S. Hrg. 107-449
S. 1448, THE INTELLIGENCE TO PREVENT
TERRORISM ACT OF 2001 AND OTHER
LEGISLATIVE PROPOSALS IN THE WAKE OF THE
SEPTEMBER 11, 2001 ATTACKS
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
S. 1448 THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER
LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS
__________
MONDAY, SEPTEMBER 24, 2001
__________
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SELECT COMMITTEE ON INTELLIGENCE
.........................................................
ONE HUNDRED SEVENTH CONGRESS
----------
BOB GRAHAM, Florida, Chairman
RICHARD C. SHELBY, Alabama, Vice Chairman
CARL LEVIN, Michigan JON KYL, Arizona
JOHN D. ROCKEFELLER IV, West JAMES M. INHOFE, Oklahoma
Virginia ORRIN G. HATCH, Utah
DIANNE FEINSTEIN, California PAT ROBERTS, Kansas
RON WYDEN, Oregon MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois FRED THOMPSON, Tennessee
EVAN BAYH, Indiana RICHARD G. LUGAR, Indiana
JOHN EDWARDS, North Carolina
BARBARA A. MIKULSKI, Maryland
THOMAS A. DASCHLE, South Dakota, Ex Officio
TRENT LOTT, Mississippi, Ex Officio
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Alfred Cumming, Staff Director
Bill Duhnke, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
C O N T E N T S
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Page
Hearing held in Washington, DC:
Monday, September 24, 2001................................... 1
STATEMENTS
Graham, Hon. Bob, a U.S. Senator from the State of Florida....... 1
Rockefeller IV, Hon. John D., a U.S. Senator from the State of
West Virginia, prepared statement.............................. 6
Shelby, Hon. Richard C., a U.S. Senator from the State of Alabama 4
WITNESSES
Berman, Jerry, executive director, Center for Democracy &
Technology..................................................... 54
Prepared statement........................................... 48
Divoll, Vicki, General Counsel, Select Committee on Intelligence;
accompanied by Steven Cash, Counsel, Select Committee on
Intelligence................................................... 6
Halperin, Morton H., chair, Advisory Board and Kate Martin,
director, on behalf of the Center for National Security
Studies, prepared statement.................................... 56
Kris, David, Associate Deputy Attorney General, Department of
Justice; accompanied by: Larry Parkinson, General Counsel,
Federal Bureau of Investigations............................... 16
Martin, Kate, director, Center for National Security Studies..... 63
McNamara, Jr., Robert, General Counsel, Central Intelligence
Agency......................................................... 17
Smith, Jeffrey H., partner, Arnold and Porter.................... 46
Prepared statement........................................... 41
S. 1448, THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER
LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS
----------
MONDAY, SEPTEMBER 24, 2001
U.S. Senate,
Select Committee on Intelligence,
Washington, DC.
The committee met, pursuant to notice, at 3:05 p.m., in
room SH-216, Hart Senate Office Building, the Honorable Bob
Graham (Chairman of the Committee) presiding.
Committee Members Present: Senators Graham, Rockefeller,
Feinstein, Wyden, Durbin, Bayh, Edwards, Mikulski, Shelby, Kyl,
DeWine, Thompson, and Lugar.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE
STATE OF FLORIDA
Chairman Graham. I call the meeting to order.
This meeting of the Senate Select Committee on Intelligence
is for the purpose of hearing testimony on legislation that was
introduced on Friday relative to law changes as it relates to
American intelligence and counterterrorism.
The horrific events of September 11 demonstrate America's
vulnerability to international terrorism. But the warning signs
of our vulnerability have been evident for some time--the
bombing of the U.S. Embassy and the Marine Barracks in Beirut
as long ago as 1983; the 1993 bombing of the World Trade
Center; the 1996 bombing of Khobar Towers in Saudi Arabia; the
1998 bombing of the U.S. Embassies in Kenya and Tanzania; and
last year's terrorist attack against the U.S.S. COLE in Yemen.
These and other terrorist incidents have made it
increasingly important for the Senate Select Committee on
Intelligence to focus on the adequacy of the Intelligence
Community's response to the terrorist threat.
Our Committee has called this hearing today to discuss with
government officials and outside experts and civil libertarians
the provisions of S. 1448, The Intelligence to Prevent
Terrorism Act of 2001, which Senator Feinstein and I introduced
last Friday, along with co-sponsors Senators Rockefeller, Bayh
and Nelson of Florida. We will also address today selected
provisions of the proposal which was sent to the Congress by
Attorney General John Ashcroft on Wednesday, September 19. The
Attorney General provisions we will address today are those
that fall within the jurisdiction of the Intelligence
Committee.
A number of panels and commissions in recent years all have
made clear that any effort to improve the governmentwide
approach to terrorism must take into account every facet of the
issue--detection, prevention, consequence management, crisis
management, and law enforcement, diplomatic and military
responses. We, as a government, need to address these issues in
a coordinated fashion so that priorities may be set, resources
allocated, and government structures changed, if necessary, to
serve that overall strategy. A counterterrorism intelligence
program must be designed within that larger context of a
government counterterrorism program. We must have a centralized
authority for managing the intelligence components of that
counterterrorism policy. The Director of Central Intelligence
needs to perform that intelligence role for the U.S.
Government.
In the wake of the September 11 incidents, we must begin to
act on myriad aspects of this problem. Accordingly, last
Friday, in addition to the legislation I have already
referenced, I introduced another bill, S. 1449 which creates a
National Office for Combating Terrorism within the White House.
Senator Feinstein and I and others have been working on this
proposal for several months. We believe, along with the other
co-sponsors--Senators Rockefeller, Durbin, Mikulski, Bayh, and
Nelson of Florida--that for a coordinator of the forty-plus
Federal agencies that must play a role in counterterrorism that
the office should be with the following characteristics.
It should be created in statute so as to support the
Legislative and Executive branches. It should have a Senate-
confirmed director so that he will have the stature appropriate
for the position and should have budget authority over that
portion of the various agencies' budgets which relate to
counterterrorism so that the director can set priorities and
allocate the resources appropriately against those priorities.
And finally, the director should examine the overall structure
of the U.S. Government to deal with terrorism prevention and
response and, if necessary, recommend restructuring or merging
of agencies and functions.
We believe that the President's Executive order was a
significant step forward to achieve these objectives, and that
the President's selection of Governor Tom Ridge is an excellent
choice to coordinate this enormous and critical effort by the
U.S. Government. We want to give him the authority and the
tools he needs to be successful.
In this hearing today we will not be discussing the
National Office for Combating Terrorism. The Committee will
have hearings on that bill in the near future in conjunction
with the other committees of jurisdiction, such as the Senate
Committee on Governmental Affairs.
Today we want to focus on the issues that are most critical
for immediate resolution by the Congress. The Attorney General
has urged expedited attention to his series of proposals. Our
action today and the Judiciary Committee's hearing tomorrow,
which will focus on those matters in its jurisdiction, are
indicative of the close collaboration between the
Administration and the Congress on these critical issues.
The bill that we will discuss today includes a number of
statutory provisions relating to clarifying the authorities of
the Director of Central Intelligence to combat terrorism;
updating the laws governing electronic surveillance to collect
foreign intelligence so as to improve collection against
international terrorist targets; and enhancing the ability of
law enforcement and intelligence agencies to share critical
information relating to the plans and intentions of terrorists.
This legislation represents the culmination of months of
effort by many Members of this Committee and other Members of
the Senate. I would like to particularly recognize Senator
Feinstein and Senator Kyl for the effort that they have
invested in this legislation.
My colleagues and I are committed to the substance of these
provisions because we believe that they enhance intelligence
collection without unreasonably diminishing our civil
liberties. We welcome the comments from the witnesses today to
help us ensure that the language of these provisions will
accomplish both of those goals. We hope that the experts at the
Justice Department, FBI and CIA will work with our staff to
make certain that we have drafted these provisions in an
effective manner.
In addressing these issues, we must be mindful that the
terrorist threat to the United States is not a crisis; it is a
cancerous condition which we will have to deal with over an
extended period of time. Many people liken the war that we are
now commencing against terrorism to the war that we have been
waging over the past three-quarters of a century against
organized crime. Much of the progress we have made in the war
against organized crime is a direct result of changing laws to
enhance our abilities to deal effectively with this long- term
scourge. In a similar fashion, the legislation that we are
considering today would allow us to more effectively deal with
terrorism as a long-term threat.
Many of the proposals in our bill deal with electronic
surveillance to collect foreign intelligence inside the United
States, as authorized under the Foreign Intelligence
Surveillance Act of 1978. This bill will bring those collection
capabilities into the 21st century. Wiretapping laws relating
to criminal collection, as contrasted to foreign intelligence
collection, have already been updated in many respects. This
bill applies the same Constitutional and civil liberties
protections in the Foreign Intelligence Surveillance Act
context that we are currently applying in the criminal context.
Vicki Divoll, our Committee's General Counsel, will walk
through provisions of the bill in a moment.
Later we will be asking our witnesses for their views on
both the provisions of S. 1448, as well as select provisions of
Attorney General Ashcroft's proposed legislative program which
are relevant to the Intelligence Community.
After Ms. Divoll has completed her outline of the
provisions in S. 1448, we will turn to our first panel. But
first Vice Chairman Shelby.
OPENING STATEMENT OF HON. RICHARD C. SHELBY,
U.S. SENATOR FROM THE STATE OF ALABAMA
Vice Chairman Shelby. Thank you. Thank you, Mr. Chairman.
Thank you for calling this hearing. Mr. Chairman, Members of
the Committee, I have a few observations.
For many years, this Committee has been emphatic regarding
the critical importance of our intelligence apparatus. It is
our first line of defense in the war against terrorism and it
could be our first line of offense.
Granted, there are some things that we can do in the short
term to improve our ability to address this threat and I
believe we will do them. We have already provided additional
funds and we will grant, I believe, the executive branch new
legal authorities through legislation that we are discussing
today.
There is a more fundamental problem, however, that cannot
be fixed by quickly drafted legislation or emergency funding.
Our current national security structure is a legacy of the cold
war. The Department of Defense and the Intelligence Community
were organized to counter the Soviet threat and they remain in
essentially the same form today. The failure of our national
security institutions to transform and adapt is a direct result
of nearly a decade of inaction and neglect in light of a
dramatically changing world situation.
Changing circumstances, as we all know, demand a change in
strategy. If we fail to develop a comprehensive national
strategy to achieve clear objectives, there is no chance of us
organizing our Government to defeat successfully the terrorist
threat.
Our Nation derives its guiding principles from the
Declaration of Independence and the Constitution. Our Federal
Government, in accordance with these guiding principles,
develops its objectives and strategic plans in light of the
current world situation.
After World War II, the United States faced an entirely new
world situation. We went from a relatively isolated and
disengaged player on the world stage to the central figure in a
global clash between freedom and communist tyranny. Just as the
growing Soviet menace and its developing nuclear capability
gave rise to President Truman's reexamination of our national
objectives and national security strategy, so must the attacks
on New York and Washington give rise the to same type of
examination.
The result of Truman's reexamination was a document--NSC-
68--that formed the basis of our national security strategy and
our plans to achieve it for nearly the next half century. The
Soviet Union subsequently collapsed not only because it was
fundamentally corrupt, but because the United States had a
clear purpose and vision of its place in the world and a plan
to achieve it.
I believe we now need that same type of vision and a plan.
There have been many commissions, studies and reports on every
aspect of our national security policies and structure. But,
they all have operated in the same vacuum created by the lack
of any clear statement of our national purpose in the post cold
war world.
The President has already begun the reexamination and taken
some very important steps. Now, I believe, he needs to
memorialize his vision and assign responsibility and organize
the Federal Government to achieve our national objectives.
Why is this important for the Intelligence Community? We
all know very well the debilitating effects that turf battles
and parochialism can have on our ability to organize and
accomplish anything at all. These same maladies have often
paralyzed the Intelligence Community. The Intelligence
Community is still organized in tightly controlled ``stove-
piped'' organizations that often refuse or are unable to share
information with each other for any number of reasons.
