Calendar No. 32
108th Congress Report
SENATE
1st Session 108-40
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AMENDMENT OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 TO ALLOW
SURVEILLANCE OF NON-UNITED STATES PERSONS WHO ENGAGE IN OR PREPARE FOR
INTERNATIONAL TERRORISM WITHOUT AFFILIATION WITH A FOREIGN GOVERNMENT
OR INTERNATIONAL TERRORIST GROUP
_______
April 29, 2003.--Ordered to be printed
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 113]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 113) to exclude United States persons from the
definition of ``foreign power'' under the Foreign Intelligence
Surveillance Act of 1978 relating to international terrorism,
having considered the same, reports favorably thereon with
amendment, and recommends that the bill as amended do pass.
CONTENTS
Page
I. Purpose..........................................................2
II. Background on the Legislation....................................2
III. Need for the Legislation.........................................2
IV. Hearings.........................................................6
V. Committee Consideration..........................................6
VI. Section-by-Section Analysis and Discussion.......................8
VII. Congressional Budget Office Cost Estimate........................8
VIII.Regulatory Impact Statement......................................9
IX. Additional Views................................................10
X. Appendix A--Excerpts from Joint Inquiry Briefing by Staff on
United States Government Counterterrorism Organizations and on the
Evolution of the Terrorist Threat and United States Response:
1986-2001, September 24, 2002...................................76
XI. Appendix B--Letter from Judiciary Committee Chairman Hatch to
Senators Leahy, Grassley and Specter, dated February 27, 2003...79
XII. Appendix C--Letter from the Department of Justice to Senate Select
Committee on Intelligence Chairman Graham and Vice-Chairman
Shelby, dated August 6, 2002....................................86
XIII.Appendix D--Letter from the Department of Justice to Judiciary
Committee Chairman Leahy, dated December 23, 2002...............89
XIV. Appendix E--Letter from the Department of Justice to Senate Select
Committee on Intelligence Chairman Graham and Vice-Chairman
Shelby, dated July 31, 2002.....................................98
XV. Changes in Existing Law........................................103
I. Purpose
The purpose of S. 113 is to amend the Foreign Intelligence
Surveillance Act of 1978 (FISA), title 50, United States Code,
to permit surveillance of so-called ``lone wolf'' foreign
terrorists. S. 113 would allow a FISA warrant to issue upon
probable cause that a non-United States person is engaged in or
preparing for international terrorism, without requiring a
specific showing that the non-United States person also is
affiliated with a foreign power. By eliminating the requirement
of a foreign-power link for FISA warrants in such cases, S. 113
would allow U.S. intelligence agencies to monitor foreign
terrorists who, though not affiliated with a group or
government, pose a serious threat to the people of the United
States. In light of the significant risk of devastating attacks
that can be carried out by non-United States persons acting
alone, individual terrorists must be monitored and stopped,
regardless of whether they operate in coordination with other
individuals or organizations.
II. Background on the Legislation
THE 107TH CONGRESS
In the 107th Congress, S. 2586 was introduced on June 5,
2002 by Senators Schumer and Kyl. S. 2586 was identical to S.
113 as introduced in the 108th Congress.
THE 108TH CONGRESS
In the 108th Congress, Senator Kyl introduced S. 113 on
January 9, 2003. Senate Judiciary Committee Chairman Hatch,
Senator DeWine, and Senator Schumer were original co-sponsors
of S. 113. Senator Chambliss and Senator Sessions became co-
sponsors of S. 113, on January 28, and February 6, 2003,
respectively.
III. Need for the Legislation
S. 113 expands the Foreign Intelligence Surveillance Act of
1978 to permit surveillance or physical searches relating to
non-United States persons where there is probable cause to
believe that such individual is involved in international
terrorism, without regard to whether such persons are
affiliated with a foreign government or terrorist group.
The September 11, 2001 terrorist attacks on the people of
the United States underscored the need for this legislation.
Several weeks before those attacks, federal law enforcement
agents identified one of the participants in that conspiracy as
a suspected international terrorist. These agents sought to
obtain a FISA warrant to search his belongings. One of the
principal factors that prevented the issuance of such a warrant
was FISA's requirement that the target be an agent of a foreign
power. Even if federal agents had been able to demonstrate that
this person was preparing to commit an act of international
terrorism, based on the suspicious conduct that had first
brought him to the attention of authorities, the agents would
not have been able to obtain a warrant to search him absent a
link to a foreign power. As a result, these federal agents
spent three critical weeks before September 11 seeking to
establish this terrorist's tenuous connection to groups of
Chechen rebels--groups for whom we now know this terrorist was
not working.
It is not certain that a search of this terrorist would
necessarily have led to the discovery of the September 11
conspiracy. We do know, however, that information in this
terrorist's effects would have linked him to two of the actual
September 11 hijackers, and to a high-level organizer of the
attacks who was captured in 2002 in Pakistan. And we do know
that suspending the requirement of a foreign-power link for
lone-wolf terrorists would have eliminated the major obstacle
to federal agents' investigation of this terrorist--the need to
fit this square peg into the round hole of the current FISA
statute.\1\
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\1\ In their joint additional views, Senators Leahy and Feingold
express some confusion as to why the investigation of the suspected
20th September 11 hijacker was impeded by FISA's current requirement
that every suspected international terrorist also be shown to be an
agent of a foreign power. Senators Leahy and Feingold suggest that the
F.B.I. had ``all the evidence it needed to procure'' a warrant for this
individual. To the extent that Senators Leahy and Feingold refer to a
FISA warrant, it would appear that they do not appreciate the meaning
of the term ``agent'' as employed by FISA. The current FISA's ``agent''
requirement, and its effect on the investigation of the September 11
conspiracy, were described by the FBI in a September 24, 2002 joint
hearing before the Intelligence Committees. The relevant passages from
that hearing are attached as Appendix A to this report.
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FISA allows a specially designated court to issue an order
authorizing electronic surveillance or a physical search upon
probable cause that the target of the warrant is ``a foreign
power or an agent of a foreign power.'' 50 U.S.C.
Sec. 1805(a)(3)(A), Sec. 1824(a)(3)(A). The words ``foreign
power'' and ``agent of a foreign power'' are defined in
Sec. 1801 of FISA. ``Foreign power'' includes ``a group engaged
in international terrorism or activities in preparation
therefor,'' Sec. 1801(a)(4), and ``agent of a foreign power''
includes any person who ``knowingly engages in sabotage or
international terrorism, or activities that are in preparation
therefor, for or on behalf of a foreign power.''
Sec. 1801(b)(2)(C).
Requiring that targets of a FISA warrant be linked to a
foreign government or international terrorist organization may
have made sense when FISA was enacted in 1978; in that year,
the typical FISA target was a Soviet spy or a member of one of
the hierarchical, military-style terror groups of that era.
Today, however, the United States faces a much different
threat. The United States is confronted not only by specific
groups or governments, but by a movement of Islamist
extremists. This movement does not maintain a fixed structure
or membership list, and its adherents do not always advertise
their affiliation with this cause. Moreover, in response to the
United States' efforts to fight terrorism around the world,
this movement increasingly has begun operating in a more
decentralized manner.\2\
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\2\ Senator Leahy has included with his additional views an
appendix with a 37-page report prepared by Senators Leahy, Grassley and
Specter critiquing the FBI's pre-September 11 intelligence activities
and the FBI in general, which itself is accompanied by a substantial
appendix of exhibits. Senator Leahy previously has introduced the same
document into the Congressional Record. On February 27, 2003, Chairman
Hatch presented to Senator Leahy a letter identifying numerous
inaccuracies, errors, and apparent misunderstandings in Senator Leahy's
personal report. We include Chairman Hatch's letter as Appendix B to
this report.
Senators Leahy and Feingold also suggest that more information
about U.S. intelligence agencies' surveillance of suspected terrorists
and other counterintelligence activities should be made public. The
Department of Justice previously has indicated to Senator Leahy that
the disclosures that he recommends would reveal sensitive information
about U.S. anti-terrorism efforts to terrorist organizations. A copy of
the Department's letter to Senator Leahy is included in Appendix C to
this report.
Senators Leahy and Feingold also question the propriety of FISA
investigations that extend to public libraries, raising the specter of
J. Edgar Hoover. The Department of Justice previously has explained to
Senator Leahy in responses to written questions the relevant legal
standards governing FISA investigations, and why some investigations
lead to public libraries. The Department has indicated, for example,
that some FBI offices ``followed up on leads concerning e-mail and
Internet use information about specific [September 11] hijackers from
computers in public libraries.'' We include the relevant Department of
Justice responses to written questions in Appendix D to this report.
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The origins and evolution of the Islamist terrorist threat,
and the difficulties posed by FISA's current framework, were
described in detail by Spike Bowman, the Deputy General Counsel
of the FBI, at a Senate Select Committee on Intelligence
hearing on the predecessor to S. 113. Mr. Bowman testified:
When FISA was enacted, terrorism was very different from
what we see today. In the 1970s, terrorism more often targeted
individuals, often carefully selected. This was the usual
pattern of the Japanese Red Army, the Red Brigades and similar
organizations listed by name in the legislative history of
FISA. Today we see terrorism far more lethal and far more
indiscriminate than could have been imagined in 1978. It takes
only the events of September 11, 2001, to fully comprehend the
difference of a couple of decades. But there is another
difference as well. Where we once saw terrorism formed solely
around organized groups, today we often see individuals willing
to commit indiscriminate acts of terror. It may be that these
individuals are affiliated with groups we do not see, but it
may be that they are simply radicals who desire to bring about
destruction.
* * * * * * *
[W]e are increasingly seeing terrorist suspects who appear
to operate at a distance from these [terrorists] organizations.
In perhaps an oversimplification, but illustrative
nevertheless, what we see today are (1) agents of foreign
powers in the traditional sense who are associated with some
organization or discernible group (2) individuals who appear to
have connections with multiple terrorist organizations but who
do not appear to owe allegiance to any one of them, but rather
owe allegiance to the International Jihad movement and (3)
individuals who appear to be personally oriented toward
terrorism but with whom there is no known connection to a
foreign power.
This phenomenon, which we have seen * * * growing for the
past two or three years, appears to stem from a social movement
that began at some imprecise time, but certainly more than a
decade ago. It is a global phenomenon which the FBI refers to
as the International Jihad Movement. By way of background we
believe we can see the contemporary development of this
movement, and its focus on terrorism, rooted in the Soviet
invasion of Afghanistan.
* * * * * * *
During the decade-long Soviet/Afghan conflict, anywhere
from 10,000 to 25,000 Muslim fighters representing some forty-
three countries put aside substantial cultural differences to
fight alongside each other in Afghanistan. The force drawing
them together was the Islamic concept of ``umma'' or Muslim
community. In this concept, nationalism is secondary to the
Muslim community as a whole. As a result, Muslims from
disparate cultures trained together, formed relationships,
sometimes assembled in groups that otherwise would have been at
odds with one another[,] and acquired common ideologies. * * *
Following the withdrawal of the Soviet forces in
Afghanistan, many of these fighters returned to their
homelands, but they returned with new skills and dangerous
ideas. They now had newly acquired terrorist training as
guerrilla warfare [had been] the only way they could combat the
more advanced Soviet forces.
* * * * * * *
Information from a variety of sources repeatedly carries
the theme from Islamic radicals that expresses the opinion that
we just don't get it. Terrorists world-wide speak of jihad and
wonder why the western world is focused on groups rather than
on concepts that make them a community.
* * * * * * *
The lesson to be taken from [how Islamist terrorists share
information] is that al-Qaida is far less a large organization
than a facilitator, sometimes orchestrator of Islamic militants
around the globe. These militants are linked by ideas and
goals, not by organizational structure.
* * * * * * *
The United States and its allies, to include law
enforcement and intelligence components worldwide[,] have had
an impact on the terrorists, but [the terrorists] are adapting
to changing circumstances. Speaking solely from an operational
perspective, investigation of these individuals who have no
clear connection to organized terrorism, or tenuous ties to
multiple organizations, is becoming increasingly difficult.
The current FISA statute has served the nation well, but
the International Jihad Movement demonstrates the need to
consider whether a different formulation is needed to address
the contemporary terrorist problem.
