PDF Version


                                                        S. Hrg. 109-341
 
                            USA PATRIOT ACT

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

                                HEARING

                               BEFORE THE

                    SELECT COMMITTEE ON INTELLIGENCE

                                 OF THE

                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                            USA PATRIOT ACT

                             APRIL 19, 2005

                             APRIL 27, 2005

                              MAY 24, 2005

                               __________

      Printed for the use of the Select Committee on Intelligence


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 senate



                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
24-983                      WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512091800  
Fax: (202) 512092250 Mail: Stop SSOP, Washington, DC 20402090001

                    SELECT COMMITTEE ON INTELLIGENCE

           [Established by S. Res. 400, 94th Cong., 2d Sess.]

                     PAT ROBERTS, Kansas, Chairman
            JOHN D. ROCKEFELLER IV, West Virginia, Chairman
ORRIN G. HATCH, Utah                 CARL LEVIN, Michigan
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
CHRISTOPHER S. BOND, Missouri        RON WYDEN, Oregon
TRENT LOTT, Mississippi              RICHARD J. DURBIN, Illinois
OLYMPIA J. SNOWE, Maine              EVAN BAYH, Indiana
CHUCK HAGEL, Nebraska                JOHN EDWARDS, North Carolina
SAXBY CHAMBLISS, Georgia             BARBARA A. MIKULSKI, Maryland
JOHN W. WARNER, Virginia
                   BILL FRIST, Tennessee, Ex Officio
                     HARRY REID, Nevada, Ex Officio
                              ----------                              
                      Bill Duhnke, Staff Director
               Andrew W. Johnson, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk


                                CONTENTS

                              ----------                              

                                Day One

Hearing held in Washington, DC:
    April 19, 2005...............................................     1

Statements of :

    Roberts, Hon. Pat, a U.S. Senator from the State of Kansas...     1
        Prepared statement.......................................     2
    Rockefeller, Hon. John D. IV, a U.S. Senator from the State 
      of West Virginia, prepared statement.......................    29
    Nojeim, Gregory T., Associate Director and Chief Legislative 
      Counsel, ACLU, prepared statement..........................    29
    Dempsey, James X., Executive Director, Center for Democracy & 
      Technology, prepared statement.............................    45
    MacDonald, Heather, Senior Fellow at the Manhattan Institute 
      for Policy Research, prepared statement....................    57

Supplemental Materials:

    Testimony on the USA PATRIOT Act by Bob Barr.................     4
    Letter from Edwin Meese III and Paul Rosenzweig..............    10
    Testimony of Orin S. Kerr....................................    23
    Statement for the Record by Kate Martin......................    26
    Chart on the USA PATRIOT Act.................................    42
                              ----------                              

                                Day Two

Hearing held in Washington, DC:
    April 27, 2005...............................................    87

Statements of:

    Gonzales, Hon. Alberto R., Attorney General, Department of 
      Justice....................................................    97
        Prepared statement.......................................    90
    Mueller, Hon. Robert S. III, Director, Federal Bureau of 
      Investigation..............................................   100
    Goss, Hon. Porter J., Director, Central Intelligence Agency..   104
        Prepared statement.......................................   102

Supplemental Materials:

    April 4, 2005 Letter from William E. Moschella, Assistant 
      Attorney General to Senator Arlen Specter..................   130
    April 26, 2005 Letter from William E. Moschella, Assistant 
      Attorney General to Senator Dianne Feinstein...............   137
                              ----------                              

                               Day Three

Hearing held in Washington, DC:
    May 24, 2005.................................................   153

Statements of:

    Caproni, Ms. Valerie, General Counsel, Federal Bureau of 
      Investigation..............................................   168
        Prepared statement.......................................   166
    Feinstein, Hon. Dianne, a U.S. Senator from the State of 
      California, prepared statement.............................   176
    Kris, David S., former Associate Deputy Attorney General, 
      U.S. Department of Justice, prepared statement.............   188
    Onek, Joseph, Senior Policy Analyst, Open Society Institute, 
      prepared statement.........................................   208
    Collins, Daniel P., former Associate Deputy Attorney General, 
      U.S. Department of Justice, prepared statement.............   212
    Dempsey, James X., Executive Director, Center for Democracy 
      and Technology, prepared statement.........................   221

Supplemental Materials:

    May 23, 2005 Letter from Richard A. Seamon, University of 
      Idaho......................................................   155


                      THE USA PATRIOT ACT OF 2001

                              ----------                              


                                DAY ONE

                        TUESDAY, APRIL 19, 2005

                      United States Senate,
           Senate Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 3:05 p.m., in 
room SH-216, Hart Senate Office Building, Hon. Pat Roberts 
(Chairman of the Committee) presiding.
    Committee Members Present: Senators Roberts, Bond, Lott, 
Snowe, Chambliss, Warner, Rockefeller, Feinstein, Wyden, and 
Corzine.

             OPENING STATEMENT OF HON. PAT ROBERTS

    Chairman Roberts. The Committee will come to order.
    I would like to apologize to our witnesses for the 40-
minute delay due to the procedural votes that we had on the 
floor of the Senate. I guess the good news is that, at least 
for the time being, we have completed those votes. The 
challenge that we face is that at 5 o'clock we will have 
additional votes. We're down already to 1 hour and 45 minutes.
    Now I have a marvelous opening statement that deals with 
the PATRIOT Act and all of the varied concerns and positives 
that are involved with that Act and your concerns as well. But, 
I am going to simply submit that for the record in an attempt 
to hear from you.
    Can we keep the applause down a little bit?
    [Laughter.]
    Chairman Roberts. I think the Vice Chairman is going to do 
likewise, although he will seek his own counsel.
    We've invited a panel of outside experts to provide their 
views of the USA PATRIOT Act and their opinions on those 
provisions of the Act which will expire later this year.
    Our witnesses are Mr. Gregory T. Nojeim, the Associate 
Director and Chief Legislative Counsel for the American Civil 
Liberties Union; Mr. Jim Dempsey, Executive Director of the 
Center for Democracy and Technology; and Ms. Heather MacDonald, 
a John M. Olen fellow at the Manhattan Institute. The Committee 
thanks all of our witnesses for being here today.
    [The prepared statement of Chairman Roberts follows:]

                 Prepared Statement of Hon. Pat Roberts

    The Committee will come to order.
    On September 11, 2001, 19 terrorists hijacked four flights over the 
United States. We all remember the events of that day. The images of 
the collapse of the World Trade Center, the burning Pentagon, and the 
crash site of United Flight 93 in Shanksville, Pennsylvania should 
never be forgotten.
    But, the story of that day was written well before September 11th, 
and it was written by the terrorists that lived and trained within the 
United States. They rented apartments, bought cars, made telephone 
calls, sent e-mails, surfed the Internet, received wire transfers, and 
attended flight schools.
    The terrorists hid in the open--their sinister plans and intentions 
camouflaged by millions of innocent, lawful transactions that occur 
every day in the United States.
    The activities of the hijackers went largely unnoticed by our 
intelligence and law enforcement agencies. As this Committee and the 9/
11 Commission have pointed out, systemic flaws in our national security 
agencies prevented full cooperation that might have stopped these 
attacks.
    But, in addition to these systemic flaws, our national security 
agencies were operating under obsolete authorities. Their hands were 
tied by inaccurate interpretations of existing law that restricted 
common-sense sharing of intelligence information.
    The USA PATRIOT Act was the first legislative effort by Congress 
and the President to reform our national security apparatus in response 
to the attacks of September 11th. The Act brought intelligence tools 
into the information age. Collection authorities that had been enacted 
during the era of the rotary phone had not kept pace with the new world 
of e-mail, the Internet, and mobile phones. The Act also tore down 
``walls'' erected by overly cautious lawyers that had prevented 
information sharing and coordination between law enforcement and 
intelligence officials.
    The USA PATRIOT Act was drafted and passed by overwhelming 
majorities in both the Senate and the House and signed by the President 
on October 26, 2001. But, to describe the Act as a rash response to a 
horrific attack would be a mistake. Many of the provisions in the Act 
had been the subject of deliberation for years. The provisions were 
enacted with an acute awareness of rights guaranteed by the 
Constitution and applicable judicial precedents. The USA PATRIOT Act 
reflected a careful balancing of national security and the privacy 
rights of U.S. persons.
    Nonetheless, some of the more important provisions in the Act were 
passed subject to a ``sunset'' provision. Sixteen provisions in the 
Act--and the recently enacted ``lone wolf '' amendment to the Foreign 
Intelligence Surveillance Act--will expire on December 31, 2005.
    The danger posed by terrorism and other national security threats, 
however, will not expire on that date.
    Today, the Senate Select Committee on Intelligence continues its 
on-going oversight of the USA PATRIOT Act. This open hearing will be 
the first in a series of three hearings designed to educate Members and 
the public as the Senate considers the repeal of the ``sunset'' 
provision and modifications to other intelligence authorities. On 
Thursday, the Committee will hold a closed hearing on operational 
matters relating to the Act. Next Wednesday, we will hear from the 
Attorney General, Director of the Federal Bureau of Investigation, and 
the Director of Central Intelligence.
    This is not the Committee's first review of the USA PATRIOT Act or 
the Foreign Intelligence Surveillance Act, also known as FISA. The 
Committee regularly holds hearings, conducts briefings, and receives 
information regarding the activities of the Intelligence Community. The 
Committee conducted a closed hearing on the USA PATRIOT Act during the 
last Congress. We receive detailed reports from the Department of 
Justice every 6 months regarding FISA collection and annual reports on 
the use of other surveillance tools.
    The Committee is also in the final stages of completing its second 
audit of the procedures, practices, and use of FISA. This 
comprehensive, classified analysis will represent one of the most 
thorough reviews of Executive branch activities under FISA since the 
USA PATRIOT Act was enacted.
    Today, we have invited a panel of outside experts to provide their 
views of the USA PATRIOT Act and their opinions on those provisions of 
the Act that will expire later this year.
    Our witnesses are: Mr. Gregory T. Nojeim, Associate Director and 
Chief Legislative Counsel for the American Civil Liberties Union; Mr. 
Jim Dempsey, Executive Director of the Center for Democracy and 
Technology; and Ms. Heather Mac Donald, a John M. Olin fellow at the 
Manhattan Institute. The Committee thanks all of our witnesses for 
being here today.
    We have also received testimony and submissions for the record 
from: The Honorable Bob Barr, former Congressman from Georgia; Former 
Attorney General Edwin Meese III, and Paul Rosenszweig (RO-zen-swayg) 
of the Heritage Foundation; Associate Professor Orin S. Kerr of the 
George Washington University Law School; and Ms. Kate Martin, Director 
of the Center for National Security Studies.
    Without objection, the submissions from these commentators will be 
entered into the record.
    Before I recognize the Vice Chairman, I want to set out some 
fundamental principles that will inform my consideration of the USA 
PATRIOT Act reauthorization and any other modifications to law or 
policy governing intelligence activities.
    First, our intelligence agencies need flexible authorities to 
confront terrorists, spies, proliferators, and other national security 
threats.
    Second, as we seek to protect national security, we must also 
ensure that civil liberties and privacy are not sacrificed in the 
process. This is not a zero-sum game, however. As former Supreme Court 
Justice Arthur Goldberg noted, ``While the Constitution protects 
against invasions of individual rights, it is not a suicide pact.''
    Third, these are not matters of ``first impression.'' Interpreting 
the Constitution and the President's responsibility to protect national 
security, Federal courts have wrestled with many of these issues 
before. They have recognized the authority of the President to conduct 
warrantless electronic surveillance of foreign powers and their agents. 
Well-established judicial precedents also make clear that certain 
records--even of the most private information--lose their 
Constitutional protection when voluntarily exposed publicly or to a 
business or other third party.
    Finally, I will support reasonable modifications to USA PATRIOT Act 
provisions or other authorities that clarify legal uncertainties, but I 
will oppose modifications that place unnecessary hurdles in the path of 
lawful intelligence investigations.
    I would like to note one particular example of an authority that 
has been questioned by some in the context of the USA PATRIOT Act.
    Everyday, we expose our personal information to businesses--when we 
buy milk from the grocery store with a credit card; when we open an e-
mail account over the Internet; when we apply for a mortgage. This 
information we have voluntarily exposed to others is no longer private. 
Federal courts have clearly established that this record trail is not 
``protected'' by the warrant requirement of the Fourth Amendment.
    I have said before, that the 9/11 hijackers conducted numerous 
transactions while living within the United States. It should not be 
surprising that the records of these transactions would have been 
useful to the Intelligence Community before the attacks. Records from 
flight schools, cell phone companies, rental car dealers, or internet 
service providers might have revealed crucial information about the 
activities of these terrorists.
    To gain access to these types of transactional records, the FBI 
uses a FISA ``business records'' order. A FISA ``business records'' 
order allows the FBI to access records for investigations of 
international terrorists and spies.
    Before the USA PATRIOT Act, the authority to access ``business 
records'' under FISA was limited to certain types of business--like 
storage facilities, rental car companies, airlines, hotels, and the 
like. Section 215 of the USA PATRIOT Act expanded the types of entities 
that were subject to a FISA ``business records'' order and the types of 
items that could be sought with such an order.
    Armed with a FISA ``business records'' order, the FBI can now go to 
a flight school to ask for records about a student they believe to be a 
terrorist. They can ask an internet service provider for the subscriber 
information of a possible spy. They can ask for transactional records 
from a fertilizer company, a chemical company, and a car dealership if 
those records will support an investigation to stop a car bomb attack 
by al Qaeda.
    Libraries, booksellers, and others have raised great concern about 
this provision.
    In law enforcement investigations, the government can obtain the 
same types of records--from all types of businesses, including 
libraries and bookstores--with a grand jury subpoena. These subpoenas 
are issued without a court order and are subject to judicial review 
only after they are issued.
    A FISA ``business records'' order--on the other hand--can be issued 
only upon the approval of a Federal Judge serving on the Foreign 
Intelligence Surveillance Court. The judge can direct the FBI to modify 
the scope of the order. No similar pre-issuance review exists in the 
context of grand jury subpoenas.
    Still, there is concern that the provision infringes privacy 
interests.
    A FISA ``business records'' order also CANNOT be sought if the 
investigation is based solely on activities protected by the First 
Amendment. This prohibition dovetails with existing restrictions in 
Executive Order 12333 on the collection of foreign intelligence 
concerning the domestic activities of U.S. persons.
    Finally, I note that the FISA ``business records'' provision is a 
relatively non-intrusive means of collecting intelligence for a 
national security investigation. Analysis of these business records can 
help solidify investigative leads or clear innocent names before more 
intrusive FISA techniques such as electronic surveillance or physical 
search are ever employed.
    And, there are limitations in the USA PATRIOT Act, along with 
requirements for judicial review, the Congressional reporting 
obligations, and the prohibitions in Executive Order 12333.
    While I recognize that some clarifying modifications to Section 215 
may be necessary, I will oppose modifications that increase the 
standard for an order above ``relevance'' or place unreasonable 
barriers between these business records and intelligence officials.
    Section 215 is just one example of the numerous tools that the USA 
PATRIOT Act provided to the men and women protecting us from further 
attack. These tools are currently helping our intelligence agencies 
identify terrorists, track their movements, and disrupt their plots. 
The provisions are subject to review by courts and the oversight of 
Congress.
    Those provisions of the USA PATRIOT Act subject to expiration at 
the end of the year must be reauthorized. The alternative is a return 
to failed, outdated, and illogical limits on national security 
investigations that tied our hands prior to the 9/11 attacks. The 
dangers are real, and we should give our people every Constitutional 
tool available to fight and defeat terrorism.
    I now recognize the Vice Chairman for any remarks he might wish to 
make.

    Chairman Roberts. We also received testimony and 
submissions for the record from the Honorable Bob Barr, the 
former Congressman from Georgia; former Attorney General Ed 
Meese and Paul Rosenzweig of the Heritage Foundation; Associate 
Professor Orin S. Kerr of the George Washington University Law 
School; and Ms. Kate Martin, the Director of the Center for 
National Security Studies.
    Without objection, the submissions from these commentators 
will be entered into the record.
    [The prepared statements referred to follow:]

                     Prepared Statement of Bob Barr

    Chairman Roberts, Ranking Member Rockefeller, distinguished members 
of the Select Committee, I thank you for the invitation to present my 
views in this written statement on the debate over the PATRIOT Act 
``sunset'' provisions, and I applaud your oversight on this crucial 
matter.
    My name is Bob Barr. From 1995 to 2003, I had the honor to 
represent Georgia's Seventh District in the U.S. House of 
Representatives, serving that entire period on the House Judiciary 
Committee. From 1986 to 1990, I served as the United States Attorney 
for the Northern District of Georgia after being nominated by President 
Ronald Reagan, and was thereafter the president of the Southeastern 
Legal Foundation. For much of the 1970's, I was an official with the 
CIA.
    I currently serve as CEO and President of Liberty Strategies, LLC, 
and Of Counsel with the Law Offices of Edwin Marger. I also hold the 
21st Century Liberties Chair for Freedom and Privacy at the American 
Conservative Union, consult on privacy issues with the American Civil 
Liberties Union, and am a board member of the National Rifle 
Association.
    Finally, I am the Chairman of a new network of primarily 
conservative organizations called Patriots to Restore Checks and 
Balances, which includes the American Conservative Union, Eagle Forum, 
Americans for Tax Reform, the American Civil Liberties Union, Gun 
Owners of America, the Second Amendment Foundation, the Libertarian 
Party, the Association of American Physicians and Surgeons, and the 
Free Congress Foundation.
    We strongly urge Congress to resist calls to summarily remove the 
sunset provisions in the PATRIOT Act. This reflects our philosophy in 
support of all necessary and constitutional powers with which to fight 
acts of terrorism, but against the centralization of undue authority in 
any one aim or agency of government.
    As I have said many times before, I believe the current struggle to 
properly integrate our shared constitutional heritage into our efforts 
to provide for the common defense, is the defining debate of our time. 
If we fail to strike the appropriate balance, we will do irreparable 
harm to our most elemental principles as a nation.
    To that end, I urge this Committee to carefully examine the current 
language of the 2001 USA PATRIOT Act, and to make modest modifications 
to a handful of its provisions. In particular, I strongly urge 
individual members to co-sponsor Senator Larry Craig's Security and 
Freedom Enhancement Act of 2005, known as the SAFE Act. Although in 
many respects, this legislation does not address all of our concerns 
with the USA PATRIOT Act, it is an essential first step.
    Even though I voted for the USA PATRIOT Act in October 2001, as did 
many of my colleagues, I did so with the understanding it was an 
extraordinary measure for an extraordinary threat; that it would be 
used exclusively, or at least primarily, in the context of important 
antiterrorism cases; and that the Department of Justice would be 
cautious in its implementation and forthcoming in providing information 
on its use to the Congress and the American people.
    I have become skeptical on all of these fronts.
    First, the Justice Department has been quite frank in its use and 
desire to use the USA PATRIOT Act in non-terrorism contexts. Second, 
the administration has repeatedly stated its intention to expand the 
USA PATRIOT Act, and has floated various pieces of legislation that 
would do so.
    And, third, although this Committee would be in the best position 
to judge, the Justice Department has not produced any compelling 
evidence that the USA PATRIOT Act has been essential in preventing al 
Qaeda-style terrorist plots. Although I grant we have not suffered 
another major terrorist attack since 9/11, as Homeland Security 
Secretary Michael Chertoff put it, ``[i]t's like sprinkling powder to 
keep away elephants. If no elephants show up, how do you prove it's 
because of the powder, rather than because there were never any 
elephants?'' \1\
---------------------------------------------------------------------------
    \1\ Stephen Brill, After: How America Confronted the September 12 
Era 348 (2003).
---------------------------------------------------------------------------
    Before I specifically discuss those provisions of the USA PATRIOT 
Act most pertinent to this Committee's jurisdiction, I would like to 
bring two new developments in the ``sunsets'' debate to the Committee's 
attention. Namely, we learned earlier this month that both the USA 
PATRIOT Act appears to have been used in the Brandon Mayfield affair, 
and that the Administration is increasingly turning to it for its 
surveillance needs.
    The Mayfield revelation is particularly disturbing. Mayfield--the 
Oregon lawyer turned prime suspect in the Madrid bombing investigation 
because of faulty fingerprint analysis at the FBI--was subjected to a 
highly intrusive Federal investigation and then detained as a 
``material witness'' for 2 weeks before finally being exonerated.
    According to Attorney General Gonzales, the FBI used the USA 
PATRIOT Act when it executed a covert search of Mayfield's home. 
Specifically, the attorney general said that Section 207 was used to 
extend the duration of Mayfield's surveillance, and that ``in some 
sense'' Section 218, which made it easier to use intelligence 
authorities in criminal contexts, was used.
    We all fully understand the FBI is not perfect and generally 
support the bureau even when it makes honest mistakes.
    However, the Mayfield case shows how the USA PATRIOT Act, by 
lessening meaningful judicial oversight, reduces the ability of the FBI 
and Justice Department to avoid such mistakes. In particular, it shows 
how--through the increased use of classified and less exacting foreign 
intelligence surveillance authority in place of traditional criminal 
warrants based on probable cause and executed in the open--the USA 
PATRIOT Act can compound mistakes and amplify them into serious 
deprivations of an innocent person's personal liberty.
    In Mayfield's case, not only was a U.S. citizen detained, but his 
home was subjected to a ``black bag'' intelligence search even though 
the Justice Departillent was arguably conducting this search primarily 
for criminal purposes; in other words, in order to apprehend a suspect 
in a terrorist bombing that had already taken place. Such a foreign 
intelligence search is even more intrusive than the criminal ``sneak 
and peek'' search warrants available under section 213 of the USA 
PATRIOT Act, because notice is not simply delayed, it is never 
provided. The Washington Post reported that in a March 24th letter to 
Mayfield, the Justice Department acknowledged that during a covert 
search of his home, agents copied computer and paper files, took 355 
digital photographs, seized six cigarette butts for DNA analysis, and 
used cotton swabs to obtain other DNA evidence.
    In short, the Mayfield case should serve as a cautionary tale of 
how the USA PATRIOT Act can seriously exacerbate any ``broken 
telephone'' effect in an ongoing investigation.
    I would also say, especially to Senators Hatch and Feinstein, that 
this is the type of problem that supporters of increased checks and 
balances refer to when discussing so-called ``PATRIOT Act abuses.'' No 
one is of the mind that the FBI would deliberately seek to infringe on 
the rights of loyal, law-abiding Americans. But there need be no malice 
aforethought for something to constitute an ``abuse.'' The fact is, 
procedural deficiencies in the law's implementation likely led to 
Mayfield's predicament, and Mayfield was an innocent man.
    Put another way, sometimes the road to abuse is paved with good 
intentions. Take, for instance, the Racketeer Influenced and Corrupt 
Organizations, or RICO, Act, which was passed to provide tools to fight 
organized crime, but was then used against pro-life groups. Overbroad 
laws are necessarily subject to overbroad application, if not now, then 
under future administrations, including those with less regard for 
civil liberties. That in itself can be deemed ``abusive.''
    The second consideration--that the USA PATRIOT Act is becoming an 
ever more popular tool for the Justice Department--should be of 
particular concern to limited government conservatives like myself. As 
with taxes, unduly expanded government authority is next to impossible 
to retract.
    As an illustration, I would point the Committee to the Attorney 
General's statement that, to date, Section 215 of the USA PATRIOT Act 
has been used 35 times. Note, however, that former Attorney General 
John Ashcroft declassified a memorandum to FBI Director Robert Mueller 
in September 2003 saying that Section 215 had never been used, meaning 
that those 35 court orders have all been issued in just the last year-
and-a-half.
    Granted, three dozen court orders may be considered by some to be a 
drop in the ocean of foreign intelligence document-production orders. 
Clearly, however, the trend is toward increased, not decreased, use of 
the USA PATRIOT Act; and, given the reach of the statute, the increased 
enthusiasm for its use ought to sound alarms.
    Similarly, on the eve of the recent, April 6th Senate Judiciary 
Committee hearing, the Justice Department released statistics 
disclosing the use to date of Section 213 of the PATRIOT Act--the so-
called ``sneak and peek'' provision that grants statutory authorization 
for the indefinite delay of criminal search warrant notification.
    Apparently, the department sought and received the authority to 
delay notice 108 times between April 2003 and January 2005, a period of 
approximately 22 months. By contrast, it sought and received this 
authority 47 times between November 2001, when the PATRIOT Act was 
enacted, and April 2003, a period of about 17 months. The 5-month 
difference in timeframe aside, these numbers clearly reveal a 
substantial increase in use.
    Moreover, Senator Arlen Specter at the April 6th Judiciary 
Committee hearing also revealed that 92--or approximately 60 percent--
of those 155 requests were granted under the broad justification that 
notice would have the result of ``seriously jeopardizing an 
investigation,'' rather than under the more specific criteria that 
notice would endanger a person's life, imperil evidence, induce flight 
from prosecution or lead to witness tampering.
    While I understand the jurisdiction of this Committee is concerned 
primarily with foreign intelligence authorities, not with criminal 
``sneak and peek'' warrants, I respectfully submit that you should be 
concerned when criminal investigative powers are made so broad that 
they come to resemble powers associated with foreign intelligence 
investigations. As Attorney General Gonzales informed Representative 
Flake at an April 7th hearing of the House Judiciary Committee, six 
criminal delayed-
notice warrants under section 213 of the PATRIOT Act were approved with 
an indefinite delay (just as we had feared), and one had a delay that 
lasted fully half a year.
    Lengthy, secret surveillance, including secret ``black bag'' jobs 
(all undertaken, since 1978, with the proper approval of the Foreign 
Intelligence Surveillance Court, of course) have long been the hallmark 
of a specialized, but crucial, type of investigation--the foreign 
intelligence investigation of suspected spies and international 
terrorists--the members of this Committee understand better than 
anyone. When these intrusive powers, such as the power to enter a home 
without notifying the owner, become more common in criminal or other 
types of investigations, the American people become alarmed. The 
resulting furor risks more draconian limits on all such secret 
surveillance powers--even in the investigations where they may actually 
be needed.
    Although I acknowledge the Justice Departtnent's argument that 
Section 213 and 215 searches and surveillance represent only a fraction 
of the searches and surveillance conducted by the FBI and other 
security agencies, I remain concerned. These are extraordinary 
authorities and they are being used more frequently, and more and more 
outside their proper context of foreign intelligence and terrorism 
investigations. Any hint of such a trend should be very worrisome.
    Furthermore, I would point the committee's attention to an April 1, 
2005 Associated Press story on a recent report to Congress by the 
Assistant Attorney General for Legislative Affairs, William E. 
Moschella, disclosing the record number of Foreign Intelligence 
Surveillance Act, or FISA, wiretaps in 2004. The department requested 
and won approval of 1,754 FISA wiretaps in 2004, up from 1,724 in 2003.
    Although the marginal increase between 2003 and 2004 is small, the 
numbers still represent a 70 percent jump over the number obtained in 
2000. In 2003, moreover, the use of intelligence wiretaps outstripped 
that of normal criminal wiretaps for the first time in history. One can 
only presume that the same trend continued in 2004.
    The USA PATRIOT Act is directly relevant to the increased use of 
these intelligence wiretaps, as a number of provisions in the law made 
these wiretaps more intrusive and much easier to obtain outside of 
terrorism or espionage investigations. Section 218, for instance, which 
is set to sunset this year, now requires the investigation of foreign 
intelligence or terrorism to be a ``significant purpose,'' rather than 
the primary purpose, of the intelligence wiretap.
    Bearing these two new developments--the Mayfield revelations and 
the increased use of the PATRIOT Act--in mind, I urge the Intelligence 
Committee to look at three provisions that are of particular importance 
to your oversight mandate.
    These are Sections 206, 215 and 505, which, respectively, created 
``roving wiretap'' authority under FISA, expanded the government's 
ability to seize personal records and other materials under foreign 
intelligence authorities, and finally removed the required ``nexus'' to 
foreign powers for the specific targets of FBI ``National Security 
letter'' subpoenas.
    First, when Congress created foreign intelligence roving wiretap 
authority in the USA PATRIOT Act, it failed to include the checks 
against abuse present in the analogous criminal statute. This is 
troubling because, as roving wiretaps attach to the target of the 
surveillance and not to the individual communications device, they 
provide a far more extensive and intrusive record of a person's 
communications.
    Accordingly, criminal roving wiretaps require agents to 
``ascertain'' that the target, rather than a third-party, is in fact 
using the telephone before they begin recording. They also require 
that, if the FBI does not actually know the identity (or an alias) of 
the target, but knows that he or she will be using a particular phone, 
the wiretap can attach to a single phone and all its users.
    In creating roving wiretap authority under FISA, the USA PATRIOT 
Act did away with this ascertainment requirement. Then, shortly 
thereafter, the intelligence authorization bill for FY 2002 took away 
the requirement that the applicant specify either the identity of the 
target or the particular communications device.
    The result, today, is a ``John Doe'' general warrant, issued 
secretly under FISA, that permits electronic surveillance irrespective 
of the communications device being tapped or the person being 
eavesdropped on.
    The Justice Department has defended the open-ended nature of these 
``John Doe'' wiretaps, by pointing to the requirement that they provide 
the FISA court with a physical description of the target if it cannot 
identify the communications device or target. Critics question how much 
of a safeguard this description requirement is in practice, given the 
paucity of identifying information it requires. In recognition of the 
oversight authority and security clearance of this Committee, I would 
urge its members to inquire on this point at length.
    In addition, I would urge the Committee to tighten the roving 
wiretap authority to prevent anonymous or dragnet wiretapping, and to 
use the internal safeguards in the criminal roving wiretap statute as a 
model. At the very least, a judge authorizing a roving wiretap should 
have some assurance that (a) an innocent bystander's sensitive 
communications are protected, and (b) the court order is not an 
effective general warrant to be filled in later.
    To that end, Senator Craig's SAFE Act would restore the 
ascertainment requirement and mandate that an FBI applicant for a 
national security roving wiretap specify either the actual target (or 
an alias) or the communications device to be tapped. This would, I 
believe, reserve for the government power that is more than 
sufficiently flexible to meet the demands of modern anti-terrorism and 
other anti-criminal investigations, over and above that of pre-PATRIOT 
Act authorities.
    Next, I would urge the committee to carefully review the use and 
utility of Section 215, the USA PATRIOT Act's amendment to what was 
special authority under FISA to seize rental car, self-storage and 
airline records for national security investigations.
    Prior to the USA PATRIOT Act, the underlying statute applied to 
only a limited subset of businesses, and it required a showing of 
``specific and articulable facts'' that the target was an agent of a 
foreign power. The 2001 Act removed both these limitations, thereby 
greatly expanding the power of the government to reach to all 
``tangible things'' (including books, records, papers, documents and 
other items), and lowering the evidentiary standard below that of 
standard, grand jury subpoenas which are pegged to at least some 
showing of relevance to criminal action by a particular person in an 
ongoing international terrorism or foreign intelligence investigation. 

    Some have questioned why the section 215 power has become known as 
the ``library provision,'' when libraries were not mentioned and given 
that it covers so much beyond library records or other information 
maintained by libraries. The answer is simple. Prior to the USA PATRIOT 
Act, library and bookseller records were not covered by this power, 
which then only permitted an order for the records of certain business. 
Now, library records are covered--as are all other records and tangible 
items, including membership lists of political organizations, gun 
purchase records, medical records, genetic information, and the list 
goes on.
    Section 215 also comes with a sweeping gag order, without any 
explicit provision for a recipient to even consult with counsel; and if 
certification is made that the records are sought for any intelligence 
or terrorism inquiry, the judge has no power under the law to challenge 
that certification. Finally, and crucially, this is not like a grand 
jury subpoena, because a recipient has no explicit right to move to 
have it quashed in court, and failure to comply with a 215 order is 
presumably a serious offense.
    Accordingly, critics of this section rightly charge that its open-
ended scope and lack of meaningful judicial review open the door to 
abuses, and I agree. At the very least, Congress must restore the 
particularity requirement for the target of a Section 215 order, and 
should institute additional reporting requirements (subject, of course, 
to appropriate classification measures). Here again, such a modest 
limitation, consistent with traditional Fourth Amendment principles, 
would pose no significant hardship to Federal agents. Federal judges 
would, as they have for ages past, continue to approve virtually all 
such applications properly supported and applied for by government 
agents.
    The SAFE Act, among other new procedural safeguards, would restore 
the specific and articulable facts standard and provide a recipient 
with at least some outlet to challenge an unreasonable order. It would 
also require notice before any information seized pursuant to Section 
215 of the USA PATRIOT Act is introduced as evidence in any subsequent 
proceeding. These are ``burdens'' the government has always been able 
to meet and which have never been seen as any real impediment to the 
government's ability to secure necessary evidence.
    I welcome the Attorney General's recent statements, agreeing to 
some changes to Section 215 that would make explicit a recipient's 
right to challenge the order and the secrecy provision, and would make 
explicit a recipient's right to consult an attorney. The Attorney 
General is certainly right to agree to changes in this poorly drafted 
provision, but, unfortunately, it remains unclear that the 
Administration will agree to a standard for a Section 215 order 
(individual suspicion) that will truly protect privacy. I strongly urge 
you to adopt the SAFE Act's standard in this regard.
    Finally, I would urge the Committee to review Section 505 of the 
USA PATRIOT Act, which removed the requirement that the FBI self-
certify that it has ``specific and articulable facts'' that the 
individual target of an administrative subpoena or ``national security 
letter'' (NSL), is an agent of a foreign power.
    Prior to the USA PATRIOT Act, the FBI could use NSLs, which serve 
as non-judicial subpoenas issued at the sole discretion of the FBI, to 
demand business, Internet, credit and telephony records, among other 
things. Before doing so, agents had to at least certify internally that 
the NSL pertained to a particular individual, who was acting on behalf 
of a foreign power.
    The USA PATRIOT Act effectively allows the FBI to issue NSLs for 
certain financial, transactional, electronic communications and credit 
records without any individualized suspicion. It changed the standard 
again to relevance to any investigation. The SAFE Act treats NSLs much 
like it does Section 215 orders--it maintains the expansive scope of 
the law, but includes the appropriate, minimal standard of individual 
suspicion; provides an explicit right to challenge the order; and 
retains the secrecy requirement, all of which take into account the 
sensitivity of national security investigations without taking away any 
necessary government powers.
    In short, the SAFE Act simply modifies the powers expanded by the 
USA PATRIOT Act, by making the government's exercise thereof subject to 
the basic Fourth Amendment notion that before the government 
``pierces'' an individual's right to privacy of information that can be 
used as evidence against them, it must have a reasonable suspicion that 
the person has either violated the law or is serving as an agent of a 
foreign power. The government has not shown any reason why it cannot 
meet such a nominal burden, and the Fourth Amendment requires it do so.
    I believe, especially given that NSLs currently have no judge in 
the picture at all, that the SAFE Act's approach is entirely 
appropriate.
    The committee should also note that Section 505(a) of the USA 
PATRIOT Act has been at the center of an ongoing bit of confusion about 
a 2004 court decision dealing with NSLs and whether that court decision 
involved the 2001 Act or some other law. If I may, I would like to take 
this opportunity to make sure the record is accurate.
    In September 2004, Judge Victor Marrero of the United States 
District Court for the Southern District of New York issued a 50-page 
ruling in the case of Doe v. Ashcroft, 334 F.Supp.2d 471 (S.D.N.Y. 
2004). In it, he struck down 18 U.S.C. Sec. 2709, the statute 
permitting the issuance of NSLs for customer records from Internet, 
telephone and other electronic service providers.
    The judge struck the provision in its entirety, including the 
amendments made by Section 505(a) of the PATRIOT Act. Accordingly, the 
judge's decision struck down all of Section 505(a) of the PATRIOT Act, 
but also struck down the rest of the NSL statute with it.\2\
---------------------------------------------------------------------------
    \2\ Judge Marrero's decision did not affect the rest of Section 
505, which amended a number of different statutes that permit the FBI 
to issue NSLs for the production of other kinds of records.
---------------------------------------------------------------------------
    The judge ruled on two primary grounds--that the Section 2709 NSL 
is unreviewable, and that the attached gag order forever barred a 
recipient from telling anyone anything about the NSL. As the judge 
noted repeatedly in his opinion, the USA PATRIOT Act did remove the 
requirement of individual suspicion from the statute. For instance, he 
rests a large part of his First Amendment findings on the FBI's post-
PATRIOT Act ability to suppress anonymous speech using an NSL.
    Judge Marrero proffers two hypotheticals on that score, neither of 
which would have been possible prior to the USA PATRIOT Act unless the 
FBI had specific facts that the individual target was an agent of a 
foreign power. The FBI could use an NSL, the judge notes, to disclose 
the identity of an anonymous ``blogger'' critical of the government, or 
to discover the identity of everyone who has an e-mail account through 
a political campaign.
    A number of lawmakers and other interested parties continue to 
claim, however, that Doe v. Ashcroft did not strike down a provision of 
the USA PATRIOT Act because Section 2709, prior to the Act, did not 
contain a right to challenge and contained a gag order. This is simply 
not true. First, whenever a statute is struck down in its entirety any 
then-operative amendments are also rendered unconstitutional. It is 
hard to see how a decision that strikes down every word of one section 
of a law can be said not to ``involve'' that law. Second, the USA 
PATRIOT Act is the 800-pound gorilla in the Marrero opinion, and 
clearly factored into his reasoning.
    In sum, then, I urge the Committee to take into account the recent 
developments in the USA PATRIOT Act debate, most notably the Mayfield 
revelations and the indications that the Justice Department is turning 
to the PATRIOT Act more and more.
    I also respectfully ask that the Committee look closely at the 
three most contentious PATRIOT Act amendments to foreign intelligence 
law--Sections 206, 215 and 505--and urge individual members to co-
sponsor S. 737, the Security and Freedom Enhancement Act of 2005, which 
already enjoys bipartisan support.
    As evidenced by the circumstances surrounding the founding of this 
very Committee, foreign intelligence law, especially as it applies 
domestically, poses serious risks to basic constitutional freedoms. 
While some hail the provisions in the USA PATRIOT Act as breaking down 
an artificial ``wall'' or a ``technicality'' between the gathering and 
use of evidence in criminal cases--matters necessarily subject to the 
Bill of Rights--and the gathering of foreign intelligence--
appropriately not subject in its gathering to the limitations in the 
Bill of Rights--the fact is the artificial ``wall'' that applied 
different standards to the gathering and use of each category of 
information, is neither artificial nor a technicality: it is the 
Constitution of the United States of America. In treating them as one 
and the same in the name of fighting ``terrorism'' or any other threat 
posed to the good order and safety of our society, we show disdain for 
the fundamental underpinning of our constitutional form of government 
and the freedoms it enshrines.
    Doing otherwise will result in an historical pattern where such 
laws are made ever more secret, ever more unchecked and ever more 
susceptible to abuse; and each subsequent national ``crisis'' forces 
the shades drawn tighter. It is a slippery slope, down which this 
Committee, this year in consideration of whether to sunset certain 
provisions in the USA PATRIOT Act and in deciding whether to place very 
modest and limited--but fundamentally important--restraints on some of 
the law's provisions, can help avoid.
    Thank you again for this opportunity to comment on the vitally 
important deliberations of this Committee. I remain available to 
provide whatever further information the Committee might request.
                                   The Heritage Foundation,
                                    Washington, DC, April 18, 2005.
Hon. Pat Roberts, Chairman,
Senate Select Committee on Intelligence,
Senate Hart Office Bldg.,
Washington, DC.

Hon. John D. Rockefeller IV, Vice Chairman,
Senate Select Committee on on Intelligence,
Senate Hart Office Bldg.,
Washington, DC.
    Dear Chairman Roberts and Vice Chairman Rockefeller: We understand 
that the Senate Select Committee on Intelligence will be conducting an 
oversight hearing on April 19th concerning the reauthorization of 
certain provisions of the Patriot Act. We write to provide you with our 
views concerning that question.
    In general, our view is that too much of the debate has focused on 
the Act not as it truly is but as people perceive it to be. Most of the 
proposals for reform mistake the appearance of potential problems and 
abuse (the myth) with the reality of no abuse at all. To take but one 
example, the Inspector General for the Department of Justice has 
consistently reported that there have been no instances in which the 
Patriot Act has been invoked to infringe on civil rights or civil 
liberties. See Report to Congress on Implementation of Section 1001 of 
the USA Patriot Act (March 2005); see also ``Report Finds No Abuses of 
Patriot Act,'' Wa. Post at A2 (Jan. 28, 2004).
    Thus, while we acknowledge that any expansion of governmental power 
comes with the potential for abuse, that potential does not, in our 
judgment warrant hesitancy absent some evidence of real abuse. In 
short, the case for change has not been made.
    The Heritage Foundation has conducted extensive research on the 
Patriot Act that provides greater detail on this subject. All of our 
research is summarized 
in a memorandum we published entitled ``The Patriot Act and Related 
Provisions: The Heritage Foundation's Research'' (http://
www.heritage.org/Research/HomelandDefense/wm612.cfm).
    Most saliently for the Committee's consideration we would 
respectfully call your attention to two separate publications that 
contain much of our substantive analysis (copies of which we enclose 
with this letter):
     Rosenzweig, Carafano & Kochems, eds. ``The Patriot Act 
Reader,'' (also available at http://www.heritage.org/Research/
HomelandDefense/The-Patriot-Act-Reader.
cfm)
     Meese & Rosenzweig, ``The SAFE Act Will Not Make Us 
Safer,'' (also avail-
able at http://www.heritage.org/Research/HomelandDefense/lm10.cfm)
    We would ask that you make this letter and our publications a part 
of the record of the Committee's hearing. We thank you for the 
opportunity to share with you our views.
            Sincerely yours,
                                           Edwin Meese III,
                                Ronald Reagan Distinguished Fellow.

                                           Paul Rosenzweig,
                                      Senior Legal Research Fellow.
[GRAPHIC] [TIFF OMITTED] T4983.004

[GRAPHIC] [TIFF OMITTED] T4983.005

[GRAPHIC] [TIFF OMITTED] T4983.006

[GRAPHIC] [TIFF OMITTED] T4983.007

[GRAPHIC] [TIFF OMITTED] T4983.008

[GRAPHIC] [TIFF OMITTED] T4983.009

[GRAPHIC] [TIFF OMITTED] T4983.010

[GRAPHIC] [TIFF OMITTED] T4983.011

[GRAPHIC] [TIFF OMITTED] T4983.012

[GRAPHIC] [TIFF OMITTED] T4983.013

[GRAPHIC] [TIFF OMITTED] T4983.014

[GRAPHIC] [TIFF OMITTED] T4983.015

                   Prepared Statement of Orin S. Kerr

    Mr Chairman, Members of the Committee:
    My name is Orin Kerr, and I am an Associate Professor at George 
Washington University Law School. It is my pleasure to submit this 
written testimony concerning the USA Patriot Act. My testimony will 
contain three parts: first, a brief explanation of my view that the 
public debate over the Patriot Act largely has misunderstood the Act; 
second, an overview of the legal issues raised by foreign intelligence 
surveillance; and third, an analysis of the constitutional issues 
raised by orders to compel information such as library records, 
bookstore records, and Internet communications.

                 I. THE DEBATE OVER THE USA PATRIOT ACT

    The public debate over the USA Patriot Act has been based on a 
number of major misunderstandings about the scope and effect of the 
law. Millions of Americans believe that the Patriot Act profoundly 
reshaped the balance between privacy and security in a post-9/11 world. 
That is simply wrong. The truth is that the law is much more modest: 
Most of the Patriot Act consists of minor adjustments to a set of 
preexisting laws, such as the Foreign Intelligence Surveillance Act and 
the Electronic Communications Privacy Act. The Patriot Act left the 
basic framework of preexisting law intact, offering mostly minor 
changes to the set of statutory privacy laws Congress first enacted in 
the 1970's and 1980's. I explained this in greater depth in a law 
review article published in January 2003, and stand by that view today. 
See Orin S. Kerr, Internet Surveillance Law After the USA Patriot Act: 
The Big Brother That Isn't, 97 Northwestern University Law Review 607 
(2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract--
id=317501.
    Fortunately, the gap between the perception and the reality of the 
Patriot Act is beginning to narrow. In recent months, critics of the 
Patriot Act have come to acknowledge that most of the Act is consensus 
legislation that does not raise civil liberties concerns. For example, 
in an April 5, 2005 press release the American Civil Liberties Union 
acknowledged that:

        Most of the voluminous Patriot Act is actually unobjectionable 
        from a civil liberties point of view and . . . the law makes 
        important changes that give law enforcement agents the tools 
        they need to protect against terrorist attacks. A few 
        provisions . . . must be revised. . . .

    See Bipartisan Legislation Would Fix Worst Parts of Patriot Act 
While Maintaining Key Law Enforcement Powers, available at http://
www.aclu.org/SafeandFree/SafeandFree.cfm? ID=17935&c=206.
    Although it is unfortunate that this acknowledgment appeared as 
late as it did, the ACLU's recognition that the Patriot Act debate is 
actually quite narrow is an important step to understanding Patriot Act 
reform. It reveals that the differences among pre-Patriot Act law, the 
law under the Patriot Act, and proposals to reform the Patriot Act tend 
to be relatively small. Of course, any legislative proposals that 
impact government power to conduct criminal or intelligence 
surveillance must be treated with the greatest consideration and care. 
Finding the right balance that both gives the government the power it 
needs to investigate terrorist threats and preserves our precious civil 
liberties is a very difficult task. At the same time, the effect of the 
Patriot Act and the scope of proposed amendments to it are much 
narrower than press accounts would lead one to believe.

 II. OVERVIEW OF THE ISSUES RAISED BY THE USA PATRIOT ACT AND FOREIGN 
                       INTELLIGENCE SURVEILLANCE

    I will now turn to an overview of the issues raised by the law of 
intelligence surveillance to help put the debate in better perspective. 
At the most basic level, any modern legal regime that allows the 
government to investigate crime or terrorism must address a number of 
basic methods for acquiring information. In particular, the law must 
cover three basic types of authorities:
    (1) Authority to conduct physical searches to retrieve physical 
evidence or collect information.
    (2) Authority to compel third parties to produce physical evidence 
or disclose information.
    (3) Authority to conduct real-time monitoring over communications 
networks.
    In the case of criminal investigations, the legal regime that 
covers these authorities is well- established. The first authority is 
governed by the traditional Fourth Amendment warrant requirement. The 
police must have a search warrant based on probable cause to enter a 
home or business unless a person with apparent or actual authority over 
the place consents, exigent circumstances exist, or another exception 
to the warrant requirement applies. The second authority is governed by 
the Fourth Amendment rules governing subpoenas. Although many different 
types of subpoenas exist, and the rules can vary slightly depending on 
the type of subpoena, the general rule is that the police can compel 
third parties to disclose information in their possession using a 
subpoena. A subpoena can be issued under a wide range of circumstances: 
the information need only be relevant to the government's 
investigation, and compliance with the subpoena cannot be overly 
burdensome to the subpoena recipient. Finally, the third authority is 
regulated primarily by statutory law. Two different laws apply: the 
interception of contents such as phone calls and 
e-mails is regulated by the Wiretap Act, 18 U.S.C. Sec. Sec. 2510-22, 
and the collection of non-content information such as phone numbers 
dialed and e-mail addresses is governed by the Pen Register statute, 18 
U.S.C. Sec. Sec. 3121-27. The former requires the law enforcement to 
obtain a ``super warrant'' based on probable cause unless an exception 
applies, while the latter permits law enforcement monitoring of non-
content information under a relevance court order something like a 
subpoena.
    The law governing monitoring for intelligence purposes is somewhat 
different than the law governing evidence collection for criminal 
cases. The Fourth Amendment's requirements are much less clear--and 
generally less strong--than in the routine criminal context. As a 
general matter, the few courts that have confronted how the Fourth 
Amendment applies to intelligence collection have held that the rules 
are somewhat similar to the rules for criminal investigations but also 
more flexible. When the Fourth Amendment applies, information and 
evidence collection must be reasonable in light of the countervailing 
demands and interest of intelligence collection. See United States v. 
United States District Court, 407 U.S. 297, 323-24 (1972); In re Sealed 
Case, 310 F.3d 717, 745-46 (Foreign Int. Surv. Ct. Rev. 2002). This 
legal framework appears to place Congress in the primary role of 
generating the law governing intelligence collection, with the Fourth 
Amendment serving as a backstop that reviews Congress's approach to 
ensure that it is constitutionally reasonable.
    Congress has responded to the challenge by passing the Foreign 
Intelligence Surveillance Act, also known as ``FISA.'' FISA attempts to 
create a statutory regime for intelligence monitoring that largely 
parallels analogous rules for gathering evidence in criminal cases. 
FISA covers the three basic authorities as follows: First, 18 U.S.C. 
Sec. Sec. 1821-29 covers the authority to conduct physical searches, a 
parallel to the provision of the Federal Rules of Criminal Procedure 
that allows investigators to obtain a search warrant in criminal cases. 
Second, 18 U.S.C. Sec. Sec. 1861-62 and 18 U.S.C. Sec. 2709 covers 
authority to compel third-parties to disclose records and physical 
evidence, a parallel to the provision of the Federal Rules of Criminal 
Procedure that allows the issuance of subpoenas in criminal 
investigations. Third, 18 U.S.C. Sec. Sec. 1801-22 and 18 U.S.C. 
Sec. Sec. 1841-45 cover the authority to conduct real-time monitoring 
over communications networks. Specifically, Sec. Sec. 1801-22 cover the 
authority to obtain the contents of communications, a parallel to the 
Wiretap Act used in criminal cases, and Sec. Sec. 1841-45 cover the 
authority to obtain non-content information, a parallel to the Pen 
Register Statute used in crime investigations.
    The debates over the FISA-related provisions of the Patriot Act 
focus primarily on the second type of authority: powers to compel third 
parties to produce physical evidence or disclose information. 
Specifically, critics object to the weak privacy regulations found in 
provisions such as Section 215 of the Patriot Act that address the 
government's power to compel third parties to produce physical evidence 
or disclose information in intelligence cases. For the most part, these 
weak privacy regulations match the standards applied in the analogous 
criminal context. For example, the Supreme Court has held that a grand 
jury subpoena can be issued if the order to compel seeks information 
that may be relevant to a criminal investigation. See United States v. 
R. Enterprises, Inc., 498 U.S. 292 (1991). This authority ``paints with 
a broad brush'' by design, permitting subpoenas to be issued ordering 
third parties to disclose physical evidence and information ``merely on 
suspicion that the law is being violated, or even just because . . . 
assurance [is sought] that it is not.'' Id. at 297 (quoting United 
States v. Morton Salt Co., 338 U.S. 632, 642-643 (1950)). The Supreme 
Court has justified this low standard on the ground that orders to 
compel evidence from third parties are preliminary investigative tools 
designed to determine if more invasive forms of surveillance are 
necessary. ``[T]he Government cannot be required to justify the 
issuance of a grand jury subpoena by presenting evidence sufficient to 
establish probable cause because the very purpose of requesting the 
information is to ascertain whether probable cause exists.'' See R. 
Enterprises, Inc., 498 U.S. at 297.
    The key question that the Committee must consider is whether a 
higher standard is appropriate for orders to compel in the context of 
intelligence investigations. The environment of intelligence 
investigations is somewhat different than the environment of criminal 
investigations. For example, subpoenas can be easily challenged and can 
be complied with under few time pressures, both of which are important 
explanations for the light legal regulations of subpoenas. See United 
States v. Dionisio, 410 U.S. 1, 10 (1973). At the same time, the harm 
that intelligence investigations seek to avoid is on average greater 
than the harm a typical criminal investigation seeks to deter. In 
addition, it is worth noting that Congress has opted to provide special 
privacy protections to protect some types of Internet communications 
and stored e-mails, raising the privacy protection beyond that provided 
by subpoenas. See 18 U.S.C. Sec. 2703. Perhaps Congress should consider 
a similar approach in the intelligence context, permitting subpoena-
equivalents to be used in some contexts but higher-threshold court 
orders to be used in other contexts that raise more substantial privacy 
concerns.

III. CONSTITUTIONALITY OF ORDERS TO COMPEL LIBRARY RECORDS AND INTERNET 
                             COMMUNICATIONS

    The statutory regulation of orders to compel evidence from third 
parties is particularly important because the Fourth Amendment offers 
little in the way of regulation of such orders. In this final section, 
I wish to explain the constitutionality of orders to compel, 
specifically in the context of library records and Internet 
communications obtained from third party providers. My conclusion is 
that orders to compel the disclosure of evidence from third parties 
ordinarily do not require probable cause. Under current law, for 
example, probable cause is not required to compel libraries to compel 
library records.
    The constitutionality of orders to compel evidence without probable 
cause can be justified on two alternative grounds. The first is that 
the disclosure of information to third parties has been held to 
eliminate Fourth Amendment protection in that information. As the 
Supreme Court stated in United States v. Miller, 425 U.S. 435, 443 
(1976):

          This Court has held repeatedly that the Fourth Amendment does 
        not prohibit the obtaining of information revealed to a third 
        party and conveyed by him to Government authorities, even if 
        the information is revealed on the assumption that it will be 
        used only for a limited purpose and the confidence placed in 
        the third party will not be betrayed.

    Under the disclosure rationale of Miller, third parties normally 
can be ordered to disclose records held by them without implicating the 
Fourth Amendment on the theory that the information was disclosed to 
them in the course of their coming into possession of the information.
    Applying this rationale, courts have uniformly held that an 
individual does not retain Fourth Amendment rights in non-content 
records that reveal how that individual used an account or service 
provided by a third party. A person may reasonably believe that the 
third party will not disclose the information to the police, but this 
alone does not create a Fourth Amendment ``legitimate'' or 
``reasonable'' expectation of privacy in the information. For example, 
a person does not retain a reasonable expectation of privacy in the 
information the telephone company retains about how a particular 
telephone account was used. See United States v. Fregoso, 60 F.3d 1314, 
1321 (8th Cir. 1995). Similarly, a customer does not retain a 
reasonable expectation of privacy in the information that Western Union 
retains about how a particular Western Union account was used. See In 
re Grand Jury Proceedings, 827 F.2d 301, 302-03 (8th Cir. 1987).
    The rationale also applies to library records. For example, in 
Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983), a library challenged a 
subpoena obtained by a State investigator who wanted to gather library 
circulation records to see if anyone had checked out books relating to 
cattle mutilation. The Iowa Supreme Court rejected the argument that an 
ordinary subpoena could not be used to collect library records:

          It is true the State's investigation was only preliminary; 
        and as Brown and the library board argue, no suspects were 
        identified nor was the search for information limited to any 
        named library patrons. This does not diminish the need for the 
        information, however, as we assume the whole purpose in 
        examining the record was to gain enough information so that the 
        investigation could be narrowed.
          The State's interest in well-founded criminal charges and the 
        fair administration of criminal justice must be held to 
        override the claim of privilege here. Brown and the library 
        board have cited no cases to us which have reached a contrary 
        conclusion under similar facts, and we have found none. Id. at 
        513.

    Although I have been unable to find any cases applying the Fourth 
Amendment to bookstore records, the same analysis would seem to apply 
to sales records kept by bookstores. To be sure, some State courts have 
interpreted their own State constitutional provisions to create greater 
privacy protections to regulate State police officers in the context of 
bookstores. See, e.g., Tattered Cover, Inc. v. City of Thornton, 44 
P.3d 1044 (Colo. 2002). But as far as I am aware, no court has held 
that a person retains a reasonable expectation of privacy in their 
bookstore customer records under the Fourth Amendment. As a general 
matter, the Fourth Amendment rules that apply to bookstores are the 
same as the Fourth Amendment rules that apply to other spaces. See, 
e.g., Maryland v. Macon, 472 U.S. 463 (1985).
    Finally, the same rationale applies to non-content Internet account 
records. Non-content Internet account records are disclosed to the ISP, 
and are not protected under the Fourth Amendment. See United States v. 
Hambrick, 55 F. Supp. 2d 504, 508 (W.D. Va. 1999), aff 'd, 225 F.3d 656 
(4th Cir. 2000) (unpublished opinion); United States v. Kennedy, 81 F. 
Supp. 2d 1103, 1110) (D. Kan. 2000) (same).
    This does not mean an individual can never have a reasonable 
expectation of privacy in information held by third parties. Existing 
caselaw focuses on whether the information transferred to the third-
party is disclosed to the third party or is sealed away from them. If a 
person gives third party a sealed container to hold on their behalf, 
then that person retains a reasonable expectation of privacy in the 
unexposed contents of that sealed container. See, e.g., United States 
v. Most, 876 F.2d 191, 197-98 (D.C. Cir. 1989); United States v. Barry, 
853 F.2d 1479, 1481-83 (8th Cir. 1988). For that reason, a person 
retains a reasonable expectation of privacy in the contents of sealed 
postal letters or packages sent via UPS or FedEx until the point that 
the letters and packages arrive at their destination. See Ex Parte 
Jackson, 96 U.S. (6 Otto) 727, 733 (1877); Walter v. United States, 447 
U.S. 649, 651 (1980).
    It is unclear under current law how the sealed/unsealed distinction 
applies to disclosed information such as Internet communications, 
particularly in the context of the contents of Internet communications. 
Courts may conclude that by sending an e-mail, the user discloses that 
e-mail to an ISP under Miller. On the other hand, courts may conclude 
that the contents of e-mail can be analogized to the contents of a 
sealed letter, and thus retain Fourth Amendment protection. At the 
current time, all we know is that the Fourth Amendment does not protect 
non-content information held by ISPs, and may or may not protect 
content information held by ISPs. Notably, this uncertainty is part of 
what led Congress to impose greater statutory protections in the case 
of e-mail contents sought in criminal investigations under 18 U.S.C. 
Sec. 2703(a).
    Finally, existing cases suggest that a subpoena or equivalent order 
to compel without probable cause may be constitutionally sufficient 
even if a suspect retains a reasonable expectation of privacy in the 
information. The case here are sparse, as the courts have decided few 
cases in which the government ordered a third party to disclose sealed 
packages. But the few cases on this question suggest that the 
government can subpoena information even if that information is 
protected by a reasonable expectation of privacy; no probable cause 
warrant is required. See United States v. Barr, 605 F. Supp. 114, 119 
(S.D.N.Y. 1985) (permitting subpoena served on third-party mail service 
for undelivered mail); United States v. Schwimmer, 232 F.2d 855, 861-63 
(8th Cir. 1956) (permitting subpoena served on third-party storage 
facility for private papers in facility's possession); Newfield v. 
Ryan, 91 F.2d 700, 702-05 (5th Cir. 1937) (permitting subpoena served 
on telegraph company for copies of defendants' telegrams).
    In light of these cases, current law points to the use of orders to 
compel evidence as being constitutional in the Fourth Amendment in most 
if not all cases without a requirement of probable case. The most 
difficult and least clear cases are orders to compel content records, 
such as the contents of e-mails and sealed letters. In most 
circumstances, however--and clearly in the case of non-content records 
such as library records--orders to compel evidence do not require 
probable cause under the Fourth Amendment.