The new threats that we face require an intelligence
organization that is organized and managed in a manner that
recognizes its fundamental purpose. That purpose is to collect,
analyze and disseminate information. Our intelligence apparatus
is first and foremost an information enterprise. Any effective
information enterprise by definition must be networked, be
interactive, agile, flexible and focused.
The agencies and elements of the Intelligence Community are
anything but agile. They are often paralyzed by their
bureaucratic structure. Perhaps the rigid structure was
appropriate for monitoring the Soviet Union, but I believe it
is antithetical to meeting today's threats. It is particularly
ill suited for using modern information technology.
The classic bureaucracy is designed to limit interaction
between its people. We will never be able to defeat the
terrorist threat without the ability to share rapidly all
sources of information on terrorist activities and then take
decisive action.
As we saw in the bombing of the U.S.S. COLE, we may not get
specific tactical warning. But, we may be able to formulate a
clearer picture of the threat if our analysts have access to
every available piece of information and are allowed to
synthesize and disseminate this information. This type of
interactive and dynamic community is possible if we have strong
leadership guided by a clear vision. But, it will take time,
and we don't have time.
I believe that we need to embrace an unconventional
approach. The terrorists think unconventionally. We need new
thinking and new people looking at this problem. We need our
country's most talented and capable people leading the effort.
The old ways, I would submit, have failed us time and again
in the new threat environment that we're in today. The examples
continue to grow. We all know we've had some successes, but
let's talk about the problems--the attack on Khobar Towers; the
first attack on the World Trade Center; the attack on the
U.S.S. Cole; the attacks on our embassies in Africa; and the
attacks on September 11.
We have shed enough blood and squandered enough treasure.
We need a rapid response. And, I'm afraid that the calcified
bureaucracies of our national security institutions are not
capable of rapid change. I believe we need to start over with a
national commitment of talent and resources much like
President's Kennedy's effort to take us to the moon. We need an
action-oriented approach where success is measured in the
amount of terrorist cells destroyed or disabled, not on how
many reports are issued.
I don't know if this new approach will spawn a new
organization, but we must begin to think, as we say, outside
the box. The answers to this problem are out there and we need
to bring them in, nurture and support them and let them
flourish undeterred by the stranglehold of government
bureaucracies. Our Intelligence Community, as presently
constituted, is virtually incapable of such an effort. As we
learned on September 11, the threats are immediate as must be
our response.
We can talk about legislative fixes and appropriating more
money to feed our failed institutions. I've done some of both.
What we cannot do is continue to ignore our limitations and our
vulnerabilities. If we fail to marshal our Nation's collective
talents and resources behind this effort, we are just waiting
for the next attack.
Thank you, Mr. Chairman.
Chairman Graham. Thank you, Mr. Vice Chairman.
[The prepared statement of Senator Rockefeller follows:]
Prepared Statement of Senator John D. Rockefeller IV, U.S. Senator
from West Virginia
Thank you Mr. Chairman. I am grateful for the leadership you have
shown over the past 2 weeks as the Congress and the American people
have struggled to come to grips with the consequences of the September
11 attacks. The legislative package you and Senator Feinstein
introduced on Friday is just one example of that leadership. You have
also provided the kind of measured, temperate analysis of the situation
that has helped reassure the American people that the Congress is not
only aware of the problems we face, but is working expeditiously to
implement meaningful and well thought out solutions.
Your legislation is an example of that forward looking, measured
approach. This Bill, S. 1448, is the product of several months of work.
I know you and your staff have reached out to other relevant Committees
in the Senate and have shared language and held discussions with the
Administration on all of these provisions. This effort, along with the
priorities you have set for the Intelligence Committee and the funding
included in the annual Intelligence Authorization Bill, provides the
groundwork to have a meaningful impact on intelligence collection
against terrorists.
The challenge we have now is to evaluate each of these proposed
changes, not as a response to recent events, but for how they will help
our intelligence and law enforcement communities deal with terrorism in
the long term. As we bolster those efforts to protect America from
terrorist attacks, we must make sure we do not sacrifice civil
liberties for short term security. Changes we make in the next few
weeks will be with us long after we have vanquished Osama bin Laden.
Therefore, those changes must be consistent with our underlying values.
Chairman Graham. Ms. Divoll.
STATEMENT OF VICKI DIVOLL, GENERAL COUNSEL, SENATE SELECT
COMMITTEE ON INTELLIGENCE; ACCOMPANIED BY: STEVEN CASH,
COUNSEL, SENATE SELECT COMMITTEE ON INTELLIGENCE
Ms. Divoll. Thank you, Mr. Chairman, Mr. Vice Chairman. I'd
like to introduce Steve Cash, who is also a counsel on the
Committee and works on counterterrorism issues for the
Committee.
I'm just going to walk through briefly the provisions in
the Graham-Feinstein bill, S. 1448. I'll start with title I,
Clarification of Authorities of the Director of Central
Intelligence.
Section 101. The purpose of that provision is to put the
DCI in his Intelligence Community hat, not his hat as head of
the CIA, this Intelligence Community role in a position to
manage the information collected under the Foreign Intelligence
Surveillance Act. Currently the DCI manages the strategies for
collecting using every other tool available to him. The FISA
tool is a critical tool used inside the United States, but it's
a critical tool for collecting foreign intelligence.
The provision is designed to put the DCI at the very front
end and the very back end of that process. Operational efforts
would still be conducted by the FBI, because this is a domestic
activity. The specific targeting would be done by the FBI. But
the DCI would perform with respect to FISA the same function he
performs in other areas, which is to set an overall strategy
for how this valuable resource should be used, how it should be
allocated, how it should be prioritized, and how it would fit
in with the rest of the collection--would it be redundant,
would it be in addition to the other types of collection that
we have.
So he would be responsible for setting those priorities and
providing a strategy to the FBI for them to use in implementing
that strategy.
He would also find himself at the end of the process. As a
Vice Chairman mentioned, all the information collected of
foreign intelligence value has to get to the analysts and has
to be analyzed as part of all the information coming in and has
to then be processed and make it to the policymaker/consumer so
they can act on it.
FISA needs to be part of that process, and this would put
the DCI in charge of making sure that the information is
tracked to the proper analysts, is analyzed and makes it into a
disseminated product to the community. We feel that that's an
important role for him to play.
The second provision is more of a technical change but also
important in the sense that in looking at the definitions of
the National Security Act of 1947 you see that the definition
of counterintelligence includes international terrorism, but
the definition of foreign intelligence does not. The purpose of
this provision is to clarify that. The purpose is not to
rearrange the responsibilities between the FBI and the CIA with
respect to collection and activities. The purpose is to clarify
in the law that of course the DCI has a role in international
terrorism overseas.
As you play out the National Security Act through its
provisions, we want to make sure that that is clarified in the
law.
Section 103 is an attempt to deal with the much-publicized
issue of recruitment of terrorists who have unsavory pasts,
whether it be violent crimes or human rights abuse. Everyone
seems to acknowledge that those are the types of people who
would be most helpful in this effort to collect information,
human source intelligence information. But there is a fear that
the regulations at the Agency, the CIA, have a chilling effect
on efforts in the field to recruit those types of people.
The effort here is to clarify in law, if the Congress
accepts this provision, wants to send a message to the field
that this is lawful, to recruit such people and establish
relationships with them. This provision does not attempt to
dictate to the DCI or the Executive branch what types of
approval processes they need to have to make sure the officers
do their work appropriately. It merely is designed to State in
law that this is a lawful activity.
Section 104 is an attempt to give a break to the
intelligence agencies who prepare so many reports for Congress
on intelligence matters. Given that they are busy with other
things now, we thought we would give them an extension until
February 1 and they can have an extension beyond that if they
certify to the Committee that the people who prepare those
reports are working on counterterrorist matters.
Title II deals with several aspects of electronic
surveillance. Section 201 is meant to deal with the definition
of communications under FISA. The purpose of this provision is
to carve out of that definition communications that aren't
really content-based, that wasn't intended when the provision
was enacted to be part of the FISA process.
These would be the types of communications where, for
example, a hacker tells his computer to tell another computer
to do something or not do something. One example we've given is
if a hacker in a foreign country communicated with the computer
of the Hoover Dam, for example, and told it to open the flood
gates, that type of communication is not content based and
really has no purpose in requiring a FISA order. So the FBI
would be able to collect that type of communication without
having to get a FISA order.
Sections 202 and 203 are both provisions that we've had in
this bill for some time but that are also part of Attorney
General Ashcroft's package. Section 202 speaks to the duration
of surveillance and physical search orders under FISA against
non-U.S. persons, including terrorists operating as agents of
foreign powers inside the United States. The current law
requires the Department of Justice to renew those applications
every 90 days for electronic surveillance and every 45 days for
physical searches. This provision would extend both of those to
1 year and would hopefully free up the lawyers at the
Department of Justice and the FBI also to work on new FISAs
rather than having to constantly go back and renew old FISAS.
Section 204 is a provision that clarifies in law that
Foreign Intelligence Surveillance Act collections can occur
simultaneously with title III collections in the criminal
arena. This would say that there are two courts that deal with
those. The prosecutors would have to make the showing required
under title III for a criminal wiretap, and the FISA lawyers
would have to make the showing to the FISA court that it meets
the standards of FISA.
In some cases it makes sense, if the lawyers decide that it
does, to do both, and as long as both standards are met, both
courts approve it, we felt it was useful to clarify that in the
law.
Title III is entitled----
Senator Feinstein. Mr. Chairman, excuse me. She skipped
section 203, which I think is an important section.
Ms. Divoll. Oh, thank you, Senator, yes.
That is a provision that is also in the Ashcroft proposal.
This is a provision that tries to get FISA up to date with the
criminal context. In criminal wiretap law there is something
called a roving wiretap that's been accepted as an appropriate
approach. This would allow that same type of targeting to be
done under FISA. If it's a situation where a terrorist target
is trying to defeat the collection against him by throwing away
a phone and picking up a new phone or moving or whatever method
he would use, this would allow that FISA to continue on to the
other technology rather than having to be re-applied to the
FISA court.
Thank you, Senator.
Section 301. In law currently there is a requirement that
officers in the intelligence community agencies in the course
of their duties, if they come across evidence of a crime, a
U.S. crime, they are required by law to report that to the
Attorney General. There's an elaborate process in the agencies
to do that. This would be in a sense a reverse crimes reporting
requirement.
This requires law enforcement officers in the course of
their duties, if they come across foreign intelligence
information, they would also have a duty to provide that to the
DCI, again so that all-source reporting, all of the information
available to the U.S. Government is used properly and
effectively to counter this threat and other threats.
Section 302, the Foreign Terrorist Asset Tracking Center.
This is a reporting requirement. It's not a mandatory
requirement. It asks the DCI, the Director of Central
Intelligence, and the Secretary of Treasury to work together
and by February 1 come up with a proposal to implement in the
Department of Treasury or wherever they see fit an operation
that would track terrorist financial
networks and transactions and provide that information to the
Intelligence Community, which would hopefully provide valuable
information about relationships within terrorist groups and the
communications among them and the transfers of money. So that's
required as a report by February 1.
Section 303 is the National Virtual Translation Center. One
of the key problems that's been highlighted by many is the fact
that we collect vast amounts of intelligence, both technically
and with human sources, and that we don't have the capabilities
to translate that quickly and efficiently get it to the
analysts and the operators in the field who need it.
This provision would require the establishment of a center
that really is not a bricks and mortar kind of thing. It's a
virtual center that would link up, through a secure data base,
the vast translation resources available in our country. People
who live in different parts of the country and have unusual
translation and language capabilities could be hooked up, the
information could be put in a data base after it's collected,
sent to them They would process it, put it back in the data
base. It gets to the analysts and ultimately to the consumer in
an efficient way.
Section 304 is a training provision that we think augments
many of the other provisions that I've spoken about. It
provides for training of Federal, State and local officials who
may come across in their duties foreign intelligence
information but wouldn't know how to recognize it. They would
be trained to know what to look out for and who to call to get
it into the Federal Government's hands.
It also would train them to be better consumers of
intelligence so in the event of a crisis such as the one we
just had, when the Federal Intelligence Community reaches out
to State and local they will have a point of contact and a
frame of reference and be speaking the same language. So that's
the purpose of that provision.
