureau of Investigation; Mr. Fred Manget, Deputy General 
Counsel, Office of General Counsel, Central Intelligence 
Agency; Mr. Jerry Berman, Executive Director, Center for 
Democracy and Technology; and Professor Clifford Fishman, 
Columbus School of Law, Catholic University of America.

                       V. Committee Consideration


 THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 107TH CONGRESS

    The Committee on the Judiciary did not consider S. 2586 in 
executive session during the 107th Congress.

 THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 108TH CONGRESS

    The Committee on the Judiciary, with a quorum present, met 
in open and executive session on March 6, 2003, to consider S. 
113.
    Senator Kyl offered a substitute amendment on behalf of 
himself, Senator Schumer, Senator Biden, and Senator DeWine, 
which the Committee adopted by unanimous consent. The 
substitute amendment made three changes to S. 113. First, the 
amendment changed the location within FISA of S. 113's 
authorization of surveillance and searches of lone-wolf 
terrorists. As originally introduced, S. 113 would have amended 
50 U.S.C. Sec. 1801(a), which defines the term ``foreign 
power'' for purposes of FISA. The Kyl-Schumer-Biden-DeWine 
amendment modified S. 113 so that it amends Sec. 1801(b), which 
defines the term ``agent of a foreign power'' for purposes of 
FISA. Placing the authorization to monitor lone-wolf terrorists 
in subsection 1801(b) does not alter the substance of S. 113.
    The second change made by the substitute amendment was to 
subject the lone-wolf authorization to the same sunset 
provision that applies to the USA PATRIOT Act of 2001 (Public 
Law 107-56; 115 Stat. 295).
    The third change made by the substitute amendment was to 
change the stated purpose of the bill. The original stated 
purpose of both S. 113 and its predecessor, S. 2586--``to 
exclude United States persons from the definition of `foreign 
power' under the Foreign Intelligence Surveillance Act of 1978 
related to international terrorism''--does not accurately 
describe the purpose of the bill, and appears to reflect a 
misunderstanding of its effect. The new stated purpose supplied 
by the substitute amendment--``to expand the Foreign 
Intelligence Surveillance Act of 1978 (`FISA') to reach 
individuals other than United States persons who engage in 
international terrorism without affiliation with an 
international terrorist group''--is that suggested by the 
Department of Justice in its July 31, 2002 Statement of 
Administration Policy on S. 2586.
    The only other amendment to S. 113 that was considered by 
the Judiciary Committee was an amendment offered by Senator 
Feingold. This proposal would have amended FISA to allow 
discovery of applications and affidavits filed in support of a 
FISA warrant under the standards and procedures of the 
Classified Information Procedures Act of 1980 (18 U.S.C. App.).
    The Committee, on a 11-4 rollcall vote, defeated the 
Feingold amendment. The vote on the amendment was as follows:

Tally: 4 Yes, 11 No, 4 Not Voting

Republicans (10)
    N  Hatch (R-Utah)
    N  Grassley (R-Iowa)
    N  Specter (R-Pa.)
    N  Kyl (R-Ariz.)
    N  DeWine (R-Ohio)
    N  Sessions (R-Ala.)
    N  Graham (R-S.C.)
    N  Craig (R-ID )
    N  Chambliss (R-Ga.)
    N  Cornyn (R-Tex.)

Democrats (9)
    Y  Leahy (D-Vt.)
    Y  Kennedy (D-Mass.)
    NV  Biden (D-Del.)
    NV  Kohl (D-Wis.)
    NV  Feinstein (D-Calif.)
    Y  Feingold (D-Wis.)
    N  Schumer (D-N.Y.)
    Y  Durbin (D-Ill.)
    NV  Edwards (D-N.C.)

    The Committee then voted 19-0 to report favorably S. 113 to 
the full Senate with a recommendation that the bill do pass.

             VI. Section-by-Section Analysis and Discussion


Section 1. Treatment as agent of a foreign power under Foreign 
        Intelligence Surveillance Act of 1978 of non-United States 
        persons who engage in international terrorism without 
        affiliation with international terrorist groups

    Section 1 includes two paragraphs. Paragraph (a) amends the 
definition of an ``agent of a foreign power,'' 50 U.S.C. 
Sec. 1801(b)(1), to include in a new subparagraph (C) a non-
United States person who ``engages in international terrorism 
or activities in preparation therefor.'' Paragraph (b) subjects 
this new authority to the sunset provision in section 224 of 
the USA PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295), 
which terminates the authority on December 31, 2005.

             VII. Congressional Budget Office Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
standing rules of the Senate, the Committee sets forth, with 
respect to the bill, S. 113, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 403 of the Congressional Budget Act of 
1974.

S. 113--A bill to amend the Foreign Intelligence Surveillance Act of 
        1978 to cover individuals, other than United States persons, 
        who engage in international terrorism without affiliation with 
        an international terrorist group

    CBO estimates that implementing S. 113 would not result in 
any significant cost to the federal government. Enacting S. 113 
could affect direct spending and receipts, but CBO estimates 
that any such effects would not be significant. S. 113 contains 
no intergovernmental or private-sector mandates as defined in 
the Unfunded Mandates Reform Act and would impose no costs on 
state, local, or tribal governments.
    S. 113 would amend the Foreign Intelligence Surveillance 
Act of 1978 to expand the definition of ``agent of a foreign 
power.'' Under the bill, this designation would include persons 
(other than U.S. persons) who engage in or prepare for 
international terrorist acts on their own. This would enable 
the Attorney General to use electronic surveillance to acquire 
information on such individuals. The provisions of S. 113 would 
expire on December 31, 2005.
    Implementing the bill could result in more successful 
investigations and prosecutions in certain cases involving 
terrorist acts. CBO expects that any increase in costs for law 
enforcement, court proceedings, or prison operations would not 
be significant because of the small number of cases likely to 
be affected. Any such additional costs would be subject to the 
availability of appropriated funds.
    Because those prosecuted and convicted under S. 113 could 
be subject to criminal fines, the federal government might 
collect additional fines if the bill is enacted. Collections of 
such fines are recorded in the budget as governmental receipts 
(revenues), which are deposited in the Crime Victims Fund and 
later spent. CBO expects that any additional receipts and 
direct spending would be negligible because of the small number 
of cases involved.

                   VIII. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that S. 113 will not have a 
significant regulatory impact.

                          IX. Additional Views

                              ----------                              


         ADDITIONAL VIEWS OF SENATOR LEAHY AND SENATOR FEINGOLD

    In times of national stress there is an understandable 
impulse for the government to seek more power. Sometimes more 
power is needed, and sometimes it is not. Appropriate checks on 
new grants of power to government, and meaningful oversight of 
how that power is used, are always warranted however. While we 
supported reporting S. 113 from the Judiciary Committee because 
of the sunset provision that was added at the markup, we remain 
concerned that this measure will not ensure that the 
government's FISA power is being used as effectively or 
appropriately as is necessary.
    Sunset provisions, such as the one that we and other 
Democratic Senators helped add during our markup, allow us to 
adopt such measures as S. 113 on a temporary basis. Without 
strong means to conduct oversight, however, there is no way to 
determine whether those tools are working, and whether they are 
being properly used. We hope that we can consider such 
important oversight mechanisms as are contained in the Leahy-
Grassley-Specter-Feingold Domestic Surveillance Oversight Act 
of 2003, S. 436, in order to reinforce and make more meaningful 
a system of checks and balances for expansions of power such as 
those in S. 113.
    After the September 11 attacks, many from both sides of the 
aisle worked together in a bipartisan fashion and with 
unprecedented speed to craft and enact the USA PATRIOT Act, 
which enhanced the government's surveillance powers. Since that 
time, however, we have had a difficult time in gaining 
cooperation from the Department of Justice in our bipartisan 
oversight efforts to evaluate how those powers are being used.
    Now, as we consider S. 113--and as we hear of 
Administration plans to unveil a proposed sequel to the USA 
PATRIOT Act, which is being developed without bipartisan 
consultation--it is vital for us also to examine and understand 
how federal agencies are using the power that they already 
have. We must answer two questions:
          First, is that power being used effectively? The 
        American people want to feel safer, but, more than 
        that, they want to be safer; they want and need 
        results, not rhetoric.
          Second, is that power being used appropriately, so 
        that our liberties are not sacrificed, so that the 
        openness of our society and our government are 
        preserved, and so that our tax dollars are not 
        squandered?
    Unfortunately, the FBI and the Department of Justice have 
either been unwilling or unable to help us to answer these 
basic questions. Moreover, the information that we have gleaned 
on our own through our bipartisan oversight efforts has not 
inspired confidence.
    Last month, Senators Grassley, Specter and Leahy released a 
detailed report based on the oversight that the Judiciary 
Committee conducted in the 107th Congress (``FISA 
Implementation Failures Report,'' or ``FIF Report''). While it 
is not a report of the Committee because it was released after 
Senator Hatch had assumed the chair, the FIF report distills 
our bipartisan findings and conclusions from numerous hearings, 
classified briefings and other oversight activities in the 
107th Congress.
    The Committee's oversight work demonstrated the pressing 
need for reform of the FBI. In particular, the FIF Report 
focused on the FBI's failures in implementing FISA, the very 
law that S. 113 seeks to further amend. That FIF Report is 
being included as Attachment A to these views, because it bears 
so directly on some of the claims made about the urgency of 
passing S. 113, and the continuing need for proper oversight 
checks to balance such proposals. (See Attachment A).
    The Administration's response to our bipartisan oversight 
report has been to dismiss it as ``old news'' relating to 
problems that are all already fixed. In short, ``everything is 
fine'' at the FBI and they plan to do nothing to respond to the 
systemic problems identified and described in the Specter-
Grassley-Leahy report. Despite the need for Congress to 
understand how today's FISA statute, as amended by the USA 
PATRIOT Act, is being used and interpreted by federal agencies, 
Congress, while being kept in the dark, is being asked instead 
to expand the FISA statute still further.
    This bill, S. 113, adopts a ``quick fix'' approach. With 
catchy monikers like the ``Moussaoui fix'' and the ``lone 
wolf'' bill, it is aimed at making Americans feel safer, but it 
does not address the chronic problems that actually plague the 
effectiveness of our intelligence gatherers. The rationales 
justifying this bill have shifted over time as well.
    In many ways, S. 113 seems to be a legislative change in 
search of a rationale. First, we were told that this amendment 
to FISA would have allowed the FBI to obtain a warrant before 
9-11 to search the computer and belongings of Zacarias 
Moussaoui. Then, after it became clear from the Joint 
Intelligence Committee investigation and our bipartisan 
Judiciary Committee oversight, spearheaded by Senators Specter 
and Grassley, that the FBI had all the evidence it needed to 
procure such a warrant had they only understood the proper 
legal standard and properly analyzed that information, the 
rationale changed. Next, we were told that the bill was 
necessary to conduct surveillance of ``lone wolf terrorists,'' 
who purportedly operate in isolation. Next, after it became 
clear that few, if any, international terrorists work alone and 
that existing criminal tools such as Title III were sufficient 
to handle those rare cases, we were told that the measure was 
necessary because it was hard to prove the connection between 
terrorists.
    Now, in this report, the implication is revived that the 
FBI's pre-9/11 failures were due in large part to problems with 
the law, but in a vague manner.\1\ The Committee Report even 
goes so far as to opaquely offer that ``Iran and Iraq were 
considered allies of the United States'' in 1978 as yet another 
rational supporting passage of S. 113. It is difficult to 
understand precisely what relevance such facts might have to a 
FISA change dealing exclusively with persons who have no ties 
whatsoever to any foreign government. It appears, however, that 
the search for a rationale to support this bill--and one that 
can be put forth without any meaningful oversight of FISA's 
actual implementation--continues in full force. When the sunset 
on this measure arrives we will need stronger rationales than 
this to justify its extension.
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    \1\ In another section, however, the Committee Report all but 
concedes that this measure is no ``Moussaoui fix,'' when it states, 
``It is not certain that it would have been possible to obtain a FISA 
warrant to search [Moussaoui] even if S. 113 had been enacted prior to 
the September 11 attacks.'' One also wonders, if this was indeed the 
true reason for the FBI's pre 9/11 woes, why the Administration did not 
request this FISA amendment as part of our USA PATRIOT Act legislation 
after the attacks.
---------------------------------------------------------------------------
    The evidence outlined in the FIF Report, accompanying these 
views as Attachment A, and coauthored by Senators Specter, 
Grassley and Leahy, persuasively and completely rebuts that 
claim. The FBI was not properly trained, manned, or equipped to 
fight organized terrorism before 9/11. We do not know the scope 
of S. 113, which is why the addition of the sunset provision is 
so important. What we do know about S. 113 is that it will not 
fix the real problems that plagued the FBI before 9/11 and that 
continue at the FBI now--poor training, inadequate information 
analysis, headquarters bottlenecks, and a culture that punishes 
internal dissent.\2\ In private briefings, even FBI 
representatives have said that they do not need this change in 
the law in order to protect against terrorism. They are getting 
all the warrants they want under the current law.
---------------------------------------------------------------------------
    \2\ Indeed, only recently the FBI Director followed the 
recommendation of a DOJ Inspector General report and disciplined the 
FBI's most senior internal affairs officer, the Assistant Director for 
the Office of Professional Responsibility, for his mishandling of a 
whistleblower matter involving John Roberts, who gave important 
testimony to this Committee criticizing the FBI in the last Congress.
---------------------------------------------------------------------------
    What is needed more than S. 113 is internal reform spurred 
by the kind of increased oversight structure set forth in the 
Domestic Surveillance Oversight Act of 2003, S. 436. That bill, 
which Senator Leahy introduced with Senators Grassley and 
Specter, would provide for increased reporting on how the 
government is using its domestic surveillance powers. It would 
allow us to monitor trends so we can know whether more 
surveillance is being focused on Americans than on non-U.S. 
persons. It would end the secret case law that has hampered the 
implementation of FISA over the last 24 years. It would allow 
us to follow up on reports that the FBI is reviving the long 
discredited practice from the Hoover days of monitoring public 
and school libraries. This is the type of information that we 
will need in order to assess whether further changes in the law 
are required, and also whether renewal or modification of the 
provisions already enacted is warranted.
    We are all against terrorism. The unanswered question is 
whether the Congress will take real steps to ensure that the 
FBI and DOJ are not underusing, overusing or misusing the power 
that they already have and which we expanded in the USA PATRIOT 
Act. We must write fewer blank checks to the Executive Branch 
and instead focus more on ensuring that our constitutional 
system of checks and balances is enforced.
    Another issue that must be closely examined is resource 
allocation. We need to know whether the continued expansion of 
FISA into the criminal arena will dilute its effectiveness as a 
foreign intelligence tool. The Senate Select Committee on 
Intelligence, through a letter written by the Chairman, had 
earlier asserted concurrent jurisdiction over this bill. Now, 
however, there is some move towards that Committee ceding 
exclusive jurisdiction over this FISA measure to the Judiciary 
Committee.
    Whatever committee considers these matters, however, must 
carefully consider whether the changes proposed in S. 113, 
which remove FISA totally from its link to foreign powers, will 
result in the diversion of scarce counter terrorism resources 
away from intelligence gathering and into cases that could just 
as easily be prosecuted using the ample tools existing 
resources available in the criminal justice system. We must 
ensure that while we allow more flexibility in FISA's use 
(subject to a sunset), FISA continues in practice to be used 
for gathering foreign intelligence, not as merely another tool 
in exclusively criminal cases. A mechanism to protect that link 
to foreign intelligence would be a welcome addition to this 
proposal, and worth serious consideration.
    If the Administration does insist on increasing its use of 
FISA for cases traditionally prosecuted as criminal matters, we 
should reconsider whether more of the basic due process 
protections of our criminal justice system should also be made 
applicable. For instance, Senator Leahy and others supported an 
amendment offered in Committee by Senator Feingold that would 
have required that the criminal discovery rules used for 
classified material under the Classified Information Procedures 
Act (CIPA) also be used for FISA materials. In the first 24 
years of its existence, no FISA application of even a portion 
of such an application has been provided to a criminal 
defendant in discovery. While that rule may be defensible when 
criminal prosecution is an unintended byproduct of FISA 
surveillance, it is neither fair nor appropriate when criminal 
prosecution is the goal from the outset. It is especially 
difficult to defend in cases where the alleged terrorist is 
working alone, the very cases that S. 113 seeks to bring under 
the FISA rubric. More discussion by the Judiciary Committee of 
this and other aspects of FISA is merited. Without more fulsome 
oversight protections, measures such as S. 113 provide the 
illusion of security without actually making Americans safer.
                                ------                                  



Attachment A

FBI Oversight in the 107th Congress by the Senate Judiciary Committee: 
  FISA Implementation Failures--An Interim Report by Senators Patrick 
       Leahy, Charles Grassley, and Arlen Specter, February 2003


                  I. EXECUTIVE SUMMARY AND CONCLUSIONS

    Working in a bipartisan manner in the 107th Congress, the 
Senate Judiciary Committee conducted the first comprehensive 
oversight of the FBI in nearly two decades. That oversight was 
aimed not at tearing down the FBI but at identifying any 
problem areas as a necessary first step to finding constructive 
solutions and marshaling the attention and resources to 
implement improvements. The overarching goal of this oversight 
was to restore confidence in the FBI and make the FBI as strong 
and as great as it must be to fulfill this agency's multiple 
and critical missions of protecting the United States against 
crime, international terrorism, and foreign clandestine 
intelligence activity, within constitutional and statutory 
boundaries.
    Shortly after the Committee initiated oversight hearings 
and had confirmed the new Director of the FBI, the Nation 
suffered the terrorist attacks of September 11, 2001, the most 
serious attacks on these shores since Pearl Harbor. While it is 
impossible to say what could have been done to stop these 
attacks from occurring, it is certainly possible in hindsight 
to say that the FBI, and therefore the Nation, would have 
benefitted from earlier close scrutiny by this Committee of the 
problems the agency faced, particularly as those problems 
affected the Foreign Intelligence Surveillance Act (``FISA'') 
process. Such oversight might have led to corrective actions, 
as that is an important purpose of oversight.
    In the immediate aftermath of the attacks, the Congress 
and, in particular, the Senate Judiciary Committee responded to 
demands by the Department of Justice (DOJ) and the FBI for 
greater powers to meet the security challenges posed by 
international terrorism. We worked together to craft the USA 
PATRIOT Act to provide such powers. With those enhanced powers 
comes an increased potential for abuse and the necessity of 
enhanced congressional oversight.
    Our oversight has been multi-faceted. We have held public 
hearings, conducted informal briefings, convened closed 
hearings on matters of a classified nature, and posed written 
questions in letters in connection with hearings to the DOJ and 
FBI.\1\ Although our oversight has focused primarily on the 
FBI, the Attorney General and the DOJ have ultimate 
responsibility for the performance of the FBI. Without both 
accountability and support on the part of the Attorney General 
and senior officials of the DOJ, the FBI cannot make necessary 
improvements or garner the resources to implement reforms.
---------------------------------------------------------------------------
    \1\ This report is limited to non-classified information and has 
been submitted to the Department of Justice and FBI for a security 
review prior to its release and they have agreed that it contains no 
classified information.
---------------------------------------------------------------------------
    At times, the DOJ and FBI have been cooperative in our 
oversight efforts. Unfortunately, however, at times the DOJ and 
FBI have either delayed answering or refused to answer fully 
legitimate oversight questions. Such reticence only further 
underscores the need for continued aggressive congressional 
oversight. Our constitutional system of checks and balances and 
our vital national security concerns demand no less. In the 
future, we urge the DOJ and FBI to embrace, rather than resist, 
the healthy scrutiny that legitimate congressional oversight 
brings.
    One particular focus of our oversight efforts has been the 
Foreign Intelligence Surveillance Act (FISA). This report is 
focused on our FISA oversight for three reasons. First, the 
FISA is the law governing the exercise of the DOJ's and FBI's 
surveillance powers inside the United States to collect foreign 
intelligence information in the fight against terrorism and, as 
such, is vitally important to our national security. Second, 
the concerns revealed by our FISA oversight highlight the more 
systemic problems facing the FBI and the importance of close 
congressional oversight and scrutiny in helping to provide the 
resources and attention to correct such problems before they 
worsen. Third, members of this Committee led the effort to 
amend key provisions of the FISA in the USA PATRIOT Act, and 
the sunset or termination of those amendments in four years 
makes it imperative that the Committee carefully monitor how 
the FISA changes are being implemented.
    This report is in no way intended to be a comprehensive 
study of what did, or did not, ``go wrong'' before the 9/11 
attacks. That important work was commenced by the Joint 
Intelligence Committee in the 107th Congress and will be 
continued by the National Commission on Terrorist Attacks (the 
``9/11 Commission'') established by an act of Congress at the 
end of the last session. The focus of this report is different 
than these other important inquiries. We have not attempted to 
analyze each and every piece of intelligence or the performance 
of each and every member of the Intelligence Community prior to 
the 9/11 attacks. Nor have we limited our inquiry to matters 
relating only to the 9/11 attacks. Rather, we have attempted, 
based upon an array of oversight activities related to the 
performance of the FBI over an extended period of time, to 
highlight broader and more systemic problems within the DOJ and 
FBI and to ascertain whether these systemic shortcomings played 
a role in the implementation of the FISA prior to the 9/11 
attacks.
    The FISA provides a statutory framework for electronic and 
other forms of surveillance in the context of foreign 
intelligence gathering. These types of investigations give rise 
to a tension between the government's legitimate national 
security interests, on the one hand, and, on the other hand, 
constitutional safeguards against unreasonable government 
searches and seizures and excessive government intrusion into 
the exercise of free speech, associational, and privacy rights. 
Congress, through legislation, has sought to strike a delicate 
balance between national security and constitutionally 
protected interests in this sensitive arena.
    The oversight review this Committee has conducted during 
the 107th Congress has uncovered a number of problems in the 
FISA process: a misunderstanding of the rules governing the 
application procedure, varying interpretations of the law among 
key participants, and a break-down of communication among all 
those involved in the FISA application process. Most disturbing 
is the lack of accountability that has permeated the entire 
application procedure.
    Our FISA oversight--especially oversight dealing with the 
time leading up to the 9/11 attacks--has reinforced the 
conclusion that the FBI must improve in the most basic aspects 
of its operations. Following is a list of our most important 
conclusions:
     FBI Headquarters did not properly support the 
efforts of its field offices in foreign intelligence matters. 
The role of FBI Headquarters in national security 
investigations is to ``add value'' in two ways: by applying 
legal and practical expertise in the processing of FISA 
surveillance applications and by integrating relevant 
information from all available intelligence sources to evaluate 
the significance of particular information and to supplement 
information from the field. In short, Headquarters' role is to 
know the law and ``connect the dots'' from multiple sources 
both inside and outside the FBI. The FBI failed in this role 
before the 9/11 attacks. In fact, the bureaucratic hurdles 
erected by Headquarters (and DOJ) not only hindered 
investigations but contributed to inaccurate information being 
presented to the FISA Court, eroding the trust in the FBI of 
the special court that is key to the government's enforcement 
efforts in national security investigations.
     Key FBI agents and officials were inadequately 
trained in important aspects of not only FISA, but also 
fundamental aspects of criminal law.
     In the time leading up to the 9/11 attacks, the 
FBI and DOJ had not devoted sufficient resources to 
implementing the FISA, so that long delays both crippled 
enforcement efforts and demoralized line agents.
     The secrecy of individual FISA cases is certainly 
necessary, but this secrecy has been extended to the most basic 
legal and procedural aspects of the FISA, which should not be 
secret. This unnecessary secrecy contributed to the 
deficiencies that have hamstrung the implementation of the 
FISA. Much more information, including all unclassified 
opinions and operating rules of the FISA Court and Court of 
Review, should be made public and/or provided to the Congress.
     The FBI's failure to analyze and disseminate 
properly the intelligence data in the agency's possession 
rendered useless important work of some of its best field 
agents. In short, the FBI did not know what it knew. While we 
are encouraged by the steps commenced by Director Mueller to 
address this problem, there is more work to be done.
     The FBI's information technology was, and remains, 
inadequate to meet the challenges facing the FBI, and FBI 
personnel are not adequately trained to use the technology that 
they do possess. We appreciate that Director Mueller is trying 
to address this endemic problem, but past performance indicates 
that close congressional scrutiny is necessary to ensure that 
improvements continue to be made swiftly and effectively.
     A deep-rooted culture of ignoring problems and 
discouraging employees from criticizing the FBI contributes to 
the FBI's repetition of its past mistakes in the foreign 
intelligence field. There has been little or no progress at the 
FBI in addressing this culture.
    It is important to note that our oversight and conclusions 
in no way reflect on the fine and important work being done by 
the vast majority of line agents in the FBI. We want to commend 
the hard-working special agents and supervisory agents in the 
Phoenix and Minneapolis field offices for their dedication, 
professionalism, and initiative in serving the American people 
in the finest traditions of the FBI and law enforcement. 
Indeed, one of our most basic conclusions, both with respect to 
FISA and the FBI generally, is that institutional and 
management flaws prevent the FBI's field agents from operating 
to their full potential.
    Although the DOJ and FBI have acknowledged shortcomings in 
some of these areas and begun efforts to reform, we cannot 
stress strongly enough the urgency of this situation. The pace 
of improvement and reform must quicken.
    We are issuing this interim public report now so that this 
information is available to the American people and Members of 
Congress as we evaluate the implementation of the USA PATRIOT 
Act amendments to the FISA and additional pending legislation, 
including the FBI Reform Act. We also note that many of the 
same concerns set forth in this report have already led to 
legislative reforms. Included in these was the bipartisan 
proposal, first made in the Senate, to establish a cabinet 
level Department of Homeland Security, a proposal that is 
already a legislative reality. Our oversight also helped us to 
craft and pass, for the first time in 20 years, the 21st 
Century Department of Justice appropriations Authorization Act, 
P.L. 107-296, designed to support important reforms at the 
Department of Justice and the FBI. In addition, concerns raised 
by this Committee about the need for training on basic legal 
concepts, such as probable cause, spurred the FBI to issue an 
electronic communication on September 16, 2002, from the FBI's 
Office of the General Counsel to all field offices explaining 
this critical legal standard.
    Additionally, this report may assist the senior leadership 
of the DOJ and FBI, and other persons responsible for ensuring 
that FISA is used properly in defending against international 
terrorists.