                               __________

        Prepared Statement of Kate Martin, Director, Center for 
                       National Security Studies

    While effective counterterrorism and counterintelligence require 
that agencies share relevant information, sections 203 and 905 of the 
USA Patriot Act fail to address the real difficulties in such sharing: 
How to determine what information is useful for counterterrorism and 
counterintelligence; how to determine what information would be useful 
if shared; how to identify whom it would be useful to share it with; 
and how to ensure that useful and relevant information is timely 
recognized and acted upon. To the contrary, the approach of the Patriot 
Act--which can fairly be summarized as share everything with everyone--
can be counted on to obscure and make more difficult the real challenge 
of information sharing.
    Widespread and indiscriminate warehousing of information about 
individuals violates basic privacy principles. Amending the Patriot Act 
to require targeted rather than indiscriminate information sharing 
would restore at least minimal privacy protections and substantially 
increase the likelihood that the government could identify and obtain 
the specific information needed to prevent terrorist acts.
    Section 203 of the USA Patriot Act allows unrestricted sharing of 
sensitive information gathered by law enforcement agencies with the 
CIA, the NSA, immigration authorities, the Secret Service, and White 
House officials. Such sharing is not limited to officials with 
responsibility for terrorism matters, nor are there any safeguards 
regarding the subsequent use or dissemination of such information by 
such officials (so long as the use is within the official duties of the 
recipient). Section 203 allows the sharing of all information that is 
in any way related to any American's contacts with or activities 
involving any foreign government, group, or individual. (Section 203 
allows the sharing of ``foreign intelligence information,'' ``foreign 
intelligence'' and ``counterintelligence.'' The definition of ``foreign 
intelligence information'' included in section 203 is tied to threats 
and potential threats of terrorism, sabotage and clandestine 
intelligence-gathering, the national defense and foreign affairs, 
Sec. 203(a)(1)(iv), 203(b)(2)(C), and 203(d)(2). However, the 
definitions of ``foreign intelligence'' and ``counterintelligence'' are 
not even that limited.) Section 203 applies to all intercepts of 
telephone conversations. It applies to all confidential information 
obtained by a grand jury, which has the power to subpoena virtually any 
records or testimony from any person merely at the request of a 
prosecutor.
    Section 905 overlaps with section 203, but makes such sharing 
mandatory. It requires the Attorney General and the head of any other 
law enforcement agency to ``expeditiously disclose'' to the Director of 
Central Intelligence (and now the new Director of National 
Intelligence) all ``foreign intelligence'' acquired during a law 
enforcement investigation. The Attorney General may exempt only those 
classes of foreign intelligence whose disclosure ``would jeopardize an 
ongoing law enforcement investigation or impair other significant law 
enforcement interests.'' Section 905 suffers from the same defects as 
section 203: it covers the most sensitive grand jury information and 
wiretap intercepts regardless of relevance, and contains no limits on 
the use or redisclosure of the information by intelligence agency 
staff. ``Foreign intelligence'' includes anything related to any 
American's contacts with a foreign government, group or person.
    The Act sets no standards or safeguards for use of this 
information. While it requires the Attorney General to issue rules, 
those rules simply require that information concerning citizens and 
legal permanent residents be marked as such. Existing intelligence 
agency protocols are so broad as to allow intelligence agencies to keep 
all information obtained under section 203 or 905. See EO 12333 section 
2.3.
    Two and a half years after the passage of the Patriot Act, the 9/11 
Commission staff confirmed that ``there is no national strategy for 
sharing information to counter terrorism.'' The Department of Justice 
has yet to explain how these Patriot Act provisions will focus the 
bureaucracies on identifying what information is useful to locate 
actual terrorists, analyzing that information, and determining what 
actions to take based on the information. To the contrary, the 
provisions essentially direct agencies simply to dump massive volumes 
of unanalyzed information on other agencies. They facilitate the 
construction of a vast intelligence data base on Americans. And they 
effect an extraordinary change in the capability and authority of the 
foreign intelligence agencies, including the CIA, to keep information 
on Americans.
    Congress should amend both sections 203 and 905 to provide some 
simple privacy safeguards, which will also ensure that information 
sharing is done in a more effective way.
    Current law offers no protections against abuse. Too much 
information may be turned over to the CIA and others, including 
virtually all information about any American's contacts with any 
foreigner or foreign group, including humanitarian organizations, for 
example. Existing rules provide virtually no protection against 
authorized government compilation of dossiers on millions of Americans 
and use of those dossiers in intelligence operations.
    Congress could provide some modest protections. The amendments 
proposed below--limiting shared information to information relating to 
terrorism or counterintelligence, limiting its dissemination to 
officials working on those matters, requiring judicial approval, and 
requiring marking to prevent redissemination--would not interfere with 
the needs of counterterrorism or counterintelligence.
    While the Justice Department claims that any modifications to the 
information-sharing provisions would mean that agencies ``would be 
required to identify proper legal authority prior to sharing or 
disseminating information outside of the collecting agency or 
community,'' such objection misses the point. See Justice Department, 
USA Patriot Act: Sunsets Report, April 2005. The proposed amendments 
would not change the legal authorities for sharing information, they 
would simply help ensure that information is actually analyzed and 
determined to be useful to counterterrorism and counterintelligence. 
None of the uses of information outlined by the Justice Depaitinent in 
its Patriot Act report would be prohibited because all of them relate 
to terrorism.
    But Congress should act to ensure that those agencies which first 
obtain information and are best positioned to understand its context do 
the work necessary to determine whether the information may be useful 
or relevant to other agencies. When in doubt, they should of course err 
on the side of transferring the information, but they should exercise 
some judgment in doing so. Ideally, they should describe the potential 
usefulness of the information when distributing it to other agencies. 
We note that intelligence officials are already reporting that under 
the current regime there is too much indiscriminate sharing of useless 
information.
    Specifically Congress should consider the following modifications.
    1. When information is gathered pursuant to judicial power, the 
court's approval should be required before transferring the information 
to intelligence agencies, White House personnel, or other law 
enforcement agencies in order to ensure that there is some real need 
for more widely distributing the information. Accordingly, court 
approval for sharing criminal wiretap intercepts of conversations and 
e-mail and secret grand jury information should be obtained, except 
when there is no time to obtain such approval in order to prevent an 
imminent terrorist act or the flight of a suspect.
    2. The information that should be shared with the intelligence 
agencies, the White House, etc., should be limited to information 
relevant to terrorism or counterintelligence, rather than all 
information concerning any foreign contacts, the vast majority of which 
have nothing to do with terrorism. If the information transferred by 
law enforcement to the intelligence community were limited to ``foreign 
intelligence information'' as that term is defined in the Foreign 
Intelligence Surveillance Act, it would offer some protection against 
the CIA and others constructing a data base on the domestic activities 
of Americans. This safeguard was included in the Patriot Act, H.R. 2975 
(107 Cong.), as approved by the House Committee on the Judiciary in 
October 2001.\1\
---------------------------------------------------------------------------
    \1\ See, H.R. REP. No. 236, 107th Cong., 1st Sess., pt. 1(2001), at 
8, available at http://judiciary.house.gov/legacy/107-236p1.pdf.
---------------------------------------------------------------------------
    3. The information should be shared only with those officials who 
are directly involved in terrorism or counterintelligence.
    4. There should be procedures for marking and safeguarding the 
shared information so these limits can be enforced and to protect 
against the redissemination of the information beyond these limits, 
much as classified information is marked and stored. Confidential grand 
jury information should be marked as such and intercepts of Americans' 
conversations and e-mails should be marked to prohibit indiscriminate 
circulation.

                               CONCLUSION

    One of the most basic protections against government abuses has 
been the principle that a government agency should only collect 
information about individuals that it needs for a specific and 
articulated purpose, should use it only for the purposes for which it 
was collected, should not keep it any longer than necessary, and should 
not share it with other government agencies except for very good 
reasons. The Patriot Act violates that principle by adopting the 
approach that myriad government agencies should collect, share and 
maintain forever as much information on as many people as possible. 
Requiring the minimal protection that the government articulate why 
specific information could be useful for counterterrorism or 
counterintelligence before widely distributing it would help keep the 
government focused on the information needed to locate the next 
attackers, instead of ware-
housing personal information about millions of Americans.

    Chairman Roberts. I now recognize the distinguished Vice 
Chairman.
    Vice Chairman Rockefeller. Thank you, Mr. Chairman. I will 
follow the same procedure you have. I think it's a wise one. 
I'm ready to hear the witnesses.
    [The prepared statement of Vice Chairman Rockefeller 
follows:]
   Prepared Statement of Hon. John D. Rockefeller III, Vice Chairman
    This week and next the Committee will hold two open hearings on the 
Patriot Act.
    The Patriot Act, which was enacted soon after the attacks of 
September 11, 2001, contains 10 titles. Nine of those titles are 
permanent law.
    One title of the Patriot Act--Title II on Enhanced Surveillance 
Procedures--has 16 provisions that will cease to have effect, or 
sunset, on December 31, 2005. In addition, the recently enacted 
Intelligence Reform Act authorizes the use of the Foreign Intelligence 
Surveillance Act in the case of so-called ``lone wolf '' terrorists. 
That new authority is also subject to sunset at the end of this year.
    Congress should resolve two questions this year: first, on the 
basis of experience or further reflection since September 11, 2001, 
should any of the expiring authorities be amended; and second, as 
originally enacted or as amended, should they be made permanent?
    The process of evaluation of the expiring provisions is under way. 
In response to a request from Senator Feinstein, the Department of 
Justice has submitted to Congress a lengthy ``Sunsets Report'' which 
sets forth a case for each of the 16 provisions of the Patriot Act that 
will sunset at the end of this year.
    The Judiciary Committee has begun a series of Patriot Act hearings. 
It heard 2 weeks ago from the Attorney General and the FBI Director, 
something our Committee will do next week on April 27th. We have been 
informed that the Judiciary Committee plans to hold an additional 
hearing in May.
    Members of the Senate have introduced bills that propose amendments 
to expiring Patriot Act provisions. There are also proposals to amend 
other provisions of the Act. On our Committee, Senator Corzine has 
joined a bipartisan group of 11 Members in cosponsoring S. 737, the 
``Security and Freedom Enhancement Act,'' a bill introduced by Senator 
Craig to amend several authorities in the Patriot Act. Senators Wyden 
and Corzine are cosponsors of S. 317, the ``Library, Bookseller, and 
Personal Records Privacy Act.''
    In short, Congress has begun a serious effort to examine the 
expiring provisions of the Patriot Act. There were good reasons to act 
quickly after the September 11 attacks. Because of the need for speed 
then, it was wise to require, through a sunset provision, that there be 
a further evaluation of portions of the Act after several years of 
experience.
    We now have an opportunity to assess carefully what surveillance 
and search powers are needed in gathering intelligence about terrorism 
and other threats. I look forward to hearing testimony and working with 
colleagues on our Committee and on the Judiciary Committee. Our goal, 
of course, should be to ensure that there is a sound, long-term basis 
for the effective gathering of intelligence in a manner consistent with 
our Constitution and values.
    Our panel today will assist us in beginning that effort. The 
members of the panel--Jim Dempsey of the Center for Democracy and 
Technology, Heather Mac Donald of the Manhattan Institute for Policy 
Research, and Gregory Nojeim of the ACLU are all distinguished 
participants in the public debate about the Patriot Act. I look forward 
to their testimony today and to next week's testimony from the 
Administration.
    In addition, the Committee has received four statements for the 
record: (1) from former Attorney General Edwin Meese and Paul 
Rosenzweig of the Heritage Foundation; (2) from former Congressman Bob 
Barr, chairman of a recently created coalition named Patriots to 
Restore Checks and Balances; (3) from Kate Martin, Director of the 
Center for National Security Studies; and (4) Orin Kerr, Associate 
Professor of Law at the George Washington University Law School.
    I am pleased that the Chairman has asked for and obtained unanimous 
consent to place these additional statements on our record of this 
hearing. The statements will make an important contribution to the 
Committee's understanding of the issues before us. I thank the authors 
of each and the witnesses who are here today for their assistance to 
the Committee.

    Chairman Roberts. We will go in the order of introduction. 
Mr. Nojeim, would you like to open up, please?
    [The prepared statement of Mr. Nojeim follows:]

                Prepared Statement of Gregory T. Nojeim

    Chairman Roberts, Vice Chairman Rockefeller and Members of the 
Committee:
    I am pleased to appear before you today on behalf of the American 
Civil Liberties Union and its more than 400,000 members, dedicated to 
preserving the principles of the Constitution and Bill of Rights at 
this rare, and crucial, public oversight hearing on USA PATRIOT Act of 
2001.\1\
---------------------------------------------------------------------------
    \1\ Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) 
Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
---------------------------------------------------------------------------
    The Patriot Act was passed by Congress in 2001 just 6 weeks after 
the terrorist attacks of September 11. Although the act passed by wide 
margins, members on both sides of the aisle expressed reservations 
about its impact on fundamental freedoms and civil liberties. As a 
result, Congress included a ``sunset clause'' providing that over a 
dozen provisions will expire on December 31, 2005, if Congress does not 
act to renew them.
    A number of the provisions that will expire are within the 
jurisdiction of this committee, including some of the most 
controversial provisions. This statement's main focus is on those 
Patriot Act intelligence provisions that pose the greatest risk for 
civil liberties.\2\
---------------------------------------------------------------------------
    \2\ This statement is adapted from a longer memorandum that 
examines a number of other Patriot Act and related issues in greater 
depth, including immigration, material witness and ``enemy combatant'' 
detentions, criminal ``sneak and peek'' search warrants, the crime of 
material support of terrorism and the definition of domestic terrorism. 
See Memo to Interested Persons Outlining What Congress Should Do About 
the Patriot Act Sunsets, March 28, 2005, available at: http://
www.aclu.org/news/NewsPrint.cfm?ID=17846&c=206.
---------------------------------------------------------------------------
    Congress should use the upcoming debate over the renewal of parts 
of the Patriot Act as an opportunity to reassert its rightful role in 
determining law enforcement and national security policy in the post-9/
11 context, which has waned as the power of the executive branch has 
waxed. Before re-authorizing any intelligence power, this committee 
should require the executive branch to meet the standard articulated by 
the bipartisan 9-11 Commission.
     First, Congress should re-examine the specific provisions 
that sunset, taking care not to renew any provision unless the 
government can show ``(a) that the power actually materially enhances 
security and (b) that there is adequate supervision of the executive's 
use of the powers to ensure protection of civil liberties.'' \3\
---------------------------------------------------------------------------
    \3\ Final Report of the National Commission on Terrorist Attacks 
Upon the United States (``The 9/11 Commission Report'') 294-95 (2004) 
(boldfaced recommendation)
---------------------------------------------------------------------------
     Second, ``[i]f the power is granted, there must be 
adequate guidelines and oversight to properly confine its use.'' \4\
---------------------------------------------------------------------------
    \4\ Id.
---------------------------------------------------------------------------
     Third, because the issues of national security and civil 
liberties posed by anti-terrorism powers that are not part of the 
Patriot Act sunset are at least as serious as any posed by those 
provisions that do sunset, Congress should undertake a broader review 
of anti-terrorism powers, both within and outside of the Patriot Act, 
using the same standard of review.
     Finally, Congress should resist efforts by the executive 
branch to evade searching review of its existing powers, both under the 
Patriot Act and under other legal authorities, by shifting the debate 
to new anti-terrorism legislation, such as proposals for administrative 
subpoenas or new death penalties.
    Congress may not be able to fully review or assess the 
effectiveness, and impact on civil liberties, of some anti-terrorism 
powers that the executive branch was granted in the Patriot Act. The 
lack of meaningful information about the use of many powers is 
sometimes a direct result of excessive secrecy in the executive branch, 
and sometimes the result of necessary secrecy. In any case where 
sufficient information is not available to undertake a thorough review, 
Congress should set a new sunset date and impose additional reporting 
requirements to facilitate a proper review, rather than cede those 
powers permanently to the executive branch.
    Because many domestic intelligence authorities operate in complete 
secrecy, this committee plays a particularly critical role in 
determining whether specific intelligence powers ``actually materially 
enhance security.'' Only an intensive and painstaking process of 
examining the facts regarding the use of these powers can answer that 
question.
    This committee was created in large part to perform just that 
function. It should not be content with general statements of the 
Patriot Act's usefulness or selective accounts of how certain sections 
have been used. Rather, we hope it will aggressively and thoroughly 
examine whether administration claims that certain powers are vital to 
the prevention of terrorism are born out by specific facts.
    Until now, the government has fallen short. Just last week, 
Judiciary Chairman Arlen Specter expressed frustration at the Justice 
Department's inability to provide such facts even in a classified 
setting. ``This closed-door briefing was for specifics,'' Senator 
Specter explained. ``They didn't have specifics.'' \5\
---------------------------------------------------------------------------
    \5\ Eric Lichtblau, Specter Voices Frustration Over Briefing on 
Patriot Act, N.Y. Times, Apr. 13, 2005.
---------------------------------------------------------------------------
   CLEAR EVIDENCE OF PATRIOT ACT ABUSES, BUT EXTENT OF PROBLEM STILL 
                                 SECRET

    In its three and one-half years, the government has abused and 
misused the Patriot Act while seeking significant expansions of powers 
granted under the Patriot Act.
    Secrecy permeates the Patriot Act, particularly in its expansions 
of intelligence authorities. Many powers are accompanied by statutory 
gag orders. Moreover, the administration has taken the posture that 
information that is embarrassing to it must be kept secret for reasons 
of national security. For these reasons, it has been extremely 
difficult to uncover information about how the Patriot Act has been 
used, and even information about whether particular sections have been 
used at all. The ACLU has repeatedly sought this information in 
letters, requests under the Freedom of Information Act (FOIA) and in 
FOIA litigation.
    Despite the efforts of the executive branch to cover up information 
about how controversial provisions of the Patriot Act have been used, 
some information has become public. This information is disturbing in 
and of itself, and may be emblematic of other abuses that have not yet 
become public. Appended to this testimony are some examples of abuses 
of intelligence powers expanded under the Patriot Act, and of the chill 
on the exercise of First Amendment rights that such powers can create.

   PATRIOT ACT INTELLIGENCE POWERS: GREATER SECRECY, LESS MEANINGFUL 
                                 REVIEW

    In the debate over the Patriot Act, we ask the committee to pay 
particular attention to the most intrusive expanded intelligence 
surveillance techniques.
Secret Records Searches Without Probable Cause or an Ability to 
        Challenge: Library Records, Other ``Tangible Things,'' and 
        National Security Letters
    Perhaps no sections of the Patriot Act have become more 
controversial than the sections allowing the government secretly to 
obtain confidential records in national security investigations--
investigations ``to protect against international terrorism or 
clandestine intelligence activities.''
    National security investigations are not limited to gathering 
information about criminal activity. Instead, they are intelligence 
investigations designed to collect infounation the government decides 
is needed to prevent--``to protect against''--the threat of terrorism 
or espionage. They pose greater risks for civil liberties because they 
potentially involve the secret gathering of information about lawful 
political or religious activities that Federal agents believe may be 
relevant to the actions of a foreign government or foreign political 
organization (including a terrorist group).
    The traditional limit on national security investigations is the 
focus on investigating foreign powers or agents of foreign powers. 
Indeed, the ``foreign power'' standard is really the only meaningful 
substantive limit for non-criminal investigations given the astonishing 
breadth of information a government agent might decide is needed for 
intelligence reasons. The Patriot Act eliminated this basic limit for 
records searches, including the power under the Foreign Intelligence 
Surveillance Act (FISA) to obtain with a FISA court order any records 
or other ``tangible things,'' and the FBI's power to obtain some 
records without any court review at all.
     Section 215 of the Patriot Act allows the government to 
obtain any records, e.g., library and bookseller records, medical 
records, genetic information, membership lists of organizations, and 
confidential records of refugee service organizations, as well as any 
other ``tangible things'' with an order from the FISC. The order is 
based merely on a certification by the government that the records are 
``sought for'' a national security investigation and the judge is 
required to issue the order. The order contains an automatic and 
permanent gag order. Section 215 is subject to the sunset clause. Two 
weeks ago, the government acknowledged for the first time that Section 
215 has been used, that it has been used 35 times, and that it was used 
to obtain credit, apartment, ISP and other records, but not library or 
medical records.
     Section 505 of the Patriot Act expanded the FBI's power to 
obtain some records in national security investigations without any 
court review at all. These ``national security letters'' can be used to 
obtain financial records, credit reports, and telephone, Internet and 
other communications billing or transactional records. The letters can 
be issued simply on the FBI's own assertion that they are needed for an 
investigation, and also contain an automatic and permanent 
nondisclosure requirement. Section 505 does not sunset.
    Although such demands never required probable cause, they did 
require, prior to the Patriot Act, ``specific and articulable facts 
giving reason to believe'' the records pertain to an ``agent of a 
foreign power.'' The Patriot Act removed that standard for issuing 
records demands in national security investigations.
    As a result, a previously obscure and rarely used power can now be 
used far more widely to obtain many more records of American citizens 
and lawful residents. Because the requirement of individual suspicion 
has been repealed, records powers can now be used to obtain entire data 
bases of private information for ``data mining'' purposes--using 
computer software to tag law abiding Americans as terrorist suspects 
based on a computer algorithm.
    These records search provisions are the subject of two court 
challenges by the ACLU. In Muslim Community Association of Ann Arbor v. 
Ashcroft, No. 03-72913 (E.D. Mich.), the ACLU has challenged section 
215 of the Patriot Act First and Fourth Amendment grounds. As explained 
in the case example, the ACLU's challenge has uncovered serious and 
unconstitutional chilling effects of section 215 on the exercise of 
basic freedoms. The district court has not yet ruled in this case.
    In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a Federal 
district court struck down a ``national security letter'' records power 
expanded by the Patriot Act, agreeing with the ACLU that the failure to 
provide any explicit right for a recipient to challenge a national 
security letter search order violated the Fourth Amendment and that the 
automatic secrecy rule violated the First Amendment. The case is now on 
appeal before the United States Court of Appeals for the Second 
Circuit.
    There has been some confusion about whether Doe v. Ashcroft struck 
down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck 
down, in its entirety, 18 U.S.C. Sec. 2709(b), the national security 
letter authority for customer records of communications service 
providers, as amended by section 505(a) of the Patriot Act. The court 
referred repeatedly to the Patriot Act in its opinion. To be clear, the 
court invalidated all of section 505(a) of the Patriot Act. It is 
simply inaccurate to imply that the court's decision was unrelated to 
the Patriot Act, or that it did not strike down a provision of the 
Patriot Act. If the court's decision is sustained on appeal, section 
505(a) of the Patriot Act will no longer have any force or effect.\6\
---------------------------------------------------------------------------
    \6\ While the use of national security letters are secret, the 
press has reported a dramatic increase in the number of letters issued, 
and in the scope of such requests. For example, over the 2003-04 
holiday period, the FBI reportedly obtained the names of over 300,000 
travelers to Las Vegas, despite casinos' deep reluctance to share such 
confidential customer information with the government. It is not clear 
whether the records were obtained in part with a national security 
letter, with the threat of such a letter, or whether the information 
was instead turned over voluntarily or to comply with a subpoena.
---------------------------------------------------------------------------
    Both FISA records demands and national security letters can be used 
to obtain sensitive records relating to the exercise of First Amendment 
rights. A FISA record demand could be used to obtain a list of the 
books or magazines someone purchases or borrows from the library. A 
FISA record demand could be used to obtain the membership list of a 
controversial political or religious organization. A national security 
letter could be used to monitor use of a computer at a library or 
Internet cafe under the government's theory that providing Internet 
access (even for free) makes an institution a ``communications service 
provider'' under the law.
    While both national security letters and FISA records demands 
cannot be issued in an investigation of a United States citizen or 
lawful permanent resident if the investigation is based ``solely'' on 
First Amendment activities, this provides little protection. An 
investigation is rarely, if ever, based ``solely'' on any one factor; 
investigations based in large part, but not solely, on constitutionally 
protected speech or association are implicitly allowed. An 
investigation of a temporary resident can be based ``solely'' on First 
Amendment activities, and such an investigation of a foreign visitor 
may involve obtaining records pertaining to a United States citizen. 
For example, an investigation based solely on the First Amendment 
activities of an international student could involve a demand for the 
confidential records of a student political group that includes United 
States citizens or permanent residents.
    The expanded scope and broader use of both FISA records demands and 
national security letters has exacerbated other constitutional problems 
with the statute under both the First Amendment and the Fourth 
Amendment. Unlike almost every other type of subpoena or records 
demand, neither statute contains any explicit right to file a motion to 
quash the demand before a court on the ground that the demand is 
unreasonable or seeks privileged information. Similarly, both types of 
records demands bar the recipient from disclosing that the demand has 
been issued. This permanent secrecy order is imposed automatically, in 
every case, without any review by a judge, without any right to 
challenge. The district court ruling in Doe v. Ashcroft makes clear 
these problems are severe enough to invalidate the entire national 
security letter statute--not just the portions amended by the Patriot 
Act.
    A power to secretly obtain records of ordinary Americans--i.e., 
Americans who are not suspected of involvement with any foreign 
government or terrorist organization--outside of a criminal 
investigation is a vast power. The government bears the burden in 
showing such a power ``actually materially enhances security.'' If the 
government sustains this burden, it is clear, as even Attorney General 
Gonzales has acknowledged, that additional safeguards must be added.

    Recommendation: Congress should bring intelligence records powers 
(national security letters and FISA records search orders) back into 
line with basic constitutional freedoms. Congress should enact the SAFE 
Act, which restores the requirement of individual suspicion, provides a 
right to challenge records demands, limits the secrecy order and 
provides for a right to challenge the secrecy order.

    The SAFE Act (``Security and Freedom Enhancement Act,'' S. 737) 
restores the requirement of ``specific and articulable facts giving 
reason to believe'' the records involve an ``agent of a foreign power'' 
for both FISA records demands and national security letters. In 
addition, the SAFE Act makes explicit the right to file a motion to 
quash the records demands because they are unreasonable, contrary to 
law, or seek privileged information. The SAFE Act also sets standards 
for a judicially imposed, temporary secrecy order that can be 
challenged by the recipient of a records demand. Finally, the SAFE Act 
provides a right to notice, and an opportunity to challenge, before 
information from a FISA records search or national security letter 
search can be used in a court proceeding.
    As the Attorney General concedes is necessary, Congress should 
certainly make clear what the government has now conceded should be the 
law--that the secrecy order does not prevent recipients from discussing 
records demands internally or obtaining legal advice. Without public 
scrutiny, the potential for unreasonable ``fishing expeditions'' using 
a secret, unreviewable records power is simply too great.
Secret Searches and Surveillance of Homes and Offices
    A government search or electronic surveillance of a home or office 
generally requires a warrant based on probable cause of crime under the 
Fourth Amendment. As a general rule, the owner of the home or office is 
entitled to notice of the search. Foreign intelligence searches have 
been an exception to this rule. They do not require criminal probable 
cause and forbid notice to the owner.
    The special power to secretly search a home or office, without ever 
notifying the owner, is among the most intrusive domestic surveillance 
powers available to the Federal Government. Such ``black bag jobs'' 
were the hallmark of national security investigations run amok, 
including COINTELPRO and other investigations of civil rights 
activists, anti-war activists, and other Americans who in the end were 
guilty of nothing more than peacefully opposing government policies.
    The inappropriate use of a secret search power, without court 
oversight, led directly to warrantless wiretaps of civil rights leaders 
and, eventually, an unauthorized ``black bag job'' at the Watergate, 
sending a shock wave through the Nation and prompting thorough and 
searching reviews of the intelligence community. These reviews led 
Congress to enact important reforms of intelligence powers, including 
the passage of the Foreign Intelligence Surveillance Act (FISA) and the 
creation of this committee.
    While FISA secret searches and wiretaps pre-date the Patriot Act, 
two vital protections that cabined such searches until 2001 have been 
seriously eroded by amendments that are subject to the December 31, 
2005 sunset. First, section 218 of the Patriot Act allowed the 
government to obtain a FISA secret search order even where the 
``primary purpose'' of the search was not foreign intelligence. Second, 
for searches of so-called ``lone wolf '' terror suspects, section 6001 
of the Intelligence Reform and Terrorism Prevention Act of 2004\7\ 
eliminated, for the first time, the basic requirement applied by the 
Foreign Intelligence Surveillance Court for all FISA secret searches 
and surveillance: that probable causes exists that the target of the 
search is a foreign power or agent of foreign power.
---------------------------------------------------------------------------
    \7\ Pub. L. No. 108-458, 118 Stat. 3638.
---------------------------------------------------------------------------
    Section 218 of the Patriot Act. This provision of the Patriot Act 
takes aim at a provision of FISA designed to ensure against the 
government using FISA improperly as an end-run around the Fourth 
Amendment for criminal suspects. Prior to the Patriot Act, government 
officials had to certify that the primary purpose of a secret FISA 
search was to obtain foreign intelligence.\8\ Section 218 of the 
Patriot Act weakened this standard, allowing agents to obtain these 
warrants so long as they certify that ``a significant purpose'' of the 
search is foreign intelligence.
---------------------------------------------------------------------------
    \8\ The pre-Patriot Act statute required the government to certify 
that foreign intelligence was ``the purpose'' of the search. Where the 
government had both foreign intelligence and criminal investigation 
purposes, courts interpreted this language to mean that foreign 
intelligence purpose had to be the ``primary purpose'' of the search; 
otherwise, the government should use its criminal powers. See In Re 
Sealed Case, 310 F.3d 717, 726 (For. Intel. Surv. Ct. Rev. 2002) 
(collecting pre-Patriot Act cases).
---------------------------------------------------------------------------
    The danger of section 218's lower standard is that the government 
will cut corners in criminal cases. Because foreign intelligence no 
longer must be the primary purpose of the search, the government can 
use FISA as a substitute for traditional criminal powers. As a result, 
now the government can--for what are primarily criminal searches--evade 
the Fourth Amendment's constraints of probable cause of crime and 
notice to the person whose property is being searched.
    Brandon Mayfield is a case where such corners may have been cut. As 
described in more detail in the appendix, Mr. Mayfield is a Portland, 
Oregon resident who is a convert to Islam and a civil rights advocate. 
Mr. Mayfield was wrongly accused by the government of involvement in 
the Madrid bombing as a result of a evidence, including a mistaken 
fingerprint identification, that fell apart after the FBI 
re-examined its case following its arrest and detention of Mr. Mayfield 
on a material witness warrant.
    As Attorney General Gonzales acknowledged at a hearing before the 
Senate Judiciary Committee, Section 218 of the Patriot Act was 
implicated in the secret search of Mr. Mayfield's home. The FBI 
secretly entered the home of an innocent man it wrongly suspected of a 
crime without a warrant based on criminal probable cause. It did so 
because the Patriot Act had made it easier to conduct such a search 
with a FISA search order. While there, agents took hundreds of 
photographs, copied four computer hard drives and seized 10 DNA 
samples. Prior to the Patriot Act, it is doubtful the search could have 
taken place under FISA, and instead would likely have been governed by 
normal search warrant procedures and the exacting standard of criminal 
probable cause.

    Recommendation: Congress should permit limited access to FISA 
applications, consistent with national security, where FISA-gathered 
information is used in a criminal case. Congress can do so by enacting 
legislation applying CIPA to FISA surveillance. It should also ensure 
that prosecutors do not direct intelligence surveillance.

    If the government is able to meet the burden of showing section 218 
``actually materially enhances security,'' the Mayfield case and the 
danger of future abuses shows the need for additional safeguards. 
Without re-building the much-maligned ``wall'' between foreign 
intelligence and criminal investigations, Congress should follow the 
approach of the Foreign Intelligence Surveillance Court (FISC), 
restoring its power to serve its proper supervisory function to prevent 
the misuse of FISA. Congress should empower the court to make sure 
foreign intelligence investigations are not directed by Federal 
prosecutors, although prosecutors and criminal investigators should be 
allowed full briefings on such investigations.
    In its first (and, so far, only) public opinion, the FISC, in an 
opinion by Judge Lamberth, expressed alarm at the fact that ``criminal 
prosecutors will tell the FBI when to use FISA (perhaps when they lack 
probable cause)'' of crime, and noting its highly intrusive aspects, 
including:
     a foreign intelligence standard instead of a criminal 
standard of probable cause;
     use of the most advanced and highly intrusive techniques 
for intelligence gathering; and
     surveillances and searches for extensive periods of time; 
based on a standard that the U.S. person is only using or about to use 
the places to be surveilled and searched, without any notice to the 
target unless arrested and prosecuted, and, if prosecuted, no 
adversarial discovery of the FISA applications and warrants.'' \9\
---------------------------------------------------------------------------
    \9\ In re All Matters Submitted to the Foreign Intelligence 
Surveillance Court, 218 F. Supp. 2d 611, 624 (For. Intel. Surv. Ct. 
2002).
---------------------------------------------------------------------------
    Judge Lamberth observed that the FISC's members had ``specialized 
knowledge,'' had reviewed ``several thousand FISA applications,'' and 
were ``mindful of the FISA's pre-eminent role in preserving our 
national security, not only in the present national emergency, but for 
the long term as a constitutional democracy under the rule of law.'' 
\10\ It reasoned that, as a result, it retained supervisory powers to 
protect against the misuse of FISA for criminal investigative purposes.
---------------------------------------------------------------------------
    \10\ Id. at 615.
---------------------------------------------------------------------------
    The Foreign Intelligence Surveillance Court of Review reversed this 
opinion, reasoning that section 218 of the Patriot Act had stripped the 
FISC of this role.\11\ If Congress reauthorizes section 218, it should 
amend it to make clear that the provision does not prohibit the FISC 
from adopting guidelines to prevent the direction and control of 
foreign intelligence investigations by prosecutors for law enforcement 
ends.
---------------------------------------------------------------------------
    \11\ See In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. 
Rev. 2002).
---------------------------------------------------------------------------
    Congress should also explore a remedy for one of the serious 
problems inherent in making FISA searches more available in what are 
primarily criminal investigations: the lack of ``adversarial discovery 
for FISA applications and warrants.'' This is in marked contrast to the 
extensive discovery available to criminal defendants, enabling the 
court to hold government officials accountable for unlawful searches 
and surveillance.
    Congress should enact legislation making available to the defense 
such ``adversarial discovery of FISA applications and warrants'' using 
the carefully crafted Classified Information Procedures Act (CIPA). 
Last Congress, the ACLU strongly supported S. 1552, the Protecting the 
Rights of Individuals Act, sponsored by Senators Lisa Murkowsky (R-AK) 
and Ron Wyden (D-OR), which included this provision at section 9. An 
identical provision was also included as section 401 of S. 2528, the 
Civil Liberties Restoration Act, sponsored by Senators Kennedy (D-MA), 
Corzine (D-NJ) and Leahy (D-VT), among others.
    Section 6001 of the Intelligence Reform and Terrorism Prevention 
Act of 2004. Section 6001 further eroded the basic safeguards included 
in FISA by authorizing, for the first time, secret searches and 
surveillance of homes and businesses where there is neither criminal 
probable cause nor probable case that the person is acting on behalf of 
any foreign power.
    FISA rests what would otherwise plainly be unconstitutional 
searches (because they are not based on probable cause of crime) on an 
alternate showing: probable cause that those individuals are acting on 
behalf of a foreign power. By eliminating this alternate showing for 
non-citizen visitors to the United States suspected of being ``lone 
wolf '' terrorists, we believe section 6001 violates the Fourth 
Amendment.
    Moreover, section 6001 was not needed to address deficiencies in 
the use of FISA search powers uncovered after September 11, its 
original rationale. The National Commission on Terrorist Attacks Upon 
the United States (``9-11 Commission'') uncovered a number of serious, 
structural breakdowns in the intelligence community prior to September 
11. A lack of legal authority to collect intelligence information was 
not among its findings.
    Section 6001 has erroneously been described as necessary to respond 
to the government's failure to seek a warrant to search the laptop 
computer of suspected terrorist Zacarias Moussaoui. The 9-11 Commission 
rejected that conclusion, finding that government agents 
``misunderstood and misapplied'' guidelines regarding FISA search 
warrants, and that these mistakes contributed to their failure to seek 
either a criminal or FISA warrant in the Moussaoui case.\12\ The 9-11 
Commission did not recommend any change to existing legal authorities, 
including FISA.
---------------------------------------------------------------------------
    \12\ Final Report of the National Commission on Terrorist Attacks 
Upon the United States 79, 540 n.94 (2004).
---------------------------------------------------------------------------
    In a February 2003 report on FISA oversight, Senators Leahy, 
Grassley and Specter noted, with respect to this proposed change, that 
the Department of Justice was unable to provide even a single case, 
even in a classified setting, that explained why what became section 
6001 was needed. As the report states, ``In short, DOJ sought more 
power but was either unwilling or unable to provide an example as to 
why.''
    Section 6001 could do serious harm to the government's anti-
terrorism efforts if a court concludes that the surveillance it 
authorizes violates the Fourth Amendment, making the evidence obtained 
by such surveillance inadmissible. The ``foreign power'' standard--
which section 6001 eliminates for non-citizens--is integral to the 
rationale given by the Foreign Intelligence Surveillance Court of 
Review in its opinion upholding FISA surveillance against a 
constitutional challenge.\13\
---------------------------------------------------------------------------
    \13\ See In re Sealed Case, supra, at 738 (relying on ``foreign 
power'' probable cause to hold that FISA secret searches and 
surveillance satisfy Fourth Amendment standards of reasonableness).
---------------------------------------------------------------------------
    This committee should review carefully actual applications for 
secret searches or surveillances under the new power provided by 
section 6001 to determine whether such searches or surveillance could 
have been undertaken using traditional criminal powers, and whether 
section 6001 ``actually materially enhances security.'' If the 
government satisfies this test and Congress decides to re-authorize 
section 6001, Congress should consider additional safeguards.

    Recommendation: Congress should modify section 6001 to provide a 
presumption that an individual who is involved in international 
terrorism is acting for a foreign power. This compromise, offered by 
Senator Dianne Feinstein (D-CA) to legislation that became section 
6001, would give the Foreign Intelligence Surveillance Court more 
discretion to ensure against misuse of FISA.

    When S. 113, the legislation that became section 6001, was being 
debated in the Senate, Senator Dianne Feinstein offered a compromise 
that the ACLU supported. The Feinstein amendment would have formally 
preserved the FISA requirement that the FISA court determines that the 
target of a surveillance order is an agent of a foreign power before a 
surveillance order is authorized, but it allowed the court to presume 
such agency based on conduct that does not necessarily show such 
agency. Because the amendment would preserve some discretion on the 
part of the FISA court to determine that an individual should not be 
subject to surveillance because they are not, in fact, an agent of a 
foreign power, the ACLU urges Congress to adopt the Feinstein amendment 
if it decides to reauthorize section 6001.
Wiretapping and Electronic Surveillance Without Judicial Safeguards 
        Limiting 
        Orders to the Targets of an Investigation
    ``General warrants''--blank warrants that do not describe what may 
be searched--were among those oppressive powers used by the British 
crown that led directly to the American Revolution. As a result, the 
framers required all warrants to ``particularly describ[e] the place to 
be searched, and the persons or things to be seized.''
    The same ``particularity'' requirements apply to wiretap orders. In 
the landmark case United States v. Donovan, 429 U.S. 413 (1977), a 
majority upheld the Federal criminal wiretap law, noting that Congress 
had redrafted the law to include safeguards regarding, among other 
things, the need to identify targets of surveillance in response to the 
``constitutional command of particularization.''\14\
---------------------------------------------------------------------------
    \14\ Id. at 426-27 (quoting S. Rep. No. 1097, 90th Cong., 2nd 
Sess., at 66 (1968), reprinted in U.S. Code Cong. and Admin. News 1968, 
at 2190).
---------------------------------------------------------------------------
    Congress has also authorized Federal judges to issue electronic 
surveillance orders in foreign intelligence cases, including wiretaps 
of telephone conversations and intercepts of the content of other 
electronic communications (faxes, e-mail, etc.).
    The Patriot Act erodes the basic constitutional rule of 
particularization:
     Section 206 creates ``roving wiretaps'' in foreign 
intelligence cases. As amended by later legislation, these wiretaps do 
more than allow the government to get a single order that follows the 
target of surveillance from telephone to telephone. The government can 
now issue ``John Doe'' roving wiretaps that fail to specify a target or 
a telephone, and can use wiretaps without checking that the 
conversations they are intercepting actually involve a target of the 
investigation. Section 206 is subject to the Patriot Act's sunset 
clause.
     Section 207 greatly increases the length of time that 
foreign intelligence wiretaps may be used without any judicial 
oversight--from 90 days to 6 months for the initial order, with 
renewals allowing surveillance to continue for a year before require 
judicial approval. Section 207 is subject to the Patriot Act's sunset 
clause.
    Section 206 of the Patriot Act: Foreign intelligence ``roving 
wiretaps.'' ``Roving wiretaps'' are a particularly potent form of 
electronic surveillance, allowing the government to obtain a single 
wiretap order that follows a target as the target uses different 
telephones or devices to communicate. Prior to the passage of the 
Patriot Act, roving wiretaps were available in criminal investigations 
(including criminal investigations of terrorists), but were not 
available in foreign intelligence investigations.
    Because roving wiretaps contain more potential for abuse than 
traditional wiretaps, which apply to a single telephone or other 
device, when Congress enacted roving wiretaps for criminal 
investigations, it insisted on important privacy safeguards. First, a 
criminal wiretap must specify either the identity of the target or the 
communications device being used. In other words, a surveillance order 
may specify only the target, or only the phone, but it must specify one 
or the other. Second, a criminal wiretap that jumps from phone to phone 
or other device may not be used unless the government ``ascertains'' 
that the target identified by the order is actually using that device.
    When Congress enacted the Patriot Act, it extended ``roving 
wiretap'' authority to FISA investigations, but did not include the 
common sense ``ascertainment'' safeguard. Shortly thereafter, the newly 
enacted roving wiretap authority was broadened by the Intelligence Act 
for fiscal year 2002, which authorized wiretaps where neither the 
target nor the device was specified. As a result, FISA now allows 
``John Doe'' roving wiretaps--wiretaps that can follow an unknown 
suspect from telephone to telephone based only on a potentially vague 
physical description, opening the door to surveillance of anyone who 
fits that description, or anyone else who might be using that 
telephone.
    Because of this danger, if Congress is satisfied the government has 
met its burden to show FISA roving surveillance authority ``actually 
materially enhances security'' and should be renewed, it should include 
additional privacy safeguards.

    Recommendation: Congress should include an ascertainment 
requirement and should require electronic surveillance orders to 
specify either a target or a telephone or other device, by enacting the 
bipartisan SAFE Act of 2005.

    Congress should tighten the FISA roving wiretap so that it has the 
same safeguards for privacy as criminal roving wiretaps. Supporters of 
the Patriot Act often argue that changes to the law were needed to give 
the government the same powers in foreign intelligence investigations 
that it already had in criminal investigations. To the extent that is 
appropriate, it is fair to insist that the same safeguards apply as 
well.
    Section 2 of S. 737, the SAFE Act, would provide just such 
safeguards. While it preserves FISA roving surveillance authority, it 
also makes sure that these privacy safeguards, which apply to criminal 
roving wiretaps, would also apply to FISA roving wiretaps.
    Section 207 of the Patriot Act. The time periods for foreign 
intelligence surveillance orders were already much longer than for 
criminal surveillance orders even before the passage of the Patriot 
Act. Permitting surveillance to continue for a year with no judicial 
review opens the door for abuse. The Justice Department's main 
justification for allowing review to continue for such a long period 
has been the ability to conserve attorney time and other resources 
needed to process renewal applications.
    If the administration can show the sharp increases in FISA secret 
searches and surveillance enabled by this and other provisions 
``actually materially enhances security,'' Congress should consider the 
cost in lost oversight of highly intrusive powers. It may be possible 
to get the benefits while preserving oversight.

    Recommendation: Congress should extend the sunset provision on this 
section and conduct an investigation to determine whether it should 
shorten the periods for FISA surveillance, and it should consider 
providing additional resources to the Justice Department and the FISC.

    Congress should consider whether it can shorten these periods by 
conducting a searching review of FISA surveillance conducted under the 
lengthened periods. Was it productive for the entire period it was 
authorized? If the problem is a lack of resources, the solution should 
not be to shortchange judicial oversight. Precisely because there is 
increased pressure to engage in surveillance early to prevent terrorism 
before it happens, there is an increased danger of abuse and an 
increased need for judicial oversight. Congress should provide 
sufficient funds both to the Department of Justice and to the Foreign 
Intelligence Surveillance Court to handle the important work of 
reviewing surveillance orders.
Internet Surveillance Without Probable Cause: Web Browsers, E-Mail, and 
        ``Pen/Trap'' Devices
    While the ``probable cause'' standard has long applied both to 
physical searches and electronic intercepts of the content of 
conversations, surveillance techniques that monitor only who is sending 
or receiving information (often called ``routing information''), but do 
not intercept the content of communications, do not require probable 
cause.
    For telephones, pen registers and ``trap and trace'' devices have 
long been available to track the telephone numbers dialed, and the 
telephone numbers of incoming calls. These numbers could then be cross-
referenced, through a reverse telephone directory, to identify to whom 
a target of a pen/trap device is calling. A similar technique, ``mail 
covers,'' is used to track the outside cover of an envelope sent 
through the mail. Neither technique requires probable cause, although a 
court order may be needed.
    Prior to the passage of the Patriot Act, it was unclear how the law 
allowing pen/trap devices for telephone communications applied to 
communications over the Internet. Federal agents argued they should be 
allowed, without showing probable cause or obtaining a surveillance 
order, to monitor the ``header'' information of an e-mail and the URL 
of a web page.
    Privacy advocates urged caution, noting that Internet 
communications operate very differently than traditional mail or 
telephone communications. For example, the ``header'' information of an 
e-mail contains a wealth of information, such as a subject line or an 
entire list of thousands or even hundreds of thousands of addressees. A 
monitoring order would allow the government to obtain, without probable 
cause, a political, charitable or religious organization's electronic 
mailing list. In short, e-mail headers provide far more content than is 
typical on the outside of an envelope.
    Likewise, the ``link'' at the top of a web browser contains not 
only the website visited, but also the precise pages viewed, or the 
search terms or other information entered by the user on a web-based 
form. For example, in the popular search engine ``google,'' a user 
looking for information about a drug such as ``viagra'' generates the 
web address http://www.google.com/search?hl=en&lr=&q=viagra.
    Section 214 of the Patriot Act broadens the use of Internet 
surveillance, without probable cause, by extending the pen/trap 
surveillance technique from a relatively narrow arena of facilities 
used by agents of foreign powers or those involved in international 
terrorism to include any facility. Pen/trap surveillance can now be 
used far more widely to monitor the Internet use of ordinary Americans.
    Pen/trap for the Internet suffers from a basic flaw: in extending 
this intrusive surveillance authority to the Internet, Congress did not 
adequately take account the differences between the Internet and 
traditional communications that make intercept of Internet ``routing 
information'' far more intrusive as applied to Internet communications.
    If the administration can show that section 214 of the Patriot Act 
``actually materially enhances security'' and should be renewed, 
Congress should insist on additional protections to take into account 
the differences between Internet and traditional telecommunications.

    Recommendation: Congress should insist on rules that clearly define 
content and prohibit the use of techniques that acquire content without 
a surveillance order based on probable cause. In addition, because 
obtaining ``routing information'' in the Internet world is even more 
intrusive than pen registers and trap and trace devices applied to 
traditional telecommunications. Congress should enact the SAFE Act, 
which provides that pen/trap orders require more specific 
justification.

    Congress should insist on rules that:
     Clearly define content for Internet communications. 
Congress should be specific. For e-mails, at the very least, the 
subject line and any private (i.e., ``bcc'') list of addresses should 
be off limits without a surveillance order based on probable cause. For 
Internet browsing, obtaining any information behind the top level 
domain name should likewise be barred without probable cause. For 
example, an agent could obtain a list of websites visited (like 
www.aclu.org) but not of webpages visited (like www.aclu.org/
patriotact) or search tetras entered (like http://www.google.com/
search?hl=en&q=aclu+craig+durbin+safe+act).
     Prevent techniques that acquire content from being used in 
the absence of an order based on probable cause. The Internet does not 
work like traditional telephones or the mail. The constitutionally 
protected content of communications may be difficult, or even 
impossible, to separate from the ``routing information.'' For example, 
e-mail may be sent through the Internet in discrete ``packets,'' rather 
than as a single file, to permit the information to be sent along the 
most efficient route, then reassembled at the destination, using codes 
that are attached to the packets of information. The burden should be 
on the government to develop techniques that do not incidentally 
acquire content. In the absence of those techniques, a surveillance 
order based on probable cause should be required. Federal agents should 
not be put in the untenable position of incidentally gathering 
constitutionally protected content in the course of obtaining ``routing 
information,'' and then being forced to delete or ignore the content 
information.
    The debate over extending pen/trap authority, which is not based on 
probable cause, to Internet communications, is not about whether 
criminals or terrorists use the Internet. Of course they do. The 
question is how to ensure that Congress does not erode the privacy of 
everyone by authorizing surveillance techniques, not based on probable 
cause, that fail to account for the differences between traditional 
communications and Internet communications.
    Because pen/trap authority as applied to the Internet is 
particularly intrusive, even with rules that define content more 
properly, Congress should insist that pen/trap orders require more 
specific justification. The ACLU urges adoption of the SAFE Act. 
Section 6(b) of the act would require, for FISA pen/trap authority, 
more than a simple certification that the information is relevant to a 
foreign intelligence investigation.
    While the SAFE Act would not require probable cause for FISA pen/
trap authority it adds teeth to the relevance test. The SAFE Act would 
require the government to provide a ``statement by the applicant of 
specific and articulable facts showing there is reason to believe'' the 
information obtained by the pen/trap device is relevant to the 
investigation.
               conclusion: restoring checks and balances
    The Patriot Act provisions that pose the greatest challenges share 
certain common themes. As a result of gag orders, or delayed 
notification, they permit surveillance with a far greater degree of 
secrecy than is common in most government investigations. They do not 
allow affected parties the opportunity to challenge government orders 
before a judge. Finally, because the substantive standards for some 
forms of surveillance have been modified, weakened, or even eliminated, 
the role of the Foreign Intelligence Surveillance Court in checking 
government abuse has been made less meaningful.
    This committee's review of the Patriot Act and related legal 
measures in the ongoing effort to combat terrorism is needed to ensure 
continued public support for the government's efforts to safeguard 
national security. The controversy over the Patriot Act reflects the 
concerns of millions of Americans for preserving our fundamental 
freedoms while safeguarding national security. To date, resolutions in 
opposition to parts of the Patriot Act and other actions that infringe 
on fundamental rights have been passed in in 377 communities in 43 
states including five state-wide resolutions.
    Such widespread concern, across ideological lines, reflects the 
strong belief of Americans that security and liberty need not be 
competing values. Congress included a ``sunset provision'' precisely 
because of the dangers represented by passing such far-reaching changes 
in American law in the aftermath of the worst terrorist attack in 
American history. Now is the time for Congress to complete the work it 
began when it passed the Patriot Act, by bringing the Patriot Act back 
in line with the Constitution.
                                 ______
                                 

             Example of Patriot Act Abuse--Brandon Mayfield

    On March 11, 2004 a bomb exploded in Madrid killing hundreds of 
people. The government obtained from Spanish authorities fingerprint 
images from a blue bag found at the scene containing seven detonators 
thought to be of the same type used in the bombing. The FBI concluded 
that the fingerprints matched those of a Portland attorney, Brandon 
Mayfield. He was arrested on May 6 on a material witness warrant.
    Court documents show that Brandon Mayfield, a convert to Islam, was 
investigated at least in part because of his religion. For example, the 
material witness warrant alleged, among other things, that Mayfield, a 
Muslim, was seen driving from his home to the Bilal mosque, where he 
worshipped.
    On March 24, 2005, the FBI admitted to Mayfield's attorney that his 
home had been secretly searched under the Foreign Intelligence 
Surveillance Act (FISA), which the Patriot Act amended. The FBI 
admitted that it copied four computer hard drives, digitally 
photographed several documents, seized 10 DNA samples and took 
approximately 335 digital photographs of the residence and Mr. 
Mayfield's property. At an April 5 hearing before the Senate Judiciary 
Committee, Attorney General Gonzales specified that Sections 207 and 
218 of the Patriot Act had been used. Section 207 lengthened the 
allowable time allotted to the FBI to secretly search Mayfield's home. 
Section 218 makes it easier to use intelligence authorities in criminal 
cases.
    The Patriot Act facilitated FISA search of Mayfield's home. Before 
the law's passage, the government could conduct a FISA search only if 
the ``primary purpose'' of the search was to gather foreign 
intelligence information. Under Section 218 of the Patriot Act, 
gathering such information need only be a ``significant purpose'' of a 
FISA search. The Mayfield search occurred directly after the Madrid 
bombing as part of the FBI's investigation. This suggests strongly that 
the ``primary purpose'' of the search was not to gather foreign 
intelligence information, but to uncover incriminating evidence.
    Prior to the Patriot Act, authorities would not have been able to 
use FISA to conduct absolutely secret ``black bag'' intelligence 
searches where the primary purpose of the search was criminal 
investigation.

   Example of Patriot Act Abuse--Unconstitutional National Security 
                                Letters

    Section 505 of the Patriot Act expanded the government's authority 
to use National Security Letters (NSL's) to seize information from 
businesses and others, with no judicial approval. Prior to the Patriot 
Act, the government could use NSL's to obtain records about alleged 
terrorists or spies--people who were thought to be ``foreign powers'' 
or their agents. Financial, travel and certain Internet Service 
Provider (ISP) records are accessible under the NSL authority. Section 
505 changed the law to allow the use of NSL's to obtain such records 
about anyone without the limitation that they be agents of foreign 
powers. In the Intelligence Authorization Act of 2004\15\ Congress 
further expanded the NSL letter authority to permit seizure of casino 
and other records.
---------------------------------------------------------------------------
    \15\ Pub. L. No. 108-177, Section 374 (Dec. 13, 2003).
---------------------------------------------------------------------------
    On a date that the government maintains must be kept secret for 
reasons of national security, the FBI served an NSL on an ISP the 
identity of which the government also claims must be kept secret for 
reasons of national security. Through its NSL authority at 18 U.S.C. 
Section 2709, the government can seek certain sensitive customer 
records from ISPs--including information that may be protected by the 
First Amendment--but the ISP can never reveal that it has been served 
with an NSL, and nothing in the statute suggests that the NSL can be 
challenged in court. On behalf of the ISP and itself, the ACLU 
challenged the statute as amended by the Patriot Act, as a violation of 
the First and Fourth Amendments because it does not impose adequate 
safeguards on the FBI's authority to force disclosure of sensitive and 
constitutionally protected information and because its gag provision 
prohibits anyone who receives an NSL from disclosing in perpetuity and 
to any person even the mere fact that the FBI has sought information.
    On September 28, 2004, Judge Victor Marrero of the Southern 
District of New York issued a landmark decision striking down as 
unconstitutional the NSL statute and its gag provision. The court 
struck down the entire statute as violative of Fourth and First 
Amendment rights, thus rendering any use of the statute an abuse of 
those rights. The court found that there have been hundreds of such 
uses.\16\ It found that the statute was abusive in practice because it 
sanctioned NSL's that coerced immediate compliance without effective 
access to court review or an opportunity to consult with counsel:
---------------------------------------------------------------------------
    \16\ Doe v. Ashcroft, (04 Civ. 2614, S.D.N.Y. Sept. 28, 2004), at 
63-64. The court concluded that hundreds of NSL's had been requested by 
the FBI from October 2001 through January 2003, and hundreds must have 
been issued during the life of the statute. The government takes the 
position that even the number of NSL's it issues cannot be disclosed 
for reasons of national security, though it has disclosed publicly to 
Congress a number of such uses. See, e.g. ``H.R. 3179, The ``Anti-
Terrorism Intelligence Tools Improvement Act of 2003,'' Hearings Before 
the Subcomm. on Crime, Terrorism, and Homeland Security of the House 
Comm. on the Judiciary, 108th Cong. (2004) (statement of Thomas J. 
Harrington, Deputy Assistant Director of the FBI Counterterrorism 
Division).

          The form language of the NSL served upon [plaintiff ISP] Doe, 
        preceded by an FBI phone call, directed him to personally 
        provide the information to the FBI, prohibited him, his 
        officers, agents and employees from disclosing the existence of 
        the NSL to anyone, and made no mention of the availability of 
        judicial review to quash or otherwise modify the NSL or the 
        secrecy mandated by the letter. Nor did the FBI inform Doe 
        personally that such judicial review of the issuance of the NSL 
        or the secrecy attaching to it was available. The court 
        concludes that, when combined, these provisions and practices 
        essentially force the reasonable NSL recipient to immediately 
        comply with the request.\17\
---------------------------------------------------------------------------
    \17\ Id. at pp. 44-45.

    In finding the statute unconstitutional under the Fourth Amendment, 
Judge Marrero referred repeatedly to the amendments made by Section 
505. He noted as an example of the kind of abuse now authorized by the 
statute that it could be used to issue a NSL to obtain the name of a 
person who has posted a blog critical of the government, or to obtain a 
list of the people who have e-mail accounts with a given political 
organization.\18\ The government could not have obtained this 
information with an NSL prior to the Patriot Act amendment in Section 
505, unless the blogger or the people with such accounts were thought 
to be foreign powers or agents of foreign powers. The court also cited 
Patriot Act Section 505 as a reason it struck down the statute on First 
Amendment grounds. The court determined that the tie to foreign 
powers--eliminated by Section 505--``limits the potential abuse'' of 
the statute\19\ and distinguishes it from other intelligence search 
provisions that retain the requirement of such a tie and include a 
statutory gag provision.
---------------------------------------------------------------------------
    \18\ Id. at p. 75.
    \19\ Id. at p. 93.
---------------------------------------------------------------------------
    Because of the gag in 18 U.S.C. Section 2709(c), the government 
obtained a sealing order it has consistently used to suppress wholly 
innocuous information in the litigation. Until the court struck down 
the statute, the government prevented the ACLU from disclosing that it 
represented someone that had been served with an NSL, and from even 
acknowledging that the government had used a statutory power. The 
government has demanded that the ACLU redact a sentence that described 
its anonymous client's business as ``provid[ing] clients with the 
ability to access the Internet.'' Ironically, the government even 
insisted that the ACLU black out a direct quote from a Supreme Court 
case in an ACLU brief:

          ``The danger to political dissent is acute where the 
        Government attempts to act under so vague a concept as the 
        power to protect `domestic security.' Given the difficulty of 
        defining the domestic security interest, the danger of abuse in 
        acting to protect that interest becomes apparent.''

    The gag in Section 2709 would effectively prevent an ISP (or its 
lawyers) from disclosing other abuses of Section 2709. For example, if 
the government was targeting someone because of their First Amendment 
activity, or if the ISP was being forced to turn over First Amendment 
protected information about associational activities, the gag would bar 
disclosure of this abuse.
      examples of the chilling effects of patriot act section 215
    In July 2003, the ACLU filed suit on behalf of six community and 
non-profit organizations because it had learned of a serious chilling 
effect that resulted from Section 215 of the Patriot Act.\20\ Excerpts 
from some plaintiffs' declarations highlight how Section 215 chills 
political speech and hinder privacy rights:
---------------------------------------------------------------------------
    \20\ Muslim Community Association of Ann Arbor v. Ashcroft, Civil 
Action No. 03-72913 (E.D. Mich., filed July 30, 2003).
---------------------------------------------------------------------------
    The president of a community association: ``The enactment of 
Section 215 has significantly changed the way members of [the Muslim 
Community Association of Ann Arbor, or MCA] participate in the 
organization. Many previously active members have become passive ones. 
Attendance at daily prayer services, educational forums, and social 
events has dropped. Some members have totally withdrawn their 
membership from MCA. Charitable donations to MCA have decreased.'' \21\
---------------------------------------------------------------------------
    \21\ Nazih Hassan Decl. para. 22.
---------------------------------------------------------------------------
    A prominent member of the association: ``Although I had been very 
outspoken politically before passage of the Patriot Act, I became 
afraid after the Patriot Act was passed that if I continued to remain a 
vocal and visible Muslim, the government would target me for 
investigation and seek private records about me even though I had not 
done anything wrong.
    ``While I was upset by several policies of the U.S. and would have 
ordinarily taken a leadership role in protesting these policies, I 
decided to step out of the limelight to lessen the chances that the 
government would target me for an investigation under the Patriot 
Act.'' \22\
---------------------------------------------------------------------------
    \22\ John Doe (Member of MCA) Decl. para.para. 8-9.
---------------------------------------------------------------------------
    The administrator of a Christian refugee aid organization: 
``Section 215 has harmed our ability to serve our clients in a number 
of different ways.
    ``Section 215 has caused Bridge to redirect resources from client 
assistance. Resources that we otherwise would have used to help clients 
are instead being used to re-evaluate our recordkeeping and record 
retention policies.
    ``Because we would not have an opportunity to challenge a Section 
215 order before complying with it, we have had no choice but to act 
now to ensure that our records do not contain personal or other 
sensitive information that we could be forced to disclose to the 
government. Accordingly, my staff and I have been deciding on a case-
by-case basis to exclude some sensitive information from our files.
    ``While we believe that we have no practical choice but to adopt 
this policy, there is no question that the practice compromises the 
level of services we can provide to our clients.'' \23\
---------------------------------------------------------------------------
    \23\ Mary Lieberman Decl. para.para. 23-27.