Thank you.
Chairman Graham. Are there any questions of Ms. Divoll?
Senator Shelby.
Vice Chairman Shelby. Ms. Divoll, did you go into section
103? You mentioned that, did you not?
Ms. Divoll. Yes.
Vice Chairman Shelby. This deals with the establishment and
maintenance of intelligence relationships to acquire
information on terrorists and terrorist organizations. With
respect to section 103 of this legislation, under applicable
law and current CIA guidelines who can our intelligence
officers recruit?
Ms. Divoll. The intelligence officers recruit those that
they feel are appropriate to meet the requirements they have
been given, and then there's an elaborate process within the
Agency to vet those recruitments and approve them up through
the chain of the Agency.
Vice Chairman Shelby. Does section 103 present any
separation of powers issue? If so, how do you resolve them in
favor of the legislative branch?
Ms. Divoll. Well, that's a good question.
Vice Chairman Shelby. I guess the first question is, do
they present any separation of powers issues?
Ms. Divoll. I don't think so, Senator. One approach
recommended by some to deal with these regulations within the
Agency--these are classified regulations but essentially
they're an approval process to make sure that those who would
be recruited who have difficult pasts, that there's enough
approval process up the chain to balance the risks of working
with someone like that against the gains.
To just rescind those regulations by statute I think would
present separation of powers problems because you are
essentially telling the Executive branch what to do in their
own internal approval processes.
Vice Chairman Shelby. We would be telling the Executive
branch what to do and how to do it.
Ms. Divoll. Yes, Senator. We thought that this didn't quite
go that far and this just states in law that this type of
recruitment is lawful and doesn't attempt to tell the Executive
branch what types of approvals they would need to make sure
that it's done properly.
Vice Chairman Shelby. But the Executive branch on their own
could change that as they changed it one time before.
Ms. Divoll. Yes, Senator.
Vice Chairman Shelby. I'd like to ask, Mr. Chairman, Mr.
Cash a question if I could on section 303, the National Virtual
Translation Center. My question concerns the establishment of
this center.
Mr. Cash, as a former intelligence officer, you know how
important language skills are in the gathering, analysis and
dissemination of intelligence. Could you elaborate on what this
center would do? In other words, how would it assist us in
preventing the next terrorist attack?
Mr. Cash. Mr. Vice Chairman, if I could answer that
question with an example, if an intelligence officer sitting at
Langley acquires, through whatever means, a document in a
language like Urdu, the only Urdu translator who may be
available right then, that day, may be living in Seattle. It's
going to be very hard to fly him to Washington and it's going
to be hard to take the document to Seattle.
The idea of the National Virtual Translation Center is that
these resources would be linked through an internet-like
mechanism, secure of course, which would allow the translation
to take place in Seattle, the intelligence officer in Langley
to read the results, perhaps share it with a colleague in
London or France or some other country, and then maybe with an
FBI agent in New York, all in near-real time, all without
moving any human beings anywhere.
So instead of having to wait days to translate and read
critical information, it could be minutes.
Vice Chairman Shelby. I like the idea and I could see how
it could work. Is there a projected cost for this center? As an
appropriator, I wondered if you had talked to Senator Inouye or
Senator Stevens about this.
Mr. Cash. The intention here is that, given the guidance
that this statute would contain, that the DCI in his community
role would take a look at this problem, with the general
guidance we've given him, which is we would like you to
establish such a center, and then would be able to come back to
the Congress in a relatively short amount of time and say this
is what it takes to get it done, this is how much money I will
need to get it done, and this is how long it will take.
Vice Chairman Shelby. What you'd be doing really, in a
sense, is utilizing the latest technology to take advantage of
any weapon deficiencies you might have.
Mr. Cash. That's exactly it--Napster for spies.
Vice Chairman Shelby. Thank you, Mr. Chairman.
Chairman Graham. Thank you.
Senator Edwards. Mr. Chairman.
Chairman Graham. Senator Edwards.
Senator Edwards. Ms. Divoll, I wonder if you would, for all
of our purposes, contrast the provisions in this legislation
with respect to information-sharing between the FBI and the CIA
with the Administration's proposals and comment on why your
legislation is different.
Ms. Divoll. Certainly, Senator. There are some differences
and there are some similarities. The Administration's package
includes express changes in title III and rule 6(e) of the
Federal Rules of Criminal Procedure to make certain that
information collected in those ways can make it to the
intelligence community. It's optional, but it would remove an
impediment in law that now exists and open that up to possible
sharing.
The Administration bill also has a provision that is a
catch-all that catches everything else other than 6(e) and
title III and says everything else also collected in the
criminal context can be passed.
Our provision, section 301, goes a little further in one
respect. In current form it says ``in accord with other
provisions of law'' this information may be shared. If the
title III and 6(e) provisions of the Ashcroft proposal are not
enacted, then that type of sharing would not happen under
section 301 because it would be otherwise prohibited by law.
If they are enacted, then this provision says that all such
information, all such foreign intelligence information, 6(e),
title III and all other--whether it be an FBI interview or
collected in some other way--must be shared. It doesn't give
them discretion.
Senator Edwards. One other question, Mr. Chairman.
Chairman Graham. Let me just mention that the first witness
on the first panel will be Mr. David Kris, Assistant Deputy
Attorney General at the Department of Justice, who will provide
us with the same analysis of the Attorney General's provisions
as they relate to the jurisdiction of this Committee, as Ms.
Divoll has just done for 1448.
Senator Edwards.
Senator Edwards. Thank you. This is another question for
Ms. Divoll. Under current law FISA procedures can only be used
when the primary purpose, ``the'' purpose, is foreign
intelligence gathering. The Administration has proposed that
``the'' be changed to ``a,'' as I understand it, which would
mean that it has to be a purpose, not the primary purpose.
That provision is not in this legislation; is that correct?
Ms. Divoll. It's not.
Senator Edwards. I wonder if you could comment on why it is
not included.
Ms. Divoll. Well, we've had the Ashcroft proposals just for
a few days now, and these proposals we've worked on for some
months. I think that it's fair to say that the Ashcroft
proposals, coming after September 11, have sought to really go
quite a bit further than we felt we would be able to go in this
provision, and we haven't looked at that provision with the
Chairman to determine whether it would be a good change or not.
We're still working on that.
Senator Edwards. Have you done any work yet on the question
of the constitutionality of making that change and broadening
the FISA procedures? As I understand it, one of the reasons
that they have withstood constitutional muster up until now is
because of the limitation to foreign intelligence gathering.
Ms. Divoll. Yes, Senator. I don't pretend to be an expert
in the courts that have reviewed FISA, but I think it is safe
to say that if you make a fundamental change in FISA it is
possible that the courts would feel they would need to take a
second look and make sure that it meets constitutional muster.
Senator Edwards. My only comment would be I think many of
us believe that the expansion of some of these authorities is a
very good idea, but I think we need to make certain that we're
doing it within the framework of what's constitutionally
permitted.
Thank you, Mr. Chairman.
Chairman Graham. Senator Durbin, then Senator Kyl, then
Senator Bayh.
Senator Durbin. Thank you very much. Thank you for the
presentation.
A lot of attention has been directed toward section 103 and
the so-called question of dirty assets and the regulations that
were issued by the CIA in 1995, as I understand it requiring
field officers to obtain prior CIA headquarters approval before
establishing a relationship with an individual who has
committed serious crimes, human rights abuses or other
repugnant acts.
If I recall our earlier conversation, the situation that
gave rise to this was in Guatemala, where some of the people
whom we were working with turned out to have been involved in
the assassination and killing of Catholic priests and nuns,
which gave rise to this new regulation requiring headquarters
approval.
If you can answer this, can you tell me, since the
enactment of these regulations in 1995, has the Agency ever
turned down a field request to recruit an individual in a
terrorist organization or in any way avoided contact with
individuals, regardless of their past, who may have had
information about terrorist activities?
Ms. Divoll. Senator, when the Bremer Commission on
Terrorism came out with their recommendation a few months ago
recommending rescinding of these internal CIA regulations, the
Agency came forward publicly and answered that question and
said that no proposal to recruit someone with human rights or
other problems who had valuable information on terrorism and
terrorist targets, none of those had been turned down.
The approval process can be very prompt and efficient,
particularly if there is a sense of urgency, and I think people
in the Agency believe that it has done a good job of balancing
the need to work with such people against the risks of working
with such people.
Senator Durbin. I don't know if you can answer the second
question, but it will be my last one. Is there a belief that
these regulations have had a chilling effect on people in the
field in terms of those that they seek to recruit for fear of
these regulations or a negative response from headquarters?
Ms. Divoll. I think some believe that the people in the
field feel that way. Some of the people in the field report
that to Senators when they are on trips. Others of them,
particularly those who work exclusively in the counterterrorist
area I think say ``no.'' I think they feel that this is their
mission, this is their duty, and that it would be career-
enhancing, if you will, to make such a recruitment. So there is
controversy on that.
The purpose of this provision was to make sure that, to the
extent anyone feared Congress's reaction to those types of
recruitments that we said clearly in law that it's appropriate
and desirable.
Senator Durbin. Thank you. Thanks, Mr. Chairman.
Chairman Graham. Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I needed to ask this
question now. It may be appropriate for the next panel too, but
I have a commitment from 4 o'clock to 5 o'clock that was made
before this hearing was scheduled that I must honor.
So let me ask this panel first. This is really the reverse
side of what Senator Edwards asked earlier. Under domestic law,
law enforcement agencies can use pen registers and trap and
trace devices to capture so-called peripheral data associated
with a telephone call. The Supreme Court has ruled that that is
fine, that there is no reasonable expectation of privacy in
just the mere fact that one person called another. The actual
communication is all that's protected. In other words, the
telephone number or fact of the call is not.
My understanding under FISA is that the existence of the
call or the data exchange is termed a communication that must
be protected from electronic surveillance. Did you look at the
possibility of altering that to conform it to domestic law and,
if not, is there any reason that you know of why under FISA the
digital or peripheral data associated with a call has to be
considered as sensitive as the communication contained with the
call.
Ms. Divoll. Senator, I understand. The provisions in the
Graham-Feinstein bill, again as you know because you worked on
it, were put together before September 11, and I think that the
provision you're talking about, which is part of the Ashcroft
proposal, will be one that this Committee will look very
seriously at. We didn't include everything in this. We didn't
feel that we could push too far because we weren't in the State
we're in now. But I think people are going to look at that very
carefully through the Ashcroft provisions.
Chairman Graham. Thank you, Senator.
Senator Bayh.
Senator Bayh. Thank you, Ms. Divoll. Could you please
expound in a little greater detail on the asset tracking
center? It seems as if the provision focuses on the analysis
and dissemination of foreign intelligence related to financial
capabilities but doesn't really propose any additional action
based upon the information, such as extending the suspicious
activity reporting requirements or perhaps prohibiting a
foreign entity that had been identified as a primary money-
laundering concern from doing business in the United States.
Was there a reason for that?
Ms. Divoll. If it's all right, sir, I'll defer to Mr. Cash
to answer that.
Mr. Cash. The intention here was to direct the creation of
an entity that would allow the effective analysis of the vast
amount of data from all different sources related to finance
and financial transactions, analyze it, and make sure that it
gets to the consumers. One of the very consumers that we were
worried about are the kind of people in, for instance, the
Department of the Treasury who make exactly the policy
decisions or operational decisions you just referred to. So the
intent was not to try to change the standards for, for
instance, freezing assets or acting on a suspicious activity
report, but rather to ensure that those policymakers are
serviced as well as possible by the Intelligence Community.
It addresses the concern that that wasn't happening--a lot
of financial data not going to a central place, not getting out
to all of the right people.
Senator Bayh. The left hand not knowing what the right hand
was doing.
Mr. Cash. Exactly.
Senator Bayh. Thank you, Mr. Cash.
Chairman Graham. Thank you, Senator.
Senator Rockefeller.
Senator Rockefeller. It's possible that Senator Durbin
asked this question, but I didn't hear it. There's a follow-up
to his question. If one says that no requests have been turned
down from the field for approval at a higher level in so-called
less-than-savory assets, and then you come back and you say
``no,'' that's a very declarative answer. The other side I'm
looking at, of course, is that not many requests are made
because people don't want to be hung out to dry in case their
asset turns in some way to be nastier than anticipated.