          II. OVERVIEW OF FBI OVERSIGHT IN THE 107TH CONGRESS

A. The Purposes of FBI Oversight: Enhancing Both Security and Liberty

    Beginning in the summer of 2001 and continuing through the 
remainder of the 107th Congress, the Senate Judiciary Committee 
conducted intensive, bipartisan oversight of the FBI. The 
purpose of this comprehensive oversight effort was to reverse 
the trend of the prior decades, during which the FBI operated 
with only sporadic congressional oversight focused on its 
handling of specific incidents, such as the standoffs at Ruby 
Ridge, Idaho, or Waco, Texas, and the handling of the Peter Lee 
and Wen Ho Lee espionage cases. It was the view of both 
Democrats and Republicans on the Judiciary Committee that the 
FBI would benefit from a more hands-on approach and that 
congressional oversight would help identify problems within the 
FBI as a first step to ensuring that appropriate resources and 
attention were focused on constructive solutions. In short, the 
goal of this oversight was to ensure that the FBI would perform 
at its full potential. Strong and bipartisan oversight, while 
at times potentially embarrassing to any law enforcement 
agency, strengthens an agency in the long run. It helps inform 
the crafting of legislation to improve an agency's performance, 
and it casts light on both successes and problems in order to 
spur agencies to institute administrative reforms of their own 
accord. In short, the primary goal of FBI oversight is to help 
the FBI be as great and effective as it can be.
    So, too, is oversight important in order to protect the 
basic liberties upon which our country is founded. Past 
oversight efforts, such as the Church Committee in the 1970s, 
have exposed abuses by law enforcement agencies such as the 
FBI. It is no coincidence that these abuses have come after 
extended periods when the public and the Congress did not 
diligently monitor the FBI's activities. Even when agencies 
such as the FBI operate with the best of intentions (such as 
protecting our nation from foreign threats such as Communism in 
the 1950s and 1960s and fighting terrorism now), if left 
unchecked, the immense power wielded by such government 
agencies can lead them astray. Public scrutiny and debate 
regarding the actions of government agencies as powerful as the 
DOJ and the FBI are critical to explaining actions to the 
citizens to whom these agencies are ultimately accountable. In 
this way, congressional oversight plays a critical role in our 
democracy.
    The importance of the dual goals of congressional 
oversight--improving FBI performance and protecting liberty--
have been driven home since the 9/11 attacks. Even prior to the 
terrorist attacks, the Judiciary Committee had begun oversight 
and held hearings that had exposed several longstanding 
problems at the FBI, such as the double standard in discipline 
between line agents and senior executive officials. The 9/11 
attacks on our country have forever redefined the stakes riding 
upon the FBI's success in fulfilling its mission to fight 
terrorism. It is no luxury that the FBI perform at its peak 
level--it is now a necessity.
    At the time, the increased powers granted to the FBI and 
other law enforcement agencies after 9/11 attacks, in the USA 
PATRIOT Act, which Members of this Committee helped to craft, 
and through the actions of the Attorney General and the 
President, have made it more important than ever that Congress 
fulfills its role in protecting the liberty of our nation. 
Everyone would agree that winning the war on terrorism would be 
a hollow victory indeed if it came only at the cost of the very 
liberties we are fighting to preserve. By carefully overseeing 
the DOJ's and FBI's use of its broad powers, Congress can help 
to ensure that the false choice between fundamental liberty and 
basic security is one that our government never takes upon 
itself to make. For these reasons, in the post-9/11 world, FBI 
oversight has been, and will continue to be, more important 
than ever.

B. Judiciary Committee FBI Oversight Activities in the 107th Congress

            1. Full Committee FBI Oversight Hearings

    Beginning in July 2001, after Senator Leahy became 
chairman, the Senate Judiciary Committee held hearings that 
focused on certain longstanding and systemic problems at the 
FBI. These included hearings concerning: (1) the FBI's 
antiquated computer systems and its belated upgrade program; 
(2) the FBI's ``circle the wagons'' mentality, wherein those 
who report flaws in the FBI are punished for their frankness; 
and (3) the FBI's flawed internal disciplinary procedures and 
``double standard'' in discipline, in which line FBI agents can 
be seriously punished for the same misconduct that only earns 
senior FBI executives a slap on the wrist. Such flaws were 
exemplified by the disciplinary actions taken (and not taken) 
by the FBI and DOJ after the incidents at Waco, Texas, and Ruby 
Ridge, Idaho, and the apparent adverse career effects 
experienced by FBI agents participating in those investigations 
who answered the duty call to police their own.
    The Committee's pre-9/11 FBI oversight efforts culminated 
with the confirmation hearings of the new FBI Director, Robert 
S. Mueller, III. Beginning on July 30, 2001, the Committee held 
two days of extensive hearings on Director Mueller's 
confirmation and closely questioned Director Mueller about the 
need to correct the information technology and other problems 
within the FBI. In conducting these hearings, Committee Members 
understood the critical role of the FBI Director in protecting 
our country from criminal, terrorist, and clandestine 
intelligence activities and recognized the many challenges 
facing the new Director.
    Director Mueller was questioned very closely on the issue 
of congressional oversight, engaging in four rounds of 
questioning over two days. In response to one of Senator 
Specter's early questions, Director Mueller stated ``I 
understand, firmly believe in the right and the power of 
Congress to engage in its oversight function. It is not only a 
right, but it is a duty.'' \2\
---------------------------------------------------------------------------
    \2\ Hearing before the Senate Committee on the Judiciary, 
``Confirmation Hearing on the Nomination of Robert S. Mueller, III to 
be Director of the Federal Bureau of Investigation,'' 107th Congress, 
2nd Session 69 (July 30-31, 2001) (emphasis added).
---------------------------------------------------------------------------
    In response to a later question, Director Mueller stated:

          I absolutely agree that Congress is entitled to 
        oversight of the ongoing responsibilities of the FBI 
        and the Department of Justice. You mentioned at the 
        outset the problems that you have had over a period of 
        getting documents in ongoing investigations. And as I 
        stated before and I'll state again, I think it is 
        incumbent upon the FBI and the Department of Justice to 
        attempt to accommodate every request from Congress 
        swiftly and, where it cannot accommodate or believes 
        that there are confidential issues that have to be 
        raised, to bring to your attention and articulate with 
        some specificity, not just the fact that there's 
        ongoing investigation, not just the fact that there is 
        an ongoing or an upcoming trial, but with specificity 
        why producing the documents would interfere with either 
        that trial or for some other reason or we believed 
        covered by some issue of confidentiality.\3\
---------------------------------------------------------------------------
    \3\ Id., at p. 89.

    Incoming Director Mueller, at that time, frankly 
acknowledged that there was room for improvement in these areas 
at the FBI and vowed to cooperate with efforts to conduct 
congressional oversight of the FBI in the future.
    Director Mueller assumed his duties on September 4, 2001, 
just one week before the terrorist attacks. After the terrorist 
attacks, there was a brief break from FBI oversight, as the 
Members of the Judiciary Committee worked with the White House 
to craft and pass the USA PATRIOT Act. In that new law, the 
Congress responded to the DOJ's and FBI's demands for increased 
powers but granted many of those powers only on a temporary 
basis, making them subject to termination at the end of 2005. 
The ``sunset'' of the increased FISA surveillance powers 
reflected the promise that the Congress would conduct vigilant 
oversight to evaluate the FBI's performance both before and 
after 9/11. Only in that way could Congress and the public be 
assured that the DOJ and FBI needed the increased powers in the 
first place, and were effectively and properly using these new 
powers to warrant extension of the sunset.
    Passage of the USA PATRIOT Act did not solve the 
longstanding and acknowledged problems at the FBI. Rather, the 
9/11 attacks created a new imperative to remedy systemic 
shortcomings at the FBI. Review of the FBI's pre-9/11 
performance is not conducted to assess blame. The blame lies 
with the terrorists. Rather, such review is conducted to help 
the FBI prevent future attacks by not repeating the mistakes of 
the past. Thus, the enactment of the USA PATRIOT Act did not 
obviate the need to oversee the FBI; it augmented that need.
    Within weeks of passage of the USA PATRIOT Act, the Senate 
Judiciary committee held hearings with Senior DOJ officials on 
implementation of the new law and other steps that were being 
taken by the Administration to combat terrorism. The Committee 
heard testimony on November 28, 2001, from Assistant Attorney 
General Michael Chertoff and, on December 6, 2001, from 
Attorney General Ashcroft. In response to written questions 
submitted in connection with the latter hearing, DOJ confirmed 
that shortly after the USA PATRIOT Act had been signed by the 
President on October 26, 2001, DOJ began to press the congress 
for additional changes to relax FISA requirements, including 
expansion of the definition of ``foreign power'' to include 
individual, non-U.S. persons engaged in international 
terrorism. DOJ explained that this proposal was to address the 
threat posed by a single foreign terrorist without an obvious 
tie to another person, group, or state overseas. Yet, when 
asked to ``provide this Committee with information about 
specific cases that support your claim to need such broad new 
powers,'' DOJ was silent in its response and named no specific 
cases showing such a need, nor did it say that it could provide 
such specificity even in a classified setting.\4\ In short, DOJ 
sought more power but was neither unwilling or unable to 
provide an example as to why.
---------------------------------------------------------------------------
    \4\ Transcript, pp. 31-32 (emphasis added).
---------------------------------------------------------------------------
    Beginning in March 2002, the Committee convened another 
series of hearings monitoring the FBI's performance and its 
efforts to reform itself. On March 21, 2002, the Judiciary 
Committee held a hearing on the DOJ Inspector General's report 
on the belated production of documents in the Oklahoma City 
bombing case. That hearing highlighted longstanding in the 
FBI;s information technology and training regarding the use of, 
and access to, records. It also highlighted the persistence of 
a ``head-in-the-sand' approach to problem, where shortcomings 
are ignored rather than addressed and the reporting of problems 
is discouraged rather than encouraged.
    On April 9, 2002, the Committee held a hearing on the 
Webster Commission's report regarding former FBI Agent and 
Russian spy Robert Hansen's activities. That hearing exposed a 
deep-seated cultural bias against the importance of security at 
the FBI. One important finding brought to light at that hearing 
was the highly inappropriate handling of sensitive FISA 
materials in the time after the 9/11 attacks. In short, massive 
amounts of the most sensitive and highly classified materials 
in the FBI's possession were made available on an unrestricted 
basis to nearly all FBI employees. Even more disturbing, this 
action was taken without proper consultation with the FBI's own 
security officials.
    On May 8, 2002, the Judiciary Committee held an oversight 
hearing at which FBI Director Mueller and Deputy Attorney 
General Thompson testified regarding their efforts to reshape 
the FBI and the DOJ to address the threat of terrorism. It was 
at this hearing that the so-called ``Phoenix Memorandum'' was 
publicly discussed for the first time. Director Mueller 
explained in response to one question:

          [T]he Phoenix electronic communication contains 
        suggestions from the agent as to steps that should be 
        taken, or he suggested taking to look at other flight 
        schools. . . . He made a recommendation that we 
        initiate a program to look at flight schools. That was 
        received at Headquarters. It was not acted on by 
        September 11. I should say in passing that even if we 
        had followed those suggestions at that time, it would 
        not, given what we know since September 11, have 
        enabled us to prevent the attacks of September 11. But 
        in the same breath I should say that what we learned 
        from instances such as that is much about the 
        weaknesses of our approach to counterterrorism prior to 
        September 11.\5\
---------------------------------------------------------------------------
    \5\ Transcript, pp. 31-32 (emphasis added).

    In addition, Director Mueller first discussed at this 
hearing that FBI agents in Minnesota had been frustrated by 
Headquarters officials in obtaining a FISA warrant in the 
Zacharias Moussaoui investigation before the 9/11 attacks, and 
that one agent seeking the warrant had said that he was worried 
that Moussaoui would hijack an airplane and fly it into the 
World Trade center.\6\
---------------------------------------------------------------------------
    \6\ Transcript, May 8, 2002, pp. 61-62.
---------------------------------------------------------------------------
    On June 6, 2002, the Committee held another hearing at 
which Director Mueller testified further regarding the 
restructuring underway at the FBI. Significantly, that hearing 
also provided the first public forum for FBI Chief Division 
Counsel Coleen Rowley of the Minneapolis Division to voice 
constructive criticism about the FBI. Her criticisms, the 
subject of a lengthy letter sent to Director Mueller on May 21, 
2002, which was also sent to Members of Congress, echoed many 
of the issues raised in this Committee's oversight hearings. 
Special Agent Rowley testified about ``careerism'' at the FBI 
and a mentality at FBI Headquarters that led Headquarters 
agents to more often stand in the way of field agents than to 
support them. She cited the Moussaoui case as only the most 
high profile instance of such an attitude. Special Agent Rowley 
also described a FBI computer system that prevented agents from 
accessing their own records and conducting even the most basic 
types of searches. In short, Special Agent Rowley's testimony 
reemphasized the importance of addressing the FBI's 
longstanding problems, not hiding from them, in the post-9/11 
era.
    As the head of the Department of Justice as a whole, the 
Attorney General has ultimate responsibility for the 
performance of the FBI. On July 25, 2002, the Judiciary 
Committee held an oversight hearing at which Attorney General 
Ashcroft testified. The Committee and the Attorney General 
engaged in a dialogue regarding the performance of the DOJ on 
many areas of interest, including the fight against terrorism. 
Among other things discussed at this hearing were the Attorney 
General's plans to implement the Terrorism Information and 
Prevention System (TIPS), which would have enlisted private 
citizens to monitor ``suspicious'' activities of other 
Americans. After questioning on the subject, Attorney General 
Ashcroft testified that he would seek restrictions on whether 
and how information generated through TIPS would be retained. 
Later, as part of the Homeland Security legislation, TIPS was 
prohibited altogether.
    On September 10, 2002, the Committee held an oversight 
hearing specifically focusing on issues related to the FISA. 
Leading experts from the DOJ, from academia, and from the civil 
liberties and national security legal communities participated 
in a rare public debate on the FISA. That hearing brought 
before the public an important discussion about the reaches of 
domestic surveillance using FISA and the meaning of the USA 
PATRIOT Act. In addition, through the efforts of the Judiciary 
Committee, the public learned that this same debate was already 
raging in private. The FISA Court had rejected the DOJ's 
proposed procedure for implementing the USA PATRIOT Act, and 
the FISA Court of Review was hearing its first appeal in its 
20-year-plus existence to address important issues regarding 
these USA PATRIOT Act amendments to the FISA. The Committee 
requested that the FISA Court of Review publicly release an 
unclassified version of the transcript of the oral argument and 
its opinion, which the Court agreed to do and furnished to the 
Committee. Thus, only through the bipartisan oversight work of 
the Judiciary Committee was the public first informed of the 
landmark legal opinion interpreting the FISA and the USA 
PATRIOT Act amendments overruling the FISC's position, 
accepting some of the DOJ's legal arguments, but rejecting 
others.
    These are only the full Judiciary Committee hearings 
related to FBI oversight issues in the 107th Congress. The 
Judiciary Committee's subcommittees also convened numerous, 
bipartisan oversight hearings relating to the FBI's performance 
both before and after 9/11.

            2. Other Oversight Activities: Classified Hearings, Written 
                    Requests, and Informal Briefings

    The Judiciary Committee and its Members have fulfilled 
their oversight responsibilities through methods other than 
public hearings as well. Particularly with respect to FISA 
oversight, Members of the Judiciary Committee and its staff 
conducted a series of closed hearings and briefings, and made 
numerous written inquiries on the issues surrounding both the 
application for a FISA search warrant of accused international 
terrorist Zacharias Moussaoui's personal property before the 9/
11 attacks and the post-9/11 implementation of the USA PATRIOT 
Act. As with all of our FBI oversight, these inquiries were 
intended to review the performance of the FBI and DOJ in order 
to improve that performance in the future.
    The Judiciary Committee and its Members also exercised 
their oversight responsibilities over the DOJ and the FBI 
implementation of the FISA through written inquiries, written 
hearing questions, and other informal requests. These efforts 
included letters to the Attorney General and the FBI Director 
from Senator Leahy on November 1, 2001, and May 23, 2002, and 
from Senators Leahy, Specter, and Grassley on June 4, June 13, 
July 3, and July 31, 2002. In addition, these Members sent 
letters requesting information from the FISA Court and FISA 
Court of Review on July 16, July 31, and September 9, 2002. 
Such oversight efforts are important on a day-to-day basis 
because they are often the most efficient means of monitoring 
the activities of the FBI and DOJ.

            3. DOJ and FBI Non-Responsiveness

    Particularly with respect to our FISA oversight efforts, we 
are disappointed with the non-responsiveness of the DOJ and 
FBI. Although the FBI and the DOJ have sometimes cooperated 
with our oversight efforts, often, legitimate requests went 
unanswered or the DOJ answers were delayed for so long or were 
so incomplete that they were of minimal use in the oversight 
efforts of this Committee. The difficulty in obtaining 
responses from DOJ prompted Senator Spector to ask the Attorney 
General directly, ``how do we communicate with you and are you 
really too busy to respond?'' \7\
---------------------------------------------------------------------------
    \7\ Hearing of the Senate Judiciary Committee: Oversight of the 
Department of Justice, July 25, 2002, Transcript, p. 86.
---------------------------------------------------------------------------
    Two clear examples of such reticence on the part of the DOJ 
and the FBI relate directly to our FISA oversight efforts. 
First, Chairman Sensenbrenner and Ranking Member Conyers of the 
House Judiciary Committee issued a set of 50 questions on June 
13, 2002, in order to fulfill the House Judiciary Committee's 
oversight responsibilities to monitor the implementation of the 
USA PATRIOT Act, including its amendments to FISA. In 
connection with the July 25, 2002, oversight hearing with the 
Attorney General, Chairman Leahy posed the same questions to 
the Department on behalf of the Senate Judiciary Committee. 
Unfortunately, the Department refused to respond to the 
Judiciary Committee with answers to many of these legitimate 
questions. Indeed, it was only after Chairman Sensenbrenner 
publicly stated that he would subpoena the material that the 
Department provided any response at all to many of the 
questions posed, and to date some questions remain unanswered. 
Senator Leahy posed a total of 93 questions, including the 50 
questions posed by the leadership of the House Judiciary 
Committee. While the DOJ responded to 56 of those questions in 
a series of letters on July 29, August 26, and December 23, 
2002, thirty-seven questions remain unanswered. In addition, 
the DOJ attempted to respond to some of these requests by 
providing information not to the Judiciary Committees, which 
had made the request, but to the Intelligence Committees. Such 
attempts at forum shopping by the Executive Branch are not a 
productive means of facilitating legitimate oversight.
    Second, the FBI and DOJ repeatedly refused to provide 
Members of the Judiciary Committee with a copy of the FISA 
Court's May 17, 2002, opinion rejecting the DOJ's proposed 
implementation of the USA PATRIOT Act's FISA amendments. This 
refusal was made despite the fact that the opinion, which was 
highly critical of aspects of the FBI's past performance on 
FISA warrants, was not classified and bore directly upon the 
meaning of provisions in the USA PARIOT Act authored by Members 
of the Judiciary Committee. Indeed, the Committee eventually 
had to obtain the opinion not from the DOJ but directly from 
the FISA Court, and it was only through these efforts that the 
public was first made aware of the important appeal being 
pursued by the DOJ and the legal positions taken by the 
Department on the FISA Amendments.\8\
---------------------------------------------------------------------------
    \8\ The Final Report, dated December 10, 2002, of the Joint Inquiry 
of the House and Senate Intelligence Committees (hereafter ``Final 
Report'') noted a related issue of ``excessive classification'' and 
urged the Attorney General, and other Federal offices, to report to the 
Intelligence Committees on ``a new and more realistic approach'' to 
designating sensitive and classified information and ``include 
proposals to protect against the use of the classification process as a 
shield to protect agency self-interest.'' (Recommendations, p. 13).
---------------------------------------------------------------------------
    In both of these instances, and in others, the DOJ and FBI 
have made exercise of our oversight responsibilities 
difficult.\9\ It is our sincere hope that the FBI and DOJ will 
reconsider their approach to congressional oversight in the 
future. The Congress and the American people deserve to know 
that their government is doing. Certainly, the Department 
should not expect Congress to be a ``rubber stamp'' on its 
requests for new or expanded powers if requests for information 
about how the Department has handled its existing powers have 
been either ignored or summarily paid lip service.
---------------------------------------------------------------------------
    \9\ Another example in which DOJ and FBI have resisted responding 
to the Committee's questions related to press reports that the Attorney 
General, on September 10, 2001, rejected the FBI's request for an 
additional $58 million increase in counterterrorism programs. In order 
to assess the accuracy of these reports, Senator Leahy requested 
information in written questions in connection with the July 25, 2002 
oversight hearing, asking, in pertinent part: ``The FBI had previously 
submitted a request to the Department for increases for (a) language 
services ($8,852,000); (b) field counterterrorism investigations 
($28,066,000); (c) intelligence production (Field and HQ IRSs) 
($20,894,000); (d) security ($137,566,000); (e) counterintelligence 
initiative ($30,355,000); and (f) secure telephone equipment 
($6,501,000). Did the September 10th, request to OMB include any of 
these increases that the FBI had requested and, if so, which ones?'' 
DOJ has not provided answers to this or related questions.
---------------------------------------------------------------------------