                          Patriot Act Intelligence Authorities: Recommended Safeguards
----------------------------------------------------------------------------------------------------------------
                                                                                                  Recommended
 Intelligence Surveillance Power      Before 9/11             Now              Sunsets?          safeguard (if
                                                                                              power is retained)
----------------------------------------------------------------------------------------------------------------
FISA records FISA search orders.  FISA search orders  Now these orders    Yes...............  Congress should
  Patriot Act Sec.  215            were available      are available for                       enact legislation
                                   only for certain    any and all                             limiting such
                                   travel-related      ``tangible                              orders to where
                                   ``business''        things,''                               the FBI has
                                   records on basis    including library                       ``specific and
                                   of individualized   records, medical                        articulable
                                   suspicion           records, and                            facts''
                                   connecting          other highly                            connecting
                                   records to          personal records,                       records to
                                   foreign agent..     without                                 foreign agent. In
                                                       individual                              addition,
                                                       suspicion..                             Congress should
                                                                                               provide a right
                                                                                               to challenge the
                                                                                               order, limits on
                                                                                               the secrecy order
                                                                                               and a right to
                                                                                               challenge that
                                                                                               order, and notice
                                                                                               and an
                                                                                               opportunity to
                                                                                               challenge the use
                                                                                               of such
                                                                                               information in
                                                                                               court.
                                                                                                SAFE Sec.  4 (S.
                                                                                               737, 109th Cong.)
National security letters (no     Were available      Now available       No................  Congress shouild
 court order required) for         only where FBI      without                                 enact legislation
 financial records, telephone      could show          individual                              that restores the
 and ISP bills, consumer credit    ``specific and      suspicion;                              requirement of
 reports..                         articulable         definition of                           individual
  Patriot Act Sec.  505            facts''             ``financial                             suspicion,
  Intelligence Act for FY 2004     connecting          records'' greatly                       provides a right
 Sec.  334                         records to          expanded..                              to challenge
                                   foreign agent..                                             records demands,
                                                                                               limits the
                                                                                               secrecy order and
                                                                                               provides for a
                                                                                               right to
                                                                                               challenge the
                                                                                               secrecy order,
                                                                                               and providing
                                                                                               notice to persons
                                                                                               when the
                                                                                               governmennt seeks
                                                                                               to use
                                                                                               information from
                                                                                               such demands
                                                                                               against them in
                                                                                               court.
                                                                                                SAFE Sec.  5

FISA secret searches and          Available only if   Permitted when      Yes...............  Congress should
 wiretaps in criinal               ``primary           ``primary                               clarify that FISC
 investigations.                   purpose'' is to     purpose'' is                            retains
  Patriot Act Sec.  218            obtain foreign      criminal                                supervisory power
                                   intelligence.       investigation, as                       to ensure FISA
                                                       long as ``a                             searches are not
                                                       significant                             directed or
                                                       purpose'' is                            controlled by
                                                       foreign                                 criminal
                                                       intelligence.                           prosecutors
                                                                                                codify In re All
                                                                                               Matters, 218 F.
                                                                                               Supp. 2d 611
                                                                                               (FISC 2002)
                                    ................    ................    ................  Congress should
                                                                                               enact legislation
                                                                                               to give the
                                                                                               defense access to
                                                                                               FISA applications
                                                                                               and warrants,
                                                                                               subject to the
                                                                                               national security
                                                                                               protections in
                                                                                               the Classified
                                                                                               Information
                                                                                               Procedures Act
                                                                                                S. 1552 Sec.  9
                                                                                               (108th Cong.);
                                                                                               Sec.  2528 Sec.
                                                                                               401 (108th Cong.)
Extended duration of FISA secret  Electronic          Initial electronic  Yes...............  Congress should
 searches and wiretaps.            surveillance        surveillance for                        extend the sunset
  Patriot Act Sec.  207            orders for 90       6 months,                               of this provision
                                   days, renewal for   renewals for 1                          and investigate
                                   90 days; physical   year; physical                          whether shorter
                                   search orders       search orders                           time periods to
                                   last 45 days.       last 90 days for                        ensure continued
                                                       U.S. persons and                        court oversight
                                                       6 months for                            are appropriate,
                                                       foreign visitors                        and should
                                                       and temporary                           increase
                                                       residents.                              appropriations to
                                                                                               Justice
                                                                                               Department and
                                                                                               FISC to provide
                                                                                               sufficient
                                                                                               resources to
                                                                                               process
                                                                                               applications.

FISA secret searches and          All secret search   For non-U.S.        Yes...............  Congress should
 wiretaps without connection to    and surveillance    persons, FISA                           allow the FISC to
 foreign power.                    orders required     secret search or                        presume that a
  Intelligence Reform Act of       probable cause of   surveillance                            non-U.S. person
 2004 Sec.  6001                   connection to       allowed for                             involved in
                                   foreign power.      persons                                 international
                                                       ``involved in                           terrorism is
                                                       international                           acting for a
                                                       terrorism'' or                          foreign
                                                       ``preparations                          government or
                                                       therefore''                             organization, but
                                                       without any                             should not make
                                                       foreign power                           such a
                                                       connection.                             presumption
                                                                                               mandatory or
                                                                                               eliminate
                                                                                               altogether the
                                                                                               ``foreign power''
                                                                                               requirement
                                                                                                Feinstein Amdt.
                                                                                               to S. 113 (108th
                                                                                               Cong.)
FISA roving wiretaps............  No roving wiretaps  Now there are FISA  Yes...............  Congress should
  Patriot Act Sec.  206            under FISA, but     roving wiretaps,                        enact legislation
  Intelligence Act for FY 2002     were available      but unlike                              that would
 Sec.  314                         for criminal        criminal roving                         require FISA
                                   investigations.     wiretaps, FISA                          roving wiretaps
                                                       roving wiretaps                         to observe same
                                                       do not need to                          requirements as
                                                       specify target                          criminal roving
                                                       and agents need                         wiretaps, i.e.,
                                                       not ascertain                           they must (1)
                                                       target is using                         specify a target,
                                                       that telephone.                         and (2) would
                                                                                               have to ascertain
                                                                                               target is using
                                                                                               that facility.
                                                                                                Safe Act Sec.  2

FISA surveillance of the          Available only for  Can be used for     Yes...............  Congress should
 Internet, other communications    facilities used     more broadly,                           require rules
 without probable cause with pen/  by agents of        including for                           that define
 trap authority.                   foreign power or    U.S. persons, and                       content for the
  Patriot Act Sec.  214            those involved in   regardless of                           Internet more
                                   international       what facility is                        clearly and
                                   terrorism           being monitored.                        prohibit
                                   activities.                                                 techniques that
                                                                                               acquire content
                                                                                               without probable
                                                                                               cause.
                                                                                                (no legislatove
                                                                                               language)
                                  ..................  ..................  ..................  Congress should
                                                                                               require
                                                                                               determination of
                                                                                               relevance to be
                                                                                               based on a
                                                                                               statement of
                                                                                               ``specific and
                                                                                               articulable
                                                                                               facts,'' not on
                                                                                               mere
                                                                                               certification
                                                                                                SAFE Act Sec.  6
----------------------------------------------------------------------------------------------------------------

 STATEMENT OF GREGORY T. NOJEIM, ASSOCIATE DIRECTOR AND CHIEF 
 LEGISLATIVE COUNSEL, WASHINGTON LEGISLATIVE OFFICE, AMERICAN 
                     CIVIL LIBERTIES UNION

    Mr. Nojeim. Thank you, Chairman Roberts.
    Chairman Roberts. Please understand that virtually every 
word of your very valuable testimony will be in the record and 
feel free to summarize and/or do what you deem appropriate 
under the circumstances.
    Mr. Nojeim. Thank you very much.
    It's a pleasure to testify before you today on behalf of 
the ACLU about the intelligence-related provisions of the USA 
PATRIOT Act. I come before you mindful that today marks the 10-
year anniversary of the Murrah Building in Oklahoma City. That 
crime and the attacks of September 11, 2001, underscore a 
sobering truth--terrorism has been with us for a long time; it 
will likely be with us for generations to come. The decisions 
that you make in the coming months about the PATRIOT Act will 
be taken with an eye toward that reality.
    The PATRIOT Act became law only 45 days after the September 
11 attacks. Though it acted swiftly, Congress in its wisdom 
included approximately 12 provisions of the Act that sunset on 
December 31, 2005. I would focus your attention on just three 
PATRIOT Act provisions. Two of them deal with records requests 
under FISA and the other with roving wiretaps.
    The PATRIOT Act expanded two existing sections of law that 
allow the FBI to compel people in businesses to produce 
documents. Section 505 of the PATRIOT Act expanded the National 
Security Letter authority to allow the FBI to issue a letter 
compelling Internet service providers, financial institutions 
and consumer credit reporting agencies to produce records about 
people who use or benefit from their services. This power was 
later expanded to include records of car dealers, boat dealers, 
jewelers, real estate professionals, pawn brokers, and others.
    Section 215 of the PATRIOT Act expanded a different 
provision of law to authorize the FBI to more easily obtain a 
court order requiring a person or business to turn over 
documents or things ``sought for'' an investigation to protect 
against international terrorism or clandestine intelligence 
activities.
    In both cases, the PATRIOT Act removed from the law the 
requirement that the records produced pertain to an agent of a 
foreign power--that is, foreign countries, businesses, and 
terrorist organizations. This significantly expanded law 
enforcement access to records pertaining to Americans. In these 
days of data mining, one cannot ignore this stark fact: under 
these provisions the government can easily obtain records 
pertaining to thousands of Americans who have nothing to do 
with terrorism, so long as the records are sought for or are 
allegedly relevant to one of these investigations.
    Neither of these statutes signals the recipient of a letter 
or order that the recipient can challenge in court. Both 
statutes indicate that the recipient can tell no one that the 
recipient has received the order or letter, and that includes 
any attorney with whom they might want to consult. In common 
parlance, the recipient is gagged, and under the statutory 
language the gag stays in place forever.
    We do not ask that you repeal either of these sections of 
the law. Rather, we ask that you restore the agent of a foreign 
power requirement and that you amend the statute to time-limit 
the gag, exempt attorney-client communications from it, and 
allow for court challenges. If these changes are made to the 
NSL statute, they would satisfy the court that struck down that 
statute as a violation of the First and the Fourth Amendment.
    In addition, we ask that you conform the multi-point or 
roving wiretap authority that was created in the PATRIOT Act 
for intelligence wiretaps to the corresponding authority for 
roving wiretaps that appears in the criminal code. Doing this 
would entail borrowing from the criminal code the ascertainment 
requirement that ensures that law enforcement agents listen in 
only on the conversations to which the target is a party. It 
also entails requiring the government to specify in its 
application for a wiretap either identity of the person whose 
phone or computer would be tapped or to specify the facility 
that would be tapped.
    In short, we're not asking that law enforcement tools be 
taken away, rather that they be made subject to reasonable 
checks and balances, such as meaningful judicial oversight and 
appropriate disclosure to the public of the use of the power.
    Congress could easily adopt all of the reforms that I have 
mentioned and most of the reforms that I have mentioned in my 
written testimony by enacting the Security and Freedom 
Enhancement Act or SAFE Act, S. 737. This bipartisan 
legislation, co-sponsored by Senators Craig and Durbin, 
contains a series of carefully calibrated adjustments to the 
PATRIOT Act that would go a long way toward bringing it more 
into line with the Constitution and advancing the goal of 
keeping America both safe and free.
    Thank you.
    Chairman Roberts. We thank you. Mr. Dempsey, please.
    [The prepared statement of Mr. Dempsey follows:]

      Prepared Statement of James X. Dempsey, Executive Director, 
                  Center for Democracy & Technology\1\

    Mr. Chairman, Sen. Rockefeller, Members of the Committee, thank you 
for the opportunity to testify at this important hearing. In CDT's 
view, there are few if any provisions in the PATRIOT Act that are per 
se unreasonable. We see not a single power in the Act that should 
sunset. The question before us--and it is one of the most important 
questions in a democratic society--is what checks and balances should 
apply to those powers. In our view, the investigative powers of the 
PATRIOT Act would be just as effective, maybe even more so, if subject 
to some basic checks and balances--
---------------------------------------------------------------------------
    \1\ The Center for Democracy and Technology is a non-profit, public 
interest organization dedicated to promoting civil liberties and 
democratic values for the new digital communications media. Among our 
priorities is preserving the balance between security and freedom after 
9/11. CDT coordinates the Digital Privacy and Security Working Group 
(DPSWG), a forum for computer, communications, and public interest 
organizations, companies and associations interested in information 
privacy and security issues.
---------------------------------------------------------------------------
     particularized suspicion,
     a minimal factual showing,
     judicial approval,
     eventual notice to targets in a wider range of 
circumstances, and
     more detailed unclassified reporting to Congress.
    In particular, we urge the Committee to enhance the role of the 
judiciary. We fully recognize that intelligence investigations must 
sometimes proceed with speed and that they often require secrecy. But 
in this age of cell phones, ubiquitous Internet access, encryption, 
BlackBerries and other communications technologies, it seems 
unnecessary to vest domestic intelligence agencies with extra-judicial 
powers. FBI agents and others operating domestically in intelligence 
matters--who have to seek supervisory approval for exercise of PATRIOT 
Act powers in almost all cases anyhow--could electronically prepare 
minimal fact-based applications for access to information, submit them 
to judges electronically, and receive approval electronically, 
promptly, efficiently, but with the crucial check provided by a neutral 
and detached magistrate.
    CDT supports the Security and Freedom Enhancement (SAFE) Act, a 
narrowly tailored bipartisan bill that would revise several provisions 
of the PATRIOT Act. It would retain all of the expanded authorities 
created by the Act but place important limits on them. It would protect 
the constitutional rights of American citizens while preserving the 
powers law enforcement needs to fight terrorism.

   PREVENTION OF TERRORISM DOES NOT REQUIRE SUSPENSION OF STANDARDS 
                             AND OVERSIGHT

    At the outset, let me stress some basic points on which I hope 
there is widespread agreement:
     Terrorism poses a grave and imminent threat to our nation. 
There are people--almost certainly some in the United States--today 
planning additional terrorist attacks, perhaps involving biological, 
chemical or nuclear materials.
     The government must have strong investigative authorities 
to collect information to prevent terrorism. These authorities must 
include the ability to conduct electronic surveillance, carry out 
physical searches effectively, and obtain transactional records or 
business records pertaining to suspected terrorists.
     These authorities, however, must be guided by the Fourth 
Amendment, and subject to Executive and judicial controls as well as 
legislative oversight and a measure of public transparency.

 SINCE 9/11, THERE HAVE BEEN EGREGIOUS AND COUNTERPRODUCTIVE ABUSES OF 
        CIVIL LIBERTIES AND HUMAN RIGHTS OUTSIDE THE PATRIOT ACT

    Since 9/11, the Federal Government has engaged in serious abuses of 
constitutional and human rights, some now documented in official 
reports. The most egregious of these abuses have taken place outside of 
the PATRIOT Act or any other Congressional authorization. These 
include:
     The torture at Abu Ghraib and other locations.
     The detention of US citizens in military jails without 
criminal charges.
     The detention of foreign nationals in Guantanamo and other 
locations, under what the executive branch claimed was unreviewable 
authority, and the continuing detention of those individuals after the 
Supreme Court rejected the Administration's claims.
     The rendition of detainees to other governments known to 
engage in torture.
     Haphazard and prolonged post 9/11 detentions of foreign 
nationals in the U.S., the physical abuse of some and the blanket 
closing of deportation hearings.
     Abuse of the material witness law to hold individuals in 
jail without charges.

CONCERNS WITH THE PATRIOT ACT: INTELLIGENCE SEARCHES--BROADER SCOPE AND 
             GREATER SECRECY CALL FOR COMPENSATING CONTROLS

    In the PATRIOT Act, not surprisingly given the pressures under 
which that law was enacted and the lack of considered deliberation, the 
pendulum swung too far, and Congress eliminated important checks and 
balances that should now be restored in the interest of both freedom 
and security. One of the most fundamental themes of the PATRIOT Act was 
the elimination of checks and balances on intelligence access to 
financial, communications and other records.
    As this Committee well knows, the FBI operates under two sets of 
authorities when investigating international terrorism: criminal and 
foreign intelligence/counterintelligence. Over the past 25 years, a 
series of intelligence authorities have grown up giving investigators 
the ability to conduct electronic surveillance and obtain access to 
stored records.
    Constitutionally speaking, there are two concerns with national 
security authorities:
     The scope of intelligence investigations is broader than 
criminal investigations. Intelligence investigations cover both legal 
and illegal activities. In criminal investigations, the criminal code 
provides an outer boundary, and a prosecutor is often involved to guide 
and control the investigation. An intelligence investigation is driven 
not by a desire to arrest and convict, but by a range of foreign policy 
interests. The breadth of disclosure of information is greater, 
including intelligence, military, diplomacy, policy development, 
protective, immigration, and law enforcement.
     Intelligence investigations require a greater degree of 
secrecy than criminal investigations. In criminal cases, an important 
protection is afforded by notice to the target and other affected 
parties as the government collects information and the notice and right 
to confront when a matter reaches trial. Under the intelligence rules, 
persons whose records are accessed by the government are never provided 
notice unless the evidence is introduced against them in court. While 
recipients of grand jury subpoenas can publicly complain about 
overbreadth and often can even notify the target, recipients of 
intelligence disclosure orders are barred from disclosing their 
existence.
    The PATRIOT Act failed to include protections that can respond to 
these difference and provide appropriate protection of Fourth Amendment 
principles.

Particularized Suspicion and a Factual Basis for Disclosure Demands
    In the PATRIOT Act, Sections 214 (relating to pen registers under 
FISA), 215 (relating to travel records and other business records) and 
505 (relating to National Security Letters for credit reports, 
financial records and communications transactional data) all pose the 
same set of issues. Prior to the PATRIOT Act, the FBI was able to 
obtain access to certain key categories of information upon a showing 
that the information pertained to a foreign power or an agent of a 
foreign power:
     Real time interception of transactional data concerning 
electronic communications was available with a pen register or trap and 
trace order issued by the FISA court.
     Records regarding airline travel, vehicle rental, hotels 
and motels and storage facilities were available with a court order 
issued by the FISA court.
     Financial records, credit reports, and stored 
transactional records regarding telephone or Internet communications 
were available with a National Security Letter issued by a senior FBI 
official.
    In all cases, prior to PATRIOT, these records were available upon a 
certification or showing that there were ``specific and articulable 
facts'' giving reason to believe that the person whose records were 
being sought was a foreign power or an agent of a foreign power, or had 
been in contact with a foreign power or its agent. The FBI complained 
that this standard was too narrow. Rather than come up with a focused 
standard, the PATRIOT Act eliminated both prongs of this standard: It 
eliminated the particularity requirement; and it eliminated the 
requirement that the FBI have any factual basis for its interest in 
certain records.
    FBI and DOJ descriptions of these changes in guidance to the field 
and in statements to Congress suggest that the government does not 
interpret them as going as far as they seem to on their face. The FBI 
indicates that it still names particular subjects in its applications, 
and both DOJ and FBI indicate that there is some factual basis for 
every request.
    The fact that records must be relevant to an open investigation is 
not any real protection at all. Consider the following: there is 
undoubtedly a properly authorized FCI investigation of al Qaeda (or 
UBL). Under sections 214, 215 and 505, the FBI could get any records 
from any entity by claiming that they were relevant to that 
investigation. Even though 215 requires a court order, the statute 
requires the judge to grant the governments request in whole or part so 
long as the government makes the proper assertion--that the records are 
sought for an existing investigation, however broad that investigation. 
There is no requirement that the application or the court order or NSL 
name the person or account for which information is sought.
    Both the particularity requirement and the factual showing 
requirement should be made explicit in statute, in order to prevent 
overbroad or ill-focused searches and to provide clear guidance to the 
field and the FISA court.
    At the same time, the concept of a National Security Letter should 
be revisited. in this age of cell phones, ubiquitous Internet access, 
encryption, BlackBerries and other communications technologies, it 
seems unnecessary to vest domestic intelligence agencies with extra-
judicial powers. FBI agents and others operating domestically in 
intelligence matters--who have to seek supervisory approval for 
exercise of PATRIOT Act powers in almost all cases anyhow--could 
electronically prepare minimal fact-based applications for access to 
information, submit them to judges electronically, and receive approval 
electronically, promptly, efficiently, but with the crucial check 
provided by a neutral and detached magistrate.

Notice
    A second area in which the PATRIOT Act lacks adequate protections 
is in the area of notice. Under the PATRIOT Act, as in the past, 
intelligence authorities are exercised under a cloak of perpetual 
secrecy. In the world of spy versus spy, surveillances could go on for 
many years, the same techniques could be used in the same context for 
decades, and known spies would be allowed to operate with no overt 
action ever taken against them. To a certain extent, these secrecy 
interests remain paramount in counter-terrorism investigations. But the 
wall between intelligence and criminal has now been brought down, and 
information collected in intelligence investigations is now being ever 
more widely shared and used. The question of when and how individuals 
are provided notice needs to be reexamined. Especially individuals 
whose records were obtained by the government but who were later 
determined not to be of any interest to the government should be told 
of what happened to them.
    In ordinary criminal investigations, the PATRIOT Act created what 
might be called ``off the books surveillance.'' Section 212 authorizes 
an ISP to disclose e-mail, stored voicemail, draft documents and other 
stored information to law enforcement when government states that there 
is an emergency involving a threat to life. Section 217 authorizes the 
government to carry out real-time surveillance when an ISP, a 
university, or another system operator authorizes the surveillance on 
the grounds that there is a ``trespasser'' within the operator's 
computer network. Under both sections 212 and 217:
     There is never a report to a judge. (In contrast, under 
both Title III and FISA, when electronic surveillance is carried out on 
an emergency basis, an application must be filed after the fact.)
     There is no time limit placed on the disclosures or 
interceptions. (A Title III wiretap cannot continue for more than 30 
days without new approval.)
     There is never notice to the person whose communications 
are intercepted or disclosed.
     The interceptions and disclosures are not reported to 
Congress.
    DOJ, in its defense of Section 217 claims that the privacy of law-
abiding computer users is protected because only the communications of 
the computer trespasser can be intercepted. But what if the system 
operator is wrong? What if there is a legitimate emergency, but law 
enforcement targets the wrong person. Under Sections 212 and 217, a 
guilty person gets more notice than an innocent person--the guilty 
person is told of the surveillance or disclosure but the innocent 
person need never be notified. That should be rectified.

Congressional Oversight and Public Reporting
    Currently, the Justice Department is required to report to Congress 
on its use of some sections of the PATRIOT Act, such as its use of 
Section 215, but it is not required statutorily to report on its use of 
other sections. Although the Justice Department, under the pressure of 
the sunsets and with considerable prodding from Congress, has 
voluntarily reported some information on its use of other PATRIOT Act 
powers, like delayed notice warrants under Section 213, routine and 
more detailed reporting would increase both Congressional oversight and 
public transparency. Congress should codify reporting requirements, 
enabling Congress and the public to assess the efficacy of these 
provisions and to gauge the likelihood of their misuse.

                 SPECIFIC PROVISIONS OF THE PATRIOT ACT

    In this section, we will comment on specific provisions of the 
PATRIOT Act.

Sneak and Peek Searches
    Section 213, which does not sunset but nevertheless should be re-
examined, is a good idea gone too far. It is also a perfect example of 
how the PATRIOT Act was used to expand government powers, without 
suitable checks and balances, in areas having nothing to do with 
terrorism. Finally, it illustrates how, when rhetoric is left behind, 
it is possible to frame appropriate checks and balances for what, by 
any definition, are some especially intrusive powers.
    As a starting point, of course, in serious investigations of 
international terrorists, the government should be able to act with 
secrecy. But guess what proponents of Section 213 never mention? In 
international terrorism investigations, even before the PATRIOT Act, 
the government already had the authority to carry out secret searches. 
The Foreign Intelligence Surveillance Act was amended in 1994 to allow 
secret searches in intelligence investigations, including international 
terrorism cases; before 1994, the Attorney General authorized secret 
searches in intelligence investigations of terrorist groups without any 
judicial scrutiny. And during the limited debate over the PATRIOT Act, 
reasonable voices proposed that secret searches be statutorily 
authorized in criminal investigations of terrorism.
    As enacted, however, Section 213 was not limited to terrorism 
cases. It would astound most Americans that government agents could 
enter their homes while they are asleep or their places of business 
while they are away and carry out a secret search or seizure and not 
tell them until weeks or months later. It would especially astound them 
that this authority is available for all Federal offenses, ranging from 
weapons of mass destruction investigations to student loan cases. That 
is what Section 213 of the PATRIOT Act authorizes. Indeed, the Justice 
Department has admitted that it has used Section 213 sneak and peek 
authority in nonviolent cases having nothing to do with terrorism. 
These include, according to the Justice Department's October 24, 2003 
letter to Senator Stevens, an investigation of judicial corruption, 
where agents carried out a sneak and peek search of a judge's chambers, 
a fraudulent checks case, and a health care fraud investigation, which 
involved a sneak and peek of a home nursing care business.
    Section 213 fails in its stated purpose of establishing a uniform 
statutory standard applicable to sneak and peek searches throughout the 
United States. For a number of years, under various standards, courts 
had allowed delayed notice of sneak and peek searches. The term ``sneak 
and peek,'' by the way, was not contrived by opponents of the PATRIOT 
Act--before the PATRIOT Act, it was used by FBI agents, DOJ officials, 
and judicial opinions. Rather than ``codifying existing case law under 
a single national standard to streamline detective work,'' Section 213 
confuses the law. Rather than trying to devise a standard suitable to 
breaking and entering into homes and offices for delayed notice 
searches, Congress, in the haste of the PATRIOT Act, merely 
incorporated by reference a definition of ``adverse result'' adopted in 
1986 for completely unrelated purposes, concerning access to e-mail 
stored on the computer of an ISP. Under that standard, not only can 
secret searches of homes and offices be allowed in cases that could 
result in endangering the life of a person or destruction of evidence, 
but also in any case that might involve ``intimidation of potential 
witnesses'' or ``seriously jeopardizing an investigation'' or ``unduly 
delaying a trial.'' These broad concepts offer little guidance to 
judges and will bring about no national uniformity in sneak and peek 
cases.
    Section 213 also leaves judges guessing as to how long notice may 
be delayed. The Second and Ninth Circuits had adopted, as a basic 
presumption, a 7-day rule for the initial delay. Section 213 says that 
notice may be delayed for ``a reasonable period.'' Does this mean that 
lower courts in the Ninth Circuit and the Second Circuit no longer have 
to adhere to the 7-day rule? At the least, it suggests that courts 
outside those Circuits could make up their own rules. ``Reasonable 
period'' affords judges considering sneak and peek sneak and peek 
searches no uniform standard.
    If, as Section 213 supporters claim, sneak and peek searches are a 
``time-honored tool,'' and if courts ``around the country have been 
issuing them for decades,'' as DOJ claims, why did the Justice 
Department push so hard in the PATRIOT Act for a Section 213 applicable 
to all cases? The answer, I believe, is that the sneak and peek concept 
stands on shaky constitutional ground, and the Justice Department was 
trying to bolster it with Congressional action--even action by a 
Congress that thought it was voting on an antiterrorism bill, not a 
general crimes bill.
    The fact is, there is a constitutional problem with Section 213: 
The sneak and peek cases rest on an interpretation of the Fourth 
Amendment that is no longer valid. The major Circuit Court opinions 
allowing sneak and peek searches date from the 1986, United States v. 
Freitas, 800 F.2d 1451 (9th Cir.), and 1990, United States v. Villegas, 
899 F.2d 1324 (2d Cir.). These cases were premised on the assumption 
that notice was not an element of the Fourth Amendment. United States 
v. Pangburn, 983 F.2d 449, 453 (2d Cir. 1993) starts its discussion of 
sneak and peek searches stating: ``No provision specifically requiring 
notice of the execution of a search warrant is included in the Fourth 
Amendment.'' Pangburn goes on to state ``The Fourth Amendment does not 
deal with notice of any kind. . . .''
    Yet in Wilson v. Arkansas, 514 U.S. 927 (1995), in a unanimous 
opinion by Justice Thomas, the Supreme Court held that the knock and 
notice requirement of common law was incorporated in the Fourth 
Amendment as part of the constitutional inquiry into reasonableness. 
Notice is part of the Fourth Amendment, the court held, directly 
repudiating the premise of the sneak and peek cases. Wilson v. Arkansas 
makes it clear that a search without notice is not always unreasonable, 
but surely the case requires a different analysis of the issue than was 
given it by those courts that assumed that notice was not a part of the 
constitutional framework for searches at all. A much more carefully 
crafted set of standards for sneak and peek searches, including both 
stricter limits of the circumstances under which they can be approved 
and a 7-day time limit, is called for.
    Section 213's attempted codification of the sneak and peek 
authority went too far. To fix it, Congress should leave the statutory 
authority in place but add several limitations:
     Congress should narrow the circumstances in which 
notification may be delayed so that Section 213 does not apply to 
virtually every search. Under Section 213, the government need only 
show that providing notice would seriously jeopardize an investigation 
or unduly delay a trial. This ``catch-all'' standard could apply in 
almost every case and therefore is simply too broad for this uniquely 
intrusive type of search. Congress should allow sneak and peek searches 
only if giving notice would likely result in: danger to the life or 
physical safety of an individual; flight from prosecution; destruction 
of or tampering with evidence; or intimidation of potential witnesses.
     Congress should require that any delay in notification not 
extend for more than 7 days without additional judicial authorization. 
Section 213 permits delay for a ``reasonable time'' period, which is 
undefined in the statute. Pre-PATRIOT Act case law in the Ninth and 
Second Circuits stated that 7 days was an appropriate time period. 
Indeed, DOJ' s internal guidance recognizes that 7 days is the most 
common period, but also suggests that it may seek much longer delays. 
Congress should set a basic 7 day rule, while permitting the Justice 
Department to obtain additional 7-day extensions of the delay if it can 
continue to meet one of the requirements for authorizing delay in the 
first instance.
     Section 213 only requires a judge to find ``reasonable 
cause'' to believe that an adverse result will happen if notice is not 
delayed. The Supreme Court has allowed a limited exception to the 
notice rule upon ``reasonable suspicion,'' by allowing police to enter 
and provide notice as they were entering when they faced a life-
threatening situation in executing a warrant. Richards v. Wisconsin, 
520 U.S. 385 (1997). If ``reasonable suspicion'' is the standard for 
delaying notice by minutes, probable cause would be a more appropriate 
standard when notice is delayed for days or weeks.
     Finally, Congress should require the Justice Department to 
continue to report on its use of the ``sneak and peek'' power. Congress 
should codify a requirement that the Attorney General report the number 
of requests for delayed notification, the number of those requests 
granted or denied, the number of extensions requested, granted and 
denied, and the prong of the statutory test used for each case, so that 
Congress and the public can determine if this technique is being 
narrowly applied.
    Even with these changes, sneak and peek searches, especially of 
homes, stand on shaky constitutional ground except in investigations of 
the most serious crimes. Judicial caution is necessary. The reasonable 
changes outlined above would leave the statutory authority in place but 
bring it under more appropriate limitations and oversight.

Section 215--Business Records
    As noted above, Section 215 amended the Foreign Intelligence 
Surveillance Act to authorize the government to obtain a court order 
from the FISA court or designated magistrates to seize ``any tangible 
things (including books, records, papers, documents, and other items)'' 
that an FBI agent claims are ``sought for'' an authorized investigation 
``to protect against international terrorism or clandestine 
intelligence activities.'' The subject of the order need not be 
suspected of any involvement in terrorism whatsoever; indeed, if the 
statute is read literally, the order need not name any particular 
person but may encompass entire collections of data related to many 
individuals. The Justice Department often says that the order can be 
issued only after a court determines that the records being sought are 
``relevant'' to a terrorism investigation, but the PATRIOT Act 
provision says only that the application must specify that the records 
concerned are ``sought for'' an authorized investigation. And the judge 
does not determine that the records are in fact ``sought for'' the 
investigation--the judge only can determine whether the FBI agent has 
said that they are sought for an investigation. The PATRIOT Act does 
not require that applications must be under oath. It doesn't even 
require that the application must be in writing. It doesn't require, as 
for example the pen register law does, that the application must 
indicate what agency is conducting the investigation. Section 505 of 
the PATRIOT Act similarly expanded the government's power to obtain 
telephone and e-mail transactional records, credit reports and 
financial data with the use of a document called the National Security 
Letter (NSL), which is issued by FBI officials without judicial 
approval.
    The Justice Department argues that Section 215 merely gives to 
intelligence agents the same powers available in criminal cases, since 
investigators in criminal cases can obtain anything with a subpoena 
issued on a relevance standard. First of all, as noted, a criminal case 
is at least cabined by the criminal code--something is relevant only if 
it relates to the commission of a crime. But on the intelligence side, 
the government need not be investigating crimes--at least for non-U.S. 
persons, it can investigate purely legal activities by those suspected 
of being agents of foreign powers.
    There are other protections applicable to criminal subpoenas that 
are not available under Section 215 and the NSLs. For one, third party 
recipients of criminal subpoenas can notify the record subject, either 
immediately or after a required delay. Section 215 and the NSLs 
prohibit the recipient of a disclosure order from ever telling the 
record subject, which means that the person whose privacy has been 
invaded never has a chance to rectify any mistake or seek redress for 
any abuse. Second, the protections of the criminal justice system 
provide an opportunity for persons to assert their rights and protect 
their privacy, but those adversarial processes are not available in 
intelligence investigations that do not end up in criminal charges.

Use of FISA evidence in criminal cases without full due process
    Before the PATRIOT Act, there was no legal barrier to using FISA 
information in criminal cases. The wall between prosecutors and 
intelligence officers, as it evolved over the years, was a secret 
invention of the FISA court, the Department's Office of Intelligence 
Policy and Review, and the FBI, with little basis in FISA itself. It 
did not serve either civil liberties or national security interests. 
The primary purpose standard did not have to be changed to promote 
coordination and information sharing.
    As a result of the PATRIOT Act and the decision of the FISA Review 
Court, criminal investigators are now able to initiate and control FISA 
surveillances. The number of FISA has gone up dramatically. The FISA 
court now issues more surveillance orders in national security cases 
than all the other Federal judges issue in all other criminal cases. In 
the past, when FISA evidence has been introduced in criminal cases, it 
has not been subject to the normal adversarial process. Unlike ordinary 
criminal defendants in Title III cases, criminal defendants in FISA 
cases have not gotten access to the affidavit serving as the basis for 
the interception order. They have therefore been unable to meaningfully 
challenge the basis for the search. Defendants have also been 
constrained in getting access to any portions of the tapes other than 
those introduced against them or meeting the government's strict 
interpretation of what is exculpatory. If FISA evidence is to be used 
more widely in criminal cases, and if criminal prosecutors are able to 
initiate and control surveillances using the FISA standard, then those 
surveillances should be subject to the normal criminal adversarial 
process. Congress should make the use of FISA evidence in criminal 
cases subject to the Classified Information Procedures Act. Congress 
should also require more extensive public reporting on the use of FISA, 
to allow better public oversight, more like the useful reports issued 
for other criminal wiretap orders.

Definition of ``domestic terrorism''
    The PATRIOT Act's definition of domestic terrorism is a looming 
problem. Section 802 of the Act defines domestic terrorism as acts 
dangerous to human life that violate any State or Federal criminal law 
and appear to be intended to intimidate civilians or influence 
government policy. 18 USC 2331(5). Under the PATRIOT Act, this 
definition has three consequences--the definition is used as the basis 
for:
     Seizure of assets (Sec. 806)
     Disclosure of educational records (Secs. 507 and 508)
     Nationwide search warrants (Sec. 219)
    The definition appears many more times in Patriot II, where it 
essentially becomes an excuse for analysis and consideration. Congress 
should either amend the definition or refrain from using it. It 
essentially amounts as a transfer of discretion to the executive 
branch, which can pick and choose what it will treat as terrorism, not 
only in charging decisions but also in the selection of investigative 
techniques and in the questioning of individuals.

                                SAFE ACT

    CDT strongly supports that the Security and Freedom Enhancement 
(SAFE) Act is a narrowly tailored bipartisan bill that would revise 
several provisions of the USA PATRIOT Act. It would retain all of the 
expanded authorities created by the PATRIOT Act but place important 
limits on these authorities. It would protect the constitutional rights 
of American citizens while preserving the powers law enforcement needs 
to fight terrorism.

Section 2--FISA Roving Wiretaps (Section 206 of the PATRIOT Act)
    The SAFE Act would retain the PATRIOT Act's authorization of roving 
wiretaps and ``John Doe'' wiretaps under the Foreign Intelligence 
Surveillance Act (FISA), but would eliminate ``John Doe'' roving 
wiretaps, a sweeping power never before authorized by Congress. A 
``John Doe'' roving wiretap does not identify the person or the phone 
to be wiretapped. The SAFE Act would also require law enforcement to 
ascertain the presence of the target of the wiretap before beginning 
surveillance. This would protect innocent Americans from unnecessary 
surveillance.

Section 3--``Sneak & Peek'' Searches (Section 213)
    The SAFE Act would retain the PATRIOT Act's authorization of 
delayed notification or ``sneak and peek'' searches when one of an 
enumerated list of specific, compelling reasons to delay notice is 
satisfied. However, it would eliminate the catch-all provision that 
allows sneak and peek searches in any circumstances seriously 
jeopardizing an investigation or unduly delaying a trial. The SAFE Act 
would require notification of a covert search within 7 days, instead of 
the undefined delay that is currently permitted by the PATRIOT Act. A 
court could allow unlimited additional 21-day delays of notice in 
specific, compelling circumstances.

Section 4--FISA Orders for Library and Other Personal Records (Section 
        215)
    The SAFE Act would retain the PATRIOT Act's expansion of the FISA 
records provision, which allowed the FBI to obtain ``any tangible 
things'' from any entity. However, it would restore a standard of 
individualized suspicion for obtaining a FISA order and create 
procedural protections to prevent abuses. The government would be able 
to obtain an order if they could show facts indicating a reason to 
believe the tangible things sought relate to a suspected terrorist or 
spy. As is required for grand jury subpoenas, the SAFE Act would give 
the recipient of a FISA order the right to challenge the order, require 
a showing by the government that a gag order is necessary, place a time 
limit on the gag order (which could be extended by the court), and give 
a recipient the right to challenge the gag order. The SAFE Act would 
require notice to the target of a FISA order if the government seeks to 
use the things obtained from the order in a subsequent proceeding, and 
give the target an opportunity to challenge the use of those things. 
Such notice and challenge provisions are required for other FISA 
authorities (wiretaps, physical searches, pen registers, and trap and 
trace devices).

Section 5--National Security Letters (Section 505)
    The SAFE Act would restore a standard of individualized suspicion 
for using an NSL, requiring that the government have reason to believe 
the records sought relate to a suspected terrorist or spy: As is the 
case for grand jury subpoenas, the SAFE Act would give the recipient of 
an NSL the right to challenge the letter and the nondisclosure 
requirement, and place a time limit on the nondisclosure requirement 
(which could be extended by the court). As is the case for FISA 
authorities, the SAFE Act would give notice to the target of an NSL if 
the government seeks to use the records obtained from the NSL in a 
subsequent proceeding, and give the target an opportunity to challenge 
the use of those records.

Section 6--Pen Registers and Trap and Trace Devices (Section 216)
    The SAFE Act would retain the PATRIOT Act's expansion of the pen/
trap authority to electronic communications. In recognition of the vast 
amount of sensitive information that law enforcement can now access, 
the SAFE Act would create modest safeguards allowing increased 
Congressional, public, and judicial oversight of pen/trap usage. The 
SAFE Act would require additional Congressional reporting, require 
delayed notice to individuals who are targets of pen/traps (pen/trap 
targets currently receive no notice, unlike the targets of wiretaps), 
and slightly raise the burden of proof for obtaining pen/trap orders. 
Under the current standard, the government need only to certify that 
the information sought is relevant, a certification that a judge has no 
power to question. Under the revised standard, the government would 
have to show facts indicating a reason to believe that the information 
sought is relevant.

Section 7--Domestic Terrorism Definition (Section 802)
    The PATRIOT Act's overbroad definition of domestic terrorism could 
include acts of civil disobedience by political organizations. While 
civil disobedience is and should be illegal, it is not necessarily 
terrorism. The SAFE Act would limit the qualifying offenses for 
domestic terrorism to those that constitute a Federal crime of 
terrorism, instead of any Federal or State crime, as is currently the 
case.

Section 8--FISA Public Reporting
    The PATRIOT Act made it much easier for law enforcement to use FISA 
to conduct secret surveillance on American citizens regardless of 
whether they are suspected of involvement in terrorism or espionage and 
whether the primary purpose of the underlying investigation is 
intelligence gathering. In 2003, the most recent year for which 
statistics are available, the number of FISA wiretaps exceeded the 
number of criminal wiretaps for the first time since FISA became law. 
It is important for Congress and the American people to learn more 
about how the FBI is using FISA since the passage of the PATRIOT Act. 
Therefore, the SAFE Act would require increased public reporting on the 
use of FISA.

                               CONCLUSION

    In the debate over the PATRIOT Act, civil libertarians did not 
argue that the government should be denied the tools it needs to 
monitor terrorists' communications or otherwise carry out effective 
investigations. Instead, privacy advocates urged that those powers be 
focused and subject to clear standards and judicial review. The tragedy 
of the response to September 11 is not that the government has been 
given new powers--it is that those new powers have been granted without 
standards or checks and balances.
     Of course, the FBI should be able to carry out roving taps 
during intelligence investigations of terrorism, just as it has long 
been able to do in criminal investigations of terrorism. But the 
PATRIOT Act standard for roving taps in intelligence cases lacks 
important procedural protections applicable in criminal cases.
     Of course, the law should clearly allow the government to 
intercept transactional data about Internet communications (something 
the government was doing before the PATRIOT Act anyhow). But the pen 
register/trap and trace standard for both Internet communications and 
telephones, under both the criminal wiretap law and under FISA, is so 
low that judges are reduced to mere rubber stamps, with no authority to 
even consider the factual basis for a surveillance application.
     Of course, prosecutors should be allowed to use FISA 
evidence in criminal cases (they did so on many occasions before the 
PATRIOT Act) and to coordinate intelligence and criminal investigations 
(there was no legal bar to doing so before the PATRIOT Act). But FISA 
evidence in criminal cases should not be shielded from the adversarial 
process (as it has been in every case to date).
    We need limits on government surveillance and guidelines for the 
use of information not merely to protect individual rights but to focus 
government activity on those planning violence. The criminal standard 
and the principle of particularized suspicion keep the government from 
being diverted into investigations guided by politics, religion or 
ethnicity. Meaningful judicial controls do not tie the government's 
hands--they ensure that the guilty are identified and that the innocent 
are promptly exonerated.
                                 ______
                                 

                 Appendix--Overview of PATRIOT Sunsets

    Of over 150 provisions in the PATRIOT Act, only 16 provisions are 
covered by the sunset. Some of those covered are uncontroversial, while 
some of the most controversial provisions in the Act are not slated to 
sunset. The sunset does not apply to pending investigations.
    Here's what the sunset covers--bold indicates those that are 
controversial in CDT's view--we have no objections to the others:
    Sec. 201--certain terrorism crimes as wiretap predicates
    Sec. 202--computer fraud as wiretap predicate
    Sec. 203(b)--sharing criminal wiretap information w/intelligence 
agencies
    Sec. 204--technical clarification of no conflict between Title III 
and FISA
    Sec. 206--roving taps under FISA
    Sec. 207--extending duration of FISA taps of non-us persons
    Sec. 209--seizure of voice mail pursuant to warrant
    Sec. 212--emergency disclosures of e-mail w/o a court order
    Sec. 214-- lowering standard for pen registers and trap and trace 
devices under FISA
    Sec. 215-- access to business records under FISA (the ``library 
records'' provision)
    Sec. 217-- interception of computer trespasser communications w/o a 
court order
    Sec. 218--the ``significant purpose'' provision
    Sec. 220--nationwide service of search warrant for electronic 
evidence
    Sec. 223--civil liability for unauthorized disclosures of wiretap 
info
    Sec. 224--the sunset provision itself
    Sec. 225--immunity for compliance with FISA wiretap

    A number of highly controversial PATRIOT provisions are not covered 
by the sunset, and deserve to be reconsidered by Congress, including:

    Sec 203(a)--sharing grand jury information
    Sec. 213--sneak and peek searches
    Sec. 216--pen registers for the Internet
    Sec. 358--exceptions to the financial privacy laws
    Sec. 505--``National Security Letter'' exceptions to privacy laws
    Sec. 802--definition of domestic terrorism

 STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR 
                    DEMOCRACY AND TECHNOLOGY

    Mr. Dempsey. Mr. Chairman, Vice Chairman Rockefeller, 
Senators, good afternoon. Thank you for the opportunity to 
testify at this important hearing.
    Let me start out by stressing that, in the view of the 
Center for Democracy and Technology, as a civil liberties 
advocacy organization, we see few, if any, provisions in the 
PATRIOT Act that are per se unjustified. We see not a single 
power in the Act that needs to sunset or go away entirely. 
However, there are serious and legitimate concerns with some of 
the provisions. That is understandable, given the haste with 
which the law was enacted.
    In 2001, in response to some legitimate complaints of the 
Administration that the prior rules for counterterrorism 
investigations were unreasonable or were out of date or ill-
suited to the threat of terrorism, Congress adopted the PATRIOT 
Act, but it really didn't come up with better rules. In the 
anxiety of those weeks after 
9/11, Congress eliminated the old rules but didn't replace them 
with any new ones, giving the Executive branch too much 
latitude, in some cases almost carte blanche.
    The question before this Committee and before the Congress 
between now and December is what checks and balances should 
apply to these powers. As I will explain later, the bipartisan 
SAFE Act introduced in the Senate offers a set of modest but 
significant reforms that will leave all the PATRIOT Act powers 
in place but add the checks and balances that were left behind 
in October 2001.
    Unless reasonable checks and balances are added, I think 
there are some provisions of the PATRIOT Act that should 
continue to be subject to a sunset, perhaps another 5 years, 
until we can get those rules right. I think we have in front of 
us an opportunity to adopt those checks and balances.
    Now, what do I mean by ``checks and balances?'' Experience 
shows that in both criminal and intelligence investigations 
governmental powers are most effectively exercised and civil 
liberties are best protected if the intrusive data-gathering 
powers of the government are subject to certain principles. 
First among these is particularized suspicion, by which I mean 
that the government should focus its effort on individuals that 
it has some reason to believe are involved in planning 
terrorist activities or are members of a terrorist group or 
have some connection with a terrorist group or have some 
information that might lead to a terrorist group. This isn't 
about the government waiting for the crime to occur. This is in 
the context of preventive action, but to have some 
particularized focus, some particularized suspicion.
    Secondly, the factual basis that the government has to have 
to collect information doesn't have to be very detailed. We're 
not talking about anything close to probable cause. It can be 
as little as a shared address or the fact that someone received 
a phone call from or made a phone call to a suspected 
terrorist. There has to be some minimum specificity based on 
some documentable fact. This is what the FBI sometimes refers 
to as the predicate.
    Third, whenever feasible, intrusive data gathering or 
surveillance should have the prior approval of a judicial 
officer. I'll expand upon this a little bit more in a second. 
There may be emergency exceptions. Under the wiretap law, under 
FISA, there are emergency exceptions. By and large, the rule 
for access to both stored records and real-time communications 
should involve judicial approval.
    Fourth, while secrecy is important and especially important 
in intelligence investigations, as a general rule individuals 
should eventually receive notice of what has happened to them, 
when information has been collected about them, at least when 
the information is used to make decisions about them, not in 
the intelligence context but in the criminal justice context, 
in the immigration context. This is the concept of notice.
    Finally, of course, there needs to be congressional 
oversight, which I know this Committee takes very, very 
seriously, and the process that you are in the midst of now is 
certainly part of that, and you are to be congratulated on 
taking the care with looking at these laws. I also think there 
could be and needs to be some greater public oversight and 
accountability. I think it might actually to some extent 
increase trust in what the government is doing to actually have 
some more information about at least how often and to what 
extent these authorities are being used.
    We have the broader scope of intelligence investigations 
that are not only focused on criminal activity, are not 
cabined-in by the definitions of the criminal law, can clearly 
be used to collect information about legal activities. They 
don't lead up to that crucible of the trial, with the checks 
and balances and the adversarial process that that affords. We 
have the greater degree of secrecy and necessity. The question 
is, what compensating controls can be adopted?
    In considering specifically some of the investigative 
techniques of the PATRIOT Act, I think that there are five 
questions that you should ask. First of all, should the 
government have access to the information at issue? In almost 
every case, indeed I would say in every case covered by the 
PATRIOT Act, I don't question that the government should have 
the right to the information under certain circumstances.
    Secondly, does the investigation require speed? Obviously, 
yes, sometimes it does. Does it require secrecy? Usually, but 
maybe not forever, but certainly secrecy. Saying that the 
government needs the information, and it needs it quickly 
sometimes and it has to operate within secrecy, doesn't answer 
the final two questions.
    Who should be the approving officer for the technique, and 
what should be the standard of proof or the standard of 
justification for access to certain information?
    As I said, in our view, the judicial officer is very 
important. In this age of cell phones and Blackberries and 
encryption and almost ubiquitous Internet access, it seems 
unnecessary to vest domestic intelligence agencies with 
extrajudicial powers. FBI agents and others operating 
domestically in intelligence matters, who have to seek 
supervisory approval for exercise of PATRIOT Act authorities 
anyhow, could electronically prepare a minimal fact-based 
application, submit it electronically to judges, get the 
approval electronically.
    We allow search warrants to be obtained by telephone, 
orally, the FBI agent on one end--in criminal cases--the judge 
on the other end. The FBI agent can write it down by hand on 
his end and just signify the judge's approval. That's 
considered to be a sufficient warrant under the Fourth 
Amendment. We can have the speed, with that neutral magistrate 
in there asking, ``What is the factual basis for this? Explain 
to me a little bit why you think this particular information is 
relevant or necessary to an intelligence investigation.''
    The mere fact that there is an investigation is not 
sufficient, obviously, because we have some very broad 
investigations. There's clearly an ongoing investigation of 
Usama bin Ladin or UBL that's clearly a properly justified 
investigation. The mere fact of the investigation is not 
enough. Yet the PATRIOT Act says that the government can obtain 
pen registers, business records, and the transactional data 
available under National Security Letters just by saying, 
either to a judge or to itself, ``We have an investigation and 
the information is sought for that investigation.''
    That really does not give the kind of focus and the kind of 
minimal check and balance that is appropriate for intruding 
upon privacy by conducting a pen register, accessing business 
records, et cetera.
    We have concerns under the legislation as well with the 
roving tap authority. Clearly, there should be roving tap 
authority in intelligence cases of terrorist groups, just as 
there are criminal investigations of terrorist groups. As Mr. 
Nojeim pointed out, in trying to carry over the criminal 
concept of roving surveillance into the FISA--and they are 
somewhat different statutes, of course, that use different 
terminology--the roving tap concept was sort of pasted in, 
almost sort of shoe-horned into FISA, and I think a mistake was 
made in that process and some of the checks and balances were 
left out, and some of that may have been unintentional but 
certainly now is the time to go back and correct that. I would 
be happy to discuss in more length what I have in mind there.
    Sneak and peek searches has been another controversial 
provision. This one is unrelated to intelligence 
investigations. The sneak and peek authority has existed for a 
number of years under FISA, so intelligence investigations have 
always had the sneak and peek authority. We're talking here 
about criminal investigations. The sneak and peek authority in 
the PATRIOT Act is not limited to terrorism investigations. It 
applies to all Federal criminal investigations.
    The FBI used that to break into a judge's chambers about a 
year ago, using the PATRIOT Act to break into a judge's 
chambers and do a sneak and peek search. They went into an 
office of a health care provider in a Medicare investigation, 
sneak and peek. These are nonviolent crimes, and yet they were 
using PATRIOT Act authority, again without, in our view, 
adequate checks and balances.
    Mr. Chairman, with that I will conclude. I'm happy to go 
into greater depth on some of the individual provisions--the 
use of FISA in criminal proceedings, et cetera. Thank you, Mr. 
Chairman.
    Chairman Roberts. Mr. Dempsey, we thank you for your 
comprehensive statement. I am sure that some of those matters 
will be taken up by the questions. Let me just say that this 
open hearing is the first in a series of three that are 
designed to educate Members as the Senate considers the repeal 
of the sunset provisions and modifications to other 
intelligence authorities.
    On Thursday, the Committee will hold a closed hearing on 
operational matters relating to the Act. Next Wednesday, we 
will hear from the Attorney General and the Director of the FBI 
and the Director of Central Intelligence.
    Ms. MacDonald.
    [The prepared statement of Ms. MacDonald follows:]

        Prepared Statement of Heather MacDonald, Senior Fellow, 
         Manhattan Institute for Policy Research, New York, NY

    Thank you, Mr. Chairman and members of the Committee. My name is 
Heather Mac Donald. I am a senior fellow at the Manhattan Institute for 
Policy Research, a think tank in New York City. I have written 
extensively on homeland security for the Washington Post, the Wall 
Street Journal, the Los Angeles Times, and City Journal, among other 
publications. I appreciate the opportunity to testify today on this 
important topic.
    The most powerful weapon against terrorism is intelligence. The 
United States is too big a country to rely on physical barriers against 
attack; the most certain defense is advanced knowledge of terrorist 
plans.
    In recognition of this fact, Congress amended existing surveillance 
powers after 9/11 to ready them for the terrorist challenge. The signal 
achievement of these amendments, known as the Patriot Act, was to tear 
down the regulatory ``wall'' that had prevented anti-terrorism 
intelligence agents and anti-terrorism criminal agents from sharing 
information. That wall was neither constitutionally nor statutorily 
mandated, but its effect was dire: it torpedoed what was probably the 
last chance to foil the 9/11 plot in August 2001. Thanks to the Patriot 
Act, all members of the anti-terrorism community can now collaborate to 
prevent the next tertoristrike before it happens.
    Besides dismantling the wall, the Patriot Act made other necessary 
changes to surveillance law: it extended to terrorism investigators 
powers long enjoyed by criminal investigators, and it brought 
surveillance law into the 21st century of cell phones and e-mail. Where 
the act modestly expands the government's authority, it does so for one 
reason only: to make sure that the government can gather enough 
information to prevent terrorism, not just prosecute it after the fact.
    Each modest expansion of government power in the Patriot Act is 
accompanied by the most effective restraint in our constitutional 
system: judicial review. The act carefully preserves the traditional 
checks and balances that safeguard civil liberties; 4 years after its 
enactment, after constant monitoring by the Justice Department's 
Inspector General and a host of hostile advocacy groups, not a single 
abuse of government power has been found or even alleged.
    This record of restraint is not the picture of the act most often 
presented in the media or by government critics, however. The Patriot 
Act has been the target of the most successful disinformation campaign 
in recent memory. From the day of its passage, law enforcement critics 
have portrayed it as an unprecedented power grab by an administration 
intent on trampling civil rights.
    As lie after lie accumulated, the administration failed utterly to 
respond. As a result, the public is wholly ignorant about what the law 
actually does. Hundreds of city councils have passed resolutions 
against the act; it is a safe bet that none of them know what is in it. 
The Committee is to be congratulated for taking the time to get the 
truth out.
    Though the charges against the Patriot Act have been dazzling in 
their number, they boil down to four main strategies. This afternoon I 
would like to dissect those strategies, with particular reference to 
the most controversial sections of the act: sections 215 and 213. 
Discredit the anti-Patriot Act strategies in those contexts, and you 
have the key for discrediting them in every other context.

                      STRATEGY #1: HIDE THE JUDGE

    The most pervasive tactic used against the Patriot Act is to 
conceal its judicial review provisions, as witnessed in the campaign 
against section 215. Section 215 allows anti-terror investigators 
access to business records in third party hands. The section may also 
be called the librarian's hysteria provision. The American Library 
Association has declared section 215 a ``present danger to the 
constitutional rights and privacy of library users,'' though the 
section says not a word about libraries. Such hyperbole is standard, 
and completely unwarranted.
    The section works as follows: Under Section 215, the FBI may ask 
the Foreign Intelligence Surveillance Court for permission to seek 
business records--the enrollment application of a Saudi national in an 
American flight school, say--while investigating terrorism. The section 
broadens the categories of institutions whose records the government 
may seek, on the post-9/11 recognition that lawmakers cannot anticipate 
what sorts of organizations terrorists may exploit. In the past, to 
trace the steps of a Soviet spy, it may have been enough to get hotel 
bills or storage-locker contracts (two of the four categories of 
records covered in the previous section of the Foreign Intelligence 
Surveillance Act that Section 215 amended); today, however, gumshoes 
may find they need receipts from scuba-diving schools or farm-supply 
stores to piece together a plot to blow up the Golden Gate Bridge.
    Section 215 removed the previous requirement in FISA that the 
records concern an ``agent of a foreign power,'' since the scope of an 
anti-terror investigation is hard to predict in advance. An unwitting 
bystander may have purchased fertilizer for a terrorist posing as an 
aspiring farmer; finding out whether and how much fertilizer was 
purchased may be an essential link in the investigative chain.
    These commonsensical reforms of existing investigative power have 
called forth a crescendo of hysteria. The ACLU warns that with section 
215, ``the FBI could spy on a person because they don't like the books 
she reads, or because they don't like the websites she visits. They 
could spy on her because she wrote a letter to the editor that 
criticized government policy.'' Librarians, certain that the section is 
all about them, are scaring library users with signs warning that the 
government may spy on their reading habits.
    The force of these charges rests on the strategy of hiding the 
judge. Critics of section 215 conceal the fact that any request for 
items under the section requires judicial approval. An FBI agent cannot 
simply walk into a flight school or a library and demand records. The 
bureau must first convince the Foreign Intelligence Surveillance Court 
that the documents are relevant to protecting against international 
terrorism. The chance that the FISA court will approve a 215 order 
because the FBI ``doesn't like the books [a person] reads . . . or 
because she wrote a letter to the editor that criticized government 
policy'' is zero. If the bureau can show, on the other hand, that 
someone using a library's computers was seen with other terror suspects 
in Lahore, Pakistan, and has traveled regularly to Afghanistan under a 
false passport, then the court may well grant an order to get the 
library's Internet logs. As Andrew McCarthy has pointed out, literature 
evidence was a staple of terrorism prosecutions throughout the 1990's. 
Terrorists read bomb manuals, and often leave fingerprints on pages 
spelling out explosive recipes that match the forensics of particular 
bombings (like the 1993 attack on the World Trade Center).
    Before the FBI can even approach the FISA court, agents must have 
gone through multiple levels of bureaucratic review just to open an 
anti-terror investigation. And to get to the court itself, intelligence 
agents must first persuade the Justice Department's Office of 
Intelligence and Policy Review that a section 215 order is warranted, a 
process of persuasion that traditionally has taken months of vetting 
and voluminous documentation.

                     STRATEGY #2: INVENT NEW RIGHTS

    Besides concealing judicial review requirements, anti-Patriot Act 
demagogues also invent new rights. A running theme of the campaign 
against section 215 is that it violates the Fourth Amendment right to 
privacy. But there is no Fourth Amendment privacy right in records or 
other items disclosed to third parties. A credit-card user, for 
example, reveals his purchases to the seller and to the credit-card 
company. He therefore has no privacy expectations in the record of 
those purchases that the Fourth Amendment would protect. As a result, 
the government, whether in a criminal case or a terror investigation, 
may seek his credit-card receipts without a warrant or ``probable 
cause'' to believe that a crime has been or is about to be committed.
    Despite librarians' fervent belief to the contrary, this analysis 
applies equally to library patrons' book borrowing or Internet use. The 
government may obtain those records without violating anyone's Fourth 
Amendment rights, because the patron has already revealed his borrowing 
and web browsing to library staff, other readers (in the days of 
handwritten book checkout cards), and Internet service providers. It is 
worth noting, however, that after all the furor raised about library 
users' privacy rights, section 215 has not once been used to obtain 
library or book store records.
    It is the lack of a Fourth Amendment privacy interest in third 
party records that has allowed prosecutors for decades to seek business 
and library records without any judicial review whatsoever. Section 
215, by requiring judicial review, is far more protective of privacy 
than longstanding subpoena power in ordinary criminal investigations. 
Patriot critics have provided no evidence that the subpoena power has 
been abused to spy on Americans' reading habits; there is no reason to 
believe that section 215 will be any more susceptible to abuse.
    Recipients of a section 215 production order may challenge the 
order in court, as Attorney General Alberto Gonzales recently 
testified, but they may not disclose the order in public. This is 
perfectly appropriate. Pre-emptive terror investigations cannot be 
conducted in the news media. The government would seek a terror 
suspect's airplane itineraries, for example, not in order to prosecute 
a hijacking after it happens, but to pre-empt a hijacking before the 
fact. The battleground is not the courtroom but the world beyond, where 
speed and secrecy can mean life or death.