So my question would be, in fact, in view of the need for
this kind of asset, have there been the numbers of requests for
these folks that would warrant the statement ``Oh, there really
isn't a problem because nobody's been turned down.''
Ms. Divoll. Senator, I think one way to answer that
question is to speak to the difficulty of this type of
recruitment in the first place. I think that people look at--
people who are involved in the intelligence business look at
this type of issue and they say we haven't succeeded, what's
the problem, maybe it's these regulations, when in fact the
target is a very difficult one and the officers are working
hard to recruit that type of person, but that type of person
often is not going to want to work for the U.S. Government.
So I think it's more a reflection of the difficulty of the
target than the procedures themselves would be my answer.
Senator Rockefeller. OK.
Chairman Graham. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman. I thank both of you
for your presentations.
I think what Senators are reflecting is a desire for some
balance. It's obvious that we want to have new tools out there
to protect our citizens from the threat of terrorism without
giving up the ages-old tradition of protection for freedom and
civil liberties. It seems to me what both bills are trying to
do--and maybe you can clarify this--is both them seem to give
the judiciary a pretty significant role with respect to most of
the areas where new power is authorized. Is that correct? Maybe
I'm missing something. I think the hacking provision may be one
that is different, but for the most part the judiciary is given
pretty significant powers with respect to reviewing all this.
Maybe you could comment on that with respect to both bills.
Ms. Divoll. Yes, Senator. The vast majority of the
provisions in both bills are designed to expand the situations
in which a court may order a FISA. It certainly doesn't require
the court to order a FISA in those situations. It would, as you
said, both in the criminal title III context and in the FISA
context, judicial officials--the FISA court and the criminal
courts--would be passing on these applications. They would just
have a little bit more clear guidance from the Congress and a
little bit more leeway on approving them, but they would still
be reviewed.
Senator Wyden. Thank you, Mr. Chairman.
Chairman Graham. Are there any other questions? If not,
thank you very much, Ms. Divoll and Mr. Cash.
I'd like to ask our first panel if they would please come
forward. Mr. David Kris, Assistant Deputy Attorney General of
the Department of Justice, Mr. Larry Parkinson, General Counsel
of the Federal Bureau of Investigation, and Mr. Robert
McNamara, General Counsel of the CIA.
As they are settling in, Senator Feinstein would like to
make an introduction to the Committee.
Senator Feinstein. If I might, there is a gentleman in the
audience that I would like to introduce to the Committee. He is
the brother of the pilot of the American Airlines Flight 77
that crashed into the Pentagon on September 11. Of course all
58 passengers and five crew members perished. The pilot,
Charles Burlingame, was a graduate of Anaheim High School in
California. He attended and graduated from the U.S. Naval
Academy. He served in the Navy from 1971 to 1978, where he flew
F-4 Phantoms and retired with the rank of Commander. From 1979
to 1998 he served in the Naval Reserve, obtaining the rank of
Captain. He has had a 22-year career as a pilot with American
Airlines and he was a day short of his 52 birthday when this
happened. He leaves a wife, Sherry, and a 26-year-old daughter,
Wendy, as well as two brothers, Mark and Brad, and a sister,
Deborah.
Brad Burlingame is here today. He is the president of the
West Hollywood Convention and Visitors Bureau. Both Mr.
Burlingame's father and mother are buried in Arlington
Cemetery, and the family is very desirous that Mr. Burlingame
be buried there as well. I would like to ask Brad Burlingame if
he would stand so that the Committee might acknowledge his
presence.
Senator Mikulski. Thank you very much, Senator Feinstein.
His brother lived in Maryland, so we also wish to welcome you
as well.
Senator Feinstein. Thank you.
Chairman Graham. Thank you very much, Senators Feinstein
and Mikulski. We extend to you and through you to all of the
families of the victims of this horrible tragedy our deepest
sympathy.
As indicated, Mr. Kris is prepared to not only comment on
the proposals that are included in the introduced legislation
but also on those provisions within the Attorney General's
recommendation which relate to the jurisdiction of the
Intelligence Committee. Mr. Parkinson is not going to be making
formal testimony but will be here as a colleague of Mr. Kris.
Mr. Kris.
STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL,
DEPARTMENT OF JUSTICE; ACCOMPANIED BY: LARRY PARKINSON, GENERAL
COUNSEL, FEDERAL BUREAU OF INVESTIGATION
Mr. Kris. Thank you, Mr. Chairman, Mr. Vice Chairman and
Members of the Committee. Thank you for the opportunity to
discuss proposed legislative responses to the acts of terrorism
inflicted on our country on September 11.
My name is David Kris and I am an Associate Deputy Attorney
General at the Department of Justice. My portfolio there
includes national security policy and FISA, the Foreign
Intelligence Surveillance Act. This is my first appearance
before this Committee--actually before any Committee--and I
appreciate the opportunity to present the Department's views.
Chairman Graham. We appreciate this opportunity to be your
first exposure to the Congress and we will try to act with
appropriate respect.
Mr. Kris. Thank you.
The Attorney General and the Deputy Attorney General both
wanted to be here today. Unfortunately, a conflicting prior
commitment to testify before the House Judiciary Committee and
their operational duties in connection with this investigation
have made that impossible. But, Mr. Chairman and Mr. Vice
Chairman, they send their apologies and they hope that you and
other Members of the Committee will accept their heartfelt
appreciation for your extraordinary leadership at this critical
time.
In particular, Mr. Chairman, I want to thank you and the
Vice Chairman and the other Members for the Committee's
expeditious consideration of our request for a hearing today.
For that and for the collaborative spirit that you have shown
throughout this process we are deeply grateful. The Department
has long enjoyed a close working relationship with this
Committee and we look forward to its continuation.
We're also grateful that you have invited our views on the
bill that you and Senator Feinstein introduced 3 days ago. I
know you share our goal of giving the law enforcement and
intelligence communities the tools that they need to stop
terrorists before they can strike again.
Mr. Parkinson and I are prepared to discuss in detail the
specific provisions of the Administration's proposal that you
previously identified for us based on the Committee's
jurisdiction. That proposal obviously remains our top priority.
Due to the short timeframe and the operational and policy
duties that Mr. Parkinson and I must carry out, we have not had
an opportunity to fully review all of the provisions in your
bill, and while I believe we can endorse the substance of some
of your bill's provisions and I know that we share common
goals, we would like to reserve some of our comments on the
particulars of the language as the bill is currently drafted.
The Department looks forward to working with the Committee as
necessary to ensure that we achieve the goals that all of us
seek.
We are therefore prepared to answer general questions on
provisions of the Graham-Feinstein bill to the extent that
there is a cleared Administration position on them, and we
pledge to work with you on all of the bill's provisions to
achieve our common goals of finding those responsible for the
recent attacks and preventing future attacks.
Again, let me thank you for your outstanding leadership and
commitment in holding this hearing and for focusing the Nation
on the needs of the intelligence and law enforcement
communities to fight aggressively and consistent with the
protection of civil liberties the threat that terrorism poses
to us and to the world.
Thank you.
Mr. McNamara. Mr. Chairman, may I make a few opening
remarks, please?
Chairman Graham. Yes. Then, Mr. Kris, are you going to walk
us through the Attorney General's provisions?
Mr. Kris. Yes, sir, I will do that.
Chairman Graham. Mr. McNamara.
STATEMENT OF ROBERT McNAMARA, JR., GENERAL COUNSEL, CENTRAL
INTELLIGENCE AGENCY
Mr. McNamara. Thank you, Mr. Chairman, Vice Chairman
Shelby, Members of the Committee. I do not have a formal
statement for the record, but with the Chair's permission I
would like to make a few opening remarks.
Two weeks ago today the mood of the American people
actually was fairly upbeat and optimistic. Summer was over, the
fall looked promising, markets appeared to be recovering and
moving back to that 10,000 mark, unemployment figures were at
low levels, as were interest rates, parents were concerned
about the beginning of the school year and the students were
getting concerned about the beginning of football and soccer
season.
Less than 18 hours later, the world as we knew it changed
forever for all of us. Terror was forever redefined, and
September 11 became a date that none of us will ever forget.
Not only will we never forget the pictures we saw or the cries
that we heard or the devastation that took place. We will not
forget the overwhelming emotions of the moment--the fear, the
horror and the helplessness.
If we did not know it before, we learned how vicious
terrorists are and how vulnerable an open society can be. But
we also had occasion to see good among evil--extraordinary
courage and exceptional kindness. We saw clearly, perhaps as
never before, that we are neither black nor white, neither
Asian nor Hispanic. We are neither Jew nor Muslim or Christian.
We are Americans and we are proud of it.
In those first few horrible moments we may have been forced
to our knees, but only to pray for those who had fallen. Our
hearts may have been broken but not our spirit, and certainly
not our resolve. As we stood together that day and as we stand
together in the days ahead, we will take to heart the words of
our President. Our grief has turned to anger and anger to
resolution. Whether we bring our enemies to justice or justice
to our enemies, justice will be done.
To that end, the men and women of the Central Intelligence
Agency and of our entire Intelligence Community are working
around the clock to assist our partners in law enforcement, the
military and diplomacy to bring to justice the perpetrators of
these atrocities and to thwart others who would harm the
national security of the United States.
Mr. Chairman, I applaud your leadership and efforts to
respond quickly and vigorously to the current and continuing
threat of terrorism. I appreciate the opportunity to testify
today regarding two separate legislative proposals that in many
instances would provide needed enhancements to law enforcement
and the Intelligence Community authorities. These enhancements
have been carefully drafted to protect the civil liberties
guaranteed United States citizens by the Constitution and at
the same time to improve our ability to protect national
security.
The Intelligence Community's mission at its core is the
collection and dissemination of foreign intelligence and
counterintelligence information to those who chart our
country's course in the world. Without robust collection
authorities, however, the Intelligence Community cannot provide
the important information that our Nation's leaders need to
make the difficult decisions they face in times of peace and in
times of crisis. The statutes that control the manner in which
the intelligence community conducts electronic surveillance are
currently struggling to keep pace with the rapid expansion of
communication technologies. The Foreign Intelligence
Surveillance Act of 1978 was drafted well before communication
devices such as cell phones and e-mail had so permeated our
daily lives.
Both pieces of proposed legislation would make a number of
sensible enhancements and clarifications to existing law
enforcement and Intelligence Community authorities to deal
effectively with the communication technology explosion. These
enhancements and clarifications would also remove artificial
barriers to information-sharing between law enforcement and the
Intelligence Community.
The Intelligence Community supports in one form or another
a number of the provisions found in both pieces of legislation.
However, we also believe that these proposals provide an
excellent starting point for the Administration and Congress to
discuss other needed improvements to intelligence capabilities,
carefully balancing the interest of national security with the
privacy rights we all enjoy under the Constitution.
I welcome the opportunity to discuss these pieces of
legislation or other important proposals that would further the
ultimate goal of both Congress and the Administration, and that
is the protection of our fellow citizens.
Thank you, Mr. Chairman.
Chairman Graham. Thank you very much, Mr. McNamara. Mr.
Kris, if you could walk us through the Attorney General's
proposals, let me state a question which will relate to all of
the provisions. The Attorney General, when he made his
announcement, emphasized the sense of urgency. He talked about
trying to get this accomplished within a 2-week period. As you
discuss the specific provisions within your ability to do so,
if you could give us some sense of why the urgency to move
forward on these particular recommendations.
Mr. Kris. Yes, sir. What I would like to do, with your
permission, is actually begin with section 151 of the
Administration's proposal. I think as I go through I will be
able to come back to some of the earlier sections that you
identified--sections 103, 104 and 105--but it will ensure, I
think, a little more thematic coherence if I do it that way.
For each of these provisions I'll try to give a one-
sentence overview of what the amendment would do, explain the
current law, and then show what the amendment would do to
current law, and try to give you then finally a sense of the
reasons that we think these amendments are needed.