III. FISA OVERSIGHT: A CASE STUDY OF THE SYSTEMIC PROBLEMS PLAGUING THE 
                                  FBI

A. Overview and Conclusions

    The Judiciary Committee held a series of classified 
briefings for the purpose of reviewing the processing of FISA 
applications before the terrorist attacks on September 11, 
2001. The Judiciary Committee sought to determine whether any 
problems at the FBI in the processing of FISA applications 
contributed to intelligence failures before September 11th; to 
evaluate the implementation of the changes to FISA enacted 
pursuant to the USA PATRIOT Act; and to determine whether 
additional legislation is necessary to improve this process and 
facilitate congressional oversight and public confidence in the 
FISA and the FBI.
    We specifically sought to determine whether the systemic 
problems uncovered in our FBI oversight hearings commenced in 
the summer of 2001 contributed to any shortcomings that may 
have affected the FBI counterterrorism efforts prior to the 9/
11 attacks. Not surprisingly, we conclude that they did. 
Indeed, in many ways the DOJ and FBI's shortcomings in 
implementing the FISA--including but not limited to the time 
period before the 9/11 attacks--present a compelling case for 
both comprehensive FBI reform and close congressional oversight 
and scrutiny of the justification for any further relaxation of 
FISA requirements. FISA applications are of the utmost 
importance to our national security. Our review suggests that 
the same fundamental problems within the FBI that have plagued 
the agency in other contexts also prevented both the FBI and 
DOJ from aggressively pursuing FISA applications in the period 
before the 9/11 attacks. Such problems caused the submission of 
key FISA applications to the FISA Court to have been 
significantly delayed or not made. More specifically, our 
concerns that the FBI and DOJ did not make effective use of 
FISA before making demands on the Congress for expanded FISA 
powers in the USA PATRIOT Act are bolstered by the following 
findings:
          (1) The FBI and Justice Department were setting too 
        high a standard to establish that there is ``probable 
        cause'' that a person may be an ``agent of a foreign 
        power'' and, therefore, may be subject to surveillance 
        pursuant to FISA;
          (2) FBI agents and key Headquarters officials were 
        not sufficiently trained to understand the meanings of 
        crucial legal terms and standards in the FISA process;
          (3) Prior problems between the FBI and the FISA Court 
        that resulted in the Court barring one FBI agent from 
        appearing before it for allegedly filing inaccurate 
        affidavits may have ``chilled'' the FBI and DOJ from 
        aggressively seeking FISA warrants (although there is 
        some contradictory information on this matter, we will 
        seek to do additional oversight on this question); \10\
---------------------------------------------------------------------------
    \10\ The Joint Inquiry's finding on this point is particularly apt: 
``During the summer of 2001, when the Intelligence Community was 
bracing for an imminent al-Qa'ida attack, difficulties with FBI 
applications for Foreign Intelligence Surveillance Act (FISA) 
surveillance and the FISA process led to a diminished level of coverage 
of suspected al-Qa'ida operatives in the United States. The effect of 
these difficulties was compounded by the perception that spread among 
FBI personnel at Headquarters and the field offices that the FISA 
process was lengthy and fraught with peril.'' (Final Report, Findings, 
p. 8).
---------------------------------------------------------------------------
          (4) FBI Headquarters fostered a culture that stifled 
        rather than supported aggressive and creative 
        investigative initiatives from agents in the field; and
          (5) The FBI's difficulties in properly analyzing and 
        disseminating information in its possession caused it 
        not to seek FISA warrants that it should have sought. 
        These difficulties are due to:
                  (a) a lack of proper resources dedicated to 
                intelligence analysis;
                  (b) a ``stove pipe'' mentality where crucial 
                intelligence is pigeonholed into a particular 
                unit and may not be shared with other units;
                  (c) High turnover of senior agents at FBI 
                Headquarters within critical counterterrorism 
                and foreign intelligence units;
                  (d) Outmoded information technology that 
                hinders access to, and dissemination of, 
                important intelligence; and
                  (e) A lack of training for FBI agents to know 
                how to use, and a lack of requirements that 
                they do use, the technology available to search 
                for and access relevant information.
    We have found that, in combination, all of these factors 
contributed to the intelligence failures at the FBI prior to 
the 9/11 attacks.
    We are also conscious of the extraordinary power FISA 
confers on the Executive branch. FISA contains safeguards, 
including judicial review by the FISA Court and certain limited 
reporting requirements to congressional intelligence 
committees, to ensure that this power is not abused. Such 
safeguards are no substitute, however, for the watchful eye of 
the public and the Judiciary Committees, which have broader 
oversight responsibilities for DOJ and the FBI. In addition to 
reviewing the effectiveness of the FBI's use of its FISA power, 
this Committee carries the important responsibility of checking 
that the FBI does not abuse its power to conduct surveillance 
within our borders. Increased congressional oversight is 
important in achieving that goal.
    From the outset, we note that our discussion will not 
address any of the specific facts of the case against Zacharias 
Moussaoui that we have reviewed in our closed inquiries. That 
case is still pending trial, and, no matter how it is resolved, 
this Committee is not the appropriate forum for adjudicating 
the allegations in that case. Any of the facts recited in this 
report that bear on the substance of the Moussaoui case are 
already in the public record. To the extent that this report 
contains information we received in closed sessions, that 
information bears on abstract, procedural issues, and not any 
substantive issues relating to any criminal or national 
security investigation or proceeding. This is an interim report 
of what we have discovered to date. We hope to and should 
continue this important oversight in the 108th Congress.

B. Allegations Raised by Special Agent Rowley's Letter

    The Judiciary Committee had initiated its FISA oversight 
inquiry several months before the revelations in the dramatic 
letter sent on May 21, 2002, to FBI Director Mueller by Special 
Agent Coleen Rowley. Indeed, it was this Committee's oversight 
about the FBI's counterintelligence operations before the 9/11 
attacks that in part helped motivate SA Rowley to write this 
letter to the Directory.\11\
---------------------------------------------------------------------------
    \11\ SA Rowley notes in the first paragraphs of the letter, ``I 
have deep concerns that a delicate and subtle shading/skewing of facts 
by you and others at the highest levels of FBI management has occurred 
and is occurring. * * * I base my concerns on * * * your congressional 
testimony and public comments.'' However, we wish to be clear that we 
do not believe that Director Mueller knowingly provided inaccurate or 
incomplete information to the Committee.
---------------------------------------------------------------------------
    The observations and critiques of the FBI's FISA process in 
this letter only corroborated problems that the Judiciary 
Committee was uncovering. In her letter, SA Rowley detailed the 
problems the Minneapolis agents had in dealing with FBI 
Headquarters in their unsuccessful attempts to seek a FISA 
warrant for the search of Moussaoui's lap top computer and 
other personal belongings. These attempts proved fruitless, and 
Moussaoui's computer and personal belongings were not searched 
until September 11th, 2001, when the Minneapolis agents were 
able to obtain a criminal search warrant after the attacks of 
that date. According to SA Rowley, with the exception of the 
fact of those attacks, the information presented in the warrant 
application establishing probable cause for the criminal search 
warrant was exactly the same as the facts that FBI Headquarters 
earlier had deemed inadequate to obtain a FISA search 
warrant.\12\
---------------------------------------------------------------------------
    \12\ Letter from Special Agent Coleen Rowley to FBI Director Robert 
S. Mueller, III, dated May 21, 2002, p. 3 (Rowley Letter). All 
citations to SA Rowley's letter are from a version of the letter that 
was released to the Judiciary Committee on June 6, 2002, by the DOJ and 
with classified or otherwise protected information redacted. This 
letter is attached as Exhibit A.
---------------------------------------------------------------------------
    In her letter, SA Rowley raised many issued concerning the 
efforts by the agents assigned to the Minneapolis Field Office 
to obtain a FISA search warrant for Moussaoui's personal 
belongings. Two of the issues she raised were notable. First, 
SA Rowley corroborated that many of the cultural and management 
problems within the FBI (including what she referred to as 
``careerism'') have significant effects on the FBI's law 
enforcement and intelligence gathering activities. This led to 
a perception among the Minneapolis agents that FBI Headquarters 
personnel had frustrated their efforts to obtain a FISA warrant 
by raising unnecessary objections to the information submitted 
by Minneapolis, modifying and removing that information, and 
limiting the efforts by the Minneapolis Field Office to contact 
other agencies for relevant information to bolster the probable 
cause for the warrant. These concerns echoed criticism that 
this Committee has heard in other contexts about the culture of 
FBI management and the effect of the bureaucracy in stifling 
initiative by FBI agents in the field.
    In making this point, SA Rowley provided specific examples 
of the frustrating delays and roadblocks erected by 
Headquarters agents in the Moussaoui investigation:

          For example at one point, the Supervisory Special 
        Agent at FBIHQ posited that the French information 
        could be worthless because it only identified Zacharias 
        Moussaoui by name and he, the SSA, didn't know how many 
        people by that name existed in France. A Minneapolis 
        agent attempted to surmount that problem by quickly 
        phoning the FBI's Legal Attache (Legat) in Paris, 
        France, so that a check could be made of the French 
        telephone directories. Although the Legat in France did 
        not have access to all of the French telephone 
        directories, he was able to quickly ascertain that 
        there was only one listed on the Paris directory. It is 
        not known if this sufficiently answered the question, 
        for the SSA continued to find new reasons to stall.\13\
---------------------------------------------------------------------------
    \13\ Rowley Letter, p. 6, fn. 6.
---------------------------------------------------------------------------
          Eventually, on August 28, 2001, after a series of e-
        mails between Minneapolis and FBIHQ, which suggest that 
        the FBIHQ SSA deliberately further undercut the FISA 
        effort by not adding the further intelligence 
        information which he had promised to add that supported 
        Moussaoui's foreign power connection and making several 
        changes in the wording of the information that had been 
        provided by the Minneapolis agent, the Minneapolis 
        agents were notified that the NSLU Unit Chief did not 
        think there was sufficient evidence of Moussaoui's 
        connection to a foreign power. Minneapolis personnel 
        are, to this date, unaware of the specifics of the 
        verbal presentations by the FBIHQ SSA to NSLU or 
        whether anyone in NSLU ever was afforded the 
        opportunity to actually read for him/herself all of the 
        information on Moussaoui that had been gathered by the 
        Minneapolis Division and [redacted; classified]. 
        Obviously[,] verbal presentations are far more 
        susceptible to mis-characterization and error.\14\
---------------------------------------------------------------------------
    \14\ Rowley Letter, p. 7.

    Even after the attacks had commenced, FBI Headquarters 
discouraged Minneapolis from securing a criminal search warrant 
to examine Moussaoui's belongs, dismissing the coordinated 
attack on the World Trade Center and Pentagon as a 
coincidence.\15\
---------------------------------------------------------------------------
    \15\ Rowley Letter, p. 4.
---------------------------------------------------------------------------
    Second, SA Rowley's letter highlighted the issue of the 
apparent lack of understanding of the applicable legal 
standards for establishing ``probable cause'' and the requisite 
statutory FISA requirements by FBI personnel in the Minneapolis 
Division and at FBI Headquarters. This issue will be discussed 
in more detail below.

C. Results of Investigation

            1. The Mishandling of the Moussaoui FISA Application

    Apart from SA Rowley's letter and her public testimony, the 
Judiciary Committee and its staff found additional 
corroboration that many of her concerns about the handling of 
the Moussaoui FISA application for a search warrant were 
justified.
    At the outset, it is helpful to review how Headquarters 
``adds value'' to field offices in national security 
investigations using FISA surveillance tools. Headquarters has 
three functions in such investigations. The first function is 
the ministerial function of actually assembling the FISA 
application in the proper format for review by the DOJ's Office 
of Intelligence Policy and Review OIPR and the FISA Court. The 
other two functions are more substantive and add ``value'' to 
the FISA application. The first substantive function is to 
assist the field by being experts on the legal aspects of FISA, 
and to provide guidance to the field as to the information 
needed to meet the statutory requirements of FISA. The second 
function is to supplement the information from the field in 
order to establish or strengthen the showing that there is 
``probable cause'' that the FISA target was an ``agent of a 
foreign power,'' by integrating additional relevant 
intelligence information both from within the FBI and from 
other intelligence or law enforcement organizations outside the 
FBI. It is with respect to the latter, substantive functions 
that Headquarters fell short in the Moussaoui FISA application 
and, as a consequence, never got to the first, more 
ministerial, function.
    Our investigation revealed that the following events 
occurred in connection with this FISA application. We 
discovered that the Supervisory Special Agent (SSA) involved in 
reviewing the Moussaoui FISA request was assigned to the 
Radical Fundamentalist Unit (RFU) of the International 
Terrorism Operations Section of the FBI's Counterterrorism 
Division. The Unit Chief of the RFU was the SSA's immediate 
supervisor. When the Minneapolis Division submitted its 
application for the FISA search warrant for Moussaoui's laptop 
computer and other property, the SSA was assigned the 
responsibility of processing the application for approval. 
Minneapolis submitted its application for the FISA warrant in 
the form of a 26-page Electronic Communication (EC), which 
contained all of the information that the Minneapolis agents 
had collected to establish that Moussaoui was an agent of a 
foreign power at the time. The SSA's responsibilities included 
integrating this information submitted by the Minneapolis 
division with information from other sources that the 
Minneapolis agents were not privy to, in order to establish 
there was probably cause that Moussaoui was an agent of a 
foreign power. In performing this fairly straightforward task, 
FBI Headquarters personnel failed miserably in at least two 
ways.
    First, most surprisingly, the SSA never presented the 
information submitted by Minneapolis and from other sources in 
its written, original format to any of the FBI's attorneys in 
the National Security Law Unit (NSLU). The Minneapolis agents 
has submitted their information in the 26-page EC and a 
subsequent letterhead memorandum (LHM), but neither was shown 
to the attorneys. Instead, the SSA relied on short, verbal 
briefings to the attorneys, who opined that based on the 
information provided verbally by the SSA they could not 
establish that there was probably cause that Moussaoui was an 
agent of a foreign power. Each of the attorneys in the NSLU 
stated they did not receive documents on the Moussaoui FISA, 
but instead only received a short, verbal briefing from the 
SSA. As SA Rowley noted, however, ``verbal presentations are 
far more susceptible to mis-characterization and error.''
    The failure of the SSA to provide the 26-page Minneapolis 
EC and the LHM to the attorneys, and the failure of the 
attorneys to review those documents, meant that the 
consideration by Headquarters officials of the evidence 
developed by the Minneapolis agents was truncated. The 
Committee has requested, but not yet received, the full 26-page 
Minneapolis EC (even, in explicably, in a classified 
setting).\16\
---------------------------------------------------------------------------
    \16\ Rowley Letter, p. 7. This is yet another example of a hurdle 
being erected to effective congressional oversight.
---------------------------------------------------------------------------
    Second, the SSA's task was to help bolster the work of the 
Minneapolis agents and collect information that would establish 
probably cause that a ``foreign power'' existed, and that 
Moussaoui was its ``agent.'' Indeed, sitting in the FBI 
computer system was the Phoenix memorandum, which senior FBI 
officials have conceded would have provided sufficient 
additional context to Moussaoui's conduct to have established 
probably cause.\17\ Yet, neither the SSA nor anyone else at 
Headquarters consulted about the Moussaoui application ever 
conducted any computer searches for electronic or other 
information relevant to the application. Even the much touted 
``Woods Procedures'' governing the procedures to be followed by 
FBI personnel in preparing FISA applications do not require 
Headquarters personnel to conduct even the most basic subject 
matter computer searches or checks as part of the preparation 
and review of FISA applications.
---------------------------------------------------------------------------
    \17\ Joint Inquiry Hearing, Testimony of Eleanor Hill, Staff 
Director, September 24, 2002, p. 19: ``The [FBI] attorneys also told 
the Staff that, if they had been aware of the Phoenix memo, they would 
have forwarded the FISA request to the Justice Department's Office of 
Intelligence Policy Review (OIPR). They reasoned that the particulars 
of the Phoenix memo changed the contest of the Moussaoui investigation 
and made a stronger case for the FISA warrant. None of them saw the 
Phoenix memo before September 11.''
---------------------------------------------------------------------------
            2. General Findings.

    We found that key FBI personnel involved in the FISA 
process were not properly trained to carry out their important 
duties. In addition, we found that the structural, management, 
and resource problems plaguing the FBI in general contributed 
to the intelligence failures prior to the 9/11 attacks.\18\ 
Following are some of the most salient facts supporting these 
conclusions.
---------------------------------------------------------------------------
    \18\ The Joint Inquiry by the Senate and House Select Committee on 
Intelligence similarly concluded that the FBI needs to ``establish and 
sustain independent career tracks within the FBI that recognize and 
provide incentives for demonstrated skills and performance of 
counterterrorism agents and analysts; * * * implement training for 
agents in the effective use of analysts and analysis in their work; * * 
* improve national security law training of FBI personnel; * * * and 
finally solve the FBI's persistent and incapacitating information 
technology problems.'' (Final Report, Recommendations, p. 6).
---------------------------------------------------------------------------
    First, key FBI personnel responsible for protecting our 
country against terrorism did not understand the law. The SSA 
at FBI Headquarters responsible for assembling the facts in 
support of the Moussaoui FISA application testified before the 
Committee in a closed hearing that he did not know that 
``probable cause'' was the applicable legal standard for 
obtaining a FISA warrant. In addition, he did not have a clear 
understanding of what the probable cause standard meant. The 
SSA was not a lawyer, and he was relying on FBI lawyers for 
their expertise on what constituted probable cause. In addition 
to not understanding the probable cause standard, the SSA's 
supervisor (the Unit Chief) responsible for reviewing FISA 
applications did not have a proper understanding of the legal 
definition of the ``agent of a foreign power'' requirement.\19\ 
Specifically, he was under the incorrect impression that the 
statute required a link to an already identified or 
``recognized'' terrorist organization, an interpretation that 
the FBI and the supervisor himself admitted was incorrect. 
Thus, key FBI officials did not have a proper understanding of 
either the relevant burden of proof (probable cause) or the 
substantive element of proof (agent of a foreign power). This 
fundamental breakdown in training on an important intelligence 
matter is of serious concern to this Committee.\20\
---------------------------------------------------------------------------
    \19\ This finding was echoed by the Joint intelligence Committee: 
``In August 2001, the FBI's Minneapolis field office, in conjunction 
with the INS, detained Zacharias Moussaoui, a French national who had 
enrolled in flight training in Minnesota because FBI agents there 
suspected that Moussaoui was involved in a hijacking plot. FBI 
Headquarters attorneys determined that there was not probable cause to 
obtain a court order to search Moussaoui's belongings under the Foreign 
Intelligence Surveillance Act (FISA). However, personnel at FBI 
Headquarters, including the Radical Fundamentalist Unit and the 
National Security Law Unit, as well as agents in the Minneapolis field 
office, misunderstood the legal standard for obtaining an order under 
FISA.'' (Final Report, Findings, pp. 3-4).
    \20\ The Joint Intelligence Committee reached a similar conclusion 
and urged the Attorney General and the Director of the FBI to ``take 
action necessary to ensure that: the Office of Intelligence Policy and 
Review and other Department of Justice components provide in-depth 
training to the FBI and other members of the Intelligence Community 
regarding the use of the Foreign Intelligence Surveillance Act (FISA) 
to address terrorist threats to the United States.'' (Final Report, 
Recommendations, p. 8).
---------------------------------------------------------------------------
    Second, the complaints contained in the Rowley letter about 
problems in the working relationship between field offices and 
FBI Headquarters are more widespread. There must be a dynamic 
relationship between Headquarters and field offices with 
Headquarters providing direction to the efforts of agents in 
the field when required. At the same time, Headquarters 
personnel should serve to support field agents, not to stifle 
initiative by field agents and hinder the progress of 
significant cases. The FBI's Minneapolis office was not alone 
in this complaint. Our oversight also confirmed that agents 
from the FBI's Phoenix office, whose investigation and 
initiative resulted in the so-called ``Phoenix Memorandum,'' 
warning about suspicious activity in U.S. aviation schools, 
also found their initiative dampened by a non-responsive FBI 
Headquarters.
    So deficient was the FISA process that, according to at 
least one FBI supervisor, not only were new applications not 
acted upon in a timely manner, but the surveillance of existing 
targets of interest was often terminated, not because the facts 
no longer warranted surveillance, but because the application 
for extending FISA surveillance could not be completed in a 
timely manner. Thus, targets that represented a sufficient 
threat to national security that the Department had sought, and 
a FISA Court judge had approved, a FISA warrant were allowed to 
break free of surveillance for no reason other than the FBI and 
DOJ's failure to complete and submit the proper paper work. 
This failure is inexcusable.
    Third, systemic management problems at FBI Headquarters led 
to a lack of accountability among senior FBI officials. A 
revolving door at FBI Headquarters resulted in agents who held 
key supervisory positions not having the required specialized 
knowledge to perform their jobs competently. A lack of proper 
communication produced a system where no single person was held 
accountable for mistakes. Therefore, there was little or no 
incentive to improve performance. Fourth, the layers of FBI and 
DOJ bureaucracy also helped lead to breakdowns in communication 
and serious errors in the materials presented to the FISA 
Court. The Committee learned that in the year before the 
Moussaoui case, one FBI supervisor was barred from appearing 
before the FISA due to inaccurate information presented in 
sworn affidavits to the Court. DOJ explained in a December 23, 
2002, response to written questions from the July 25, 2002, 
oversight hearing that:

          One FBI supervisory special agent has been barred 
        from appearing before the Court. In March of 2001, the 
        government informed the Court of an error contained in 
        a series of FISA applications. This error arose in the 
        description of a ``wall'' procedure. The Presiding 
        Judge of the Court at the time, Royce Lamberth, wrote 
        to the Attorney General expressing concern over this 
        error and barred one specifically-named FBI agent from 
        appearing before the Court as a FISA affiant. * * * FBI 
        Director Freeh personally met twice with then-Presiding 
        Judge Lamberth to discuss the accuracy problems and 
        necessary solutions.

    As the Committee later learned from review of the FISA 
Court's May 17, 2002, opinion, that Court had complained of 75 
inaccuracies in FISA affidavits submitted by the FBI, and the 
DOJ and FBI had to develop new procedures to ensure accuracy in 
presentations to that Court. These so-called ``Woods 
Procedures'' were declassified at the request of the authors 
and were made publicly available at the Committee's hearing on 
June 6, 2002. As DOJ further explained in its December 23, 
2002, answers to written questions submitted on July 25, 2002:

          On April 6, 2001, the FBI disseminated to all field 
        divisions and relevant Headquarters divisions a set of 
        new mandatory procedures to be applied to all FISAs 
        within the FBI. These procedures known as the ``Woods 
        procedures,'' are designed to help minimize errors in 
        and ensure that the information provided to the Court 
        is accurate. * * * They have been declassified at the 
        request of your committee.