                  STRATEGY #3: CONCEAL LEGAL PRECEDENT

    Attacks on the other most controversial section of the Patriot Act, 
section 213, illustrate the key ruse of concealing the act's legal 
precedents. Section 213 allows the government to delay notice of a 
search, something criminal investigators have been allowed to do for 
decades.
    Say the FBI wants to plumb Mohammad Atta's hard drive for evidence 
of a nascent terror attack. If a Federal agent shows up at his door and 
says: ``Mr. Atta, we have a search warrant for your hard drive, which 
we suspect contains information about the structure and purpose of your 
cell,'' Atta will tell his cronies back in Hamburg and Afghanistan: 
``They're on to us; destroy your files--and the infidel who sold us 
out.'' The government's ability to plot out that branch of Al Qaeda is 
finished.
    To avoid torpedoing pre-emptive investigations, Section 213 lets 
the government ask a judge for permission to delay notice of a search. 
The judge can grant the request only if he finds ``reasonable cause'' 
to believe that notice would result in death or physical harm to an 
individual, flight from prosecution, evidence tampering, witness 
intimidation, or other serious jeopardy to an investigation. In the 
case of Mohammad Atta's hard drive, the judge will likely allow a 
delay, since notice could seriously jeopardize the investigation, and 
would likely result in evidence tampering or witness intimidation.
    The government can delay notifying the subject only for a 
``reasonable'' period of time; eventually officials must tell Atta that 
they inspected his hard drive.
    Section 213 carefully balances traditional expectations of notice 
and the imperatives of pre-emptive terror and crime investigations. 
That's not how left- and right-wing libertarians have portrayed it, 
however. They present Section 213, which they have dubbed ``sneak-and-
peek,'' as one of the most outrageous new powers seized by former 
Attorney General John Ashcroft. The ACLU's fund-raising pitches warn:

          ``Now, the government can secretly enter your home while 
        you're away . . . rifle through your personal belongings . . . 
        download your computer files . . . and seize any items at will. 
        . . . And, because of the Patriot Act, you may never know what 
        the government has done.''

    Notice the ACLU's ``Now.'' Like every anti-213 crusader, the ACLU 
implies that section 213 is a radical new power. This charge is a rank 
fabrication. For decades, Federal courts have allowed investigators to 
delay notice of a search in drug cases, organized crime, and child 
pornography, for the same reasons as in section 213. Indeed, the 
ability to delay notice of a search is an almost inevitable concomitant 
of investigations that seek to stop a crime before it happens. But the 
lack of precise uniformity in the court rulings on delayed notice 
slowed down complex national terror cases. Section 213 codified 
existing case law under a single national standard to streamline 
detective work; it did not create new authority regarding searches. 
Those critics who believe that the target of a search should always be 
notified prior to the search, regardless of the risks, should have 
raised their complaints decades ago--to the Supreme Court and the many 
other courts who have recognized the necessity of a delay option.
    Critics of Section 213 raise the spectre of widespread surveillance 
abuse should the government be allowed to delay notice. FBI agents will 
be rummaging around the effects of law-abiding citizens on mere whim, 
even stealing from them, allege the anti-Patriot propagandists. But the 
government has had the delayed notice power for decades, and the anti-
Patriot demagogues have not brought forward a single case of abuse 
under delayed notice case law. Their argument against Section 213 
remains purely speculative: It could be abused. But there's no need to 
speculate; the historical record refutes the claim.
    Moreover, such wild charges against Section 213 ``hide the judge.'' 
It is a Federal judge who decides whether a delay is reasonable, not 
law enforcement officials. And before a government agent can even seek 
to delay notice of a search, he must already have proven to a judge 
that he has probable cause to conduct the search in the first place. 
This is hardly a recipe for lawless executive behavior--unless the 
anti-Patriot forces are also alleging that the Federal judiciary is 
determined to violate citizens rights. If that's what they mean, they 
should come out and say it.
    In fact, the recent history of government intelligence-gathering 
belies the notion that any government surveillance power sets us on a 
slippery slope to tyranny. There is a slippery-slope problem in terror 
investigations--but it runs the other way. Since the 1970's, 
libertarians of all political stripes have piled restriction after 
restriction on intelligence-gathering, even preventing two anti-terror 
FBI agents in the same office from collaborating on a case if one was 
an ``intelligence'' investigator and the other a ``criminal'' 
investigator. By the late 1990's, the bureau worried more about 
avoiding a pseudo-civil liberties scandal than about preventing a 
terror attack. No one demanding the ever-more Byzantine protections 
against hypothetical abuse asked whether they were exacting a cost in 
public safety. We know now that they were.
    The libertarian certainty about looming government abuse is a 
healthy instinct; it animates the Constitution. But critics of the 
Patriot Act and other anti-terror authorities ignore the sea change in 
law enforcement culture over the last several decades. For privacy 
fanatics, it's always 1968, when J. Edgar Hoover's FBI was voraciously 
surveilling political activists with no check on its power. That FBI is 
dead and gone. In its place arose a risk-averse and overwhelmingly law-
abiding Bureau, that has internalized the norms of restraint and 
respect for privacy.
    This respect for the law now characterizes intelligence agencies 
across the board. Lieutenant General Michael V. Hayden, the nominee for 
Principal Deputy Director of National Intelligence, told this committee 
last week that the challenge for supervisors in the National Security 
Agency was persuading analysts to use all of their legal powers, not to 
pull analysts back from an abuse of those powers.
    It is because of this sea-change in law enforcement culture that 
Patriot Act critics cannot point to a single abuse of the act over the 
last 4 years, and why they are always left to argue in the 
hypothetical.

                      STRATEGY #4: REJECT SECRECY

    A subtext of many Patriot Act critiques is a refusal to grant any 
legitimacy to government secrecy. Recipients of document production 
orders in terror investigations--whether Section 215 orders or national 
security letters under the 1986 Electronic Communications Privacy Act--
should be able to publicize the government's request, say the critics; 
targets of searches should be notified at the time of the search. Time 
and again, law enforcement critics disparage the Foreign Intelligence 
Surveillance Court, because its proceedings are closed to the public. 
The ACLU, for example, opposes the roving wiretap authority for 
terrorism investigations in the Patriot Act (Section 206), even though 
criminal investigators have long had the roving wiretap option, because 
Section 206 wiretaps ``are authorized secretly without a showing of 
probable cause of crime.'' (Section 206 requests must demonstrate 
probable cause that the wiretap target is an agent of a foreign power 
and that he will be using the tapped communications devices.)
    This transparent approach may satisfy those on the left and right 
who believe that the American people have no greater enemy than their 
own government, but it fails to answer the major question: how would it 
possibly be effective in protecting the country? The Patriot Act 
critics fail to grasp the distinction between the prosecution of an 
already committed crime, for which probable cause and publicity 
requirements were crafted, and the effort to pre-empt a catastrophic 
attack on American soil before it happens. For pre-emptive 
investigations, secrecy is of the essence. Opponents of the Patriot Act 
have never explained how they think the government can track down the 
web of Islamist activity in public.
    These four strategies, in various combinations--hide the judge, 
invent new rights, conceal legal precedent, and reject secrecy--lie 
behind nearly all of the Patriot Act attacks. The crusade against 
Section 214, for example, which allows the government to record the 
numbers dialed from a phone if relevant to a terrorism investigation 
(the so-called pen register power), uses all four strategies. (A 
related section, Section 216, extends the longstanding rules on pen 
registers, to the 21st century technologies of e-mail. Section 216 
allows the government to capture only an e-mail's routing and 
addressing information, not its content.)
    Section 214 merely allows the agents investigating a terrorism case 
the same power that criminal investigators have. But the Electronic 
Frontier Foundation calls the section ``a serious threat to privacy.'' 
This charge rests on inventing new rights. In fact, pen registers 
threaten no privacy rigths, as the Supreme Court has held, because 
there is no legitimate expectation of privacy in the numbers dialed 
from a phone, which are recorded already by telephone companies. Even 
though judicial authorization for a pen register is not 
constitutionally required, section 214 nevertheless mandates that the 
government obtain an order from the FISA court for their use. EFF 
dismisses the value of the court, however, because it ``operates in 
total secrecy.''
    In conclusion, the Patriot Act is a balanced updating of 
surveillance authority in light of the new reality of catastrophic 
terrorism. It corrects anachronisms in law enforcement powers, whereby 
health care fraud investigators, for example, enjoyed greater ability 
to gather evidence than Al Qaeda intelligence squads. It created no 
novel powers, but built on existing authorities within the context of 
constitutional checks and balances. It protects civil liberties while 
making sure that intelligence analysts can get the information they 
need to protect the country. The law should be re-enacted.

   STATEMENT OF HEATHER MacDONALD, SENIOR FELLOW, MANHATTAN 
                 INSTITUTE FOR POLICY RESEARCH

    Ms. MacDonald. Mr. Chairman, thank you very much. I'm 
honored to be here today and I hope both you and the Vice 
Chairman will eventually share your wonderful opening 
statements with us. I would look forward to reading them.
    The PATRIOT Act has been subject to the most successful 
misinformation campaign in recent memory. From the day of its 
passage it was portrayed as an unprincipled power grab by an 
administration intent on trampling civil rights. As I've 
debated the Act across the country, I've been amazed by the 
universal ignorance about what the Act actually contains. I 
applaud the Committee for taking the time to finally get the 
facts out.
    The PATRIOT Act recognizes the fundamental truth about 
terrorism. Our only weapon against it is intelligence. 
Accordingly, Congress, in passing the Act, amended existing 
surveillance powers to ready them for the terrorist challenge. 
Its most important contribution was tearing down the wall that 
prevented information-sharing among all terror investigators. 
Today, thanks to Congress, all members of the anti-terror 
community can collaborate to try to prevent the next strike 
before it happens.
    The PATRIOT Act made other necessary changes to 
surveillance law as well. It extended to terrorism 
investigators powers long enjoyed by criminal investigators, 
and it brought our laws into the 21st century of cell phones 
and e-mail. Each of those changes was accompanied by the most 
powerful restraint we have in our Constitution, judicial 
review. The Act carefully preserves traditional checks and 
balances that safeguard civil liberties.
    For that reason, after 4 years of constant review by the 
Justice Department's Inspector General and a host of hostile 
advocacy groups, not a single abuse of power has been found or 
even alleged.
    Now I've observed four rhetorical strategies used to 
discredit the Act. I call them hide the judge, invent new 
rights, conceal legal precedents and oppose secrecy. I want to 
review these strategies 
in the context of the two most controversial provisions of the 
PATRIOT Act--section 215, the business records provision, and 
213, delayed notice.
    215 allows the government to get records in third party 
hands for terrorist investigations. It's been attacked as a 
massive violation of free speech. It's the librarians' hysteria 
provision. The librians are all convinced that the section is 
all about them, even though the Act doesn't mention libraries. 
What you never hear in the attacks on 215 is that the 
government cannot get any records without prior approval of the 
FISA Court. These are Article III judges who have pledged to 
protect our civil rights. They are not going to approve a 
search of somebody's records simply because the FBI doesn't 
like your reading habits, as the ACLU has alleged.
    It's also been blasted as a violation of Fourth Amendment 
privacy rights. Now we're getting into my second strategy, 
which is to invent new rights. Courts have long held there is 
no Fourth Amendment privacy rights in records held by third 
parties. For that reason, prosecutors or grand juries--your 
fellow citizens--can get those same records without any 
judicial review whatsoever. Section 215 is actually more 
protective of rights than the criminal powers that pre-existed 
it.
    Now the furor over section 213, the delayed notice 
provision, illustrates my third rhetorical strategy, which is 
concealing legal precedent. 213 allows the government to delay 
notice of a search--delay, not permanently put it off--if 
notice would have an adverse result such as witness 
intimidation, evidence tampering or jeopardizing an 
investigation.
    This has been portrayed by the ACLU and other groups as a 
radical new power that's going to unleash government tyranny. 
The gall of this claim, frankly, astounds me, because 213 
merely codifies two decades of existing judicial precedent. If 
delayed notice was the threat that its critics have made it out 
to be, we would have already heard about abuses that such a 
power leads to.
    As with every other provision of the Act, the critics have 
not been able to bring forth a single example of abuse over the 
last 20 years of the delayed notice authority.
    213 attacks also take advantage of the hide the judge 
strategy. You'll never hear that in order to even delay notice 
of a search first you need to go through your traditional 
probable cause hearing to justify a warrant and you need to 
persuade the judge that there is a necessity to delay notice.
    Ultimately what drives much of the criticism is a deep 
suspicion of government secrecy, the fourth strategy--deny the 
need for secrecy. I constantly hear the FISA Court disparaged 
as a mere rubber stamp because its proceedings are closed to 
the public. Opponents of 213 and other provisions apparently 
believe that if the government is investigating Mohammad Atta, 
for example, he should be notified in advance that the 
government wants to search his hard drive. This line of attack 
shows a complete obliviousness to the fact that what we're 
doing here is not a criminal investigation after the fact but 
we're trying to pre-empt a terrorist attack before it happens. 
Speed and secrecy are of the essence in preventing an attack.
    In conclusion, the PATRIOT Act is balanced. It's a 
reasonable response to the new threat of catastrophic 
terrorism. It has not led to a single abuse of civil rights. 
And it should be renewed.
    Thank you very much for your attention.
    Chairman Roberts. Ms. MacDonald, thank you very much for 
your statement.
    Members will have 5 minutes in the first round and we will 
go to a second round if necessary.
    I have a question in reference to section 218 and 
``significant purpose.'' I think everybody seems to agree with 
the Foreign Intelligence Surveillance Court review that the 
``significant purpose'' certification standard was not really 
needed to tear down the information-sharing walls--and that's 
my word--created by the Department of Justice and adopted by 
the Foreign Intelligence Surveillance Court.
    Nonetheless, the provision was the catalyst for policy 
changes that have greatly improved the FBI's ability to consult 
with prosecutors in national security investigations and share 
information both within the FBI and among other members of the 
intelligence community.
    Now, Mr. Nojeim, as I read your recommendations, it appears 
that you want to--this are my words, probably not your 
description--rebuild the walls between the FBI and national 
security investigators and prosecutors and restore the Foreign 
Intelligence Surveillance Court, what I think is a 
misinterpretation of the law. Why do you think it's a bad idea 
for the FBI agents conducting national security investigations 
to be able to consult with prosecutors to the same extent as 
the FBI agents who are conducting the domestic criminal 
investigation? How is it an end run around the Fourth Amendment 
to use FISA to pursue a terrorist group like the al-Qa'ida or 
spies like Robert Hansen?
    Mr. Nojeim. I never said in my testimony that they 
shouldn't be allowed to consult. What I did say was that the 
risk to the Fourth Amendment is this: FBI agents believe that 
such-and-such a person has committed a terrible crime. They 
want to search the person's home and they want to wiretap the 
person to get evidence of that crime, and to put him behind 
bars.
    Normally they would have to go in front of a judge and show 
probable cause of crime. Under the ``significant purpose'' 
test, if they also have an intelligence rationale they no 
longer have to do that. Eventhough they are looking for 
evidence of a crime, they never have to show probable cause of 
crime because they can go around that requirement, search the 
home or eavesdrop on the telephone conversation if they meet 
the intelligence rationale under the PATRIOT Act and that 
intelligence gathering is a significant purpose of the 
surveillance.
    There is a problem. We have to admit that there is a 
problem about going around the Fourth Amendment. The issue is 
how do we deal with that problem. We suggest three things. The 
first I hope is easy. It's increased public reporting. We're 
not asking for the FBI to disclose sources and methods of 
intelligence gathering. Even the raw numbers of searches that 
involve the use of this power is not disclosed. Even whether 
the person who is being surveilled is a U.S. person, a citizen, 
or a lawful permanent resident, that's not disclosed either. So 
disclosure is one thing that needs to happen.
    Another thing that needs to happen----
    Chairman Roberts. If you can do the two real quickly, I've 
got a yellow light and I want to turn to Ms. MacDonald.
    Mr. Nojeim. Another thing that needs to happen is making it 
so that the person who is accused of a crime based on that 
information that's gathered in that intelligence surveillance 
can get access to the application that was used to gather that 
information. There's a ready process under the Classified 
Information Procedures Act that could be grafted onto the 
statute to make it work better.
    Ms. MacDonald. Can I just respond?
    Chairman Roberts. Ms. MacDonald.
    Ms. MacDonald. Mary Jo White, who before 9/11 was the most 
seasoned al-Qa'ida prosecutor, told me that there was no 
greater barrier to fighting terrorism than the wall. She said 
it was something that they beat their heads against all the 
time. The idea that the process of going before the FISA Court 
is some flippant, easy way to have a run around the Fourth 
Amendment is absurd.
    You need massive clearance within the FBI. Then you have to 
persuade the Office of Intelligence and Policy Review to bring 
your case before the FISA Court. I believe it was the Senate 
Select Committee itself that, several years before 9/11, was 
extremely concerned with the hurdles that were being placed by 
OIPR on FISA requests from the field.
    I think we also forget that there has been a massive sea 
change in law enforcement culture. For the civil liberties 
advocates, it's always 1968. We always have J. Edgar Hoover 
trampling civil rights. In fact, let's be honest. Law 
enforcement, the FBI, has internalized norms of restraint. As 
General Hayden told you last week, his challenge within the NSA 
was to try and persuade his agents to use their powers, not to 
pull them back from an abuse of power.
    The FISA process is basically, as the first head of OIPR, 
Mr. Bass, Kenneth Bass, said, it's basically a probable cause 
warrant.
    Chairman Roberts. Senator Rockefeller. Thank you, Ms. 
MacDonald.
    Vice Chairman Rockefeller. Thank you, Mr. Chairman.
    Perhaps I could ask this question of each of you and then 
have you rebut each other, all in 5 minutes. The liveliest part 
of this controversy is what we've just been talking about, and 
that's 215 on access to records. It's about the librarians, 
named, unnamed. Booksellers have been concerned about it. It's 
not limited to libraries and books.
    Now we have read and we have heard your separate arguments 
about that section. It would be helpful to each of us to hear 
those arguments side by side. Would you each take a minute to 
state your main point about section 215 and then a half minute 
to rebut what others say about that--a side-by-side approach.
    Ms. MacDonald. 215 gives the government access to business 
records that a criminal prosecutor already had access to for 
the mere after-the-fact investigation of a crime. This allows 
terrorism investigators to have access to those same records. 
It requires FISA Court approval. The fact that it removed the 
four narrow categories merely acknowledges the fact that we 
cannot predict the next terror attack.
    Who would have known that it would have been nice to have 
had flight school records before 9/11? Under 215 the government 
can get flight school records and it's not confined to storage 
lockers.
    Mr. Nojeim. Prior to the PATRIOT Act and after the PATRIOT 
Act the government had the power to, when it was investigating 
a crime, get a criminal subpoena. It could do that for 
terrorism crimes; it could do that for other crimes. It's 
inaccurate to imply that it couldn't do it for terrorism 
crimes.
    What we would like to see on section 215 is an increase in 
the standard of review. In particular, the notion that when the 
records are ``sought for'' an investigation is a very, very low 
standard. In addition, we suggest that these records requests 
be limited to records that pertain to an agent of a foreign 
power. We say that we want to restore the ``agent of a foreign 
power'' standard, and again this has nothing to do with 
information-sharing, which we do not oppose, when we say 
restore the ``agent of a foreign power'' standard, we say that 
because it protects records about people who have nothing to do 
with terrorism, and they are mostly Americans.
    Vice Chairman Rockefeller. Mr. Dempsey.
    Mr. Dempsey. Senators, as I said in my opening remarks, 
there's not a category of records that I can think of that the 
FBI shouldn't have access to in intelligence investigations. 
The expansion of 215 from some limited categories of records to 
any records, including library records, was appropriate. 
Libraries aren't really the issue, as we all know, and if there 
is something at a library that's valid and useful, the 
government should have access to that as well.
    The question is, shouldn't there be some factual basis for 
the government's request. I think the one-to-one comparison 
between the criminal side, where there are lots and lots of 
checks and balances all the way to right to counsel and the 
adversarial process, you get a subpoena, you can scream bloody 
murder about it, but these are secret. We have to have 
something compensating for that.
    The judge right now is a rubber stamp. If the government 
says we want them and signs a piece of paper, the judge has to 
approve it and does approve it, and there's----
    Vice Chairman Rockefeller. Do you disagree with that, Ms. 
MacDonald?
    Ms. MacDonald. I disagree. The language in 215 is identical 
to the pre-PATRIOT language on the standard of review. Under 
that standard pre-PATRIOT, there was still the months-long 
vetting on OIPR. In fact, there is basically, in practice, a 
factual predicate. That certification language is no different. 
Either there was the same problem pre-PATRIOT and we didn't 
know about it, or it's not a problem at all.
    As for restoring the ``agent of a foreign power'' standard, 
I think that would be a great mistake, for the same reason that 
I mentioned why we're expanding the documents. We can't predict 
in advance what the contours of a terror investigation are 
going to be. Somebody may have unwittingly bought fertilizer 
for a suspected terrorist. Under the agent of a foreign power 
standard, you're not going to be able to get those records of a 
farm supply store because it's not his records that you're 
looking for. It's a third party that's bought them.
    Finally, again there's no Fourth Amendment interest in 
records in third party hands. A prosecutor can already get 
them. They are no more available under the PATRIOT Act than 
they were before the PATRIOT Act.
    Vice Chairman Rockefeller. My time is up, Mr. Nojeim, but I 
will come back to you on the second round because I excluded 
you and I didn't mean to.
    Mr. Dempsey. Senator, could I have just one quick 
clarification?
    Vice Chairman Rockefeller. No, because we're being very 
strict about time. We will have a second round.
    Mr. Dempsey. Of course.
    Chairman Roberts. See, I was going to grant that, but this 
man is just an absolute tyrant with time, as you can see.
    [Laughter.]
    Chairman Roberts. Actually, he's a heavy-handed despot, but 
I'm not going to get into that any further.
    Senator Lott.
    Senator Lott. Thank you, Mr. Chairman. Thank you for your 
restraint that you've been exercising throughout this hearing. 
I thank the panel for being here.
    I must say to you, Ms. MacDonald, how impressed I am with 
your credentials and your resume and your testimony here today. 
I'm glad to hear somebody take the position that I agree with 
very strongly.
    The PATRIOT Act is coming up for reauthorization. We need 
to listen to complaints. We need to review how it has worked. I 
found it completely telling when you note, for instance, after 
constant monitoring by the Justice Department Inspector General 
and all kind of hostile advocacy groups horrified at what might 
happen, not a single abuse has occurred or been seriously 
alleged.
    That is what you're saying.
    Ms. MacDonald. That is what I'm saying. We've heard none 
today either. It's not just under the PATRIOT Act. Again, the 
most interesting issue for me is the delayed notice provision. 
We've had 20 years of delayed notice power that is now causing 
the public to fear that the FBI's going to be rummaging around 
their underwear drawer and not a single abuse has occurred for 
the last 20 years.
    Again, I think what this speaks to is the sea change in law 
enforcement culture and the fact that the checks and balances 
that exist before the PATRIOT Act and certainly exist after the 
PATRIOT Act are working.
    Senator Lott. Let me ask you to do this, then. As we look 
at this Act, let's not just look at some of the complaints 
about it. Let's look at are there some ways that maybe we could 
strengthen it even further, that would be helpful in trying to 
provide additional surveillance or investigative authorities 
that might help us to combat terrorism.
    Have you thought about that?
    Ms. MacDonald. I'm not going to take that on, Mr. Lott. 
It's hard enough to defend what exists. I know that the FBI has 
been asking for administrative subpoena power. I'm basically 
agnostic on that.
    Senator Lott. Well, with your presentation and with your 
credentials, I hope you'll meditate about that and think about 
it and see how maybe we can make it even better by making it 
stronger in some areas where maybe there are some weaknesses.
    Ms. MacDonald. I would say probably what would be more 
important is the political branches sending a message to law 
enforcement that they will be supported, if they are acting in 
good faith, that they don't need to worry about the 
hypothetical trumping up of civil liberties concerns, that the 
government, people like yourself, will support them in the full 
exercise of their power.
    Senator Lott. You know, you cannot be agnostic about 
privacy issues and protecting individual citizens' privacy 
rights. My question is, I guess, are there sufficient 
safeguards in this Act as it now exists?
    Ms. MacDonald. We have no stronger safeguard in our 
Constitutional system than judicial review. The FISA Court 
operates in secret, that's true, as it must. There is simply no 
way that you can conduct a pre-emptive terror investigation in 
public. You cannot have C-SPAN and CNN covering the proceedings 
before the FISA court and think that we're going to be able to 
beat this enemy.
    There is judicial review throughout the PATRIOT Act, 
whether it's before the FISA Court or before a regular Article 
III court. Again the results speak for themselves.
    Mr. Dempsey. Senator, may I respond?
    Senator Lott. Mr. Dempsey, I was going to ask if you have 
any comment on either of my two questions.
    Mr. Dempsey. Yes, sir. First of all, in terms of the 
abuses, when a provision says that the government gets anything 
they want just for asking for it, I don't see how that can be 
abused. I honestly don't. A standardless law, it's hard to say 
there's an abuse, and that is some of what we're talking about 
here.
    Now I think there have been what I would call abuses. I 
think using the PATRIOT Act to break into a judge's chambers 
and conduct a secret search in a non-terrorism case involving 
no threat of life and no intimidation or likelihood of 
intimidating witnesses, I don't think that that's what members 
of this body thought they were voting for when they approved 
the PATRIOT Act. I think that's an abuse.
    It's within the four corners of the law, but I think that's 
an abuse of the concept of this emergency legislation that was 
passed to address a compelling national security threat. I 
think that other of these provisions are so broadly written 
that they cannot be abused. I think they should be narrowed.
    Ms. MacDonald was referring to the judges. This law says 
that if an FBI agent comes in with a signed piece of paper 
saying--actually, it's interesting. It doesn't even say it has 
to be in writing. It doesn't even say that the officer has to 
name himself. If you compare this to some of the other laws on 
our books, some of the subpoena laws or the pen register 
statute for criminal cases, it has to be in writing. This 
doesn't even say it has to be in writing. It doesn't say he has 
to even name the case.
    All he has to do is come in and say, ``I want these records 
for an intelligence investigation,'' and the law says upon 
application, oral application probably, the judge shall enter 
an ex parte order as requested or as modified, period. Why even 
have the judge in that case? That's a rubber stamp.
    Now one thing that's interesting--and Ms. MacDonald 
referred to this earlier--if you actually look at the FBI's 
guidance on how to interpret this, it's actually better than 
the text of the law. The FBI guidance on this does say that 
they always have, internally at least, a factual basis and they 
always have, it seems, some particularized suspicion.
    Chairman Roberts. Mr. Dempsey, I'm going to have to 
interrupt at this point, and I do appreciate your point of 
view.
    Could you clarify for the Committee which judge we're 
talking about in terms of the chambers?
    Mr. Dempsey. I honestly don't know. It was in a letter that 
the FBI sent to Senator Stevens describing the use of the sneak 
and peek legislation.
    Chairman Roberts. All right. We can find that.
    Senator Bond.
    Senator Bond. Thank you very much, Mr. Chairman. I thank 
the panel. I think we've had a very good discussion of what has 
been widely abused and misused and misrepresented, as we now 
hear people with differing points of view agreeing that there 
is justification for this. I happen to be a strong supporter of 
the PATRIOT Act. For better or for worse, I, with my colleague 
from Maine, Senator Snowe, authored the Visa Integrity and 
Security Act provisions which have caused a lot of heartburn. 
We understand that any law like this should be reviewed and we 
very much appreciate the thoughtful comments.
    I go back to Mr. Dempsey and ask him briefly, you say on 
section 213 it was used to expand government powers with 
respect to delayed notice searches and that the section lacks 
suitable checks and balances. It was my understanding the 
PATRIOT Act merely codified pre-existing judicial precedent 
that allowed investigators to execute delayed notice criminal 
search warrants under certain limited circumstances.
    To what extent was 213 an expansion of authority? Why 
aren't the current limits unreasonable? If you have to have 
approval of a judge, why isn't it appropriate to delay notice 
in certain circumstances?
    Mr. Dempsey. Senator, a good question. Let me give you an 
example of how the provision failed in its stated goal of 
codifying existing practice.
    Senator Bond. All right.
    Mr. Dempsey. Two circuit courts had specifically ruled on 
the question of delayed notice. Each of them had come down in 
favor of a 7-day delay rule as the basic timeframe for which 
delay could be permitted, renewable for successive 7-day 
periods upon a good showing.
    The PATRIOT Act, rather than codifying that case law, says 
the delay can be for any reasonable period. Well, what are the 
judges of the Ninth Circuit supposed to do now? They had come 
up with a 7-day rule. The Congress has not taken up the 7-day 
rule and adopted a reasonable period rule.
    If you look at the Justice Department guidance, they say 
that up to 90 days would be a reasonable delay. That's an 
example of where we could have given specificity and clear 
standards and in fact failed to do so.
    Senator Bond. Maybe Congress thought that the judges should 
determine in the particular circumstances what is reasonable 
and that if you are looking at a multi-faceted investigation, 
as some of the ones that we have heard about here, there's no 
way you're going to get it finished in 7 days. I would think 
that the judge would have to be presented. They've said seven. 
Time's up. I want Ms. MacDonald to comment on that.
    Mr. Dempsey. If I could, Senator, just 1 second.
    Senator Bond. I want Ms. MacDonald to comment when Mr. 
Dempsey finishes his thought before we yellow light goes off.
    Chairman Roberts. Mr. Dempsey, please proceed.
    Mr. Dempsey. If we were going to leave it to the judges, we 
should have left it to the judges. We didn't need 213 at all. I 
think that the reason why the Justice Department pushed for 213 
is because they had come to the conclusion that that legal 
authority that everybody cites was on shaky ground, because if 
you look at those cases, there are some older cases that said 
that the Fourth Amendment has nothing to do with notice or says 
nothing about notice. Then the Supreme Court later came along 
and said that notice is part of the Fourth Amendment 
determination.
    Ms. MacDonald. Subsequent to that case itself, there's been 
a Seventh Circuit case that said that you can delay notice for 
reasonable periods of time. To my mind, reading the case law, 
there is no question that delayed notice is fully 
constitutional.
    I think it was wise of Congress to give judges and 
investigators the leeway to determine what a reasonable period 
of delay is. One of the problems that we had pre-PATRIOT Act 
was short time limits on warrants that were creating an 
enormous amount of paperwork.
    You know, again, we're fighting terrorism here. We're not 
trying to prosecute----
    Mr. Dempsey. Then let's limit this one to terrorism.
    Ms. MacDonald. OK. I want to respond as well to Mr. 
Dempsey's point about 215 when he asks, ``Why have a judge?'' 
Again, let's remember that these documents are available 
without a judge. A prosecutor can get them on his own request. 
Why 215 is more problematic is a mystery to me. The standard by 
which the FISA Court decides a 215 request under the PATRIOT 
Act is the same standard as under FISA. It required a factual 
showing before the PATRIOT Act and it still requires it now.
    Chairman Roberts. Senator Wyden.
    Senator Wyden. Thank you, and thank all of you. We've got a 
good cross-section of views at this table.
    This Act is going to be renewed. There's just no question 
about that. I would be interested in just going right down the 
row--and we can start with you, Mr. Dempsey--and have each of 
you say what you think the most important areas are with 
respect to what the Congress should require in the way of 
reporting. In other words, take two items each, the two most 
important areas to you in terms of what is most important for 
reporting so as to strike this balance between protecting the 
public good and individual liberties.
    Mr. Dempsey.
    Mr. Dempsey. Recognizing that reporting is one aspect of 
the sort of checks and balances we're talking about.
    Senator Wyden. Right. I think one of the most important 
ones.
    Mr. Dempsey. I think reporting should apply to a couple of 
the sections that we haven't talked about yet, which are the 
emergency disclosure of e-mail section, which is section 212, 
again a relatively uncontroversial provision in some ways. I've 
been hearing that there have been a lot of requests. Again, 
these are non-terrorism cases. These are by and large criminal 
matters, and there's absolutely no reporting now for those 
extrajudicial disclosures where the government goes to the 
service provider, says there's an emergency, the service 
provider, without a court order, turns over the e-mail. We 
really don't have any kind of a handle on how often that's 
happening.
    In terms of FISA reporting, both on the electronic 
surveillance, physical surveillance and on 215, I think the 
issue there is to find a way to bring some of that more 
detailed information into the public light. I know this 
Committee receives the classified information. I would 
certainly urge you to look carefully at the applications, 
particularly the U.S. person ones. You may do that.
    If you do do that, it would be useful to have a report 
about that. In the early years of FISA there was a 5-year 
report on its application which was an unclassified, public 
report. I think that would be helpful. I think that could be 
done without compromising any classified information and could 
talk about what this Committee is doing behind the scenes as an 
oversight matter.
    I think there could be some more public reporting on FISA.
    Mr. Nojeim. To summarize, sections 215 and 505, the FISA 
records provisions, there ought to be reports under those 
provisions. In fact, AG Gonzales revealed for the first time 
just a couple weeks ago that section 215 had been used 35 
times. A year before that Attorney General Ashcroft had said it 
had never been used. It seems to me that if they can disclose 
selectively the number of times it's been used that an annual 
reporting requirement probably wouldn't damage national 
security.
    The section 215 reporting notion should be extended to 
section 505, National Security Letters, as well.
    In addition, sections 203(b) and 203(d) about information-
sharing, they could be beefed up with additional notice to the 
court and to Congress about how information is being shared, 
because right now there aren't sufficient requirements about 
that.
    Then I'd like to follow up for just a second on what 
Senator Bond was saying earlier about sneak and peek warrants.
    Senator Wyden. My time is short and I want to get Ms. 
MacDonald in. If you could give us that a little bit later, 
that would be great.
    Ms. MacDonald. Thank you, Senator Wyden. I'll yield my time 
back to Mr. Nojeim because I don't feel qualified to answer 
that question. It's not something that I'd looked at on a 
section-by-section basis. My impression is, given the past 
reporting to the Judiciary Committee in the House, that the 
reporting requirements are very extensive.
    I'm not aware, really, of any gaps in reporting 
requirements that exist.
    Senator Wyden. I may have time for one additional question. 
I was going to ask about National Security Letters, because I 
have been troubled by the fact that there really isn't any 
court review on it. What I'm most interested in to start with 
is, do any of you know how frequently they've been used? 
Because if this is not a frequently used tool, that makes it a 
matter of lesser importance.
    Do any of you three know about how frequently they've been 
used?
    Mr. Dempsey. Not currently. The staff knows; it's reported, 
I think, to the Committee.
    Mr. Nojeim. It ought to be something that's reported to the 
public, the frequency of the use of those.
    Senator Wyden. Are they widely used? Ms. MacDonald, do you 
know?
    Mr. Dempsey. Oh, they are very widely used. It's a classic 
investigative technique.
    Senator Wyden. My time is up. I would only ask, if that's 
the case--and I was not aware of that, Mr. Chairman--I would 
like to work with both of you on that.
    Chairman Roberts. Senator Wyden, we do have that 
information that you requested. We will share that with you.
    Senator Wyden. My understanding, then, is, Mr. Chairman, 
that there are very few rules with respect to National Security 
Letters and if it's a widely used tool I would like to work 
with both of you and see if we can flesh out a bipartisan 
change there that would strike the right balance between 
security and individual rights, because as far as I can tell 
there's no standard for it.
    I thank you.
    Ms. MacDonald. Can I just make one response? The National 
Security Letter law was 1986 law, and it was Patrick Leahy that 
believed that they should be secret. Again, this is something 
we've had a very long time to look at whether it's a power 
that's been abused. Again, I'm not aware of abuses.
    Senator Wyden. Well, there are a variety of statutes that 
mandate National Security Letters. Other letters are 
permissive, Ms. MacDonald. That's why I think we're going to 
take a look at it.
    Thank you, Mr. Chairman.
    Chairman Roberts. Let the record show that we had a witness 
before the Committee who actually said that she didn't know 
about a question. I think that's remarkable.
    I want to let my colleagues and everybody be aware of the 
fact--I know Mr. Dempsey mentioned records and what the 
Committee might do--this is not our first review of the PATRIOT 
Act or the Foreign Intelligence Surveillance Act. We regularly 
hold hearings and conduct briefings and receive information in 
regard to the activities of the intelligence community.
    We conducted a closed hearing on the PATRIOT Act during the 
last Congress. We receive detailed reports from the Department 
of Justice every 6 months in regard to FISA, annual reports on 
the use of other surveillance tools. We're also in the final 
stages of completing our second audit of the procedures and 
practices and use of FISA. This comprehensive and classified 
analysis I think will represent one of the most thorough 
reviews of the Executive branch activities under FISA since the 
Act was enacted.
    That was in my opening statement and I wanted to make sure 
that everybody here understood that we are aggressively active.
    Senator Feinstein I think is next.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    As a member of both this Committee and the Judiciary 
Committee, in our hearings on the PATRIOT Act I have really 
been hard-pressed to find any signs of bad use or overuse. I 
have pressed the Attorney General to provide a specific report. 
He has provided it. I've been though it. I have a hard time 
finding any instance of misuse of this Act.
    I would like the two people--Mr. Dempsey and Mr. Nojeim--to 
take their best shot and give me what the misuse has been or 
bad use and how it should be repaired.
    Mr. Nojeim. We wrote a letter to you about this.
    Senator Feinstein. I got that letter, a 12-page letter, I 
think.
    Mr. Nojeim. Let me just run through some of the points that 
we made. First, the PATRIOT Act was used to search the home of 
Brandon Mayfield. He's the Portland, Oregon, attorney who was a 
suspect in a crime, and that was the Madrid train bombing. It 
turned out that he was completely innocent and the PATRIOT Act, 
the ``significant purpose'' test of the PATRIOT Act was used to 
get the intelligence warrant to search his home. I could go 
into that case in a little bit more detail.
    Senator Feinstein. Let me stop you there, because I moved 
the amendment in Judiciary for the ``significant purpose.'' If 
you were to change it, how would you change it? Because I agree 
with Ms. MacDonald. I think in this world that we live in, the 
breaking down of that wall from ``primary purpose'' to 
``significant purpose'' was really important to do.
    Mr. Nojeim. As we wrote in the letter to you, we're not 
asking that you support repeal of the ``significant purpose'' 
test. We're asking that you increase reporting. We're asking 
that you----
    Senator Feinstein. You mean periodic reporting?
    Mr. Nojeim. Reporting, for example, of how many U.S. 
persons are searched under FISA. Brandon Mayfield is a native-
born American.
    Senator Feinstein. I understand that.
    Mr. Nojeim. That's what we're asking for.
    Another thing that we're asking is that you put the Brandon 
Mayfields of the world--and there will be more of them--in a 
better position if the government doesn't come forward with the 
evidence showing that it wrongly accused them. Brandon Mayfield 
could have gone to trial accused of one of the worst crimes in 
history without getting access to the information that was used 
to search his home.
    What we're suggesting is that the Classified Information 
Procedures Act provides a good model that the Committee could 
adopt for giving a person like that, who is accused of a 
terrible crime, if it actually goes to trial, access to that 
information.
    Another thing that we mentioned, in our letter to you, as 
an abuse was the use of an unconstitutional statute. The 
National Security Letter statute has been struck down by a 
Federal district court. The statute was broadened 
substantially, rewritten by the PATRIOT Act, and one can't say 
that repeated use of an unconstitutional power is not a 
problem. It is a problem.
    We suggested a number of changes to the National Security 
Letter statute that we think would satisfy that court. For 
example, making it so that a person who gets one of those 
National Security Letters can talk to a lawyer, making it so 
that the gag that prevents them from saying they ever got a 
letter is time-limited, and putting in a meaningful standard of 
review for that letter.
    The other cases that we mentioned in our letter to you 
include the exclusion of a Muslim scholar under section 411 of 
the PATRIOT Act that appears to be based on the person's 
political opinion; in another one, the prosecution of a 
gentleman, Sammy L. Hussein, for, among other things, posting 
material to the Internet that he didn't even write. He posted 
things to the Internet that were links to what other people 
wrote. He was charged for providing material support for 
terrorism for doing that and for some other things.
    These are problems. We're suggesting that this Committee 
can deal with those.
    Senator Feinstein. Mr. Dempsey, quickly.
    Mr. Dempsey. I think the cases cited by Mr. Nojeim are real 
cases of abuse. I had cited in my dialog with Senator Lott 
others that I thought were not what Congress had intended, 
although they are within the four corners of the legislation--
use of PATRIOT Act authority for nonviolent crimes having 
nothing to do with terrorism.
    I also think, looking at the Justice Department report on 
the PATRIOT Act sunsets, there's no evidence of abuse; also, 
for many of the provisions there's no evidence of use, not that 
they aren't used, but there's nothing one way or the other in 
this report saying good or bad about how those cases have been 
used.
    I'm not sure that the standards, particularly for 
intelligence authorities, should be documented abuses. I think 
we can now take the time, look at the authority, ask does the 
authority meaningfully advance the national security. I think 
in almost every case, if not every case, there is an argument 
that it does. Then ask ourselves what should be the 
circumstances surrounding that.
    Clearly Congress thought it was retaining some limits. 
Witnesses today have emphasized the role of the judiciary, for 
example. The fact that the government needs information doesn't 
mean that all the rules are off. We now have the time to go 
back. We've made what I think are significant proposals, 
relatively modest, but they would help focus the FBI and other 
intelligence agencies.
    Ms. MacDonald. Can I quickly respond?
    Senator Feinstein. My time is up, but could Ms. MacDonald 
comment?
    Chairman Roberts. Well, I certainly would like to recognize 
Ms. MacDonald for her quick-draw best shot.
    Ms. MacDonald. OK. Thank you.
    I think we've had a case of bait and switch here. I'm 
really perplexed by the Brandon Mayfield example. What we were 
hearing, the doom and gloom scenarios about getting rid of the 
``primary purpose'' test was that you would have a sneaky 
prosecutor who wants to get some guy for drugs and he uses FISA 
because it's a lower standard of review.
    Brandon Mayfield was being investigated for terrorism. I 
don't see how that is a misuse of the PATRIOT Act. The problem 
was the fingerprinting was inaccurate. That was not a PATRIOT 
Act abuse. The system worked. He was exonerated. He was not 
prosecuted. I'm very perplexed by the Mayfield example.
    If that's all they've got, it's not much. The National 
Security Letter statute that Mr. Nojeim says was stuck down as 
unconstitutional, that's true, but they did not strike down the 
PATRIOT Act provision. They struck down the 1986 Electronic 
Communications Privacy Act and Senator Leahy's idea that there 
should be a gag order. Let's not way that the PATRIOT Act has 
been struck down as unconstitutional.
    The exclusion of a Muslim scholar because of his political 
opinion, I'd need to know the facts about that. Obviously if 
somebody is preaching jihad, in the worst case scenario, I do 
not think that we want to admit. There's no constitutional 
right of a foreigner to be admitted to this country. He has no 
First Amendment rights. Without knowing more about the case, 
that would be my initial reaction.
    Chairman Roberts. Senator Corzine.
    Senator Corzine. Thank you, Mr. Chairman, and I appreciate 
the hearing.
    I'd like to actually continue on this. I come at this by 
citing a quote in the 9/11 Commission.

          ``The burden of proof for retaining a particular governmental 
        power should be on the Executive to explain that the power 
        actually materially enhances security and that there's adequate 
        supervision of the Executive's use of the power to ensure 
        protection of civil liberties.''

    It goes on.
    I embrace that concept, and I think this discussion of 
abuses actually is one of those elements that maybe some of 
this needs to be done privately where you delve into it. The 
idea of a judge's quarters being interdicted into without any 
kind of authori-
zation----
    Mr. Dempsey. There was a court order, just to be clear, 
Senator. There was a court order, but it was a secret search.
    Senator Corzine [continuing]. Strikes me as somewhat 
overreaching. I'd like to hear the response to Ms. MacDonald's 
comments about the Mayfield situation, which, if you were Mr. 
Mayfield, an American citizen, you'd wonder why you were being 
subjected outside of extraordinary causes, why you were being 
subject to an investigation without the kinds of checks and 
balances that American citizens believe that they have under 
the Constitution.
    Mr. Nojeim. A couple points in response to Ms. MacDonald.
    First, in the Mayfield case, the government never had to 
show probable cause of crime in order to break into his home. 
It's just a different standard. It's a lower standard. They 
used the PATRIOT Act to break into his home. They didn't give 
notice. They wouldn't have to give notice--I'm sorry. Pre-
PATRIOT Act, they would have had to give notice. They would 
have had to, when they broke in and downloaded the computer 
hard drives, took 355 digital photographs, took 10 samples of 
DNA, they'd have to leave a notice saying this is what we took 
from your apartment.
    You know what Mayfield's most concerned about now? All this 
information that was gathered has now been shared. It's been 
shared under the information-sharing provisions of the PATRIOT 
Act. There's not a Rule 41 A-type procedure for Mayfield to get 
it all back, to get back what was downloaded from his computer. 
That's one of his concerns.
    The other point that Ms. MacDonald made was about the 
National Security Letter statute. This I need to illustrate. 
The PATRIOT Act rewrote the National Security Letter statute.
    This is 18 USC section 2709, before the PATRIOT Act.
    This is what the PATRIOT Act did to the National Security 
Letter statute. The parts that are in yellow were added by the 
PATRIOT Act. The parts that are crossed out were deleted by the 
PATRIOT Act.
    Chairman Roberts. If you can, Mr. Nojeim, speak up. I 
apologize that we don't have a rolling mike.
    Mr. Nojeim. This is what the Court did to 18 USC section 
2709. It struck the parts that were added by the PATRIOT Act 
and it struck the parts that were in the statute before the 
PATRIOT Act amended it that were not deleted by the PATRIOT 
Act. It struck every single sentence, every phrase, every comma 
of section 505(a) of the PATRIOT Act. It is simply not accurate 
to say that it didn't strike a section of the PATRIOT Act.
    [The chart referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T4983.001
    
    [GRAPHIC] [TIFF OMITTED] T4983.002
    
    [GRAPHIC] [TIFF OMITTED] T4983.003
    
    Mr. Nojeim. In his opinion striking this National Security 
Letter statute, Judge Morero repeatedly, repeatedly referred to 
amendments made by section 505(a) of the PATRIOT Act. He noted 
as examples of abuses conduct that could not have been 
conducted prior to the PATRIOT Act changes. In particular with 
respect to the gag in section 505(a), he said that the 
requirement of the tie to an agent of a foreign power limits 
the potential for abuse and cited that as one of the reasons he 
was striking down this statute.
    Ms. MacDonald. I read that opinion very differently. The 
ACLU was challenging the 1986 law on the fact that there was a 
gag order in the National Security Letter 1986 law that was put 
there by Patrick Leahy. The PATRIOT Act changed the 1986 law to 
this extent: it removed the agent of a foreign power 
requirement. That is not the issue that was before the Court.
    The issue before the Court was the constitutionality of the 
gag order which was in 1986. Yes, it struck down the entire 
section because the PATRIOT Act merely amended that section. 
The PATRIOT Act changes were not what was at stake. It really 
is more accurate to say it struck down the 1986 law.
    On the Mayfield case, again they were breaking into his 
house because he was under investigation for terrorism, not for 
a garden variety crime. Pre-PATRIOT Act they would have had to 
have given notice. Do we want to be giving notice to suspects 
in terrorism cases? I don't think so. Now, are there going to 
be cases in the future, perhaps, where other American citizens 
are suspected of terrorism. Could be. I wish we knew that no 
American is ever going to be tempted to join into a terrorist 
plot.
    We don't have a rule to that effect. I think that the power 
to investigate terror suspects is properly limited by the 
PATRIOT Act. That was a terrorism investigation, not a criminal 
investigation.
    Chairman Roberts. Senator Rockefeller.
    Vice Chairman Rockefeller. Thank you, Mr. Chairman. I just 
have one question. Over the months, years of its history, it 
seems to me to have always been the core question. That is, I'm 
not sure which one said it, but one of you said that the FISA 
judges are nothing more than a rubber stamp.
    I think that there are those who oppose the PATRIOT Act or 
want to see it changed because they accept that. I'm not a 
lawyer and I would wish to hear each of you say why you think 
or what you think about that statement.
    Mr. Dempsey. Senator, that was my statement, so if I could 
first--let me make it clear. I don't think that the FISA judges 
are rubber stamps in reviewing the content interception orders 
or the physical search orders, and they have proven that 
because they have clearly pushed back against the FBI and 
against the Office of Intelligence Policy Review, which 
presents the orders to them. Absolutely, I don't think that 
they are rubber stamps.
    I think under 215 they don't want to be rubber stamps, but 
as I read the statute it sort of makes them function as rubber 
stamps. It basically says, there will be no facts in front of 
you and you cannot ask for facts or asking for facts is outside 
the scope of the statute. I think that court is an important 
institution. I think they may ultimately, as we go forward, be 
given additional responsibilities.
    I don't want them to be rubber stamps. The PATRIOT Act, at 
least 215, as adopted, and probably the pen register changes, 
if adopted, do pretty much make them into that.
    Vice Chairman Rockefeller. How would you respond to that, 
Ms. MacDonald?
    Ms. MacDonald. That was actually my statement. I said that 
in my impression I hear critics accusing the FISA court of 
being a rubber stamp because it's in secret. I think that is an 
insult to Article III judges who rotate in and out of that 
court. I have to assume that they are taking their 
responsibilities extraordinarily seriously.
    Let's not forget that FISA, the original law, was already a 
radical civil libertarian idea that a judge should be involved 
in foreign intelligence investigations in the first place. The 
whole wisdom of constitutional assumptions up to that point was 
that anything involving foreign espionage, foreign terrorism, 
was within the Executive branch's discretion, because judges 
don't have the knowledge to pass on such matters. The very fact 
that we have a court at all basically issuing warrants for 
foreign intelligence investigations I think is already a 
significant check on executive power.
    The idea that anything should be public about that court to 
me is preposterous.
    Vice Chairman Rockefeller. That I'm not questioning.
    Mr. Dempsey said that they have no facts before them. When 
you say that to the average American they say, ``Well, they 
must just be operating automatically or on automatic pilot.''
    Ms. MacDonald. They have the record that is presented to 
take a request before the FISA court.
    Vice Chairman Rockefeller. The facts that they do have 
reflect on the decision that they will proceed to make.
    Ms. MacDonald. That the records are relevant to a terrorism 
investigation.
    Vice Chairman Rockefeller. And, Mr. Dempsey, you would say?
    Mr. Dempsey. Well, I guess I have to say, Mr. Chairman, at 
some level I don't know, since I haven't seen a 215 or post-
PATRIOT pen register application to the FISA court. As I read 
the statute, it says nothing about the factual determination. 
If there is one and if there is a factual showing--and, by the 
way, internally the FBI does prepare, internally, a factual 
basis for both the National Security Letters and 215, and I 
assume for the pen registers--if they do, I think that should 
be part of the statute.
    If they don't, then I think they are operating on 
autopilot, and that's where it would be good if this Committee 
could say something publicly about what it has seen, that 215 
and pen register applications do or do not have a factual 
predicate to them, and it is or is not something that would 
show relevance in the particularity of that request.
    National Security Letters, of course, never are presented 
to a judge. I think they should be. I think everything should 
be rolled into 215.
    Ms. MacDonald. if you have a judge, it's not enough, and if 
you don't have a judge, then it's not enough. The identical 
language was what was governing the FBI before 9/11 when this 
Committee raised the alarm that the FISA process was taking 
months and that the OIPR was putting probable cause standards 
that were completely unjustified by the statute.
    The practice is clearly to develop a substantial record to 
take to the court.
    Vice Chairman Rockefeller. You think that the necessity of 
getting--as you pointed out, I think very effectively, this is 
about terrorism and our Nation's security--that there is a 
certain rush to get decisions made for purposes of looking or 
not looking or whatever, and that some then would interpret 
that as, in and of itself, being avoiding their particular 
practices, which would not apply to a national security type 
situation, an ordinary law situation. Shakespeare could have 
said that better.
    Ms. MacDonald. Again let's just remember that your peers 
can get those records. A grand jury can subpoena those records 
with no judge involved at all. The PATRIOT Act gives you a 
judge. FISA gives you a judge. Those records are not protected 
by the Fourth Amendment. You do not need a probable cause 
warrant to get them. A prosecutor can say give me those records 
right now.
    Vice Chairman Rockefeller. Would you disagree with that, 
Mr. Nojeim?
    Mr. Nojeim. I would say that she's gone a little too far in 
saying that the records are completely unprotected by the 
Fourth Amendment because they're in the hands of a third party. 
For example, when I send an e-mail to you, that e-mail is in 
the hands of an Internet service provider. The content of that 
e-mail, I believe, is protected by the Fourth Amendment. So 
this notion that everything that's in the hands of a third 
party is unprotected I don't know that I would go that far.
    Ms. MacDonald. The PATRIOT Act does not make the content of 
that e-mail available. That is protected First Amendment 
information. Third party records----
    Mr. Nojeim. Actually, if I could just follow up on that, 
what happened in the PATRIOT Act was the pen register and trap 
and trace language that used to apply only to telephone records 
and was interpreted to apply to Internet records was explicitly 
applied to Internet records. It wasn't clarified that that 
language doesn't include, for example, content type information 
that might be in a person's search request when they make a 
search request under Google, for example.
    One of the things that we're suggesting that this Committee 
or Congress do is to clarify that that kind of information, 
which is content, would not be available under pen registers 
and trap and trace devices.
    Ms. MacDonald. That's fine. This is minutiae. The fact is, 
U.S. v. Miller, a Supreme Court case of 1976, said no Fourth 
Amendment privacy interest in records in third party hands. 
That's why a prosecutor can subpoena them.
    Vice Chairman Rockefeller. This has been enlightening and 
helpful. I thank you all.
    Chairman Roberts. Senator Corzine.
    Senator Corzine. I really just need to ask for the facts in 
the Mayfield case. Can someone give me the chronology about 
what authorizations occurred, didn't occur, and how soon the 
individual was made aware? What was the flow. I apologize if I 
didn't get through all my briefings, but actually looking at 
some of these individual cases----
    Chairman Roberts. Senator, could I make a suggestion, that 
we go into that in a closed session, as to chronological order 
that you requested? I want the witnesses to respond, if in fact 
you have something to say, but let me just say that I think you 
should raise that question again during the closed session so 
we can get a better answer.
    I would only say that at the time, I think it was Ms. 
MacDonald, indicated that it was a fingerprint mistake. We 
thought this gentlemen had the same fingerprint as was located 
on a bomb in Madrid. As you remember, we were going through 
quite a time here in regard to a consensus threat analysis 
that, as it turned out--I'll just stop right there.
    We did a lot in terms of security measures and everybody 
was very intense at that particular time, very concerned. As it 
turned out, that was not the case in regard to the level that 
perhaps was acted upon. I probably ought to quit talking about 
it.
    At any rate, it was at that particular time. We had 
officers around here, as you well remember, with gas masks and 
automatic weapons and security moved away, and parents of my 
staffers calling. One Senator just left. It was all based on 
the Madrid syndrome. You had a situation where you had a 
fingerprint mistake.
    I don't think that that's an abuse of the PATRIOT Act. That 
was a mistake by the FBI and the fingerprint. Now that didn't 
answer your question, and I apologize. At least I wanted to 
bring that up.
    If you would like to pursue that.
    Senator Corzine. I respect the idea that we ought to parse 
this, if we were to parse this, in private. What is in the 
public domain, if someone had a comment on it.
    I have a simple question. Was there a FISA request.
    Mr. Nojeim. Yes. There was a FISA request. The simple two-
sentence explanation is, Mayfield enlisted in the Army and 
submitted a fingerprint. It was that fingerprint that was 
mistakenly matched with a fingerprint on some detonators of 
undetonated bombs that were found in Madrid. The government 
used that match to detain Mayfield on a material witness 
warrant, but prior to that it had secretly broken into his 
home, apparently a number of times, and also conducted 
electronic surveillance using the Foreign Intelligence 
Surveillance Act, as amended by the PATRIOT Act.
    Mr. Dempsey. Mr. Chairman.
    Chairman Roberts. Yes, Mr. Dempsey.
    Mr. Dempsey. Could I just make one brief comment, not on 
the Mayfield question but going back to the discussion of abuse 
and sort of what's the burden of proof, so to speak, on the 
PATRIOT Act. In November 2001 the National Security Law unit at 
the FBI sent a field memo out to agents explaining the National 
Security Letter provisions, pointing out that the National 
Security Letters are powerful investigative tools. However, 
they just be used judiciously. It said that the USA PATRIOT Act 
greatly broadened the FBI's authority to gather this 
information; however, the provisions in the Act relating to the 
NSLs are subject to a sunset provision that calls for the 
expiration of those provisions in 4 years. In deciding whether 
or not to reauthorize the broadened authority, Congress 
certainly will examine the manner in which the FBI exercised 
it.
    Now in that sense I think that the sunsets worked. The 
sunsets have required the government to be careful. There may 
be abuses, either in the Mayfield case or in some of the cases 
I cited, abuses may yet come to light, but because of the 
sunsets we did have this exercise of caution implicitly 
recommended by FBI headquarters.
    I think we need to either have another sunset or we need to 
find some checks and balances that will serve the same purpose 
and ensure that these are exercised carefully. Because if the 
sunsets go away, then I'm not sure what there is left.
    Chairman Roberts. Senator Chambliss. You are like Shane; 
you come back.
    Senator Chambliss. When you page me, Mr. Chairman, I come. 
I apologize for having to come and go, but this is too 
interesting a subject and too important a subject to not come 
back and dialog on a couple of issues.
    First of all, Mr. Dempsey, in your opening comments you 
talked about sneak and peek and the use of it relative to a 
couple of instances that you pointed out, one going into a 
judge's chamber to look for whatever I guess the FBI in that 
case was looking for and, second, in the office of a health 
care provider. In both those cases they used the PATRIOT Act.
    How could you use the PATRIOT Act in a non-terrorist 
situation in the two examples that you gave?
    Mr. Dempsey. Isn't that a fascinating question? That would 
perplex most people, Senator. The fact is that there are 
provisions in the PATRIOT Act that have nothing to do with 
terrorism. Sneak and peek is No. 1. Remember, for terrorism 
investigations the FBI has sneak and peek authority under FISA. 
If sneak and peek authority were needed for criminal 
investigations of terrorism, some Senators, including Senator 
Leahy, said, ``Well, OK, let's have a sneak and peek for 
terrorism cases.''
    ``Uh-uh'', said the Justice Department. We want it for all 
cases. We want it for student loan cases. We want it for 
Medicare fraud cases. We want it for judicial corruption cases. 
We want it for check-kiting cases. That's what was enacted and 
that's how it's being used. I think most people would be 
astonished to realize that the PATRIOT Act is being used for 
sneak and peek searches in non-
terrorism, non-violent cases.
    Senator Chambliss. Is there a specific authorization for 
sneak and peek to be used in non-terrorist cases within the 
PATRIOT Act?
    Mr. Dempsey. Well, the section was generic in nature. It 
was a generic exception to the rule which generally requires 
notice in the execution of warrants. It was sort of shoehorned 
in there. It's a little bit of an odd provision.
    Senator Chambliss. Of course, sneak and peeks have been 
used, particularly in organized crime cases, drug cases, I know 
for years. Are you telling me that this was something 
different, that there was some additional authority given in 
the PATRIOT Act that allowed them to use this versus the 
previous sneak and peek authority?
    Mr. Dempsey. My own view is that the Justice Department was 
trying to bootstrap the existing authority, which I think was a 
little bit shaky, it couldn't be pushed too far, it had to be 
used with care, in my view it had to be confined to cases where 
there was risk of destruction of the evidence or risk of 
intimidation of witnesses or flight from prosecution or risk of 
loss of life or some violent act.
    What happened in the PATRIOT Act was that basically the 
Justice Department invoked the authority of the Congress to 
bolster that authority, expand the kind of cases in which it 
could be used, and in essence give a green light to the judges, 
backed up by Congress. Judges have allowed sneak and peeks in 
criminal cases before the PATRIOT Act.
    I think the Justice Department was a little worried about 
what ground that stood upon. Some Supreme Court cases had said 
that notice is more important than we had thought when the 
original sneak and peek cases were decided, and I think the 
Justice Department was trying to get Congress to sort of 
bolster that authority and expand it in the sense of putting it 
on what seemed to be a firmer foundation, although, of course, 
it's the Constitution that's the final test.
    I think that there was an effort by the Justice Department 
to take some somewhat uncertain, often used but still uncertain 
and cautiously exercised, judicial common law authority and 
bolster that with this emergency legislation. I think they 
shouldn't have done it for cases, non-terrorism-related. I 
think that is somewhat surprising, that it turned out that way.
    I think that now the judges, if anything, are probably more 
confused about what are the standards for sneak and peek 
searches. It looks a little bit like the constraints are off.
    Senator Chambliss. Ms. MacDonald, according to your opening 
comments, I don't think you agree with that. Am I right?
    Ms. MacDonald. That's a good supposition. The theory that 
somehow the authority to delay notice of a search was in any 
constitutional jeopardy before the PATRIOT Act I disagree with 
100 percent. The cases had upheld sneak and peek authority. In 
fact, I don't see how you can conduct any kind of pre-emptive 
investigation, be it criminal or terrorism, with notice. You 
can't.
    If sneak and peek hadn't existed, somebody would have had 
to invent it, because if you are trying to limn out the extent 
of a criminal conspiracy, you need secrecy up until the point 
when you have evidence. You need secrecy. Remember, the other 
point about this authority, which pre-existed the PATRIOT Act 
and which the PATRIOT Act merely codified, is that notice is 
only delayed.
    There is no authority to withhold notice for eternity. All 
that the PATRIOT Act did was change, in one case, a 7-day rule 
of thumb to the phrase ``reasonable period of delay.'' Courts 
all the time operate under that type of language, and we don't 
have a problem with it. It is in fact, in case law, quite rare 
to have specific numerical barriers on anything. This is why we 
have the common law system, because courts like to look at 
facts and use their own judgment.
    As far as getting rid of the limits that Mr. Dempsey said, 
that's not true. The PATRIOT Act points to the exact set of 
circumstances that he just enumerated--witness intimidation, 
destruction of evidence, jeopardizing a trial or unduly 
delaying a trial, putting somebody's life in jeopardy. Those 
existed pre-PATRIOT Act, they exist post-PATRIOT Act.
    I don't think the Justice Department was in any fear of the 
power being taken away from them. I think what they wanted was 
a uniform national standard for complex criminal or terror 
investigations so they didn't have to worry about what the 
Second Circuit's specific details were versus the Ninth 
Circuit's. Because we have national investigations, be they 
criminal or terror.
    Mr. Dempsey. Then let's write those standards. What the 
Congress did in the PATRIOT Act was to refer to a list of 
circumstances not drawn up for sneak and peek searches, not 
drafted for the PATRIOT Act but drafted a number of years ago 
in a law having to do with delayed notice of access to stored 
e-mail. The PATRIOT Act simply references those circumstances 
by referral--the risk of loss of life, absolutely, intimidation 
of witnesses, destruction of evidence, flight from prosecution. 
They also include otherwise unduly jeopardizing an 
investigation or delaying a trial.
    It turns out that the Attorney General report just last 
week that the majority of the sneak and peeks that have been 
approved under the PATRIOT Act in non-terrorism cases since it 
was adopted have been in that catch-all category of unduly 
delaying a trial or otherwise jeopardizing an investigation.
    If we want to give standards, if we want to give 
uniformity, if we want to give guidance to the courts, let's 
give them guidance. Let's think about what are the 
circumstances in which this technique is appropriate and write 
them and not reference some other circumstances developed for 
another purpose.
    I think it would be useful to actually look back at the 
cases. I'm not sure that any case has ever said that a delay in 
a trial is a reason to break secretly into somebody's house. I 
don't think there is a case on that.
    Chairman Roberts. I want to thank all the witnesses for a 
very challenging and intellectually stimulating hearing and for 
your advice and counsel as we go through the reauthorization of 
the Act. You have been most helpful and been patient and you 
have persevered, and we thank you very much for your 
attendance.
    The hearing is concluded.
    [Whereupon, at 4:44 p.m., the hearing adjourned.]