Section 151 would lengthen the period of court-authorized
electronic surveillance and physical searches under FISA. In
current law, electronic surveillance is authorized for 90-day
periods, physical searches for 45-day periods for most FISA
targets. However, for surveillance and searches of foreign
powers themselves, as opposed to their agents, authorization
periods for both physical search and electronic surveillance
are 1 year.
The amendment would change those timing provisions in two
ways. First, it would extend from 45 to 90 days the period of
court authorization for a physical search of an ordinary
target, a routine target. That would bring into accord the
period for electronic surveillance, which is currently 90 days,
and the period for a physical search.
The other thing that the amendment would do is it would
expand the category of targets to whom the 1-year authorization
periods apply. In particular, 1-year authorization periods
would be available against officers or employees of a foreign
power and foreign members of an international terrorist
organization. I think the critical point to make with respect
to that expansion of the 1-year provision is that none of the
targets that would be subject to it under the Administration's
proposal would be U.S. citizens or permanent resident aliens.
The reasons for these amendments are largely to deal with
difficulties we have had implementing the authority we got from
the court and to improve efficiency and streamline the process.
With respect to the 45- to 90-day expansion for physical
searches, FISA searches are unlike ordinary criminal law
searches in that they are conducted surreptitiously and it is
often difficult actually to execute the authority we have from
the court within a 45-day window. Enlarging the period to 90
days would double our chances of successfully implementing the
authority.
It would also help us in cases where we are seeking both
electronic surveillance and physical search authority
simultaneously because the similar period would keep the
applications in sync as we go down the line and renew them as
necessary.
The reason for the 1-year provision expansion is that the
targets that we would add to that category are often here for
long periods of time and it is difficult to continually renew
applications to maintain coverage. I want to emphasize it is
not a trivial thing to put together and file a FISA
application. As the Committee is aware, a FISA application
requires the personal certification of a high-ranking executive
official such as the Director of the FBI or the Director of
Central Intelligence. It also requires the personal approval
before filing of the Attorney General or the Deputy Attorney
General.
Finally, depending on where the search or surveillance may
take place, it will require an affidavit from a field agent in
the FBI, for example, and that will require transmission of
highly-classified material over great distances within this
country to ensure that what we file with the court is accurate.
It is a significant process and reducing the number of
applications that we need to file on these non-U.S. person
targets would aid us significantly.
Section 152 of the Administration's proposal is what is
commonly now referred to as a multi-point authority or roving
wiretap authority. Under current law, when we seek authority to
conduct electronic surveillance from the FISA court, the court
will issue an order of assistance to a particular
telecommunications provider to allow us to implement the
surveillance. The amendment would allow the court to issue
broader orders that we could use with any provider, if the
court found that the actions of the target may have the effect
of thwarting the surveillance.
The reason for that amendment is effectively tradecraft and
countermeasures that our adversaries can employ in this area.
The adversary in a FISA situation is often a very sophisticated
target--state-sponsored or otherwise. It is under current law
possible for a spy or a terrorist, let's say, to simply switch
cellphone providers just before a critical communication will
occur. In the time it takes us to go back, spin up a new
application, obtain the certification and approval from the
Attorney General and file the document with the court to get a
new secondary order, it may be too late.
This authority, as the Committee is aware, exists already
on the criminal side and we would like the same authority on
the FISA side.
Sections 153 and 154 of the Administration's proposal are
designed to foster and facilitate greater coordination between
the law enforcement and the intelligence sides of the
Government. Section 153 would amend the certification provision
in FISA to which I previously referred. Under current law, the
DCI or the Director of the FBI, as the case may be, will
certify that the purpose of the search or surveillance is to
collect foreign intelligence information. The amendment would
change that requirement from ``the'' purpose to ``a'' purpose.
Let me also describe section 154 before I come back to the
reasons for the amendments. Section 154 is designed to address
the other side of the coin, and that is it will allow all
foreign intelligence information developed in a criminal
investigation, regardless of the method used to collect the
information, to be passed over to intelligence and other
appropriate authorities within the Executive branch. That would
specifically deal with restrictions that are contained in title
III, the domestic criminal wiretap law, and rule 6 of the
Federal Rules of Criminal Procedure, which governs grand jury
secrecy.
The provision would say that notwithstanding any other law,
foreign intelligence information--and that is a defined term--
may be passed to intelligence authorities regardless of other
restrictions that exist. As I say, the basic animating purpose
here is to ensure that the two sides of the Government are
communicating well. I think this investigation is a
paradigmatic example of the need for that greater cohesion.
It's been reported in the press there are 4,000 FBI agents
out gathering information, and I have spent time in the FBI's
command center, SIOC, seeing that information being pulled in
by any lawful means that is available to us. It is less than
ideal, I can say, to have information coming in through a title
III wiretap, if there is one, and have it be the case that the
criminal investigators who are running that wiretap are simply
unable to pass the information over to the counterintelligence
investigators who may be performing FISA surveillance or doing
something else on the other side.
So the animating purpose here is to bring those two sides
together, allow for a single unified, cohesive response, and
avoid splintering and fragmentation.
Now there have been questions raised about the
constitutionality of the ``a purpose'' test. Let me say a word
about that. I do think that's a real issue.
We have had, as a procedural matter, our Office of Legal
Counsel, which is the component within the Department of
Justice whose job it is to evaluate the constitutionality of
this kind of legislation, review the proposal here before we
put it in our bill. They have approved its inclusion in the
bill. Indeed, I am told that a letter is being prepared that
will communicate the substance of our analysis on this, but let
me give you just the sort of short version of it now.
FISA articulates standards for electronic surveillance that
are different from and in some ways more lenient than those
that exist in ordinary criminal surveillance. The justification
under the Constitution for using those different standards has
historically in the case law been linked to the purpose of the
surveillance, in particular that the purpose of the
surveillance be to collect foreign intelligence information.
The question of exactly how much purpose and what degree of
purpose is constitutionally necessary is open to question.
There is not a vast amount of case law on this. Some cases have
adopted a primary purpose standard but have left open the
possibility that the floor may be lower.
What our amendment would do would be to eliminate any
artificially high statutory barrier and allow the
constitutional standard to be developed on a case-by-case
basis. OLC has concluded that an amendment of that kind would
not risk the statute being struck down on its face. What we
would have to deal with is a case-by-case evaluation in each
case of whether we have crossed the line. But that would allow
development of the law at the constitutional level and
eliminate the statutory barrier, and that is the gist of our
thinking that underlies section 153.
I want to emphasize this is a serious problem, and I think
the example I gave--that of being in the FBI SIOC--is one
illustration of that. We hope that this can be dealt with.
Let me, having spoken about sections 153 and 154, talk
about sections 103 and 104, two of the other provisions you
asked about. Section 103 and actually section 354 as well are
both sharing provisions that are designed to eliminate specific
barriers to sharing information obtained from a criminal
investigation. Section 103 deals with title III's limitations;
section 354 deals rule 6. Both of those are covered by our
section 154.
If you were to enact section 154, I think sections 103 and
354 would not be necessary because section 154 is the blanket
approach to this problem.
Section 105 is another provision that you identified for
us, and it would allow the use of wiretap information obtained
abroad from foreign governments. Effectively it provides that
if there is no U.S. law enforcement involvement or no U.S.
involvement at all in that electronic surveillance conducted by
a foreign government abroad, the information may be introduced
in an American court.
If there is U.S. involvement, then the basic U.S. legal
standards, such as the requirement of probable cause, would
apply to the surveillance and that would determine its
admissibility.
Let me go on to sections 155 through 157, which are the
last three provisions that the Committee asked about. Section
155 would change the FISA pen/trap standard. There's been a
discussion of pen registers and trap and trace devices. They
are devices that record both digits dialed but not the content
of a telephone communication or the routing and addressing
information of an electronic mail message, but again not the
content of the electronic mail.
What this provision would do, section 155, is make the FISA
pen/trap statute roughly analogous to the corresponding
criminal pen/trap statute. Under current law, to obtain a FISA
pen/trap order we must show almost as much as we have to show
in order to get a full content, a full-blown FISA order. The
result of that is, frankly, that we hardly ever use the FISA
pen/trap statute. Because if we're going to go to the lengths
required under the current law, we will go the extra 5 percent
and get the full content order.
Our basic position here is that it is at least ironic that
information that is available in a routine drug investigation
or some other routine criminal investigation is not available
under the same standard in an anti-terrorist or espionage
investigation. The requirement that we're proposing is a
relevance standard, which is what applies on the criminal side.
Here it would be relevance to a counterintelligence or
intelligence investigation; whether there is relevance to a
criminal investigation.
Section 156 of the Administration's bill would eliminate
the requirement for prior FISA court approval and expand the
scope of FISA subpoenas to make them roughly analogous again to
various criminal administrative subpoena provisions that
already exist. Under current law, we must go to a FISA court
judge or a specially designated magistrate and obtain an order
to issue a subpoena that would apply only to four categories of
recipients--a common carrier, a public accommodation, a
physical storage facility, or a vehicle rental facility.
The amendment would remove both the requirement of advance
court approval and would expand the scope of the subpoena
provision to include all records, not just those in the four
categories that I mentioned. The reason that we are seeking
that authority is effectively both speed and efficiency and
breadth.
Eliminating the requirement of advance court approval means
we can get what we need quickly, with less paperwork, and the
breadth would allow us to reach targets like schools, gyms--
you've seen some of the newspaper reporting--dry cleaners,
information that may well be critical in one of these
investigations. Again this would bring into parity with
existing criminal administrative subpoena authorities the FISA
subpoena provision. There is authority, for example, in a
routine drug case for the Attorney General not only to compel
the production of documents but to compel witness testimony
without any prior court involvement. He may simply issue the
subpoena. That statute is 21 USC 876.
Finally, section 157 changes the standards for issuing so-
called national security letters, and it changes it in two
basic ways. It would allow these letters to be issued by FBI
field offices rather than by headquarters officials, and it
would eliminate the nexus requirement to a foreign power to
make the national security letter authority more analogous to
corresponding criminal authorities.
Under current law national security letter authority--and a
national security letter is just what it sounds like. It's a
letter issued by the FBI to either a telephone or internet
service provider, a financial company or a credit company to
produce documents and to keep secret the fact that they have
been asked to produce documents in a foreign intelligence or
counterintelligence investigation.
What our amendment would do is allow special agents in
charge--that is, the top-ranking FBI field agent in each of the
FBI's 56 field offices--to issue one of these letters rather
than requiring the letter to be sent out by an Assistant
Director at headquarters. It would eliminate the requirement of
a nexus to a foreign power, leaving in place only a relevance
standard.
That is roughly analogous to the standard that applies in
the criminal context in a grand jury. Obviously we can't and
don't use grand juries in most foreign intelligence/
counterintelligence investigations, both because it is a
quintessentially criminal investigative tool and because it is
not really part of the grand jury's historic mission to look
into counterintelligence or intelligence issues. This would
give us an authority that roughly corresponds to grand jury
subpoena authority, although in a more narrow class of cases,
and I think would be an important contribution to our efforts
to gather information quickly, especially in a case like this
one.
I think that is the last of the amendments the Committee
specifically asked about, so I will stop.
Chairman Graham. Thank you very much, Mr. Kris.
For the information of the Committee members, questioning
will be on a first-arrival basis. After the Chairman and the
Vice Chair, the next questioners will be Senator Feinstein,
Senator Rockefeller, Senator Wyden, Senator DeWine, Senator
Edwards.
You emphasized in several areas such as sections 155 and
156 of the Attorney General's recommendations that you were
attempting to render more comparable the standards under the
Foreign Intelligence Surveillance Act with those that are
currently in place for criminal matters. Have the analogous
sections to those that you are proposing for FISA been
adjudicated in their criminal context and found to be
constitutional?
Mr. Kris. I think the answer to your question is yes, but
let me be more specific. With respect to pen/trap orders, the
Supreme Court has squarely held in a case called Smith v.
Maryland that there is no fourth amendment privacy interest in
the telephone numbers that you dial or the numbers from which
you receive a call. I think the reasoning of that opinion would
apply equally to other kinds of routing and addressing
information.
So I think with respect to pen/trap orders there is no
constitutional question and there would not need to be any
showing made at all to satisfy the fourth amendment.