    DOJ describes the inaccuracies cited in the FISA Court 
opinion as related to ``errors in the `wall' procedure'' to 
keep separate information used for criminal prosecution and 
information collected under FISA and used for foreign 
intelligence. However, this does not appear to be the only 
problem the FBI and DOJ were having in the use of FISA.
    An FBI document obtained under the Freedom of Information 
Act, which is attached to this report as Exhibit E, suggests 
that the errors committed were far broader. The document is a 
memorandum dated April 21, 2002, from the FBI's 
Counterterrorism Division, that details a series of 
inaccuracies and errors in handling FISA applications and 
wiretaps that have nothing whatsoever to do with the ``wall.'' 
Such mistakes include videotaping a meeting when videotaping 
was not allowed under the relevant FISA Court order, continuing 
to intercept a person's email after there was no authorization 
to do so, and continuing a wiretap on a cell phone even after 
the phone number had changed to a new subscriber who spoke a 
different language from the target.
    This document highlights the fact apart from the problems 
with applications made to the FISC, that the FBI was 
experiencing more systemic problems related to the 
implementation of FISA orders. These issues were unrelated to 
the legal questions surrounding the ``wall,'' which was in 
effect long before 1999. The document notes that the number of 
inaccuracies grew by three-and-one-half times from 1999 to 
2000. We recommend that additional efforts to correct the 
procedural, structural, and training problems in the FISA 
process would go further toward ensuring accuracy in the FISA 
process than simply criticizing the state of the law.
    One legitimate question is whether the problems inside the 
FBI and between the FBI and the FISA Court either caused FBI 
Headquarters to be unduly cautious in proposing FISA warrants 
or eroded the FISA Court's confidence in the DOJ and the FBI to 
the point that it affected the FBI's ability to conduct 
terrorism and intelligence investigations effectively.\21\ SA 
Rowley opines in her letter that in the year before ``the 
September 11th acts of terrorism, numerous alleged IOB 
[Intelligence Oversight Board] violations on the part of FBI 
personnel had to be submitted to the FBI's office of 
Professional Responsibility (OPR) as well as the IOB. I believe 
the chilling effect upon all levels of FBI agents assigned to 
intelligence matters and their managers hampered us from 
aggressive investigation of terrorists.'' (Rowley letter, pp. 
7-8, fn. 7). Although the belated release of the FISA Court's 
opinion of May 17, 2002, provided additional insight into this 
issue, further inquiry is needed.
---------------------------------------------------------------------------
    \21\ We did hear testimony indicating that there may have been a 
``chilling effect.'' Special Agent G (of the Minneapolis office) 
testified that ``it seemed to [Special Agent G] that the changes [the 
SSA] had made'' to the facts supplied by Minneapolis in a memorandum 
``were designated to undersell what we had seen Moussaoui preparing to 
do.'' Additionally, at an earlier closed briefing for committee staff, 
a senior headquarters FBI agent stated that he had advised his 
subordinates to be particularly careful with the handling of FISA 
applications. However, we also heard testimony from senior FBI and 
Justice Department attorneys that they did not perceive a ``chilling 
effect'' or drop in the number of FISA applications. We believe further 
inquiry as to this issue is warranted.
---------------------------------------------------------------------------
    Fifth, the FBI's inability to properly analyze and 
disseminate information (even from and between its own agents) 
rendered key information that it collected relatively useless. 
Had the FBI put together the disparate strands of information 
that agents from around the country had furnished to 
Headquarters before September 11, 2001, additional steps could 
certainly have been taken to prevent the 9/11 attacks. So, 
while no one can say with certainty that the 9/11 attacks could 
have been prevented, in our view, it is also beyond reasonable 
dispute that more could have been done in the weeks before the 
attacks to try to prevent them.
    Certain of our findings merit additional discussion, and 
such discussion follows.

            3. FBI's Misunderstanding of Legal Standards Applicable to 
                    the FISA

            a. The FISA Statutory Standard: ``Agent of a Foreign 
                    Power''

    In order to obtain either a search warrant or an 
authorization to conduct electronic surveillance pursuant to 
FISA, the FBI and Justice Department must establish before the 
FISA Court (``FISC'') probable cause that the targeted person 
is an ``agent of a foreign power.'' \22\ An agent of a foreign 
power is defined as ``any person who * * * knowingly aids or 
abets any person in the conduct of [certain] activities.'' \23\ 
Those certain activities include ``international terrorism,'' 
and one definition of ``foreign power'' includes groups that 
engage in international terrorism.\24\
---------------------------------------------------------------------------
    \22\ ``[O]n the basis of the facts submitted by the applicant there 
is probable cause to believe that--* * * the target of the [electronic 
surveillance or physical search] is a foreign power or an agent of a 
foreign power * * *'' 50 U.S.C. Section 1805 (electronic surveillance); 
Section 1824 (physical search).
    \23\ (b) ``Agent of a foreign power'' means--
---------------------------------------------------------------------------

          (2) any person who--

                  (C) knowingly engages in sabotage or international 
                terrorism, or activities that are in preparation 
                therefore, or on behalf of a foreign power;
                  (E) knowingly aids or abets any person in the conduct 
                of activities described in subparagraph (A), (B), or 
                (C) or knowingly conspires with any person to engage in 
                activities described in subparagraph (A), (B), or (C).
50 U.S.C. App. Section 1801(b) (a ``non-U.S. person'' is, in effect, a 
non-resident alien) (emphasis added).
---------------------------------------------------------------------------
    \24\ (a) ``Foreign power'' means--* * *
---------------------------------------------------------------------------

          (4) a group engaged in international terrorism or activities 
        in preparation therefor;
  (c) ``International terrorism'' means activities that--

          (1) involve violent acts of acts dangerous to human life that 
        are a violation of the criminal laws of the Untied States or of 
        any State, or that would be a criminal violation if committed 
        within the jurisdiction of the United States or any State;
          (2) appear to be intended--

                  (A) to intimidate or coerce a civilian population;
                  (B) to influence the policy of a government by 
                intimidation or coercion; or
                  (C) to affect the conduct of a government by 
                assassination or kidnapping; and

          (3) occur totally outside the United States, or transcend 
        national boundaries in terms of the means by which they are 
        accomplished, the persons they appear intended to coerce or 
        intimidate, or the locale in which their perpetrators operate 
        or seek asylum.
50 U.S.C. Sec. App. 1801. The standard for obtaining FISA orders 
differs from the requirements in the criminal context. See Fed. R. Cr. 
P. 41 (criminal search warrant); 18 U.S.C. Sec. 2518 (electronic 
surveillance).
    Accordingly, in the Moussaoui case, to obtain a FISA 
warrant the FBI had to collect only enough evidence to 
establish that there was ``probable cause'' to believe that 
Moussaoui was the ``agent'' of an ``international terrorist 
group'' as defined by FISA.
    However, even the FBI agents who dealt most with FISA did 
not correctly understand this requirement. During a briefing 
with Judiciary Committee staff in February 2002, the 
Headquarters counterterrorism Unit Chief of the unit 
responsible for handling the Moussaoui FISA application stated 
that with respect to international terrorism cases, FISA 
warrants could only be obtained for ``recognized'' terrorist 
groups (presumably those identified by the Department of State 
or by the FBI itself or some other government agency). The Unit 
Chief later admitted that he knew that this was an incorrect 
understanding of the law, but it was his understanding at the 
time the application was pending. Additionally, during a closed 
hearing on July 9, 2002, the Supervisory Special Agent 
(``SSA'') who actually handled the Moussaoui FISA application 
at Headquarters also mentioned that he was trying to establish 
whether Moussaoui was an ``agent of a recognized foreign 
power'' (emphasis added).
    Nowhere, however, does the statutory definition require 
that the terrorist group be an identified organization that is 
already recognized (such as by the United States Department of 
State) as engaging in terrorist activities. Indeed, even the 
FBI concedes this point. Thus, there was no support whatsoever 
for key FBI officials' incorrect understanding that the target 
of FISA surveillance must be linked to such an identified group 
in the time before 9/11. This misunderstanding colored the 
handling of requests from the field to conduct FISA 
surveillance in the crucial weeks before the 9/11 attacks. 
Instead of supporting such an application, key Headquarters 
personnel asked the field agents working on this investigation 
to develop additional evidence to prove a fact that was 
unnecessary to gain judicial approval under FISA. It is 
difficult to understand how the agents whose job included such 
a heavy FISA component could not have understood that statute. 
It is difficult to understand how the FBI could have so failed 
its own agents in such a crucial aspect of their training.
    The Headquarters personnel misapplied the FISA 
requirements. In the context of this case, the foreign power 
would be an international terrorist group, that is, ``a group 
engaged in international terrorism or activities in preparation 
therefore.'' A ``group'' is not defined in the FISA, but in 
common parlance, and using other legal principles, including 
criminal conspiracy, a group consists of two or more persons 
whether identified or not. It is our opinion that such a 
``group'' may exist, even if not a group ``recognized'' by the 
Department of State.
    The SSA's other task would be to help marshal evidence 
showing probable cause that Moussaoui was an agent of that 
group. In applying the ``totality of the circumstances,'' as 
defined in the case of Illinois v. Gates, 462 U.S. 213 (1983), 
any information available about Moussaoui's ``actual contacts'' 
with the group should have been considered in light of other 
information the FBI had in order to understand and establish 
the true probable nature of those contacts.\25\ It is only with 
consideration of all the information known to the FBI that 
Moussaoui's contacts with any group could be properly 
characterized in determining whether he was an agent of such a 
group.
---------------------------------------------------------------------------
    \25\ The Supreme Court's leading case on probable cause; it is 
discussed in more detail in the next section of this report.
---------------------------------------------------------------------------
    In making this evaluation, the fact, as recited in the 
public indictment, that Moussaoui ``paid $6,800 in cash'' to 
the Minneapolis flight school, without adequate explanation for 
the source of this funding, would have been a highly probative 
fact bearing on his connections to foreign groups. Yet, it does 
not appear that this was a fact that the FBI Headquarters 
agents considered in analyzing the totality of the 
circumstances. The probable source of that cash should have 
been a factor that was considered in analyzing the totality of 
the circumstances. So too would the information in the Phoenix 
memorandum have been helpful. It also was not considered, as 
discussed further below. In our view, the FBI applied too 
cramped an interpretation of probable cause and ``agent of a 
foreign power'' in making the determination of whether 
Moussauoi was an agent of a foreign power. FBI Headquarters 
personnel in charge of reviewing this application focused too 
much on establishing a nexus between Moussaoui and a 
``recognized'' group, which is not legally required. \26\ 
Without going into the actual evidence in the Moussaoui case, 
there appears to have been sufficient evidence in the 
possession of the FBI which satisfied the FISA requirements for 
the Moussaoui application. Given this conclusion, our primary 
task is not to assess blame on particular agents, the 
overwhelming majority of whom are to be commended for devoting 
their lives to protecting the public, but to discuss the 
systemic problems at the FBI that contributed to their 
inability to succeed in that endeavor.
---------------------------------------------------------------------------
    \26\ Senator Specter. * * * [I]s an Islam fundamentalist who 
advocates ``jihad'' a terrorist?
    [Attorney #1]. On that description alone, I would say I could not 
say so, Senator. I would have my suspicions, I would be concerned, but 
I need to see what a person is doing. I need to see some indicia that 
they are willing to commit violence and not just talk about it.
    Question. But you would have your suspicions.
    [Attorney #1]. Yes, sir.
---------------------------------------------------------------------------
            b. The Probable Cause Standard

            i. Supreme Court's Definition of ``Probable Cause''

    During the course of our investigation, the evidence we 
have evaluated thus far indicates that both FBI agents and FBI 
attorneys do not have a clear understanding of the legal 
standard for probable cause, as defined by the Supreme Court in 
the case of Illinois v. Gates, 462 U.S. 213 (1983). This is 
such a basic legal principle that, again, it is impossible to 
justify the FBI's lack of complete and proper training on it. 
In Gates, then-Associate Justice Rehnquist wrote for the Court:

          As early as Locke v. United States, 7 Cranch. 339, 
        348, 3 L.Ed. 364 (1813), Chief Justice Marshall 
        observed, in a closely related context, that ``the term 
        `probable cause,' according to its usual acceptation, 
        means less than evidence which would justify 
        condemnation * * * It imports a seizure made under 
        circumstances which warrant suspicion.'' More recently, 
        we said that ``the quanta * * * of proof'' appropriate 
        in ordinary judicial proceedings are inapplicable to 
        the decision to issue a warrant. Finely-tuned standards 
        such as proof beyond a reasonable doubt or by a 
        preponderance of the evidence, useful in formal basis 
        trials, have no place in the magistrate's decision. 
        While an effort to fix some general, numerically 
        precise degree of certainty corresponding to ``probable 
        cause'' may not be helpful, it is clear that ``only the 
        probability, and not a prima facie showing, of criminal 
        activity is the standard of probable cause.'' \27\
---------------------------------------------------------------------------
    \27\ 462 U.S. at 236 (citations omitted; emphasis added).

---------------------------------------------------------------------------
The Court further stated:

          For all these reasons, we conclude that it is wiser 
        to abandon the ``two-pronged test'' established by our 
        decisions in Aguilar and Spinelli. In its place we 
        reaffirm the totality of the circumstances analysis 
        that traditionally has informed probable cause 
        determinations. The task of the issuing magistrate is 
        simply to make a practical, common-sense decision 
        whether, given all the circumstances set forth in the 
        affidavit before him, including the ``veracity'' and 
        ``basis of knowledge'' of persons supplying hearsay 
        information, there is a fair probability that 
        contraband or evidence of a crime will be found in a 
        particular place. And the duty of a reviewing court is 
        simply to ensure that the magistrate had a 
        ``substantial basis for * * * conclud[ing]'' that 
        probable cause existed. We are convinced that this 
        flexible, easily applied standard will better achieve 
        the accommodation of public and private interests that 
        the Fourth Amendment requires than does the approach 
        that has developed from Aguilar and Spinelli. \28\
---------------------------------------------------------------------------
    \28\ 462 U.S. at 238 (footnote and citations omitted) (emphasis 
added). The relevance of Illinois v. Gates to defining probable cause 
is implicit in the Senate's report when FISA was first enacted (albeit, 
when first enacted it covered only electronic surveillance): ``In 
determining whether probable cause exists under this section, the court 
must consider the same requisite elements which govern such 
determinations in the criminal context.'' S. Rep. 95-604, p. 47. ``The 
FISA statute does not define `probable cause,' although it is clear 
from the legislative history that Congress intended for this term to 
have a meaning analogous to that typically used in criminal contexts.'' 
Final Report of the Attorney General's Review Team on the Handling of 
the Los Alamos National Laboratory Investigation (May 2000) (``The 
Bellows Report''), p. 494.

Accordingly, it is clear that the Court rejected 
``preponderance of the evidence'' as the standard for probable 
cause and established a standard of ``probability'' based on 
the ``totality of the circumstances.''

            ii. The FBI's Unnecessarily High Standard for Probable 
                    Cause

    Unfortunately, our review has revealed that many agents and 
lawyers at the FBI did not properly understand the definition 
of probable cause and that they also possessed inconsistent 
understandings of that term. In the portion of her letter to 
Director Mueller discussing the quantum of evidence needed to 
reach the standard of probable cause, SA Rowley wrote that 
``although I thought probable cause existed (`probable cause' 
meaning that the proposition has to be more likely than not, or 
if quantified, a 51 percent likelihood), I thought our United 
States Attorney's Office, (for a lot of reasons including just 
to play it safe), in regularly requiring much more than 
probable cause before approving affidavits, (maybe, if 
quantified, 75 percent-80 percent probability and sometimes 
even higher), and depending upon the actual AUSA who would be 
assigned, might turn us down.'' \29\ The Gates case and its 
progeny do not require an exacting standard of proof. Probable 
case does not mean more likely than not, but only a probability 
or substantial chance of the prohibited conduct taking place. 
Moreover, ``[t]he fact that an innocent explanation may be 
consistent with the facts alleged * * * does not negate 
probable cause.'' \30\
---------------------------------------------------------------------------
    \29\ Rowley Letter, pp. 4-5.
    \30\ United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985) 
(citations omitted).
---------------------------------------------------------------------------
    On June 6, 2002, the Judiciary Committee held an open 
hearing on the FBI's conduct of counterterrorism 
investigations. The Committee heard from Director Mueller and 
DOJ Inspector General Glenn Fine on the first panel and from SA 
Rowley on the second panel. The issue of the probable cause 
standard was specifically raised with Director Mueller, citing 
the case of Illinois v. Gates, and Director Mueller was asked 
to comment in writing on the proper standard for establishing 
probable cause.\31\ The FBI responded in an undated letter to 
Senator Specter and with the subsequent transmission of an 
electronic communication (E.C.) dated September 16, 2002.\32\ 
In the E.C., the FBI's General Counsel reviewed the case law 
defining ``probable cause,'' in order to clarify the definition 
of probable cause for FBI personnel handling both criminal 
investigations and FISA applications.
---------------------------------------------------------------------------
    \31\ Judiciary Committee ``Oversight Hearing on Counterterrorism,'' 
Transcript, June 6, 2002, pp. 78-79, 87 (hereinafter, Tr. 6/6/02). Sen. 
Specter's letter is at Exhibit B.
    \32\ These documents are attached as Exhibits C and D.
---------------------------------------------------------------------------
    At the June 6th hearing, SA Rowley reviewed her discussion 
of the probable cause standard in her letter. During that 
testimony three issues arose. First, by focusing on the 
prosecution of a potential case, versus investigating a case, 
law enforcement personnel, both investigators and prosecutors, 
may impose on themselves a higher standard than necessary to 
secure a warrant. \33\ This prosecution focus is one of the 
largest hurdles that the FBI is facing as it tries to change 
its focus from crime fighting to the prevention of terrorist 
attacks. It is symptomatic of a challenge facing the FBI and 
DOJ in nearly every aspect of their new mission in preventing 
terrorism. Secondly, prosecutors, in gauging what amount of 
evidence reaches the probable cause standard, may calibrate 
their decision to meet the de facto standard imposed by the 
judges, who may be imposing a higher standard than is required 
by law.\34\ Finally, SA Rowley opined that some prosecutors and 
senior FBI officials may set a higher standard due to risk-
averseness, which is caused by ``careerism.'' \35\
---------------------------------------------------------------------------
    \33\ Tr., 6/6/02, pp. 224.
    \34\ Tr., 6/6/02, pp. 226-27.
    \35\ Tr., 6/6/02, pp 226-27.
---------------------------------------------------------------------------
    SA Rowley's testimony was corroborated in our other 
hearings. During a closed hearing, in response to the following 
questions, a key Headquarters SSA assigned to terrorism matters 
stated that he did not know the legal standard for obtaining a 
warrant under FISA.

          Senator Specter.* * * [SSA], what is your 
        understanding of the legal standard for a FISA warrant?
          [SSA]. I am not an attorney, so I would turn all of 
        those types of questions over to one of the attorneys 
        that I work with in the National Security Law Unit.
          Question. Well, did you make the preliminary 
        determination that there was not sufficient facts to 
        get a FISA warrant issued?
          [SSA]. That is the way I saw it.
          Question. Well, assuming you would have to prove 
        there was an agent and there was a foreign power, do 
        you have to prove it beyond a reasonable doubt? Do you 
        have to have a suspicion? Where in between?
          [SSA]. I would ask my attorney in the National 
        Security Law Unit that question.
          Question. Did anybody give you any instruction as to 
        what the legal standard for probable cause was?
          [SSA]. In this particular instance, no. \36\
---------------------------------------------------------------------------
    \36\ Tr., 7/9/02, pp. 35-36.

    The SSA explained that he had instruction on probable cause 
in the past, but could not recall that training. It became 
clear to us that the SSA was collecting information without 
knowing when he had enough and, more importantly, making 
``preliminary'' decisions and directing field agents to take 
investigating steps without knowing the applicable legal 
standards. While we agree that FBI agents and supervisory 
personnel should consult regularly with legal experts at the 
National Security Law Unit, and with the DOJ and U.S. Attorneys 
Offices, supervisory agents must also have sufficient facility 
for evaluating probable cause in order to provide support and 
guidance to the field.
    Unfortunately, our oversight revealed a similar confusion 
as to the proper standard among other FBI officials. On July 9, 
2002, the Committee held a closed session on this issue, and 
heard from the following FBI personnel: Special Agent ``G,'' 
who had been a counterterrorism supervisor in the Minneapolis 
Division of the FBI and worked with SA Rowley; the Supervisory 
Special Agent (``the SSA'') from FBI Headquarters referred to 
in SA Rowley's letter (and referred to in the discussion 
above); the SSA's Unit Chief (``the Unit Chief''); a very 
senior attorney from the FBI's Office of General Counsel with 
national security responsibilities (``Attorney #1''); and three 
attorneys assigned to the FBI's Office of General Counsel's 
National Security Law Unit (``Attorney #2,'' ``Attorney #3,'' 
and ``Attorney #4''). The purpose of the session was to 
determine how the Moussaoui FISA application had been processed 
by FBI Headquarters personnel. None of the personnel present, 
including the attorneys, appeared to be familiar with the 
standard for probable cause articulated in Illinois v. Gates, 
and none had reviewed the case prior to the hearing, despite 
its importance having been highlighted at the June 6th hearing 
with the FBI Director. To wit:

          Senator Specter. * * * [Attorney #1] what is the 
        legal standard for probable cause for a warrant?
          [Attorney #1]. A reasonable belief that the facts you 
        are trying to prove are accurate.
          Question. Reason to believe?
          [Attorney #1]. Reasonable belief.
          Question. Reasonable belief?
          [Attorney #1]. More probable than not.
          Question. More probable than not?
          [Attorney #1]. Yes, sir. Not a preponderance of the 
        evidence.
          Question. Are you familiar with ``Gates v. 
        Illinois''?
          [Attorney #1]. No, sir.

    However, ``more probable than not'' is not the standard; 
rather, ``only the probability, and not a prima facie showing, 
of criminal activity is the standard of probable cause.'' \37\
---------------------------------------------------------------------------
    \37\ Gates, 462 U.S. at 36 (citations omitted).
---------------------------------------------------------------------------
    Similarly, Attorneys #2, #3, and #4 were also not familiar 
with Gates.\38\ Under further questioning, Attorney #1 conceded 
that the FBI, at that time, did not have written procedures 
concerning the definition of ``probable cause'' in FISA cases: 
``On the FISA side of the house I don't think we have any 
written guidelines on that. * * *'' \39\ Additionally, Attorney 
#1 stated that ``[w]e need to have some kinds of facts that an 
agent can swear to a reasonable belief that they are true,'' to 
establish that a person is an agent of a foreign power. Giving 
a precise definition of probable cause is not an easy task, as 
whether probable cause exists rests on factual and practical 
considerations in a particular context. Yet, even with the 
inherent difficulty in this standard we are concerned that 
senior FBI officials offered definitions that imposed 
heightened proof requirements. The issue of what is required 
for ``probable cause'' is especially troubling because it is 
not the first time that the issue had arisen specifically in 
the FISA context. Indeed, the Judiciary Committee confronted 
the issue of ``probable cause'' in the FISA context in 1999, 
when the Committee initiated oversight hearings of the 
espionage investigation of Dr. Wen Ho Lee. Among the many 
issues examined was whether there was probable cause to obtain 
FISA surveillance of Dr. Lee. In that case, there was a 
disagreement as to whether probable cause existed between the 
FBI and the DOJ, within the DOJ, and among ourselves.
---------------------------------------------------------------------------
    \38\ Tr., 7/9/02, pp. 37-38, 53.
    \39\ Tr., 7/9/02, pp. 39-40.
---------------------------------------------------------------------------
    In 1999, Attorney General Janet Reno commissioned an 
internal DOJ review of the Wen Ho Lee investigation. The 
Attorney General's Review Team on the Handling of the Los 
Alamos National Laboratory Investigation was headed by 
Assistant United States Attorney Randy I. Bellows, a Senior 
Litigation Counsel in the Office of the United States Attorney 
for the Eastern District of Virginia. Mr. Bellows submitted his 
exhaustive report on May 12, 2000 (the ``Bellows Report''), and 
made numerous findings of fact and recommendations. With 
respect to the issue of probable cause, Mr. Bellows concluded 
that:

          The final draft FISA application (Draft #3), on its 
        face, established probable cause to believe that Wen Ho 
        Lee was an agent of a foreign power, that is to say, a 
        United States person currently engaged in clandestine 
        intelligence gathering activities for or on behalf of 
        the PRC which activities involved or might involve 
        violations of the criminal laws of the United States. * 
        * * Given what the FBI and OIPR knew at the time, it 
        should have resulted in the submission of a FISA 
        application, and the issuance of a FISA order.\40\
---------------------------------------------------------------------------
    \40\ Bellows Report, p. 482.