 THE HISTORY AND APPLICATION OF THE USA PATRIOT ACT AND THE IMPORTANCE 
      OF THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 (FISA)

                              ----------                              


                                DAY TWO

                       WEDNESDAY, APRIL 27, 2005

                      United States Senate,
           Senate Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:37 a.m., in 
room SH-216, Hart Senate Office Building, Hon. Pat Roberts 
(Chairman of the Committee) presiding.
    Committee Members Present: Senators Roberts, DeWine, Snowe, 
Rockefeller, Levin, Wyden and Mikulski.

        OPENING STATEMENT OF HON. PAT ROBERTS, CHAIRMAN

    Chairman Roberts. The Committee will come to order.
    The Senate Select Committee on Intelligence today continues 
its ongoing oversight of the USA PATRIOT Act. This is the third 
in a series of three hearings designed to educate Members and 
the public as the Senate considers the repeal of the sunset 
provision, and modification to other intelligence authorities.
    Last week, the Committee heard from a panel of outside 
experts with regard to the authorities contained in the PATRIOT 
Act. Later in the week, the Committee held a very informative 
closed hearing on the use by the intelligence community field 
operatives of the tools provided by the PATRIOT Act, and today 
it is my opinion that I have heard nothing to substantiate the 
allegations that abuses of the tools that are provided by the 
USA PATRIOT Act have led to violations of the civil rights of 
American citizens. I have, however, heard testimony and 
received other information that clearly demonstrates how the 
PATRIOT Act has been instrumental in helping our intelligence 
community agencies, in particular the FBI, identify and 
interdict terrorists and other national security threats.
    The purpose of today's hearing is to receive testimony 
concerning the Administration's position on the authorities 
provided in the PATRIOT Act, including those provisions subject 
to sunset. We have a distinguished panel--the Honorable Alberto 
Gonzales, Attorney General of the United States; the Honorable 
Robert Mueller, the Director of the Federal Bureau of 
Investigation; and the Honorable Porter Goss, the Director of 
the Central Intelligence Agency. The Committee thanks all of 
our witnesses for being here today, and for taking time out of 
your very valuable schedule.
    This series of hearings is not the Committee's first review 
of the USA PATRIOT Act or the Foreign Intelligence Surveillance 
Act, also known as FISA. The Committee regularly holds hearings 
and conducts briefings and receives information in regard to 
activities of the intelligence community. The Committee 
conducted a closed hearing on the PATRIOT Act during the last 
Congress. We receive detailed reports from the Department of 
Justice every 6 months in regard to FISA collection, and annual 
reports on the use of other surveillance tools.
    The Committee is also in the final stages of completing its 
second audit of the procedures and practices in the use of 
FISA. This comprehensive classified analysis will represent one 
of the most thorough reviews of the executive branch activities 
under FISA since the USA PATRIOT Act was enacted.
    Now, before I recognize the Vice Chairman, I want to 
reiterate some fundamental principles that will inform our 
consideration of the USA PATRIOT Act reauthorization and any 
other modifications to law or policy governing intelligence 
activities. First, our intelligence agencies need flexible 
authorities to confront terrorists, spies, and proliferators 
and other national security threats.
    Second, as we seek to protect the national security, we 
must also ensure that civil liberties and privacy are not 
sacrificed in the process. This is not a zero sum game, 
however. As former Supreme Court Justice Arthur Goldberg noted, 
while the Constitution does protect against invasions of 
individual rights, it is not a suicide pact.
    Third, these are not matters of first impression. During 
their interpretation of the Constitution and the President's 
responsibility to protect national security, Federal courts 
have wrestled with many of these issues before. And the courts 
have recognized the authority of the President to conduct 
warrantless electronic surveillance of foreign powers and their 
agents. Well established judicial precedents also make clear 
that certain records, even of the most private information, 
lose their constitutional protection when voluntarily exposed 
publicly or to a business or to a third party.
    Finally, I will support reasonable modifications to the USA 
PATRIOT Act provisions or other authorities that clarify legal 
uncertainties, but I will oppose modifications that place 
unnecessary hurdles in the path of lawful intelligence 
investigations.
    Now, the Senate's consideration of modifications to section 
215 of the US PATRIOT Act will serve as a good example of how I 
intend to apply these fundamental principles. I had previously 
expressed my support for the modifications made to FISA by 
section 215. The ``business records'' that our investigators 
now have access to, following a review by a Federal judge, are 
very important pieces of the intelligence puzzle. They form the 
basis for further investigation of national security threats.
    Despite all of the talk that has been directed at section 
215, and obvious concern, I have heard of no substantial 
allegation of abuse or misuse. There may have been some 
mistakes, but it certainly didn't have anything to do with the 
PATRIOT Act. In fact, I believe the FBI's use of the authority 
may have been a little bit too judicious. While I recognize 
that some clarifying modifications to section 215 may be 
necessary, I will oppose any modification that increased the 
standard for a business record order above ``relevance'' or 
alterations that place unreasonable barriers between these 
records and the intelligence officials.
    Those provisions of the USA PATRIOT Act, including section 
215, that will expire at the end of the year must be 
reauthorized. The alternative is a return to a failed, 
outdated, and illogical limit on national security 
investigations that tied our hands prior to the 9/11 attacks. 
The dangers are real, and we should give our people every 
constitutional tool available to fight and defeat terrorism.
    I now recognize the distinguished Vice Chairman for any 
remarks he might wish to make.

        OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV

    Vice Chairman Rockefeller. Thank you, Mr. Chairman.
    I greet all three of you distinguished leaders of your 
agencies and express embarrassment that there are only four 
Members of our Committee here. If there are any that choose to 
listen to this on in-Senate television, we would welcome their 
coming in and participating in this Committee meeting. This is 
not an impressive display of government oversight.
    I do welcome you. Our principle focus has been on one title 
of the PATRIOT Act, which is Title II on enhanced surveillance 
procedures. That has, as we discussed before, 16 provisions 
that will cease to have effect or sunset on December 31st of 
this year. In addition, the recently enacted Intelligence 
Reform Act authorizes the use of the FISA, the Foreign 
Intelligence Surveillance Act, in the case of so-called lone 
wolf terrorists. That new authority is also subject to sunset 
at the end of this year.
    So these hearings and related hearing before the Senate 
Judiciary Committee and in the House also will help Congress to 
resolve two basic questions. First, on the basis of experience 
and further reflection since September 11, 2001, should any of 
the expiring authorities be amended? And second, as originally 
enacted or as amended, should the expiring provisions be made, 
in fact, permanent?
    From last week's hearings it appears that there is broad 
support for the proposition. Even a critic of parts of the 
PATRIOT Act conceded that, ``we see not a single power in the 
Act that needs to sunset or go away entirely.'' Rather, the 
issue is whether several sections of the Act should be amended 
to provide additional checks and balances. It's my hope that we 
can now begin to focus on the suggestions for improving several 
of the provisions that are now scheduled to expire at the end 
of this year.
    In the Senate there is a bipartisan bill, S. 737, the 
Security and Freedom Enhancement Act, or SAFE Act, introduced 
by Senator Craig. Senator Corzine of our Committee is one of 
the 10 bipartisan cosponsors of this Act. The SAFE Act would 
make permanent most of the PATRIOT Act's investigative tools 
without change and amend several other PATRIOT Act tools to 
provide additional safeguards. I have reached no conclusions 
myself about the particulars of the SAFE Act, or I choose not 
to at this point, which has been referred to the Judiciary 
Committee and also will be studied by our colleagues very 
carefully in that body.
    I do believe on the basis of the breadth of its sponsorship 
and the supporting testimony that we have heard that the 
legislation merits our serious consideration. I look forward to 
hearing from our witnesses today about the proposals in the 
SAFE Act, including any objections or alternative suggestions 
that you may have for ensuring both sufficient focus on 
suspected terrorists and sufficient judicial and congressional 
oversight.
    We need effective investigative tools against terrorism. 
Nobody can argue that. We need to be mindful of our 
Constitution and our values. And we need to build a broad 
public consensus that sustains our efforts against a war on 
terrorism which I think will last for decades, in those years 
to come. This will require intensive effort by the executive 
and legislative branches, to give the American public 
additional confidence that powerful investigative tools will be 
used effectively and that they will be used judiciously. I 
think this can be done, but the American public is not easily 
sold on such matters. On the other hand, fighting a war on 
terrorism has its own requirements by themselves.
    Today's witnesses head the three organizations that are 
responsible, along with the Department of Defense, for 
developing, issuing and carrying out the legal and operational 
guidance at the heart of our interrogation program, and that is 
another matter for another day.
    Mr. Chairman, I thank you, and again I welcome the 
witnesses.
    Chairman Roberts. We are pleased to have the Attorney 
General and the Director of the FBI and the Director of the CIA 
with us. And in the following order they will be recognized--
the Attorney General, and the FBI Director, and the CIA 
Director. So General Gonzales, if you would like to proceed, 
sir, you are most welcome to do so at this time.
    [The prepared statement of Attorney General Gonzales and 
Director Mueller follows:]
  Prepared Statement of Alberto R. Gonzales and Robert S. Mueller III
    Chairman Roberts, Vice Chairman Rockefeller, and Members of the 
Committee:
    We are pleased to be here today to discuss the government's use of 
authorities granted to it by Congress under the Foreign Intelligence 
Surveillance Act of 1978 (FISA). In particular, we appreciate the 
opportunity to have a candid discussion about the impact of the 
amendments to FISA made by the USA PATRIOT Act and how critical they 
are to the government's ability to successfully prosecute the war on 
terrorism and prevent another attack like that of September 11 from 
ever happening again.
    As we stated in our testimony to the Senate Judiciary Committee, we 
are open to suggestions for strengthening and clarifying the USA 
PATRIOT Act, and we look forward to meeting with people both inside and 
outside of Congress who have expressed views about the Act. However, we 
will not support any proposal that would undermine our ability to 
combat terror ism effect ively.

                           I. FISA STATISTICS

    First, we would like to talk with you about the use of FISA 
generally. Since September 11, the volume of applications to the 
Foreign Intelligence Surveillance Court (FISA court) has dramatically 
increased.
     In 2000, 1,012 applications for surveillance or search 
were filed under FISA. As the Department's public annual FISA report 
sent to Congress on April 1, 2005 states, in 2004 we filed 1,758 
applications, a 74 percent increase in 4 years.
     Of the 1,758 applications made in 2004, none were denied, 
although 94 were modified by the FISA court in some substantive way.
        ii. key uses of fisa authorities in the war on terrorism
    In enacting the USA PATRIOT Act, the Intelligence Authorization Act 
for Fiscal Year 2002, and the Intelligence Reform and Terrorism 
Prevention Act of 2004, Congress provided the government with vital 
tools that it has used regularly and effectively in its war on 
terrorism. The reforms contained in those measures affect every single 
application made by the Department for electronic surveillance or 
physical search of suspected terrorists and have enabled the government 
to become quicker and more flexible in gathering critical intelligence 
information on suspected terrorists. It is because of the key 
importance of these tools to the war on terror that we ask you to 
reauthorize the provisions of the USA PATRIOT Act scheduled to expire 
at the end of this year. Of particular concern is section 206's 
authorization of multipoint or ``roving'' wiretaps, section 207's 
expansion of FISA' s authorization periods for certain cases, section 
214's revision of the legal standard for installing and using pen 
register/trap and trace devices, and section 215's grant of the ability 
to obtain a Court order requesting the production of business records 
related to national security investigations.
    In addition, the Intelligence Reform and Terrorism Prevention Act 
of 2004 includes a ``lone wolf' provision that expands the definition 
of ``agent of a foreign power'' to include a non-United States person, 
who acts alone or is believed to be acting alone and who engages in 
international terrorism or in activities in preparation therefor. This 
provision is also scheduled to sunset at the end of this year, and we 
ask that it be made permanent as well.

A. Roving Wiretaps
    Section 206 of the USA PATRIOT Act extends to FISA the ability to 
``follow the target'' for purposes of surveillance rather than tie the 
surveillance to a particular facility and provider when the target's 
actions may have the effect of thwarting that surveillance. In the 
Attorney General's testimony at the beginning of this month before the 
Senate Judiciary Committee, he declassified the fact that the FISA 
court issued 49 orders authorizing the use of roving surveillance 
authority under section 206 as of March 30, 2005. Use of roving 
surveillance has been available to law enforcement for many years and 
has been upheld as constitutional by several Federal courts, including 
the Second, Fifth, and Ninth Circuits. Some object that this provision 
gives the FBI discretion to conduct surveillance of persons who are not 
approved targets of court-authorized surveillance. This is wrong. 
Section 206 did not change the requirement that before approving 
electronic surveillance, the FISA court must find that there is 
probable cause to believe that the target of the surveillance is either 
a foreign power or an agent of a foreign power, such as a terrorist or 
spy. Without section 206, investigators will once again have to 
struggle to catch up to sophisticated terrorists trained to constantly 
change phones in order to avoid surveillance.
    Critics of section 206 also contend that it allows intelligence 
investigators to conduct ``John Doe'' roving surveillance that permits 
the FBI to wiretap every single phone line, mobile communications 
device, or Internet connection the suspect may use without having to 
identify the suspect by name. As a result, they fear that the FBI may 
violate the communications privacy of innocent Americans. Let me 
respond to this criticism in the following way. First, even when the 
government is unsure of the name of a target of such a wiretap, FISA 
requires the government to provide ``the identity, if known, or a 
description of the target of the electronic surveillance'' to the FISA 
Court prior to obtaining the surveillance order. 50 U.S.C. 
Sec. Sec. 1804(a)(3) and 1805(c)(l)(A). As a result, each roving 
wiretap order is tied to a particular target whom the FISA Court must 
find probable cause to believe is a foreign power or an agent of a 
foreign power. In addition, the FISA Court must find ``that the actions 
of the target of the application may have the effect of thwarting'' the 
surveillance, thereby requiring an analysis of the activities of a 
foreign power or an agent of a foreign power that can be identified or 
described. 50 U.S.C. Sec. 1805 (c)(2)(B). Finally, it is important to 
remember that FISA has always required that the government conduct 
every surveillance pursuant to appropriate minimization procedures that 
limit the government's acquisition, retention, arid dissemination of 
irrelevant communications of innocent Americans. Both the Attorney 
General and the FISA Court must approve those minimization procedures. 
Taken together, we believe that these provisions adequately protect 
against unwarranted governmental intrusions into the privacy of 
Americans. Section 206 sunsets at the end of this year.

B. Authorized Periods for FISA Collection
    Section 207 of the USA PATRIOT Act has been essential to protecting 
the national security of the United States and protecting the civil 
liberties of Americans. It changed the time periods for which 
electronic surveillance and physical searches are authorized under FISA 
and, in doing so, conserved limited OIPR and FBI resources. Instead of 
devoting time to the mechanics of repeatedly renewing FISA applications 
in certain cases--which are considerable--those resources can be 
devoted instead to other investigative activity as well as conducting 
appropriate oversight of the use of intelligence collection authorities 
by the FBI and other intelligence agencies. A few examples of how 
section 207 has helped arc set forth below.
    Since its inception, FISA has permitted electronic surveillance of 
an individual who is an agent of foreign power based upon his status as 
a non-United States person who acts in the United States as ``an 
officer or employee of a foreign power, or as a member'' of an 
international terrorist group. As originally enacted, FISA permitted 
electronic surveillance of such targets for initial periods of 90 days, 
with extensions for additional periods of up to 90 days based upon 
subsequent applications by the government. In addition, FISA originally 
allowed the government to conduct physical searches of any agent of a 
foreign power (including United States persons) for initial periods of 
45 days, with extensions for additional 45-day periods.
    Section 207 of the USA PATRIOT Act changed the law as to permit the 
government to conduct electronic surveillance and physical search of 
certain agents of foreign powers and nonresident alien members of 
international groups for initial periods of 120 days, with extensions 
for periods of up to 1 year. It also allows the government to obtain 
authorization to conduct a physical search of any agent of a foreign 
power for periods of up to 90 days. Section 207 did not change the time 
periods applicable for electronic surveillance of United States 
persons, which remain at 90 days. By making these time periods 
equivalent, it has enabled the Department to file streamlined combined 
electronic surveillance and physical search applications that, in the 
past, were tried but abandoned as too cumbersome to do effectively.
    As the Attorney General testified before the Senate Judiciary 
Committee, we estimate that the amendments in section 207 have saved 
OIPR approximately 60,000 hours of attorney time in the processing of 
applications. Because of section 207's success, we have proposed 
additional amendments to increase the efficiency of the FISA process. 
Among these would be to allow coverage of all non-U.S. person agents 
for foreign powers for 120 days initially with each renewal of such 
authority allowing continued coverage for 1 year. Had this and other 
proposals been included in the USA PATRIOT Act, the Department 
estimates that an additional 25,000 attorney hours would have been 
saved in the interim. Most of these ideas were specifically endorsed in 
the recent report of the WMD Commission. The WMD Commission agreed that 
these changes would allow the Department to focus its attention where 
it is most needed and to ensure adequate attention is given to cases 
implicating the civil liberties of Americans. Section 207 is scheduled 
to sunset at the end of this year.

C. Pen Registers and Trap and Trace Devices
    Some of the most useful, and least intrusive, investigative tools 
available to both intelligence and law enforcement investigators are 
pen registers and trap and trace devices. These devices record data 
regarding incoming and outgoing communications, such as all of the 
telephone numbers that call, or are called by, certain phone numbers 
associated with a suspected terrorist or spy. These devices, however, 
do not record the substantive content of the communications, such as 
the words spoken in a telephone conversation. For that reason, the 
Supreme Court has held that there is no Fourth Amendment protected 
privacy interest in information acquired from telephone calls by a pen 
register. Nevertheless, information obtained by pen registers or trap 
and trace devices can be extremely useful in an investigation by 
revealing the nature and extent of the contacts between a subject and 
his confederates. The data provides important leads for investigators, 
and may assist them in building the facts necessary to obtain probable 
cause to support a full content wiretap.
    Under chapter 206 of title 18, which--has been in place since 1986, 
if an FBI agent and prosecutor in a criminal investigation of a bank 
robber or an organized crime figure want to install and use pen 
registers or trap and trace devices, the prosecutor must file an 
application to do so with a Federal court. The application they must 
file, however, is exceedingly simple: it need only specify the identity 
of the applicant and the law enforcement agency conducting the 
investigation, as well as ``a certification by the applicant that the 
information likely to be obtained is relevant to an ongoing criminal 
investigation being conducted--by that agency.'' Such applications, of 
course, include other information about the facility that will be 
targeted and details about the implementation of the collection, as 
well as ``a statement of the offense to which the information likely to 
be obtained . . . relates,'' but chapter 206 does not require an 
extended recitation of the facts of the case.
    In contrast, prior to the USA PATRIOT Act, in order for an FBI 
agent conducting an intelligence investigation to obtain FISA authority 
to use the same pen register and trap and trace device to investigate a 
spy or a terrorist, the government was required to file a complicated 
application under title IV of FISA. Not only was the government's 
application required to include ``a certification by the applicant that 
the information likely to be obtained is relevant to an ongoing foreign 
intelligence or international terrorism investigation being conducted 
by the Federal Bureau of Investigation under guidelines approved by the 
Attorney General,'' it also had to include the following: information 
which demonstrates that there is reason to believe that the telephone 
line to which the pen register or trap and trace device is to be 
attached, or the communication instrument or device to be covered by 
the pen register or trap and trace device, has been or is about to be 
used in communication with:

          (A) an individual who is engaging or has engaged in 
        international terrorism or clandestine intelligence activities 
        that involve or may involve a violation of the criminal laws of 
        the United States; or
          (B) a foreign power or agent of foreign power under 
        circumstances giving reason to believe that the communication 
        concerns or concerned international terrorism or clandestine 
        intelligence activities that involve or may involve a violation 
        of the criminal laws of the United States.

    Thus, the government had to make a much different showing in order 
obtain a pen register or trap and trace authorization to find out 
information about a spy or a terrorist than is required to obtain the 
very same information about a drug dealer or other ordinary criminal. 
Sensibly, section 214 of the USA PATRIOT Act simplified the standard 
that the government mast meet in order to obtain pen/trap data in 
national security cases. Now, in order to obtain a national security 
pen/trap order, the applicant must certify ``that the information lkely 
to be obtained is foreign intelligence information not concerning a 
United States person, or is relevant to an investigation to protect 
against international terrorism or clandestine intelligence 
activities.'' Importantly, the law requires that such an investigation 
of a United States person may not be conducted solely upon the basis of 
activities protected by the First Amendment to the Constitution.
    Section 214 should not be permitted to expire and return us to the 
days when it was mare difficult to obtain pen/trap authority in 
important national security cases than in normal criminal cases. This 
is especially true when the law already includes provisions that 
adequately protect the civil liberties of Americans. I urge you to re-
authorize section 214.

D. Access to Tangible Things
    Section 215 of the USA PATRIOT Act allows the FBI to obtain an 
order from the FISA Court requesting production of any tangible thing, 
such as business records, if the items are relevant to an ongoing 
authorized national security investigation, which, in the case of a 
United States person, cannot be based solely upon activities protected 
by the First Amendment to the Constitution. The Attorney General also 
declassified earlier this month the fact that the FISA Court has issued 
35 orders requiring the production of tangible things under section 215 
from the date of the effective date of the Act through March 30th of 
this year. None of those orders was issued to libraries and/or 
booksellers, and none was for medical or gun records. The provision to 
date has been used only to order the production of driver's license 
records, public accommodation records, apartment leasing records, 
credit card records, and subscriber information, such as names and 
addresses, for telephone numbers captured through court-authorized pen 
register devices.
    Similar to a prosecutor in a criminal case, issuing a grand jury 
subpoena for an item relevant to his investigation, so too may the FISA 
Court issue an order requiring the production of records or items that 
are relevant to an investigation to protect against international 
terrorism or clandestine intelligence activities. Section 215 orders, 
however, are subject to judicial oversight before they are issued--
unlike grand jury subpoenas. The FISA Court must explicitly authorize 
the use of section 215 to obtain business records before the government 
may serve the order on a recipient. In contrast, grand jury subpoenas 
are subject to judicial review only if they arc challenged by the 
recipient. Section 215 orders arc also subject to the same standard as 
grand jury subpoenas--a relevance standard.
    Section 215 has been criticized because it does not exempt 
libraries and booksellers. The absence of such an exemption is 
consistent with criminal investigative practice. Prosecutors have 
always been able to obtain records from libraries and bookstores 
through grand jury subpoenas. Libraries and booksellers should not 
become safe havens for terrorists and spies. Last year, a member of a 
terrorist group closely affiliated with al Qaeda used Internet service 
provided by a public library to communicate with his confederates. 
Furthermore, we know that spies have used public library computers to 
do research to further their espionage and to communicate with their 
co-conspirators. For example, Brian Regan, a former TRW employee 
working at the National Reconnaissance Office, who was convicted of 
espionage, extensively used computers at five public libraries in 
Northern Virginia and Maryland to access addresses for the embassies of 
certain foreign governments.
    Concerns that section 215 allows the government to target Americans 
because of the books they read or websites they visit are misplaced. 
The provision explicitly prohibits the government from conducting, an 
investigation of a U.S. person based solely upon protected First 
Amendment activity. 50 U.S.C. Sec. 1861(a)(2)(B). However, some 
criticisms of section 215 have apparently been based on possible 
ambiguity in the law. The Department has already stated in litigation 
that the recipient of a section 215 order may consult with his attorney 
and may challenge that order in court. The Department has also stated 
that the government may seek, and a court may require, only the 
production of records that are relevant to a national security 
investigation, a standard similar to the relevance standard that 
applies to grand jury subpoenas in criminal cases. The text of section 
215, however, is not as clear as it could be in these respects. The 
Department, therefore, is willing to support amendments to Section 215 
to clarify these points. Section 215 also is scheduled to sunset at the 
end of this year.

E. The ``Wall''
    Before the USA PATRIOT Act, applications for orders authorizing 
electronic surveillance or physical searches under F1SA had to include 
a certification from a high-ranking Executive Branch official that 
``the purpose'' of the surveillance or search was to gather foreign 
intelligence information. As interpreted by the courts and the Justice 
Department, this requirement meant that the ``primary purpose'' of the 
collection had to be to obtain foreign intelligence information rather 
than evidence of a crime. Over the years, the prevailing interpretation 
and implementation of the ``primary purpose'' standard had the effect 
of sharply limiting coordination and information sharing between 
intelligence and law enforcement personnel. Because the courts 
evaluated the government's purpose for using FISA at least in part by 
examining the nature and extent of such coordination, the more 
coordination that occurred, the more likely courts would find that law 
enforcement, rather than foreign intelligence collection, had become 
the primary purpose of the surveillance or search.
    During the 1980's, the Department operated under a set of largely 
unwritten rules that limited to some degree information sharing between 
intelligence and law enforcement officials. In 1995, however, the 
Department established formal procedures that more clearly separated 
law enforcement and intelligence investigations and limited the sharing 
of information between intelligence and law enforcement personnel even 
more than the law required. The promulgation of these procedures was 
motivated in part by the concern that the use of FISA authorities would 
not be allowed to continue in particular investigations if criminal 
prosecution began to overcome intelligence gathering as an 
investigation's primary purpose. The procedures were intended to permit 
a degree of interaction and information sharing between prosecutors and 
intelligence officers while at the same time ensuring that the FBI 
would be able to obtain or continue FISA coverage and later use the 
fruits of that coverage in a criminal prosecution. Over time, however, 
coordination and information sharing between intelligence and law 
enforcement personnel became more limited in practice than was allowed 
in reality. A perception arose that improper information sharing could 
end a career, and a culture developed within the Department sharply 
limiting the exchange of information between intelligence and law 
enforcement officials.
    Sections 218 and 504 of the USA PATRIOT Act helped to bring down 
this ``wall'' separating intelligence and law enforcement officials. 
They erased the perceived statutory impediment to more robust 
information sharing between intelligence and law enforcement personnel. 
They also provided the necessary impetus for the removal of the formal 
administrative restrictions as well as the informal cultural 
restrictions on information sharing.
    Section 218 of the USA PATRIOT Act eliminated the ``primary 
purpose'' requirement. Under section 218, the government may conduct 
FISA surveillance or searches if foreign intelligence gathering is a 
``significant'' purpose of the surveillance or search. This eliminated 
the need for courts to compare the relative weight of the ``foreign 
intelligence'' and ``law enforcement'' purposes of the surveillance or 
search, and allows increased coordination and sharing of information 
between intelligence and law enforcement personnel. Section 218 was 
upheld as constitutional in 2002 by the FISA court of Review. This 
change, significantly, did not affect the government's obligation to 
demonstrate that there is probable cause to beliew that the target is a 
foreign power or an agent of a foreign power. Section 504--which is not 
subject to sunset--buttressed section 218 by specifically amending FISA 
to allow intelligence officials conducting FISA surveillances or 
searches to ``consult'' with Federal law enforcement officials to 
``coordinate'' efforts to investigate or protect against international 
terrorism, espionage, and other foreign threats to national security, 
and to clarify that such coordination ``shall not'' preclude the 
certification of a ``significant'' foreign intelligence purpose or the 
issuance of an authorization order by the FISA court.
    The Department moved aggressively to implement sections 218 and 
504. Following passage of the Act, the Attorney General adopted new 
procedures designed to increase information sharing between 
intelligence and law enforcement officials, which were affirmed by the 
FISA court of Review on November 18, 2002. The Attorney General has 
also issued other directives to further enhance information sharing and 
coordination between intelligence and law enforcement officials. In 
practical terms, a prosecutor may now consult freely with the FBI about 
what, if any, investigative tools should be used to best prevent 
terrorist attacks and protect the national security. Unlike section 
504, section 218 is scheduled to sunset at the end of this year.
    The increased information sharing facilitated by the USA PATRIOT 
Act has led to tangible results in the war against terrorism: plots 
have been disrupted; terrorists have been apprehended; and convictions 
have been obtained in terrorism cases. Information sharing between 
intelligence and law enforcement personnel, for example, was critical 
in successfully dismantling a terror cell in Portland, Oregon, 
popularly known as the ``Portland Seven'' as well as a terror cell in 
Lackawanna, New York. Such information sharing has also been used in 
the prosecution of several persons involved in al Qaeda drugs-for-
weapons plot in San Diego, two of whom have pleaded guilty; nine 
associates in Northern Virginia of a violent extremist group known as 
Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and 
sentenced to prison terms ranging from 4 years to life imprisonment; 
two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and Molishen Yahya 
Zayed, who were charged and convicted for conspiring to provide 
material support to al Qaeda and HAMAS; Khaled Abdel Latif Dumeisi, who 
was convicted by a jury in January 2004 of illegally acting as an agent 
of the former government of Iraq as well as two counts of perjury; and 
Enaam Arnaout, the Executive Director of the Illinois-based Benevolence 
International Foundation, who had a long-standing relationship with 
Osama Bin Laden and pleaded guilty to a racketeering charge, admitting 
that he diverted thousands of dollars from his charity organization to 
support Islamic militant groups in Bosnia and Chechnya. Information 
sharing between intelligence and law enforcement personnel has also 
been extremely valuable in a number of other ongoing or otherwise 
sensitive investigations that we arc not at liberty to discuss today.
    While the ``wall'' primarily hindered the flow of information from 
intelligence investigators to law enforcement investigators, another 
set of barriers, before the passage of the USA PATRIOT Act, often 
hampered law enforcement officials from sharing information with 
intelligence personnel and others in the government responsible for 
protecting the national security. Federal law, for example, was 
interpreted generally to prohibit Federal prosecutors from disclosing 
information from grand jury testimony and criminal investigative 
wiretaps to intelligence and national defense officials even if that 
information indicated that terrorists were planning a future attack, 
unless such officials were actually assisting with the criminal 
investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however, 
eliminated these obstacles to information sharing by allowing for the 
dissemination of that information to assist Federal law enforcement, 
intelligence, protective, immigration, national defense, and national 
security officials in the performance of their official duties, even if 
their duties arc unrelated to the criminal investigation. (Section 
203(a) covers grand jury information, and section 203(b) covers wiretap 
information.) Section 203(d), likewise, ensures that important 
information that is obtained by law enforcement means may be shared 
with intelligence and other national security officials. This provision 
does so by creating a generic exception to any other law purporting to 
bar Federal law enforcement, intelligence, immigration, national 
defense, or national security officials from receiving, for official 
use, information regarding foreign intelligence or counterintelligence 
obtained as part of a criminal investigation. Indeed, section 905 of 
the USA PATRIOT Act requires the Attorney General to expeditiously 
disclose to the Director of Central Intelligence foreign intelligence 
acquired by the Department of Justice in the course of a criminal 
investigation unless disclosure of such information would jeopardize an 
ongoing investigation or impair other significant law enforcement 
interests.
    The Department has relied on section 203 in disclosing vital 
information to the intelligence community and other Federal officials 
on many occasions. Such disclosures, for instance, have been used to 
assist in the dismantling of terror cells in Portland, Oregon and 
Lackawanna, New York and to support the revocation of suspected 
terrorists' visas.
    Because two provisions in section 203: sections 203(b) and 203(d) 
are scheduled to sunset at the end of the year, we provide below 
specific examples of the utility of those provisions. Examples of cases 
where intelligence information from a criminal investigation was 
appropriately shared with the Intelligence Community under Section 
203(d) include:
     Information about the organization of a violent jihad 
training camp including training in basic military skills, explosives, 
weapons and plane hijackings, as well as a plot to bomb soft targets 
abroad, resulted from the investigation and criminal prosecution of a 
naturalized United States citizen who was associated with an al-Qaeda 
related group;
     Travel information and the manner that monies were 
channeled to members of a seditious conspiracy who traveled from the 
United States to fight alongside the Taliban against U.S. and allied 
forces;
     Information about an assassination plot, including the use 
of false travel documents and transporting monies to a designated State 
sponsor of terrorism resulted from the investigation and prosecution of 
a naturalized United States citizen who had been the founder of a well-
known United States organization;
     Information about the use of fraudulent travel documents 
by a high-ranking member of a designated foreign terrorist organization 
emanating from his criminal investigation and prosecution revealed 
intelligence information about the manner and means of the terrorist 
group's logistical support network which was shared in order to assist 
in protecting the lives of U.S. citizens;
     The criminal prosecution of individuals who traveled to, 
and participated in, a military-style training camp abroad yielded 
intelligence information in a number of areas including details 
regarding the application forms which permitted attendance at the 
training camp; after being convicted, one defendant has testified in a 
recent separate Federal criminal trial about this application practice, 
which assisted in the admissibility of the form and conviction of the 
defendants; and
     The criminal prosecution of a naturalized U.S. citizen who 
had traveled to an Al-Qaeda training camp in Afghanistan revealed 
information about the group's practices, logistical support and 
targeting information.
    Title Ill information has similarly been shared with the 
Intelligence Community through section 203(b). The potential utility of 
such information to the intelligence and national security communities 
is obvious: suspects whose conversations arc being monitored without 
their knowledge may reveal all sorts of information about terrorists, 
terrorist plots, or other activities with national security 
implications. Furthermore, the utility of this provision is not 
theoretical: the Department has made disclosures of vital information 
to the intelligence community and other Federal officials under section 
203(b) on many occasions, such as:
     Wiretap interceptions involving a scheme to defraud donors 
and the Internal Revenue Service and illegally transfer monies to Iraq 
generated not only criminal charges but information concerning the 
manner and means by which monies were funneled to Iraq; and
     Intercepted communications, in conjunction with a sting 
operation, led to criminal charges and intelligence information 
relating to money laundering, receiving and attempting to transport 
night-vision goggles, infrared army lights and other sensitive military 
equipment relating to a foreign terrorist organization.
    Section 203 is also critical to the operation of the National 
Counterterrorism Center. The FBI relies upon section 203(d) to provide 
information obtained in criminal investigations to analysts in the new 
National Counterterrorism Center, thus assisting the Center in carrying 
out its vital counterterrorism missions. The National Counterterrorism 
Center represents a strong example of section 203 information sharing, 
as the Center uses information provided by law enforcement agencies to 
produce comprehensive terrorism analysis; to add to the list of 
suspected terrorists on the TIPOFF watchlist; and to distribute 
terrorism-related information across the Federal Government.
    In addition, last year, during a series of high-profile events--the 
G-8 Summit in Georgia, the Democratic Convention in Boston and the 
Republican Convention in New York, the November 2004 Presidential 
election, and other events--a task force used the information sharing 
provisions under Section 203(d) as part and parcel of performing its 
critical duties. The 2004 Threat Task Force was a successful inter-
agency effort where there was a robust sharing of information at all 
levels of government.

F. Protecting Those Complying with FISA Orders
    Often, to conduct electronic surveillance and physical searches, 
the United States requires the assistance of private communications 
providers to carry out such court orders. In the criminal context, 
those who assist the government in carrying out wiretaps arc provided 
with immunity from civil liability. Section 225, which is set to 
sunset, provides immunity from civil liability to communication service 
providers and others who assist the United States in the execution of 
FISA orders. Prior to the passage of the USA PATRIOT Act, those 
assisting in the carrying out of FISA orders enjoyed no such immunity. 
Section 225 simply extends the same immunity that has long existed in 
the criminal context to those who assist the United States in carrying 
out orders issued by the FISA court. Providing this protection to 
communication service providers for fulfilling their legal obligations 
helps to ensure prompt compliance with FISA orders.

                               CONCLUSION

    It is critical that the elements of the USA PATRIOT Act subject to 
sunset in a matter of months be renewed. Failure to do so would take 
the Intelligence Community and law enforcement back to a time when a 
full exchange of information was not possible and the tools available 
to defend against terrorists were inadequate. This is unacceptable. The 
need for constant vigilance against terrorists wishing to attack our 
Nation is real, and allowing USA PATRIOT Act provisions to sunset would 
damage our ability to prevent such attacks.
    We thank the Committee for the opportunity to discuss the 
importance of the USA PATRIOT Act to this nation's ongoing war against 
terrorism. This Act has a proven record of success in protecting the 
American people. Provisions subject to sunset must be renewed. We look 
forward to working with the Committee in the weeks ahead. We appreciate 
the Committee's close attention to this important issue. We would be 
pleased to answer any questions you may have. Thank you.

   STATEMENT OF THE HONORABLE ALBERTO R. GONZALES, ATTORNEY 
                  GENERAL OF THE UNITED STATES

    Attorney General Gonzales. Thank you, Mr. Chairman.
    Chairman Roberts, Vice Chairman Rockefeller, Members of 
this Committee, I am pleased to be here to talk about 
reauthorization of the PATRIOT Act. I really appreciate this 
opportunity to come before Congress to discuss our successes in 
the war on terror and to find new ways to fight for freedom 
more effectively and consistent with the values that we all 
cherish as Americans.
    As the distinguished Members of this Committee know, the 
threat of terrorism remains very serious and it is critical 
that Congress continues to provide tools that enable 
prosecutors and law enforcement to both confront terrorism and 
investigate and prosecute other serious crimes.
    I believe the authorities in the PATRIOT Act have enabled 
us to better protect America. But, the exercise of government 
authority is always worthy of respectful and accurate 
discussion. I'm open to suggestions for strengthening and 
clarifying the Act, but I cannot support amendments that will 
weaken our ability to protect our nation.
    The PATRIOT Act, as we know, has helped dismantle the wall 
that used to separate law enforcement from intelligence 
officials. Prior law, as interpreted and implemented, sharply 
limited the ability of law enforcement and intelligence 
officers to share information and connect the dots in terrorism 
and espionage investigations.
    As we know, section 203 and section 218 of the PATRIOT Act, 
which are scheduled to sunset at the end of this year, brought 
down this wall. And together these provisions have reduced the 
statutory and cultural barriers to information sharing. And it 
is information sharing, as the 9/11 Commission and the WMD 
Commission made clear, and as this Committee knows full well, 
that will make the difference in our ongoing efforts to prevent 
terrorism.
    This Committee is familiar with the successful use of 
section 218, including investigation of the Portland Seven and 
the Virginia Jihad. Section 203 along with section 218 was used 
extensively during the investigation of the Holy Land 
Foundation in 2004. Law enforcement professionals tell me that 
allowing sections 203 and 218 to expire would discourage 
information sharing, making it more difficult for us to disrupt 
terrorist plots.
    There are other similar commonsense PATRIOT Act provisions 
that also will expire if Congress does not take action. Section 
206, which provides national security investigators with an 
authority long possessed by criminal investigators, authorizes 
the use of multi-point or roving wiretaps, tied to a specific 
target rather than a specific communications facility. Before 
the PATRIOT Act these orders were not available for a national 
security investigation under FISA, a gap in the law that we 
believe sophisticated terrorists or spies could easily exploit. 
Although specific examples of the use of multi-point wiretaps 
under section 206 remain classified, I can represent in this 
open hearing that this authority has been very valuable.
    As of March 30 this year we have used this authority 49 
times. Importantly, 206 contains numerous safeguards to protect 
civil liberties. The FISA court can only issue a roving wiretap 
order upon a finding of probable cause, the order must always 
be connected to a particular target, and minimization 
procedures must be followed concerning the collection, the 
retention and dissemination of information about U.S. persons.
    Section 215 also filled a gap in the law. It granted 
national security investigators authority to seek a court order 
for the production of records relevant to a foreign 
intelligence investigation, similar to a prosecutor's authority 
to use grand jury subpoenas as the building blocks of criminal 
investigations. Use of this provision has been judicious. We 
have used this authority 35 times as of March 30 of this year. 
Moreover, we have not sought a Section 215 order to obtain 
library or bookstore records, medical records, or gun sale 
records. Let me be clear, the reading habits of ordinary 
Americans are of no interest to those investigating terrorists 
or spies.
    Section 213, although not scheduled to sunset is another 
valuable provision of the PATRIOT Act. Section 213 codified one 
consistent process and standard for delayed notice search 
warrants, which can be used in limited circumstances, with 
judicial approval, to avoid tipping off criminals who otherwise 
might flee, destroy evidence, intimidate or kill witnesses, 
cutoff contact with associates, or take other action to evade 
arrest.
    Now the portion of Section 213 that has received the most 
attention is the provision allowing a court to authorize 
delayed notice if immediate notice would ``seriously 
jeopardize'' an investigation. I would like to describe one 
actual case where immediate notice would have seriously 
jeopardized an investigation.
    In this case, the Justice Department obtained a delayed 
notice search warrant for a Federal Express package that 
contained counterfeit credit cards. At the time of the search 
it was very important not to disclose the existence of a 
Federal investigation, as this would have exposed a related 
Title III wiretap that was ongoing for major drug trafficking 
activities. An organized crime drug enforcement task force, 
which included agents from the DEA, the IRS, the Pittsburgh 
police department and other State and local agencies was 
engaged in a multi-year investigation that resulted in the 
indictment of the largest drug trafficking organization ever 
prosecuted in the western district of Pennsylvania.
    While the drug trafficking investigation was ongoing it 
became clear that several leaders of the drug trafficking 
conspiracy had ties to an ongoing credit card fraud operation. 
An investigation into the credit card fraud was undertaken and 
a search was made of a Federal Express package that contained 
fraudulent credit cards. Had notice of the Federal Express 
search tied to the credit card fraud investigation been 
immediately given, it could have revealed the ongoing drug 
trafficking investigation prematurely and the drug trafficking 
investigation might have been seriously jeopardized. Even 
modest delay would not have been available if this provision of 
section 213 were deleted. It is critical that law enforcement 
continue to have this vital tool for those limited 
circumstances where a court finds good cause to permit the 
temporary delay of notification of a search.
    Finally, I'd like to close by addressing a common question 
that must be answered by this Committee and this Congress--the 
issue of whether we should continue to impose sunset provisions 
on critical sections of the PATRIOT Act. The PATRIOT Act was a 
swift and decisive response to the attacks of September 11. In 
the weeks and months following the attacks in Washington, 
Pennsylvania, and New York, Democrats and Republicans came 
together to address the vulnerabilities in our nation's 
defenses.
    Both Congress and the administration worked with 
experienced law enforcement, intelligence and national security 
personnel to design legislation to better protect the American 
people. Although there was extensive consideration in 2001, and 
although it is unusual to impose sunsets on statutory 
investigative tools, Congress included sunsets for certain 
provisions of the PATRIOT Act because Members wanted to ensure 
that we were not risking the very liberties we were setting out 
to defend. And I think today we can all be proud.
    The track record established over the past 3 years has 
demonstrated the effectiveness of the safeguards of civil 
liberties put in place when the Act was passed. There has not 
been one verified case of civil liberties abuse. Our Nation is 
stronger and safer; our bipartisan work has been a success.
    The Department of Justice has exercised care and restraint 
in the use of these important authorities because we are 
committed to the rule of law. We have followed the law because 
it is the law, not because it is scheduled to sunset. With or 
without sunsets, our dedication to the rule of law will 
continue. The Department will strive to continue to carry out 
its work lawfully and appropriately, and as a citizen I expect 
Congress will continue its active oversight over our use of the 
PATRIOT Act, not because it sunsets but because oversight is a 
constitutional responsibility of Congress.
    So, given the Department's record in using these 
authorities, the obvious effectiveness of these tools in 
stopping violent crimes and protecting our nation, and the 
authority of Congress to re-examine these provisions at any 
time to correct abuses, the sunset provisions are, in my 
judgment, no longer necessary and should be repealed.
    The authorities in the PATRIOT Act are critical to our 
nation's efforts in the war against terrorism. The Act has a 
proven record of success in protecting the security of the 
American people while simultaneously respecting civil 
liberties. And I question how we can afford to allow its most 
important provisions to sunset. The efforts of the terrorists 
to strike our country surely will not sunset.
    I look forward to continuing to work with this Committee in 
the period ahead, listening to and responding to your concerns, 
and joining together again to protect the security of the 
American people.
    Thank you, Mr. Chairman.
    Chairman Roberts. Thank you, General.
    We now recognize Director Mueller. Welcome back to the 
Committee, Bob.

 STATEMENT OF THE HONORABLE ROBERT S. MUELLER, III, DIRECTOR, 
                FEDERAL BUREAU OF INVESTIGATION

    Director Mueller. Thank you, and good morning, Mr. 
Chairman. Senator Rockefeller, and other Members of the 
Committee, good morning. I'm also pleased to be here today to 
talk about the PATRIOT Act and how it has assisted us in the 
war on terror.
    Indeed, the PATRIOT Act has changed the way the FBI 
operates, and I will say that many of our operational 
counterterrorism successes since September 11 are the direct 
result of the changes incorporated in the PATRIOT Act. The 
formal statement that was submitted by the Attorney General and 
myself focuses on the key areas and the key uses of the FISA 
authorities in the war on terrorism. And as is set forth in 
that statement, I share the Attorney General's belief that 
these vital tools that have been used regularly and effectively 
in our efforts to prevent another attack should be renewed.
    This morning I would like to emphasize the importance of a 
portion of the PATRIOT Act, that portion that relates to 
information-sharing, and address the fundamental manner in 
which those provisions have changed the way we do business.
    Last week I know this Committee heard directly from our 
operational personnel, who provided in a classified setting 
specific examples of how the PATRIOT Act information-sharing 
provisions have altered the landscape for conducting terrorism 
investigations. The Committee heard not only from FBI 
headquarters and FBI field office personnel but also from our 
partners in the CIA and our partners at the NSA about the 
coordinated teamwork approach that has guided our operations 
over the past 3 years.
    Such interagency teamwork has successfully foiled 
terrorist-related operations and cells from Seattle to Detroit 
to Lackawanna, New York. And while the law prior to the PATRIOT 
Act provided for some exchange of information, that law was 
complex and, as a result, agents often erred on the side of 
caution and refrained from sharing information.
    Our current integrated approach, which grew from the 
PATRIOT Act's information-sharing provisions, eliminated that 
hesitation and now allows agents to more openly work with other 
governmental agencies, whether they be at the Federal, the 
State or the local level.
    Prior to the PATRIOT Act, the Federal law was interpreted 
to limit the ability of our criminal investigators to disclose 
criminal wiretap or grand jury information to counterparts 
working on intelligence investigations. Sections 203(a) and (b) 
of the PATRIOT Act eliminated these barriers to information 
sharing, allowing for the routine sharing of information 
derived from these important criminal tools. And section 203(b) 
ensures that information developed through law enforcement 
methods other than grand jury subpoenas or criminal wiretaps 
can also be shared with our intelligence partners at the 
Federal, State and local levels, as well as our partners 
overseas.
    Although information does not flow between agencies with a 
PATRIOT Act label on it, it is quite clear that information 
derived from the FBI's investigations is now assisting other 
agencies in performing their missions, principally overseas. As 
an example, an FBI field office obtained information of 
intelligence value while conducting a criminal investigation 
and shared this information with the CIA and other intelligence 
entities. In this particular investigation, a Title III 
intercept showed that the subject of the investigation was in 
contact with an overseas number.
    Taking that number, investigation undertaken by the CIA and 
others determined links between this number and a number 
associated with a subject of a terrorism investigation who had 
been captured. This sharing of information permitted additional 
investigation by each of the intelligence community components, 
integrating information that had been found and put together in 
the United States with information that had been found and put 
together overseas.
    This sharing of information is absolutely fundamental to 
the safety of the American public in the future. And while 
section 203 removed barriers to sharing criminally-derived 
information with our intelligence community partners, section 
218 of the PATRIOT Act was the first step in dismantling the 
wall between the criminal and our intelligence investigators. 
It eliminated the primary purpose requirement that arose from 
statutory interpretation by the FISA court and replaced it with 
a ``significant purpose'' test. As a result, FBI agents working 
on intelligence and counterintelligence matters now have 
greater latitude to consult criminal investigators or 
prosecutors without putting their investigations at risk.
    The increased coordination and information sharing between 
intelligence and law enforcement agents facilitated by the 
PATRIOT Act has allowed us, the FBI, to approach our cases as a 
single integrated investigation using all of its tools, both 
criminal and intelligence, as long as the requirements for each 
of those tools are properly met. The successes of these cases 
are entirely dependent on the free flow of information between 
respective investigators and analysts.
    Mr. Chairman, I would like to close with making one point 
that I do think has been not fully amplified in the debate, in 
the public debate, on the PATRIOT Act and its tools, and that 
is the role of the Federal judiciary. For example, the FBI must 
seek authority from a Federal judge to utilize a roving wiretap 
and that judge must find that there is probable cause to 
believe that the target of the surveillance is either a foreign 
power or an agent of a foreign power, such as a terrorist or a 
spy.
    If the name of the individual on whom we are seeking roving 
surveillance is not known to us, we must provide a description 
of the individual and that person's activities to satisfy a 
Federal judge that, again, there is probable cause to believe 
that this person is a terrorist or a spy and that his actions 
may have the effect of thwarting surveillance.
    Similarly, under 215, the FBI does not write a warrant 
authorizing access to business records; rather, it is a Federal 
judge that issues the order upon a certification by the 
government that the items requested are relevant to an ongoing 
national security investigation. And finally a judge authorizes 
the government to conduct a search, and only the Federal judge 
can then authorize the government to delay notification, upon 
making of a showing--delay notification to the subject of that 
search.
    Mr. Chairman, the role of the Federal judiciary is vital to 
protecting the rights of individuals, particularly where more 
intrusive means of investigation are utilized. In addition to 
the oversight by Federal judges, the activities of the FBI and 
DOJ prosecutors are always tethered to the Constitution, and we 
take our responsibility exceptionally seriously.
    As the Attorney General has already noted, I as well am 
unaware of any substantiated allegation that the government has 
abused its authority under the PATRIOT Act. This is a tribute 
to the men and women in Federal law enforcement and the men and 
women in the intelligence community as well as the Federal 
prosecutors, all of whom are committed to responsibly using the 
statutes provided by Congress. In renewing these provisions 
scheduled to sunset at the end of this year, Congress will 
ensure that the FBI will continue to have the tools we need to 
combat the very real threat to America posed by terrorists and 
their supporters.
    Thank you for the opportunity to appear here today. I'm 
happy to answer any questions.
    Chairman Roberts. Mr. Director, we thank you very much for 
a comprehensive statement.
    We now recognize Director Goss.
    [The prepared statement of Director Goss follows:]

                  Prepared Statement of Porter J. Goss

    Good morning, Mr. Chairman, Mr. Vice Chairman, and Members of the 
Committee.
    I appreciate the opportunity to appear before you today to discuss 
the important role the USA PATRIOT Act has played in improving the 
ability of the Intelligence Community to fight the global war on 
terrorism. As you recall, in October 2001, Members of Congress worked 
together in a united effort to create legislation that would give 
Federal law enforcement and intelligence officials the additional legal 
authorities needed to combat the terrorist threat to our country. I can 
assure you that the tools you provided in the PATRIOT Act have greatly 
assisted intelligence officials in the on-going effort to interdict and 
disrupt terrorist groups and individuals who seek to do harm to our 
country and our citizens. I will now briefly discuss how the PATRIOT 
Act has been most helpful to intelligence officers, and, along with my 
colleagues, the Attorney General, and the Director, FBI, urge you to 
renew permanently those provisions of the Act due to expire at the end 
of this year.

                          INFORMATION SHARING

    The PATRIOT Act has played a large role in an information-sharing 
transformation throughout the Federal law enforcement and intelligence 
communities, permitting a cultural shift in previously unshakeable 
paradigms. Today, intelligence officers have the ability to receive 
foreign intelligence information from Federal law enforcement officials 
that has been obtained during the course of criminal investigations, 
and the PATRIOT Act makes it clear that this information may include 
information obtained from grand jury proceedings and criminal 
investigative wiretaps. If the various provisions of the PATRIOT Act 
that authorize this foreign intelligence information sharing are 
permitted to sunset, we will lose some of the essential weapons used to 
counter the grave threats posed by al-Qaeda and other terrorist groups. 
Now is not the time to engage in unilateral disarmament.
    Of particular concern is the ``wall'' that served to limit the 
sharing of information between intelligence and law enforcement 
officers. The wall was a barrier against full and discerning dialog and 
greatly impinged on the effective use of critical tools necessary to 
fight terrorism. Continuation of the PATRIOT Act information sharing 
provisions ensures while we do not hamstring ourselves in this vital 
area of intelligence and law enforcement collaboration we will also 
take the appropriate steps to protect the privacy rights and civil 
liberties of Americans.
    If the information sharing provisions of the PATRIOT Act are 
permitted to expire, currently robust information sharing relationships 
may be adversely impacted as officials seek guidance on what 
information sharing is permitted absent the PATRIOT Act authorities, 
because the clarifying and instructive benefits of the PATRIOT Act will 
be lost. As any war-fighter will tell you, a necessary tool in fighting 
the battle is the ability to share information freely to get the job 
done expeditiously and effectively. Constructs that otherwise preclude 
information sharing had to be torn down, and the PATRIOT Act provisions 
accomplished that end. Resurrection of these obstacles will 
significantly impede the war effort.
    If, however, the provisions scheduled to sunset are renewed, 
ongoing efforts by government officials to use the PATRIOT Act 
authorities to improve information sharing, to utilize highly valuable 
limited resources most effectively, and to continue the cooperation 
between agencies, will continue. One of the most positive illustrations 
of this collaborative environment may be found in the National 
Counterterrorism Center (NCTC).
     NCTC is a specific example of how the information-sharing 
authorities of the PATRIOT Act have been leveraged to benefit the 
Federal Government as a whole.
          NCTC personnel assigned from multiple Federal law 
        enforcement and intelligence community entities receive foreign 
        intelligence information from the FBI that is obtained by the 
        Bureau during criminal investigations and disseminated to NCTC 
        under authorities granted by the PATRIOT Act.
          This information is compiled with other foreign 
        intelligence information obtained through traditional 
        intelligence collection methods and is used to produce all-
        source terrorism analysis that is subsequently disseminated 
        throughout the Intelligence Community and to officers within 
        the Department of Homeland Security and the FBI.
          NCTC officials also use terrorist identity 
        information disseminated by Federal law enforcement officials 
        under PATRIOT Act authorities to maintain TIPOFF, a data base 
        used to prevent known and suspected terrorists from entering 
        the United States. NCTC officials estimate that the number of 
        known or suspected terrorists that have been intercepted at US 
        borders, based on FBI reporting alone, has increased due to the 
        information sharing provisions of the PATRIOT Act.
    In addition to talking about the information sharing provisions 
that are due to expire in a few months, I wanted to also highlight the 
importance of another information sharing authority in the PATRIOT Act. 
This provision, section 905 of the Act, not only permits, but also 
generally requires the Attorney General to expeditiously disclose to 
the DCI, and now to the DNI under the Intelligence Reform Act of 2004, 
foreign intelligence information acquired by the Department of Justice 
during the course of criminal investigations. This provision, like the 
expiring information sharing provisions, encourages the free flow of 
intelligence information by removing any doubt from the minds of 
Federal law enforcement officials that sharing is authorized.

                          FISA PRIORITIZATION

    My colleagues from the Department of Justice will discuss with you 
how Federal law enforcement officials have benefited from amendments 
made to the Foreign Intelligence Surveillance Act (FISA) by the PATRIOT 
Act. I would like to advise you how authority granted by the PATRIOT 
Act has enabled the DCI to improve the process for submitting FISA 
requests to the Attorney General and the Foreign Intelligence 
Surveillance Court.
    The PATRIOT Act called upon the DCI to establish requirements and 
priorities for foreign intelligence information to be collected under 
the FISA and to assist the Attorney General with the dissemination of 
FISA-derived intelligence. The DNI is now charged with these 
responsibilities under the Intelligence Reform and Terrorism Prevention 
Act of 2004.
    In June 2003, the DCI implemented this provision of the PATRIOT Act 
by creating an interagency panel to prioritize requests seeking 
authorization to engage in foreign intelligence collection operations 
under the FISA. The panel, coordinated by the ADCI for Collection, 
includes representatives from the CIA, DOJ, FBI, and NSA. The 
prioritization mechanisms established by the panel are working well and 
have enabled intelligence officials to carefully weigh and accommodate 
competing priorities for FISA-authorized collection operations, making 
the best use of the limited resources of the FBI, NSA, CIA, and the 
Department of Justice, and most specifically, the FISA Court.

                               CONCLUSION

    Let me conclude my comments today by saying that the PATRIOT Act 
has improved the ability of intelligence officials to fight the war on 
terrorism by removing legal and cultural impediments that previously 
prohibited or discouraged the sharing of foreign intelligence obtained 
by Federal law enforcement officials during the course of criminal 
investigations, and by enhancing the ability of the intelligence and 
law enforcement communities to collect and analyze vital information to 
wage an effective and continuing effort to disrupt international 
terrorist activities. Failure to renew the provisions due to sunset 
will ill-serve the national security of the United States.
    I thank you for inviting me to speak with you today, and for your 
continued support.