I think administrative subpoenas have also been upheld
whenever challenged, and I don't think that there is any real
question about the Attorney General's ability to do that. There
are a number of such statutes on the books.
Chairman Graham. Recognizing that the answer to this
question may involve sensitive or classified information, are
you at liberty to select any of the provisions in the Attorney
General's recommendations and indicate why there is this
special sense of urgency that the Attorney General alluded to
when he presented these to the Congress last Wednesday?
Mr. Kris. It is difficult to answer that question in an
open hearing and, of course, we are all, I am sure, available
for a closed hearing where we could go into much greater
detail.
If I may, let me just say something generally. The current
investigation is really a sort of all-hands-on-deck approach
where we do have many, many agents out there and we are doing
everything that we can do under law to get the information we
need to protect the public from future attack, and to give the
President the information he needs to make the kinds of foreign
policy and other decisions that he will have to make.
As I say, having been in SIOC when information is just
coming in, the embargoes that currently exist in various places
in law make it very awkward for everybody to get together and
share the information. When you have an investigation this
size, you need to have coordination or things begin to fall
apart.
So I will say that it would be very helpful in an
investigation like this one to have the sharing provisions, and
I think beyond that I would defer to a closed session, with the
Committee's permission.
Chairman Graham. In the legislation that has been
introduced, 1448, one of the provisions clarifies that the
intelligence agencies would be authorized to retain so-called
dirty assets without specifically directing them to do so and
being sensitive to the separation of powers doctrine. Mr.
McNamara, would you have any comment on the way in which 1448
deals with the issue of the authority of the CIA to hire assets
with suspect backgrounds?
Mr. McNamara. I think Ms. Divoll has actually laid out
quite carefully and candidly what the issue is here. As you
heard earlier, the reason these guidelines are in place--and I
must caution that the guidelines are still classified and I'm
somewhat constrained about what I can say--the reason they were
put into place is because of a genuine and a serious concern
that Congress had in 1994 and 1995 about the way assets, CIA
assets overseas both were being recruited and were being used,
and whether or not there was, for lack of a better term, adult
supervision in the entire process.
What we have attempted to do or what the Agency attempted
to do 6 years ago was to put in place a structure whereby both
the Agency and the Committee and the Congress could be assured
that somebody had looked at this to see whether or not the gain
that we might be able to get offset whatever the person may
have done.
I'm a little concerned about the way the statute is
drafted, Mr. Chairman, although I'm sure it's unintended. It
appears in the first sentence to give a case officer, a first-
tour case officer, in wherever immunity from anything that may
happen as a result of taking on this action. I'm not sure the
intention, but the second part is it's also limited to only
acquiring information, which means the officer could not direct
the dirty asset, for lack of a better term, to engage in covert
action, which, although the President would have authorized it,
could have authorized it, to engage in any kind of disruptive
activity, although clearly that's one of the things that we do
should we be able to accomplish this objective.
Third, I've been the General Counsel now for almost 4
years. Either I or my senior deputy see all of these before
they go to the DDO and upward. The entire purpose is to make
sure that somebody else has gotten eyes on this, that people
who are responsible and accountable to Congress and the
American people are making a decision that does two things. It
weighs in the balance whether or not this is someone in fact
that we want to have our payroll, if that's what it is, or
working as an asset.
For instance, if the individual had killed Americans or if
the individual had been involved in an airline hijacking or if
an individual had been involved in some type of other terrorist
activity, somebody needs to think about that, and a first-tour
officer shouldn't be the one.
The second advantage is that it really protects the first-
tour officer, or the second- or third-tour officers. So there
is somebody who is saying to him, ``Yes, this can be done.''
You can go ahead and do this. I know there's been a lot of
discussion. I know former Director Woolsey firmly believes that
there has been a chilling effect that has had an adverse
impact. I know the Vice Chairman has been to a number of our
offices overseas, as have others, and talked to officers. I
have as well. I take a chance to talk to all of our first-tour
officers when I'm out of the country.
All I can say is our information is different. But the
bottom line, I think, is we're going to do whatever we have to
do and do it right to make sure that the American people are
protected. But at the same time we have to make sure we do it
smartly. I don't know whether or not this would have an
unintended consequence, and I'm sure that's one of the things
the Committee is concerned about.
Chairman Graham. Thank you, Mr. McNamara. When I read the
list of questioners, I apologize. I omitted Senator Mikulski,
who will come immediately after Senator DeWine.
Senator Mikulski. Mr. Chairman, I don't have any questions.
Those were answered in the discussion. Thank you.
Chairman Graham. Senator Shelby.
Vice Chairman Shelby. Mr. Kris, does the statutory
authority to conduct simultaneous title III and FISA
surveillances present the same questions that section 153 does
in the Attorney General's bill? In other words, isn't there a
question of purpose if we are conducting simultaneous taps?
Mr. Kris. I think the answer to that question is yes. The
question of whether there is a primary or other intelligence
purpose underlying FISA is a case-by-case and highly fact-
intensive determination. I think in many cases at least if we
were doing simultaneous title III surveillance of the same
target it might play into the primary purpose calculus, yes.
Vice Chairman Shelby. Mr. Kris, could you just briefly
address the separation of powers--we alluded to this earlier--
issues raised by section 103 of the Chairman's bill?
Mr. Kris. Yes. I will do so. However, I should say that we
have asked OLC again to render a more formal opinion on that.
What I will say that I think raises some separation of powers
concerns in my mind is something that Mr. McNamara mentioned
before, and that is the ``notwithstanding any other law''
provision.
That suggests that even if the DCI or the President were to
say to the first-year case officer don't recruit that
particular dirty asset, the case officer would be authorized to
do so anyway. Now I don't think--and based on what I heard
earlier, I'm more confident--that that is the intent. We may
have an ability to work with the staff to deal with drafting
issues that we have. But I think that is an area in which there
might be--and I don't want to say that there would be--
separation of powers concerns.
Vice Chairman Shelby. Mr. Kris, what specific provisions in
the Graham-Feinstein proposed legislation do you need right now
in the Justice Department in order to properly prosecute the
ongoing war on terrorism, from your perspective?
Mr. Kris. Well, we are very, very happy with sections 202
and 203. Indeed, those provisions may be an example of the
principle that great minds think alike, since they are quite
similar to provisions we have in sections 151 and 152 of our
bill. I think those are probably the two leading provisions
from our perspective.
Vice Chairman Shelby. OK. Mr. Parkinson, under section 101
of the Graham-Feinstein proposal, the DCI, I believe, would
``manage'' employees within the Bureau and other agencies
across the community. How would you envision this working in
light of their existing chains of command that we have today?
Mr. Parkinson. Well, let me say to begin with, Senator
Shelby----
Vice Chairman Shelby. ``Manage the analysis and
dissemination,'' it says.
Mr. Parkinson [continuing]. We do have some concern over
the language that appears on page 3 of that legislation, and we
would like to engage the Committee and staff in a discussion
about its intent. One appearance issue is that it appears that
it may--and we don't know whether this is advertent or
inadvertent--put the DCI and the Agency in the domestic
security arena. I think that's an important issue that we have
to focus on.
Assuming we work that out and the Congress makes the
judgment that an expanded role for the DCI is appropriate here
in terms of how it plays out I think I am quite confident that
we would work very well with the Agency, as we have, in
carrying out the authorities that are given.
Vice Chairman Shelby. Let me just share the language with
you as I see it on page 3.
Establish requirements and priorities for and manage the
analysis and dissemination of all foreign intelligence
collected under the Foreign Intelligence Surveillance Act of
1978, quoting the U.S. Code, including the provision of assistance
to the Attorney General in order to ensure that information derived
from surveillance or physical searches under that Act is used
efficiently and effectively for foreign intelligence purposes,
except that the Director shall have no authority to direct,
manage or undertake electronic surveillance operations pursuant
to that Act unless otherwise authorized by statute or Executive order.
That's what we're talking about here.
Mr. Parkinson. That's correct.
Vice Chairman Shelby. All right. Thank you, Mr. Chairman.
My time is up.
Chairman Graham. Thank you very much, Senator.
Senator Feinstein.
Senator Feinstein. Thanks very much, Mr. Chairman.
Mr. Kris, I think your testimony was very helpful and I
want to thank you. I also think it was very powerful in one way
because it really is the first time the Department has
officially admitted that the communication issue is truly an
issue and, as you just said, less than ideal.
One of the problems I think working in this area is people
will say to you one thing formally and they'll say another
thing informally, so how you really know becomes sometimes a
difficult task. But I think you have clarified what we believe,
based not on something people said, because it's always been
denied--oh, there's no problem in intelligence-sharing--when in
fact we believe there is. So I want to thank you for that.
I wanted to ask you a question on section 151, if I might.
This is the period of orders of electronic surveillance of non-
U.S. persons under foreign intelligence surveillance. Is that
there largely just because of the jurisdiction of this
Committee being that if you had U.S. citizens covered under
this it would come under the jurisdiction of another Committee?
Because I have a hard time knowing why. I mean, we know there
are cells operating in this country. It may even be that the
U.S. citizens are participating in those cells or people here
legally. As a matter of fact, it's very likely.
So the question is why not give this authority across the
board?
Mr. Kris. OK. Before I answer that question, let me just
respond to what you said earlier.
Senator Feinstein. You're not going to take it back, are
you?
Mr. Kris. I don't want to give myself more credit than I'm
due. If Senator Thompson were here he could tell you. He
recently commissioned a GAO report which does discuss some of
the long-term issues we've had with information-sharing, and we
then wrote a letter in response to the report. So I don't want
to give myself more than I deserve.
With respect to section 151, I don't think that--I mean, I
can tell you that the thinking behind section 151 has nothing
to do with which committee would evaluate it, and frankly
that's well beyond my ken. The concern, though, or the reason
for limiting the 1-year authorization period is part of our
overall approach here, which is to try to be balanced, to push
the envelope and give ourselves more authority where we really
need it, but to be sensitive also to the civil liberties and
privacy concerns that this kind of surveillance will go
against.
We are really trying to get the authority where we need it
most. This provision does not enlarge or change the targets
that we can surveil. It only allows for longer periods. That,
we have found, is a significant issue primarily for non-U.S.
persons, especially--and I want to be careful in an open
hearing of exactly what I say--for employees or agents of
foreign powers who are often here for long periods of time.
That's really the motivation here--respect for U.S. person
civil liberties, which we think are especially important, and
there is a difference between surveilling non-U.S. persons and
surveilling U.S. persons, but also to focus on exactly what our
need really is.
I think our need is greatest with respect to non-U.S.
persons. For U.S. persons we can still get the surveillance,
but we'll have to come back every 90 days and have a judge keep
looking at it.
Senator Feinstein. In this situation you want to do that.
Mr. Kris. Yes.
Senator Feinstein. OK. I would think about that. But, in
any event, let me go on to section 153. This section clarifies
that the certification of a FISA request is supportable where
foreign
intelligence-gathering is ``a purpose'' of the investigation.
It would eliminate the need continually to evaluate the
relative weight of criminal and intelligence purposes and would
facilitate the information-sharing between agencies.
Now, I am told that the primary purpose test has often been
cited as one of the reasons that FISA meets the constitutional
requirements under the fourth amendment. Would elimination of
this test place the entire FISA in danger of being struck down
by a court?
Mr. Kris. The answer to your question I think is no, and
again I'm relying here on the analysis of our experts in the
Office of Legal Counsel. Let me try to explain in particular
with respect to the risk to the whole statute.
Courts will occasionally evaluate constitutional challenges
on an as-applied basis, where you deal with only the particular
case, or on a facial basis, where you evaluate the statute in
general. What we would definitely not like to see is an
amendment to FISA that led to a facial attack and a successful
facial attack on the statute, which would throw the entire
statute out on constitutional grounds.
We are confident that changing ``the purpose'' to ``a
purpose'' will not permit a facial challenge to FISA. Because
of the way courts evaluate these things, we are confident that
under existing jurisprudence they will evaluate this on a case-
by-case basis. There is a case, United States v. Salerno, that
stands for the proposition that if a statute is valid in some
applications, as the ``a purpose'' standard clearly would be,
there is no justification for striking down the statute on its
face. Instead, courts deal with the challenges on a case-by-
case basis.