    The Bellows team concluded that OIPR has been too 
conservative with the Wen Ho Lee FISA application, a 
conservatism that may continue to affect the FBI's and DOJ's 
handling of FISA applications. The team found that with respect 
to OIPR's near-``perfect record'' before the FISA Court (only 
one FISA rejection), ``[w]hile there is something almost 
unseemly in the use of such a remarkable track record as proof 
of error, rather than proof of excellence, it is nevertheless 
true that this record suggests the use of `PC+,' an insistence 
on a bit more than the law requires.'' \41\
---------------------------------------------------------------------------
    \41\ Bellows Report, p. 493. The Bellows team was not the only 
group to reach this conclusion. The National Commission on Terrorism, 
headed by former Ambassador L. Paul Bremer, III, found the following:

        The Commission heard testimony that, under ordinary 
      circumstances, the FISA process can be slow and burdensome, 
      requiring information beyond the minimum required by the 
      statute. For example, to obtain a FISA order, the statute 
      requires only probable cause to believe that someone who is 
      not a citizen or legal permanent resident of the United 
      States is a member of an international terrorist 
      organization. In practice, however, OIPR requires evidence 
      of wrongdoing or specific knowledge of the group's 
      terrorist intentions in addition to the person's membership 
      in the organization before forwarding the application to 
      the FISA Court. Also, OIPR does not generally consider the 
      past activities of the surveillance target relevant in 
      determining whether the FISA probable cause test is met.
        During the period leading up to the millennium, the FISA 
      application process was streamlined. Without lowering the 
      FISA standards, applications were submitted to the FISA 
      Court by DOJ promptly and with enough information to 
      establish probable cause.
        Report of the National Commission on Terrorism at p. 11.

The Commission recommended that:

        --The Attorney General should direct that the Office of 
      Intelligence Policy and Review not require information in 
      excess of that actually mandated by the probable cause 
      standard in the Foreign Intelligence Surveillance Act 
      statute.
        --To ensure timely review of the Foreign Intelligence 
      Surveillance Act applications, the Attorney General should 
      substantially expand the Office of Intelligence Policy and 
      Review staff and direct it to cooperate with the Federal 
      Bureau of Investigation.
    The Bellows team made another finding of particular 
pertinence to the instant issue. It found that ``[t]he Attorney 
General should have been apprised of any rejection of a FISA 
request. * * *'' \42\ In effect, FBI Headquarters rejected the 
Minneapolis Division's request for a FISA application, a 
decision that was not reported to then Acting Director Thomas 
Pickard. Director Mueller has adopted a new policy, not 
formally recorded in writing, that he be informed of the denial 
within the FBI of any request for a FISA application.\43\ 
However, in an informal briefing the weekend after this new 
policy was publicly announced, the FBI lawyer whom it most 
directly affected claimed to know nothing of the new ``policy'' 
beyond what he had read in the newspaper. From an oversight 
perspective, it is striking that the FBI and DOJ were 
effectively on notice regarding precisely this issue: that the 
probable cause test being applied in FISA investigations was 
more stringent than legally required. We appreciate the 
carefulness and diligence with which the professionals at OIPR 
and the FBI exercise their duties in processing FISA 
applications, which normally remain secret and immune from the 
adversarial scrutiny to which criminal warrants are subject. 
Yet, this persistent problem has two serious repercussions. 
First, the FBI and DOJ appear to be failing to take decisive 
action to provide in-depth training to agents and lawyers on an 
issue of the utmost national importance. We simply cannot 
continue to deny or ignore such training flaws only to see them 
repeated in the future.
---------------------------------------------------------------------------
    \42\ Bellows Report, p. 484 (emphasis in original).
    \43\ Tr., 6/6/02, p. 91.
---------------------------------------------------------------------------
    Second, when the DOJ and FBI do not apply or use the FISA 
as fully or comprehensively as the law allows, pressure is 
brought on the Congress to change the statute in ways that may 
not be at all necessary. From a civil liberties perspective, 
the high-profile investigations and cases in which the FISA 
process appears to have broken down is too easily blamed on the 
state of the law rather than on inadequacies in the training of 
those responsible for implementing the law. The reaction on the 
part of the DOJ and FBI has been to call upon the Congress to 
relax FISA standards rather than engage in the more time-
consuming remedial task of reforming the management and process 
to make it work better. Many times such ``quick legislative 
fixes'' are attractive on the surface, but only operate as an 
excuse to avoid correcting more fundamental problems.

            4. The Working Relationship Between FBI Headquarters and 
                    Field Offices

    Our oversight revealed that on more than one occasion FBI 
Headquarters was not sufficiently supportive of agents in the 
field who were exercising their initiative in an attempt to 
carry out the FBI's mission. While at least some of this is due 
to resource and staffing shortages, which the current Director 
is taking action to address, there are broader issues involved 
as well. Included in these is a deep-rooted culture at the FBI 
that makes an assignment to Headquarters unattractive to 
aggressive field agents and results in an attitude among many 
who do work at Headquarters that is not supportive of the 
field.
    In addition to these cultural problems at the FBI, we 
conclude that there are also structural and management problems 
that contribute to the FBI's shortcomings as exemplified in the 
implementation of the FISA. Personnel are transferred in and 
out of key Headquarters jobs too quickly, so that they do not 
possess the expertise necessary to carry out their vital 
functions. In addition, the multiple layers of supervision at 
Headquarters have created a bureaucratic FBI that either will 
not or cannot respond quickly enough to time-sensitive 
initiatives from the field. We appreciate that the FBI has 
taken steps to cut through some of this bureaucracy by 
requiring OIPR attorneys to have direct contact with field 
agents working on particular cases.
    In addition to hampering the implementation of FISA, there 
are problems that the Judiciary Committee has witnessed 
replayed in other contexts within the FBI. These root causes 
must be addressed head on, so that Headquarters personnel at 
the FBI view their jobs as supporting talented and aggressive 
field agents.
    The FBI has a key role in the FISA process. Under the 
system designed by the FBI, a field agent and his field 
supervisors must negotiate a series of bureaucratic levels in 
order to even ask for a FISA warrant. The initial consideration 
of a FISA application and evaluation of whether statutory 
requirements are met is made by Supervisory Special Agents who 
staff the numerous Headquarters investigative units. These 
positions are critical and sensitive by their very nature. No 
application can move forward to the attorneys in the FBI's 
National Security Law Unit (NSLU) for further consideration 
unless the unit SSA says so. In addition, no matter may be 
forwarded to the DOJ lawyers at the OIPR without the approval 
of the NSLU. These multiple layers of review are necessary and 
prudent but take time.
    The purpose of having SSAs in the various counterterrorism 
units is so that those personnel may bring their experience and 
skill to bear to bolster and enhance the substance of 
applications sent by field offices. A responsible SSA will 
provide strategic guidance to the requesting field division and 
coordinate the investigative activities and efforts between FBI 
Headquarters and that office, in addition to the other field 
divisions and outside agencies involved in the investigation. 
This process did not work well in the Moussaoui case.
    Under the FBI's system, an effective SSA should thoroughly 
brief the NSLU and solicit its determination on the adequacy of 
any application within a reasonable time after receipt. In 
``close call'' investigations, we would expect the NSLU 
attorneys to seek to review all written information forwarded 
by the field office rather than rely on brief oral briefings. 
In the case of the Moussaoui application forwarded from 
Minneapolis, the RFU SSA merely provided brief, oral briefings 
to NSLU attorneys and did not once provide that office with a 
copy of the extensive written application for their review. An 
SSA should also facilitate communication between the OIPR, the 
NSLU, and those in the field doing the investigation and 
constructing the application. That also did not occur in this 
case.
    By its very nature, having so many players involved in the 
process allows internal FBI finger-pointing with little or no 
accountability for mistakes. the NSLU can claim, as it does 
here, to have acquiesced to the factual judgment of the SSAs in 
the investigative unit. The SSAs, in turn, claim that they have 
received no legal training or guidance and rely on the lawyers 
at the NSLU to make what they term as legal decisions. The 
judgment of the agents in the field, who are closest to the 
facts of the case, is almost completely disregarded.
    Stuck in this confusing, bureaucratic maze, the seemingly 
simple and routine business practices within key Headquarters 
units were flawed. As we note above, even routine renewals on 
already existing FISA warrants were delayed or not obtained due 
to the lengthy delays in processing FISA applications.

            5. The Mishandling of the Phoenix Electronic Communication

    The handling of the Phoenix EC represents another prime 
example of the problems with the FBI's FISA system as well as 
its faulty use of information technology. The EC contained 
information that was material to the decision whether or not to 
seek a FISA warrant in the Moussaoui case, but it was never 
considered by the proper people.\44\ Even though the RFU Unit 
Chief himself was listed as a direct addressee on the Phoenix 
EC (in addition to others within the RFU and other 
counterterrorism Units at FBI Headquarters), he claims that he 
never even knew of the existence of such an EC until the FBI's 
Office of Professional Responsibility (OPR) contacted him 
months after the 9/11 attacks. Even after this revelation, the 
Unit Chief never made any attempt to notify the Phoenix 
Division (or any other field Division) that he had not read the 
EC addressed to him. He issued no clarifying instructions from 
his Unit to the field, which very naturally must believe to 
this day that this Unit Chief is actually reading and assessing 
the reports that are submitted to his attention and for his 
consideration. The Unit Chief in question here has claimed to 
be ``at a loss'' as to why he did not receive a copy of the 
Phoenix EC at the time it was assigned, as was the practice in 
the Unit at that time.
---------------------------------------------------------------------------
    \44\ The Joint Inquiry similarly concluded that ``the FBI 
headquarters personnel did not take the action requested by the Phoenix 
agent prior to September 11, 2001. The communication generated little 
or no interest at either FBI Headquarters or the FBI's New York field 
office.'' (Final Report, Findings, p. 3).
---------------------------------------------------------------------------
    Apparently, it was routine in the Unit for analytic support 
personnel to assess and close leads assigned to them without 
any supervisory agent personnel reviewing their activities. In 
the RFU, the two individuals in the support capacity entered 
into service at the FBI in 1996 and 1998. The Phoenix memo was 
assigned to one of these analysts as a ``lead'' by the Unit's 
Investigative Assistant (IA) on or about July 30th, 2001. The 
IA would then accordingly give the Unit Chief a copy of each EC 
assigned to personnel in the Unit for investigation. The RFU 
Unit Chief claims to have never seen this one. In short, the 
crucial information being collected by FBI agents in the field 
was disappearing into a black hole at Headquarters. To the 
extent the information was reviewed, it was not reviewed by the 
appropriate people.
    More disturbing, this is a recurrent problem at the FBI. 
The handling of the Minneapolis LHM and the Phoenix memo, 
neither of which were reviewed by the correct people in the 
FBI, are not the first times that the FBI has experienced such 
a problem in a major case. The delayed production of documents 
in the Oklahoma City bombing trial, for example, resulted in 
significant embarrassment for the FBI in a case of national 
importance. The Judiciary Committee held a hearing during which 
the DOJ's own Inspector General testified that the inability of 
the FBI to access its own information base did and will have 
serious negative consequences.\45\ Although the FBI is 
undertaking to update its information technology to assist in 
addressing this problem, the Oklahoma City case demonstrates 
that the issue is broader than antiquated computer systems. As 
the report concluded, ``human error, not the inadequate 
computer system, was the chief cause of the failure * * *'' 
\46\ The report concluded that problems of training and FBI 
culture were the primary causes of the embarrassing mishaps in 
that case. Once again, the FBI's and DOJ's failures to address 
such broad based problems seem to have caused their recurrence 
in another context.
---------------------------------------------------------------------------
    \45\ An Investigation of the Belated Production of Documents in the 
Oklahoma City Bombing Case, Office of the Inspector General, March 19, 
2002 (Oklahoma City Report).
    \46\ Oklahoma City Report, p.2.
---------------------------------------------------------------------------
            6. The FBI's Poor Information Technology Capabilities

    On June 6, 2002, Director Mueller and SA Rowley testified 
before the Senate Judiciary Committee on the search 
capabilities of the FBI's Automated Case Support (ACS) system. 
ACS is the FBI's centralized case management system, and serves 
as the central electronic repository for the FBI's official 
investigative textual documents. Director Mueller, who was 
presumably briefed by senior FBI officials regarding the 
abilities of the FBI's computers, testified that, although 
Phoenix memorandum had been uploaded to the ACS, it was not 
used by agents who were investigating the Moussaoui case in 
Minnesota or at Headquarters. According to Director Mueller, 
the Phoenix memorandum was not accessible to the Minneapolis 
field office or any other offices around the country; it was 
only accessible to the places where it had been sent; 
Headquarters and perhaps two other offices. Director Mueller 
also testified that no one in the FBI had searched the ACS for 
relevant terms such as ``aviation schools'' or ``pilot 
training.'' According to Director Mueller, he hoped to have in 
the future the technology in the computer system to do that 
type of search (e.g., to pull out any electronic communication 
relating to aviation), as it was very cumbersome to do that 
type of search as of June 6, 2002. SA Rowley testified that FBI 
personnel could only perform one-word searches in the ACS 
system, which results in too many results to review.
    Within two weeks of the hearing, on June 14, 2002, both 
Director Mueller (through John E. Collingwood, AD Office of 
Public and Congressional Affairs) and SA Rowley submitted to 
the Committee written corrections of their June 6, 2002, 
testimony. The FBI corrected the record by stating that ACS was 
implemented in all FBI field offices, resident agencies, legal 
attache offices, and Headquarters on October 16, 1995. In 
addition, it was, in fact, possible to search for multiple 
terms in the ACS system, using Boolean connectors (e.g., 
hijacker or terrorist and flight adj school), and to refine 
searches with other fields (e.g., document type). Rowley 
confirmed the multiple search-term capabilities of ACS and 
added that the specifics of ACS's search capabilities are not 
widely known within the FBI.
    We commend Director Mueller and SA Rowley for promptly 
correcting their testimony as they became aware of the 
incorrect description of the FBI's ACS system during the 
hearing. Nevertheless, their corrections and statements 
regarding FBI personnel's lack of knowledge of the ACS system 
highlights a longstanding problem within the Bureau. An OIG 
report, issued in July 1999, states that FBI personnel were not 
well-versed in the ACS system or other FBI databases. An OIG 
report of March 2002, which analyzed the causes for the belated 
production of many documents in the Oklahoma City bombing case, 
also concluded that the inefficient and complex ACS system was 
a contributing factor in the FBI's failure to provide hundreds 
of investigative documents to the defendants in the Oklahoma 
City Bombing Case. In short, this Committee's oversight has 
confirmed, yet again, that not only are the FBI's computer 
systems inadequate but that the FBI does not adequately train 
its own personnel in how to use their technology.

            7. The ``Revolving Door'' at FBI Headquarters

    Compounding information technology problems at the FBI are 
both the inexperience and attitude of ``careerist'' senior FBI 
agents who rapidly move through sensitive supervisory positions 
at FBI Headquarters. This ``ticket punching'' is routinely 
allowed to take place with the acquiescence of senior FBI 
management at the expense of maintaining critical institutional 
knowledge in key investigative and analytical units. FBI agents 
occupying key Headquarters positions have complained to members 
of the Senate Judiciary Committee that relocating to 
Washington, DC, is akin to a ``hardship'' transfer in the minds 
of many field agents. More often than not, however, the move is 
a career enhancement, as the agent is almost always promoted to 
a higher pay grade during or upon the completion of the 
assignment. The tour at Headquarters is usually relatively 
short in duration and the agent is allowed to leave and return 
to the field.
    To his credit, Director Mueller tasked the Executive Board 
of the Special Agents Advisory Committee (SAAC) to report to 
him on disincentives for Special Agents seeking administrative 
advancement. They reported on July 1, 2002, with the following 
results of an earlier survey:

          Less than 5% of the Agents surveyed indicated an 
        interest in promotion if relocation to FBIHQ was 
        required. Of 35 field supervisors queried, 31 said they 
        would ``step down'' rather than accept an assignment in 
        Washington, D.C. All groups of Agents (those with and 
        without FBIHQ experience) viewed as assignment at FBIHQ 
        as very negative. Only 6% of those who had previously 
        been assigned there believed that the experience was 
        positive--the work was clerical, void of supervisory 
        responsibility critical to future field or other 
        assignments. Additionally, the FBIHQ supervisors were 
        generally powerless to make decisions while working in 
        an environment which was full of negativity, 
        intimidation, fear and anxiousness to leave. (bold 
        emphasis in original).

    The SAAC report also contained serious criticism of FBI 
management, stating:

          Agents across the board expressed reluctance to 
        become involved in a management system which they 
        believe to [be] hypocritical, lacking ethics, and one 
        in which we lead by what we say and not by example. 
        Most subordinates believe and most managers agreed that 
        the FBI is too often concerned with appearance over 
        substance. Agents believed that management decisions 
        are often based on promoting one's self interest versus 
        the best interests of the FBI. (bold emphasis in 
        original).

    There is a dire need for the FBI to reconsider and reform a 
personnel system and a management structure that do not create 
the proper incentives for its most capable and talented agents 
to occupy its most important posts. The SAAC recommended a 
number of steps to reduce or eliminate ``disincentives for 
attaining leadership within the Bureau.'' Congress must also 
step up to the plate and assess the location pay differential 
for Headquarters transfers compared to other transfers and 
other financial rewards for administrative advancement to 
ensure that those agents with relevant field experience and 
accomplishment are in critical Headquarters positions.
    Indeed, in the time period both before and after the 
Moussaoui application was processed at Headquarters (and 
continuing for months after the 9/11 attacks), most of the 
agents in the pertinent Headquarters terrorism unit had less 
than two years of experience working on such cases. In the 
spring and summer of 2001, when Administration officials have 
publicly acknowledged increased ``chatter'' internationally 
about potential terrorist attacks, the Radical Fundamentalist 
Unit at FBI Headquarters experienced the routinely high rate of 
turnover in agent personnel as others units regularly did. Not 
only was the Unit Chief replaced, but also one or more of the 
four SSAs who reported to the Unit Chief was a recent transfer 
into the Unit. These key personnel were to have immediate and 
direct control over the fate of the ``Phoenix memo'' and the 
Minneapolis Division's submission of a FISA application for the 
personal belongings of Moussaoui. While these supervisory 
agents certainly had distinguished and even outstanding 
professional experience within the FBI before being assigned to 
Headquarters, their short tours in the specialized 
counterterrorism units raises questions about the depth and 
scope of their training and experience to handle these requests 
properly and, more importantly, about the FBI's decision to 
allow such a key unit to be staffed in such a manner.
    Rather than staffing counterterrorism units with 
Supervisory Special Agents on a revolving door basis, these 
positions should be filled with a cadre of senior agents who 
can provide continuity in investigations and guidance to the 
field.
    A related deficiency in FBI management practices was that 
those SSAs making the decisions on whether any FISA application 
moved out of an operational unit were not given adequate 
training, guidance, or instruction on the practical application 
of key elements of the FISA statute. As we stated earlier, it 
seems incomprehensible that those very individuals responsible 
for taking a FISA application past the first step were allowed 
to apply their own individual interpretations of critical 
elements of the law relating to what constitutes a ``foreign 
power,'' ``acting as a agent of a foreign power,'' ``probable 
cause,'' and the meaning of ``totality of the circumstances,'' 
before presenting an application to the attorneys in the NSLU. 
We learned at the Committee's hearing this past September 10th, 
a full year after the terrorist attacks, that the FBI drafted 
administrative guidelines that will provide for Unit Chiefs and 
SSAs at Headquarters a uniform interpretation of how--and just 
as importantly--when to apply probable cause or other standards 
in FISA warrant applications.
    All of these problems demonstrate that there is a dire need 
for a thorough review of procedural and substantive practices 
regarding FISA at the FBI and the DOJ. The Senate Judiciary 
Committee needs to be even more vigilant in its oversight 
responsibilities regarding the entire FISA process and the FISA 
Court itself. The FISA process is not fatally flawed, but 
rather its administration and coordination needs shift review 
and improvement if it is to continue to be an effective tool in 
America's war on terrorism.

IV. The Importance of Enhanced Congressional Oversight

    An undeniable and distinguishing feature of the flawed FISA 
implementation system that has developed at the DOJ and FBI 
over the last 23 years in its secrecy. Both at the legal and 
operational level, the most generalized aspects of the DOJ's 
FISA activities have not only been kept secret from the general 
public but from the Congress as well. As we stated above, much 
of this secrecy has been due to a lack of diligence on the part 
of Congress exercising its oversight responsibility. Equally 
disturbing, however, is the difficulty that a properly 
constituted Senate Committee, including a bipartisan group of 
senior senators, had in conducting effective oversight of the 
FISA process when we did attempt to perform our constitutional 
duties.
    The Judiciary Committee's ability to conduct its inquiry 
was seriously hampered by the initial failure of the DOJ and 
the Administrative Office of the United States Courts to 
provide to the Committee an unclassified opinion of the FISA 
Court relevant to these matters. As noted above, we only 
received this opinion on August 22, 2002, in the middle of the 
August recess.
    Under current law there is no requirement that FISA Court 
opinions be made available to Congressional committees or the 
public. The only statutory FISA reporting requirement is for an 
unclassified annual report of the Attorney General to the 
Administrative Office of the United States Court and to 
Congress setting forth with respect to the preceding calendar 
year (a) the total number of applications made for orders and 
extensions of orders approving electronic surveillance under 
Title I, and (b) the total number of such orders and extensions 
either granted, modified, or denied.\47\ These reports do not 
disclose or identify unclassified FISA Court opinions or 
disclose the number of individuals or entities targeted for 
surveillance, nor do they cover FISA Court orders for physical 
searches, pen registers, or records access.
---------------------------------------------------------------------------
    \47\ 50 U.S.C. 1807.
---------------------------------------------------------------------------
    Current law also requires various reports from the Attorney 
General to the Intelligence and Judiciary Committees that are 
not made public.\48\ These reports are used for Congressional 
oversight purposes, but do not include FISA Court opinions. 
When the Act was passed in 1978, it required the Intelligence 
Committees for the first five years after enactment to report 
respectively to the House of Representatives and the Senate 
concerning the implementation of the Act and whether the Act 
should be amended, repealed, or permitted to continue in effect 
without amendment. Those public reports were issued in 1979-
1984 and discussed one FISA Court opinion issued in 1981, which 
related to the Court's authority to issue search warrants 
without express statutory jurisdiction.
---------------------------------------------------------------------------
    \48\ 50 U.S.C. Sections 1808, 1826, 1846, 1863.
---------------------------------------------------------------------------
    The USA PATRIOT Act of 2001 made substantial amendments to 
FISA, and those changes are subject to a sunset clause under 
which they shall generally cease to have effect on December 31, 
2005. That Act did not provide for any additional reporting to 
the Congress or the public regarding implementation of these 
amendments or FISA Court opinions interpreting them.
    Oversight of the entire FISA process is hampered not just 
because the Committee was initially denied access to a single 
unclassified opinion but because the Congress and the public 
get no access to any work of the FISA Court, even work that is 
unclassified. This secrecy is unnecessary, and allows problems 
in applying the law to fester. There needs to be a healthy 
dialogue on unclassified FISA issues within Congress and the 
Executive branch and among informed professionals and 
interested groups. Even classified legal memoranda submitted by 
the DOJ to, and classified opinions by, the FISA Court can 
reasonably be redacted to allow some scrutiny of the issues 
that are being considered. This highly important body of FISA 
law is being developed in secret, and, because they are ex 
parte proceedings, without the benefit of opposing sides 
fleshing out the arguments as in other judicial contexts, and 
without even the scrutiny of the public or the Congress. 
Resolution of this problem requires considering legislation 
that would mandate that the Attorney General submit annual 
public reports on the number of targets of FISA surveillance, 
search, and investigative measures who are United States 
persons, the number of criminal prosecutions where FISA 
information is used and approved for use, and the unclassified 
opinions and legal reasoning adopted by the FISA Court and 
submitted by the DOJ.
    As the recent litigation before the FISA Court of Review 
demonstrated, oversight also bears directly on the protection 
of important civil liberties. Due process means that the 
justice system has to be fair and accountable when the system 
breaks down.
    Many things are different now since the tragic events of 
last September, but one thing that has not changed is the 
United States Constitution. Congress must work to guarantee the 
civil liberties of our people while at the same time meet our 
obligations to America's national security. Excessive secrecy 
and unilateral decision making by a single branch of government 
is not the proper method of striking that all important 
balance. We hope that, joining together, the Congress and the 
Executive Branch can work in a bipartisan manner to best serve 
the American people on these important issues. The stakes are 
too high for any other approach.