The Committee notes that when FISA was enacted in 1978, the
Soviet invasion of Afghanistan had not yet occurred and both
Iran and Iraq were considered allies of the United States. The
world has changed. It is the responsibility of Congress to
adapt our laws to these changes, and to ensure that law
enforcement and intelligence agencies have at their disposal
all of the tools they need to combat the terrorist threat
currently facing the United States. The Committee concludes
that enactment of S. 113's modification of FISA to facilitate
surveillance of lone-wolf terrorists would further Congress's
fulfillment of this responsibility.\3\
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\3\ In a separate statement of additional views on S. 113, Senator
Feingold expresses concerns about the constitutionality of allowing
surveillance of lone-wolf terrorists pursuant to FISA. He suggests that
by allowing searches of persons involved in international terrorism
without regard to whether such persons are affiliated with foreign
powers, S. 113 ``writes out of the statute a key requirement necessary
to the lawfulness of such searches.'' In order to address Senator
Feingold's concerns, the Committee attaches as Appendix E to this
report a letter presenting the views of the U.S. Department of Justice
on S. 2586, the predecessor bill to S. 113.
The Department of Justice's letter provides a detailed analysis of
the relevant Fourth Amendment jurisprudence, concluding that the bill's
authorization of lone-wolf surveillance would ``satisfy constitutional
requirements.'' The Department emphasizes that anyone monitored
pursuant to the lone-wolf authority would be someone who, at the very
least, is involved in terrorist acts that ``transcend national
boundaries in terms of the means by which they are accomplished, the
persons they appear intended to coerce or intimidate, or the locale in
which their perpetrators operate or seek asylum.'' (Quoting 50 U.S.C.
Sec. 1801(c)(3).) Therefore, a FISA warrant obtained pursuant to this
authority necessarily would ``be limited to collecting foreign
intelligence for the `international responsibilities of the United
States, and the duties of the Federal Government to the States in
matters involving foreign terrorism.' '' (Quoting United States v.
Dugan, 743 F.2d 59, 73 (2d Cir. 1984).) The Department concludes ``the
same interests and considerations that support the constitutionality of
FISA as it now stands would provide the constitutional justification
for S. 2568.'' The Department additionally notes that when FISA was
enacted it was understood to allow surveillance of groups as small as
two or three persons. The Department concludes that ``[t]he interests
that the courts have found to justify the procedures of FISA are not
likely to differ appreciably as between a case involving such a group *
* * and a case involving a single terrorist.''
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IV. Hearings
S. 2586 was originally referred to the Senate Select
Committee on Intelligence. It held one hearing on S. 2586 on
July 31, 2002, and then referred the matter to the Judiciary
Committee for consideration.
Testimony at the July 31, 2002 hearing was received from
six witnesses: Senator Charles E. Schumer of New York; Mr.
James Baker, Counsel for Intelligence Policy, Officer of
Intelligence and Policy Review, Department of Justice; Mr.
Marion E. (Spike) Bowman, Deputy General Counsel, Federal
Bureau of Investigation; Mr. Fred Manget, Deputy General
Counsel, Office of General Counsel, Central Intelligence
Agency; Mr. Jerry Berman, Executive Director, Center for
Democracy and Technology; and Professor Clifford Fishman,
Columbus School of Law, Catholic University of America.
V. Committee Consideration
THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 107TH CONGRESS
The Committee on the Judiciary did not consider S. 2586 in
executive session during the 107th Congress.
THE SENATE JUDICIARY COMMITTEE CONSIDERATION DURING THE 108TH CONGRESS
The Committee on the Judiciary, with a quorum present, met
in open and executive session on March 6, 2003, to consider S.
113.
Senator Kyl offered a substitute amendment on behalf of
himself, Senator Schumer, Senator Biden, and Senator DeWine,
which the Committee adopted by unanimous consent. The
substitute amendment made three changes to S. 113. First, the
amendment changed the location within FISA of S. 113's
authorization of surveillance and searches of lone-wolf
terrorists. As originally introduced, S. 113 would have amended
50 U.S.C. Sec. 1801(a), which defines the term ``foreign
power'' for purposes of FISA. The Kyl-Schumer-Biden-DeWine
amendment modified S. 113 so that it amends Sec. 1801(b), which
defines the term ``agent of a foreign power'' for purposes of
FISA. Placing the authorization to monitor lone-wolf terrorists
in subsection 1801(b) does not alter the substance of S. 113.
The second change made by the substitute amendment was to
subject the lone-wolf authorization to the same sunset
provision that applies to the USA PATRIOT Act of 2001 (Public
Law 107-56; 115 Stat. 295).
The third change made by the substitute amendment was to
change the stated purpose of the bill. The original stated
purpose of both S. 113 and its predecessor, S. 2586--``to
exclude United States persons from the definition of `foreign
power' under the Foreign Intelligence Surveillance Act of 1978
related to international terrorism''--does not accurately
describe the purpose of the bill, and appears to reflect a
misunderstanding of its effect. The new stated purpose supplied
by the substitute amendment--``to expand the Foreign
Intelligence Surveillance Act of 1978 (`FISA') to reach
individuals other than United States persons who engage in
international terrorism without affiliation with an
international terrorist group''--is that suggested by the
Department of Justice in its July 31, 2002 Statement of
Administration Policy on S. 2586.
The only other amendment to S. 113 that was considered by
the Judiciary Committee was an amendment offered by Senator
Feingold. This proposal would have amended FISA to allow
discovery of applications and affidavits filed in support of a
FISA warrant under the standards and procedures of the
Classified Information Procedures Act of 1980 (18 U.S.C. App.).
The Committee, on a 11-4 rollcall vote, defeated the
Feingold amendment. The vote on the amendment was as follows:
Tally: 4 Yes, 11 No, 4 Not Voting
Republicans (10)
N Hatch (R-Utah)
N Grassley (R-Iowa)
N Specter (R-Pa.)
N Kyl (R-Ariz.)
N DeWine (R-Ohio)
N Sessions (R-Ala.)
N Graham (R-S.C.)
N Craig (R-ID )
N Chambliss (R-Ga.)
N Cornyn (R-Tex.)
Democrats (9)
Y Leahy (D-Vt.)
Y Kennedy (D-Mass.)
NV Biden (D-Del.)
NV Kohl (D-Wis.)
NV Feinstein (D-Calif.)
Y Feingold (D-Wis.)
N Schumer (D-N.Y.)
Y Durbin (D-Ill.)
NV Edwards (D-N.C.)
The Committee then voted 19-0 to report favorably S. 113 to
the full Senate with a recommendation that the bill do pass.
VI. Section-by-Section Analysis and Discussion
Section 1. Treatment as agent of a foreign power under Foreign
Intelligence Surveillance Act of 1978 of non-United States
persons who engage in international terrorism without
affiliation with international terrorist groups
Section 1 includes two paragraphs. Paragraph (a) amends the
definition of an ``agent of a foreign power,'' 50 U.S.C.
Sec. 1801(b)(1), to include in a new subparagraph (C) a non-
United States person who ``engages in international terrorism
or activities in preparation therefor.'' Paragraph (b) subjects
this new authority to the sunset provision in section 224 of
the USA PATRIOT Act of 2001 (Public Law 107-56; 115 Stat. 295),
which terminates the authority on December 31, 2005.
VII. Congressional Budget Office Cost Estimate
In compliance with paragraph 11(a) of rule XXVI of the
standing rules of the Senate, the Committee sets forth, with
respect to the bill, S. 113, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 403 of the Congressional Budget Act of
1974.
S. 113--A bill to amend the Foreign Intelligence Surveillance Act of
1978 to cover individuals, other than United States persons,
who engage in international terrorism without affiliation with
an international terrorist group
CBO estimates that implementing S. 113 would not result in
any significant cost to the federal government. Enacting S. 113
could affect direct spending and receipts, but CBO estimates
that any such effects would not be significant. S. 113 contains
no intergovernmental or private-sector mandates as defined in
the Unfunded Mandates Reform Act and would impose no costs on
state, local, or tribal governments.
S. 113 would amend the Foreign Intelligence Surveillance
Act of 1978 to expand the definition of ``agent of a foreign
power.'' Under the bill, this designation would include persons
(other than U.S. persons) who engage in or prepare for
international terrorist acts on their own. This would enable
the Attorney General to use electronic surveillance to acquire
information on such individuals. The provisions of S. 113 would
expire on December 31, 2005.
Implementing the bill could result in more successful
investigations and prosecutions in certain cases involving
terrorist acts. CBO expects that any increase in costs for law
enforcement, court proceedings, or prison operations would not
be significant because of the small number of cases likely to
be affected. Any such additional costs would be subject to the
availability of appropriated funds.
Because those prosecuted and convicted under S. 113 could
be subject to criminal fines, the federal government might
collect additional fines if the bill is enacted. Collections of
such fines are recorded in the budget as governmental receipts
(revenues), which are deposited in the Crime Victims Fund and
later spent. CBO expects that any additional receipts and
direct spending would be negligible because of the small number
of cases involved.
VIII. Regulatory Impact Statement
In compliance with paragraph 11(b)(1), rule XXVI of the
Standing Rules of the Senate, the Committee, after due
consideration, concludes that S. 113 will not have a
significant regulatory impact.
IX. Additional Views
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ADDITIONAL VIEWS OF SENATOR LEAHY AND SENATOR FEINGOLD
In times of national stress there is an understandable
impulse for the government to seek more power. Sometimes more
power is needed, and sometimes it is not. Appropriate checks on
new grants of power to government, and meaningful oversight of
how that power is used, are always warranted however. While we
supported reporting S. 113 from the Judiciary Committee because
of the sunset provision that was added at the markup, we remain
concerned that this measure will not ensure that the
government's FISA power is being used as effectively or
appropriately as is necessary.
Sunset provisions, such as the one that we and other
Democratic Senators helped add during our markup, allow us to
adopt such measures as S. 113 on a temporary basis. Without
strong means to conduct oversight, however, there is no way to
determine whether those tools are working, and whether they are
being properly used. We hope that we can consider such
important oversight mechanisms as are contained in the Leahy-
Grassley-Specter-Feingold Domestic Surveillance Oversight Act
of 2003, S. 436, in order to reinforce and make more meaningful
a system of checks and balances for expansions of power such as
those in S. 113.
After the September 11 attacks, many from both sides of the
aisle worked together in a bipartisan fashion and with
unprecedented speed to craft and enact the USA PATRIOT Act,
which enhanced the government's surveillance powers. Since that
time, however, we have had a difficult time in gaining
cooperation from the Department of Justice in our bipartisan
oversight efforts to evaluate how those powers are being used.
Now, as we consider S. 113--and as we hear of
Administration plans to unveil a proposed sequel to the USA
PATRIOT Act, which is being developed without bipartisan
consultation--it is vital for us also to examine and understand
how federal agencies are using the power that they already
have. We must answer two questions:
First, is that power being used effectively? The
American people want to feel safer, but, more than
that, they want to be safer; they want and need
results, not rhetoric.
Second, is that power being used appropriately, so
that our liberties are not sacrificed, so that the
openness of our society and our government are
preserved, and so that our tax dollars are not
squandered?
Unfortunately, the FBI and the Department of Justice have
either been unwilling or unable to help us to answer these
basic questions. Moreover, the information that we have gleaned
on our own through our bipartisan oversight efforts has not
inspired confidence.
Last month, Senators Grassley, Specter and Leahy released a
detailed report based on the oversight that the Judiciary
Committee conducted in the 107th Congress (``FISA
Implementation Failures Report,'' or ``FIF Report''). While it
is not a report of the Committee because it was released after
Senator Hatch had assumed the chair, the FIF report distills
our bipartisan findings and conclusions from numerous hearings,
classified briefings and other oversight activities in the
107th Congress.
The Committee's oversight work demonstrated the pressing
need for reform of the FBI. In particular, the FIF Report
focused on the FBI's failures in implementing FISA, the very
law that S. 113 seeks to further amend. That FIF Report is
being included as Attachment A to these views, because it bears
so directly on some of the claims made about the urgency of
passing S. 113, and the continuing need for proper oversight
checks to balance such proposals. (See Attachment A).