I think there is a possibility, if we go too far in a
particular case, that we would end up being suppressed in a
subsequent attempt to introduce the evidence in court. But we
think that's a risk that's worth taking in order to solve this
problem that we've discussed about information-sharing. But I
emphasize our experts--and I agree--think that the statute is
not in jeopardy on its face.
I've been reminded and I think I mentioned this before, we
will be sending a letter to Congress that sort of details at
great length our constitutional reasoning and the reason for
the statement I've just made to you.
Senator Feinstein. Thank you very much. Thanks, Mr.
Chairman.
Chairman Graham. Thank you, Senator.
Senator Rockefeller.
Senator Rockefeller. Thank you, Mr. Chairman.
I just want to go back to the so-called less-than-desirable
factor, the chilling effect, so to speak, of CIA and potential
human rights violations. If this were carried forward and it
were lifted, as I happen to favor, and there was not the high-
level approval every single time, is that done in part--does
that put in jeopardy in a way for the case officer, let's say,
on the ground in a country for the possibility of an asset
committing an act of terrorism on the United States, in other
words putting that person at risk?
I put that in this context. The answer that I got when I
previously put this forward was, ``Well, we really don't have
that many requests.'' That strikes me as a little bit of a pre-
September 11 type of answer and that if there's anything which
has been on the public airwaves in the last several weeks it's
been the need for a much greater body of human intelligence,
not all of which, I guess, can be of the most attractive sort.
So in a sense I'd like to know is the idea of not doing
this to protect the case officer, making the approval come from
a higher level in case the person turns nasty toward the United
States?
Mr. McNamara. Senator, I think it actually has multiple
purposes. One is to protect the officer. Especially a first-
tour officer shouldn't be going out there and making a
determination to bring on somebody and pay him and use him as
an asset without ever even telling the chief of station. But,
more importantly, many times the individual officers--and in
fact just for the record, the way this is drafted it's not just
a CIA case officer who actually knows tradecraft. It is anybody
who is a member of the Intelligence Community, the way it's
drafted now.
So somebody from NRO who has never done this could
actually, according to the way it's drafted, be running assets
that we wouldn't know anything about.
The purpose is multiple. No. 1, is to protect the case
officer. No. 2, is to make sure we're doing the right thing.
No. 3, is to bring it back and make sure we run it against our
data bases and traces. Is there something else we know about
him or her? Have they been involved in something we're looking
for? Is there an outstanding U.S. warrant for this individual?
There are a number of things where you just really need
headquarters to be aware of.
I think, more importantly, this Committee should be
insisting that we be accountable, the senior intelligence
officers at the CIA be accountable before somebody does
something like this. This is not slowing the process down, I
don't think. As I said, I've only been there 4 years and these
can be done very, very quickly.
PDD-35 comes out and lays out everything that we're
targeting. The chiefs of station are pushing at their people to
try and find people who can penetrate these. They are very,
very hard to do. Not only do they not like us, in many cases
they hate us and will not work with us. The opportunity to get
somebody who will do something for us, even to the extent of
giving us some information, would be a career-enhancing
opportunity and not a career-limiting event.
Senator Rockefeller. It's not a question of congressional
second-guessing which worries you on this. It's simply what you
spoke about?
Mr. McNamara. No, sir. I don't have any problem with
congressional oversight. In fact, I think in many cases this
would enhance congressional oversight. We have come to the
Committee to tell them what we are doing when we're bringing
dirty assets in. We wouldn't be able to do that. I think this
Committee should know what we're doing.
Senator Rockefeller. OK. The whole concept of the virtual
language capacity is a very, very interesting one to me and I
think is a very strong part of the Graham-Feinstein amendment.
Now as I think Senator Graham indicated in his press
conference, it's aimed at Arabic, Farsi, Urdu or maybe not
Farsi but Pashto. But it's for the whole panoply of languages.
That has been a concern of mine in any event in terms of
the capability, and I've frequently referred to the fact that
Mormons are doing many of our best language work. We are not
teaching any longer in our schools. America is in a sense
withdrawing from the world. Now that could have changed very
dramatically, probably will have since September 11 in terms of
things like teaching languages.
But it strikes me as a very, very powerful initiative and
one that I think we ought to undertake.
Mr. McNamara. Senator, I think you're right. What the
Chairman and Senator Feinstein have put together is a very
novel and intriguing idea. My only concern or our concern from
the Intelligence Community is there are a number of
counterintelligence issues this raises, No. 1. No. 2, there are
a lot of security problems. The issues of connectivity in and
of itself are something that we are trying to deal with within
the community, that we've already tried to approach.
The cost could be absolutely prohibitive. I'm just
wondering whether or not on a short-term basis we can actually
look at this with the Committee and study its ramifications to
see whether or not this is the framework you want to put into a
statutory construction. The difficulty is that once it's etched
in concrete as a statute and a requirement, we don't have the
flexibility that I think you and Mr. Cash were talking about
earlier on when he mentioned it in terms of what that
capability is.
But our translators are different than FBI translators. Our
requirements are different than the FBI translators. Protection
of classified information is different. The difficulty is it
should not be paralytic. On the other hand, what it should be
is something that is done in a way that both is effective and
efficient and quick and gets it turned around.
I don't know--and on behalf of the community--I don't know
if this is exactly the right paradigm, but what we'd like to do
is experiment and see what we can come up with and then maybe
come back to you and say, ``Here's some of the other options.''
Would this satisfy it?
Senator Rockefeller. That's fair enough. But you wouldn't
disagree that there has to be a sharp increase in our capacity.
Mr. McNamara. Absolutely agree.
Senator Rockefeller. Thank you, Mr. Chairman.
Chairman Graham. Thank you, Senator.
Senator DeWine.
Senator DeWine. Thank you, Mr. Chairman.
Mr. Kris, let me first say that I think the Attorney
General has come forward with some very, very positive
proposals. Some of these have been made in the past and
Congress has not acted upon them. I hope that now, with this
situation that we are in and the tragedy of September 11, we
will. I think also that the Chairman's proposal has many, many
very positive things in there, and I would congratulate you,
Mr. Chairman, on that as well.
I don't want to beat a horse that's going to be going
around a few more times beyond today, but I want to come back,
if I could, to section 153. I understand your explanation and
if we do pass this I guess I hope you're right that you are
lucky enough and we're all lucky enough to do it on a case-by-
case basis. I'm not sure you're right.
I'm not even sure, though, if it's on a case-by-case basis
that's what we want. It seems like to me that's going to be a
real mess and there are going to be some real problems for us
as a country.
As you know, the case that really is kind of the
intellectual underpinning of the FISA statute was United States
v. U.S. District Court, or the Keith case. When you read that,
as I know you have and the counsel has, it's very, very clear
that what the Supreme Court of the United States was saying is
there are apples and oranges, and when you're dealing with a
criminal it's one thing, and when you're dealing with national
security it's something else and we're going to treat them
differently and the standards are going to be different. The
Court elaborates in four or five different ways what the
differences are.
The statute today, as you know, talks about ``the
purpose.'' That I suppose, it seems to me, is pretty much
interpreted as ``the primary purpose.'' We might be able to get
by with ``a primary purpose,'' maybe. But I think when you get
to ``a purpose'' I just think what does that mean--2 percent of
what you're trying to do is national security and 98 percent is
criminal? Where do you draw the line?
I just think we're getting into some real, real problems.
I'm very sympathetic with what you're trying to do. I just
wanted to make that statement.
I want you to explain to me, though, one more time what
this gets you. What does it get us in national security? I'm
missing it. I really understand the problem about sharing
information. I understand about the artificial walls. I
understand the reason we have to have more cooperation. A lot
of what's in the Chairman's bill and a lot of what's in
Attorney General Ashcroft's bill goes to that. I have a couple
of provisions I want to add that I think will help in that
area, and I won't get into them today.
Explain to me, though, what the change in the statute does
to accomplish the breaking down of those walls and the sharing
of that information, because it seems like it's going the wrong
way to me on the information. But maybe I'm missing something.
Mr. Kris. Well, with respect to the purpose inquiry that is
conducted both by the FISA Court in the case of a U.S. person
when it evaluates the certification of the purpose of the
sought electronic surveillance or search and a District Court
if under FISA it evaluates a motion to suppress, I think the
analysis has focused concretely on two things--first the flow
of information from the intelligence side to the criminal side
and, second, the advice that goes back from the criminal side
to the intelligence side.
Senator DeWine. OK. I'm with you so far.
Mr. Kris. So, to give you a hypothetical example, if
prosecutors start telling counterintelligence investigators,
``Hey, you're up on Joe Jones'', you should probably go up on
his brother Fred because he's involved in money-laundering,
it's not a crime that affects national security but we would
really like to get some good surveillance on Fred, that advice-
giving can alter the perceived purpose of the surveillance of
Fred because it is being driven by or it is perceived to be
being driven by criminal equities and a criminal purpose.
The concern that we have, therefore, is to allow just the
right amount of information-sharing and advice-giving but not
too much, so that we don't cross the line, the purpose line,
and end up in a bad situation where we are either conducting or
attempting to conduct unauthorized surveillance or, if the FISA
Court agrees with us but a District Court later disagrees, we
end up suppressed in a criminal case.
Senator DeWine. OK. Give me another example, because I
really didn't understand that one, or do it again--if the
Chairman will indulge me just a minute--because I think this is
very important. We have to understand the situation. You're
going in to get a FISA and the factual case you have to create
is a case where it's not ``the purpose.'' It's much less than
that, because that's why you're making the change. You're going
from ``the'' purpose to ``a'' purpose.
So now we're down to you've got a lot of other reasons out
there that you want a FISA, but one of them is, ``a'' purpose,
national security.
Mr. Kris. OK.
Senator DeWine. Because that's the factual situation that
your change in the statute leads me to. With me so far?
Mr. Kris. I think I understand you.
Senator DeWine. OK. Now create the case. Tell me the case
where it's just a portion of really what I want to do.
Mr. Kris. OK. I think that issue comes up in a number of
both terrorism and espionage cases because terrorism and
espionage are, by their nature, both counterintelligence
concerns--we want to stop spies from stealing our secrets and
passing them to foreign governments--and, because of the way
the criminal law is today, they are Federal crimes. We see that
in the prosecution of Robert Hanssen or Brian Regan or Ana
Montes.
What you face inevitably in a case like that, both in
espionage cases and in terrorism cases, is an inquiry that's
being conducted by courts into sort of what is driving this
surveillance or search. Is it the desire to gather evidence so
that we can successfully prosecute this person and lock them
up, or is it instead the non-law enforcement concern about
stopping espionage and preventing further harm or what have
you.
Now there is an argument that prosecution of spies and
terrorists is just one more counterintelligence tool, one more
protective measure. By surveilling them we can recruit them,
double them, we can cut them off from access to classified
information, we can PNG their handlers, or possibly prosecute
them. But that argument would be, I think, new.
So the basic concern is that in these cases there is the
possibility of criminal prosecution and the concern is that
that not be the driving force behind the surveillance.
Senator DeWine. Mr. Chairman, I've gone too long and I
apologize. I thank the Chair for your indulgence.
Let me just say to our witnesses today I appreciate the
testimony very much. I'm going to explore this a little more
because I'm not, contrary maybe to what I said, I'm open. I'm
willing to listen. If there's a compelling reason to do this,
maybe we should do it. I guess I just don't get it yet. So I'm
going to explore it a little more. I appreciate it.
Mr. Kris. We're at your disposal.
Senator DeWine. Thank you.
Chairman Graham. Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
I'd like to ask you, Mr. Kris, if I could, about electronic
surveillance and particularly how the Administration sees
drawing the line between what constitutes lawful online
activity and matters that we ought to be concerned about, such
as criminal hacking from abroad.
Section 201 is trying to define criminal hacking, and
clearly this is going to be an issue for the Congress. How
would you define it?
Mr. Kris. It's a difficult term to define. We take a run at
it on the criminal side in section 106 of our bill and, if
you'll permit me, I'll turn to that provision.
We define hacking in terms of trespass and if you are a
trespasser into a computer then effectively that is the core of
the hacking definition that we have in section 106. I want to
say that this is--and I'm happy to respond--I want to say that
this is not one of the sections identified and it is not really
within my personal area of expertise. This is a criminal law
provision here. But that is the gist of what we are doing in
section 106.