 STATEMENT OF THE HONORABLE PORTER J. GOSS, DIRECTOR, CENTRAL 
                      INTELLIGENCE AGENCY

    Director Goss. Thank you, Mr. Chairman. Good morning. Good 
morning, Mr. Vice Chairman, Members of the Committee.
    I would propose that I ask, in the interest of time and not 
to repeat some things that I would like to say that have 
already been said, that you would accept my full statement and 
allow me to abbreviate it.
    Chairman Roberts. Without object it is so ordered, and your 
request is gladly approved.
    Director Goss. I thank you.
    I do associate myself very much with the statements made by 
the Attorney General and the Director of the FBI. There are a 
couple points I would like to make as the Director of the 
Central Intelligence Agency, although I would also be very 
happy to answer questions as the DCI, which I was when some of 
this material was going on, and I have had the responsibility 
of signing FISA requests and a somewhat different role in that 
position, which now Ambassador Negroponte, of course, has 
assumed.
    I would simply say that it is extremely important for us 
not to under-emphasize the information sharing, the 
coordination, cooperation, change of cultures, breaking down of 
walls, breaking of stovepipes, if you will. Remember how much 
time was spent by Members of Congress and various Committees, 
oversight boards, specially set-up commissions, independent 
commissions, and so forth, after 9/11 that said we must work 
better together.
    And there is no question that the manifestation of that has 
been made possible by the PATRIOT Act in enterprises such as 
TTIC, the Terrorist Threat Integration Center, which has now 
graduated into the National Counterterrorism Center, which is 
probably a showcase of where we can point out how we bring 
information together and how it works well for the safety of 
our country in dealing with the terrorist threat.
    Obviously I am here today representing the national foreign 
intelligence program as seen through the CIA's eyes and there 
is a lot I will not be able to say in open session but I am 
very happy to talk about in closed session.
    Certainly, sources and methods are involved in the PATRIOT 
Act, in our programs, but authorities are appropriate for us to 
discuss. These authorities are particularly essential for the 
intelligence community, in particular 203(d) and 214. These 
represent areas in sharing, breaking down the ``wall'' that has 
been referred to already--and talk a little bit about 
modernization, of being able to keep up with the advantages we 
have to deal with terrorists using technology as it exists 
today, which, of course, the terrorists are taking advantage 
of. We need to be able to deal with that, counter that, and get 
ahead of it for our own purposes.
    I think those two provisions, from our perspective, are 
critically important, although I would suggest that the PATRIOT 
Act has served this country extremely well across the board. 
And I also am not aware of any serious problems with it in 
terms of invasion of rights or liberties.
    I do admire the safeguards that Director Mueller has 
referred to. I have spent some time coming in and signing FISA 
requests as the DCI. There is a clear need to prioritize and 
understand each request, understand what is going on. I think 
that process works well. I'm not sure what other testimony has 
been on that, but my testimony on it is that it works timely; 
it works well. It deals with the crush of business, as it were, 
on a prioritization basis, which is very important. And it does 
provide fresh eyes.
    In my case, I must have looked at a couple of dozen things 
that I hadn't seen before because somebody else had signed them 
or they had come in under a different channel, and I was very 
satisfied that this process was working exactly the way any 
American would want it, which would be to stay out of their 
business but to be applied to people who are trying to infringe 
our liberties and damage our people, innocent people, from far 
shores--people we call terrorists.
    So I think this is a very good use of time, Mr. Chairman, 
to be reviewing this matter and being suggestive of the 
position that we've got a success here; perhaps we could make 
it a little better. But I certainly don't want to give away the 
tools that, I can assure you, the intelligence community is 
using well.
    Thank you, sir.
    Chairman Roberts. Senators will be recognized for 5 minutes 
in the order of their arrival and there will be a second round, 
if needed.
    I have a question in regards to administrative subpoenas. 
In the past, the President and Director Mueller have asked 
Congress to authorize the FBI to issue what's called an 
administrative subpoena in international terrorism 
investigations. If the government can use administrative 
subpoenas in health care fraud investigations and in drug 
cases, then the obvious question is why can't we use them in 
the international terrorism investigations. It seems to me that 
the administrative subpoena tool should be available for all 
authorized national security investigations that are conducted 
in accordance with the Attorney General guidelines, not just 
terrorism cases.
    I was surprised, however, that the prepared statement by 
the Department of Justice and the FBI does not echo these 
earlier requests for administrative subpoenas. Has the 
President changed his mind on this issue? That's my first 
question.
    Attorney General Gonzales, are you in favor of Congress 
authorizing the administrative subpoena in national security 
investigations? And I would also pose the same question to 
Director Mueller.
    General.
    Attorney General Gonzales. Mr. Chairman, the President has 
not changed his position. We believe administrative subpoenas 
would be an additional valuable tool to deal with the terrorist 
threat. And so I want to reassure the Committee that we 
continue to believe that that is a necessary tool and would 
respectfully request a serious consideration of that request.
    Chairman Roberts. Director Mueller.
    Director Mueller. Certainly, yes, we believe that it would 
be an exceptionally helpful tool in filling the gaps in getting 
us the information we need in our national security 
investigations. I will say that I spent a substantial amount of 
time on that in our prepared statement before the Judiciary 
Committee. It was in looking at a sense of brevity that I did 
not mention it in my opening remarks.
    But yes, we continue to press for administrative subpoenas. 
We think it is a very useful tool. As you have pointed out, Mr. 
Chairman, if it is available in health care fraud cases, child 
pornography cases, narcotics cases--I think there are 
approximately 300 separate statutes to provide for the utility 
or the use of administrative subpoenas--it makes very good 
sense for us to have that tool available when it comes to 
national security investigations.
    Chairman Roberts. I thank you both for your responses.
    We're in the process of finishing up our audit report on 
the FISA process. One of the things that we have found out was 
that the Department of Justice and the FBI--I don't know what 
grade I would give it, but it's not a 92; it doesn't rate that 
high; maybe 70, passing, I'm not quite sure--of implementing 
the FISA business records provisions, section 215 of the 
PATRIOT Act, took more than 2\1/2\ years to issue the first 
application.
    Regardless, your joint statement indicates that 
approximately 35 FISA--I think maybe you said 39--business 
record court orders have been issued since then, and most of 
these were issued for telephone numbers captured through the 
court-authorized pen registers. My question to you is, why 
isn't this technique being used more?
    Director Mueller. Well, we have the possibility in some 
areas of using National Security Letters, as you're well aware.
    Chairman Roberts. Yes.
    Director Mueller. We have, in those cases where it's being 
handled jointly as an intelligence as well as perhaps a grand 
jury investigation, it may well be that we're using grand jury 
subpoenas. But in those areas where 215 fills the void, we have 
gone through the 215 process.
    If you're comparing on the one hand the use of the 215 
process and the administrative subpoena process, they're night 
and day. The fact of the matter is, the 215 process is somewhat 
burdensome. Nonetheless, that is the way the PATRIOT Act 
established it. It does go before a judge. So we have had, 
particularly in the last couple of years, occasions where we 
have utilized that tool.
    Attorney General Gonzales. Mr. Chairman, I think one 
message that we would like to leave with the Committee today is 
that we take all these authorities very seriously and we try to 
act responsibly and judiciously in exercising these 
authorities. If we need to exercise a 215 authority, it will be 
exercised. If we don't need to exercise it, because there are 
other ways of getting information, we'll pursue other avenues.
    Chairman Roberts. I have a yellow light here, but I'm going 
to try to sneak the last question in, with apologies to my 
colleagues.
    Mr. Attorney General and Director Mueller, at a hearing we 
held last week, the FBI's investigation of Brandon Mayfield was 
cited as an abuse of the PATRIOT Act. I know that your answer 
might be circumscribed somewhat by the fact that there's a 
pending lawsuit over this case. But could you please respond to 
that allegation?
    Attorney General Gonzales. I'd be happy to, Mr. Chairman.
    You're right; I am limited in what I can say. We have done 
an exhaustive review of the allegations made by communication 
from the ACLU to Senator Feinstein specifically about Brandon 
Mayfield. I am told there was not an abuse of the PATRIOT Act. 
There are misimpressions about what authorities were in fact 
used in connection with that investigation. People have the 
mistaken belief that the section 213 authority, delayed 
notification search warrant, was used there, but that's not the 
case. It was a straightforward FISA application in connection 
with that case.
    I think we all need to understand, though, when people ask 
the question, was the PATRIOT Act implicated or used at all in 
connection with that investigation, sure it was, to the extent 
that FISA was amended by the PATRIOT Act in areas of 
information sharing like 218.
    And so to the extent that the PATRIOT Act caused changes in 
FISA, then clearly it was implicated. But from what we can 
tell, there was no abuse or misuse of the PATRIOT Act in 
connection with that investigation.
    Chairman Roberts. So if somebody makes a mistake on a 
fingerprint, that isn't the fault of the PATRIOT Act?
    Attorney General Gonzales. That was not the fault of the 
PATRIOT Act, that's correct, sir.
    Chairman Roberts. Senator Rockefeller.
    Vice Chairman Rockefeller. Thank you, Mr. Chairman.
    In section 206--I address this to both of you in that you 
gave joint testimony--section 206 of the PATRIOT Act authorizes 
roving wiretaps under the Foreign Intelligence Surveillance 
Act. As it has been explained to us, the SAFE Act would retain 
roving wiretaps, allowing surveillance where the target, for 
example, uses multiple cell phones in order to evade detection. 
And the SAFE Act would retain John Doe wiretaps where the 
target cannot be named. But the SAFE Act would eliminate the 
combination of the two--John Doe, roving wiretaps--where 
neither the location of the surveillance nor the identity of 
the target is known.
    So my question is, what would be the impact of this 
provision on the activities of the Bureau? And second, would 
the elimination of the John Doe roving wiretaps increase the 
protection of innocent Americans from unnecessary surveillance? 
And third, what protection against unnecessary surveillance 
exists in the statute as written?
    Attorney General Gonzales. Senator, let me begin by 
emphasizing that we have to go before a Federal judge in order 
to get a search warrant under 206. There has to be probable 
cause that the target is in fact a foreign power or an agent of 
a foreign power. In addition, 206 does include extensive 
minimization procedures so that we do ensure that steps are 
taken to protect the rights of innocent Americans.
    I believe that under 206 we have to go to a Federal judge 
and provide sufficient information to identify a specific 
target. There may be instances where we don't know the exact 
identity of someone we believe is a terrorist. Nonetheless, we 
have to provide sufficient information for the judge to 
identify that person. If we discover later on that we've made a 
mistake, that in fact we should be conducting surveillance on 
Person B as opposed to Person A because we were wrong in our 
identification, we'd have to go back to a Federal judge and get 
a new court order.
    Additionally, I'd like to add that we also have to have 
probable cause that the facility that we want to target or 
place that we want to target, that the terrorist is either 
using or about to use. And so we believe that 206 contains an 
abundant number of safeguards to ensure that we've got a 
limited search under the supervision of a Federal judge and 
that there are adequate safeguards to protect the privacy 
interests of Americans.
    Director Mueller. The recommended change does not make much 
sense to me. As was pointed out by the Attorney General, if we 
have an individual whom we accurately can describe, to 
differentiate that individual from everybody else, and the 
person is an individual which would satisfy the requisite 
specificity so that a judge can issue the order allowing us to 
intercept his conversations, and the person is roving--in other 
words, utilizing a number of cell phones over a period of 
days--what this statute would mean is that we would have to go 
back when we identify another device that he's using and get 
another court order.
    If we satisfy the prerequisites of 206 as it is written 
now, in my mind that is certainly an adequate safeguard to 
protect the innocent. Again, I'd emphasize, it goes before a 
judge; you have to be specific in terms of the individual, and 
you have to be specific in terms of the usage of that 
individual of various devices. And persuading a judge that you 
have probable cause to satisfy those prerequisites in my mind 
satisfies the need to protect the innocent.
    Vice Chairman Rockefeller. OK. I'll save my next questions 
for the next round.
    Thank you very much.
    Chairman Roberts. Senator Levin.

              OPENING STATEMENT OF HON. CARL LEVIN

    Senator Levin. Thank you, Mr. Chairman. Let me add my 
welcome to all three of you and my thanks for your service.
    The morning paper tells us that the State Department has 
decided to drop from its annual report the number of serious 
international terrorist incidents that occurred during the 
previous year. It's a very disturbing report to us.
    This law requiring an annual report on terrorist incidents 
has been on the books for a long time, long before 9/11. But 
suddenly we read the State Department has decided they're no 
longer going to tell the American people what the numbers of 
those incidents were in the previous year; they're going to 
drop that information.
    I'm wondering whether--and I'll ask each of you--whether or 
not you were consulted by the State Department prior to this 
important information being dropped, or at least the decision 
being made by them to drop it and to suppress information which 
is really significant in many people's eyes to understanding 
whether or not we are making progress.
    So General, let me start with you. Were you consulted by 
the State Department on that issue?
    Attorney General Gonzales. Senator, I was not personally 
consulted; whether or not the department was consulted, I'd 
have to find out. But I was not personally consulted.
    Senator Levin. Fair enough.
    Director Mueller.
    Director Mueller. I was not. I was not involved in the 
issue. But I'm not certain I would agree with the predicate of 
the question.
    Senator Levin. I understand.
    Director Goss.
    Director Goss. I believe my role was pretty much limited to 
making sure that whatever the NCTC had was made available to 
the State Department.
    Senator Levin. Thank you.
    Let me first thank you, General Gonzales, for your strong 
statement of support for oversight by Congress, calling it a 
constitutional responsibility. You disagree on whether or not 
sunset was needed. But nonetheless, in terms of the importance 
of oversight, you made a very ringing endorsement of that and 
we appreciate that.
    And Director Mueller, let me thank you for your endorsement 
of the role of the courts.
    Both of those endorsements are significant. We appreciate 
them.
    On section 206, let me ask you, Mr. Attorney General, about 
the roving wiretaps issue. I understand that, under existing 
criminal law, in addition to identifying the target and the 
location so that a court is satisfied to grant a roving 
wiretap, before the wiretap is triggered that there must be an 
authentication that the person involved in the conversation is 
the subject of the authorized wiretap, but that that 
requirement of authentication is not present in the Act that 
we're reviewing. Is that accurate?
    Attorney General Gonzales. If I understand your question as 
to whether or not there is an ascertainment requirement in the 
criminal context, my understanding, Senator, is that the 
ascertainment requirement in the criminal context only applies 
or only is there with respect to oral communications, like 
bugging. It does not exist in a criminal context in connection 
with electronic surveillance. And so I think that in that 
respect 206 would be consistent with the current requirements 
in the criminal context.
    Senator Levin. In terms of bugging, is it consistent?
    Attorney General Gonzales. I do not--it's my understanding 
that with respect to oral communications there is an 
ascertainment requirement in the criminal code.
    Senator Levin. What about in the PATRIOT Act?
    Attorney General Gonzales. There is no ascertainment 
requirement per se. But again, let me emphasize that we do have 
to show probable cause as to two very important facts--No. 1, 
that the target is a foreign power or agent of a foreign power, 
and No. 2, probable cause that the facility or place which 
you're targeting, that the target is in fact using or about to 
use that facility.
    Senator Levin. No, I got that. But why should there not be 
the same ascertainment requirement in the PATRIOT Act that 
there is in criminal law, just the way there is for electronic 
communications?
    Attorney General Gonzales. I don't believe that there is 
such a similar requirement.
    Senator Levin. Should there not be?
    Attorney General Gonzales. I don't know if I can answer 
that question, Senator.
    Senator Levin. Let me ask Director Mueller.
    Is there any reason why we shouldn't have that same 
ascertainment to protect privacy of American citizens to make 
sure that in fact the ascertainment occurs, to make sure that 
it's not somebody who should not be the subject who in fact is 
being bugged?
    Director Mueller. I would have to go and check the statute 
more clearly, more carefully on that particular proviso and 
look at the import.
    I will say generally, though, that the FISA statute relates 
to finding probable cause that we're dealing with a foreign 
power and we're dealing and looking at and undertaking 
investigative techniques of a foreign power or an agent of a 
foreign power. And that, in my mind, is a different set of 
concerns than one would have when we are investigating 
individuals for their possible breaking of the criminal laws.
    There are a number of areas that are different because of 
the different subjects we're looking at under the FISA statute 
than those subjects we're looking at under Title III of the 
criminal statutes.
    Senator Levin. My time's up. So why don't you just expand 
for the record, after reviewing the law, as to whether we 
should not have that same ascertainment requirement for the 
bugging as we do in criminal law when it comes to the PATRIOT 
Act?
    Thank you.
    Chairman Roberts. Senator Wyden. Let's try Senator 
Mikulski.

         OPENING STATEMENT OF HON. BARBARA A. MIKULSKI

    Senator Mikulski. Thank you very much, Mr. Chairman, and 
good morning to our panelists.
    I think we all remember what it was like in October 2001 
after America had been attacked and we knew that 19--or maybe 
even more--people had come into our own country and had planned 
the most despicable and dastardly deeds against us. And out of 
that came the PATRIOT Act, because we knew we needed to get 
more information and that we had old rules based on old 
thinking about old technology.
    So out of this came the PATRIOT Act, but yet the great idea 
of sunset, because I think we were all concerned that in our 
zeal to protect the country we would not be overzealous and 
then create a set of rules we either found dysfunctional or not 
in keeping with our Constitution. So I think this is why this 
debate is important now.
    Let me get to my questions.
    There are a lot of concerns, as you know, among the 
American people about jealously guarding their right of 
privacy. There's a built-in tension between the right of 
privacy and our national security. This is what we're trying to 
resolve--how to protect both.
    One of the questions that people have when they talk to me 
is they think anybody in the Federal Government, under the 
PATRIOT Act, can now spy on them. So I'm going to ask a series 
of questions, and perhaps, Mr. Gonzales, you can answer this.
    No. 1: What agencies within the Federal Government 
can,''spy'' or place American citizens under surveillance--
Federal agencies?
    Attorney General Gonzales. I mean, the FBI. The Department 
of Justice is the agency that has----
    Senator Mikulski. So can the CIA spy on the American 
people?
    Attorney General Gonzales. The primary responsibility falls 
upon the Department of Justice, not the CIA.
    Senator Mikulski. Can the CIA spy on the American--I'll get 
to another question about the so-called wall.
    Attorney General Gonzales. No.
    Senator Mikulski. Can the National Security Agency, the 
great electronic snooper, spy on the American people?
    Attorney General Gonzales. There are limits upon the NSA in 
terms of what they can do in spying upon the American people.
    Let me just emphasize one additional thing, Senator. Even 
with respect to the authorities that are granted, many of the 
authorities----
    Senator Mikulski. These are not hostile questions.
    Attorney General Gonzales. No. And I understand----
    Senator Mikulski. These are clarifying. Clarify after I ask 
my next question.
    Then let's go to the wall that Mr. Goss talked about in his 
written statement. That was the whole issue. And then it goes 
into the information sharing that Director Mueller talked 
about. Everybody's working together; let's say it's in the 
Counterterrorism Center. The NSA picks up something--say a 
foreign agent.
    They're a person of interest, even a person of suspicion. 
They're coming into the United States. They're mingling with 
people who are already in the United States. They're 
communicating. NSA has picked all of this up. They're following 
these people with their computer, their cell phone, whatever 
techno stuff they have.
    Then when they're there, do they stop and hand it over to 
the FBI, and the FBI keeps on doing it? Or do they keep on 
following these persons of interest or suspicion? And what are 
they allowed to do under the law?
    Attorney General Gonzales. Well, they are always----
    Senator Mikulski. And clarify anything you want. But see, 
these are the questions, which is, who does what, when?
    Attorney General Gonzales. There are minimization 
requirements under law on Federal agencies that engage in 
surveillance to ensure that the privacy interests of all 
Americans are protected. In addition to requirements under the 
statute, there are additional guidelines within the Department 
of Justice to ensure that the privacy interests of Americans 
are protected.
    Senator Mikulski. Well, Mr. Mueller, how would this work 
from a practical standpoint? Do you see what I'm getting at? 
Because people really worry that everybody can spy on them--the 
DOD, et cetera--and that they can come in carte blanche.
    Director Mueller. Surveillance of American citizens for 
national security matters is in the hands generally of the FBI. 
The investigation or development of intelligence overseas is in 
the hands of the CIA and NSA. And I would say generally they 
are not allowed to spy or to gather information on American 
citizens, but there are limited exceptions to that. Depending 
on the type of investigation, there would be, thanks to the 
PATRIOT Act and additional rulings of the FISA court, we would 
now have the ability to share the information that may have 
been, pursuant to its authorities, obtained by the NSA, maybe 
overseas, maybe between somebody overseas and somebody in the 
United States, or obtained by the CIA overseas, and now be able 
to use it in the United States.
    Senator Mikulski. Did you need the PATRIOT Act to be able 
to do that?
    Director Mueller. The PATRIOT Act and changes to the FISA 
statute--not changes to the FISA statute, but a 
reinterpretation of the FISA statute by the FISA appellate 
court in order to do that, yes.
    Senator Mikulski. And had those changes not occurred, would 
you or your agents have felt shackled in some way or 
discouraged from pursuing certain things?
    Director Mueller. Absolutely. I think if you look at the--
go back and read the report of the 9/11 commission, it was well 
pointed out there the constraints under which we were operating 
prior to September 11 that stymied, cutoff the flow of 
information between the agencies whose responsibility is 
protecting the security within the United States and those 
agencies whose responsibility of protecting the security of the 
United States outside the United States. And the PATRIOT Act 
and the interpretation of the FISA statute has broken down that 
wall.
    Senator Mikulski. Mr. Gonzales, you wanted to clarify, and 
then I have another question I just want to put in, which is, 
has the PATRIOT Act had any constitutional challenges directed 
at it through the court system? And have any parts of the 
PATRIOT Act been struck down as unconstitutional?
    Attorney General Gonzales. The only clarification I wanted 
to make, Senator, was to repeat one thing that Director Mueller 
said in his opening statement. And that is, of course, that 
many of the authorities exercised by the Federal Government in 
the area of surveillance are done oftentimes under the 
supervision of a Federal judge, and also that there are strong 
minimization requirements imposed by statute and by regulation 
to protect the privacy interests of Americans.
    There have been numerous challenges to the PATRIOT Act, and 
to my knowledge they have all withstood challenge--successful 
challenges in the courts.
    Senator Mikulski. Mr. Chairman, I think I'll wait for my 
next round of questions to go to another set. Thank you.
    Chairman Roberts. The questions you had were follow-on 
questions, which is why the Chairman thought it would be 
perhaps a good thing to let you get to the end of that chain of 
questions in regards to the understandability of the answers 
and the questions. But we will have a second round.
    Senator Mikulski. Well, and, Mr. Chairman, I think some of 
those questions, knowing the colleagues before us, have to 
almost go into a closed session to get more detail and get more 
of the mechanics of how it works and so on that, again, we have 
privacy concerns here.
    But I appreciate the answers.
    Chairman Roberts. Senator Snowe will be now recognized.
    Let me point out the Committee did hold a closed hearing on 
the use by the intelligence community field operatives in 
regard to the tools provided by the PATRIOT Act. These same 
questions were brought up at that particular time, and their 
responses were very helpful in regards to the questions that 
the Senator has asked.
    Senator Snowe.

           OPENING STATEMENT OF HON. OLYMPIA S. SNOWE

    Senator Snowe. Thank you, Mr. Chairman. And I thank all of 
you for being here today.
    I think one of the fundamental issues surrounding the 
PATRIOT Act as we consider its reauthorization is a lack of 
public reporting with respect to the way in which it's applied. 
And I'd really like to hear from all of you, given your 
perspectives and the different positions that you represent, as 
to how we could do a better job, how you could do a better job 
in informing the public in which instances the PATRIOT Act is 
applied because I think so often now what I hear from my 
constituents is a concern that it's used for domestic 
investigations, that there is excessive secrecy with respect to 
how it's used.
    And I think we need to have more public disclosure in 
examining and assessing its impact. I think it would enhance 
the public's confidence in the way in which this additional and 
broader authority is being used.
    So could you give us some ideas as to how we could improve 
upon the public reporting dimensions without compromising, 
obviously, valuable investigations concerning terrorists and 
terrorism?
    Mr. Gonzales, proceed.
    Attorney General Gonzales. Well, I agree with you. I think 
that we have a responsibility to not only use these tools 
wisely, but to reassure the American people that we're using 
these tools wisely, and to provide as much information as we 
can without compromising our ability to effectively deal with 
this threat, to do the best we can to provide information not 
only to the Congress but to the American people.
    In the past few weeks we have tried to be more open about 
providing additional numbers about how many times these 
authorities have been used. As you know, some of these 
provisions do impose reporting requirements upon the Executive 
branch as to how these authorities are being used.
    I must tell you, Senator, based on my very short stint at 
the Department of Justice, there are a lot of folks at the 
department who spend a great deal of time gathering up 
information to provide to Congress. And I understand that 
sometimes it takes a little longer than some Senators like. We 
want to be very careful. We want to be very accurate in 
providing good information to the Congress.
    And so there already is a lot of information that's being 
provided to the Congress. We provide reports twice a year 
regarding the use of FISA, and I'm beginning to learn that 
sometimes some Members of Congress don't take advantage of the 
opportunity to review that report, and they don't understand 
what information is already being provided to the Congress.
    So we're always happy to see what we can do more, but I 
would just emphasize that I think there is a lot of information 
that is currently being shared about how these authorities are 
being used.
    Senator Snowe. You don't think we should do anything 
further than those additional reports? I mean, I think you 
provide them biannually.
    Attorney General Gonzales. Senator, I'm happy to sit down 
with you and your staff and consider additional ways that we 
could better educate the Congress and the American people. I'm 
happy to do that.
    I just want to--I don't need to remind you, but there is in 
my judgment a lot of information that is currently being 
provided already by the Executive branch.
    Senator Snowe. Well, somehow I think that we really have to 
do a better job in conveying that to the American people so 
that it doesn't undermine the integrity of the process and how 
it's being applied, I think, in the final analysis, and its 
impact. I mean, we understand to what extent you--you know, 
obviously, certain activities have to remain secret. We 
understand that. But on the other hand, I think we have to go 
the extra mile whenever we can to convey to the public that 
this is being used in the most appropriate way and we're not 
encroaching on people's civil liberties.
    Attorney General Gonzales. I couldn't agree more, Senator.
    Senator Snowe. Mr. Mueller.
    Director Mueller. Following up on what the Attorney General 
said, the information that's been provided I think should be 
helpful in allaying some of the concerns, particularly of 
individual groups, about the abuse of the PATRIOT Act. For 
instance, the fact that we have not used the PATRIOT Act 215 to 
obtain records from a library should allay some of the 
concerns.
    We have provided a great deal of information to Congress. I 
have here a letter of October 24, 2003, to the Honorable Ted 
Stevens, as chairman of the Committee on Appropriations. In it, 
it lists something like 15 instances where we've utilized the 
delayed notification in various of our cases, indicating how 
important that particular provision is and how it has not been 
abused.
    Part of the problem that we have is the fact that to 
disclose our successes, we have to do it in closed session. The 
closed session I believe you had a couple of weeks ago, I 
believe was informative in showing you exactly how we're using 
those provisions, but to disclose much of that material would 
educate the terrorists, would educate those whom we're 
investigating. But my hope is that through hearings such as 
this, continued scrutiny from Congress, that much of the 
concern will be allayed.
    Director Goss. Senator, I have a great deal of empathy for 
your question because I have participated from the situation 
you find yourself in as responsible to a constituency. And I 
think it's very important that we reassure the constituency 
that we have safeguards in place in our government.
    I certainly think that the Oversight Committee role is 
very, very important in that. And I think, therefore, a 
frequent, very candid exchange on matters of concern needs to 
be undertaken just to make sure that we do assuage those 
concerns that might be out there, so that people who are 
respected in their communities can get up and say, I've 
examined this, I'm on top of this, and I can understand your 
concerns, but I think everything is working OK and, on balance, 
in fact, this is helping us catch terrorists or prevent 
terrorist acts from happening.
    I think that is the system that we have embraced in our 
form of representative government for dealing with these kinds 
of problems, and it's one that I think does work pretty darn 
well, but I certainly am aware of the balance problem.
    I know right now that there are people who have terrorist 
concerns, terrorist thoughts, may be associated with 
terrorists, actually people maybe in terrorist organizations, 
who are probably watching this discussion. I am very concerned 
that we understand that in the audience these days, because of 
technology, we have not only the people we're trying to 
reassure and we want to go out there and tell them how wisely 
we're employing these tools, it would be not helpful to tell 
the terrorists that.
    There is a huge amount of denial and deception and 
cleverness going on in the terrorist community, as loosely as 
it is organized. But it is good. They are smart, clever people. 
They take benign things like aircraft that we use to fly around 
for our commerce and our comfort in this country and they turn 
them into weapons of doom and tragedy. They can do that with 
other simple things that we count on every day, like going to 
the store and buying aspirin or things like that. It doesn't 
take much imagination.
    So I am very concerned that we draw a line with all the 
American people to understand we may have to be looking into 
things from time to time that terrorists are trying to take 
advantage of and use against us, things that we consider benign 
in our daily life. And those explanations have to be credible 
and they have to be accurate. And we need all the partners in 
our great enterprise to do that, both legislative, executive, 
and I would add the media would help too, if we could have 
accuracy in what's actually going on.
    I do think we have the things in place. The last thing any 
of us want in the intelligence community--and again, we are 
overseas, so I speak from that point of view--is a feeding 
frenzy over a poster child because we abused the authority. 
This authority is too important. We don't want to lose it. We 
are very careful not to abuse it.
    Senator Snowe. Thank you. Thank you, Mr. Chairman. Thank 
you all.
    Chairman Roberts. Senator Rockefeller. I'm sorry, Senator 
Wyden is next, and he has returned.

              OPENING STATEMENT OF HON. RON WYDEN

    Senator Wyden. Thank you very much, Mr. Chairman, and thank 
all of you for your cooperation.
    I want to begin with you, Director Mueller, and also 
express my thanks to you. You've always been responsive 
whenever I've called and whenever I've had concerns, and I'm 
very appreciative of that.
    I want to start with the library provision of the PATRIOT 
Act and the debate about 215. You all constantly say there has 
never been a case where you forced a library to turn over 
records. I've heard that again and again and again. But my 
understanding is that you get cooperation from libraries by 
using what you call--these are your words, not mine--a 
``discreet inquiry'' by a member of the Bureau. And I'd like to 
know, No. 1, what a discreet inquiry of a library is and, No. 
2, how many of them have there been since the PATRIOT Act? 
Because I constantly hear from my libraries, you know, about 
this.
    I think Porter Goss is absolutely right. We need to strike 
a balance here. We ought to be fighting terrorism ferociously 
without gutting civil liberties. And I really want to get on 
top of this library issue. So tell me what you mean when you 
say you get cooperation from libraries through discreet 
inquiries.
    Director Mueller. Let me start off by saying that I have 
not, I don't believe, ever said that we have never forced 
libraries to give records. We have never used 215 as a vehicle 
to get records from libraries. In the past, in criminal 
investigations we have used grand jury subpoenas. So I want to 
make certain that we're clear that I was talking about 215 we 
have not used to ask libraries to provide records to us.
    In terms of discreet inquiries, and I'm not certain of the 
context in which I may have----
    Senator Wyden. You said it to the Judiciary Committee.
    Director Mueller [continuing]. Said that. But I think what 
was in my mind is we've had a couple of occasions at least in 
which we have been contacted by persons who believe that they 
have information that needs to come in the hands of the FBI, 
and these are librarians. And in colloquy with these 
individuals, they've decided to provide us records. Now, it may 
have been with some paper. But when I'm talking about discreet 
inquiries, it has been triggered--in my mind it's been 
triggered on those occasions by librarians themselves that have 
come forward to us and said this is something you ought to look 
into.
    Senator Wyden. So, since the PATRIOT Act was enacted, there 
has not been an increase in discreet inquiries that the 
department has initiated with libraries?
    Director Mueller. Not to my knowledge, no.
    Senator Wyden. All right. Would you----
    Director Mueller. Now let me just make one----
    Senator Wyden. Would you check on that and give me the 
numbers with respect to times when the department initiated 
what you all call this discreet inquiry?
    Director Mueller. Well, I wouldn't put a tag on discreet 
inquiries. I may have used the word ``discreet inquiries'' to 
describe what I believe were two situations in which librarians 
had come to us and we had a colloquy with the librarians. It 
never got to the point of 215s because the librarians believed 
we needed the information.
    I would be happy to try to go back and look at the number 
of occasions where we have utilized--we have not used 215--the 
number of occasions that we have utilized process on libraries. 
But it would be very difficult for me to go back and say, ``OK, 
when has one of our agents talked to a librarian?''
    Senator Wyden. I understand. I think you get my point as 
well. These librarians are very fearful. They're patriotic 
Americans. They want to assist their government and at the same 
time, like the rest of us, they're concerned about fishing 
expeditions. And I want to make sure I understand what these 
issues are all about. And why don't we say I intend to go into 
this more in the closed session as well to make sure I'm on top 
of that.
    Director Mueller. Can I make one last point in this regard?
    Senator Wyden. Of course.
    Director Mueller. I am quite certain that had we engaged in 
fishing expeditions with libraries that it would have come--
attention would have been brought to that fishing expedition by 
either the librarian society or the ACLU. And we have not had 
brought to our attention an abuse of our role in interacting 
with libraries.
    Senator Wyden. Director, what I'm concerned about is that 
it may not be getting to that point because essentially people 
show up from the Bureau, ask these kinds of questions, and 
these librarians say, ``Look, we don't want to be seen as 
disloyal; we're just going to cooperate.'' I want to know more 
about this. I'm not making any allegations here. All I know is 
I saw you say the words ``discreet inquiry,'' and I'm hearing 
from these librarians. I want to get on top of this.
    Question for you, if I might ask, General Gonzales. You 
said that there had not been an instance where a court has 
found any abuses under the PATRIOT Act. Are you aware of Doe v. 
Ashcroft? That was the case where the Federal judge struck down 
the authority for National Security Letters for customer 
records of communication service providers which had been 
expanded by the PATRIOT Act.
    Now the court held that the government had failed to 
provide any explicit right for a recipient to challenge the 
letter, a search order, and that violated the Fourth Amendment, 
and that the automatic secrecy rule violated the First 
Amendment, and the department has appealed the decision to the 
2nd Circuit. Are you aware of that, or----
    Attorney General Gonzales. I am generally aware of that 
case. You are correct; the courts had indicated that there were 
problems under the First and Fourth Amendment, even though the 
Department of Justice conceded that this request by the 
government could be disclosed and could in fact be challenged 
in the courts. Nonetheless, the court chose to disregard our 
concession and issue its ruling.
    My understanding of that case, Senator, is that the court 
specifically, though, focused on a provision that predated the 
PATRIOT Act, and that was the provision that was in fact struck 
down. And it did not reflect a decision by a Federal judge to 
strike down a particular provision created by the PATRIOT Act. 
But I will confirm that and get back to you.
    Senator Wyden. Why not require a judge to approve these 
National Security Letters? I mean, that could be done 
electronically, it could be done quickly. My concern about 
these National Security Letters is that there would be a way to 
strike the balance that Porter Goss has talked about, a view 
that I share, relatively simply--that, you know, you could have 
judges approve the National Security Letters electronically and 
quickly. I'm concerned that a lot of these recipients aren't 
given notice of their right to challenge search orders. And it 
would seem to me that this would be something consistent with 
this balance that we've been talking about that we could do.
    Do you have any concern about what I've just described?
    Attorney General Gonzales. My understanding, Senator, with 
respect to the use of National Security Letters, I mean, one of 
the benefits of it is speed. There may be instances where you 
need to get them so quickly that you might lose valuable 
information if, in fact, you have to track down a Federal 
judge.
    I would also emphasize that the use of National Security 
Letters is limited to certain types of entities that you can 
gather information from, and it's limited as to certain types 
of information you can try to get under National Security 
Letters.
    Senator Wyden. Well, again, what is hard for us to address 
here is that we're to some extent doing oversight in the dark. 
We are trying to figure out how to strike this balance. 
Director Mueller and I are going to talk a bit more in closed 
session about the library provisions.
    The Department of Justice is required to report to this 
Committee on the use of National Security Letters by the FBI. 
We haven't gotten the report for 2004. We haven't gotten it. So 
that makes it hard for us to do oversight, which is why Members 
of this Committee show up and ask these questions.
    So I hope that all of you will work with us on this because 
in an area like this, National Security Letter, I sort of 
operate under the Ronald Reagan theory, ``trust but verify.'' 
And what I do know is that we haven't gotten the report that 
was supposed to be filed on these National Security Letters, so 
we come here and ask these questions.
    And if we have a second round, Mr. Chairman, I'll ask some 
more. Thank you.
    Chairman Roberts. Senator Rockefeller.
    Vice Chairman Rockefeller. Thank you, Mr. Chairman.
    This is a specific question about FISA orders for business 
records, ``any tangible things.'' In 215 in the PATRIOT Act it 
authorizes FISA orders issued by the FISA court for ``any 
tangible things'' from any entity. Under section 215 the 
government only needs to make, with respect to terrorism 
investigations, a showing that the records in question are for 
``an authorized international terrorism investigation.'' In 
your joint statement you indicated that the department would 
support an amendment that requires that the records be 
``relevant'' to a national security investigation.
    Section 215 also provides that no person shall disclose to 
any other person that the FBI has sought or obtained records 
except for persons necessary to producing, obviously, the 
records. In your statement you indicated that the department 
would support an amendment that the recipient of a section 215 
order may consult with an attorney and may challenge the order 
in court. The questions I have are twofold.
    Would you support limiting the scope of section 215 to 
those records for which there was at least some specific 
information for believing that the records related to a 
suspected terrorist or other agent of a foreign power, No. 1, 
yes/no?
    Secondly, your statement indicates that you support 
modification of section 215 to give the recipient of the FISA 
order the right to consult an attorney and to challenge the 
order in court. Do you support the provisions of the SAFE Act 
that would require the government to show why nondisclosure is 
necessary and place a time limit on a nondisclosure 
requirement? Why or why not?
    Attorney General Gonzales. I think that the ``relevant'' 
standard is the appropriate standard with respect to 215 
business order requests. We have indicated that we believe that 
it is a relevant standard. The words are not used in the 
statute, but we believe it is implicit. But nonetheless, we 
would support making it clear that the appropriate standard is 
a relevance standard.
    I think to go above that to require a higher standard would 
make the use of 215 sort of a dead letter. I don't think 
investigators would use 215.
    We look at 215 orders as a search for--not a search, but a 
request for information, much like a grand jury subpoena, where 
the standard there is also relevance. It's part of the building 
block of the case in order to get information to see whether or 
not there is sufficient information to develop probable cause 
that would support a search. And my own judgment is that if the 
standard were changed, that 215 would no longer continue to be 
useful.
    And I'm sorry, sir, I don't remember the second part of 
your question.
    Vice Chairman Rockefeller. That was the SAFE Act would 
require government to show why nondisclosure is necessary and 
place a time limit on nondisclosure requirements.
    Attorney General Gonzales. Well, I think in this case we'd 
be talking about information that is classified. And it just 
sort of turns the presumption on its head that classified 
information--the presumption is is that it would become public 
unless you showed certain things. I mean, it is classified 
information, and I think there's a reason it is classified 
information and should remain classified information.
    Vice Chairman Rockefeller. Well, then help me understand. 
You would say, then, that a nondisclosure requirement is not 
desirable?
    Attorney General Gonzales. I would not support it. I mean, 
I think we all understand that these investigations involve 
very sensitive matters. Talking about in the FISA context, this 
is the most sensitive information. And to disclose information 
to a target or someone who's not a target of an investigation 
but someone who then shares the information unknowingly to the 
target may jeopardize a very important, serious investigation. 
And so we would have concerns about such a requirement.
    Vice Chairman Rockefeller. OK. One more. This is on 
``significant purpose,'' about those requirements.
    Section 218 of the PATRIOT Act amended the certification 
requirement of FISA such that the collection of foreign 
intelligence must be ``a significant purpose'' of the 
surveillance or the search. Prior to the PATRIOT Act, the 
certification requirement had to be interpreted to require that 
foreign intelligence collection be, quote, ``the primary 
purpose'' of a surveillance or search. Section 218 has been 
credited with ``helping to bring down the wall separating 
intelligence agencies from law enforcement agencies.''
    Other provisions of the PATRIOT Act such as section 203 
allow information to flow from law enforcement officials to 
national security officials and to members of the intelligence 
community, as we know.
    The question is, in terms of protecting the United States 
from another attack, what difference have these information-
sharing acts made, in your judgment? Second, can you describe 
the relative use and importance of, first, a provision allowing 
the sharing of criminal investigative information with 
intelligence officials, the importance of that, and second, in 
the other direction, provisions allowing the sharing of 
intelligence information with law enforcement agencies at a 
lower level?
    Attorney General Gonzales. Well, I think it is probably one 
of the most important aspects of the PATRIOT Act, provisions 
like sections 218 and 203, which have made it clear for law 
enforcement and the intelligence community that it is OK to 
share information. And, as the 9/11 commission and the WMD 
commission, the reports from those commissions, both indicated, 
part of the reasons for the attack on September 11 and the 
problems we've had is the fact that the government has been 
unwilling because of a perception that they're unable to share 
information. And section 218 and other provisions like 203 have 
made it clear that it's OK to share information.
    So, it's very, very important. I think sharing of 
information, to be successful in that, is so important in 
winning the war on terror.
    Vice Chairman Rockefeller. General, I'm in agreement with 
that, but the question was, has it made a difference?
    Attorney General Gonzales. It has made a difference. Yes, 
sir.
    Director Mueller. If I could speak to that just for a 
second, it has made a tremendous difference in our ability to 
conduct what has been called by the 9/11 commission 
``transnational intelligence investigations.'' Terrorists 
operate, as we saw on September 11--they developed their plans 
in Afghanistan; they habituate Hamburg, Germany; and launched 
their plans in the United States.
    We've had a number of occasions since September 11 in which 
we have discovered information in the course of criminal 
proceedings here that has been passed on to the CIA and enabled 
the CIA to wrap up persons overseas with the help of their 
counterparts. That would not be possible without the provisions 
of the PATRIOT Act.
    We had convicted yesterday, in Northern Virginia, an 
individual by name of Tamimi, who in the wake of September 11 
had encouraged a number of individuals to go to Pakistan to 
obtain training in order to fight against the troops in 
Afghanistan. He was convicted as a result of the ability to 
share information that may have come from the intelligence side 
of the house but can be used in the criminal side of the house.
    Last year, in the spring of last year, I believe it was, 
there was an individual by the name of al-Hindi, who was 
arrested by the British authorities. He is the individual who 
had undertaken surveillance of The Prudential and a number of 
financial institutions in the United States. If we had not been 
able to look at some of his co-conspirators, both criminally as 
well as from the intelligence perspective, we would not have 
been successful in obtaining the plea of a principal member 
here in the United States, nor would we have been half as 
successful in coordinating and cooperating with our 
counterparts overseas in terms of exchanging information with 
them that enabled them to wrap up and prosecute al-Hindi.
    One can talk about the successes due to breaking down the 
walls for a good several hours. I'm sure you heard in the 
closed session last week a number of instances where breaking 
down the wall by the PATRIOT Act and the rulings of the FISA 
court has made a tremendous difference in our ability to 
protect the American public.
    Vice Chairman Rockefeller. I happen to agree with that, and 
I think it's important that the public hear that clearly.
    Chairman Roberts. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    Director Goss, I welcome--I think all of us do--your strong 
support for congressional oversight which you have made in your 
testimony. I think we've fallen short in Congress of carrying 
out those responsibilities and I very much welcome your 
statement of support.
    And, more importantly, I welcome your following through 
with documents which you have supplied to me, which I have been 
waiting for from the former CIA Director for a year. You came 
to office, said you would be cooperative. You have come 
through, followed through with the actual documents I've been 
waiting for. I can only say I wish the Department of Defense 
were as forthcoming with documents as you have been, but I 
don't expect you to comment on that.
    [Laughter.]
    Senator Levin. Thank you.
    The money-laundering provisions in the PATRIOT Act. Title 
III contains provisions that Congress enacted to strengthen our 
laws against money laundering and terrorist financing. They're 
not subject to sunset, but nonetheless we should be reviewing 
these provisions, whether they're sunsetted or not, as you 
said, General. I agree with that.
    Have they been useful to you, the anti-money laundering 
provisions in the PATRIOT Act?
    Attorney General Gonzales. I'm told that they've been very 
useful to the department. I don't have specific examples. 
Perhaps Direct Mueller does. But money laundering and those 
kinds of schemes to finance terrorist activities is so very 
important in our ability to deal with this threat. Without 
financing, it's very difficult for terrorists to attack this 
country. But, to respond, yes, it's been very important.
    Senator Levin. And, Director Mueller, have the provisions 
of the PATRIOT Act relative to anti-money laundering in general 
been useful to you, without getting into too many specifics 
because of the time limit on our questions?
    Director Mueller. Yes. Let me just mention a couple of 
provisions that were incorporated in the PATRIOT Act that were 
tremendously important.
    Money transmitting businesses, which have become a 
mechanism for exchanging funds around the world, the PATRIOT 
Act gave us provisions helping us to address those. The 
provisions relating to treasuries, the rules and regulations 
with regard to banks, so that banks, not only in the United 
States but around the world, adopt ``know-your-customer'' rules 
are tremendously important.
    So just to mention two of those provisions, I'm sure we 
have other examples from Treasury in which the ability to 
forfeit funds in interbank accounts has been useful, but I'd 
have to get you details on that.
    Senator Levin. That's fine. That's very helpful, thank you.
    General, section 214 is the subject of the next question. 
You've made reference to the fact that there's got to be a 
certification of the information that you seek authority to 
obtain being relevant to an ongoing investigation. And my 
question is, do you think it is appropriate in that request for 
that judicial authority that the way in which the information 
is expected to be relevant should be set forth?
    Attorney General Gonzales. Senator, I'm not sure I 
understand your question.
    Senator Levin. Well, you said that there's a requirement in 
section 214 that when agencies install pen registers, tap and 
trace devices through FISA procedures, that there's a 
requirement that you allege, you certify, that what you are 
seeking authority to do is relevant to an ongoing 
counterterrorism or counterespionage investigation.
    My question to you is, do you think it would unreasonable 
to require that you state in that request how it is relevant to 
your investigation--not just the conclusion that it is 
relevant, but how it is relevant. If you could just give me a 
yes or no, or expand for the record, I'd appreciate it.
    Attorney General Gonzales. Senator, it's hard for me to 
plead ignorance, but it may be the fact that we do have to 
explain how it's done. I don't know that.
    Senator Levin. If not, I would hope you would consider 
supporting an amendment to the statute which would require that 
you state how it's relevant, if it's not already required. 
Could you give us that for the record?
    Attorney General Gonzales. I will look at that.
    Senator Levin. Now, in section 215, we've got a situation 
where the application--this is on the records we've been 
talking about, including library records--the application to 
the court goes, as I understand it, to the institution, the 
business, or whatever. Is that correct?
    Attorney General Gonzales. No, it's the order. The 
application goes to the court and then an order is issued, and 
then we seek the records pursuant to that order.
    Senator Levin. To an institution or an entity?
    Attorney General Gonzales. The entity holding the record 
that is being pursued.
    Senator Levin. My question is, do you think it's reasonable 
that when the entity is ordered to provide records, that the 
specific target of the investigation be the subject of the 
records being sought rather than a general ``we want all your 
records'' relating to some subject? Is there any reason why the 
law should not require you, if you're not already required, to 
identify whose records it is that you seek and that it is not 
an American's record, and that the records are not connected to 
First Amendment rights?
    Attorney General Gonzales. Well, there is, of course, a 
requirement under 215 that the information sought is relevant 
to an intelligence investigation.
    Senator Levin. Right.
    Attorney General Gonzales. I worry about the additional 
requirement that you have suggested. I'd have to look at it, 
but I'd worry about going beyond what's already within 215.
    Senator Levin. All right.
    Director Mueller. Can I add something on that? I would be 
opposed to that.
    Senator Levin. All right.
    Director Mueller. I think the court should review the 
application. The court issues the order. If it's overly broad, 
the court can make a finding and require additional 
information. There will be occasions where to, as you say, 
specify in the order the individual who is the target of the 
investigation where that would be akin to alerting the person 
and risking the investigation as a whole.
    Senator Levin. How would that be alerting the person?
    Director Mueller. Well, if it goes to an institution, the 
institution can well turn around and alert the person if they 
know a particular target. There may be circumstances where we 
look for discreet groups of records. In those records may be 
records we want on a particular target or targets. And I 
believe we ought to have the ability and capability to present 
to the judge the circumstances where we want a broader order 
for those records from a particular institution.
    Senator Levin. Thank you. Thank you, Mr. Chairman.
    Chairman Roberts. Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    I want to follow up on an area that Senator Levin was 
touching on and see if I can go at it a different way, and I'll 
do this with you, Director Mueller.
    The PATRIOT Act, of course, eliminated, with respect to the 
National Security Letters and the FISA warrants, the 
requirement that you meet what was called the specific 
articulable fact test. And what was put in place was a 
requirement that when you want records, it has to be relevant 
to an open investigation. That's, I think, where we are in 
terms of the law.
    What I am interested in knowing is, what is necessary at 
this point, Director Mueller, to initiate an investigation 
within the FBI?
    Director Mueller. Well, it can be an allegation. It could 
be information provided to us by another agency, and we will 
generally open what's called a preliminary investigation. And 
the preliminary investigation enables us to do some limited 
work in terms of verifying the information, following up on the 
information before we can go to a full investigation. And the 
full investigation enables us to use a variety of additional 
tools.
    So it is a staged development of information where we have 
to make a showing in our files of what is warranting the use of 
additional investigative techniques. It is based on 
predication. In other words, the initial predication for 
opening an investigation can come anywhere from an e-mail from 
an anonymous source saying that somebody's going to commit an 
attack in New York tomorrow, and then we'll do whatever is 
necessary to either corroborate that information or disprove 
that information.
    Senator Wyden. Is it fair to say then, Director, that this 
staged development of information, as you describe it, is in 
fact the new standard of proof for issuing a FISA warrant and a 
National Security Letter?
    Director Mueller. No.
    Senator Wyden. All right, then tell me why not, because you 
just said that to initiate an investigation within the FBI, you 
can do it, essentially, with an allegation. Then you said that 
there is this--I guess you call it the process of proof, sort 
of a ladder kind of arrangement. And that, based on an absence 
of any other information, strikes me as something pretty close 
to the new standard of proof, and I'm just trying to find out 
what the standard of proof is.
    Director Mueller. It's not a standard of proof. The 
evaluation of information has a number of purposes. One is, is 
it worth opening a file? Is it worth documenting the allegation 
that's come in? We have a number of allegations that come in we 
don't open a case on because it may be an anonymous e-mail 
message that comes in to our website. But for our practical 
purposes in terms of what we need to do to further the 
investigation, we are limited at the preliminary stage to 
documenting and furthering----
    Senator Wyden. But what is the standard of proof, then?
    Director Mueller. There is no particular standard of proof. 
We don't have to prove to anybody. It's not probable cause. 
It's is there information that leads us to believe--if you want 
to say, leads us to believe--that further investigation is 
warranted in a particular case?
    Senator Wyden. I think that's a pretty sweeping comment 
that there really isn't any standard of proof, that there isn't 
any, to your terminology, no particular standard of proof.
    And I'm going to want to follow up with you on this, 
Director, because I think we used to have one. It was, you 
know, the specific, articulable fact requirement. Then we said 
that it's got to be relevant to an open investigation. Then you 
told me you can do an investigation on the basis of an 
allegation. I'd like now to know what the standard of proof is 
for these warrants and National Security Letters, and you said 
there really isn't any particular standard.
    Director Mueller. Well, there's a standard for issuance of 
a grand jury subpoena, for instance: it's relevance. There's a 
standard for issuance of a National Security Letter. In order 
to get a particular process there is a standard. But for us to 
conduct investigations internally, we don't have to meet any 
particular standard of proof. What I'm saying is, this is the 
process we have adopted over the years to assure that we have 
predication for each step of an investigation.
    Senator Wyden. With all due respect, Mr. Director, as I've 
said, you've worked very well with me. This is not what we've 
done over the years. Over the years, we had this specific 
articulable fact standard. We don't have it anymore, and that's 
why I'm pursuing this.
    Director Mueller. Happy to pursue with it you, Senator.
    Senator Wyden. Good. I want to ask this. Could I ask an 
additional question? Are we on the third round?
    Chairman Roberts. Well, of course.
    Senator Wyden. Third round, or do you want me to proceed 
now, Mr. Chairman?
    Chairman Roberts. No, right now.
    Senator Wyden. Thank you.
    I want to ask this of General Gonzales, and it involves the 
privacy and the Civil Liberties Oversight Board with respect to 
domestic intelligence. The Senate had a different view with 
respect to how the board would work than ended up in the final 
law. And the board, by the Senate version, would be in a 
position to issue subpoenas. That's not how the law came out.
    I'm curious whether you would be supportive of a request, 
General Gonzales, from the board, to issue a subpoena? It seems 
to me that if they, right from the get-go, don't have that kind 
of authority, the kind of authority that was envisioned by the 
Senate, that you limit some of their powers. And I'm just 
interested in how you would view a request from them.
    Attorney General Gonzales. Well, if we got such a request, 
then obviously we would seriously consider it. But there are 
certain standards that the department would feel would have to 
be met in connection with the issuance of any subpoena. And 
simply because this privacy board requested a subpoena, no one 
should walk away from this hearing----
    Senator Wyden. If the privacy board met the constitutional 
standards, what you're telling me is you would not rule out 
giving them a subpoena.
    Attorney General Gonzales. If we believe that a subpoena 
should be issued, we would issue a subpoena.
    Senator Wyden. Very good.
    One last question, if I might, for you, Director Goss, on 
an area I think that involves a matter we both have a great 
interest in.
    When you were here the last time, I asked about information 
sharing between the Counterterrorism Center and various 
intelligence agencies. It was based on my understanding that 
while information can be shared among the analysts assigned to 
the terrorism center, analysts have to seek special approval to 
share this information with their home agencies.
    And this approval is required, despite the fact that there 
is this finite number of people working on terrorism in the 
intelligence community. All of them have a need to know, all 
are trained to handle sensitive data on persons and foreign 
nationals. How do you think this ought to be addressed? And 
since we talked about it a bit the last time, I thought it made 
sense to follow it up.
    I still think something along the lines of a special 
terrorism analyst, you know, program, so as to allow all the 
analysts access to the same data would make sense. But since we 
talked about it the last time, I just wanted to follow up and 
get your sense of where we were.
    Director Goss. My sense of where we are is that we are 
beginning to work better as a team. I don't think it's what I 
would call a finished product yet. I think it's still a work in 
progress. Obviously, as you know, I want to be very circumspect 
in what I respond because Ambassador Negroponte has been given 
the responsibility for that in his role as DNI, and I no longer 
have those responsibilities. But when I left the ship, the 
direction was for more sharing and more compatibility in 
systems so that the goals that we both have ascribed to about 
getting information where you need it, when you need it, to the 
right analyst, would be available.
    I cannot assure you that's going to be accomplished 
immediately. There are still a lot of different systems 
involved, a lot of different procedures, a lot of concerns 
about a need to know because need-to-know still is a principle 
that comes into the business. The trick is sharing with the 
people who need to know and not having a gratuitous release of 
information that could be harmful otherwise.
    A lot of that is going to have to be worked out on a sort 
of experiential basis as we go along building the NCTC. We're 
still a little bit in the dark about what strategic planning 
actually will entail in the NCTC. As I say, I've left those 
matters in very good hands with Ambassador Negroponte and we've 
already had some conversations about some of the efforts that 
will be necessary out there and that's within the scope of what 
we've talked about.
    Senator Wyden. My concern is, and I'll wrap up with this 
Mr. Chairman, that the pre-9/11 set of walls has been replaced 
with a new set of walls preventing information sharing. And, 
for the life of me, when we have this limited number of people, 
all with the need to know, all who are trained to handle 
sensitive data, it just seems putting them through this kind of 
water torture exercise to share information is pointless and 
doesn't serve any of the interests that you three have talked 
about.
    I thank you very much, Mr. Chairman, for the extra time.
    Chairman Roberts. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman. I just have one 
additional question.
    Sections 214 and 215 protect American citizens from being 
investigated, having their phone calls traced, who they're 
calling, who's calling them, as well as having their records 
obtained ``solely on the basis of activities that are protected 
by the First Amendment.''
    So, you cannot be investigated as an American citizen under 
either 214 or 215 solely on that basis. That's a word which is 
deeply troubling to me because let's say part of the motivation 
is your First Amendment activities for being investigated. And 
I know this isn't your intent. I'm talking about what the law 
permits. I'm not talking about what you in your practice do.
    Why should we suggest in the law, in any way, that if an 
investigation of an American citizen is based significantly or 
partly on their First Amendment activities that that would be 
OK? Or should we?
    Attorney General Gonzales. Well, I think that provision was 
included by Congress to provide additional protections for the 
lawful activities of American citizens. But if American 
citizens are involved or have information or are in any way 
affiliated with terrorist activities, we should have the right 
to gather additional information through 214 and 215.
    Senator Levin. Sure. But then the motivation is that 
participation. The motivation is not, even in part, their First 
Amendment activities.
    Attorney General Gonzales. That would be correct, as far as 
I'm concerned.
    Senator Levin. Yeah. Director.
    Director Mueller. Well, I mean, you can take Eric Rudolph, 
who may claim First Amendment protection for his acts against 
abortion clinics. It may have some First Amendment motive--
protected beliefs. But the fact that he engaged in--we ought to 
be able to investigate an Eric Rudolph.
    Senator Levin. Of course.
    Director Mueller. He can sit there and say, ``Look, I'm 
against abortion clinics, but that doesn't mean he has a right 
to bomb them.''
    Senator Levin. Of course.
    Director Mueller. And so, I think it makes some sense that 
we cannot investigate someone solely on, but if they're engaged 
in someway in exercising their First Amendment rights but there 
is the possibility or the actuality of violence, it makes some 
sense to me, quite obviously, that we should.
    Senator Levin. Of course. But the purpose of the 
investigation is not to investigate his exercise of First 
Amendments rights, is it?
    Director Mueller. No.
    Senator Levin. That's what I'm driving at. And I think 
Americans are concerned about their rights. And we ought to be 
sensitive to that and you indicate you want to be sensitive to 
that. We ought to go after any acts of terrorism or support of 
acts of terrorism with all of our might. But we have to be very 
clear, as you were in your testimony, I think, that we're not 
after people for exercise of their constitutional rights. We're 
after them if they participate, encourage, in any way 
contribute to terrorist acts in some knowing way. Then we're 
going to go after them with the full weight of the law.
    But the word ``solely'' in there has been troubling to a 
lot of people. It is to me and I think you ought to give some 
thought to eliminating that suggestion that we're not--our 
motivation is not to go after people's exercise of their 
rights, period. That's not the motivation. It's to go after any 
illegal activity.
    Would you agree with that?
    Attorney General Gonzales. I agree with that sir.
    Director Mueller. Yes.
    Senator Levin. Thanks. Thank you, Mr. Chairman.
    Chairman Roberts. Thank you, Senator. I have one question 
but I'm going to opine. I don't know if that's a verb or not 
but I'll use it.
    Attorney General Gonzales, we're going to call you Jericho 
in terms of these walls. And I noted the discussion of walls in 
your written testimony. The views of your lawyers, including 
the lawyers in the Office of Intelligence Policy and Review, 
basically laid the foundation for and ultimately constructed 
the walls between law enforcement and intelligence officials 
which were then adopted by the Foreign Intelligence 
Surveillance court.
    Some would say that these views were overly cautious--and 
I'm being generous. However, as the Foreign Intelligence 
Surveillance court, in their view, made clear, these ``walls'' 
were not mandated by the Constitution case law or the plain 
language of the FISA statute. Now that's an opinion upon which 
I do agree.
    Nonetheless, my concern is with the current implementation 
of FISA. General Hayden testified before this Committee. He 
indicated the problem was not really preventing NSA employees 
from stepping over the line. It was getting NSA employees to 
even come close to the line. It took the FBI and the DOJ more 
than 2\1/2\ years after the passage of the PATRIOT Act to 
obtain the first FISA business record court order. We've gone 
over that.
    And so the question that I was going to ask, but I'm just 
going to make it as a statement, is hopefully your attorneys 
are not still shying away from the line and hopefully they are 
doing what it takes to fully use the tools we gave you in the 
PATRIOT Act.
    Now the FISA has become one of the nation's most important 
tools in protecting national security and the Department of 
Justice, as you know, plays a key role in supporting the 
intelligence community's use of the Act. The OIPR is at the 
forefront of this support, whether submitting applications to 
the Foreign Intelligence Surveillance court or reviewing the 
Attorney General-approved implementing guidelines. The 
attorneys at OIPR should be fully cognizant of the important 
role they play in the intelligence activities of the United 
States. I think it's extremely important that the OIPR be 
considered and that they consider themselves to be a full 
partner with the intelligence community.
    The question I had was to you, sir, and for Director 
Mueller and for Director Goss, do you agree with that 
statement? Let the record show that you all three said yes.
    [Laughter.]
    Chairman Roberts. While we recognize the role that the OIPR 
plays in ensuring the integrity of the process, too many times 
in this Committee's oversight OIPR has shown itself--this is my 
words, about 6 months ago during hearings--a rusty gate, if you 
will, that prevents the full use of intelligence authorities. I 
think OIPR should focus on enabling collection and ensuring 
compliance with the applicable laws.
    Now, Senator Wyden's pointed out that we have not received 
your required semi-annual reports--I'm talking to the Attorney 
General--on the usage of National Security Letters for 2004 and 
we're here at the last of April. Mr. Gonzales, could you please 
look into why we haven't received those reports in a timely 
fashion? I know you will do so, sir.
    Finally, I have a copy of the letter from the Attorney 
General which responds to a number of allegations from the ACLU 
about the Patriot Act abuses. Without objection, I want to 
enter this letter in the record.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T4983.016
    
    [GRAPHIC] [TIFF OMITTED] T4983.017
    
    [GRAPHIC] [TIFF OMITTED] T4983.018
    
    [GRAPHIC] [TIFF OMITTED] T4983.019
    
    [GRAPHIC] [TIFF OMITTED] T4983.020
    
    [GRAPHIC] [TIFF OMITTED] T4983.021
    
    [GRAPHIC] [TIFF OMITTED] T4983.022
    
    [GRAPHIC] [TIFF OMITTED] T4983.023
    
    [GRAPHIC] [TIFF OMITTED] T4983.024
    
    [GRAPHIC] [TIFF OMITTED] T4983.025
    
    [GRAPHIC] [TIFF OMITTED] T4983.026
    
    [GRAPHIC] [TIFF OMITTED] T4983.027
    
    [GRAPHIC] [TIFF OMITTED] T4983.028
    
    [GRAPHIC] [TIFF OMITTED] T4983.029
    
    [GRAPHIC] [TIFF OMITTED] T4983.030
    
    [GRAPHIC] [TIFF OMITTED] T4983.031
    
    [GRAPHIC] [TIFF OMITTED] T4983.032
    
    [GRAPHIC] [TIFF OMITTED] T4983.033
    
    [GRAPHIC] [TIFF OMITTED] T4983.034
    
    [GRAPHIC] [TIFF OMITTED] T4983.035
    
    [GRAPHIC] [TIFF OMITTED] T4983.036
    
    [GRAPHIC] [TIFF OMITTED] T4983.037
    
    Chairman Roberts. That concludes the hearing, and we thank 
you for your time.
    [Whereupon, at 11:28 a.m., the Committee adjourned.]