                                   Patrick Leahy.
                                   Arlen Specter.
                                   Chuck Grassley.
                                   
                                   

              ADDITIONAL VIEWS OF SENATOR RUSSELL FEINGOLD

    As the title states, the purpose of S. 113 is to amend 
``the Foreign Intelligence Surveillance Act of 1978 to allow 
surveillance of non-United States persons who engage in or 
prepare for international terrorism without affiliation with a 
foreign government or international terrorist group.'' In other 
words, as the Majority describes it, the intent of S. 113 is to 
permit FISA warrants to be obtained against the so-called 
``lone wolf'' foreign terrorist. The lone-wolf terrorist is 
envisioned as an individual who has no identifiable ties to any 
foreign power, including any terrorist group.
    I voted for this bill in committee because I want to engage 
in further discussions concerning proposed amendments to the 
bill and help improve it before it is taken up on the floor. I 
have doubts, however, about the constitutionality and the 
wisdom of the bill as reported by the Committee.
    The approach taken in S. 113 would eliminate the current 
requirement in FISA that the individual who is the target of a 
warrant must be an agent of a foreign power. This means that S. 
113 may very well result in FISA serving as a substitute for 
some of our most important criminal laws. I am concerned that 
S. 113 goes further than necessary to address the concern over 
the ability of law enforcement to identify, investigate and 
apprehend the true lone-wolf terrorist.
    Like all Senators, I am extremely committed to taking every 
step necessary to protect our nation against terrorist attacks. 
But, I am troubled with the approach S. 113 takes to expand the 
use of Foreign Intelligence Surveillance Act. FISA represents 
an important exception to traditional constitutional restraints 
on criminal investigations, allowing the government to gather 
foreign intelligence information without having probable cause 
that a crime has been or is going to be committed. The courts 
have permitted the government to proceed with surveillance in 
this country under FISA's lesser standard of suspicion because 
the power is limited to investigations of foreign powers and 
their agents. S. 113 writes out of the statute a key 
requirement necessary to the lawfulness of intrusive 
surveillance powers that would otherwise be unconstitutional. 
See In re Sealed Case No. 02-001, slip op. at 42 (Foreign 
Intelligence Surveillance Ct. of Rev. Nov. 18, 2002) (while 
FISA requires no showing of probable cause of criminal 
activity, it is constitutional in part because it provides 
``another safeguard * * * that is, the requirement that there 
be probable cause to believe the target is acting `for or on 
behalf of a foreign power.' '')
    Even if S. 113 survives constitutional challenge, it would 
mean that non-U.S. persons could have electronic surveillance 
authorized against them using the lesser standards of FISA even 
though there is no conceivable foreign intelligence aspect to 
their cases. Judges would not even be able to use their 
discretion in reviewing a FISA warrant application to determine 
if a non-U.S. person is connected to any foreign power or 
terrorist group. This elimination of a foreign intelligence 
element of the warrant is contrary to the very purpose of FISA 
and the justification for its reduced standards.
    We should all recall the last time that Congress attempted 
to fix the rules for the use of FISA warrants in the USA 
PATRIOT Act. At that time, the expectation of most Senators was 
that the changes they were making to FISA would be used in a 
limited and reasonable manner. One change Congress authorized 
made it easier for FISA to be used in cases where the purpose 
of the investigation was primarily criminal prosecution rather 
than foreign intelligence gathering. Under USA PATRIOT Act, 
foreign intelligence gathering need only be a ``significant'' 
purpose of obtaining the warrant rather than the ``primary'' 
purpose.
    The decision of the Attorney General to use FISA warrants 
more aggressively in criminal cases after the USA PATRIOT Act 
was passed demonstrates the impact that changing a single word 
in the statute can have. Not surprisingly, there has been a 
significant increase in the use of FISA warrants in criminal 
cases since enactment of the USA PATRIOT Act. We could very 
well be looking at a similar result if S. 113 passes in its 
current form. Eliminating the agent of a foreign power 
requirement could lead to an even more dramatic increase in the 
use of FISA warrants in situations that do not justify such 
extraordinary government power.
    We are told that one of the inspirations for this bill was 
the case of Zacharias Moussaoui, the alleged 20th hijacker. One 
of the FBI's excuses for not seeking a warrant to search Mr. 
Moussaoui's computer prior to September 11th was that because 
it could not identify a foreign power or group with which 
Moussaoui was associated, it could not meet the ``agent of a 
foreign power'' requirement to get a FISA warrant. In the case 
of Moussaoui, a warrant application was never even submitted to 
the FISA court. As Senator Specter has pointed out, many legal 
observers believe that the FBI simply misread the law and that 
it could and should have obtained a FISA warrant against Mr. 
Moussaoui if it had tried.
    It is somewhat difficult to envision a foreigner in the 
U.S. planning an international terrorist attack who is not an 
agent of a foreign power, which includes a terrorist 
organization. But it is certainly possible that at a time a 
FISA warrant is sought good evidence of that connection might 
not be available. I support the effort to make sure that a 
request for a warrant in such cases is not denied. On the other 
hand, it is also very possible that at the time a request for a 
reauthorization of the FISA warrant is made, the government 
will have determined that the suspect is truly not an agent of 
a foreign power. In those situations, FISA should not apply, 
and the government should be required to use the investigative 
tools available under our criminal laws. The foreign 
intelligence rationale for FISA's lesser standard no longer 
exists. I believe that the bill should include safeguards to 
make sure that the new powers included in this bill are not 
abused. Without such safeguards, we risk having this bill 
thrown out by the courts.
    FISA must not be allowed to become the exception that 
swallowed the Fourth Amendment. There are ways to address the 
lone wolf terrorist that do not write the concept of ``foreign 
intelligence'' out of the Foreign Intelligence Surveillance 
Act. I hope that the full Senate will reduce the dangers that 
this bill poses to our constitutional freedoms.

                                                     Russ Feingold.

    X. Appendix A--Excerpts From Joint Inquiry Briefing by Staff on 
    United States Government Counterterrorism Organizations and on 
        the Evolution of the Terrorist Threat and United States 
                Response: 1986-2001, September 24, 2002

    The committees met, pursuant to notice, at 10:10 a.m., in 
Room 216, Hart Senate Office Building, the Honorable Porter 
Goss, Chairman of the House Permanent Select Committee on 
Intelligence, presiding.
    Senate Select Committee on Intelligence Members Present: 
Senators Graham, Shelby, Levin, Rockefeller, Feinstein, Bayh, 
Edwards, Mikulski, Kyl, Inhofe, Hatch, Roberts, and DeWine.
    House Permanent Select Committee on Intelligence Members 
Present: Representatives Goss, Bereuter, Castle, Boehlert, 
Gibbons, Hoekstra, Burr, Chambliss, Pelosi, Harman, Roemer, 
Boswell, Peterson, and Cramer.
    Senate Select Committee Staff Members Present: Alfred 
Cumming, Staff Director; William Duhnke, Minority Staff 
Director; Vicki Divoll, General Counsel; Kathleen McGhee, Chief 
Clerk; James Barnett, Randy Bookout, Steve Cash, Pete Dorn, 
Melvin Dubee, Bob Filippone, Chris Ford, Lorenzo Goco, James 
Hensler, Chris Jackson, Andrew Johnson, Ken Johnson, Hyon Kim, 
Don Mitchell, Matt Pollard, Don Stone, Tawanda Sullivan, Linda 
Taylor, Tracye Winfrey, and Jim Wolfe.
    House Permanent Select Committee on Intelligence Staff 
Members Present: Timothy R. Sample, Staff Director; Chrisopher 
Barton, Acting Chief Counsel; Michael W. Sheehy, Minority 
Counsel; Michael Meermans, James Lewis, L. Christine Healey, 
Carolyn Bartholomew, T. Kirk McConnell, Wyndee Parker, Bob 
Emmett, and William P. McFarland.
    Joint Inquiry Staff Members Present: Rick Cinquegrana, 
Michael Davidson, Eleanor Hill, Kay Holt, Michael Jacobson, 
Everett Jordan, Miles Kara, Thomas Kelley, Dana Lesemann, Lewis 
Moon, Patricia and Ravalgi.
    Also Present: Mr. Bowman, Deputy General Counsel, FBI; Mr. 
Rolince, Special Agent in Charge, FBI Washington Field Office; 
and David Nahmias, Department of Justice.
    FBI Headquarters Agent. A foreign power with regard to a 
FISA in a terrorism case would be a terrorist organization.
    Senator Levin. Exactly right. You don't need a foreign 
power. The terrorist organization is enough. Yet, this was not 
pursued because you were told that you had to prove that there 
was a foreign power connection.
    FBI Headquarters Agent. No, that is not true.
    Senator Levin. If that is not correct, fine, I will let 
Senator Edward's Q and A answer that.
    My question is this: Apparently there was an acknowledgment 
that there was a misinterpretation of the law. Okay. How much 
FISA requests were not made based on that misinterpretation of 
law, in addition to the one that we are talking about here? 
That is a very specific, numerical question. How many requests 
were not made based on the misinterpretation which was 
acknowledged or explored by Senator Edwards?
    Mr. Bowman. May I briefly answer that, if I may, Mr. 
Chairman? I don't know of any other instance in which something 
like this came up. But I don't think, Senator, that Senator 
Edwards' questions got quite to what you were focused on there. 
The fact of the matter is, that the agent of a foreign power is 
something that is not defined in the statute, but is addressed 
in the legislative history, which we have to follow, because 
that is where we get an explanation of it.
    An agent of a foreign power in the legislative history 
describes a knowing member of a group or organization, and puts 
an onus on the government to prove that there is a nexus which 
exists between that individual and the organization which would 
make it likely that that individual would do the bidding of the 
foreign power. That is the stretch that we weren't able to get 
to.
    Mr. Rolince. Mr. Chairman, I think that is absolutely 
essential, because there seems to be a disconnect between 
whether or not we did not get the FISA because we could not 
connect him to a foreign power.
    We did not get the FISA because the decision came out, in 
consultation with OGC, that we could not plead him as an agent 
of that foreign power.
    Senator Levin. If I could put in the record the definitions 
of foreign power in 50 U.S. Code Section 1801(A). And foreign 
power is defined as, including in Subsection 4, a group engaged 
in international terrorism, or activities in preparation 
therefore.
    Mr. Rolince. No disagreement, but we have to prove that he 
is an agent of that foreign power.
    Senator Levin. Of that group?
    Mr. Rolince. Right. That is where we were lacking. That he 
was an agent of that group.
    FBI Headquarters Agent. If I could, this is a very 
significant issue, and one that we should probably take up a 
closed session. And it needs to be explored, because this is a 
problem that we are going to face many times now in the future. 
And this issue of how to get at these so-called lone wolves 
needs to be addressed.
    But I wanted to ask you, Mr. Bowman, if I might, this 
question: Just quickly following up on Senator Levin's as I 
understand it, then, the FBI's national security lawyers 
essentially used the wrong standard of designated group, ergo 
Chechen, not on the list, ergo not designated, rather than any 
group. And some 3 weeks was taken in that endeavor.
    Then I think Senator Levin asked the question: Well, how 
much other FISA requests went through the same thing? Is the 
answer there was no other FISA--this was the only FISA request 
that happened to encounter that kind of false standard?
    Mr. Bowman. Two different parts of your question, Senator. 
First of all, no one in the national security law arena said 
that the Chechens were not a power that could be--that could 
qualify as a foreign power under the FISA statute.
    The issue that came to us was whether there was any foreign 
power to which you could attach Moussaoui. And we did not see 
that.
    The second part of your question was whether there are 
others who have been given an erroneous standard, whether there 
were other FISAS that did not come to us because there was an 
erroneous standard. I don't know what I don't know.
    This is the only time that I have heard that advice was 
actually given that you don't have--you don't have a foreign 
power, because there isn't a recognized one. That is certainly 
not what we train them to.

   XI. Appendix B--Letter from Judiciary Committee Chairman Hatch to 
     Senators Leahy, Grassley and Specter, Dated February 27, 2003

                                       U.S. Senate,
                                Committee on the Judiciary,
                                 Washington, DC, February 27, 2003.
Senator Patrick J. Leahy,
Ranking Minority Member, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Senator Charles E. Grassley,
U.S. Senate, Washington, DC.
Senator Arlen Specter,
U.S. Senate, Washington, DC.
    Dear Senators Leahy, Grassley and Specter: I have reviewed 
your Interim Report on FISA Implementation Failures which you 
released Tuesday. Examining the performance of the FBI, and 
specifically, the FBI's investigative efforts prior to the 
September 11th attack is an important function of the Committee 
and I commend your interest and efforts in assisting with this 
matter.
    At the outset, I am deeply concerned about the manner in 
which the Interim Report was issued as a report of the 
Committee's investigation at your press conference. This report 
does not represent my view as Chairman of the Judiciary 
Committee, nor does it represent the views of the Judiciary 
Committee. Rather, the Interim Report represents the views of 
you as three Senators on the Judiciary Committee. Indeed, you 
have a right to express your individual views as provided in 
the Interim Report, however, as described below, there is much 
in the report that I, and probably other Members, find 
objectionable, stale or incomplete. For these reasons, I object 
to any suggestion in the Interim Report that it is a Judiciary 
Committee report and advise that you ensure that the public 
does not mistakenly view this as such.
    Like each of you, I am committed to ensuring that the FBI 
performs its functions in the highest manner to protect the 
safety of Americans and the Judiciary Committee has an 
important role in conducting appropriate oversight of the 
Bureau. I have not refrained from pointing out FBI deficiencies 
in the past, and will do so again, if warranted. Given the 
obvious dangers in the world today, it is even more important 
that the Committee continue oversight of the FBI to ensure that 
it fulfills its important mission of investigating, detecting 
and preventing further terrorist attacks on our country, 
without threatening or undermining our country's cherished 
freedoms. But, as I have said before, I will not support 
oversight efforts, which could be viewed by the public as 
misleading or incomplete, rather than objectively addressing 
real problems and identifying solutions to those problems. 
Congressional oversight must have an eye towards reforming the 
FBI, protecting the American public, and making sure that our 
country never again has to suffer a devastating attack on its 
soil.
    I fully understand that many so-called ``civil liberties'' 
groups have complained to the Committee in the past, and will 
continue to complain in the future, that our law enforcement 
communities must perform under additional super-constitutional 
constraints. Despite court cases to the contrary, many continue 
to argue for requirements beyond what our Constitution demands. 
I do believe that they have the right to express their 
positions to Congress. I also agree that we must ensure that 
our law enforcement authorities do not violate any provisions 
of the Constitution, whether under the 4th Amendment, the 1st 
Amendment or any other provisions of our laws. However, I 
simply don't share their views, especially since September 11, 
2001, that we limit out intelligence and law enforcement 
abilities with requirements that go above and beyond those 
required by our Constitution, which will tend to have the 
effect of protecting terrorists and criminals while endangering 
the lives of Americans.
    It is important that we remember the events surrounding the 
September 11th attack. FBI Director Robert Mueller was sworn in 
as Director one week before the September 11th attack. When he 
took over the FBI, he took the reins of an organization which 
had been subjected to intense criticism and media coverage due 
to the handling of the McVeigh documents, the Hanssen spy case, 
and the Wen Ho Lee investigation. All of us worked together in 
a bi-partisan manner and conducted meaningful oversight to each 
of these important issues. Director Mueller accepted the 
difficult task of leading the FBI during this turbulent time as 
the agency. On September 11th, his challenge increased by 
several orders of magnitude.
    The Senate Judiciary Committee and the bi-cameral Joint 
Intelligence Inquiry raised significant issues concerning the 
FBI's pre-9/11 investigation, particularly in Minneapolis and 
Phoenix. The Joint Intelligence Inquiry reviewed these issues 
in great detail. Moreover, Congress created the bipartisan 
National Commission to Prevent Terrorist Attacks, which is 
conducting yet another review of this issue. Given these 
numerous inquiries, our focus today, however, should not be on 
identifying miscues with 20-20 hindsight in order to simply 
embarrass the FBI. Rather, our inquiry should be tailored to 
reforming the FBI with a forward-looking approach aimed at 
giving Director Mueller the support and resources he needs to 
change the direction of the FBI, where needed. The FBI needs to 
be ready to meet the challenges of the future, and in my 
opinion, based on my recent experience both on this Committee 
and on the Intelligence Committee, on which I also serve, I 
believe FBI Director Mueller is willing, able and meeting this 
challenge.
    Director Mueller's recent reforms which he initiated after 
a full review, including those that Congress required are being 
implemented. As we have been briefed, Director Mueller's 
reorganization plan at FBI headquarters and in the field will 
improve the FBI's analytic capability; enhance its ability to 
gather, analyze and disseminate intelligence concerning 
terrorists and racketeers; further its ability to share 
information internally and with other law enforcement and 
intelligence agencies; and decentralize those functions that 
need to be reallocated to the field while centralizing critical 
intelligence functions.
    Much of the criticism you cite relates to some of the 
previous administration's shortcomings as well as problems 
caused by our laws which the PATRIOT Act that the Senate passed 
with only one dissenting vote last year have resolved. 
Moreover, President Bush's recent order instructing the 
Directors of the Federal Bureau of Investigation, and the 
Central Intelligence Agency, the Secretary of Homeland Security 
and the Secretary of Defense to develop a Terrorist Threat 
Integration Center builds on the FBI reforms, and will ensure 
that the FBI is fully integrated into the analysis and 
dissemination of all terrorist-related information. As you well 
know, the Terrorist Threat Integration Center will ensure that 
law enforcement and intelligence agencies work together to 
share information, to make sure that connections are made, and 
identify and assess all significant threats to our country.
    It is in this context that I now turn to the Interim 
Report. While I appreciate your oversight efforts and the 
preparation of the Interim Report, I have several significant 
concerns which are outlined below. In my view, the Interim 
Report contains several errors and omissions. I will identify 
what I consider to be some of the more significant issues. I 
offer these observations in the hope that you may re-examine 
your analysis of your reported ``oversight,'' as well as some 
of the more significant conclusions contained in the Interim 
Report. Again, it is my hope that working together we can find 
objective and responsible common ground for a proper oversight.

                  A. IMPROVEMENTS IN THE FISA PROCESS

    I would hope you agree with me on the importance of the 
FISA process to the intelligence community and law enforcement 
agencies in order to conduct critical intelligence gathering 
needed to protect our country and prevent further terrorist 
attacks. Importantly, contrary to the suggestions contained in 
the Interim Report, over the last 18 months the Department and 
the FBI have made great progress in improving the FISA process. 
Your Interim Report does not discuss any of these improvements, 
and offers only a restatement of complaints that were fully 
analyzed and, I believe, corrected by the Justice Department 
and the FBI. I suggest this only to correct the record so that 
the public is not left with the impression that the FBI has not 
corrected past problems, which I believe your Report might well 
do in parts.
    In addition, the Interim Report significantly omits any 
discussion of perhaps the most significant improvement in the 
FISA process--which was the direct result of the Justice 
Department's successful appeal to the Foreign Intelligence 
Surveillance Review Court. On November 18, 2002, the Review 
Court issued a unanimous decision which largely adopted the 
Justice Department's interpretation of FISA that: (1) the use 
of foreign intelligence electronic surveillance for criminal 
purposes is appropriate, particularly in light of Congress' 
passage of the PATRIOT Act in 2001, which passed with only one 
dissenting vote in the Senate and which relaxed the prior 
restrictions on the government's use of foreign intelligence 
electronic surveillance; and (2) the restrictions imposed by 
the Clinton Administration on the sharing of information 
between intelligence and law enforcement agencies were 
unnecessary and not required by a 1978 statute authorizing such 
electronic surveillance nor mandated by the Constitution. This 
was a very significant point, in my opinion.
    1. FISA Application Inaccuracies. Instead of focusing on 
issues arising from implementation of the November 18, 2002 
Review Court decision, the interim Report repeats and re-hashes 
issues relating to inaccuracies in past-filed FISA 
applications, occurring nearly two years ago. This issue was 
addressed fully in prior hearings and oversight inquiries and 
correspondence. While the FBI has acknowledged that there were 
accuracy problems with the submission of two sets of FISA 
applications submitted in late 2000 and early 2001,\1\ the 
Interim Report ignores the fact that the FBI and the Justice 
Department instituted procedural changes to make sure that such 
errors do not occur again. Specifically, as you know, on April 
5, 2001, the FBI adopted the so-called ``Woods Procedures'' to 
ensure the accuracy of FISA applications. Among other things, 
the procedures require FBI field offices to review draft FISA 
applications for accuracy. On May 18, 2001, the Attorney 
General issued a memorandum, copies of which were submitted to 
the Committee, that requires, among other things, direct 
contact between the Justice Department's Office of Intelligence 
and Policy Review and FBI field offices and additional FISA 
training for FBI agents.
---------------------------------------------------------------------------
    \1\ These incidents are under review by the FBI's and Justice 
Department's Offices of Professional Responsibility. The Justice 
Department briefed the Senate Judiciary Committee staff and the 
Intelligence Committees of these accuracy issues.
---------------------------------------------------------------------------
    It is also significant to note--which is nowhere mentioned 
in the Interim Report--that since September 11th, the Justice 
Department has filed more than twice as many emergency FISA 
applications as it did in the previous 22 years, and it has 
done so without a significant accuracy problem. In April 2002, 
Judge Royce Lamberth, who was then the Presiding Judge of the 
FISA Court, publicly stated, ``we consistently find the [FISA] 
applications `well scrubbed' by the Attorney general and his 
staff before they are presented to us.'' He also stated that 
``the process is working. It is working in part because the 
Attorney General is conscientiously doing his job, as is his 
staff.''
    2. FISA Application Processing Time. The Interim Report 
suggests that processing of FISA applications is slow. In my 
opinion, the Interim Report omits, however, any mention of one 
vital index of timeliness--the number of emergency FISAs (cases 
in which there is an emergency requiring a search of 
surveillance to be conducted before a court order ``can with 
due diligence be obtained'')--has increased dramatically. As 
the Justice department reported in an October 7, 2002 letter to 
Senator Biden, it conducted 113 emergency FISA searches and 
surveillances in the one-year period between September 11, 
2001, and September 19, 2002, compared to a total of only 46 
emergency FISAs in the preceding 23 years of the statute's 
existence. This information, which reflects truly commendable 
efforts by FBI and Justice Department personnel, is a necessary 
part of any balanced account of the timeliness of the FISA 
process, and is not acknowledged in the Interim Report.
    3. Training. The Interim Report suggests that there is a 
need for increased training of FBI and Justice Department 
personnel, but does not acknowledge existing training programs 
which were established in the latter part of 2002. The Interim 
report correctly identifies deficiencies in the legal training 
of FBI personnel handling FISA applications prior to the 
September 11th attack, and specifically outlines how these 
deficiencies may have contributed to the mishandling of a 
possible FISA search warrant for Zacarias Moussaoui's personal 
effects before the September 11th attack. On this issue, I 
agree with your analysis and concern, and we have heard about 
this. These allegations were fully discussed and vetted during 
Judiciary Committee and Intelligence Joint Inquiry Hearings in 
2002, and I believe have now been addressed by Attorney General 
Ashcroft and FBI Director Mueller.
    Moreover, the Interim Report completely ignores recent and 
significant steps taken by the Justice Department and the FBI 
to ensure proper training of FBI personnel. This training 
program is even more critical given the FISC decision of 
November 18, 2002. Specifically, on December 24, 2002, the 
deputy Attorney General instructed the Counsel for Intelligence 
Policy, the Assistant Attorney General for the Criminal 
Division, and the Director of the FBI to ``jointly establish 
and implement a training curriculum for all Department lawyers 
and FBI agents who work on foreign intelligence or 
counterintelligence investigations, both in Washington, DC and 
in the field, including Assistant United States Attorneys 
designated under the Department's March 6, 2002 Intelligence 
Sharing Procedures. At a minimum, the training shall address 
the FISA process, the importance of accuracy in FISA 
applications, the legal standards (including probable cause) 
set by FISA, coordination with law enforcement and with the 
Intelligence Community, and the proper storing and handling of 
classified information.''