I think the section 201 provision, as I understand it, is
motivated by a similar concern. I think it's intriguing notion
on the FISA side to take out hacking from the definition of
FISA electronic surveillance. I think that's one that we would
like to sit down with not only our interagency process in the
Intelligence Community but also with the staff to sort of work
to see if we can ensure that we're doing exactly what we want
to do and nothing more.
Senator Wyden. Let me, if I might, change the subject to
the question of biological and chemical and radioactive
materials. Your bill has a provision that makes it unlawful to
possess a variety of materials--biological agents and a host of
other areas that are essentially health-related. What do you
think the major vulnerabilities are now in this area and how
would your bill address it?
Mr. Kris. Again I have to sort of apologize, Senator. That
is not one of the provisions that was identified to us by the
Chairman in advance of the hearing, and I am really very
reluctant to set out into an explanation of something that I am
not really prepared to discuss. We can certainly get back to
you with the right people on that, but I don't think I am.
Chairman Graham. Senator Wyden, I asked the General Counsel
to screen the Attorney General's recommendations for purposes
of identifying which of his recommendations were in the
jurisdiction of our Committee, and it was only those that we
submitted to Mr. Kris and asked him to be prepared to comment
on today.
Senator Wyden. So we can't get an answer out of any of the
people at the table.
Suffice it to say this is what my constituents are asking
about today, and this is in the Justice Department's bill. I
certainly respect you, Senator Graham, if they are not prepared
to talk about it, but clearly there are statutes and
regulations that apply to the possession of chemical agents and
toxins and biological agents, and I hope we'll talk about it
down the road.
Mr. Parkinson. Just quickly, Senator Wyden, I assume you're
referring to section 305 of the Administration's bill, and
while we didn't come necessarily prepared to talk about that,
that section does enhance the number of offenses in the
biological weapons arena. It adds subsections to existing
statute 175 to include additional offenses of possessing
biological agents and toxins, and then it has a section about
select agents within the jurisdiction of the Health and Human
Services Department.
The intent and the goal of those sections is to make sure
that biological agents or toxins are only in the hands of
authorized personnel, and it does two things. It establishes a
new regulatory regime within the purview of HHS and it also
adds a couple of new offenses to address it on the law
enforcement side.
Senator Wyden. Are there vulnerabilities that you can
discuss this afternoon that make the need for those
improvements necessary?
Mr. Parkinson. There certainly are vulnerabilities. I can't
comment about imminent vulnerabilities, but certainly at a
larger level we and the Department and the Intelligence
Community have been focused on biological and chemical weapons
as a priority for several years now. I think that there's no
question there are vulnerabil- ities, and this provision,
section 305, is one attempt to deal with it both on the law
enforcement side and the regulatory side.
Senator Wyden. Mr. Chairman, obviously this is not a day to
get into as much detail as we might in this area, but I hope we
will turn to it, because this is something I am getting asked a
great deal about, and it is in the Justice Department's bill
and we're going to be anxious to talk to you.
Thank you.
Chairman Graham. Senator Edwards and then Senator Kyl.
Senator Edwards. Thank you, Mr. Chairman.
Mr. Kris, you were probably here when I asked Ms. Divoll
some questions about the differences between the Administration
proposals and the provisions of the bill. Let me say first of
all that I spent part of Saturday in Charlotte with our FBI
officials in North Carolina, and their overwhelming message to
me was we have to bring these FISA procedures up to being able
to deal with what we're confronted with technologically today.
I understand the concern and I am with you. I want to make
this work. But I also share some of the concerns that others
have expressed and I expressed earlier. Let me just talk about
it briefly and then get you to respond if I can.
If I understand it correctly, the fundamental premise on
which FISA is based is that, unlike a title III wiretap,
because it's a foreign intelligence-gathering operation, it's
not required to meet some of the constitutional standards--for
example, probable cause requirements. At least that's not been
required in the statute. You can comment on that if you would.
But that of underlying premise has been critical in the
analysis of why this legislation has to date been
constitutional. Now the change from ``the'' to ``a'' of course
is a huge change in terms of the law. It may not sound like
much, but in terms of the law it's an enormous change. That
change means that the primary purpose of the investigation
could in fact be criminal, as long as a purpose was foreign
intelligence-gathering. So I have multiple concerns, one of
which you've already addressed.
I was concerned about the possibility that somewhere down
the road the U.S. Supreme Court may declare the statute
facially unconstitutional. You've talked about that some. I'd
like to hear more about that because I continue to have
concerns about that. But I understand your reasoning about
that.
Second, the possibility that a conviction may be overturned
or also that information gathered as a result of a FISA
application may not be allowed into evidence, suppressed by the
court, and, I might add, I think it goes further than that. It
seems to me that it creates the possibility that not only that
particular FISA would be suppressed but that others within the
same class would be found to be unconstitutional as applied.
Therefore you have a problem not just in the individual case,
which I know you've talked about some here today, but you could
have a declaration by a
Federal district court somewhere in the country that could have
implications for ongoing FISAs, for FISAs that are similar and
fall within the same class, and as a result would have much
broader implications. So I'd be concerned about that.
I might add I know from having looked at the Supreme Court
cases the Supreme Court has taken a particular interest, I
think, in the last couple of years in this specific issue, not
dealing with FISA but what the primary purpose of the search
was. So that's a concern I have.
Then finally I know that the U.S. Supreme Court has
historically--you've talked about the fact that we're going to
have the courts deal with this on a case-by-case basis. The
U.S. Supreme Court has traditionally, in issues of foreign
intelligence-gathering, showed deference to Congress, and
properly so. I agree with that. But they showed deference to
Congress. I just wonder from your perspective whether it would
not be some abdication of our responsibility to say, ``Well,
we're going to leave this issue to the courts on a case-by-case
basis, where the courts are very likely to say or very possibly
could say this is an area of foreign policy, this is an area of
foreign intelligence-gathering, this is an area traditionally
left to Congress.''
That being the case, who has the responsibility for
deciding whether in fact this is appropriate and
constitutional?
Just one last notion. Instead of changing the statute,
suppose we said--and this is nothing but an idea--you expressed
concern about having to constantly evaluate whether the primary
purpose was a criminal investigation or the primary purpose was
foreign intelligence-gathering. That makes sense to me. I can
see that.
But instead of changing the language of the statute, which
might potentially create more problems than it cures, suppose
we said that in your initial application you are required to
show that the primary purpose was the FISA requirement that
exists now--foreign intelligence-gathering--but at some point
down the road if it changed, when you come up for renewal you
wouldn't have to make that showing again. In other words, it
only has to be shown in the initial application.
I'm sorry. I went on too long. But if you could respond I
would appreciate it.
Mr. Kris. It's a tall order to cover all of that. I'll do
my best. First, with respect to the probable cause issue that
you raised, as a technical matter FISA does require a showing
of probable cause, but it is of a different thing. In the
criminal context it's probable cause that a crime has been
committed; here it is probable cause that the target is an
agent of a foreign power. But I take your larger point about
the difference in standards.
I guess, responding to the other point about how this would
play out in a suppression situation, the first thing I guess I
should say is I don't think that even under the current regime
and under any possible regime we can avoid making case-by-case
determinations. Whether it be a primary purpose inquiry, a
purpose inquiry, or any other inquiry, we are and have to
examine each one of these applications not only because I think
they are going to be evaluated on a case-by-case basis but
because the certification from the Director of the FBI and the
approval of the Attorney General is made on a specific case-by-
case basis. One of the safeguards of FISA is that it requires
that high-level involvement.
Also, I don't know if this has been made clear, but I think
the FISA Court, in evaluating FISA applications, would be
entitled, and OLC is of this view as well, to evaluate the
constitutionality of an application ex ante. So we would not
just be in a situation where we're rolling the dice and taking
our chances in district court.
Senator Edwards. The evaluation would take place on the
front end, is what you're saying.
Mr. Kris. Yes, exactly.
As to the sort of derivative suppression, that is a fairly
complex body of fourth amendment law about when, assuming an
initial constitutional violations, the fruits of that violation
taint subsequent searches. That has got to be evaluated also on
a case-by-case basis. But I acknowledge the issue.
With respect to the deference and the delegation issue, I
would like to think that the courts have recognized Executive
authority and have paid deference to Executive determinations
in the area of foreign intelligence, and indeed I think that's
reflected in FISA. When the DCI or the Director of the Bureau
makes a certification as to purpose, the FISA Court by statute
is required, even in the case of a U.S. person--and district
courts I think would operate under the same standard--to review
the certification only for clear error. So there is a built-in
deference mechanism where if the DCI or the Director of the
Bureau makes a certification, it is to be upheld unless it is
clearly erroneous, which is a fairly generous standard of
review.
I think that deference, even if not in that precise form,
would continue to apply regardless of how the statute is
amended and indeed even if there were no statute.
Finally, I guess with respect to the initial application
idea I guess I think that if we are going to allow a lower
standard than primary purpose in second and subsequent
applications I'm not sure that will do the trick for us. I'm
not sure it will solve the problem, I guess more importantly,
because we will be up on multiple renewals and if after the
second one we are dropping down I think we will face a lot of
the same concerns that you have. That's sort of a idea that I
would want to give a little more thought.
Senator Edwards. I've taken too much time already. Thank
you for that response. Let me just make clear I want to work
with you. I want to make this work. We appreciate the work
you're doing. I know first-hand from my folks that what you're
proposing is of critical importance. We just need to be sure
that it's going to do what we want it to do.
Mr. Kris. Yes, sir. Thank you.
Chairman Graham. Thank you, Senator Edwards.
Senator Kyl.
Senator Kyl. Thank you, Mr. Chairman. I have three specific
questions, if I could.
The first is a situation in which at least it's my
understanding that FISA actually presents a tougher standard
than generally. This has to do with the--well, the best example
is the trap and trace or the pen registers that the U.S.
Supreme Court has held in the regular context do not present a
constitutional expectation of privacy or constitutional issue,
with respect to just the existence of the call or the numbers
themselves and so on. Yet under FISA the mere existence of the
call or the data exchange is termed a communication and must be
protected from electronic surveillance.
Why is that so? Why isn't that being suggested for change?
Question No. 1.
Question No. 2, is it the fact that FISA does only apply to
non-U.S. citizens? Once somebody is identified as meeting the
criteria agent of a foreign power or terrorist group and so on,
then why should citizenship constitutionally make a difference
here? Why should there be a higher standard?
Finally, I wasn't here when you answered Senator Shelby's
question, Mr. Kris, but I understand from staff that you
expressed a concern about section 204, and I just wondered
whether you could go into greater detail on the problems
associated with section 204 requiring the Government to meet
both title III and FISA standards.
Mr. Kris. Yes, sir. With respect to the first question
concerning pen/trap authority, there is a proposal in the
Administration's bill--section 155--that would lower the
standard for FISA pen/trap orders to make them roughly
analogous to the standard for criminal pen-trap orders. You are
right. Under Smith v. Maryland there is no fourth amendment
privacy interest in pen/trap information, and the standard in
criminal cases is a certification from the applicant that the
information sought is relevant to a criminal investigation.
We're seeking a standard in FISA that would require a
similar certification that the information sought is relevant
to a counterintelligence investigation. So that would be our
section 155.
With respect to FISA and U.S. citizens, U.S. citizens may
be FISA targets if they are agents of a foreign power as
defined by statute, and the statute contains two definitions of
agent of a foreign power. The first applies to any person other
than a U.S. person, and the statute defines a U.S. person to be
a citizen or a permanent resident alien. So that could apply
either to U.S. citizens or foreign persons. Then a second
provision that defines the term for U.S. persons. It has a
slightly higher standard--I may have misspoken. I want to make
sure I get it clearly.
There is a provision that applies to anyone other than a
U.S. person, so only to foreigners, and then another provision
that applies both to U.S. persons and foreigners. So a U.S.
person, a U.S. citizen, can be an agent of a foreign power if
they meet the statutory requirements.
Finally, with respect to----
Senator Kyl. On that, I mentioned the terrorist group. Does
a terro