The Administration's response to our bipartisan oversight
report has been to dismiss it as ``old news'' relating to
problems that are all already fixed. In short, ``everything is
fine'' at the FBI and they plan to do nothing to respond to the
systemic problems identified and described in the Specter-
Grassley-Leahy report. Despite the need for Congress to
understand how today's FISA statute, as amended by the USA
PATRIOT Act, is being used and interpreted by federal agencies,
Congress, while being kept in the dark, is being asked instead
to expand the FISA statute still further.
This bill, S. 113, adopts a ``quick fix'' approach. With
catchy monikers like the ``Moussaoui fix'' and the ``lone
wolf'' bill, it is aimed at making Americans feel safer, but it
does not address the chronic problems that actually plague the
effectiveness of our intelligence gatherers. The rationales
justifying this bill have shifted over time as well.
In many ways, S. 113 seems to be a legislative change in
search of a rationale. First, we were told that this amendment
to FISA would have allowed the FBI to obtain a warrant before
9-11 to search the computer and belongings of Zacarias
Moussaoui. Then, after it became clear from the Joint
Intelligence Committee investigation and our bipartisan
Judiciary Committee oversight, spearheaded by Senators Specter
and Grassley, that the FBI had all the evidence it needed to
procure such a warrant had they only understood the proper
legal standard and properly analyzed that information, the
rationale changed. Next, we were told that the bill was
necessary to conduct surveillance of ``lone wolf terrorists,''
who purportedly operate in isolation. Next, after it became
clear that few, if any, international terrorists work alone and
that existing criminal tools such as Title III were sufficient
to handle those rare cases, we were told that the measure was
necessary because it was hard to prove the connection between
terrorists.
Now, in this report, the implication is revived that the
FBI's pre-9/11 failures were due in large part to problems with
the law, but in a vague manner.\1\ The Committee Report even
goes so far as to opaquely offer that ``Iran and Iraq were
considered allies of the United States'' in 1978 as yet another
rational supporting passage of S. 113. It is difficult to
understand precisely what relevance such facts might have to a
FISA change dealing exclusively with persons who have no ties
whatsoever to any foreign government. It appears, however, that
the search for a rationale to support this bill--and one that
can be put forth without any meaningful oversight of FISA's
actual implementation--continues in full force. When the sunset
on this measure arrives we will need stronger rationales than
this to justify its extension.
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\1\ In another section, however, the Committee Report all but
concedes that this measure is no ``Moussaoui fix,'' when it states,
``It is not certain that it would have been possible to obtain a FISA
warrant to search [Moussaoui] even if S. 113 had been enacted prior to
the September 11 attacks.'' One also wonders, if this was indeed the
true reason for the FBI's pre 9/11 woes, why the Administration did not
request this FISA amendment as part of our USA PATRIOT Act legislation
after the attacks.
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The evidence outlined in the FIF Report, accompanying these
views as Attachment A, and coauthored by Senators Specter,
Grassley and Leahy, persuasively and completely rebuts that
claim. The FBI was not properly trained, manned, or equipped to
fight organized terrorism before 9/11. We do not know the scope
of S. 113, which is why the addition of the sunset provision is
so important. What we do know about S. 113 is that it will not
fix the real problems that plagued the FBI before 9/11 and that
continue at the FBI now--poor training, inadequate information
analysis, headquarters bottlenecks, and a culture that punishes
internal dissent.\2\ In private briefings, even FBI
representatives have said that they do not need this change in
the law in order to protect against terrorism. They are getting
all the warrants they want under the current law.
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\2\ Indeed, only recently the FBI Director followed the
recommendation of a DOJ Inspector General report and disciplined the
FBI's most senior internal affairs officer, the Assistant Director for
the Office of Professional Responsibility, for his mishandling of a
whistleblower matter involving John Roberts, who gave important
testimony to this Committee criticizing the FBI in the last Congress.
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What is needed more than S. 113 is internal reform spurred
by the kind of increased oversight structure set forth in the
Domestic Surveillance Oversight Act of 2003, S. 436. That bill,
which Senator Leahy introduced with Senators Grassley and
Specter, would provide for increased reporting on how the
government is using its domestic surveillance powers. It would
allow us to monitor trends so we can know whether more
surveillance is being focused on Americans than on non-U.S.
persons. It would end the secret case law that has hampered the
implementation of FISA over the last 24 years. It would allow
us to follow up on reports that the FBI is reviving the long
discredited practice from the Hoover days of monitoring public
and school libraries. This is the type of information that we
will need in order to assess whether further changes in the law
are required, and also whether renewal or modification of the
provisions already enacted is warranted.
We are all against terrorism. The unanswered question is
whether the Congress will take real steps to ensure that the
FBI and DOJ are not underusing, overusing or misusing the power
that they already have and which we expanded in the USA PATRIOT
Act. We must write fewer blank checks to the Executive Branch
and instead focus more on ensuring that our constitutional
system of checks and balances is enforced.
Another issue that must be closely examined is resource
allocation. We need to know whether the continued expansion of
FISA into the criminal arena will dilute its effectiveness as a
foreign intelligence tool. The Senate Select Committee on
Intelligence, through a letter written by the Chairman, had
earlier asserted concurrent jurisdiction over this bill. Now,
however, there is some move towards that Committee ceding
exclusive jurisdiction over this FISA measure to the Judiciary
Committee.
Whatever committee considers these matters, however, must
carefully consider whether the changes proposed in S. 113,
which remove FISA totally from its link to foreign powers, will
result in the diversion of scarce counter terrorism resources
away from intelligence gathering and into cases that could just
as easily be prosecuted using the ample tools existing
resources available in the criminal justice system. We must
ensure that while we allow more flexibility in FISA's use
(subject to a sunset), FISA continues in practice to be used
for gathering foreign intelligence, not as merely another tool
in exclusively criminal cases. A mechanism to protect that link
to foreign intelligence would be a welcome addition to this
proposal, and worth serious consideration.
If the Administration does insist on increasing its use of
FISA for cases traditionally prosecuted as criminal matters, we
should reconsider whether more of the basic due process
protections of our criminal justice system should also be made
applicable. For instance, Senator Leahy and others supported an
amendment offered in Committee by Senator Feingold that would
have required that the criminal discovery rules used for
classified material under the Classified Information Procedures
Act (CIPA) also be used for FISA materials. In the first 24
years of its existence, no FISA application of even a portion
of such an application has been provided to a criminal
defendant in discovery. While that rule may be defensible when
criminal prosecution is an unintended byproduct of FISA
surveillance, it is neither fair nor appropriate when criminal
prosecution is the goal from the outset. It is especially
difficult to defend in cases where the alleged terrorist is
working alone, the very cases that S. 113 seeks to bring under
the FISA rubric. More discussion by the Judiciary Committee of
this and other aspects of FISA is merited. Without more fulsome
oversight protections, measures such as S. 113 provide the
illusion of security without actually making Americans safer.
------
Attachment A
FBI Oversight in the 107th Congress by the Senate Judiciary Committee:
FISA Implementation Failures--An Interim Report by Senators Patrick
Leahy, Charles Grassley, and Arlen Specter, February 2003
I. EXECUTIVE SUMMARY AND CONCLUSIONS
Working in a bipartisan manner in the 107th Congress, the
Senate Judiciary Committee conducted the first comprehensive
oversight of the FBI in nearly two decades. That oversight was
aimed not at tearing down the FBI but at identifying any
problem areas as a necessary first step to finding constructive
solutions and marshaling the attention and resources to
implement improvements. The overarching goal of this oversight
was to restore confidence in the FBI and make the FBI as strong
and as great as it must be to fulfill this agency's multiple
and critical missions of protecting the United States against
crime, international terrorism, and foreign clandestine
intelligence activity, within constitutional and statutory
boundaries.
Shortly after the Committee initiated oversight hearings
and had confirmed the new Director of the FBI, the Nation
suffered the terrorist attacks of September 11, 2001, the most
serious attacks on these shores since Pearl Harbor. While it is
impossible to say what could have been done to stop these
attacks from occurring, it is certainly possible in hindsight
to say that the FBI, and therefore the Nation, would have
benefitted from earlier close scrutiny by this Committee of the
problems the agency faced, particularly as those problems
affected the Foreign Intelligence Surveillance Act (``FISA'')
process. Such oversight might have led to corrective actions,
as that is an important purpose of oversight.
In the immediate aftermath of the attacks, the Congress
and, in particular, the Senate Judiciary Committee responded to
demands by the Department of Justice (DOJ) and the FBI for
greater powers to meet the security challenges posed by
international terrorism. We worked together to craft the USA
PATRIOT Act to provide such powers. With those enhanced powers
comes an increased potential for abuse and the necessity of
enhanced congressional oversight.
Our oversight has been multi-faceted. We have held public
hearings, conducted informal briefings, convened closed
hearings on matters of a classified nature, and posed written
questions in letters in connection with hearings to the DOJ and
FBI.\1\ Although our oversight has focused primarily on the
FBI, the Attorney General and the DOJ have ultimate
responsibility for the performance of the FBI. Without both
accountability and support on the part of the Attorney General
and senior officials of the DOJ, the FBI cannot make necessary
improvements or garner the resources to implement reforms.
---------------------------------------------------------------------------
\1\ This report is limited to non-classified information and has
been submitted to the Department of Justice and FBI for a security
review prior to its release and they have agreed that it contains no
classified information.
---------------------------------------------------------------------------
At times, the DOJ and FBI have been cooperative in our
oversight efforts. Unfortunately, however, at times the DOJ and
FBI have either delayed answering or refused to answer fully
legitimate oversight questions. Such reticence only further
underscores the need for continued aggressive congressional
oversight. Our constitutional system of checks and balances and
our vital national security concerns demand no less. In the
future, we urge the DOJ and FBI to embrace, rather than resist,
the healthy scrutiny that legitimate congressional oversight
brings.
One particular focus of our oversight efforts has been the
Foreign Intelligence Surveillance Act (FISA). This report is
focused on our FISA oversight for three reasons. First, the
FISA is the law governing the exercise of the DOJ's and FBI's
surveillance powers inside the United States to collect foreign
intelligence information in the fight against terrorism and, as
such, is vitally important to our national security. Second,
the concerns revealed by our FISA oversight highlight the more
systemic problems facing the FBI and the importance of close
congressional oversight and scrutiny in helping to provide the
resources and attention to correct such problems before they
worsen. Third, members of this Committee led the effort to
amend key provisions of the FISA in the USA PATRIOT Act, and
the sunset or termination of those amendments in four years
makes it imperative that the Committee carefully monitor how
the FISA changes are being implemented.
This report is in no way intended to be a comprehensive
study of what did, or did not, ``go wrong'' before the 9/11
attacks. That important work was commenced by the Joint
Intelligence Committee in the 107th Congress and will be
continued by the National Commission on Terrorist Attacks (the
``9/11 Commission'') established by an act of Congress at the
end of the last session. The focus of this report is different
than these other important inquiries. We have not attempted to
analyze each and every piece of intelligence or the performance
of each and every member of the Intelligence Community prior to
the 9/11 attacks. Nor have we limited our inquiry to matters
relating only to the 9/11 attacks. Rather, we have attempted,
based upon an array of oversight activities related to the
performance of the FBI over an extended period of time, to
highlight broader and more systemic problems within the DOJ and
FBI and to ascertain whether these systemic shortcomings played
a role in the implementation of the FISA prior to the 9/11
attacks.
The FISA provides a statutory framework for electronic and
other forms of surveillance in the context of foreign
intelligence gathering. These types of investigations give rise
to a tension between the government's legitimate national
security interests, on the one hand, and, on the other hand,
constitutional safeguards against unreasonable government
searches and seizures and excessive government intrusion into
the exercise of free speech, associational, and privacy rights.
Congress, through legislation, has sought to strike a delicate
balance between national security and constitutionally
protected interests in this sensitive arena.
The oversight review this Committee has conducted during
the 107th Congress has uncovered a number of problems in the
FISA process: a misunderstanding of the rules governing the
application procedure, varying interpretations of the law among
key participants, and a break-down of communication among all
those involved in the FISA application process. Most disturbing
is the lack of accountability that has permeated the entire
application procedure.
Our FISA oversight--especially oversight dealing with the
time leading up to the 9/11 attacks--has reinforced the
conclusion that the FBI must improve in the most basic aspects
of its operations. Following is a list of our most important
conclusions:
FBI Headquarters did not properly support the
efforts of its field offices in foreign intelligence matters.