                B. COOPERATION OF THE JUSTICE DEPARTMENT

    Throughout the Interim Report, you have suggested that the 
Department of Justice has not cooperated with the Committee's 
oversight requests for information. As Chairman of the 
Committee, I disagree with this criticism for the following 
reasons stated below.
    I am aware of the Justice Department's letter to you dated 
September 13, 2002, which describes in detail all of the 
information made available to you in response to specific 
oversight requests. As noted in the letter, the Justice 
Department provided access to: (1) FBI supervisors, including a 
Supervisory Special Agent, a Headquarters Unit Chief, and a 
Deputy General Counsel, who briefed Judiciary Committee staff 
on 7 separate occasions (February 24, April 17, April 24, June 
3, June 4, June 27 and July 9, 2002); (2) senior Justice 
Department officials, including the Counsel for Intelligence 
Policy and Associate Deputy Attorney General, who briefed 
Judiciary Committee staff on 8 separate occasions (June 3, June 
27, July 27, August 23, August 28, August 29, September 3 and 
September 6, 2002), and testified at open hearings on September 
10, 2002; (3) numerous documents which were submitted in 
response to requests from your staff; and (4) written responses 
to over 300 questions for the record, with hundreds of 
additional questions set forth in sub-parts, totaling over 300 
pages, in response to oversight requests from the House and 
Senate Judiciary.
    In addressing this issue, you ignore the extensive and 
vigorous oversight which occurred with the full cooperation of 
the Justice Department. In particular, the Interim Report 
describes, and even quotes from, a number of full Committee 
hearings with senior Justice Department and FBI officials on 
July 31, 2001; November 28, 2001; December 6, 2001; March 21, 
2002; April 9, 2002; May 8, 2002; June 6, 2002; July 25, 2002; 
and September 10, 2002. Further, as the Interim Report 
acknowledges (page 16), ``these are only the full Judiciary 
Committee hearings related to the FBI oversight issues in the 
107th Congress. The Judiciary Committee's subcommittees also 
convened numerous, bipartisan oversight hearings relating to 
the FBI's performance both before and after 9/11.'' The Interim 
Report also notes that members and staff ``conducted a series 
of closed hearings, briefings and made numerous written 
inquiries'' on FISA issues, and submitted ``written inquiries, 
written hearing questions and other informal requests,'' 
including letters to the Attorney General and the FBI Director 
dated November 1, 2001; May 23, 2002; June 4, 2002; June 13, 
2002; July 3, 2002; and July 31, 2002. Thus, contrary to your 
general claims of lack of cooperation, your Interim Report 
demonstrates unequivocally that the Justice Department has 
cooperated by providing access to numerous senior officials, 
responsible personnel, and volumes of documents. This 
cooperation should be commended not condemned if we are to have 
constructive oversight.
    The Interim Report also criticizes, and in my opinion 
unfairly, the Justice Department for refusing to release the 
May 17, 2002 opinion of the Foreign Intelligence Surveillance 
Court--the Department informed the Committee of the existence 
of the opinion in early June 2002--without the permission of 
the FISC. As the Justice Department explained, however, it 
generally must respect the prerogative of courts to control the 
release of their own opinions, particularly where, as here, the 
opinion in question was unprecedented. The Justice Department, 
the FISA, concluded that it was the FISA's decision whether or 
not to release publicly the May 17 opinion; ultimately, the 
FISA's opinion and order was made available to Congress and the 
public by the FISA itself in response to a request from the 
Committee. The FISA also advised the Committee in writing of 
its intent to make public unclassified opinions in the future.

                C. EXISTING CONGRESSIONAL FISA OVERSIGHT

    The Interim Report calls for more oversight of the FISA 
process. However, the Interim Report fails to describe 
accurately existing Congressional oversight of the FISA 
process. The Justice Department already provides significant 
information--classified and unclassified--to the Intelligence 
Committees, consistent with long-established practices for the 
disclosure and handling of classified information. In reporting 
to the Intelligence Committees, the Justice Department is 
required to ``fully inform'' the Intelligence Committees 
concerning FISA electronic surveillance, physical searches, pen 
registers and trap and traces, and requests for records (50 
U.S.C. Sections 1808(a)(1), 1826, 1846(a), and 1862(b)); while 
the FISA reporting obligations to the Judiciary Committees are 
much more generic. 50 U.S.C. Sections 1826, 1846(b), 1862(b).
    As you may be aware, the ``fully inform'' standard that 
governs FISA oversight is the same standard that governs 
Congressional oversight of the intelligence community in 
general. See S. Rep. No. 95-604, 95th Cong., 1st Sess. 60-61 
(1977); S. Rep. No. 95-701, 95th Cong., 2d Sess. 67-68 (1978); 
see also, H.R. Rep. No. 95-1283, pt. 1, 95th Cong., 2d Sess. 96 
(1978). Such a requirement reflects a careful balance between 
the need for meaningful oversight and the need for secrecy and 
information security in the government's efforts to protect 
this country from foreign enemies. Under the ``fully inform'' 
standard, the Justice Department submits lengthy and detailed 
classified semi-annual reports to the Intelligence Committees, 
including specific information on ``each criminal case in which 
information acquired [from a FISA electronic surveillance] has 
been authorized for use at trial, 1150 U.S.C. Section 
1808(a)(2)(B), and ``the number of physical searches which 
involved searches of the residences, offices or personal 
property of United States persons,'' 50 U.S.C. Section 1826(3). 
Moreover, under current law, the Attorney General makes public 
``the total number of applications made for orders and 
extensions of orders'' approving electronic surveillance and 
physical searches under FISA, and ``the total number of such 
orders and extensions either granted, modified or denied.'' 50 
U.S.C. Section 1807, 1826.
    In addition to my service on the Senate Judiciary 
Committee, I have served for the past six years on the Senate 
Select Committee on Intelligence, where I have participated in 
vigorous oversight of the FISA process. Based on my experience, 
I can assure you that the Congress exercises appropriate, 
vigorous, robust and detailed oversight of the FISA process. 
Again, I thought that this is important to note, as I did not 
want your Report to leave the impression with the public that 
the FISA process is somehow unchecked by Congress.
    I want to reiterate my hope and insistence that we engage 
in proper and constructive oversight to provide the American 
public the most important check on the most important functions 
of our government, our law enforcement and intelligence 
functions. Meaningful oversight requires a fair and balanced 
approach if we are to be obtain useful reforms where needed. As 
you fully appreciate, after September 11, 2001, we are in a new 
era as Congress realized in passing the Patriot Act with near 
unanimous approval, and with only one dissenting Senate vote. 
The security of our country is at stake, and we owe American 
people our full cooperation in discharging our Constitutional 
functions in addressing these critical issues.
            Sincerely,
                                            Orrin G. Hatch,
                                                          Chairman.

XII. Appendix C--Letter From the Department of Justice to Senate Select 
  Committee on Intelligence Chairman Graham and Vice-Chairman Shelby, 
                          Dated August 6, 2002

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                    Washington, DC, August 6, 2002.
Hon. Bob Graham,
Chairman,
Hon. Richard C. Shelby,
Vice-Chairman,
Select Committee on Intelligence, U.S. Senate, Washington, DC
    Dear Chairman Graham and Vice-Chairman Shelby: We 
appreciate the care shown by Senator Edwards and the staff of 
the Senate Select Committee on Intelligence (``SSCI'') in the 
drafting of the proposed bill to require additional public 
disclosures regarding the use of the Foreign Intelligence 
Surveillance Act of 1978 (``FISA''), 50 U.S.C. Sec. 1801 et 
seq. We also appreciate the underlying concern of Senator 
Edwards that data on the use of FISA, to the extent prudent, be 
made available to the public.
    We must nonetheless state our opposition, on policy 
grounds, to the draft bill. Section 107 of FISA, 50 U.S.C. 
Sec. 1807, already requires that the Attorney General provide, 
on an annual basis, data on the use of FISA to the 
Administrative Office of the United States Courts and to 
Congress. Under this section, the Attorney General must report 
the total number of applications made for orders and extensions 
of orders approving electronic surveillance under FISA, and the 
total number of such orders and extensions either granted, 
modified, or denied. Though not required under the Act, the 
Attorney General also reports such data on physical searches 
applied for under FISA. These data and reports are made in 
unclassified form and are therefore available to the public.
    Under section 108 of FISA, 50 U.S.C. Sec. 1808, the 
Attorney General also provides the SSCI and the House Permanent 
Select Committee on Intelligence (``HPSCI'') with classified 
semi-annual reports containing much more extensive data on the 
use of FISA and a review of any significant legal and 
operational developments that have occurred during the previous 
6 months. These are long and detailed reports that are 
painstakingly prepared in the Justice Department and are 
obviously, from the questions and comments they generate, 
closely scrutinized by the intelligence committees. We have 
appreciated the engagement of the Members and staff of SSCI and 
HPSCI in responding to these reports and in helping to make 
them a better tool for congressional oversight of the Justice 
Department's use of FISA. Under FISA, 50 U.S.C. Sec. 1826, the 
Attorney General also makes a separate, semi-annual classified 
report to SSCI and HPSCI and to the Judiciary Committee of each 
House on the use of physical searches under FISA and, in 
particular, on the use of physical searches under the Act 
against United States persons. In addition to these reports, 
the Attorney General and the Department of Justice have 
responded informally and formally, at all times during the 
year, to questions and issues that arise in these committees on 
the use of FISA.
    Senator Edwards' draft legislation would amend sections 
1807 and 1826 to require additional public disclosures of:
          (1) the number of U.S. persons targeted for 
        electronic surveillance and physical search under FISA; 
        and
          (2) in a manner consistent with the protection of 
        national security, ``significant interpretations'' of 
        FISA by the Foreign Intelligence Surveillance Court 
        (``FISC''), including, as appropriate, redacted 
        portions of opinions and orders of the FISC.
Under sections 1808 and 1826, the Justice Department currently 
provides the SSCI and HPSCI with these numbers and with a 
summary of significant legal and operational developments in 
FISA in its classified semi-annual reports. The FISC also has, 
on a very few occasions, issued procedural rules or rulings 
that are unclassified and therefore available at the Court's 
initiative to Congress and the public.
    However, except for those few rules and rulings, there is 
very little in the decisions of the FISC that does not discuss 
the facts, the techniques, or the pleading of specific and 
highly classified operations under FISA. There is even less in 
those decisions and in the numbers that would be disclosed in 
the proposed legislation that would not reveal patterns of 
practice under FISA that would help our adversaries elude the 
eyes and ears of United States intelligence. For example, the 
numbers of United States persons targeted under FISA might 
reveal the extent to which status as a United States person, as 
a practical or operational matter, provides refuge from 
scrutiny under FISA. An interpretation by the FISC of the 
applicability of FISA to a technique or circumstance, no matter 
how conceptually drawn, could provide our adversaries with 
clues to relative safe harbors from the reach of FISA. The 
terrorists who remain at large in the United States (and likely 
the ones who will follow) are sophisticated in their 
communications tradecraft and sensitive to the possible use of 
FISA against them. They, more than may be apparent to Congress 
or to the public, may learn from any further disclosures of 
FISA practice and interpretations how better to defeat the 
tools of scrutiny under that Act.
    Section 107 of FISA and 50 U.S.C. Sec. 1826, which this 
bill would alter, have not been amended since their original 
enactments in 1978 and 1994, respectively. This suggests to us 
that Congress and its constituents believe, as we do, that the 
proper forum for the disclosure of FISA operations remains in 
the secure rooms of the intelligence committees and not, any 
more than is currently provided for in section 107, in the 
public domain, which is available to our adversaries. In our 
view, the centrality and sensitivity of FISA to our ongoing 
national effort against terrorism makes this a particularly 
inappropriate time to provide our adversaries with any more 
data on the tools we are using so effectively against them.
    The Administration strongly believes that our use of the 
necessarily secret tool of FISA must, as set forth by the 
framers of the Act, be made subject to the keen and diligent 
scrutiny of the intelligence committees. But we believe just as 
strongly that it is there, rather than in any forum accessible 
to our adversaries, that the data on FISA operations described 
in this proposed legislation should be disclosed.
    Thank you for the opportunity to present our views. Please 
do not hesitate to call upon us if we may be of additional 
assistance. The Office of Management and Budget has advised us 
that from the perspective of the Administration's program, 
there is no objection to submission of this letter.
            Sincerely,
                                          Daniel J. Bryant,
                                        Assistant Attorney General.

 XIII. Appendix D--Letter From the Department of Justice to Judiciary 
           Committee Chairman Leahy, Dated December 23, 2002

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                 Washington, DC, December 23, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Enclosed please find a response to your 
written question submitted to the Deputy Attorney General at 
the hearing before the Senate Judiciary Committee on May 8, 
2002. We are providing a response to question 19 relating to 
the changes section 215 of the USA PATRIOT Act made to 
provisions of the Foreign Intelligence Surveillance Act (FISA). 
The Department is continuing to gather information to answer 
the remaining questions posed to the Deputy Attorney General 
and the Director of the Federal Bureau of Investigation, and we 
will forward those responses as soon as possible.
    Please note that the response to question 19 requires the 
Department to provide information that is classified at the 
SECRET level. That classified information is being delivered to 
the Committee under separate cover and in accordance with the 
longstanding Executive branch practices on the sharing of 
operational intelligence information with Congress.
    We appreciate your oversight interest in the Department's 
activities pursuant to the USA PATRIOT Act. We look forward to 
continuing to work with the Committee as the Department 
implements these important new tools for law enforcement in the 
fight against terrorism. If we can be of further assistance on 
this, or any other matter, please do not hesitate to contact 
this office.
            Sincerely,
                                          Daniel J. Bryant,
                                        Assistant Attorney General.
    Enclosure.

                 Questions Submitted by Chairman Leahy


Questions for Director Mueller and Deputy Attorney General Thompson

    19. Section 215 of the Patriot Act allows all FBI Special 
Agents in Charge to obtain court orders requiring the 
production of ``any tangible things (including books, records, 
papers, documents, and other items)'' in connection with 
terrorism investigations. There have been reports that this 
authority is being used to obtain records, without showing 
probable cause that a crime has been committed, from a library 
or bookstore about what books a person has signed our or 
purchased.
    (a) Has the FBI, in fact, requested such records in any 
investigation of terrorism?
    Answer. Section 215 amended the business records authority 
found in Title V of the Foreign Intelligence Surveillance Act 
(FISA). Under the old language, the FISA Court would issue an 
order compelling the production of certain defined categories 
of business records upon a showing of relevance and ``specific 
and articulable facts'' giving reason to believe that the 
person to whom the records related was an agent of a foreign 
power. The USA PATRIOT Act changed the standard to simple 
relevance and gives the FISA Court the authority to compel 
production in relation to an authorized investigation to 
protect against international terrorism or clandestine 
intelligence activities, provided that such investigation of a 
U.S. person is not conducted solely upon the basis of 
activities protected by the First Amendment to the 
Constitution.
    The classified semi-annual report discussing the use of 
sections 1861-1863 of FISA for the period June 30, 2001 through 
December 31, 2001 was provided to the Intelligence and 
Judiciary committees of both houses of Congress on April 29, 
2002. That report was provided under cover letter to each 
committee chairman. Although not specified in the statute, the 
Department's practice has been to submit the reports covering 
January 1 through June 30 of a given year, by the end of 
December of that year. The Department of Justice is currently 
preparing the semi-annual report covering the period January 1, 
2002 through June 30, 2002.
    The Department is able at this time to provide information 
pertaining to the implementation of section 215 of the USA 
PATRIOT Act from January 1, 2002 to the present (December 23, 
2002). That information is classified at the SECRET level and, 
accordingly, is being delivered to the Committee under separate 
cover.
    (b) Can such an order be served on a public library to 
require the library to produce records about where a library 
patron has surfed on the Internet? Has such an order been 
sought by the Department or the FBI?
    Answer. Such an order could conceivably be served on a 
public library although it is unlikely that public libraries 
maintain those types of records. If the FBI were authorized to 
obtain the information the more appropriate tool for requesting 
electronic communication transactional records would be a 
National Security Letter (NSL). NSLs can be served on Internet 
Service Providers to obtain information such as subscriber 
name, screen name or other on-line names, records identifying 
addresses of electronic mail sent to and from the account, 
records relating to merchandise orders/shipping information, 
and so on but not including message content and/or subject 
fields.
    (c) Do you think that library and bookstore patrons have a 
``reasonable expectation of privacy'' in the titles of the 
books they have purchased from a bookstore or borrowed from a 
library?
    Answer. Any right of privacy possessed by library and 
bookstore patrons in such information is necessarily and 
inherently limited since, by the nature of these transactions, 
the patron is reposing that information in the library or 
bookstore and assumes the risk that the entity may disclose it 
to another. Whatever privacy interests a patron may have are 
outweighed by the Government's interest in obtaining the 
information in cases where the FBI can show the patron's 
relevance to an authorized full investigation to protect 
against international terrorism or clandestine intelligence 
activities, provided that such investigation of a United States 
person is not conducted solely upon the basis of activities 
protected by the First Amendment to the Constitution.
                                ------                                

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                 Washington, DC, December 23, 2002.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Enclosed please find responses to 
written questions to the Attorney General at the hearing before 
the Committee on the Judiciary entitled ``Oversight Hearing of 
the Department of Justice'' on July 25, 2002. We are providing 
responses to questions 14, 15, 31, 32, 33 and 34, all of which 
relate to the implementation of the USA PATRIOT Act, the 
changes the Act made to provisions of the Foreign Intelligence 
Surveillance Act (FISA), and the FISA process itself. The 
Department is continuing to gather information to answer the 
remaining questions posed to the Attorney General and we will 
forward those responses as soon as possible.
    Please note that the response to question 14(b) requires 
the Department to provide information that is classified at the 
SECRET level. That classified information is being delivered to 
the Committee under separate cover and under the longstanding 
Executive branch practices on the sharing of operational 
intelligence information with Congress.
    We appreciate your oversight interest in the Department's 
activities pursuant to the USA PATRIOT Act. We look forward to 
continuing to work with the Committee as the Department 
implements these important new tools for law enforcement in the 
fight against terrorism. If we can be of further assistance on 
this, or any other matter, please do not hesitate to contact 
this office.
            Sincerely,
                                          Daniel J. Bryant,
                                        Assistant Attorney General.
    Enclosure.

  Written Questions of Senator Patrick Leahy, Chairman of the Senate 
           Judiciary Committee to the Honorable John Ashcroft


USA PATRIOT Act and Libraries

    14. The Committee has learned of growing concern among 
professional librarians that the USA PATRIOT Act is leading to 
a greater number of federal law enforcement demands for records 
of the use of library services, as well as orders to librarians 
to keep those requests secret. There is confusion over whether 
the orders allow the librarians to disclose the fact of a 
request, without disclosing any substance such as the name of 
the person involved. It is also not clear whether these secrecy 
orders are being issued for general law enforcement purposes 
beyond the scope of the Foreign Intelligence Surveillance Act.
    (A) Please clarify what the Department is doing to impose 
secrecy on its demands for information from libraries.
    A Court order issued pursuant to section 1861 of FISA 
(amended by section 215 of the USA PATRIOT Act) to compel the 
production of certain defined categories of business records 
would contain language which prohibits officers, employees or 
agents of companies or institutions receiving such an order 
from disclosing to the target or to persons outside the company 
or institution the fact that the FBI has sought or obtained 
access to those defined categories of business records.
    An FBI National Security Letter served upon an 
establishment, such as a library, for the purpose of obtaining 
electronic communications transactional records, contains 
language invoking Title 18, United States Code, Section 
2709(c), which prohibits any officer, employee, or agent of the 
establishment from disclosing to any person that the FBI has 
sought or obtained access to that information or records.
    (B) How many demands for library information has the 
Department made since enactment of the USA PATRIOT Act, as well 
as the legal authority that was used to require secrecy?
    Section 215 of the USA PATRIOT Act amended the business 
records authority found in Title V of the Foreign Intelligence 
Surveillance Act (FISA). This authority can be used to obtain 
certain types of records from libraries that relate to FBI 
foreign intelligence investigations. Under the old language, 
the Foreign Intelligence Surveillance Court (FISC) would issue 
an order compelling the production of certain defined 
categories of business records upon a showing of relevance and 
``specific and articulable facts'' giving reason to believe 
that the person to whom the records related was an agent of a 
foreign power. The USA PATRIOT Act changed the standards to 
simple relevance and gives the FISC the authority to compel 
production in relation to an authorized investigation to 
protect against international terrorism or clandestine 
intelligence activities, provided that such investigation of a 
U.S. person is not conducted solely upon the basis of 
activities protected by the First Amendment to the 
Constitution.
    The classified semi-annual report discussing the use of 
sections 1861-1863 of FISA for the period June 30, 2001 through 
December 31, 2001 was provided to the Intelligence and 
Judiciary committees of both houses of Congress on April 29, 
2002. That report was provided under cover letter to each 
committee chairman. Although not specified in the statute, the 
Department's practice has been to submit the reports covering 
January 1 through June 30 of a given year, by the end of 
December of that year. The Department of Justice is currently 
preparing the semi-annual report covering the period January 1, 
2002 through June 30, 2002.
    The Department is able at this time to provide information 
pertaining to the implementation of section 215 of the USA 
PATRIOT Act from January 1, 2002 to the present (December 23, 
2002). That information is classified at the SECRET level and, 
accordingly, is being delivered to the Committee under separate 
cover.
    (C) How many libraries has the FBI visited (as opposed to 
presented with court orders) since passage of USA Patriot Act?
    Information has been sought from libraries on a voluntary 
basis and under traditional law enforcement authorities not 
related to the Foreign Intelligence Survelliance Act or the 
changes brought about by the USA PATRIOT Act. While the FBI 
does not maintain statistics on the number of libraries visited 
by FBI Agents in the course of its investigations, an informal 
survey conducted by the FBI indicated that field offices had 
sought information from libraries. For example, various offices 
followed up on leads concerning e-mail and Internet use 
information about specific hijackers from computers in public 
libraries.
    (D) Is the decision to engage in such surveillance subject 
to any determination that the surveillance is essential to 
gather evidence on a suspect which the Attorney General has 
reason to believe may be engaged in terrorism-related 
activities and that it could not be obtained through any other 
means?
    The authority to compel the production of business records 
from libraries does not permit any type of ``surveillance.'' 
Under the Foreign Intelligence Surveillance Act (FISA), 
electronic surveillance authority is permissible upon a showing 
of probable cause that the target of the surveillance is a 
foreign power or any agent of a foreign power and each of the 
facilities or places at which the surveillance is being 
directed is being used or is about to be used by a foreign 
power or an agent of a foreign power.
    As stated above, section 215 of the USA PATRIOT Act amended 
the business records authority found in Title V of FISA. This 
authority can be used for obtaining certain types of records 
from libraries that relate to FBI foreign intelligence 
investigations. Under the old language, the FISC would issue an 
order compelling the production of certain defined categories 
of business records upon a showing of relevance and ``specific 
and articulable facts'' giving reason to believe that the 
person to whom the records related was an agent of a foreign 
power. The PATRIOT Act changed the standards to simple 
relevance and gives the FISC the authority to compel production 
in relation to an authorized investigation to protect against 
international terrorism or clandestine intelligence activities, 
provide that such investigation of a U.S. person is not 
conducted solely upon the basis of activities protected by the 
First Amendment to the Constitution.
    15. Sec. 215 of the Act expands the range of records that 
can be requested from a library or educational institution to 
include ``business records'' which may include information 
about individuals beyond the target of an investigation. What 
precautions is the Attorney General taking to isolate out only 
those records related to a specific target? How is the Attorney 
General ensuring the security and confidentiality of the 
records of others? How promptly have those records been 
returned to the institutions from which they were obtained?
    The current standard for obtaining business records is 
``relevance'' but it requires more than just the Special 
Agent's belief that the records may be related to an ongoing 
investigation. Use of this technique is authorized only in full 
investigations properly opened in accordance with the Attorney 
General Guidelines for FBI Foreign Intelligence Collection and 
Foreign Counterintelligence Investigations (FCIG). The FISA 
business records authority stipulates that no investigation of 
a U.S. person may be conducted solely on the basis of 
activities protected by the First Amendment to the 
Constitution. The FISA Court will not order the production of 
business records unless it can be shown that the individual for 
whom the records are being sought is related to an authorized 
investigation.
    The security and confidentiality of records is guaranteed 
by the FISA law which prohibits officers, employees or agents 
of companies or institutions receiving orders from disclosing 
to the target or to persons outside the company or institution 
the fact that the FBI has sought or obtained access to 
information or records. The FBI obtains copies, not originals, 
of records from companies and institutions. Thus, there is no 
need to return records.
    FBI Headquarters has charged field offices with the 
responsibility for establishing and enforcing appropriate 
review and approval processes for use of these expanded 
authorities. Compliance with these and other requirements is 
monitored through inspections and audits conducted by the FBI 
Inspection Division, the Intelligence Oversight Board, and the 
Department's Office of Intelligence Policy and Review.
                                ------                                  


                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                 Washington, DC, December 23, 2002.
Hon. Russell D. Feingold,
Chairman, Subcommittee on the Constitution,
Committee on the Judiciary, U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Enclosed please find responses to two 
questions posed to the Attorney General on implementation of 
the USA PATRIOT Act in your letter of July 24, 2002. We are 
providing responses to questions 2 and 4 relating to the 
changes the USA PATRIOT Act made to provisions of the Foreign 
Intelligence Surveillance Act.
    Please note that the responses to both questions 2 and 4 
require the Department to provide information classified at the 
SECRET level. That classified information is being delivered 
under separate cover and under the longstanding Executive 
branch practices on the sharing of operational intelligence 
information with Congress.
    The Department is continuing to gather information 
responsive to the remaining questions posed in your letter and 
we will forward the responses to you as soon as possible. We 
note that in response to question 7 of your letter, copies of 
the Department's responses to the House Judiciary Committee's 
letter of June 13, 2002 on USA PATRIOT Act implementation were 
forwarded to your staff on July 29, 2002 and August 26, 2002.
    We appreciate your oversight interest in the Department's 
activities pursuant to the USA PATRIOT Act. We look forward to 
continuing to work with the Committee as the Department 
implements these important new tools for law enforcement in the 
fight against terrorism.
    If we can be of further assistance on this, or any other 
matter, please do not hesitate to contact this office.
            Sincerely,
                                          Daniel J. Bryant,
                                        Assistant Attorney General.
    Enclosure.