PROPOSED CHANGES TO THE UNITING AND STRENGTHENING AMERICA BY PROVIDING 
  APPROPRIATE TOOLS REQUIRED TO INTERCEPT AND OBSTRUCT TERRORISM (USA 
                          PATRIOT) ACT OF 2001

                              ----------                              


                               DAY THREE

                         TUESDAY, MAY 24, 2005

                      United States Senate,
                  Select Committee on Intelligence,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:41 a.m., in 
room SD-106, Dirksen Senate Office Building, Hon. Pat Roberts 
(Chairman of the Committee) presiding.
    Committee Members Present: Senators Roberts, Hatch, Bond, 
Lott, Snowe, Chambliss, Rockefeller, Levin, Feinstein, Wyden 
and Bayh.

             OPENING STATEMENT OF HON. PAT ROBERTS

    Chairman Roberts. The Committee will come to order. I 
apologize for the lateness of the arrival of the Chair. We are 
operating under a 2-hour rule, which I think everybody 
understands.
    This morning, the Senate Select Committee on Intelligence 
continues its series of hearings on the USA PATRIOT Act. Over 
the past 4 weeks, the Committee has conducted three hearings--
two open and one closed--concerning the use and reauthorization 
of the PATRIOT Act. Those hearings, our oversight activities, 
and the Committees comprehensive classified analysis of 
Executive branch activities under the Foreign Intelligence 
Surveillance Act form the basis of our legislative actions.
    The purpose of our hearing this morning is to receive 
testimony on specific legislative proposals prior to the 
Committee's mark-up of PATRIOT Act legislation. This morning we 
will hear from two distinguished panels. First, the Committee 
will hear from Ms. Valerie Caproni, the General Counsel of the 
Federal Bureau of Investigation.
    Our second panel will consist of Mr. David Kris, a former 
Associate Deputy Attorney General in the Department of Justice; 
Mr. Joe Onek, Senior Counsel and Director of the Liberty and 
Security Initiative at the Constitution Project; Mr. Daniel 
Collins, also a former Associate Deputy Attorney General and 
Chief Privacy Officer at the Department of Justice; and Mr. 
James Dempsey, Executive Director of the Center for Democracy 
and Technology.
    I want to thank you all and the Committee thanks you all 
for being here today.
    The Committee also has received the views of Professor 
Richard Seamon of the University of Idaho College of Law with 
regard to section 203 of the draft legislation. Without 
objection, Mr. Seamon's letter will be included in the record.
    [The information referred to follows:]

    [GRAPHIC] [TIFF OMITTED] T4983.038
    
    [GRAPHIC] [TIFF OMITTED] T4983.039
    
    [GRAPHIC] [TIFF OMITTED] T4983.040
    
    [GRAPHIC] [TIFF OMITTED] T4983.041
    
    [GRAPHIC] [TIFF OMITTED] T4983.042
    
    [GRAPHIC] [TIFF OMITTED] T4983.043
    
    [GRAPHIC] [TIFF OMITTED] T4983.044
    
    [GRAPHIC] [TIFF OMITTED] T4983.045
    
    Chairman Roberts. Before recognizing the distinguished Vice 
Chairman for any comments he might have, I want to comment 
briefly on the draft bill we provided to our witnesses.
    This draft bill does reflect, I think, a balanced approach, 
addressing both concerns about the use of existing authorities 
and identified gaps in investigative tools that are needed. The 
draft legislation accomplishes three simple goals.
    First, it permanently authorizes nine intelligence-related 
provisions set to expire at the end of the year. I believe 
there is strong bipartisan support for these provisions.
    Second, it extends to national security investigators tools 
already used in Federal criminal cases. It does not create new 
authority.
    And, third, it addresses some of the concerns expressed by 
critics of the PATRIOT Act by establishing new reporting 
requirements and standards for use of certain tools under the 
Act.
    Let me emphasize that the investigative tools that this 
bill extends to FBI national security investigators are the 
same tools that have been used by Federal criminal 
investigators for years to access information relevant to their 
investigations. For example, the mail cover provision is simply 
the statutory authorization of an authority which the FBI has 
had under Postal Service regulations for 30 years.
    Additionally, the administrative subpoena provision is 
similar to 335 other legislatively enacted administrative 
subpoenas currently being used by the Executive branch. Such 
administrative subpoenas have been upheld against 
Constitutional challenges for over 50 years.
    In fact, the Secretary of Labor can use administrative 
subpoenas to enforce the Fair Labor Standards Act. The Federal 
Maritime Commission can issue administrative subpoenas to 
support its investigations. And Federal criminal investigators 
can use administrative subpoenas in health care fraud, child 
pornography, and also any case dealing with drugs or narcotics.
    Federal investigators, however, cannot use them to 
investigate spies and international terrorists. The Secret 
Service can issue an administrative subpoena to investigate 
threats against the President, but the President can not use an 
administrative subpoena to investigate threats against America 
posed by terrorists and spies.
    I have yet to hear any reasonable reason to deprive 
national security investigators of well-established and long-
used investigative tools. We expect the men and women of the 
FBI to protect us and yet some advocate constraints that would 
tie their hands, I think unnecessarily. I believe that national 
security investigators should be able to use every 
Constitutional tool at their disposal to protect the United 
States.
    This is the Committee's fourth hearing on the USA PATRIOT 
Act this year. In prior hearings, the Committee has received 
testimony from panels of outside experts, law enforcement and 
intelligence officials who have used PATRIOT Act tools in the 
field, and the Attorney General, the Director of the FBI, and 
the Director of the CIA.
    Moreover, with regard to the specific provisions that are 
being discussed and considered by this Committee, we have tried 
to go out of our way to ensure that every member has had the 
opportunity to be fully informed of the provisions included in 
the draft legislation. Our General Counsel has briefed the 
Members' designated staff and has been available to meet with 
any Member to discuss any concern about any provision of the 
bill.
    Additionally, last week, the Committee held a briefing for 
all Members at which counsel from both sides of the aisle went 
through the legislation and were available for questions.
    Finally, at my direction, the Committee staff has worked 
very diligently with those who have concerns about provisions 
in the bill in an effort to resolve those concerns. As a 
result, the staff has been able to reach a number of agreements 
that may be presented at markup as amendments are considered or 
as part of a managers' amendment.
    More than 3\1/2\ years have passed since enactment of the 
PATRIOT Act. Members of Congress have had ample opportunity to 
inquire into the implementation of these authorities and to 
debate and consider the reauthorization of the expiring 
provisions. While fundamental differences will, no doubt, 
remain, I am committed to working with any Member of this 
Committee in an effort to address his or her concerns prior to 
markup.
    At this time, I'd like to recognize the distinguished Vice 
Chairman, Senator Rockefeller, for any statement he would like 
to make.
    Vice Chairman Rockefeller. Thank you, Mr. Chairman, very 
much, and I welcome our witnesses, all of them. I want to make 
just a couple of comments to set my sense of the perspective of 
the hearing.
    We meet, obviously, to hear testimony on a draft bill, 
which makes permanent certain PATRIOT Act authorities, and some 
of them are amended and others are added, like the 
investigative powers.
    I support reauthorizing the PATRIOT Act and I am inclined 
to support adding investigative authorities, but only if it can 
be shown that these new authorities are necessary and would not 
infringe on the constitutional rights of Americans, which is a 
subjective subject.
    I would like to identify several questions that the 
Committee, in my opinion, must address and that I hope the 
witnesses will before reporting the bill. The views of the 
witnesses, as I indicated, will be greatly appreciated.
    The first question concerns the renewal of expiring 
authorities.
    In its May 18 letter to the Committee last week, the 
Department of Justice quoted the President's statement of 
earlier this year, in which he said that ``to protect the 
American people, the Congress must promptly renew all 
provisions of the PATRIOT Act this year.''
    Congress, most certainly, will--to use the President's 
word--``renew'' all expiring provisions of the PATRIOT Act. In 
most cases, I believe that Congress will do that by making 
those provisions permanent. But should a new sunset date, such 
as in 4 years, be set for a few expiring provisions, much as we 
did on earlier ones, in order to ensure they are examined again 
before deciding whether they should be permanent? Does one go 
from zero to permanency or does one put in a time of review?
    For example, the draft bill contains proposals to amend the 
FISA title on orders for business records and other tangible 
things. In light of this, I think Congress extend rather than 
repeal the sunset of Section 215 of the PATRIOT Act on FISA 
Court orders for records and revisit this title in a few years 
to see how these amendments and others in the draft bill have 
worked out.
    The second area I raise is the proposed changes to Section 
215. The Attorney General has told this Committee and the 
Judiciary Committee that the Department of Justice is willing 
to support amendments that clarify Section 215 of the PATRIOT 
Act on several points. One of those matters is judicial review.
    The draft bill that you have is silent on judicial review 
of Section 215 orders for business records and other tangible 
things. There are discussions within the Committee about an 
amendment to carry out the Attorney General's commitment.
    I welcome the views of the witnesses about what is required 
to make the review meaningful. It will be essential to have 
rules that protect national security information. But should 
the statute also ensure that the applicant has access to the 
nonclassified parts of the Government's case and argument or to 
declassified summaries of classified information?
    And what statutory language will be necessary to ensure 
that the applicant is able to raise, and the Court has the 
authority to decide, all appropriate questions of privilege and 
unreasonableness?
    The third area deserving careful attention, in my judgment, 
is that of administrative subpoenas. The draft bill proposes to 
give to the Director of the FBI, or designees down to special 
agents in charge, the power to issue subpoenas for records in 
national security investigations. The Congress frequently 
grants subpoena authority to various agencies, boards, and 
officials who exercise economic or health and safety regulatory 
functions. This is not new. On several recent occasions it has 
given subpoena authority to the Attorney General in law 
enforcement circumstances. I am not aware of any time in which 
Congress has given, directly to the FBI, subpoena authority.
    That doesn't make it right or wrong, but I think that needs 
to be thought about. I would like to know the views of the 
witnesses on a number of questions as we consider providing 
this expanded investigative authority:
    What is the problem with the Department of Justice's and 
the FBI's current authority? The FBI is able to obtain records 
through National Security Letters, which are not subpoenas. If 
subpoenas or orders for records are needed, the FBI is able to 
obtain them--from the FISA Court or by way of grand jury 
subpoenas--through the Department of Justice. Has the 
Department of Justice demonstrated to the Committee that any 
investigations have faltered, even for one critical moment, 
because of the lack of administrative subpoena authority? I 
don't prejudge this; I raise this question for discussion.
    If additional authority is needed, does the draft bill 
provide the right authority and the right protections?
    As with judicial review of Section 215 orders, do the 
provisions on judicial review provide subpoenaed parties with a 
fair opportunity, and provide courts with sufficient authority, 
to challenge and prevent abuse?
    Finally, the Committee would benefit from the views of the 
witnesses on two other notable changes contained in the 
proposed legislation.
    The draft bill calls for an amendment to the definition of 
foreign intelligence information. The amendment has the 
potential to change the scope of FISA surveillance, search, and 
record production authorities. The draft bill also would 
provide for a new title in FISA on mail covers, an 
investigative power currently set forth in regulations but not 
statute.
    I will be interested in the views of our witnesses, and I 
thank the Chairman.
    Chairman Roberts. Our first witness is Ms. Valerie Caproni, 
the General Counsel of the Federal Bureau of Investigation. Ms. 
Caproni, please proceed.
    [The prepared statement of Ms. Caproni follows:]

                 Prepared Statement of Valerie Caproni

    Chairman Roberts, Vice Chaiiman Rockefeller, and Members of the 
Committee, it is my pleasure to appear before you this morning to 
discuss legislation that would reauthorize many important provisions of 
the USA PATRIOT Act and provide important new tools to national 
security investigators. Over the course of the last 7 weeks, the 
Department of Justice has made its case for why each one of the 16 USA 
PATRIOT Act provisions scheduled to sunset at the end of 2005 must be 
made permanent. In numerous hearings as well as classified and 
unclassified briefings for Members of Congress, we have explained how 
the Department has used those authorities contained in the USA PATRIOT 
Act to safeguard the safety and security of the American people. Thanks 
to the Act, we have been able to identify terrorist operatives, 
dismantle terrorist cells, disrupt terrorist plots, and capture 
terrorists before they have been able to strike. Moreover, the record 
demonstrates that we have done this while protecting the privacy rights 
and civil liberties of the American people.
    Many of the most important provisions of the USA PATRIOT Act, 
however, are scheduled to sunset at the end of this year, and the 
Department therefore applauds this Committee for taking up legislation 
that would make permanent those provisions of the Act falling under 
this Committee's jurisdiction. We are also heartened that this 
Committee has come forward with novel and worthwhile ideas for 
strengthening the Department's counterterrorism capabilities. Prior to 
this Committee's April 27, 2005, oversight hearing on the USA PATRIOT 
Act, Attorney General Gonzales and Director Mueller submitted detailed 
written testimony on utility of the provisions of the Act that are 
scheduled to expire at the end of the year, and I will not repeat that 
testimony today.
    Rather, I will simply reiterate the Department's strong support for 
making permanent those USA PATRIOT Act provisions covered by section 
101 of this Committee's draft legislation: sections 203(b), 203(d), and 
218, which toppled the wall separating intelligence investigators from 
law enforcement investigators and have allowed vital information 
sharing of immeasurable value in the war against terrorism; section 
206, which provided national security investigators with the ability to 
obtain certain court-approved roving surveillance orders that had 
previously been available exclusively to criminal investigators; 
section 207, which has increased the efficiency of the Foreign 
Intelligence Surveillance Act (FISA) application process by lengthening 
the maximum duration of FISA electronic surveillance and physical 
search orders targeting certain non-United States persons; section 214, 
which allows national security investigators to utilize court-approved 
pen register or trap and trace devices to obtain information relevant 
to international terrorism or espionage investigations; Section 215, 
which allows national security investigators to obtain court orders 
requesting the production of records relevant to international 
terrorism or espionage investigations; and section 225, which provides 
those individuals and companies assisting in the implementations of 
FISA surveillance orders the same legal immunity granted to those 
assisting in the implementation of criminal investigative wiretaps.\1\
---------------------------------------------------------------------------
    \1\ As called for in section 101 of the Committee's draft 
legislation, the Department also supports making permanent section 204, 
which is essentially a technical amendment.
---------------------------------------------------------------------------
    The Department also supports making permanent section 6001(a) of 
the Intelligence Reform and Terrorism Prevention Act of 2004. This 
provision, which has come to be known as the ``Lone Wolf '' provision, 
allows the government to gain court approval for FISA surveillance of a 
non-United States person when there is probable cause to believe that 
he or she is engaged in or preparing to engage in international 
terrorism, whether or not he or she is known to be affiliated with a 
larger terrorist group. While this provision is currently scheduled to 
sunset at the end of this year, unfortunately, the threat to the United 
States posed by known or apparent Lone Wolf terrorists will not 
similarly cease on December 31, 2005. Therefore, the Department 
strongly endorses the enactment of section 102 of the Committee's draft 
legislation, which would remove the sunset on the Lone Wolf provision.
    Besides reauthorizing important counterterrorism authorities that 
are scheduled to expire at the end of this year, the Committee's draft 
legislation also contains other vital provisions that will enhance the 
Department's ability to safeguard the American people from our Nation's 
terrorist enemies. Section 216, for example, would extend the maximum 
duration for certain FISA surveillance, search, and pen register orders 
targeting non-United States persons, thus allowing the Department to 
take resources currently devoted to the mechanics of repeatedly 
renewing FISA applications in certain cases--which are considerable--
and instead allow them to be focused on other investigative activities 
as well as conducting additional oversight of the use of intelligence 
collection authorities by the FBI. Indeed, as the Attorney General 
testified before the Committee, the Department estimates that, had 
these amendments been included in the USA PATRIOT Act, 25,000 attorney 
hours that were devoted by personnel in the Department's Office of 
Intelligence Policy and Review to processing FISA applications would 
already have been saved. That figure, moreover, does not include the 
time that would have been saved by agents and attorneys at the FBI. The 
bipartisan WMD Commission recently agreed that many of the changes 
contained in section 216 would allow the Department to focus its 
attention where it is most needed, and to ensure that adequate 
attention is given to cases implicating the civil liberties of 
Americans. The Department therefore commends the Committee for 
including this important provision in its draft legislation.
    The Department also supports section 212 of the Committee's draft 
legislation, which relates the availability of mail covers in national 
security investigations. Mail covers are concerned with recording 
information appearing on the outside of mail and thus do not implicate 
the reasonable expectation of privacy that exists with respect to the 
contents of sealed mail. Notwithstanding the relatively non-intrusive 
nature of mail covers, however, the ability to obtain the type of 
information they provide promptly and effectively can be of great 
importance in the national security context. For example, if there is 
information indicating that a person may be involved in terrorist or 
terrorism-support activities, information showing that he has been in 
contact by mail with other persons who are known to be involved in 
international terrorism can be critical to advancing and determining 
the priority of the investigation.
    As part of reforms made by Congress following the attacks of 
September 11, 2001, Congress has already acted to strengthen the legal 
procedures for obtaining comparable sender/receiver information in 
relation to electronic mail and telephone communications. Specifically, 
18 U.S.C. Sec. 2709 provides access to electronic communication 
transactional records and telephone toll billing records information, 
on certification by FBI officials at appropriately high supervisory 
levels that the information is relevant to an authorized investigation 
to protect against international terrorism or espionage. But there is 
no comparable statutory specification concerning national security mail 
covers. The current standards governing their availability are defined 
by United States Postal Service regulations, and the determination 
whether they will be conducted in particular cases ultimately depends 
on decisions by Postal Service personnel.
    The FBI is, however, in the best position to assess whether 
investigative activity is needed in particular circumstances to protect 
against international terrorism or espionage, and whether the use of a 
mail cover is warranted in the context of such an investigation. As 
noted, Congress has recognized this point in relation to the 
corresponding information for electronic mail in existing statutory 
provisions. Section 212 would simply extend the same principle and 
similar procedures to information observable on the outside of physical 
mail and would thus enable the FBI to carry out more effectively its 
central mission of protecting Americans from terrorist attacks.
    The Department also welcomes section 213 of the Committee's draft 
legislation, which responds to the President's call to provide for 
administrative subpoena authority in terrorism investigations. In 
combating terrorism, prevention is key: we cannot wait to disrupt 
terrorist acts or to prosecute terrorist crimes after they occur. To 
stay a step ahead of the terrorists, investigators need tools allowing 
them to obtain relevant infollnation as quickly as possible.
    An administrative subpoena is one such tool. An administrative 
subpoena is a request from a government official instructing the 
recipient to provide information relevant to the investigation. This 
type of subpoena authority would allow investigators to obtain relevant 
information quickly in terrorism investigations, where time is often of 
the essence.
    Like any subpoena, administrative subpoenas are subject to judicial 
review. If a recipient refuses to comply with a request for the 
production of records, investigators may not simply seize those 
records; rather, they are required to ask a court to enforce it. 
Furthermore, recipients of administrative subpoenas need not wait for 
investigators to go to court. Instead, they may file their own 
challenges to the legality of the subpoena. But for those recipients 
who wish to assist investigators, administrative subpoenas provide a 
mechanism allowing them to quickly turn over relevant records while at 
the same time shielding themselves from civil liability.
    The constitutionality of such subpoenas is well established, and 
executive branch agencies now have the authority to issue 
administrative subpoenas in more than 300 other areas. Such subpoenas, 
for example, may be issued by the Appalachian Regional Commission, 
Chemical Standard and Hazard Investigation Board, Commodity Futures 
Trading Commission, Consumer Product Safety Commission, and Corporation 
for National Community Service, just to name those departments and 
agencies whose names begin with a letter from A to C. These subpoenas 
are not, however, currently available in terrorism investigations, even 
though the consequences of a terrorist attack could be far more severe 
than those of the many other areas in which Congress has permitted the 
use of administrative subpoenas. Simply put, the Department believes 
that terrorism investigators should have at least the same 
investigative tools currently available to the Department in 
investigations ranging from health care fraud to child abuse. In 2001, 
for example, the Department issued 2,102 administrative subpoenas in 
Federal health care investigations and 1,783 in child abuse and 
exploitation investigations. Administrative subpoenas are a time-tested 
tool, and the Department looks forward to working with the Members of 
the Committee on this important proposal.
    Before concluding my testimony, three other provisions in the 
Committee's draft legislation deserve mention. First, as the Attorney 
General recently disclosed, the Department has recently obtained 
Section 215 orders from the FISA Court to obtain subscriber information 
related to phone numbers captured through court-approved FISA pen 
register devices, just as such information is routinely obtained in 
criminal investigations through 18 U.S.C. Sec. 2703(d) or a grand jury 
subpoena. Section 215 of the Committee's draft legislation, however, 
would allow the Department to instead obtain this information simply 
through a pen register order issued by the FISA Court. The Department 
believes that this proposal would reduce unnecessary paperwork and 
increase the efficiency of the FISA application process without 
impacting the privacy or civil liberties of the American people, and 
the Department is eager to work with the Committee on this initiative.
    Second, the Department supports section 214 of the Committee's 
draft legislation, which would simplify reporting requirements under 
section 108 of FISA. And third, the Department backs the amendment to 
FISA's definition of the term ``agent of a foreign power'' contained in 
section 201 of the draft legislation.
    In closing, the Department welcomes the Committee's effort to 
reauthorize critical intelligence tools contained in the USA PATRIOT 
Act and to provide terrorism investigators with additional tools 
necessary to protect the safety and security of the American people. We 
look forward to working with you closely as this bill makes its way 
through legislative process, and I would be happy to answer any 
questions you may have.

 STATEMENT OF VALERIE CAPRONI, GENERAL COUNSEL, FEDERAL BUREAU 
                        OF INVESTIGATION

    Ms. Caproni. Chairman Roberts, Vice Chairman Rockefeller, 
members of the Committee, it's my pleasure to appear before you 
this morning to discuss legislation that would reauthorize many 
important provisions of the USA PATRIOT Act and provide 
important new tools to national security investigators.
    Over the course of the last 7 weeks the Department of 
Justice has made its case for why each one of the 16 USA 
PATRIOT Act provisions scheduled to sunset at the end of 2005 
should be made permanent. I know that time is short this 
morning, so I will keep my oral statement very brief, since 
written testimony has been submitted.
    The Department applauds this Committee for taking up 
legislation that would make permanent those provisions of the 
PATRIOT Act that fall under this Committee's jurisdiction, as 
well as the Lone Wolf provision enacted in section 6001(a) of 
the Intelligence Reform and Terrorism Prevention Act of 2004.
    We are also heartened that this Committee has taken the 
time during these hearings to gain a good understanding of how 
the authorities provided for in the PATRIOT Act work in real 
life. Additionally, you have advanced new ideas for 
strengthening the Department's counterterrorism capabilities, 
for which we are appreciative.
    We look forward to working with you closely on this bill as 
it makes its way through the legislative process, and I would 
be happy to answer any questions that you may have this 
morning.
    Chairman Roberts. Members will be recognized for 5 minutes 
in order of their appearance.
    Ms. Caproni, in June 2004, before the Senate Judiciary 
Committee, Principal Deputy Attorney General Rachel Brand said 
this--and I'm quoting.

          ``In combating terrorism, prevention is key. It is not good 
        enough to prosecute terrorist crimes after they occur. For the 
        law enforcement officers, responsibility for staying a step 
        ahead of the terrorists in these investigations, time is very 
        critical. Even a brief delay can be disastrous.''

    Obviously everybody on this committee understands that.

          ``These officers need tools that allow them to obtain 
        information and act as quickly as possible. Administrative 
        subpoenas are the one tool that will enable investigators to 
        avoid any costly delays.''

    Ms. Caproni, is there any real question in regard to the 
constitutionality of administrative subpoenas?
    Ms. Caproni. As a general matter, Chairman, no, there's no 
question that administrative subpoenas as an instrument are 
constitutional. The key is that there needs to be the 
opportunity for meaningful judicial review. So long as there is 
an opportunity for meaningful judicial review, the courts have 
typically upheld the administrative subpoena power.
    Chairman Roberts. We need some examples, if you will. Can 
you give us some examples of how the FBI might use an 
administrative subpoena in an international terrorist 
investigation?
    Ms. Caproni. Sure. I'll give you two. One actually happened 
and the other would be a hypothetical, and I think the one that 
actually happened has been discussed previously in hearings.
    But shortly after 9/11, investigators were attempting to 
run down all leads, and one of their leads took them to a hotel 
somewhere--I think it was in Virginia. They wanted and needed, 
in connection with the investigation, records of who was 
staying at the hotel on a particular night. The hotel was not 
being cooperative. I'm not criticizing the hotel, but they were 
not being cooperative in this regard.
    At that point, they didn't have an AUSA available to issue 
a grand jury subpoena, and even if they had, there wasn't a 
grand jury sitting the next day that the records could be 
returned to. That would be an example where an administrative 
subpoena would have been an excellent tool in order to get the 
hotel to provide the records that the investigators needed.
    To use a hypothetical example, suppose that the 
investigators are aware of a particular individual and they 
have information that the person is about to do something bad--
commit a terrorist act. And through the course of their 
investigation they know that this person has an EZ Pass device 
on their car, but they don't know where the person is right 
now.
    One set of documents that we would want to investigate 
would be the records of the EZ Pass device, because that may 
well give us a very good lead as to where the car is and where 
the car is going. We could use an administrative subpoena to 
the EZ Pass organization in order to get those records and to 
get them very quickly for purposes of our investigation.
    So those are just two examples. I could probably sit here 
and come up with lots of hypothetical examples of where the 
need to get a record quickly exists and where needing to go to 
an AUSA to get a grand jury subpoena may not be the best way to 
go, and where an NSL is not available. In neither the EZ Pass 
sample nor the hotel example is an NSL an available tool.
    And then the other alternative would be to go for a 215 
order, and that is not going to be done in a matter of hours.
    Chairman Roberts. Now, when Mrs. Brand testified regarding 
terrorism, she said we know that terrorism may be the No. 1 
threat facing the nation, but espionage certainly remains a 
serious concern of the FBI. My question is, would the ability 
to use a constitutionally valid administrative subpoena in 
espionage investigations also provide the same kind of timely 
access that you are asking for to this kind of very crucial 
information?
    Ms. Caproni. Administrative subpoenas are always going to 
be able to provide us with quick access to information. It at 
least is a tool that we can use to serve on the party that 
holds the records. It may not get us the records because there 
could be resistance, but it is at least the tool to start the 
process for getting the records.
    As this Committee knows probably beyond all other 
committees in Congress, certainly in the Senate, espionage 
cases are extremely important. Through our history we have seen 
incredible damage done to the national security through 
espionage, both by virtue of our assets overseas being 
compromised as well as secrets that we hold within the 
government being compromised to other countries.
    And for those reasons espionage cases are extremely 
important. So anything that we can do in order to get records 
in connection with those investigations quickly is important to 
the FBI.
    Chairman Roberts. I have one other observation, but in the 
interest of time and with my time running out, I recognize 
Senator Rockefeller.
    Vice Chairman Rockefeller. I'm going to continue a little 
bit on the same track but put it differently. Do you have any 
examples of where FBI investigations in fact faltered even for 
a moment because of the lack of administrative subpoena 
authority? Can you give an example?
    Ms. Caproni. I think the example with the hotel was one 
where it faltered for a while. We ultimately were able to get 
the records, and in that case it did not result in harm to the 
national security.
    But it could have. And that's the problem with a lot of 
these tools; is we need the records, we need them quickly. Can 
we show you that because we didn't get the record a bomb went 
off? We cannot.
    Vice Chairman Rockefeller. And was that a period of several 
hours?
    Ms. Caproni. I think it was several hours; that's correct.
    Vice Chairman Rockefeller. That can make a difference.
    Ms. Caproni. It certainly can make a difference. It doesn't 
always, but it certainly can make a difference.
    Vice Chairman Rockefeller. Again, how many statutes--and, 
if you can, name some of them--confer administrative subpoena 
authority on the FBI Director.
    Ms. Caproni. There are a number of them. The ones that 
immediately come to mind and the ones that are probably used 
most often are the ones that provide administrative subpoena in 
narcotics cases and administrative subpoenas in health care 
fraud and child pornography cases. Those are the ones that are 
used the most.
    Vice Chairman Rockefeller. And that we've discussed in the 
committee. I thank you for that.
    The draft bill provides for administrative subpoenas for 
records. It does not provide to administrative subpoenas for 
testimony. Does the administration agree that the 
administrative subpoena authority should be limited to records 
and should not include testimony?
    Ms. Caproni. I think we're prepared to discuss that. I 
think as a realistic matter during the course of national 
security investigations and terrorism investigations the 
likelihood for needing testimony is low. Whether it's 
nonexistent, I'm not prepared to say that. But it is unlikely.
    Again, the real need for speed typically resolves around 
the need for documents. If the FBI agents need to talk to 
someone, they will make efforts to talk to them. If they need 
to compel them to come forward, which an administrative 
subpoena for testimony would, that would be a different issue. 
And up to now I have not heard a lot of complaints that that's 
what the agents need in order to further the investigation and 
they don't have that authority.
    Again, there's always the possibility and the available, 
though not immediately, to get a grand jury subpoena and to 
compel the person to appear before the grand jury to provide 
testimony.
    Vice Chairman Rockefeller. I'm right, aren't I, in 
suggesting that National Security Letters do not have anything 
attached to them that gets you a subpoena?
    Ms. Caproni. That's correct. The National Security Letter 
is a request for documents.
    Vice Chairman Rockefeller. So it would have to be the 
administrative subpoena authority or else it wouldn't work.
    Ms. Caproni. To get the documents through compulsion, the 
administrative subpoena compels the party who receives the 
subpoena to provide us with the documents. The National 
Security Letter requests the documents.
    Vice Chairman Rockefeller. My final question is, what 
current problems exist for the FBI and the Postal Service in 
the requesting, receiving and carrying out of mail cover 
authorities, and how would establishing these authorities in 
statute rectify those problems?
    Ms. Caproni. I don't want to say that there are problems 
between us and the Postal Service. We have a long history with 
the Postal Service which is a warm and cooperative 
relationship. Postal Inspectors sit on the Joint Terrorism Task 
Forces and we work very well together with the postal 
authorities.
    However, the current regime for mail covers, as you've 
noted, is a regulatory regime. And under the current regs the 
requirement is that a request for a national security mail 
cover has to come from a high FBI headquarters official, and 
there are a limited number of individuals within the Postal 
Inspection Service that are then authorized to actually execute 
the mail cover.
    Further, as it is written, it gives to the Postal Service 
discretion to decide whether or not to actually execute the 
mail cover. As a philosophical or jurisprudential matter, it is 
odd, to say the least, that the FBI is the agency that is 
charged with protecting the country from terrorist attacks and 
from spies, and yet our ability to use this very basic tool of 
a mail cover is charged to the discretion of another agency.
    Vice Chairman Rockefeller. Thank you. In my remaining 14 
seconds, in the last year how many National Security Letter 
requests have not been complied with, that you can think of?
    Ms. Caproni. Well, one ended up in litigation, and that 
National Security Letter has not been complied with.
    Vice Chairman Rockefeller. So one?
    Ms. Caproni. I know of one. I do not know the number of how 
many have not been complied with. I know that there are times 
when we have less than quick compliance from the party on whom 
have served the National Security Letter on.
    Vice Chairman Rockefeller. I thank you, and I thank the 
Chairman.
    Chairman Roberts. So basically your answer is that it is 
more subjective in terms of the time required. I don't know as 
we could put a criteria on that in terms of a timeframe, but 
you might want to get back to the committee with a further 
statement on that, as opposed to a particular incident or the 
number from the timeframe. Of course you already spoke to that 
prior to that, but it might be a little difficult to say 6 or 7 
of 27, for that matter, in regards to the time.
    Ms. Caproni. We will try to get the Committee information 
in terms of the speed with which we get compliance with 
National Security Letters.
    Chairman Roberts. I think that would be helpful to Senator 
Rockefeller's question.
    Senator Wyden.
    Senator Wyden. Thank you, Mr. Chairman.
    Mr. Chairman, first a little bit of business. I would hope, 
Mr. Chairman, that Thursday's markup would be held in an open 
session. It seems to me that there is so much that we have to 
do in closed session because of the implications for national 
security that that's appropriate, but I don't think that's the 
case here.
    I think this is a matter of great public concern, and I 
just wanted to weigh in and say I hope that Thursday's session 
can be done in public.
    Also, Mr. Chairman, we still have not heard from the FBI on 
the matter of the so-called discrete inquiries that are made of 
libraries. I've asked for this information more than a month 
ago, and it certainly causes me to wonder exactly how many of 
these so-called discrete inquiries are made. And I've been told 
that we can't even get a timetable when the department will get 
us that information. I just want to say I remain concerned on 
it.
    Chairman Roberts. Well, as the Senator knows, we are 
backing him up on his questions for the record, and I will take 
his suggestion for an open meeting under advisement.
    We have had now three open meetings, but I intend to ask 
questions, event-oriented, that deal with classified 
information from the intelligence community on how the PATRIOT 
Act actually works. So we're going to have to go through that 
and make a determination. My off-the-cuff commentary is that 
that might be very difficult to do.
    But I thank the Senator for his suggestion and he is 
recognized for 5 minutes.
    Senator Wyden. I thank the Chair for his thoughtfulness, 
and I do appreciate your consideration.
    It seems to me, Ms. Caproni, the heart of your case is that 
you feel that it is now time to intertwine the criminal justice 
system and the intelligence system. In effect, what's used for 
criminal investigations should be used for foreign intelligence 
operations. And you are certainly blurring the lines here in a 
way that concerns me.
    Foreign intelligence investigations have to be much more 
secretive. They don't require evidence that a crime has been 
committed. They are broader. Tell me what the argument is for 
making this dramatic shift now in public policy and sort of 
intertwining these two areas the way you do and essentially 
giving us the argument that what you use in a criminal 
investigation now should be used in a foreign intelligence 
investigation.
    Ms. Caproni. Senator, I think I have a couple of different 
answers to that. First off, I don't think there's ever been a 
bright line nor should there have ever been a bright line 
between criminal on the one side and foreign intelligence/
national security investigations on the other side. That to 
some extent, as the FISA Court of Review said, is a false 
dichotomy.
    The reality is that many of the things that we investigate 
as foreign intelligence matters are also criminal conduct. 
Furthermore, individuals who are agents of a foreign power 
commit crimes. So there is inevitably a cross-over between the 
two notions of a foreign intelligence investigation and a 
criminal investigation.
    The second relates to the use of tools. I don't think we're 
suggesting that there should be a cross-over of the tools. I 
think what we're suggesting is that administrative subpoena 
power has been available in criminal investigations for a long 
time, and it's available in lots of different sorts of criminal 
investigation. It is a great tool for investigators. It has not 
supplanted other tools. The reality is that grand jury 
subpoenas are still used in narcotics cases, in health care 
fraud cases, and in child pornography cases, though 
administrative subpoenas are also used in the same 
investigations.
    Criminal investigators have the opportunity to decide what 
is the best tool in this particular incident to get the 
materials that I need for this investigation. It's anomalous 
and odd that in national security investigations, where we're 
trying to protect the national security of the country, that 
same tool and that same ability for the investigators to look 
at the situation and say what's the best tool for me to use 
here--is the best tool for me to use to walk down the street to 
my friendly AUSA and say, ``Hey, let's open a grand jury 
investigation on this,'' or is the best tool to use is to come 
to headquarters and say we need a 215 order, or is another tool 
a better tool.
    We believe--and we have been saying this now for several 
years--that an administrative subpoena is a tool that we need 
in national security investigations.
    Senator Wyden. As I read the administrative subpoena 
proposal that you've made, essentially without going to a 
judge, an FBI field office head can basically go and ask 
anybody for anything, just asserting that it's constitutional 
and relevant to an investigation. Tell me how you would differ 
in terms of your assessment of it?
    I mean, I can see somebody in a regional office showing up 
at a hospital, saying I want all the records of the patients. 
The hospital administrator could hand them over unless later on 
he wanted to challenge it in court. Tell me where the checks 
are in this kind of process.
    Ms. Caproni. The checks, Senator, are the same checks that 
exist in other processes.
    Senator Wyden. After the fact.
    Ms. Caproni. Well, with an administrative subpoena the 
check is both after the fact from a judicial standpoint but 
there is a before-the-fact check as well, which is agents are 
bound by the Attorney General guidelines in conducting their 
investigations. There is an attorney in every field office in 
this country who is responsible for making sure that agents 
don't go off on wild tears.
    To legislate, respectfully, from the position of some agent 
somewhere may screw up is not how we would like to see you 
legislate. We put checks in place. There are judicial checks in 
place. This committee exercises oversight and gets to see how 
the FBI uses the tools that we have been provided.
    We believe that from an internal perspective it would be--I 
can assure you that the Director would have some harsh words 
for the SAC who authorized an agent to serve an administrative 
subpoena for all records of a hospital in connection with a 
national security investigation. I'm not saying it's not 
possible that that would be the correct way to go, but I can 
assure you that we would have wanted to hear about it at 
headquarters and talked through those issues.
    So I think that from the standpoint of the FBI as an 
organization that is steeped in the need to comply with the 
Constitution, we need to respect the privacy rights of 
individuals, I don't think an administrative subpoena from this 
standpoint for those investigations is any more subject to 
abuse than the administrative subpoenas in the other fields 
where we have the ability to serve administrative subpoenas.
    Senator Wyden. Thank you, Mr. Chairman.
    Chairman Roberts. Senator Bond.
    Senator Bond. Thank you, Mr. Chairman.
    Ms. Caproni, I agree with you that certainly while 
narcotics violations, health care fraud and child pornography 
are critically important issues, national security should at 
least be treated with the same degree of power for the FBI 
agents.
    You have said that the agents are bound by the Attorney 
General's guidelines and if somebody screws up there will be 
harsh words. Now I'm not sure harsh words will satisfy people. 
What other remedies are offending agents, who get off the 
reservation, likely to face and what is the sanction against 
some agent who may go on an unwarrantedly broad fishing 
expedition?
    Ms. Caproni. Well, again I think in the first instance we 
try to prevent those unwarranted fishing expeditions.
    Senator Bond. Right.
    Ms. Caproni. Along those lines, though, to the extent we 
gathered up a bunch of information on individuals that had 
nothing to do with the national security investigation, that 
information would be clamped down. It wouldn't be generally 
available to the agents to simply go pawing through.
    An agent who intentionally engages in misconduct is subject 
to discipline. They are subject to being investigated. They are 
subject to being suspended and being fired if they 
intentionally engage in misconduct during the course of an 
investigation.
    Senator Bond. That's the point I wanted to raise.
    With respect to administrative procedures, you've touched 
on it. Can you go through for us the other safeguards that are 
in place to protect affected U.S. citizens and legal aliens in 
the issuance? What are the panoply of protections to safeguard 
their constitutional rights?
    Ms. Caproni. We'll start with the way the bill works right 
now. An administrative subpoena would have to be authorized by 
the special agent in charge of the individual office. That 
means, as a practical matter, it has to come up the chain of 
the FBI within the field office, which means that an attorney 
would look at it, and they would review it to determine whether 
or not it is in compliance with the Attorney General guidelines 
for national security investigations. That would be the first 
check.
    The second check would be on the individual who receives 
the subpoena. A hospital who receives a subpoena for all of 
their health records is likely to move to quash it.
    Senator Bond. So there is a judicial remedy before they 
comply? They do have access to the courts to challenge the 
subpoena if the recipient of the subpoena views it as unduly 
broad?
    Ms. Caproni. Correct. Under the bill that this Committee is 
considering, the recipient could move to quash or move to 
modify.
    Senator Bond. How frequently does that happen in other 
settings? In what percentage of the cases are those 
administrative subpoenas which the FBI is now empowered to 
issue challenged in court and what is the success rate of the 
challenge?
    Ms. Caproni. Senator, I don't have those statistics, but it 
is a rare motion to quash. But that's not surprising. Motions 
to quash grand jury subpoenas are also rare. The reality is, 
these tools are typically served on third party custodians. 
They will move to quash if you are going to shut them down in 
order for them to comply with the subpoena.
    But as a general matter, investigators narrowly tailor 
their requests. Investigators don't like to have to paw through 
lots of irrelevant documents. So with a narrowly tailored 
request to a third party document custodian, the percentage of 
custodians who move to quash is very low.
    Senator Bond. Do they succeed very often?
    Ms. Caproni. Generally not.
    Senator Bond. All right. You have mentioned the hotel 
example. Are there other examples that you can tell us in an 
open hearing or are there examples that you can describe to us 
in a closed hearing where the enhanced authorities, the broader 
enhanced authorities, would have been useful in the post-9/11 
terrorist investigation? Any other things that come to mind or 
are there things that you can share with us with a different 
setting?
    Ms. Caproni. I don't think there are any others that I can 
share in this setting. Certainly any time the materials that we 
need were stuff that was not available through a National 
Security Letter, so that we had to resort to other tools, any 
of those examples would be good examples of where an 
administrative subpoena would have been helpful.
    Senator Bond. And we may have the opportunity to learn more 
about that in another setting.
    Just very quickly, the modification in Title II, section 
211, the addition of the explicit relevance requirement, how 
could that enhance your authorities?
    Ms. Caproni. Senator, I don't think it enhances our 
authority, but it certainly clarifies the law in a way that 
some have objected to. So we would support the notion of 
clarifying that the standard to be used in a 215 order is that 
the materials are relevant to a national security 
investigation.
    Senator Bond. Thank you, Mr. Chairman.
    Chairman Roberts. Senator Feinstein.
    Senator Feinstein. Thanks very much, Mr. Chairman.
    I'd ask that my full statement be incorporated in the 
record.
    Chairman Roberts. Without objection, it is so order.
    Senator Feinstein. Thank you, Mr. Chairman.
    [The prepared statement of Senator Feinstein follows:]

              Prepared Statement of Hon. Dianne Feinstein

    I thank you for holding this open hearing to discuss the 
Committee's draft legislation to reauthorize and amend the PATRIOT Act 
and to provide the executive branch with new authorities to use in the 
war on terror. It would be my preference to hold our mark-up on this 
legislation in an open forum as well and urge you to consider that 
course of action.
    The PATRIOT Act was enacted just 45 days after the September 11, 
2001 attacks after less than 1 month of Congressional debate. Congress 
moved quickly to provide new tools for prosecuting the war on terror, 
fearing that more attacks might come at any moment. As a safeguard, we 
built in a mechanism to force review and reconsideration of several 
sunset provisions.
    After careful review on this Committee and on the Judiciary 
Committee, I am now prepared to support the reauthorization of the 
intelligence-related PATRIOT Act provisions. In reaching this position, 
I have reviewed both the implementation of the authorities by the 
Department of Justice and the FBI and the allegations of misuse. I have 
found that the implementation has been reasonable in scope and tailored 
to the needs of our intelligence and law enforcement communities. Some 
have stated that it is only because of the sunsets placed in the 
PATRIOT Act that the FBI has tread lightly for now, and that abuses are 
more likely to occur in the future. For this reason, continued 
Congressional oversight will remain critically important.
    I also support several provisions included in Title II of today's 
legislation, such as the ones extending the duration of surveillance 
orders and reporting requirements to Congress in order to reduce 
bureaucratic hurdles at the Department of Justice. It is my hope that 
this will allow Justice and FBI employees to spend more time conducting 
intelligence investigations than passing papers through the 
bureaucracy. Perhaps that can be a first step in much larger changes 
that are needed to turn the FBI into a true intelligence agency, and 
not a place recently described by the Inspector General as one where 
professional analysts are treated like clerical staff.
    Finally, I support the legislation's language to add protections to 
Section 215 of the PATRIOT Act (the Business Records section). This 
section adds an explicit ``relevance'' standard to the law; provides 
useful relief from the nondisclosure provision without risking 
intelligence operations; requires minimization procedures to protect US 
Persons; and recognizes the sensitivity of library and bookseller 
records, gun purchases, health information, and tax forms.
    I thank you, Mr. Chairman, for including these changes to the 
Business Records section. They respond to the concerns this committee 
has heard that the language was too broad, but they won't get in the 
way of conducting effective counterterrorism investigations. I believe 
this is the model that the Congress should follow: reviewing the 
implementation of existing law, addressing legitimate concerns, and 
reviewing requests for additional authorities.
    In this light, I am concerned with two sections of this legislation 
and hope they will be removed or modified at mark-up.
    Section 203 adds criminal prosecution to the definition of foreign 
intelligence. Supporters of this section say this language is necessary 
to remove forever the so-called ``wall'' between intelligence and law 
enforcement. In fact, this provision goes much further than that. This 
language would, in effect, eliminate the much-needed distinction 
between intelligence conducted under FISA and traditional law 
enforcement, by making law enforcement a subset of foreign 
intelligence.
    We have heard time and time again that information sought for 
either intelligence or law enforcement purposes have to be shared 
quickly and fully to the other. Removing the wall between the two, both 
when requesting investigative authorities under FISA and in sharing 
information so gathered, was the most important achievement of the 
PATRIOT Act, particularly under Section 203.
    The Act, however, recognized that FISA needs to remain rooted in 
the intelligence world and should not be used exclusively as a law 
enforcement tool. Intelligence is a prospective effort where any 
information possibly available is collected and analyzed to enhance our 
understanding of possible future actions. Criminal prosecution is, by 
definition, a backwards-looking action, where law enforcement seeks 
information in connection with one or more specific events. In 
hindsight, it is possible to say what is and what is not relevant to an 
investigation. Despite arguments to the contrary, there is no abiding 
reason why law enforcement and intelligence investigations should 
proceed under the same governing authorities. There is no need to lump 
``criminal prosecution'' into the definition of foreign intelligence as 
this legislation would do.
    In 2001, Congress struggled with the right formulation to 
specifically allow intelligence and law enforcement personnel to be 
involved in the same investigation. To that end, I worked with Attorney 
General Ashcroft to write the ``significant standard'' language, 
incorporated in the PATRIOT Act as Section 218. This language replaced 
the ``primary standard'' that the Justice Department had used in 
practice for so long. The new standard allows the FBI to use FISA 
authorities for law enforcement, including prosecution, so long as 
there is a ``significant'' intelligence purpose of the investigation. 
The FISA Court of Review commented on this specific point and found 
that this language is the only thing stopping the FBI from pursuing 
FISA warrants solely for law enforcement matters involving 
international terrorism. I believe this is a good thing, and thus 
oppose section 203 of today's legislation, which would remove this 
boundary between intelligence and law enforcement.
    Since enactment of the ``significant purpose'' test I have heard 
not a single argument from either our law enforcement or intelligence 
elements that this fix did not solve the problem. In fact, Attorney 
General Gonzales, in his April 5, 2005 remarks on the Patriot Act had 
this to say about the current law: ``Section 218 of the Act, in 
particular, helped to tear down the ``wall'' by eliminating the 
``primary purpose'' requirement under FISA and replacing it with a 
``significant purpose'' test. Under section 218, the Department may now 
conduct FISA surveillance or searches if foreign-intelligence gathering 
is a ``significant purpose'' of the surveillance or search. As a 
result, courts no longer need to compare the relative weight of the 
``foreign intelligence'' and ``law enforcement'' purposes of a proposed 
surveillance or search and determine which is the primary purpose; they 
simply need to determine whether a significant purpose of the 
surveillance is to obtain foreign intelligence. The consequence is that 
intelligence and law enforcement personnel may share information much 
more freely without fear that such coordination will undermine the 
Department's ability to continue to gain authorization for surveillance 
under FISA.''
    I note that in its recent statement on the pending legislation, the 
Department of Justice supported several provisions, but provided no 
support for this section.
    Second, I am troubled by the addition of administrative subpoenas 
in this legislation. I want to make clear that I am not opposed to 
providing the FBI and the rest of the Intelligence Community with new 
tools. But we should do so only where there is a clear and compelling 
need and suitable checks on investigative authority.
    To be sure, the Bush Administration has requested administrative 
subpoena authority for counterterrorism many times. But that request 
has been for subpoena authority for the law enforcement side of the 
FBI, not under FISA. In fact, Director Mueller has repeatedly told me, 
and the Judiciary Committee, that his highest priority legislation was 
a Title 18 administrative subpoena for terrorism cases. I have heard no 
similar requests, and certainly neither the Director of Central 
Intelligence or his successor, the Director of National Intelligence, 
for this remarkable expansion of the intelligence powers granted to the 
FBI.
    It is one thing to have administrative subpoena in the criminal or 
regulatory context--in fact, supporters of the criminal administrative 
subpoena have often argued that there are more than 300 other such 
subpoena now authorized by law. It is entirely different to add a 
sweeping new power to the intelligence arsenal.
    Let me be clear--if this provision is passed into law, all of our 
discussion about Section 215 will be rendered superfluous, as the 
administrative subpoena--with no judicial supervision of its issuance--
would replace the FISA business records. When the Attorney General 
recently told this Committee that he supported adding the ``relevance'' 
language to Section 215, I cannot imagine that he took this position 
with the knowledge or expectation that we would soon pass a separate 
law making Section 215 obsolete.
    Section 213 of this bill would allow FBI officials at the field 
office level the authority to subpoena any ``records or other materials 
that are relevant to an authorized investigation. . . .'' This 
authority could be delegated to a Special Agent in Charge, with no 
prior approvals from any subordinate to the Attorney General, from any 
court, or even by a prosecutor as is done under a grand jury subpoena 
arrangement.
    The only case where such a sweeping authority could be justified is 
where a field agent needs intelligence information so quickly that a 
FISA Court order, National Security Letter, or grand jury subpoena were 
impossible to obtain. Yet this legislation does not limit the use of 
administrative subpoenas to such exigent circumstances. Indeed, as I 
have said, this authority would have the effect of making FISA business 
records requests obsolete.
    The idea of replacing the most controversial authority in the 
PATRIOT Act with one that doesn't even contain prior approval and can 
be used in basically any national security investigation is not 
responsible lawmaking. I urge that this committee use the mark-up to 
address some of these concerns.