The role of FBI Headquarters in national security
investigations is to ``add value'' in two ways: by applying
legal and practical expertise in the processing of FISA
surveillance applications and by integrating relevant
information from all available intelligence sources to evaluate
the significance of particular information and to supplement
information from the field. In short, Headquarters' role is to
know the law and ``connect the dots'' from multiple sources
both inside and outside the FBI. The FBI failed in this role
before the 9/11 attacks. In fact, the bureaucratic hurdles
erected by Headquarters (and DOJ) not only hindered
investigations but contributed to inaccurate information being
presented to the FISA Court, eroding the trust in the FBI of
the special court that is key to the government's enforcement
efforts in national security investigations.
Key FBI agents and officials were inadequately
trained in important aspects of not only FISA, but also
fundamental aspects of criminal law.
In the time leading up to the 9/11 attacks, the
FBI and DOJ had not devoted sufficient resources to
implementing the FISA, so that long delays both crippled
enforcement efforts and demoralized line agents.
The secrecy of individual FISA cases is certainly
necessary, but this secrecy has been extended to the most basic
legal and procedural aspects of the FISA, which should not be
secret. This unnecessary secrecy contributed to the
deficiencies that have hamstrung the implementation of the
FISA. Much more information, including all unclassified
opinions and operating rules of the FISA Court and Court of
Review, should be made public and/or provided to the Congress.
The FBI's failure to analyze and disseminate
properly the intelligence data in the agency's possession
rendered useless important work of some of its best field
agents. In short, the FBI did not know what it knew. While we
are encouraged by the steps commenced by Director Mueller to
address this problem, there is more work to be done.
The FBI's information technology was, and remains,
inadequate to meet the challenges facing the FBI, and FBI
personnel are not adequately trained to use the technology that
they do possess. We appreciate that Director Mueller is trying
to address this endemic problem, but past performance indicates
that close congressional scrutiny is necessary to ensure that
improvements continue to be made swiftly and effectively.
A deep-rooted culture of ignoring problems and
discouraging employees from criticizing the FBI contributes to
the FBI's repetition of its past mistakes in the foreign
intelligence field. There has been little or no progress at the
FBI in addressing this culture.
It is important to note that our oversight and conclusions
in no way reflect on the fine and important work being done by
the vast majority of line agents in the FBI. We want to commend
the hard-working special agents and supervisory agents in the
Phoenix and Minneapolis field offices for their dedication,
professionalism, and initiative in serving the American people
in the finest traditions of the FBI and law enforcement.
Indeed, one of our most basic conclusions, both with respect to
FISA and the FBI generally, is that institutional and
management flaws prevent the FBI's field agents from operating
to their full potential.
Although the DOJ and FBI have acknowledged shortcomings in
some of these areas and begun efforts to reform, we cannot
stress strongly enough the urgency of this situation. The pace
of improvement and reform must quicken.
We are issuing this interim public report now so that this
information is available to the American people and Members of
Congress as we evaluate the implementation of the USA PATRIOT
Act amendments to the FISA and additional pending legislation,
including the FBI Reform Act. We also note that many of the
same concerns set forth in this report have already led to
legislative reforms. Included in these was the bipartisan
proposal, first made in the Senate, to establish a cabinet
level Department of Homeland Security, a proposal that is
already a legislative reality. Our oversight also helped us to
craft and pass, for the first time in 20 years, the 21st
Century Department of Justice appropriations Authorization Act,
P.L. 107-296, designed to support important reforms at the
Department of Justice and the FBI. In addition, concerns raised
by this Committee about the need for training on basic legal
concepts, such as probable cause, spurred the FBI to issue an
electronic communication on September 16, 2002, from the FBI's
Office of the General Counsel to all field offices explaining
this critical legal standard.
Additionally, this report may assist the senior leadership
of the DOJ and FBI, and other persons responsible for ensuring
that FISA is used properly in defending against international
terrorists.
II. OVERVIEW OF FBI OVERSIGHT IN THE 107TH CONGRESS
A. The Purposes of FBI Oversight: Enhancing Both Security and Liberty
Beginning in the summer of 2001 and continuing through the
remainder of the 107th Congress, the Senate Judiciary Committee
conducted intensive, bipartisan oversight of the FBI. The
purpose of this comprehensive oversight effort was to reverse
the trend of the prior decades, during which the FBI operated
with only sporadic congressional oversight focused on its
handling of specific incidents, such as the standoffs at Ruby
Ridge, Idaho, or Waco, Texas, and the handling of the Peter Lee
and Wen Ho Lee espionage cases. It was the view of both
Democrats and Republicans on the Judiciary Committee that the
FBI would benefit from a more hands-on approach and that
congressional oversight would help identify problems within the
FBI as a first step to ensuring that appropriate resources and
attention were focused on constructive solutions. In short, the
goal of this oversight was to ensure that the FBI would perform
at its full potential. Strong and bipartisan oversight, while
at times potentially embarrassing to any law enforcement
agency, strengthens an agency in the long run. It helps inform
the crafting of legislation to improve an agency's performance,
and it casts light on both successes and problems in order to
spur agencies to institute administrative reforms of their own
accord. In short, the primary goal of FBI oversight is to help
the FBI be as great and effective as it can be.
So, too, is oversight important in order to protect the
basic liberties upon which our country is founded. Past
oversight efforts, such as the Church Committee in the 1970s,
have exposed abuses by law enforcement agencies such as the
FBI. It is no coincidence that these abuses have come after
extended periods when the public and the Congress did not
diligently monitor the FBI's activities. Even when agencies
such as the FBI operate with the best of intentions (such as
protecting our nation from foreign threats such as Communism in
the 1950s and 1960s and fighting terrorism now), if left
unchecked, the immense power wielded by such government
agencies can lead them astray. Public scrutiny and debate
regarding the actions of government agencies as powerful as the
DOJ and the FBI are critical to explaining actions to the
citizens to whom these agencies are ultimately accountable. In
this way, congressional oversight plays a critical role in our
democracy.
The importance of the dual goals of congressional
oversight--improving FBI performance and protecting liberty--
have been driven home since the 9/11 attacks. Even prior to the
terrorist attacks, the Judiciary Committee had begun oversight
and held hearings that had exposed several longstanding
problems at the FBI, such as the double standard in discipline
between line agents and senior executive officials. The 9/11
attacks on our country have forever redefined the stakes riding
upon the FBI's success in fulfilling its mission to fight
terrorism. It is no luxury that the FBI perform at its peak
level--it is now a necessity.
At the time, the increased powers granted to the FBI and
other law enforcement agencies after 9/11 attacks, in the USA
PATRIOT Act, which Members of this Committee helped to craft,
and through the actions of the Attorney General and the
President, have made it more important than ever that Congress
fulfills its role in protecting the liberty of our nation.
Everyone would agree that winning the war on terrorism would be
a hollow victory indeed if it came only at the cost of the very
liberties we are fighting to preserve. By carefully overseeing
the DOJ's and FBI's use of its broad powers, Congress can help
to ensure that the false choice between fundamental liberty and
basic security is one that our government never takes upon
itself to make. For these reasons, in the post-9/11 world, FBI
oversight has been, and will continue to be, more important
than ever.
B. Judiciary Committee FBI Oversight Activities in the 107th Congress
1. Full Committee FBI Oversight Hearings
Beginning in July 2001, after Senator Leahy became
chairman, the Senate Judiciary Committee held hearings that
focused on certain longstanding and systemic problems at the
FBI. These included hearings concerning: (1) the FBI's
antiquated computer systems and its belated upgrade program;
(2) the FBI's ``circle the wagons'' mentality, wherein those
who report flaws in the FBI are punished for their frankness;
and (3) the FBI's flawed internal disciplinary procedures and
``double standard'' in discipline, in which line FBI agents can
be seriously punished for the same misconduct that only earns
senior FBI executives a slap on the wrist. Such flaws were
exemplified by the disciplinary actions taken (and not taken)
by the FBI and DOJ after the incidents at Waco, Texas, and Ruby
Ridge, Idaho, and the apparent adverse career effects
experienced by FBI agents participating in those investigations
who answered the duty call to police their own.
The Committee's pre-9/11 FBI oversight efforts culminated
with the confirmation hearings of the new FBI Director, Robert
S. Mueller, III. Beginning on July 30, 2001, the Committee held
two days of extensive hearings on Director Mueller's
confirmation and closely questioned Director Mueller about the
need to correct the information technology and other problems
within the FBI. In conducting these hearings, Committee Members
understood the critical role of the FBI Director in protecting
our country from criminal, terrorist, and clandestine
intelligence activities and recognized the many challenges
facing the new Director.
Director Mueller was questioned very closely on the issue
of congressional oversight, engaging in four rounds of
questioning over two days. In response to one of Senator
Specter's early questions, Director Mueller stated ``I
understand, firmly believe in the right and the power of
Congress to engage in its oversight function. It is not only a
right, but it is a duty.'' \2\
---------------------------------------------------------------------------
\2\ Hearing before the Senate Committee on the Judiciary,
``Confirmation Hearing on the Nomination of Robert S. Mueller, III to
be Director of the Federal Bureau of Investigation,'' 107th Congress,
2nd Session 69 (July 30-31, 2001) (emphasis added).
---------------------------------------------------------------------------
In response to a later question, Director Mueller stated:
I absolutely agree that Congress is entitled to
oversight of the ongoing responsibilities of the FBI
and the Department of Justice. You mentioned at the
outset the problems that you have had over a period of
getting documents in ongoing investigations. And as I
stated before and I'll state again, I think it is
incumbent upon the FBI and the Department of Justice to
attempt to accommodate every request from Congress
swiftly and, where it cannot accommodate or believes
that there are confidential issues that have to be
raised, to bring to your attention and articulate with
some specificity, not just the fact that there's
ongoing investigation, not just the fact that there is
an ongoing or an upcoming trial, but with specificity
why producing the documents would interfere with either
that trial or for some other reason or we believed
covered by some issue of confidentiality.\3\
---------------------------------------------------------------------------
\3\ Id., at p. 89.
Incoming Director Mueller, at that time, frankly
acknowledged that there was room for improvement in these areas
at the FBI and vowed to cooperate with efforts to conduct
congressional oversight of the FBI in the future.
Director Mueller assumed his duties on September 4, 2001,
just one week before the terrorist attacks. After the terrorist
attacks, there was a brief break from FBI oversight, as the
Members of the Judiciary Committee worked with the White House
to craft and pass the USA PATRIOT Act. In that new law, the
Congress responded to the DOJ's and FBI's demands for increased
powers but granted many of those powers only on a temporary
basis, making them subject to termination at the end of 2005.
The ``sunset'' of the increased FISA surveillance powers
reflected the promise that the Congress would conduct vigilant
oversight to evaluate the FBI's performance both before and
after 9/11. Only in that way could Congress and the public be
assured that the DOJ and FBI needed the increased powers in the
first place, and were effectively and properly using these new
powers to warrant extension of the sunset.
Passage of the USA PATRIOT Act did not solve the
longstanding and acknowledged problems at the FBI. Rather, the
9/11 attacks created a new imperative to remedy systemic
shortcomings at the FBI. Review of the FBI's pre-9/11
performance is not conducted to assess blame. The blame lies
with the terrorists. Rather, such review is conducted to help
the FBI prevent future attacks by not repeating the mistakes of
the past. Thus, the enactment of the USA PATRIOT Act did not
obviate the need to oversee the FBI; it augmented that need.
Within weeks of passage of the USA PATRIOT Act, the Senate
Judiciary committee held hearings with Senior DOJ officials on
implementation of the new law and other steps that were being
taken by the Administration to combat terrorism. The Committee
heard testimony on November 28, 2001, from Assistant Attorney
General Michael Chertoff and, on December 6, 2001, from
Attorney General Ashcroft. In response to written questions
submitted in connection with the latter hearing, DOJ confirmed
that shortly after the USA PATRIOT Act had been signed by the
President on October 26, 2001, DOJ began to press the congress
for additional changes to relax FISA requirements, including
expansion of the definition of ``foreign power'' to include
individual, non-U.S. persons engaged in international
terrorism. DOJ explained that this proposal was to address the
threat posed by a single foreign terrorist without an obvious
tie to another person, group, or state overseas. Yet, when
asked to ``provide this Committee with information about
specific cases that support your claim to need such broad new
powers,'' DOJ was silent in its response and named no specific
cases showing such a need, nor did it say that it could provide
such specificity even in a classified setting.\4\ In short, DOJ
sought more power but was neither unwilling or unable to
provide an example as to why.