Feingold PATRIOT Act Question #2 and #4 (from letter dtd July 24, 2002)

    2. Section 215 of the Act grants the FBI broad new power to 
subpoena business records for investigations to protect against 
international terrorism.
    a. Please (i) provide the number of instances in which the 
FBI or other federal agencies have invoked this subpoena power 
and (ii) indicate the type of businesses served with the 
subpoena (e.g., libraries, bookstores, internet booksellers, 
etc.).
    b. How many entities have challenged the subpoena and the 
information sought? If any institutions have objected to or 
challenged the validity or scope of the subpoena, what has been 
the nature of the objection?
    c. How many of these subpoenas have resulted in the 
collection of information that would otherwise be protected by 
state or federal privacy protection laws (e.g., medical, 
financial, educational or library records)?
    d. How many of these subpoenas have directly led to the 
prosecution of terrorists or the prevention of acts of 
terrorism? For each subpoena that has led to the prosecution of 
terrorists or the prevention of acts of terrorism, please 
describe the prosecution or act of terrorism that was 
prevented.
    e. How many subpoenas have been sought and granted to 
obtain the records of persons not the target of an 
investigation? For each such subpoena, please explain why the 
Department sought the subpoena.
    f. Please provide copies of all policy directives or 
guidance issued to law enforcement officials about requesting 
subpoenas pursuant to Section 215.
    Answer. Section 215 of the USA PATRIOT ACT amended FISA (50 
U.S.C. Sec. Sec. 1861-1862) (access to certain business records 
for foreign intelligence and international terrorism 
investigations), and repeals section 1863. This provision of 
FISA concerns the ability of the FBI to make an application to 
the Court ``for an order requiring the production of any 
tangible things (including books, records, papers, documents, 
and other items)'' as long as the information is requested for 
the appropriate reasons as defined in that section of FISA. 
Under the old language, the FISA Court would issue an order 
compelling the production of certain defined categories of 
business records upon a showing of relevance and ``specific and 
articulable facts'' giving reason to believe that the person to 
whom the records related was an agent of a foreign power. The 
USA PATRIOT Act changed the standard to simple relevance and 
gives the FISA Court the authority to compel production in 
relation to an authorized investigation to obtain foreign 
intelligence information to protect against international 
terrorism or clandestine intelligence activities, provided that 
such investigation of a U.S. person is not the conducted solely 
upon the basis of activities protected by the First Amendment 
to the Constitution.
    The classified semi-annual report discussing the use of 
sections 1861-1863 of FISA for the period June 30, 2001 through 
December 31, 2001 was provided to the Intelligence and 
Judiciary committees of both houses of Congress on April 29, 
2002. That report was provided under cover letter to each 
committee chairman. Although not specified in the statute, the 
Department's practice has been to submit the reports covering 
January 1 through June 30 of a given year, by the end of 
December of that year. The Department of Justice is currently 
preparing the semi-annual report covering the period January 1, 
2002 through June 30, 2002.
    The Department is able at this time to provide information 
pertaining to the implementation of section 215 of the USA 
PATRIOT Act from January 1, 2002 to the present (December 23, 
2002). That information is classified at the SECRET level and, 
accordingly, is being delivered to the Committee under separate 
cover.
    It should be noted that information has been sought from 
libraries on a voluntary basis and under traditional law 
enforcement authorities not related to the Foreign Intelligence 
Surveillance Act or the changes brought about by the USA 
PATRIOT Act. While the FBI does not maintain statistics on the 
number of libraries visited by FBI Agents in the course of its 
investigations, an informal survey conducted by the FBI 
indicated that field offices have sought information from 
libraries. For example, various offices followed up on leads 
concerning e-mail and Internet use information about specific 
hijackers from computers in public libraries.
    Policy guidance or directives to law enforcement on Section 
215: On October 26, 2001, the FBI's Office of General Counsel, 
National Security Law Unit, issued guidance to all FBI 
Divisions, including all FBI Headquarters and field offices, 
that summarized the changes made by the USA PATRIOT Act, 
including the changes made by section 215 of the Act. A copy of 
that memorandum is provided herewith.

    4. Section 206 of the Act provides federal law enforcement 
with authority to conduct roving surveillance of targets.
    a. How many FISA warrants have been issued pursuant to 
Section 206?
    The number of times the Department has obtained authority 
for the ``roving'' surveillance provided under section 206 of 
the USA PATRIOT Act is classified at the SECRET level. Pursuant 
to the longstanding Executive Branch practice on sharing 
operational intelligence information with Congress, the 
Department will provide that number to the Senate Select 
Committee on Intelligence (``SSCI''), which is the committee 
responsible for receiving and handling sensitive intelligence 
information. This number will be provided to the SSCI under 
separate cover and with the expectation that it will be handled 
in a manner deemed appropriate under longstanding applicable 
Senate procedures.
    We can, in this unclassified format, make the assurance 
that the Department's request for use of such authority, based 
upon a determination by the Foreign Intelligence Surveillance 
Court that there is probable cause to believe that the actions 
of the target of surveillance may have the effect of thwarting 
the identification of those carriers whose assistance will be 
necessary to carrying out the Court's orders, has been limited 
to those cases where the surveillance ordered by the Court 
would otherwise be, or would otherwise likely be, in jeopardy.
    b. What percentage of surveillance conducted pursuant to 
Section 206 has included surveillance of persons other than the 
target individual against whom the warrant was issued?
    The intercepted communications of individuals other than 
the targets of Court-authorized surveillance are minimized 
according to procedures established in Attorney General 
guidelines and approved by the Foreign Intelligence 
Surveillance Court. The same standard minimization procedures 
apply to the communications intercepted under the surveillance 
authority granted pursuant to section 206 of the USA PATRIOT 
Act as apply to communications intercepted under any other 
Court-authorized surveillance under FISA. The percentage of the 
minimized communications of individuals other than the target 
individual conducted pursuant to section 206 of the USA PATRIOT 
Act is a statistic that is not maintained by the FBI and is 
therefore not readily retrievable.
    c. For each surveillance conducted under this section, how 
many non-target persons were included in the surveillance?
    As stated above, the intercepted communications of 
individuals other than the targets of Court-authorized 
surveillance are minimized according to procedures established 
in Attorney General guidelines and approved by the Foreign 
Intelligence Surveillance Court. The same standard minimization 
procedures apply to the communications intercepted under the 
surveillance authority granted pursuant to section 206 of the 
USA PATRIOT Act as apply to communications intercepted under 
any other Court-authorized surveillance under FISA. The number 
of minimized communications of non-target individuals for each 
surveillance conducted pursuant to section 206 of the USA 
PATRIOT Act is a statistic that is not maintained by the FBI 
and is therefore not readily retrievable.
    d. Please disclose all policy directives or guidelines 
issued to law enforcement officials who request and conduct 
this type of surveillance authority.
    On October 26, 2001, the FBI's Office of General Counsel, 
National Security Law Unit, issued guidance to all FBI 
Divisions, including all FBI Headquarters and field offices, 
that summarized the changes made by the USA PATRIOT Act, 
including the changes made by section 206 of the Act. A copy of 
that memorandum is provided herewith.

XIV. Appendix E--Letter From the Department of Justice to Senate Select 
  Committee on Intelligence Chairman Graham and Vice-Chairman Shelby, 
                          Dated July 31, 2002

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                     Washington, DC, July 31, 2002.
Hon. Bob Graham,
Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
Hon. Richard C. Shelby,
Vice-Chairman, Select Committee on Intelligence,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman and Mr. Vice Chairman: The letter 
presents the views of the Justice Department on S. 2586, a bill 
``[t]o exclude United States persons from the definition of 
`foreign power' under the Foreign Intelligence Surveillance Act 
of 1978 relating to international terrorism.'' The bill would 
extend the coverage of the Foreign Intelligence Surveillance 
Act (``FISA'') to individuals who engage in international 
terrorism or activities in preparation therefor without a 
showing of membership in or affiliation with an international 
terrorist group. The bill would limit this type of coverage to 
non-United States persons. The Department of Justice supports 
S. 2586.
    We note that the proposed title of the bill is potentially 
misleading. The current title is ``To exclude United States 
persons from the definition of `foreign power' under the 
Foreign Intelligence Surveillance Act of 1978 relating to 
international terrorism.'' A better title, in keeping with the 
function of the bill, would be something along the following 
lines: ``To expand the Foreign Intelligence Surveillance Act of 
1978 (`FISA') to reach individuals other than United States 
persons who engage in international terrorism without 
affiliation with an international terrorist group.''
    Additionally, we understand that a question has arisen as 
to whether S. 2586 would satisfy constitutional requirements. 
We believe that it would.
    FISA allows a specially designated court to issue an order 
approving an electronic surveillance or physical search, where 
a significant purpose of the surveillance or search is ``to 
obtain foreign intelligence information.'' Id. 
Sec. Sec. 1804(a)(7)(B), 1805(a). Given this purpose, the court 
makes a determination about probable cause that differs in some 
respects from the determination ordinarily underlying a search 
warrant. The court need not find that there is probable cause 
to believe that the surveillance or search, in fact, will lead 
to foreign intelligence information, let alone evidence of a 
crime, and in many instances need not find probable cause to 
believe that the target has committed a criminal act. The court 
instead determines, in the case of electronic surveillance, 
whether there is probable cause to believe that ``the target of 
the electronic surveillance is a foreign power or an agent of a 
foreign power,'' id. Sec. 1805(a)(3)(A), and that each of the 
places at which the surveillance is directed ``is being used, 
or about to be used, by a foreign power or an agent of a 
foreign power,'' id. Sec. 1805(a)(3)(B). The court makes 
parallel determinations in the case of a physical search. Id. 
Sec. 1842(a)(3)(A), (B).
    The terms ``foreign power'' and ``agent of a foreign 
power'' are defined at some length, id. Sec. 1801(a), (b), and 
specific parts of the definitions are especially applicable to 
surveillances or searches aimed at collecting intelligence 
about terrorism. As currently defined, ``foreign power'' 
includes ``a group engaged in international terrorism or 
activities in preparation therefor,'' id. Sec. 1801(a)(4) 
(emphasis added), and an ``agent of a foreign power'' includes 
any person who ``knowingly engages in sabotage or international 
terrorism or activities that are in preparation therefor, for 
or on behalf of a foreign power,'' id. Sec. 1801(b)(2)(C). 
``International terrorism'' is defined to mean activities that
          (1) involve violent acts or acts dangerous to human 
        life that are a violation of the criminal laws of the 
        United States or of any State, or that would be a 
        criminal violation if committed within the jurisdiction 
        of the United States or any State;
          (2) appear to be intended--
                  (A) to intimidate or coerce a civilian 
                population;
                  (B) to influence the policy of a government 
                by intimidation or coercion; or
                  (C) to affect the conduct of a government by 
                assassination or kidnapping; and
          (3) occur totally outside the United States, or 
        transcend national boundaries in terms of the means by 
        which they are accomplished, the persons they appear 
        intended to coerce or intimidate, or the locale in 
        which their perpetrators operate or seek asylum.
Id. Sec. 1801(c).
    S. 2586 would expand the definition of ``foreign power'' to 
reach persons who are involved in activities defined as 
``international terrorism,'' even if these persons cannot be 
shown to be agents of a ``group'' engaged in international 
terrorism. To achieve this expansion, the bill would add the 
following italicized words to the current definition of 
``foreign power'': ``any person other than a United States 
person who is, or a group that is, engaged in international 
terrorism or activities in preparation therefor.''
    The courts repeatedly have upheld the constitutionality, 
under the Fourth Amendment, of the FISA provisions that permit 
issuance of an order based on probable cause to believe that 
the target of a surveillance or search is a foreign power or 
agent of a foreign power. The question posed by S. 2586 would 
be whether the reasoning of those cases precludes expansion of 
the term ``foreign power'' to include individual international 
terrorists who are unconnected to a terrorist group.
    The Second Circuit's decision in United States v. Duggan, 
743 F.2d 59 (2d Cir. 1984), sets out the fullest explanation of 
the ``governmental concerns'' that had led to the enactment of 
the procedures in FISA. To identify these concerns, the court 
first quoted from the Supreme Court's decision in United States 
v. United States District Court, 407 U.S. 297, 308 (1972) 
(``Keith''), which addressed ``domestic national security 
surveillance'' rather than surveillance of foreign powers and 
their agents, but which specified the particular difficulties 
in gathering security intelligence'' that might justify 
departures from the usual standards for warrants: ``[Such 
intelligence gathering] is often long range and involves the 
interrelation of various sources and types of information. The 
exact targets of such surveillance may be more difficult to 
identify than in surveillance operations against many types of 
crime specified in Title III [dealing with electronic 
surveillance in ordinary criminal cases]. Often, too, the 
emphasis of domestic intelligence gathering is on the 
prevention of unlawful activity or the enhancement of the 
government's preparedness for some possible future crisis or 
emergency. Thus the focus of domestic surveillance may be less 
precise than that directed against more conventional types of 
crime.'' Duggan, 743 F.2d at 72 (quoting Keith, 407 U.S. at 
322). The Second Circuit then quoted a portion of the Senate 
Committee Report on FISA. ``[The] reasonableness [of FISA 
procedures] depends, in part, upon an assessment of the 
difficulties of investigating activities planned, directed, and 
supported from abroad by foreign intelligence services and 
foreign-based terrorist groups. * * * Other factors include the 
international responsibilities of the United States, the duties 
of the Federal Government to the States in matters involving 
foreign terrorism, and the need to maintain the secrecy of 
lawful counterintelligence sources and methods.'' Id. at 73 
(quoting S. Rep. No. 95-701, at 14-15, reprinted in 1978 
U.S.C.C.A.N. 3973, 3983) (``Senate Report''). The court 
concluded:

          Against this background, [FISA] requires that the 
        FISA Judge find probable cause to believe that the 
        target is a foreign power or an agent of a foreign 
        power, and that the place at which the surveillance is 
        to be directed is being used or is about to be used by 
        a foreign power or an agent of a foreign power; and it 
        requires him to find that the application meets the 
        requirements of [FISA]. These requirements make it 
        reasonable to dispense with a requirement that the FISA 
        Judge find probable cause to believe that surveillance 
        will in fact lead to the gathering of foreign 
        intelligence information.

Id. at 73. The court added that, a fortiori, it ``reject[ed] 
defendants' argument that a FISA order may not be issued 
consistent with the requirements of the Fourth Amendment unless 
there is a showing of probable cause to believe the target has 
committed a crime.'' Id. at n.5. See also, e.g., United States 
v. Pelton, 835 F.2d 1067, 1075 (4th Cir. 1987); United States 
v. Cavanagh, 807 F.2d 787, 790-91 (9th Cir. 1987) (per then-
Circuit Judge Kennedy); United States v. Nicholson, 955 F. 
Supp. 588, 590-91 (E.D. Va. 1997).
    We can conceive of a possible argument for distinguishing, 
under the Fourth Amendment, the proposed definition of 
``foreign power'' from the definition approved by the courts as 
the basis for a determination of probable cause under FISA as 
now written. According to this argument, because the proposed 
definition would require no tie to a terrorist group, it would 
improperly allow the use of FISA where an ordinary probable 
cause determination would be feasible and appropriate--where a 
court could look at the activities of a single individual 
without having to assess ``the interrelation of various sources 
and types of information,'' see Keith, 407 U.S. at 322, or 
relationships with foreign-based groups, see Duggan, 743 F.2d 
at 73; where there need be no inexactitude in the target or 
focus of the surveillance, see Keith, 407 U.S. at 322; and 
where the international activities of the United States are 
less likely to be implicated, see Duggan, 743 F.2d at 73. 
However, we believe that this argument would not be well-
founded.
    The expanded definition still would be limited to 
collecting foreign intelligence for the ``international 
responsibilities of the United States, [and] the duties of the 
Federal Government to the States in matters involving foreign 
terrorism.'' Id. at 73 (quoting Senate Report at 14). The 
individuals covered by S. 2586 would not be United States 
persons, and the ``international terrorism'' in which they 
would be involved would continue to ``occur totally outside the 
United States, or transcend national boundaries in terms of the 
means by which they are accomplished, the persons they appear 
intended to coerce or intimidate, or the locale in which their 
perpetrators operate or seek asylum.'' 50 U.S.C. 
Sec. 1801(c)(3). These circumstances would implicate the 
``difficulties of investigating activities planned, directed, 
and supported from abroad,'' just as current law implicates 
such difficulties in the case of foreign intelligence services 
and foreign-based terrorist groups. Duggan, 743 F.2d at 73 
(quoting Senate Report at 14). To overcome those difficulties, 
a foreign intelligence investigation ``often [will be] long 
range and involve[ ] the interrelation of various sources and 
types of information.'' Id. at 72 (quoting Keith, 407 U.S. at 
322). This information frequently will require special 
handling, as under the procedures of the FISA court, because of 
``the need to maintain the secrecy of lawful 
counterintelligence sources and methods.'' Id. at 73 (quoting 
Keith, 407 U.S. at 322). Furthermore, because in foreign 
intelligence investigations under the expanded definition 
``[o]ften * * * the emphasis * * * [will be] on the prevention 
of unlawful activity or the enhancement of the government's 
preparedness for some possible future crisis or emergency,'' 
the ``focus of * * * surveillance may be less precise than that 
directed against more conventional types of crime.'' Id. at 73 
(quoting Keith, 407 U.S. at 322). Therefore, the same interests 
and considerations that support the constitutionality of FISA 
as it now stands would provide the constitutional justification 
for the S. 2586.
    Indeed, S. 2586 would add only a modest increment to the 
existing coverage of the statute. As the House Committee Report 
on FISA suggested, a ``group'' of terrorists covered by current 
law might be as small as two or three persons. H.R. Rep. No. 
95-1283, at pt. 1, 74 and n.38 (1978). The interests that the 
courts have found to justify the procedures of FISA are not 
likely to differ appreciably as between a case involving such a 
group of two or three persons and a case involving a single 
terrorist.
    The events of the past few months point to one other 
consideration on which courts have not relied previously in 
upholding FISA procedures--the extraordinary level of harm that 
an international terrorist can do to our Nation. The touchstone 
for the constitutionality of searches under the Fourth 
Amendment is whether they are ``reasonable.'' As the Supreme 
Court has discussed in the context of ``special needs cases,'' 
whether a search is reasonable depends on whether the 
government's interests outweigh any intrusion into individual 
privacy interests. In light of the efforts of international 
terrorists to obtain weapons of mass destruction, it does not 
seem debatable that we could suffer terrible injury at the 
hands of a terrorist whose ties to an identified ``group'' 
remained obscure. Even in the criminal context, the Court has 
recognized the need for flexibility in cases of terrorism. See 
Indianapolis v. Edmond, 531 U.S. 32, 44 (2000) (``the Fourth 
Amendment would almost certainly permit an appropriately 
tailored roadblock set up to thwart an imminent terrorist 
attack''). Congress could legitimately judge that even a single 
international terrorist, who intends ``to intimidate or coerce 
a civilian population'' or ``to influence the policy of a 
government by intimidation or coercion'' or ``to affect the 
conduct of a government by assassination or kidnapping,'' 50 
U.S.C. Sec. 1801(c)(2), acts with the power of a full terrorist 
group or foreign nation and should be treated as a ``foreign 
power'' subject to the procedures of FISA rather than those 
applicable to warrants in criminal cases.
    Thank you for the opportunity to present our views. Please 
do not hesitate to call upon us if we may be of additional 
assistance. The Office of Management and Budget has advised us 
that from the perspective of the Administration's program, 
there is no objection to submission of this letter.
            Sincerely,
                                         Patrick M. O'Brien
                (For Daniel J. Bryant, Assistant Attorney General).

                      XV. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 113, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978

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 TITLE I--ELECTRONIC SURVEILLANCE WITHIN THE UNITED STATES FOR FOREIGN 
                         INTELLIGENCE PURPOSES

                              DEFINITIONS

    Sec. 101. As used in this title:
    (a) ``Foreign power'' means--
          (1) a foreign government or any component thereof, 
        whether or not recognized by the United States;

           *       *       *       *       *       *       *

          (6) an entity that is directed and controlled by a 
        foreign government or governments.
    (b) ``Agent of a foreign power'' means--
          (1) any person other than a United States person, 
        who--
                  (A) acts in the United States as an officer 
                or employee of a foreign power, or as a member 
                of a foreign power as defined in subsection 
                (a)(4);
                  (B) acts for or on behalf of a foreign power 
                which engages in clandestine intelligence 
                activities in the United States contrary to the 
                interests of the United States, when the 
                circumstances of such person's presence in the 
                United States indicate that such person may 
                engage in such activities in the United States, 
                or when such person knowingly aids or abets any 
                person in the conduct of such activities or 
                knowingly conspires with any person to engage 
                in such activities; [or]
                  (C) engages in international terrorism or 
                activities in preparation therefor; or

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