---------------------------------------------------------------------------
\4\ Transcript, pp. 31-32 (emphasis added).
---------------------------------------------------------------------------
Beginning in March 2002, the Committee convened another
series of hearings monitoring the FBI's performance and its
efforts to reform itself. On March 21, 2002, the Judiciary
Committee held a hearing on the DOJ Inspector General's report
on the belated production of documents in the Oklahoma City
bombing case. That hearing highlighted longstanding in the
FBI;s information technology and training regarding the use of,
and access to, records. It also highlighted the persistence of
a ``head-in-the-sand' approach to problem, where shortcomings
are ignored rather than addressed and the reporting of problems
is discouraged rather than encouraged.
On April 9, 2002, the Committee held a hearing on the
Webster Commission's report regarding former FBI Agent and
Russian spy Robert Hansen's activities. That hearing exposed a
deep-seated cultural bias against the importance of security at
the FBI. One important finding brought to light at that hearing
was the highly inappropriate handling of sensitive FISA
materials in the time after the 9/11 attacks. In short, massive
amounts of the most sensitive and highly classified materials
in the FBI's possession were made available on an unrestricted
basis to nearly all FBI employees. Even more disturbing, this
action was taken without proper consultation with the FBI's own
security officials.
On May 8, 2002, the Judiciary Committee held an oversight
hearing at which FBI Director Mueller and Deputy Attorney
General Thompson testified regarding their efforts to reshape
the FBI and the DOJ to address the threat of terrorism. It was
at this hearing that the so-called ``Phoenix Memorandum'' was
publicly discussed for the first time. Director Mueller
explained in response to one question:
[T]he Phoenix electronic communication contains
suggestions from the agent as to steps that should be
taken, or he suggested taking to look at other flight
schools. . . . He made a recommendation that we
initiate a program to look at flight schools. That was
received at Headquarters. It was not acted on by
September 11. I should say in passing that even if we
had followed those suggestions at that time, it would
not, given what we know since September 11, have
enabled us to prevent the attacks of September 11. But
in the same breath I should say that what we learned
from instances such as that is much about the
weaknesses of our approach to counterterrorism prior to
September 11.\5\
---------------------------------------------------------------------------
\5\ Transcript, pp. 31-32 (emphasis added).
In addition, Director Mueller first discussed at this
hearing that FBI agents in Minnesota had been frustrated by
Headquarters officials in obtaining a FISA warrant in the
Zacharias Moussaoui investigation before the 9/11 attacks, and
that one agent seeking the warrant had said that he was worried
that Moussaoui would hijack an airplane and fly it into the
World Trade center.\6\
---------------------------------------------------------------------------
\6\ Transcript, May 8, 2002, pp. 61-62.
---------------------------------------------------------------------------
On June 6, 2002, the Committee held another hearing at
which Director Mueller testified further regarding the
restructuring underway at the FBI. Significantly, that hearing
also provided the first public forum for FBI Chief Division
Counsel Coleen Rowley of the Minneapolis Division to voice
constructive criticism about the FBI. Her criticisms, the
subject of a lengthy letter sent to Director Mueller on May 21,
2002, which was also sent to Members of Congress, echoed many
of the issues raised in this Committee's oversight hearings.
Special Agent Rowley testified about ``careerism'' at the FBI
and a mentality at FBI Headquarters that led Headquarters
agents to more often stand in the way of field agents than to
support them. She cited the Moussaoui case as only the most
high profile instance of such an attitude. Special Agent Rowley
also described a FBI computer system that prevented agents from
accessing their own records and conducting even the most basic
types of searches. In short, Special Agent Rowley's testimony
reemphasized the importance of addressing the FBI's
longstanding problems, not hiding from them, in the post-9/11
era.
As the head of the Department of Justice as a whole, the
Attorney General has ultimate responsibility for the
performance of the FBI. On July 25, 2002, the Judiciary
Committee held an oversight hearing at which Attorney General
Ashcroft testified. The Committee and the Attorney General
engaged in a dialogue regarding the performance of the DOJ on
many areas of interest, including the fight against terrorism.
Among other things discussed at this hearing were the Attorney
General's plans to implement the Terrorism Information and
Prevention System (TIPS), which would have enlisted private
citizens to monitor ``suspicious'' activities of other
Americans. After questioning on the subject, Attorney General
Ashcroft testified that he would seek restrictions on whether
and how information generated through TIPS would be retained.
Later, as part of the Homeland Security legislation, TIPS was
prohibited altogether.
On September 10, 2002, the Committee held an oversight
hearing specifically focusing on issues related to the FISA.
Leading experts from the DOJ, from academia, and from the civil
liberties and national security legal communities participated
in a rare public debate on the FISA. That hearing brought
before the public an important discussion about the reaches of
domestic surveillance using FISA and the meaning of the USA
PATRIOT Act. In addition, through the efforts of the Judiciary
Committee, the public learned that this same debate was already
raging in private. The FISA Court had rejected the DOJ's
proposed procedure for implementing the USA PATRIOT Act, and
the FISA Court of Review was hearing its first appeal in its
20-year-plus existence to address important issues regarding
these USA PATRIOT Act amendments to the FISA. The Committee
requested that the FISA Court of Review publicly release an
unclassified version of the transcript of the oral argument and
its opinion, which the Court agreed to do and furnished to the
Committee. Thus, only through the bipartisan oversight work of
the Judiciary Committee was the public first informed of the
landmark legal opinion interpreting the FISA and the USA
PATRIOT Act amendments overruling the FISC's position,
accepting some of the DOJ's legal arguments, but rejecting
others.
These are only the full Judiciary Committee hearings
related to FBI oversight issues in the 107th Congress. The
Judiciary Committee's subcommittees also convened numerous,
bipartisan oversight hearings relating to the FBI's performance
both before and after 9/11.
2. Other Oversight Activities: Classified Hearings, Written
Requests, and Informal Briefings
The Judiciary Committee and its Members have fulfilled
their oversight responsibilities through methods other than
public hearings as well. Particularly with respect to FISA
oversight, Members of the Judiciary Committee and its staff
conducted a series of closed hearings and briefings, and made
numerous written inquiries on the issues surrounding both the
application for a FISA search warrant of accused international
terrorist Zacharias Moussaoui's personal property before the 9/
11 attacks and the post-9/11 implementation of the USA PATRIOT
Act. As with all of our FBI oversight, these inquiries were
intended to review the performance of the FBI and DOJ in order
to improve that performance in the future.
The Judiciary Committee and its Members also exercised
their oversight responsibilities over the DOJ and the FBI
implementation of the FISA through written inquiries, written
hearing questions, and other informal requests. These efforts
included letters to the Attorney General and the FBI Director
from Senator Leahy on November 1, 2001, and May 23, 2002, and
from Senators Leahy, Specter, and Grassley on June 4, June 13,
July 3, and July 31, 2002. In addition, these Members sent
letters requesting information from the FISA Court and FISA
Court of Review on July 16, July 31, and September 9, 2002.
Such oversight efforts are important on a day-to-day basis
because they are often the most efficient means of monitoring
the activities of the FBI and DOJ.
3. DOJ and FBI Non-Responsiveness
Particularly with respect to our FISA oversight efforts, we
are disappointed with the non-responsiveness of the DOJ and
FBI. Although the FBI and the DOJ have sometimes cooperated
with our oversight efforts, often, legitimate requests went
unanswered or the DOJ answers were delayed for so long or were
so incomplete that they were of minimal use in the oversight
efforts of this Committee. The difficulty in obtaining
responses from DOJ prompted Senator Spector to ask the Attorney
General directly, ``how do we communicate with you and are you
really too busy to respond?'' \7\
---------------------------------------------------------------------------
\7\ Hearing of the Senate Judiciary Committee: Oversight of the
Department of Justice, July 25, 2002, Transcript, p. 86.
---------------------------------------------------------------------------
Two clear examples of such reticence on the part of the DOJ
and the FBI relate directly to our FISA oversight efforts.
First, Chairman Sensenbrenner and Ranking Member Conyers of the
House Judiciary Committee issued a set of 50 questions on June
13, 2002, in order to fulfill the House Judiciary Committee's
oversight responsibilities to monitor the implementation of the
USA PATRIOT Act, including its amendments to FISA. In
connection with the July 25, 2002, oversight hearing with the
Attorney General, Chairman Leahy posed the same questions to
the Department on behalf of the Senate Judiciary Committee.
Unfortunately, the Department refused to respond to the
Judiciary Committee with answers to many of these legitimate
questions. Indeed, it was only after Chairman Sensenbrenner
publicly stated that he would subpoena the material that the
Department provided any response at all to many of the
questions posed, and to date some questions remain unanswered.
Senator Leahy posed a total of 93 questions, including the 50
questions posed by the leadership of the House Judiciary
Committee. While the DOJ responded to 56 of those questions in
a series of letters on July 29, August 26, and December 23,
2002, thirty-seven questions remain unanswered. In addition,
the DOJ attempted to respond to some of these requests by
providing information not to the Judiciary Committees, which
had made the request, but to the Intelligence Committees. Such
attempts at forum shopping by the Executive Branch are not a
productive means of facilitating legitimate oversight.
Second, the FBI and DOJ repeatedly refused to provide
Members of the Judiciary Committee with a copy of the FISA
Court's May 17, 2002, opinion rejecting the DOJ's proposed
implementation of the USA PATRIOT Act's FISA amendments. This
refusal was made despite the fact that the opinion, which was
highly critical of aspects of the FBI's past performance on
FISA warrants, was not classified and bore directly upon the
meaning of provisions in the USA PARIOT Act authored by Members
of the Judiciary Committee. Indeed, the Committee eventually
had to obtain the opinion not from the DOJ but directly from
the FISA Court, and it was only through these efforts that the
public was first made aware of the important appeal being
pursued by the DOJ and the legal positions taken by the
Department on the FISA Amendments.\8\
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\8\ The Final Report, dated December 10, 2002, of the Joint Inquiry
of the House and Senate Intelligence Committees (hereafter ``Final
Report'') noted a related issue of ``excessive classification'' and
urged the Attorney General, and other Federal offices, to report to the
Intelligence Committees on ``a new and more realistic approach'' to
designating sensitive and classified information and ``include
proposals to protect against the use of the classification process as a
shield to protect agency self-interest.'' (Recommendations, p. 13).
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In both of these instances, and in others, the DOJ and FBI
have made exercise of our oversight responsibilities
difficult.\9\ It is our sincere hope that the FBI and DOJ will
reconsider their approach to congressional oversight in the
future. The Congress and the American people deserve to know
that their government is doing. Certainly, the Department
should not expect Congress to be a ``rubber stamp'' on its
requests for new or expanded powers if requests for information
about how the Department has handled its existing powers have
been either ignored or summarily paid lip service.
---------------------------------------------------------------------------
\9\ Another example in which DOJ and FBI have resisted responding
to the Committee's questions related to press reports that the Attorney
General, on September 10, 2001, rejected the FBI's request for an
additional $58 million increase in counterterrorism programs. In order
to assess the accuracy of these reports, Senator Leahy requested
information in written questions in connection with the July 25, 2002
oversight hearing, asking, in pertinent part: ``The FBI had previously
submitted a request to the Department for increases for (a) language
services ($8,852,000); (b) field counterterrorism investigations
($28,066,000); (c) intelligence production (Field and HQ IRSs)
($20,894,000); (d) security ($137,566,000); (e) counterintelligence
initiative ($30,355,000); and (f) secure telephone equipment
($6,501,000). Did the September 10th, request to OMB include any of
these increases that the FBI had requested and, if so, which ones?''
DOJ has not provided answers to this or related questions.
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III. FISA OVERSIGHT: A CASE STUDY OF THE SYSTEMIC PROBLEMS PLAGUING THE
FBI
A. Overview and Conclusions
The Judiciary Committee held a series of classified
briefings for the purpose of reviewing the processing of FISA
applications before the terrorist attacks on September 11,
2001. The Judiciary Committee sought to determine whether any
problems at the FBI in the processing of FISA applications
contributed to intelligence failures before September 11th; to
evaluate the implementation of the changes to FISA enacted
pursuant to the USA PATRIOT Act; and to determine whether
additional legislation is necessary to improve this process and
facilitate congressional oversight and public confidence in the
FISA and the FBI.
We specifically sought to determine whether the systemic
problems uncovered in our FBI oversight hearings commenced in
the summer of 2001 contributed to any shortcomings that may
have affected the FBI counterterrorism efforts prior to the 9/
11 attacks. Not surprisingly, we conclude that they did.
Indeed, in many ways the DOJ and FBI's shortcomings in
implementing the FISA--including but not limited to the time
period before the 9/11 attacks--present a compelling case for
both comprehensive FBI reform and close congressional oversight
and scrutiny of the justification for any further relaxation of
FISA requirements. FISA applications are of the utmost
importance to our national security. Our review suggests that
the same fundamental problems within the FBI that have plagued
the agency in other contexts also prevented both the FBI and
DOJ from aggressively pursuing FISA applications in the period
before the 9/11 attacks. Such problems caused the submission of
key FISA applications to the FISA Court to have been
significantly delayed or not made. More specifically, our
concerns that the FBI and DOJ did not make effective use of
FISA before making demands on the Congress for expanded FISA
powers in the USA PATRIOT Act are bolstered by the following
findings:
(1) The FBI and Justice Department were setting too
high a standard to establish that there is ``probable
cause'' that a person may be an ``agent of a foreign
power'' and, therefore, may be subject to surveillance
pursuant to FISA;
(2) FBI agents and key Headquarters officials were
not sufficiently trained to understand the meanings of
crucial legal terms and standards in the FISA process;
(3) Prior problems between the FBI and the FISA Court
that resulted in the Court barring one FBI agent from
appearing before it for allegedly filing inaccurate
affidavits may have ``chilled'' the FBI and DOJ from
aggressively seeking FISA warrants (although there is
some contradictory information on this matter, we will
seek to do additional oversight on this question); \10\
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\10\ The Joint Inquiry's finding on this point is particularly apt:
``During the summer of 2001, when the Intelligence Community was
bracing for an imminent al-Qa'ida attack, difficulties with FBI
applications for Foreign Intelligence Surveillance Act (FISA)
surveillance and the FISA process led to a diminished level of coverage
of suspected al-Qa'ida operatives in the United States. The effect of
these difficulties was compounded by the perception that spread among
FBI personnel at Headquarters and the field offices that the FISA
process was lengthy and fraught with peril.'' (Final Report, Findings,
p. 8).
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(4) FBI Headquarters fostered a culture that stifled
rather than supported aggressive and creative
investigative initiatives from agents in the field; and
(5) The FBI's difficulties in properly analyzing and
disseminating information in its possession caused it
not to seek FISA warrants that it should have sought.
These difficulties are due to:
(a) a lack of proper resources dedicated to
intelligence analysis;
(b) a ``stove pipe'' mentality where crucial
intelligence is pigeonholed into a particular
unit and may not be shared with other units;
(c) High turnover of senior agents at FBI
Headquarters within critical counterterrorism
and foreign intelligence units;
(d) Outmoded information technology that
hinders access to, and dissemination of,
important intelligence; and
(e) A lack of training for FBI agents to know
how to use, and a lack of requirements that
they do use, the technology available to search
for and access relevant information.
We have found that, in combination, all of these factors
contributed to the intelligence failures at the FBI prior to
the 9/11 attacks.
We are also conscious of the extraordinary power FISA
confers on the Executive branch. FISA contains safeguards,
including judicial review by the FISA Court and certain limited
reporting requirements to congressional intelligence
committees, to ensure that this power is not abused. Such
safeguards are no substitute, however, for the watchful eye of
the public and the Judiciary Committees, which have broader
oversight responsibilities for DOJ and the FBI. In addition to
reviewing the effectiveness of the FBI's use of its FISA power,
this Committee carries the important responsibility of checking
that the FBI does not abuse its power to conduct surveillance
within our borders. Increased congressional oversight is
important in achieving that goal.
From the outset, we note that our discussion will not
address any of the specific facts of the case against Zacharias
Moussaoui that we have reviewed in our closed inquiries. That
case is still pending trial, and, no matter how it is resolved,
this Committee is not the appropriate forum for adjudicating
the allegations in that case. Any of the facts recited in this
report that bear on the substance of the Moussaoui case are
already in the public record. To the extent that this report
contains information we received in closed sessions, that
information bears on abstract, procedural issues, and not any
substantive issues relating to any criminal or national
security investigation or proceeding. This is an interim report
of what we have discovered to date. We hope to and should
continue this important oversight in the 108th Congress.
B. Allegations Raised by Special Agent Rowley's Letter
The Judiciary Committee had initiated its FISA oversight
inquiry several months before the revelations in the dramatic
letter sent on May 21, 2002, to FBI Director Mueller by Special
Agent Coleen Rowley. Indeed, it was this Committee's oversight
about the FBI's counterintelligence operations before the 9/11
attacks that in part helped motivate SA Rowley to write this
letter to the Directory.\11\
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\11\ SA Rowley notes in the first paragraphs of the letter, ``I
have deep concerns that a delicate and subtle shading/skewing of facts
by you and others at the highest levels of FBI management has occurred
and is occurring. * * * I base my concerns on * * * your congressional
testimony and public comments.'' However, we wish to be clear that we
do not believe that Director Mueller knowingly provided inaccurate or
incomplete information to the Committee.
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The observations and critiques of the FBI's FISA process in
this letter only corroborated problems that the Judiciary
Committee was uncovering. In her letter, SA Rowley detailed the
problems the Minneapolis agents had in dealing with FBI
Headquarters in their unsuccessful attempts to seek a FISA
warrant for the search of Moussaoui's lap top computer and
other personal belongings. These attempts proved fruitless, and
Moussaoui's computer and personal belongings were not searched
until September 11th, 2001, when the Minneapolis agents were
able to obtain a criminal search warrant after the attacks of
that date. According to SA Rowley, with the exception of the
fact of those attacks, the information presented in the warrant
application establishing probable cause for the criminal search
warrant was exactly the same as the facts that FBI Headquarters
earlier had deemed inadequate to obtain a FISA search
warrant.\12\
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\12\ Letter from Special Agent Coleen Rowley to FBI Director Robert
S. Mueller, III, dated May 21, 2002, p. 3 (Rowley Letter). All
citations to SA Rowley's letter are from a version of the letter that
was released to the Judiciary Committee on June 6, 2002, by the DOJ and
with classified or otherwise protected information redacted. This
letter is attached as Exhibit A.
---------------------------------------------------------------------------
In her letter, SA Rowley raised many issued concerning the
efforts by the agents assigned to the Minneapolis Field Office
to obtain a FISA search warrant for Moussaoui's personal
belongings. Two of the issues she raised were notable. First,
SA Rowley corroborated that many of the cultural and management
problems within the FBI (including what she referred to as
``careerism'') have significant effects on the FBI's law
enforcement and intelligence gathering activities. This led to
a perception among the Minneapolis agents that FBI Headquarters
personnel had frustrated their efforts to obtain a FISA warrant
by raising unnecessary objections to the information submitted
by Minneapolis, modifying and removing that information, and
limiting the efforts by the Minneapolis Field Office to contact
other agencies for relevant information to bolster the probable
cause for the warrant. These concerns echoed criticism that
this Committee has heard in other contexts about the culture of
FBI management and the effect of the bureaucracy in stifling
initiative by FBI agents in the field.
In making this point, SA Rowley provided specific examples
of the frustrating delays and roadblocks erected by
Headquarters agents in the Moussaoui investigation:
For example at one point, the Supervisory Special
Agent at FBIHQ posited that the French information
could be worthless because it only identified Zacharias
Moussaoui by name and he, the SSA, didn't know how many
people by that name existed in France. A Minneapolis
agent attempted to surmount that problem by quickly
phoning the FBI's Legal Attache (Legat) in Paris,
France, so that a check could be made of the French
telephone directories. Although the Legat in France did
not have access to all of the French telephone
directories, he was able to quickly ascertain that
there was only one listed on the Paris directory. It is
not known if this sufficiently answered the question,
for the SSA continued to find new reasons to stall.\13\
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\13\ Rowley Letter, p. 6, fn. 6.
---------------------------------------------------------------------------
Eventually, on August 28, 2001, after a series of e-
mails between Minneapolis and FBIHQ, which suggest that
the FBIHQ SSA deliberately further undercut the FISA
effort by not adding the further intelligence
information which he had promised to add that supported
Moussaoui's foreign power connection and making several
changes in the wording of the information that had been
provided by the Minneapolis agent, the Minneapolis
agents were notified that the NSLU Unit Chief did not
think there was sufficient evidence of Moussaoui's
connection to a foreign power. Minneapolis personnel
are, to this date, unaware of the specifics of the
verbal presentations by the FBIHQ SSA to NSLU or
whether anyone in NSLU ever was afforded the
opportunity to actually read for him/herself all of the
information on Moussaoui that had been gathered by the
Minneapolis Division and [redacted; classified].
Obviously[,] verbal presentations are far more
susceptible to mis-characterization and error.\14\
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\14\ Rowley Letter, p. 7.
Even after the attacks had commenced, FBI Headquarters
discouraged Minneapolis from securing a criminal search warrant
to examine Moussaoui's belongs, dismissing the coordinated
attack on the World Trade Center and Pentagon as a
coincidence.\15\
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\15\ Rowley Letter, p. 4.
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Second, SA Rowley's letter highlighted the issue of the
apparent lack of understanding of the applicable legal
standards for establishing ``probable cause'' and the requisite
statutory FISA requirements by FBI personnel in the Minneapolis
Division and at FBI Headquarters. This issue will be discussed
in more detail below.
C. Results of Investigation
1. The Mishandling of the Moussaoui FISA Application
Apart from SA Rowley's letter and her public testimony, the
Judiciary Committee and its staff found additional
corroboration that many of her concerns about the handling of
the Moussaoui FISA application for a search warrant were
justified.
At the outset, it is helpful to review how Headquarters
``adds value'' to field offices in national security
investigations using FISA surveillance tools. Headquarters has
three functions in such investigations. The first function is
the ministerial function of actually assembling the FISA
application in the proper format for review by the DOJ's Office
of Intelligence Policy and Review OIPR and the FISA Court. The
other two functions are more substantive and add ``value'' to
the FISA application. The first substantive function is to
assist the field by being experts on the legal aspects of FISA,
and to provide guidance to the field as to the information
needed to meet the statutory requirements of FISA. The second
function is to supplement the information from the field in
order to establish or strengthen the showing that there is
``probable cause'' that the FISA target was an ``agent of a
foreign power,'' by integrating additional relevant
intelligence information both from within the FBI and from
other intelligence or law enforcement organizations outside the
FBI. It is with respect to the latter, substantive functions
that Headquarters fell short in the Moussaoui FISA application
and, as a consequence, never got to the first, more
ministerial, function.
Our investigation revealed that the following events
occurred in connection with this FISA application. We
discovered that the Supervisory Special Agent (SSA) involved in
reviewing the Moussaoui FISA request was assigned to the
Radical Fundamentalist Unit (RFU) of the International
Terrorism Operations Section of the FBI's Counterterrorism
Division. The Unit Chief of the RFU was the SSA's immediate
supervisor. When the Minneapolis Division submitted its
application for the FISA search warrant for Moussaoui's laptop
computer and other property, the SSA was assigned the
responsibility of processing the application for approval.
Minneapolis submitted its application for the FISA warrant in
the form of a 26-page Electronic Communication (EC), which
contained all of the information that the Minneapolis agents
had collected to establish that Moussaoui was an agent of a
foreign power at the time. The SSA's responsibilities included
integrating this information submitted by the Minneapolis
division with information from other sources that the
Minneapolis agents were not privy to, in order to establish
there was probably cause that Moussaoui was an agent of a
foreign power. In performing this fairly straightforward task,
FBI Headquarters personnel failed miserably in at least two
ways.
First, most surprisingly, the SSA never presented the
information submitted by Minneapolis and from other sources in
its written, original format to any of the FBI's attorneys in
the National Security Law Unit (NSLU). The Minneapolis agents
has submitted their information in the 26-page EC and a
subsequent letterhead memorandum (LHM), but neither was shown
to the attorneys. Instead, the SSA relied on short, verbal
briefings to the attorneys, who opined that based on the
information provided verbally by the SSA they could not
establish that there was probably cause that Moussaoui was an
agent of a foreign power. Each of the attorneys in the NSLU
stated they did not receive documents on the Moussaoui FISA,
but instead only received a short, verbal briefing from the
SSA. As SA Rowley noted, however, ``verbal presentations are
far more susceptible to mis-characterization and error.''
The failure of the SSA to provide the 26-page Minneapolis
EC and the LHM to the attorneys, and the failure of the
attorneys to review those documents, meant that the
consideration by Headquarters officials of the evidence
developed by the Minneapolis agents was truncated. The
Committee has requested, but not yet received, the full 26-page
Minneapolis EC (even, in explicably, in a classified
setting).\16\
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\16\ Rowley Letter, p. 7. This is yet another example of a hurdle
being erected to effective congressional oversight.
---------------------------------------------------------------------------
Second, the SSA's task was to help bolster the work of the
Minneapolis agents and collect information that would establish
probably cause that a ``foreign power'' existed, and that
Moussaoui was its ``agent.'' Indeed, sitting in the FBI
computer system was the Phoenix memorandum, which senior FBI
officials have conceded would have provided sufficient
additional context to Moussaoui's conduct to have established
probably cause.\17\ Yet, neither the SSA nor anyone else at
Headquarters consulted about the Moussaoui application ever
conducted any computer searches for electronic or other
information relevant to the application. Even the much touted
``Woods Procedures'' governing the procedures to be followed by
FBI personnel in preparing FISA applications do not require
Headquarters personnel to conduct even the most basic subject
matter computer searches or checks as part of the preparation
and review of FISA applications.
---------------------------------------------------------------------------
\17\ Joint Inquiry Hearing, Testimony of Eleanor Hill, Staff
Director, September 24, 2002, p. 19: ``The [FBI] attorneys also told
the Staff that, if they had been aware of the Phoenix memo, they would
have forwarded the FISA request to the Justice Department's Office of
Intelligence Policy Review (OIPR). They reasoned that the particulars
of the Phoenix memo changed the contest of the Moussaoui investigation
and made a stronger case for the FISA warrant. None of them saw the
Phoenix memo before September 11.''
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2. General Findings.
We found that key FBI personnel involved in the FISA
process were not properly trained to carry out their important
duties. In addition, we found that the structural, management,
and resource problems plaguing the FBI in general contributed
to the intelligence failures prior to the 9/11 attacks.\18\
Following are some of the most salient facts supporting these
conclusions.
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\18\ The Joint Inquiry by the Senate and House Select Committee on
Intelligence similarly concluded that the FBI needs to ``establish and
sustain independent career tracks within the FBI that recognize and
provide incentives for demonstrated skills and performance of
counterterrorism agents and analysts; * * * implement training for
agents in the effective use of analysts and analysis in their work; * *
* improve national security law training of FBI personnel; * * * and
finally solve the FBI's persistent and incapacitating information
technology problems.'' (Final Report, Recommendations, p. 6).
---------------------------------------------------------------------------
First, key FBI personnel responsible for protecting our
country against terrorism did not understand the law. The SSA
at FBI Headquarters responsible for assembling the facts in
support of the Moussaoui FISA application testified before the
Committee in a closed hearing that he did not know that
``probable cause'' was the applicable legal standard for
obtaining a FISA warrant. In addition, he did not have a clear
understanding of what the probable cause standard meant. The
SSA was not a lawyer, and he was relying on FBI lawyers for
their expertise on what constituted probable cause. In addition
to not understanding the probable cause standard, the SSA's
supervisor (the Unit Chief) responsible for reviewing FISA
applications did not have a proper understanding of the legal
definition of the ``agent of a foreign power'' requirement.\19\
Specifically, he was under the incorrect impression that the
statute required a link to an already identified or
``recognized'' terrorist organization, an interpretation that
the FBI and the supervisor himself admitted was incorrect.
Thus, key FBI officials did not have a proper understanding of
either the relevant burden of proof (probable cause) or the
substantive element of proof (agent of a foreign power). This
fundamental breakdown in training on an important intelligence
matter is of serious concern to this Committee.\20\
---------------------------------------------------------------------------
\19\ This finding was echoed by the Joint intelligence Committee:
``In August 2001, the FBI's Minneapolis field office, in conjunction
with the INS, detained Zacharias Moussaoui, a French national who had
enrolled in flight training in Minnesota because FBI agents there
suspected that Moussaoui was involved in a hijacking plot. FBI
Headquarters attorneys determined that there was not probable cause to
obtain a court order to search Moussaoui's belongings under the Foreign
Intelligence Surveillance Act (FISA). However, personnel at FBI
Headquarters, including the Radical Fundamentalist Unit and the
National Security Law Unit, as well as agents in the Minneapolis field
office, misunderstood the legal standard for obtaining an order under
FISA.'' (Final Report, Findings, pp. 3-4).
\20\ The Joint Intelligence Committee reached a similar conclusion
and urged the Attorney General and the Director of the FBI to ``take
action necessary to ensure that: the Office of Intelligence Policy and
Review and other Department of Justice components provide in-depth
training to the FBI and other members of the Intelligence Community
regarding the use of the Foreign Intelligence Surveillance Act (FISA)
to address terrorist threats to the United States.'' (Final Report,
Recommendations, p. 8).
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Second, the complaints contained in the Rowley letter about
problems in the working relationship between field offices and
FBI Headquarters are more widespread. There must be a dynamic
relationship between Headquarters and field offices with
Headquarters providing direction to the efforts of agents in
the field when required. At the same time, Headquarters
personnel should serve to support field agents, not to stifle
initiative by field agents and hinder the progress of
significant cases. The FBI's Minneapolis office was not alone
in this complaint. Our oversight also confirmed that agents
from the FBI's Phoenix office, whose investigation and
initiative resulted in the so-called ``Phoenix Memorandum,''
warning about suspicious activity in U.S. aviation schools,
also found their initiative dampened by a non-responsive FBI
Headquarters.
So deficient was the FISA process that, according to at
least one FBI supervisor, not only were new applications not
acted upon in a timely manner, but the surveillance of existing
targets of interest was often terminated, not because the facts
no longer warranted surveillance, but because the application
for extending FISA surveillance could not be completed in a
timely manner. Thus, targets that represented a sufficient
threat to national security that the Department had sought, and
a FISA Court judge had approved, a FISA warrant were allowed to
break free of surveillance for no reason other than the FBI and
DOJ's failure to complete and submit the proper paper work.
This failure is inexcusable.
Third, systemic management problems at FBI Headquarters led
to a lack of accountability among senior FBI officials. A
revolving door at FBI Headquarters resulted in agents who held
key supervisory positions not having the required specialized
knowledge to perform their jobs competently. A lack of proper
communication produced a system where no single person was held
accountable for mistakes. Therefore, there was little or no
incentive to improve performance. Fourth, the layers of FBI and
DOJ bureaucracy also helped lead to breakdowns in communication
and serious errors in the materials presented to the FISA
Court. The Committee learned that in the year before the
Moussaoui case, one FBI supervisor was barred from appearing
before the FISA due to inaccurate information presented in
sworn affidavits to the Court. DOJ explained in a December 23,
2002, response to written questions from the July 25, 2002,
oversight hearing that:
One FBI supervisory special agent has been barred
from appearing before the Court. In March of 2001, the
government informed the Court of an error contained in
a series of FISA applications. This error arose in the
description of a ``wall'' procedure. The Presiding
Judge of the Court at the time, Royce Lamberth, wrote
to the Attorney General expressing concern over this
error and barred one specifically-named FBI agent from
appearing before the Court as a FISA affiant. * * * FBI
Director Freeh personally met twice with then-Presiding
Judge Lamberth to discuss the accuracy problems and
necessary solutions.
As the Committee later learned from review of the FISA
Court's May 17, 2002, opinion, that Court had complained of 75
inaccuracies in FISA affidavits submitted by the FBI, and the
DOJ and FBI had to develop new procedures to ensure accuracy in
presentations to that Court. These so-called ``Woods
Procedures'' were declassified at the request of the authors
and were made publicly available at the Committee's hearing on
June 6, 2002. As DOJ further explained in its December 23,
2002, answers to written questions submitted on July 25, 2002:
On April 6, 2001, the FBI disseminated to all field
divisions and relevant Headquarters divisions a set of
new mandatory procedures to be applied to all FISAs
within the FBI. These procedures known as the ``Woods
procedures,'' are designed to help minimize errors in
and ensure that the information provided to the Court
is accurate. * * * They have been declassified at the
request of your committee.
DOJ describes the inaccuracies cited in the FISA Court
opinion as related to ``errors in the `wall' procedure'' to
keep separate information used for criminal prosecution and
information collected under FISA and used for foreign
intelligence. However, this does not appear to be the only
problem the FBI and DOJ were having in the use of FISA.
An FBI document obtained under the Freedom of Information
Act, which is attached to this report as Exhibit E, suggests
that the errors committed were far broader. The document is a
memorandum dated April 21, 2002, from the FBI's
Counterterrorism Division, that details a series of
inaccuracies and errors in handling FISA applications and
wiretaps that have nothing whatsoever to do with the ``wall.''
Such mistakes include videotaping a meeting when videotaping
was not allowed under the relevant FISA Court order, continuing
to intercept a person's email after there was no authorization
to do so, and continuing a wiretap on a cell phone even after
the phone number had changed to a new subscriber who spoke a
different language from the target.
This document highlights the fact apart from the problems
with applications made to the FISC, that the FBI was
experiencing more systemic problems related to the
implementation of FISA orders. These issues were unrelated to
the legal questions surrounding the ``wall,'' which was in
effect long before 1999. The document notes that the number of
inaccuracies grew by three-and-one-half times from 1999 to
2000. We recommend that additional efforts to correct the
procedural, structural, and training problems in the FISA
process would go further toward ensuring accuracy in the FISA
process than simply criticizing the state of the law.
One legitimate question is whether the problems inside the
FBI and between the FBI and the FISA Court either caused FBI
Headquarters to be unduly cautious in proposing FISA warrants
or eroded the FISA Court's confidence in the DOJ and the FBI to
the point that it affected the FBI's ability to conduct
terrorism and intelligence investigations effectively.\21\ SA
Rowley opines in her letter that in the year before ``the
September 11th acts of terrorism, numerous alleged IOB
[Intelligence Oversight Board] violations on the part of FBI
personnel had to be submitted to the FBI's office of
Professional Responsibility (OPR) as well as the IOB. I believe
the chilling effect upon all levels of FBI agents assigned to
intelligence matters and their managers hampered us from
aggressive investigation of terrorists.'' (Rowley letter, pp.
7-8, fn. 7). Although the belated release of the FISA Court's
opinion of May 17, 2002, provided additional insight into this
issue, further inquiry is needed.
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\21\ We did hear testimony indicating that there may have been a
``chilling effect.'' Special Agent G (of the Minneapolis office)
testified that ``it seemed to [Special Agent G] that the changes [the
SSA] had made'' to the facts supplied by Minneapolis in a memorandum
``were designated to undersell what we had seen Moussaoui preparing to
do.'' Additionally, at an earlier closed briefing for committee staff,
a senior headquarters FBI agent stated that he had advised his
subordinates to be particularly careful with the handling of FISA
applications. However, we also heard testimony from senior FBI and
Justice Department attorneys that they did not perceive a ``chilling
effect'' or drop in the number of FISA applications. We believe further
inquiry as to this issue is warranted.
---------------------------------------------------------------------------
Fifth, the FBI's inability to properly analyze and
disseminate information (even from and between its own agents)
rendered key information that it collected relatively useless.
Had the FBI put together the disparate strands of information
that agents from around the country had furnished to
Headquarters before September 11, 2001, additional steps could
certainly have been taken to prevent the 9/11 attacks. So,
while no one can say with certainty that the 9/11 attacks could
have been prevented, in our view, it is also beyond reasonable
dispute that more could have been done in the weeks before the
attacks to try to prevent them.
Certain of our findings merit additional discussion, and
such discussion follows.
3. FBI's Misunderstanding of Legal Standards Applicable to
the FISA
a. The FISA Statutory Standard: ``Agent of a Foreign
Power''
In order to obtain either a search warrant or an
authorization to conduct electronic surveillance pursuant to
FISA, the FBI and Justice Department must establish before the
FISA Court (``FISC'') probable cause that the targeted person
is an ``agent of a foreign power.'' \22\ An agent of a foreign
power is defined as ``any person who * * * knowingly aids or
abets any person in the conduct of [certain] activities.'' \23\
Those certain activities include ``international terrorism,''
and one definition of ``foreign power'' includes groups that
engage in international terrorism.\24\
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\22\ ``[O]n the basis of the facts submitted by the applicant there
is probable cause to believe that--* * * the target of the [electronic
surveillance or physical search] is a foreign power or an agent of a
foreign power * * *'' 50 U.S.C. Section 1805 (electronic surveillance);
Section 1824 (physical search).
\23\ (b) ``Agent of a foreign power'' means--
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(2) any person who--
(C) knowingly engages in sabotage or international
terrorism, or activities that are in preparation
therefore, or on behalf of a foreign power;
(E) knowingly aids or abets any person in the conduct
of activities described in subparagraph (A), (B), or
(C) or knowingly conspires with any person to engage in
activities described in subparagraph (A), (B), or (C).
50 U.S.C. App. Section 1801(b) (a ``non-U.S. person'' is, in effect, a
non-resident alien) (emphasis added).
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\24\ (a) ``Foreign power'' means--* * *
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(4) a group engaged in international terrorism or activities
in preparation therefor;
(c) ``International terrorism'' means activities that--
(1) involve violent acts of acts dangerous to human life that
are a violation of the criminal laws of the Untied States or of
any State, or that would be a criminal violation if committed
within the jurisdiction of the United States or any State;
(2) appear to be intended--
(A) to intimidate or coerce a civilian population;
(B) to influence the policy of a government by
intimidation or coercion; or
(C) to affect the conduct of a government by
assassination or kidnapping; and
(3) occur totally outside the United States, or transcend
national boundaries in terms of the means by which they are
accomplished, the persons they appear intended to coerce or
intimidate, or the locale in which their perpetrators operate
or seek asylum.
50 U.S.C. Sec. App. 1801. The standard for obtaining FISA orders
differs from the requirements in the criminal context. See Fed. R. Cr.
P. 41 (criminal search warrant); 18 U.S.C. Sec. 2518 (electronic
surveillance).
Accordingly, in the Moussaoui case, to obtain a FISA
warrant the FBI had to collect only enough evidence to
establish that there was ``probable cause'' to believe that
Moussaoui was the ``agent'' of an ``international terrorist
group'' as defined by FISA.
However, even the FBI agents who dealt most with FISA did
not correctly understand this requirement. During a briefing
with Judiciary Committee staff in February 2002, the
Headquarters counterterrorism Unit Chief of the unit
responsible for handling the Moussaoui FISA application stated
that with respect to international terrorism cases, FISA
warrants could only be obtained for ``recognized'' terrorist
groups (presumably those identified by the Department of State
or by the FBI itself or some other government agency). The Unit
Chief later admitted that he knew that this was an incorrect
understanding of the law, but it was his understanding at the
time the application was pending. Additionally, during a closed
hearing on July 9, 2002, the Supervisory Special Agent
(``SSA'') who actually handled the Moussaoui FISA application
at Headquarters also mentioned that he was trying to establish
whether Moussaoui was an ``agent of a recognized foreign
power'' (emphasis added).
Nowhere, however, does the statutory definition require
that the terrorist group be an identified organization that is
already recognized (such as by the United States Department of
State) as engaging in terrorist activities. Indeed, even the
FBI concedes this point. Thus, there was no support whatsoever
for key FBI officials' incorrect understanding that the target
of FISA surveillance must be linked to such an identified group
in the time before 9/11. This misunderstanding colored the
handling of requests from the field to conduct FISA
surveillance in the crucial weeks before the 9/11 attacks.
Instead of supporting such an application, key Headquarters
personnel asked the field agents working on this investigation
to develop additional evidence to prove a fact that was
unnecessary to gain judicial approval under FISA. It is
difficult to understand how the agents whose job included such
a heavy FISA component could not have understood that statute.
It is difficult to understand how the FBI could have so failed
its own agents in such a crucial aspect of their training.
The Headquarters personnel misapplied the FISA
requirements. In the context of this case, the foreign power
would be an international terrorist group, that is, ``a group
engaged in international terrorism or activities in preparation
therefore.'' A ``group'' is not defined in the FISA, but in
common parlance, and using other legal principles, including
criminal conspiracy, a group consists of two or more persons
whether identified or not. It is our opinion that such a
``group'' may exist, even if not a group ``recognized'' by the
Department of State.
The SSA's other task would be to help marshal evidence
showing probable cause that Moussaoui was an agent of that
group. In applying the ``totality of the circumstances,'' as
defined in the case of Illinois v. Gates, 462 U.S. 213 (1983),
any information available about Moussaoui's ``actual contacts''
with the group should have been considered in light of other
information the FBI had in order to understand and establish
the true probable nature of those contacts.\25\ It is only with
consideration of all the information known to the FBI that
Moussaoui's contacts with any group could be properly
characterized in determining whether he was an agent of such a
group.
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\25\ The Supreme Court's leading case on probable cause; it is
discussed in more detail in the next section of this report.
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In making this evaluation, the fact, as recited in the
public indictment, that Moussaoui ``paid $6,800 in cash'' to
the Minneapolis flight school, without adequate explanation for
the source of this funding, would have been a highly probative
fact bearing on his connections to foreign groups. Yet, it does
not appear that this was a fact that the FBI Headquarters
agents considered in analyzing the totality of the
circumstances. The probable source of that cash should have
been a factor that was considered in analyzing the totality of
the circumstances. So too would the information in the Phoenix
memorandum have been helpful. It also was not considered, as
discussed further below. In our view, the FBI applied too
cramped an interpretation of probable cause and ``agent of a
foreign power'' in making the determination of whether
Moussauoi was an agent of a foreign power. FBI Headquarters
personnel in charge of reviewing this application focused too
much on establishing a nexus between Moussaoui and a
``recognized'' group, which is not legally required. \26\
Without going into the actual evidence in the Moussaoui case,
there appears to have been sufficient evidence in the
possession of the FBI which satisfied the FISA requirements for
the Moussaoui application. Given this conclusion, our primary
task is not to assess blame on particular agents, the
overwhelming majority of whom are to be commended for devoting
their lives to protecting the public, but to discuss the
systemic problems at the FBI that contributed to their
inability to succeed in that endeavor.
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\26\ Senator Specter. * * * [I]s an Islam fundamentalist who
advocates ``jihad'' a terrorist?
[Attorney #1]. On that description alone, I would say I could not
say so, Senator. I would have my suspicions, I would be concerned, but
I need to see what a person is doing. I need to see some indicia that
they are willing to commit violence and not just talk about it.
Question. But you would have your suspicions.
[Attorney #1]. Yes, sir.
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b. The Probable Cause Standard
i. Supreme Court's Definition of ``Probable Cause''
During the course of our investigation, the evidence we
have evaluated thus far indicates that both FBI agents and FBI
attorneys do not have a clear understanding of the legal
standard for probable cause, as defined by the Supreme Court in
the case of Illinois v. Gates, 462 U.S. 213 (1983). This is
such a basic legal principle that, again, it is impossible to
justify the FBI's lack of complete and proper training on it.
In Gates, then-Associate Justice Rehnquist wrote for the Court:
As early as Locke v. United States, 7 Cranch. 339,
348, 3 L.Ed. 364 (1813), Chief Justice Marshall
observed, in a closely related context, that ``the term
`probable cause,' according to its usual acceptation,
means less than evidence which would justify
condemnation * * * It imports a seizure made under
circumstances which warrant suspicion.'' More recently,
we said that ``the quanta * * * of proof'' appropriate
in ordinary judicial proceedings are inapplicable to
the decision to issue a warrant. Finely-tuned standards
such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal basis
trials, have no place in the magistrate's decision.
While an effort to fix some general, numerically
precise degree of certainty corresponding to ``probable
cause'' may not be helpful, it is clear that ``only the
probability, and not a prima facie showing, of criminal
activity is the standard of probable cause.'' \27\
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\27\ 462 U.S. at 236 (citations omitted; emphasis added).
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The Court further stated:
For all these reasons, we conclude that it is wiser
to abandon the ``two-pronged test'' established by our
decisions in Aguilar and Spinelli. In its place we
reaffirm the totality of the circumstances analysis
that traditionally has informed probable cause
determinations. The task of the issuing magistrate is
simply to make a practical, common-sense decision
whether, given all the circumstances set forth in the
affidavit before him, including the ``veracity'' and
``basis of knowledge'' of persons supplying hearsay
information, there is a fair probability that
contraband or evidence of a crime will be found in a
particular place. And the duty of a reviewing court is
simply to ensure that the magistrate had a
``substantial basis for * * * conclud[ing]'' that
probable cause existed. We are convinced that this
flexible, easily applied standard will better achieve
the accommodation of public and private interests that
the Fourth Amendment requires than does the approach
that has developed from Aguilar and Spinelli. \28\
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\28\ 462 U.S. at 238 (footnote and citations omitted) (emphasis
added). The relevance of Illinois v. Gates to defining probable cause
is implicit in the Senate's report when FISA was first enacted (albeit,
when first enacted it covered only electronic surveillance): ``In
determining whether probable cause exists under this section, the court
must consider the same requisite elements which govern such
determinations in the criminal context.'' S. Rep. 95-604, p. 47. ``The
FISA statute does not define `probable cause,' although it is clear
from the legislative history that Congress intended for this term to
have a meaning analogous to that typically used in criminal contexts.''
Final Report of the Attorney General's Review Team on the Handling of
the Los Alamos National Laboratory Investigation (May 2000) (``The
Bellows Report''), p. 494.
Accordingly, it is clear that the Court rejected
``preponderance of the evidence'' as the standard for probable
cause and established a standard of ``probability'' based on
the ``totality of the circumstances.''
ii. The FBI's Unnecessarily High Standard for Probable
Cause
Unfortunately, our review has revealed that many agents and
lawyers at the FBI did not properly understand the definition
of probable cause and that they also possessed inconsistent
understandings of that term. In the portion of her letter to
Director Mueller discussing the quantum of evidence needed to
reach the standard of probable cause, SA Rowley wrote that
``although I thought probable cause existed (`probable cause'
meaning that the proposition has to be more likely than not, or
if quantified, a 51 percent likelihood), I thought our United
States Attorney's Office, (for a lot of reasons including just
to play it safe), in regularly requiring much more than
probable cause before approving affidavits, (maybe, if
quantified, 75 percent-80 percent probability and sometimes
even higher), and depending upon the actual AUSA who would be
assigned, might turn us down.'' \29\ The Gates case and its
progeny do not require an exacting standard of proof. Probable
case does not mean more likely than not, but only a probability
or substantial chance of the prohibited conduct taking place.
Moreover, ``[t]he fact that an innocent explanation may be
consistent with the facts alleged * * * does not negate
probable cause.'' \30\
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\29\ Rowley Letter, pp. 4-5.
\30\ United States v. Fama, 758 F.2d 834, 838 (2d Cir. 1985)
(citations omitted).
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On June 6, 2002, the Judiciary Committee held an open
hearing on the FBI's conduct of counterterrorism
investigations. The Committee heard from Director Mueller and
DOJ Inspector General Glenn Fine on the first panel and from SA
Rowley on the second panel. The issue of the probable cause
standard was specifically raised with Director Mueller, citing
the case of Illinois v. Gates, and Director Mueller was asked
to comment in writing on the proper standard for establishing
probable cause.\31\ The FBI responded in an undated letter to
Senator Specter and with the subsequent transmission of an
electronic communication (E.C.) dated September 16, 2002.\32\
In the E.C., the FBI's General Counsel reviewed the case law
defining ``probable cause,'' in order to clarify the definition
of probable cause for FBI personnel handling both criminal
investigations and FISA applications.
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\31\ Judiciary Committee ``Oversight Hearing on Counterterrorism,''
Transcript, June