    Senator Feinstein. Thank you, Mr. Chairman. The reason is 
because I express my concern with two sections. One of them is 
what is happening today on the administrative subpoena. And I'd 
like to speak as a member of the Judiciary Committee.
    We had a hearing last year in my subcommittee, Technology 
and Terrorism, on Senator Kyl's bill. At that time Mr. Mueller 
asked for an administrative subpoena under Title 18, a criminal 
administrative subpoena, not under Title 50. As I understand 
it, the FBI has always maintained that the Title 18 criminal 
subpoena, not a FISA administrative subpoena, was its top 
legislative priority in this area. Am I correct?
    Ms. Caproni. Senator, I believe the FBI's priority is for 
an administrative subpoena. The issue of whether it's under 
Title 50 or Title 18 I have not personally discussed with 
Director Mueller, but I believe we would like administrative 
subpoena authority.
    Senator Feinstein. Well, let me just say that's my 
recollection as a member of the Judiciary Committee, that it 
has always been Title 18. And I'm very concerned about this, so 
I just want to say I'm drafting an amendment which would 
replace section 213 of Senator Roberts' bill with a provision 
to give the FBI the criminal administrative subpoena authority 
it requested, with two limitations. The first is a requirement 
that the FBI only use this new power in circumstances for which 
it is needed, where there are emergency circumstances which 
prevent the use of existing mechanisms, such as the one you 
just described, and the existing mechanism, of course, would be 
a grand jury subpoena.
    And second, a requirement that a Department of Justice 
Assistant U.S. Attorney sign off on this subpoena, perhaps only 
via telephone, but at least there is some check and balance on 
the use of that subpoena.
    I'd like you to take that back to the FBI. I'd like to get 
an opinion of it. But I'm very concerned. This is the first 
time I have ever heard the request for a Title 50 
administrative subpoena, and if there is such a request 
anywhere in writing by the FBI, I'd like to have it, if I 
might.
    Ms. Caproni. Senator, again the FBI has been very 
consistent that we would like administrative subpoena 
authority. The issue of whether it's in Title 18 or Title 50 I 
don't express any opinion on.
    I am prepared to address the issue of whether there should 
be an emergency requirement or the requirement of an AUSA 
signoff on it.
    Senator Feinstein. If you would, that would be great.
    Ms. Caproni. As you know, those requirements do not exist 
in any other administrative subpoena that we currently have. 
And the reality is that--again to go back to my answer I 
believe to Senator Wyden--it's anomalous to have different 
standards that are applied when the FBI is conducting national 
security investigations, the most important investigations that 
we conduct, that are not present in routine criminal 
investigations.
    In terms of an AUSA signoff, I love AUSAs--some of my best 
friends are AUSAs, I'm a former AUSA. So I'm not denigrating 
AUSAs. They are great people. However, it seems to me that 
asking for an AUSA to sign off takes us back to the world where 
the answer to terrorism was criminal prosecution. That's how 
you need to think. You need to think about criminal 
prosecution. I think it subtly sends the message to the agents 
who are conducting these investigations that a criminal 
prosecution is necessarily part of the answer here.
    Again, AUSAs are great people, but it's sort of like going 
to a surgeon for a tummy ache. They're going to take out your 
appendix. They cut. AUSAs prosecute.
    Senator Feinstein. My time is almost up. Let me just 
indicate, Mr. Chairman, what my concern is.
    This is a very broad power. When used directly, the 
individual would know about it. In this case, they would have 
no recourse to court. If it's used in a secondary way, not 
affecting the individual, such as you go to somewhere to 
collect data that the individual would not know, there really 
is no check on the power.
    So you're really giving this subpoena carte blanche to go 
out on any kind of fishing expedition, with no necessary 
stricture that determines exactly how it can be used. And 
that's why I think some form of signoff, just as judges are 
duty judges and they sign off on certain things, it seems to me 
that the U.S. Attorney should provide that kind of a signoff, 
just as a guarantee. Because this is a new area.
    Chairman Roberts. I thank the Senator for her views. We are 
under a rather strict time limit.
    Senator Hagel.
    Senator Hagel. Mr. Chairman, thank you.
    Ms. Caproni, as you have noted generally this morning, 
administrative subpoenas have been used and are being used. And 
I'd like to ask a question regarding how the administrative 
subpoena function in the PATRIOT Act differs, if it does, from 
what the FBI has used in the past regarding using the 
administrative subpoenas for drug enforcement.
    Ms. Caproni. I'm sorry, you mean the administrative 
subpoena proposal that's in this bill?
    Senator Hagel. Yes, is there a difference? Would there be a 
difference?
    Ms. Caproni. I think it would work essentially the same 
way, depending on how it gets delegated down into the field.
    Senator Hagel. How far down into the field--special agent 
in charge? Do you think that's appropriate, to push it down 
that far?
    Ms. Caproni. Yes, I think it is appropriate to push it down 
that far, and in fact, if it wasn't pushed down to the special 
agents in charge of the field offices, its benefit to the 
Bureau will be limited. The advantage of having it pushed to 
the field office level is that you have, one, a high-level FBI 
agent, the special agent in charge, who has to sign off on it. 
So you have accountability and you have someone who's charged 
with running an office and is a member of the senior executive 
service. They have come a long way within the Bureau and they 
are charged with making sure that we conduct our investigations 
appropriately.
    If it's not delegated down to the special agent in charge 
and everybody has to come back to headquarters, that again will 
slow things down and it will make the tool not nearly as 
effective to the agent in the field as it is in the other sorts 
of investigations--again, narcotics, health care and child 
pornography.
    Senator Hagel. In order to issue these subpoenas, the 
desired information must be relevant to the investigation. Can 
you explain why the relevance standard is particularly 
appropriate in regard to the subpoenas that we're talking about 
today and how that works? What are the limitations and 
difficulties you've had in the past, in drug enforcement, for 
example?
    Ms. Caproni. Well, in drug enforcement that would be the 
same standard. Are the materials that you're seeking relevant 
to the investigation you are conducting? Relevance is a 
standard that agents understand. They are taught from the time 
they come into Quantico that they need evidence that is 
relevant, that it tends to prove something that's important to 
the investigation. So it's a concept that's familiar to them.
    In certain prior provisions that were modified as part of 
the PATRIOT Act there was a higher standard that had to be met 
for certain tools. National Security Letters, for example. It 
used to be that you had to show specific and articulable facts 
that the records were relevant to an agent of a foreign power. 
That essentially meant that you needed to know where you were 
going before you got the basic tools to determine whether or 
not the person was an agent of a foreign power.
    The PATRIOT Act reduced that to a relevance standard across 
all the tools, which we think is appropriate. Again, it's a 
standard that everyone understands. It means that you cannot 
simply go on a wild fishing expedition for matters that have 
nothing to do with the investigation that you're conducting.
    Senator Hagel. If I could go back to a general question on 
administrative subpoenas, you have provided this Committee here 
in the last few minutes with some specific examples of uses.
    Focus on the potential use of this administrative subpoena 
for dealing with terrorists. Give the Committee a couple of 
examples of how you could see this would be particularly 
important in dealing with terrorists.
    Ms. Caproni. The example I started with would be, we know 
the terrorist or we believe the terrorist is about to do 
something bad. We don't know exactly where he is. We want his 
Easy Pass records. That would be a record that is not 
obtainable by an NSL and to get it through a 215 order would 
require coming to Washington, writing up fairly detailed papers 
in order to get it.
    Senator Hagel. So timeliness would be one dynamic of this.
    Ms. Caproni. Timeliness is a huge dynamic. I think the 
other dynamic is that as investigators work there is something 
to be said about being able to stand in front of the person, 
ask for the records. When the person says no, either I can't 
give them to you or I won't give them to you, to be able to 
come back promptly and say here's the instrument that requires 
you to give them to me, if you still don't want to give them to 
me, you have to go to court.
    But that dynamic of being able to keep the investigation 
moving forward and get the documents and the materials that the 
investigator needs to continue the investigation are important. 
Those are important aspects of an administrative subpoena.
    Senator Hagel. Mr. Chairman, thank you.
    Chairman Roberts. Senator Hatch.
    Senator Hatch. Well, thank you, Mr. Chairman. Welcome to 
the Committee. We're happy to have you here again, and we 
appreciate the testimony you give because of your experience 
and background, just to mention a few things.
    Now, as I understand it, as one who worked very strongly on 
the PATRIOT Act, it's been used very efficiently and well by 
the FBI, the Justice Department and other law enforcement 
personnel in protecting us ever since 9/11. Isn't it true that 
before the PATRIOT Act we were not up to speed with regard to 
the laws regarding international terrorism?
    Ms. Caproni. Senator, it's certainly the case that there 
were many of our tools that were used in national security 
investigations that had not been updated to recognize the 
reality of a world where Internet communication was a very 
common way that individuals communicate, that tradecraft 
required agents of foreign powers to move and change telephones 
very quickly. Those sorts of tools were definitely in need of 
update, and the PATRIOT Act did that.
    Senator Hatch. How many layers of FBI hierarchy look at the 
use of administrative subpoenas before agents in the field use 
them?
    Ms. Caproni. If this bill passes, as it's laid out, it 
would certainly go from a line agent to a supervisor, probably 
to an assistant special agent in charge, through the chief 
division counsel, who is a lawyer, to the special agent in 
charge.
    Senator Hatch. So there are lots of checks.
    Ms. Caproni. There are lots of checks.
    Senator Hatch. A lot more checks then you have in general 
anticrime laws where the administrative subpoena is in use, 
right?
    Ms. Caproni. That's correct. It is quite easy for an agent 
to issue an administrative subpoena. Again, this bill requires 
it to go up to the special agent in charge. And I would note 
that that is more review certainly in some offices than a grand 
jury subpoena gets.
    When I was a brand new AUSA, I could issue a grand jury 
subpoena by reaching in my drawer and typing it up, and I was 
still wet behind the ears.
    Senator Hatch. In section 211 and 213 of the proposed bill 
there are significant provisions for congressional oversight, 
including specific reporting for libraries, book sellers and 
others. Are there examples of terrorists using libraries for 
these activities?
    Ms. Caproni. There are certainly examples of where spies 
have used computers that are located within libraries in order 
to engage in communication activities. I think we've probably 
provided another example of where an individual, who I guess 
could be considered a terrorist, posted a bomb threat on an FBI 
web site. That individual did that from a library computer.
    So libraries are certainly used in the course of terrorist 
conduct.
    Senator Hatch. And, of course, that illustration of the 
Uni-
bomber is one that's often used as well.
    Ms. Caproni. That's correct. The Unibomber, the book that 
he received through his local library was certainly a valuable 
piece of evidence tending to point to him as being the 
Unibomber during the period of time when they were trying to 
put together a search warrant.
    Senator Hatch. So looking in libraries is not a relatively 
new thing.
    Ms. Caproni. It's definitely not relatively new, but I 
would also say that the FBI going to libraries to get records 
is an extremely rare thing. It is not something we do every 
day. It is not common. We've tried, in response to questions 
from this committee as well as from other committees, to try to 
figure out how often and what were the circumstances that we 
received materials from libraries. I know Senator Wyden has an 
outstanding question for the record concerning the FBI's 
appearance in libraries to get materials.
    We don't track records that way. We don't track conduct 
that way, although if this bill was passed and we issue 
subpoenas to libraries it will certainly be something that we 
would have to keep track of. But it's not something that we do 
every day--very different from a phone company or an ISP, where 
we regularly receive records from them.
    Senator Hatch. In fact, you've hardly used that power so 
far.
    Ms. Caproni. The 215 power?
    Senator Hatch. Right.
    Ms. Caproni. That's correct. The AG declassified the 
numbers, and it was less than 40.
    Senator Hatch. OK. I want the FBI to get the information 
they need. I also want people to feel secure in conducting 
legal business in the country. Now, how do you assure us that 
administrative subpoena powers will stay in check?
    Ms. Caproni. Again, as this bill has set out, there are 
several things that would keep this power in check. One is that 
we are still bound by the Attorney General guidelines. The 
subpoenas can only be issued if they are relevant to an 
investigation. The party receiving the subpoena, just like the 
recipient of any other administrative subpoena that the 
government has the power to issue, has the power to go to court 
to move to quash it. That is, the ultimate power lies in the 
hand of the recipient. So there's the possibility of judicial 
review.
    This bill asks for extensive reporting of the use of it. So 
this committee and the other intelligence committee, if this 
bill passes, would have the ability to provide oversight.
    Senator Hatch. Thank you. Thank you, Mr. Chairman.
    Chairman Roberts. Senator Levin.
    Senator Levin. Thank you, Mr. Chairman.
    You indicated in response to Senator Rockefeller that there 
was only one case known to you where a National Security Letter 
was challenged in court. Can you tell us approximately how many 
of those NSLs have been issued? Is it in the hundreds a year?
    Ms. Caproni. That number is classified; I'm sorry. It's a 
classified number. It's provided to this Committee as part of 
our regular reporting.
    Senator Levin. I see. But it's not classified that you only 
know of one that's been challenged? That's not classified?
    Ms. Caproni. That case is a public case. It's a public 
case. It's DOE versus Department of Justice or Ashcroft. I 
don't remember.
    Senator Levin. Are you able to tell us in an unclassified 
setting whether the number of NSLs is in the hundreds or 
thousands a year? Can you give us a range in a public setting?
    Ms. Caproni. I can't, but it is a very rare action to have 
an NSL challenged.
    Senator Levin. No. How many are issued is the question.
    Ms. Caproni. I can't give you that number in open session.
    Senator Levin. Not even a range or an estimate? So we don't 
know if it's a hundred, a thousand, ten thousand a year?
    Ms. Caproni. I'm sorry. I'll provide you the exact number 
in a classified setting.
    Senator Levin. No problem.
    On the administrative subpoena issue, currently, as I 
understand your testimony, there are three places where 
administrative subpoenas can be issued. Is that correct? 
There's three areas--drug enforcement----
    Ms. Caproni. I think there are like more than 300 different 
types of administrative subpoenas. The ones that intersect most 
commonly with the FBI are in narcotics, health care fraud and 
child pornography cases. There are many other administrative 
subpoenas.
    Senator Levin. And in those cases, in those three types of 
cases, where there is common intersect, right now nobody below 
the agent in charge, special agent in charge, inside the FBI 
can authorize it, but there are people in the Justice 
Department that can authorize it. Is that accurate, in those 
areas?
    Ms. Caproni. I don't think that's accurate.
    Senator Levin. Can anyone below a special agent in the FBI 
authorize it?
    Ms. Caproni. I believe they can in narcotics cases and also 
in child pornography cases. I'm not positive, but I believe 
they can.
    Senator Levin. In the bill that you support, nobody below 
the special agent in charge in the FBI could authorize it, or 
somebody in the Justice Department; is that correct?
    Ms. Caproni. That's how this bill is written.
    Senator Levin. Is that what you support?
    Ms. Caproni. We support the notion of administrative 
subpoenas.
    Senator Levin. I got that, but do you support authorizing 
people below the special agent in charge in the FBI to 
authorize an administrative subpoena?
    Ms. Caproni. I think that under the current circumstances, 
where this would be a new power in a national security 
investigation, and where there is significant concern that the 
power could be misused, it is not unreasonable at this time to 
have the delegation go to the special agent in charge of the 
office.
    Senator Levin. And nobody below?
    Ms. Caproni. That's correct.
    Senator Levin. Thank you.
    Under FISA, is there the ability to challenge in court an 
order for access to records?
    Ms. Caproni. Under Section 215 of the PATRIOT Act? It 
doesn't clearly state that. I think the AG has made it clear 
that he would support an amendment that clearly provides that a 
recipient of a 215 order could move to set aside or to modify 
the order.
    Senator Levin. And that would be under FISA or the PATRIOT 
Act. You would support that?
    Ms. Caproni. Correct.
    Senator Levin. There's a provision--if I can find it--under 
section 214 of the Act--and this is the application for a trap 
and trace or pen register under FISA--it says there that the 
reason for requesting that authority cannot be solely based on 
First Amendment protected activity. Are we together so far, 
under section 214?
    Ms. Caproni. Is it 214 of the PATRIOT Act? Yes.
    Senator Levin. OK. Let's assume that one of the purposes 
violates the First Amendment rights of somebody. Would that be 
allowed? You've got two purposes. One is legitimate and one 
would violate the First Amendment rights of a citizen. Do you 
think we ought to tolerate that, if one of the purposes of 
seeking an order is to trap and trace phone calls?
    Ms. Caproni. No agent should have, as a purpose, to violate 
someone's First Amendment rights. I don't think that's what 
that provision is driving at. The provision provides that we 
can't investigate a U.S. person--we can't investigate them--
based solely on their First Amendment activities.
    On the other hand----
    Senator Levin. The word ``solely'' is what troubles me, 
because, given your answer of 10 seconds ago, even partly, if 
that's the partial motive, it would be deeply troubling.
    Ms. Caproni. What I'm concerned about is the suggestion 
that the agent would be, part of his goal would be to violate 
the First Amendment rights of a person. That's not what this is 
getting at. I think what this is getting at is, if all you know 
about the person is First Amendment protected activity, you 
cannot investigate them for those reasons. You have to have 
something else. You have to have some other reason to believe 
they are engaged in this conduct.
    Senator Levin. But if one of the reasons for investigating 
that person is to violate his First Amendment rights or would 
impinge on his First Amendment rights illegally, under the 
wording ``solely'' that would seem to be permitted. I don't 
think it should be, and I don't think you think it should be. 
And you don't think that's the purpose of the language.
    Ms. Caproni. That's correct. I think the notion is you 
could have someone who is engaging in oral conduct, who, 
sitting by itself--if that's all you know about the person--
everyone would say that's First Amendment conduct.
    But if you put in other stuff that you know, then it ceases 
to be protected First Amendment conduct but is part of criminal 
conduct. Just because you are speaking doesn't mean that it's 
not criminal. If that's all you know, it could be First 
Amendment conduct that we would not use solely to conduct an 
investigation.
    But if we know other things about them, that may color what 
their oral conduct is, which might otherwise be viewed as First 
Amendment activity. I think that's the reason that the statute 
is written that way--that if all you know about the person is 
their protected activity, you can't open an investigation on 
them.
    Senator Levin. Thank you.
    Chairman Roberts. The Senator's time has expired.
    Chairman Roberts. Senator Bayh.
    Senator Bayh. Ms. Caproni, thank you for your time and for 
your service to our country.
    Several of my colleagues have asked questions along the 
lines that I'd like to pursue, so if some of this is redundant, 
I apologize in advance. I think we're all trying to get our 
hands around just how significant an impediment this has been 
to your ability to conduct national security investigations.
    So my first question is, how many investigations have been 
adversely impacted by not having the advisory subpoena 
authority?
    Ms. Caproni. Senator, I can't give you those numbers. It's 
not a number that we would collect.
    Senator Bayh. How are we supposed to decide this issue if 
we don't have any idea whether this has been material to your 
ability to carry out your responsibilities? Is this all 
hypothetical or are there actual cases? I understand we can't 
discuss the specific cases, but has this hampered you 1 percent 
of the time, 50 percent of the time, or has it never hampered 
you?
    Ms. Caproni. It definitely does hamper us. The inability to 
promptly get information that we need. As I think I indicated 
in response to Senator Roberts, I'm not sure that we can show--
and I know we can't--that because our investigation was delayed 
for a day or 2 days or a month or 2 months----
    Senator Bayh. Well, then I guess the nature of my question 
would be what percentage of the investigations that you've 
conducted have been delayed because you don't have this 
authority?
    Ms. Caproni. I can't give you percentage. I can tell you 
there are circumstances where, because we don't have 
administrative subpoena authorities and have to resort to other 
methods to get materials, that those investigations have been 
delayed.
    Senator Bayh. So we have no way of knowing whether these 
delays are extraordinarily unlikely or whether they happen all 
the time. I'm just trying to get my hands around how material 
this is. Is this something that has just occurred once where 
it's been an inconvenience or a delay, or is this something 
that repeatedly comes up that is really hampering you in your 
ability to conduct these investigations frequently.
    Ms. Caproni. The think about national security 
investigations and terrorism investigations is that even if it 
only happens once, if that once is in the wrong case, then it 
would have a catastrophic effect.
    Senator Bayh. Well, then that's something I'd like to 
pursue in closed session, if in fact that's happened.
    Ms. Caproni. Again, I'm not saying it has happened, but I'm 
saying that these tools are available in other circumstances 
where the possibility of the detrimental effect of delay are 
less than in a terrorism case. Again, can we show you a precise 
example of where, because of delay, a bomb went off? We cannot. 
But could it happen tomorrow? It could.
    This is a tool that is readily available in other contexts. 
It again is an anomaly that it's not available in a national 
security investigation, where I think the American public would 
like the FBI to have the broadest range of tools available, 
recognizing that they need to use them responsibly.
    Senator Bayh. The best I can tell here today, this is 
something that you are prospectively concerned about, that 
there may be cases crop up where this might materially hamper 
you. You can't really say it's happened yet, but it might, and 
therefore we ought to err on the side of doing more rather than 
less.
    Ms. Caproni. There are examples where, because we didn't 
have the administrative subpoena authority, we had to go in 
other ways to get the material and it took longer.
    Senator Bayh. How often is the administrative subpoena 
authority used in the criminal context, these 300-some areas 
where you're allowed to use it now? Is this the kind of thing 
that happens all the time or is it kind of a rare occurrence?
    Ms. Caproni. It depends. I thought I saw the statistic last 
night, like on a year-in/year-out basis maybe 3,000 are issued 
a year. I'm not sure if those numbers are right, but we'll get 
back to you on the numbers of administrative subpoenas that are 
issued.
    Senator Bayh. I'm just trying to get my hands around how 
material this is, how often this crops up and therefore how big 
an issue it is for you.
    Ms. Caproni. Within a national security investigation, 
anytime we need a record and we don't have a willing 
custodian--sometimes we have willing custodians, but if we 
don't have a willing custodian, we need some mechanism to get 
the documents.
    Senator Bayh. I've only got a few seconds left, so in rapid 
fire I'd like to follow up on something my colleagues, Senator 
Wyden, asked you about, where he spoke about the criminal 
context and now we're getting into the security/intelligence 
realm. And you pointed out that very often potential terrorism 
suspects are committing criminal acts, that kind of thing.
    But then there's going to be a subset where in fact they've 
not committed a crime or are suspected of committing a crime. 
Can you give us any idea about those percentages in terms of 
how many are actually suspected of criminal activity and how 
many would be investigated for intelligence reasons that are 
not suspected of criminal activity?
    Ms. Caproni. I think we may be able to get you some at 
least approximate numbers on that, but it would be classified.
    Senator Bayh. Well, let me ask you about the mail covers. 
As I understand it, this is currently in the hands of the 
Postal Service; is that correct?
    Ms. Caproni. That's correct.
    Senator Bayh. And there's a somewhat different threshold 
for approving this than would be embodied in the legislation 
we're considering here; is that correct?
    Ms. Caproni. I think that's right, and I think this 
legislation would make it mandatory, if we request it, as 
opposed to the current regulatory scheme, which puts it in the 
discretion of the Postal Inspector.
    Senator Bayh. And do you have any sense about the checks 
that the Postal Inspector has in place to ensure that the use 
of this kind of authority is not misused versus the kind of 
checks that you would have in place to make sure that it's not 
misused?
    Ms. Caproni. Well, the checks that are in place by the 
Postal Inspector is that they review our requests, and this to 
some extent varies between postal inspector and postal 
inspector.
    Senator Bayh. Do they kind of grant your request routinely, 
or is it the kind of thing they really scrutinize and sort of 
agonize over and say, ``Gee, should we really do this or not?''
    Ms. Caproni. I have to say it varies and it also depends to 
some extent on postal inspector to postal inspector. They are 
not a rubber stamp. They believe that they have the discretion 
to decide, yes or no, whether they're going to proceed with the 
mail cover.
    Senator Bayh. My time is up. I believe the courts have 
already ruled, have they not, that you have the ability to, for 
example, if someone puts their trash out on the curb, the 
courts have ruled you've got no privacy expectation on that; is 
that correct?
    Ms. Caproni. That's correct.
    Senator Bayh. Other things that you put out in the public 
domain are already kind of out there for private investigators 
and others to kind of access.
    Ms. Caproni. You run the risk that someone's going to steal 
your garbage and go through it.
    Senator Bayh. And that may not be the kind of thing I think 
is right, but that's the way it is.
    Ms. Caproni. That's what the courts have held, that once 
you abandon the property to the garbage man, you've abandoned 
your expectation of privacy in it.
    Senator Bayh. So one of the things here is whether mail 
should be treated as other things that are put out and once it 
leaves your zone of privacy.
    Ms. Caproni. Again, there are court cases on this.
    Senator Bayh. Whether you should have access to that kind 
of information, just as anybody else can have access to it, in 
some ways.
    Ms. Caproni. Again, the courts have considered the 
constitutionality of mail covers, and the rationale is that 
mail covers are constitutional. You don't need a search warrant 
for them. And it's for the same general idea, that this 
information, which is only what's on the exterior of the 
envelope----
    Senator Bayh. You're not going inside the mail.
    Ms. Caproni. We're not opening the mail, no. We would need 
court approval to open the mail.
    Senator Bayh. Thank you, ma'am.
    Chairman Roberts. I had one other observation before we 
have the next panel come up, and Senator Snowe was next but she 
has indicated she will pass.
    If administrative subpoenas are constitutional 
investigative tools that provide timely access to crucial 
information necessary to protect national security, with the 
significant checks and balances of the judicial review, 
minimization procedures and congressional oversight, I see no 
reason why investigations of terrorists and spies should not 
have the same tool provided to the investigators that they now 
have in regard to health care fraud, child pornography and 
narcotics trafficking.
    Using the logic in regard to some of the questions that 
have been raised, you could call for more hoops--well, hoops is 
probably a bad word--more safeguards in those cases as well in 
terms of the time involved that it takes to investigate health 
care fraud, a child pornography case or narcotics trafficking 
or 335 other instances where the Federal Government does use 
this tool.
    So, with that, we thank you for your testimony and we now 
ask the second panel to please come forward.
    We would like to welcome the second panel: Mr. David Kris, 
Mr. Joe Onek, Mr. Daniel Collins, Mr. James Dempsey.
    Mr. Kris, would you please proceed?
    [The prepared statement of Mr. Kris follows:]

                  Prepared Statement of David S. Kris

    Chairman Roberts, Vice Chairman Rockefeller, and Members of the 
Committee: Thank you for the opportunity to testify about the Foreign 
Intelligence Surveillance Act (FISA) and related provisions in the 
Committee's draft bill. I join the Department of Justice (DOJ) in 
applauding the bill for addressing several difficult and important 
issues. Having first seen it less than a week ago, however, I have not 
yet mastered all of its policy implications or technical aspects. This 
is a very complicated area of law. Accordingly, while I pledge my 
continuing availability, this morning I can offer only tentative views 
based on a few days' consideration. Subject to that caveat, set forth 
below are a few general comments, and several specific comments, on the 
bill. In appearing before you today, I speak only for myself, and not 
for any former or current employer, including DOJ and Time Warner.
    In general, the Committee's draft bill authorizes and regulates 
several vitally important investigative tools, and I am therefore not 
surprised that DOJ has expressed its support. For example, Sections 101 
and 203 will prevent any resurgence of the FISA ``wall'' separating 
intelligence and law enforcement. As I testified in the House last 
month,\1\ the wall is extremely dangerous; this bill will help keep it 
down. Section 101 of the bill will also help ensure the government's 
continuing authority to conduct ``roving'' FISA surveillance, a tool 
that appears to be very valuable, and that already contains strong 
protections for civil liberties. Section 102 makes permanent the lone-
wolf provision of FISA, which I understand DOJ strongly supports. Two 
other provisions of the bill, Sections 201 and 216, will likely ease 
administrative burdens on the FBI and DOJ by extending the duration of 
FISA authorization orders involving non-U.S. persons (Sections 214 and 
215 may have similarly helpful effects). In an era of increasing FISA 
activity, this helps focus resources on cases involving U.S. persons, 
where civil liberties concerns are preeminent.
    This bill should also enjoy substantial support from civil 
libertarians. For example, Section 213 would authorize administrative 
subpoenas that are similar to existing national security letters, but 
with an express provision for motions to quash. Another part of the 
bill, Section 211, would expand the disclosure rights of persons who 
receive a FISA tangible things order, and permit them to consult with 
counsel. Section 211 would also require special minimization procedures 
governing the retention and dissemination of information obtained from 
a tangible things order. And it would expand the government's reporting 
obligations.
    I do have questions about certain provisions in the bill. In 
Sections 202 and 212, for example, I wonder whether it offers 
legislative solutions to problems that the executive branch ought to be 
able to resolve internally. I believe that Congress should change FISA 
only to address specific shortcomings not amenable to other remedies. 
However, I also think that law and policy should reflect operational 
experience. My own operational experience in this area, once extensive, 
is now 2 years out of date. I may not recognize or understand all of 
the problems facing government today. The Department of Justice, and 
you and your staff, are the real experts in this area, and I hasten to 
defer to your expertise. In any event, I do not think that Sections 202 
and 212 threaten civil liberties.
    Finally, in evaluating this bill, particularly Section 213, I urge 
you to consider not only whether ``the government''--meaning the 
executive branch as a whole--should have certain investigative power, 
but also which parts of government should have power. Although I have 
no doubts about the constitutionality or importance of Section 213, I 
believe strongly that government is more effective, and civil liberties 
are better protected, when FBI agents and DOJ lawyers work as closely 
and cooperatively in national security investigations as they do in 
traditional criminal investigations. Until late 2002, of course, the 
FISA wall effectively prohibited this. As we emerge from the shadow of 
the wall, broad structural changes, such as the creation of a DOJ 
National Security Division, may be necessary to foster the cooperative 
model. But substantive bills like the Committee's draft should also do 
so where they can.
    Thank you again for the opportunity to be here. The balance of this 
submission presents a section-by-section review of the Committee's 
draft bill. Again, in light of the complexity of the legal issues and 
the speed with which I have prepared this testimony, I emphasize the 
tentative nature of my comments.

                       SECTIONS 101, 102 AND 203

    Sections 101 and 102 of the Committee's draft bill are designed to 
eliminate the upcoming sunset for several provisions of the USA Patriot 
Act,\2\ and for the lone-wolf provision of last year's Intelligence 
Reform and Terrorism Prevention Act.\3\ You and your counterparts in 
the House of Representatives have already heard from many witnesses on 
both sides of the sunset debate. By and large, I support renewal of the 
Patriot Act, but I would like to focus today on two important 
provisions: Section 218 of the Patriot Act, the ``significant purpose'' 
amendment to FISA (in connection with which I also discuss Section 203 
of the Committee's bill); and Section 206 of the Patriot Act, the 
``roving surveillance'' amendment to FISA.

1. Patriot Act Section 218: Significant Purpose
    On April 28, 2005, I testified about Section 218 before the 
Subcommittee on Crime, Terrorism, and Homeland Security of the House 
Judiciary Committee.\4\ My position then (as now) was that Congress 
should renew Section 218. I also urged the Subcommittee explicitly to 
endorse the reasoning and decision of the Foreign Intelligence 
Surveillance Court of Review (FISCR or Court of Review) interpreting 
Section 218 and other provisions of FISA.\5\ I testified:

          Whether or not you agree with its outcome, the Court of 
        Review's opinion is a very sophisticated and technically sound 
        interpretation of a complex statute. If Congress were to adopt 
        its reasoning, it would provide guidance that is equally 
        sophisticated and sound. That, above all, is what the country 
        needs in this area.\6\

    I maintain that view today, and I therefore renew my recommendation 
that Congress adopt the Court of Review's reasoning, either through 
explicit legislative history or a specific provision of public law.\7\
    Repealing the sunset for Patriot Act Section 218 intersects with 
another provision of the Committee's bill, Section 203. Section 203 
would amend the definition of ``foreign intelligence information'' to 
make explicit that information is ``foreign intelligence information'' 
even if it is sought for use in law enforcement efforts (such as 
criminal prosecution) to protect against terrorism and other foreign 
intelligence threats.\8\ As a technical matter, I believe that Section 
203 will accomplish what it is evidently meant to accomplish--that is, 
it will make clear Congress's intent to allow FISA searches or 
surveillance for the primary purpose, or even the exclusive purpose, of 
obtaining evidence for the prosecution of a foreign spy or 
terrorist.\9\
    As a policy matter, however, you know from my House testimony that 
I do not support such an amendment for two reasons.\10\ First, Section 
203 of the Committee's bill would further expand governmental power at 
a time when the Department of Justice itself has not asked for broader 
authority. Second, a related point, I fear that any operational benefit 
from the amendment would not justify the resulting cost in uncertainty 
about the state of the law. As I stated at the outset, I believe that 
FISA should not be amended except where the amendment is genuinely 
necessary.\11\
    If you disagree, and decide to enact Section 203 of your bill, you 
should consider how it will interact with Patriot Act Section 218. That 
is because, when read together, the two provisions could produce 
strange results. As explained above, Section 203 would allow the 
government to use FISA exclusively, not just primarily, to gather 
evidence for the prosecution of a foreign spy or terrorist--because 
Section 203 defines ``foreign intelligence information'' to include 
evidence sought for such a prosecution. Under Patriot Act Section 218, 
however, acquisition of ``foreign intelligence information'' need only 
be a ``significant purpose'' of a FISA search or surveillance. Thus, 
with both provisions on the books, the government might have authority 
to use FISA for a significant purpose of prosecuting a spy or 
terrorist, but with the primary purpose of something else--ranging from 
ordinary law enforcement, to civil debt collection, to (maybe) sheer 
voyeurism.\12\ I myself support the status quo through renewal of 
Patriot Act Section 218 and adoption of the Court of Review's decision. 
A reasonable person might disagree and prefer Section 203 of your bill. 
If you both renew Section 218 and enact Section 203, I recommend that 
you include strong legislative history to guard against any misreading.

2. Patriot Act Section 206: Roving Surveillance
    I believe the current debate over roving FISA surveillance has gone 
awry. Some have claimed that under Patriot Act Section 206, ``[t]he 
government can now issue `John Doe' roving wiretaps that fail to 
specify a target or a telephone, and can use wiretaps without checking 
that the conversations they are intercepting actually involve a target 
of the investigation.'' \13\ I disagree. As I try to demonstrate below 
by analyzing the two statutes, FISA's rules on roving surveillance 
compare favorably with those in Title III,\14\ its counterpart in 
conventional criminal law.

                              a. Title III

    The conduct that fundamentally justifies and underlies all Title 
III electronic surveillance is the commission of a specified criminal 
offense.\15\ To obtain a normal (non-roving) surveillance order under 
Title III, the government must identify the offense.\16\ However, it 
need not identify or describe the person suspected of committing the 
offense,\17\ and it need not establish a nexus between any person and 
the location, telephone, or other facility to be monitored. Instead, 
under Title III, the government establishes a nexus between the offense 
and the location, telephone or other facility to be monitored.\18\
    By contrast, when the government obtains a roving surveillance 
order under Title III, these requirements are effectively reversed. For 
obvious reasons, in such cases, the government must identify the person 
committing the specified offense and whose communications are to be 
intercepted.\19\ However, the government need not identify the 
facilities from which or the place where the communications are to be 
intercepted, and it need not establish a nexus between those facilities 
or places and the specified offense.\20\ Unlike ordinary Title III 
surveillance, roving Title III surveillance focuses on the target, not 
the facility being used in connection with a crime.\21\
    To use Title III's roving surveillance provisions, the government 
must also make certain additional showings. To obtain a roving 
surveillance order with respect to what Title III defines as ``oral 
communications,'' \22\ the government must persuade the court that it 
is not ``practical'' to establish a nexus between the underlying 
conduct and the location to be monitored,\23\ and may not begin the 
monitoring until ``the place where the communication is to be 
intercepted is ascertained.'' \24\ With respect to what Title III 
defines as ``wire communications'' \25\ or ``electronic 
communications'' \26\ the government must establish probable cause that 
the actions of the person committing the underlying conduct ``could 
have the effect of thwarting interception from a specified facility,'' 
\27\ and the roving surveillance order must be ``limited to 
interception only for such time as it is reasonable to presume that the 
person * * * is or was reasonably proximate to the instrument through 
which such communication will be or was transmitted.'' \28\

                                b. FISA

    FISA establishes a different regime. In a normal (non-roving) FISA 
case, the government must identify or describe the target of the 
surveillance,\29\ and must also show that the target is engaged in the 
underlying conduct that justifies the surveillance.\30\ Under FISA, of 
course, that underlying conduct is whatever makes the target a foreign 
power or an agent of a foreign power, which may (but need not always 
be) criminal conduct--e.g., for a U.S. person, knowing engagement in 
international terrorism, or for a non-U.S. person, serving as a foreign 
country's diplomat in the United States.\31\ The government must also 
establish a nexus between the target and the facility to be monitored, 
by showing that the target is using, or about to use, the facility.\32\ 
However, the government need not establish a nexus between the target's 
underlying conduct and the facility--e.g., it need not show that the 
facility is being used in connection with international terrorism.\33\
    All of the foregoing requirements apply equally to roving FISA 
surveillance. The only difference between ordinary and roving FISA 
surveillance is that in a roving case, where the FISC ``finds that the 
actions of the target * * * may have the effect of thwarting the 
identification of a specified person'' who can assist the government in 
accomplishing the electronic surveillance, the FISC may order such 
assistance from ``other persons'' as well as the specified persons 
normally included in a secondary order.\34\ Thus, for example, rather 
than issuing a secondary order directing assistance from a particular 
telecommunications company, the FISC can issue a generic order 
directing any telecommunications company to assist the government. The 
government can use this order to follow the target wherever he goes.
    Or can it? As discussed above, in normal surveillance cases, both 
Title III and FISA require some showing of a nexus between the 
telephone or other facility that will be wiretapped, and either the 
target (under FISA) \35\ or the specified criminal offense (under Title 
III \36\ Title III eliminates that nexus requirement in roving cases--
On the theory that in such cases the government cannot make the showing 
because it ``may not know, until shortly before the communication, 
which telephone line will be used by the person under surveillance.'' 
\37\ FISA seems to recognize this same theory, because (as amended in 
2002) it requires the FISC's authorization order to specify the nature 
and location of each facility to be surveilled only ``if known.'' \38\ 
Nonetheless, FISA does not eliminate the nexus requirement: In roving 
cases as well as ordinary cases, it demands probable cause that ``each 
of the facilities or places at which the electronic surveillance is 
directed is being used, or is about to be used, by a foreign power or 
an agent of a foreign power.'' \39\ How can the government make that 
showing in a roving case, where--by definition--it cannot even identify 
the facilities or places at the time the FISC enters its order?
    In my view, the best answer lies in FISA's minimization provisions. 
As you know, those provisions require the Attorney General to propose, 
and the FISC to approve (as proposed or as modified), specific 
procedures ``that are reasonably designed in light of the purpose and 
technique of the particular surveillance, to minimize the acquisition * 
* * of nonpublicly available information concerning unconsenting United 
States persons consistent with the need of the United States to obtain 
* * * foreign intelligence information.'' \40\ If the minimization 
procedures require a nexus before the government commences roving 
surveillance on a new facility--e.g., through observation of the target 
using the facility, or some other method--they ought to satisfy the 
requirement that each facility ``is'' being used or about to be used by 
the target before the surveillance begins.\41\
    In practical effect, instead of finding probable cause with respect 
to particular facilities not yet known, the FISC finds that there 
necessarily will be probable cause under the minimization procedures it 
imposes as part of its authorization order. This is roughly equivalent 
to Title III's provisions eschewing a formal nexus requirement to any 
particular facility but requiring that roving surveillance of wire or 
electronic communications be ``limited to interception only for such 
time as it is reasonable to presume that the [target] * * * is or was 
reasonably proximate to the instrument through which such communication 
will be or was transmitted.'' \42\ It is broader than Title III in that 
it could be satisfied by something other than proximity to a 
communications instrument (e.g., where the target uses one facility to 
communicate through another, remote facility), but it is narrower in 
that mere proximity is not necessarily sufficient (e.g., where the 
target walks past a pay phone but does not use it).

                             c. Conclusion

    In light of the foregoing, if I am reading the statute correctly, 
it is ironic that civil libertarians have raised concerns about ``John 
Doe'' roving FISA orders. Every provision in FISA that applies to 
ordinary surveillance applies to roving surveillance; there are no 
exceptions. One of those FISA provisions requires probable cause that 
the target is using, or is about to use, ``each'' facility subjected to 
surveillance. As a question of roving surveillance compared to ordinary 
surveillance, you literally could not ask for more (other than, 
perhaps, what I describe in the next paragraph).\43\
    There is one amendment to FISA that might address some of the 
concerns raised by civil libertarians without unduly inhibiting the 
government. In essence, FISA roving surveillance resembles a highly 
circumscribed form of emergency surveillance. In a typical emergency 
surveillance case, the government determines unilaterally whether it 
can satisfy all of the provisions of FISA (subject to later 
ratification by the FISC).\44\ In a roving case, the government 
determines unilaterally only whether it can satisfy the nexus 
requirement (the FISC determines in advance all other issues, such as 
whether the target is an agent of a foreign power). As in emergency 
cases, therefore, it may be worth considering whether the government 
should be required to submit to the FISC, within some reasonable time 
after commencing roving surveillance on a new facility, a description 
of the information upon which it relied to do so. Such a provision 
would read something like this:

             Sec. XXX. Report in Roving Surveillance Cases

    Subsection 105(c)(2) of the Foreign Intelligence Surveillance Act 
(50 U.S.C. Sec. 1805(c)(2)) is amended by adding the following new 
subsection (E):

        that, in any case in which the Court finds that the actions of 
        the target of the application may have the effect of thwarting 
        the identification of a specified person as described in 
        subsection (c)(2)(B) of this section, and in which the 
        electronic surveillance is directed against any facility or 
        place the nature and location of which is not specified in the 
        Court's order under subsection (c)(1)(B) of this section, the 
        applicant or another Federal officer promptly report to the 
        Court the information relied upon determine that the target of 
        the surveillance was using, or was about to use, such facility 
        or place.

    This amendment should assuage fears about FISA roving surveillance 
by requiring judicial review, albeit shortly after the fact. Obviously, 
if the FISC found the government's submission unsatisfactory, it could 
terminate surveillance on the new facility (on the theory that the 
government had not complied with the minimization procedures).
    I do not know what the Department of Justice will say in response 
to this amendment, but it seems reasonable to me in concept. If the 
word ``promptly'' is unsatisfactory for any reason--I borrowed it from 
50 U.S.C. Sec. 1824(c)(2)(E), the provision requiring the government to 
file a return following execution of a physical search--a fixed period 
(3 days, 7 days, 10 days), or a ``reasonable period to be determined by 
the Court,'' could be used instead.

                           SECTIONS 201 & 216

    Section 201 of the Committee's bill would amend FISA's definition 
of ``agent of a foreign power'' in 50 U.S.C. Sec. 1801(b)(1)(A). As you 
know, 50 U.S.C. Sec. 1801(b)(1)(A) currently applies to any non-U.S. 
person who ``acts in the United States as * * * a member of '' a group 
engaged in international terrorism or activities in preparation 
therefor.\45\ Another provision, 50 U.S.C. Sec. 1801(b)(2)(E), 
currently applies to any person (including a U.S. person) who 
``knowingly aids or abets any person in the conduct of,'' or 
``knowingly conspires with any person to engage in,'' sabotage or 
international terrorism, or activities that are in preparation 
therefor, for or on behalf of a foreign power.\46\ Section 201 of the 
bill would add to 50 U.S.C. Sec. 1801(b)(1)(A) the aiding-and-abetting 
and conspiracy language from 50 U.S.C. Sec. 1801(b)(2)(E).
    This proposal would not change FISA's definitions in any 
substantive way. It would neither expand nor contract the reach of 
FISA, because anyone who would fall under Section 201 of the bill is 
already covered by 50 U.S.C. Sec. 1801(b)(2)(E). The principal effect 
of Section 201 would be to extend the duration of FISA search or 
surveillance orders applicable to such persons (if they are not U.S. 
persons), from 90 days, to an initial order of 120 days and renewal 
orders of 1 year each.\47\ A subsidiary effect would be to eliminate 
FISA's civil damages remedy for such persons.\48\
    As a policy matter, Section 201 seems reasonable. If longer periods 
of surveillance and search authority are appropriate for non-U.S. 
persons who are ``members'' of groups engaged in international 
terrorism or activities in preparation therefor,\49\ then they seem 
tolerable for non-U.S. persons who knowingly aid and abet or conspire 
to engage in sabotage, international terrorism, or activities in 
preparation therefor. In keeping with my basic view that FISA should be 
amended only when necessary, however, I would defer to the Department 
of Justice on whether Section 201 of the bill would in fact ease a 
burden--by reducing the number of applications that must be filed--or 
otherwise solve a real problem in the administration of the statute.
    Section 216 is a related provision that specifically amends the 
duration provisions of FISA. Under Section 216, FISA electronic 
surveillance and physical searches targeting non-U.S. persons who are 
agents of foreign powers could be conducted for an initial period of 
120 days and for renewal periods of 1 year. This would change current 
law, under which those longer authorization periods apply only to 
officers or employees of foreign powers, and to members of 
international terrorist groups.\50\ If Section 216 is enacted, Section 
201 becomes superfluous (except for its effect on FISA's civil damages 
remedy as discussed above). (Of course, there is nothing wrong with 
including both provisions in the bill at this stage of the legislative 
process.) Section 216 would also extend from 90 days to 1 year the 
initial and renewal authorization periods for FISA pen-trap 
surveillance where the applicant certifies that the ``information 
likely to be obtained is foreign intelligence information not 
concerning a United States person.''

                              SECTION 202

    Section 202 of the bill would amend FISA's definition of 
``contents'' \51\ essentially to conform to the definition of the same 
term in Title III.\52\ I think I understand the motivation for this 
amendment, but I question the need for it.
    Since its enactment in 1978, FISA has allowed the government to 
seek, and the FISC to issue, orders authorizing pen-trap surveillance. 
For the first 20 years of the statute's existence, however, the 
government could do so under FISA only by satisfying the requirements 
for a full-content ``electronic surveillance'' order.\53\ In 1998, 
Congress amended FISA to allow the government to obtain pen-trap orders 
under a different, and less demanding, set of standards.\54\
    FISA's 1998 provisions define the terms ``pen register'' and ``trap 
and trace device'' by reference to the pen-trap provisions applicable 
in criminal investigations.\55\ Under the criminal provisions, a pen 
register is a device or process which records or decodes dialing, 
routing, addressing, or signaling information transmitted by an 
instrument or facility from which a wire or electronic communication is 
transmitted, provided, however, that such information shall not include 
the contents of any communication, but such term does not include any 
device or process used by a provider or customer of a wire or 
electronic communication service for billing, or recording as an 
incident to billing, for communications services provided by such 
provider or any device or process used by a provider or customer of a 
wire communication service for cost accounting or other like purposes 
in the ordinary course of its business.\56\
    Reduced to its essentials, this definition means that a pen 
register is supposed to detect the destination of outbound 
communications from a monitored telephone or other facility, without 
detecting the contents of the communication being sent.\57\ A pen 
register on your telephone can identify whose number you call, but not 
what you say if someone answers.
    A trap and trace device is the reciprocal of a pen register: It is 
supposed to detect the source of inbound communications to a monitored 
facility. Thus, a trap and trace on your telephone can identify whose 
telephone number called you, but not what you say. As a technical 
matter, a trap and trace device defined to be a device or process which 
captures the incoming electronic or other impulses which identify the 
originating number or other dialing, routing, addressing, and signaling 
information reasonably likely to identify the source of a wire or 
electronic communication, provided, however, that such information 
shall not include the contents of any communication.\58\ Since 2001, a 
pen register and a trap and trace device may either be a ``device'' or 
a ``process,'' which includes software as well as hardware methods of 
gathering information.\59\
    Typically, pen register orders are used to obtain the numbers being 
dialed from a targeted telephone number, and trap and trace orders 
obtain the numbers of telephones making calls to a targeted number.\60\ 
Under amendments enacted in the Patriot Act, however, neither FISA nor 
the criminal pen-trap statute is limited to telephone numbers. Those 
statutes may now be used to obtain any ``dialing, routing, addressing, 
or signaling information'' that identifies the destination or source of 
an electronic communication, including email and Internet 
communications.\61\ But a pen-trap order may not be used to obtain the 
``contents of any communication.'' \62\
    Although FISA itself defines the term ``contents,'' that definition 
does not govern FISA pen-trap surveillance.\63\ Indeed, if it did 
apply, the statute would effectively forbid what it authorizes, because 
FISA defines ``contents'' to include ``any information concerning the 
identity of the parties to [a] communication or the existence * * * of 
that communication'' \64\--a standard that clearly includes the routing 
and addressing information acquired by a pen-trap.
    This, I believe, is the concern that underlies Section 202 of the 
Committee's bill: A concern that FISA's broad definition of 
``contents'' somehow calls into question the validity of FISA pen-trap 
surveillance.\65\ I believe the concern is misplaced for two 
reasons.\66\
    First, FISA's pen-trap provisions clearly take their definition of 
``contents'' from Title III \67\ which (as noted above) defines the 
term more narrowly than FISA to mean ``any information concerning the 
substance, purport, or meaning of [a] communication,'' \68\ but does 
not include information concerning the identity of the parties or the 
existence of the communication. Thus, a FISA pen-trap order allows 
acquisition of routing and addressing information that is not 
``contents'' as defined by Title III, even if such information is 
``contents'' as defined by FISA. Put another way, having narrowed Title 
III's definition of ``contents'' in 1986,\69\ and cross-referenced the 
narrower definition in FISA's pen-trap provisions, you need not amend 
FISA's definition of ``contents'' today.
    Second, FISA's pen-trap provisions, and their incorporation of 
Title III's narrow definition of ``contents,'' do not conflict with 
FISA's electronic surveillance provisions and their broad definition of 
``contents.'' On the contrary, FISA authorizes pen-trap surveillance 
``[n]otwithstanding any other provision of law'' and ``in addition to 
the authority'' granted to conduct electronic surveillance.\70\ Thus, 
FISA pen-trap surveillance remains lawful, and there is no need for any 
change to FISA's definition of ``contents.''
    In sum, FISA seems clearly to authorize pen-trap surveillance 
without a full-blown ``electronic surveillance'' order issued under 50 
U.S.C. Sec. 1805. The government has in fact been conducting FISA pen-
trap surveillance for many years. If agents or others in the executive 
branch remain concerned, perhaps it highlights the need for more 
training and outreach efforts. But I am not aware of any statutory 
problem in need of repair.

                              SECTION 211

    Section 211 amends FISA's ``tangible things'' provisions in four 
ways. First, it makes two changes to the language of 50 U.S.C. 
Sec. 1861(a)(1). As amended by Section 211, 50 U.S.C. Sec. 1861(a)(1) 
would provide (with deleted text in strikeout and added text in 
redline):

          The Director of the Federal Bureau of Investigation or a 
        designee of the Director (whose rank shall be no lower than 
        Assistant Special Agent in Charge) may make an application for 
        an order requiring the production of any tangible things 
        (including books, records, papers, documents, and other items) 
        for relevant to an investigation to obtain foreign intelligence 
        information not concerning a United States person or to protect 
        against international terrorism or clandestine intelligence 
        activities, provided that such investigation of a United States 
        person is not conducted solely upon the basis of activities 
        protected by the first amendment to the Constitution.

    I have no objection to the first change--replacing ``for'' with 
``relevant to.'' \71\ And in view of the First Amendment provision that 
remains in 50 U.S.C. Sec. 1861(2)(B),\72\ I have no objection to the 
Committee's deletion of what amounts to a redundant First Amendment 
provision from Section 1861(a)(1).
    Second, Section 211 would change the non-disclosure provision in 
the tangible things statute. Today, that provision states simply that 
``[n]o person shall disclose to any other person (other than those 
persons necessary to produce the tangible things under this section) 
that the Federal Bureau of Investigation has sought or obtained 
tangible things under this section.'' \73\ Section 211 would add 
several exceptions to this general prohibition, including disclosure to 
``an attorney to obtain legal advice with respect to the production of 
things in response to the order,'' and ``other persons as permitted 
by'' the FBI Director or his designee. Recipients of disclosure are 
subject to the same general non-disclosure obligations and must be so 
advised by the person making the disclosure to them.
    These changes seem to be motivated by (and reasonable in light of) 
Doe v. Ashcroft,\74\ which struck down on First Amendment grounds a 
similar non-disclosure provision in one of the national security letter 
statutes.\75\ The court in Doe recognized that ``the Government's 
interest in protecting the integrity and efficacy of international 
terrorism and counterintelligence investigations is a compelling one,'' 
and that non-disclosure rules further that interest.\76\ But the court 
found that the ``categorical, perpetual, and automatic ban on 
disclosure is not a narrowly tailored means to advance those legitimate 
public interests.'' \77\
    I don't know whether Doe was correctly decided--I believe the 
government has appealed--but it seems reasonable in any event to 
consider additional exceptions to the non-disclosure rules in FISA's 
tangible things provisions. Of course, any exception creates some 
risk--disclosure to a lawyer could be dangerous, as illustrated by the 
recent prosecution of Lynne Stewart--but there is no way to keep the 
orders absolutely secret. More importantly, I am very sympathetic to 
persons who receive these strange-looking papers from the FISA Court by 
way of the FBI. I know the FISA statute pretty well, but if I someone 
handed me a tangible things order, I'd want to consult with a lawyer 
before responding.\78\
    An additional disclosure exception, not presently in Section 211 of 
the Committee's bill, may be worth considering. One of the concerns in 
Doe was the unlimited duration of the ban on disclosure. That may seem 
a marginal concern, but under the First Amendment, concerns at the 
margin of a statute's application can have far-reaching 
consequences.\79\ I think the problem is solved, however, if the ban on 
disclosure endures only so long as the underlying application and order 
remain properly classified under the ordinary rules governing 
classification.\80\ There should be no First Amendment problem with 
requiring recipients of properly classified information generally to 
keep it secret.\81\
    Third, Section 211 would direct the Attorney General to adopt 
``minimization procedures governing the [FBI's] retention and 
dissemination'' of tangible things. As a policy matter, this 
requirement is unobjectionable--indeed, I support the use of 
minimization procedures as important safeguards for civil liberties. I 
do, however, have a few, minor technical concerns. First of all, as far 
as I can tell, the ``minimization procedures'' mentioned here would not 
be reviewed and approved by the FISC. Thus, they are not ``minimization 
procedures'' as that term is used elsewhere in FISA.\82\ If that is 
correct, the provision may not be necessary, at least as far as U.S. 
persons are concerned. Under Executive Order 12333, ``[a]gencies within 
the Intelligence Community are authorized to collect, retain or 
disseminate information concerning United States persons only in 
accordance with procedures established by the head of the agency 
involved and approved by the Attorney General.'' \83\ If the provision 
is to remain in the statute, and these ``minimization procedures'' are 
not meant to be reviewed by the FISC, a different term should be used 
to avoid confusion.
    Fourth and finally, Section 211 would expand the government's 
reporting obligations to include the total number of tangible things 
orders granted, and the total number of them directed at libraries and 
certain other specified establishments. This seems reasonable enough, 
and I defer to the Department of Justice, which has recently revealed 
similar statistics in public testimony.\84\

                              SECTION 212

    Section 212 amends FISA to direct the United States Postal Service 
to comply with a request for a mail cover from a designated official of 
the FBI. As far as I can tell, Section 212 codifies many of the 
provisions now set out at 39 CFR Sec. 233.3, and changes certain of 
them.\85\ Normally, I would say that Section 212 presents a legislative 
solution to a sub-legislative problem, and that concerns about the mail 
cover regulations should be taken up by the FBI with the Postal 
Service. However, if--as I understand may be the case--sub-legislative 
remedies have been exhausted,\86\ a statutory fix becomes more 
plausible. From a civil liberties perspective, Section 212 also has the 
advantage of requiring Congressional oversight of the use of national 
security mail covers.
    Under the current postal regulations, the FBI can get a mail cover 
by asking the Postal Service. A mail cover is available to ``[p]rotect 
national security,'' a term that is defined to include most of the 
threats specified in the first half of FISA's definition of ``foreign 
intelligence information.'' \87\ To obtain a mail cover, a ``law 
enforcement agency,'' which is defined to include ``any authority of 
the Federal Government * * * one of whose functions is to * * * protect 
the national security,'' \88\ submits a written request (or when time 
is of the essence, an oral request\89\) to the Chief Postal Inspector 
or his designee with ``reasonable grounds to demonstrate the mail cover 
is necessary to * * * Protect the national security.'' \90\ In national 
security cases, a mail cover can remain in effect for 120 days, and 
longer with the approval of certain Postal Service officials.\91\ A 
national security mail cover must be approved personally by the head of 
the agency requesting it, or by a single designee at the requesting 
agency's headquarters.\92\
    I can understand why the FBI might chafe at certain of these 
requirements--particularly the one concerning high-level approval of 
any national security request, and the fact that compliance with a 
request is not mandatory. In my view, this sort of inter-agency dispute 
is usually best resolved within the Executive Branch.\93\ Were it not 
for the fact that the Attorney General had personally raised this issue 
with the Postmaster General more than 6 months ago, I would be very 
skeptical of Section 212. As it is, I can understand DOJ's desire to 
seek the Committee's aid. I note with interest the Department's views 
letter of May 18, 2005, in which it expresses support for Section 212, 
and I assume (in accord with OMB Circular A-19) that the Administration 
does not object to that expression of support. Perhaps the possibility 
of a legislative amendment will concentrate the Postal Service's mind 
and cause it to reconsider.

                              SECTION 213

    Section 213 of the Committee's bill would allow certain designated 
FBI officials to issue administrative subpoenas in the context of 
national security investigations authorized under Executive Order 12333 
\94\ and not premised solely on First Amendment activities. It allows 
enforcement of such a subpoena by the Attorney General through the 
FISC, and also provides for motions to quash filed in the FISC or in 
the recipient's local United States District Court. Proceedings in 
courts other than the FISC are to be closed and subject to 
nondisclosure rules, and the government may submit materials to such 
courts ex parte and in camera. The Director of the FBI is directed to 
establish regulations for the implementation of the subpoena 
provisions, and the Attorney General is directed to establish 
minimization procedures governing retention and dissemination of 
information obtained by subpoena. There is a provision for 
congressional oversight through the Intelligence Committees.
    The government needs the power to compel production of documents 
and other materials in national security investigations, and 
administrative subpoenas are one important way to grant such power. 
From a civil liberties standpoint, Section 213 is, if anything, an 
improvement over current law. Unlike the current version of FISA's 
tangible things provisions,\95\ Section 213 provides expressly for 
disclosure to an attorney. Moreover, unlike even the version of the 
tangible things provisions proposed by Section 211 of the Committee's 
bill, Section 213 provides for judicial review of a subpoena upon a 
motion to quash filed by the recipient. It allows private litigants 
access to the FISC, which may be viewed by civil libertarians as a good 
thing regardless of what is litigated. There are now several 
administrative subpoena provisions on the books for use in 
investigations pertaining to such things as health care fraud, child 
sexual abuse, and threats against protected persons,\96\ as well as 
drug cases.\97\ Thousands of administrative subpoenas have been issued 
in these kinds of cases.\98\ Administrative subpoenas in national 
security cases, with the same or similar protections--including 
authorization for motions to quash--seem unob-
jectionable by comparison.
    I have two other observations about Section 213. First, I am 
concerned about the invitation to private litigants to file motions in 
the FISC. This is not so much a philosophical concern as a pragmatic 
one. If thousands of subpoenas are issued, several motions to quash may 
be filed.\99\ As far as I know, the FISC is simply not equipped to 
handle that kind of litigation. Indeed, the FISC is not really equipped 
to handle any litigation involving private parties--it has no publicly 
accessible space, and a relatively small staff. To be sure, these 
logistical obstacles could be overcome, but only by changing the FISC's 
nature and focus. With the dramatic increases in FISA activity over the 
past few years, I think the FISC should remain centered on its core 
function of reviewing applications. If the recent statistics revealing 
substantial numbers of denials and modifications of FISA applications 
are any guide, the FISC has been doing a careful job. I would not 
lightly open the FISC to adversary proceedings, particularly over 
something like an administrative subpoena. But I have no similar 
objection to motions to quash filed in ordinary district courts, as 
long as the government is prepared to assume the risk of a leak. And 
ultimately, I largely defer to the Department of Justice with respect 
to what is workable here, at least in the first instance.
    My second concern arises because Section 213 grants administrative 
subpoena power to the Director of the FBI, and orders the Director to 
establish regulations for the use of such subpoenas. I think the 
authority should be granted to the Attorney General, who may delegate 
(and in some other cases has delegated\100\) the authority to the 
Director. This may seem a trivial point--and in many respects it is--
but I believe it relates to a broader and vitally important concern. I 
think it may be helpful to the Committee if I lay out that broader 
concern, using Section 213 as an illustration.
    As the Committee is aware, the executive branch is now considering 
whether and how to restructure the government to deal with domestic 
counterintelligence matters. Spurred by the 9-11 Commission Report, and 
the more recent WMD Commission Report, some have suggested splitting 
the FBI to create an American version of MI-5--that is, a domestic 
counterintelligence agency separate from Federal law enforcement. The 
FBI obviously opposes that idea. I also oppose creating an American MI-
5, primarily because I think such a major change would take years to 
bear fruit, and would create chaos in the interim. Unfortunately, our 
adversaries will not let us call a time-out while we restructure.
    In my view, the more promising approach is to mandate significantly 
increased coordination between the FBI and DOJ prosecutors and other 
lawyers. Such coordination should, in my view, be required in 
individual cases and investigations, in national-level programs, and 
also in policymaking (both intra- and inter-agency). As I explained 
last month in my testimony before the House,\101\ bringing agents and 
lawyers together would make the Department and the FBI more efficient 
and effective, and would also enhance protection of civil liberties. It 
would do this by taking advantage of the DOJ/FBI culture and training 
that have been in effect for many years in all investigative areas 
except national security. Agents and lawyers working together produce 
better results than either group working alone.
    In keeping with this view, I support legislative measures that tend 
to unite agents and lawyers in national security investigations. 
Section 213 will not do that because, like the current national 
security letter statutes, it allows the FBI to take investigative 
action unilaterally. It thus stands in contrast to grand jury 
subpoenas, which cannot be issued without the involvement of 
prosecutors. I believe Section 213 should encourage cooperation between 
agents and lawyers by requiring lawyers' involvement, or at least by 
giving the Attorney General the option to do so. The Attorney General 
controls both DOJ proper and the FBI, and he may therefore decide to 
delegate administrative subpoena power directly to the FBI. On the 
other hand, particularly if DOJ creates a National Security Division, 
he might delegate the power to the head of that division, and/or to 
specially designated Assistant U.S. Attorneys in the field. I recommend 
that Section 213 be changed to grant administrative subpoena authority 
to the Attorney General.

                              SECTION 214

    Section 214 would eliminate the current requirement that the 
Department of Justice report to Congress on the number of cases in 
which FISA information has been authorized for use in criminal 
cases.\102\ The obligation to report authorizations for use of FISA 
information at trial would remain.\103\ If, as I hope, this provision 
reflects a vastly expanded administrative burden arising from vastly 
expanded sharing of intelligence information with law enforcement 
officials, then I take it as a very promising sign that dots are being 
connected.

                              SECTION 215

    Section 215 would allow the government to obtain subscriber 
information, of the sort normally acquired by a FISA tangible things 
order, as part of FISA pen-trap surveillance. Thus, for example, 
instead of obtaining only the telephone numbers called by a monitored 
telephone, the government could get the telephone numbers and the 
names, addresses, length of service, and other information about the 
subscribers to those telephone numbers. This appears to be patterned 
after 18 U.S.C. Sec. 2703(c)(2). This seems like a reasonable effort to 
spare the government the need to file two applications instead of one, 
but again I would defer in the first instance to the Department of 
Justice on the question whether Section 215 would in fact remove a real 
burden. If Section 215 is desirable, I would also consider whether DOJ 
wants similar authority for FISA ``electronic surveillance'' orders 
issued under 50 U.S.C. Sec. 1805.

                                Endnotes

    1. Written Testimony of David S. Kris before the House Committee on 
the Judiciary, Subcommittee on Crime, Terrorism, and Homeland Security 
(April 28, 2005) (hereinafter Kris House Testimony). I have, of course, 
made that testimony available to your staff. As of this writing, it is 
also available at http://judiciary.house.gov/media/pdfs/kris042805.pdf.
    2. Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism Act of 2001 (USA Patriot 
Act or Patriot Act), Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). 
Section 224 of the Patriot Act provides:
          (a) IN GENERAL.--Except as provided in subsection (b), this 
        title and the amendments made by this title (other than 
        sections 203(a), 203(c), 205, 208, 210, 211, 213, 216, 219, 
        221, and 222, and the amendments made by those sections) shall 
        cease to have effect on December 31, 2005.
          (b) EXCEPTION.--With respect to any particular foreign 
        intelligence investigation that began before the date on which 
        the provisions referred to in subsection (a) cease to have 
        effect, or with respect to any particular offense or potential 
        offense that began or occurred before the date on which such 
        provisions cease to have effect, such provisions shall continue 
        in effect.
115 Stat. 295.
    3. Intelligence Reform and Terrorism Prevention Act of 2004 
(IRTPA), Pub. L. No. 108-458, 118 Stat. 3638 (Dec. 17, 2004). Section 
6001 of the IRTPA provides:
          (a) IN GENERAL.--Section 101(b)(1) of the Foreign 
        Intelligence Surveillance Act of 1978 (50 U.S.C. 
        Sec. 1801(b)(1)) is amended by adding at the end the following 
        new subparagraph:
             ``(C) engages in international terrorism or activities in 
        preparation therefore; or''.
          (b) SUNSET.--The amendment made by subsection (a) shall be 
        subject to the sunset provision in section 224 of Public Law 
        107-56 (115 Stat. 295), including the exception provided in 
        subsection (b) of such section 224.
118 Stat. 3742.
    4. See Kris House Testimony.
    5. In re Sealed Case, 310 F.3d 717 (FISCR 2002).
    6. Kris House Testimony at 13.
    7. Your legislative staff and the Department of Justice's Offices 
of Legislative Affairs and Legal Counsel would be better equipped than 
I am to determine the best way for Congress to express its endorsement 
of the Court of Review's decision. With some Justices and judges 
increasingly wary of legislative history, however, an enacted provision 
of public law may be more authoritative than even the clearest 
committee report or floor statement. See, e.g., Shannon v. United 
States, 512 U.S. 573, 583 (1994) (citing cases and noting that 
``Members of this Court have expressed differing views regarding the 
role that legislative history should play in statutory 
interpretation'').
    8. Under 50 U.S.C. Sec. 1801(e), as amended by Section 203 of the 
Committee's bill, the term ``foreign intelligence information'' would 
be defined as follows (with Section 203's proposed language in 
redline):
          (1) information that relates to, and if concerning a United 
        States person is necessary to, the ability of the United States 
        to protect (including protection by use of law enforcement 
        methods such, as criminal prosecution) against--
             (A) actual or potential attack or other grave hostile acts 
        of a foreign power or an agent of a foreign power;
             (B) sabotage or international terrorism by a foreign power 
        or an agent of a foreign power; or
             (C) clandestine intelligence activities by an intelligence 
        service or network of a foreign power or by an agent of a 
        foreign power; or
          (2) information with respect to a foreign power or foreign 
        territory that relates to, and if concerning a United States 
        person is necessary to--
             (A) the national defense or the security of the United 
        States; or
             (B) the conduct of the foreign affairs of the United 
        States.
    9. In my House testimony last month, I stated:

          If you decide that you want to expand DOD's authority along 
        these lines, and remove any statutory doubt, you should amend 
        the definition of ``foreign intelligence information'' by 
        adding the phrase ``including protection against the foregoing 
        using law enforcement methods, such as criminal prosecution,'' 
        immediately after 50 U.S.C. Sec. 1801(e)(1)(C).

    Kris House Testimony at note 91 (emphasis in original). Section 203 
of the bill uses almost 18 identical language in a slightly different 
place in the definition. Professor Richard Seamon, a thoughtful 
academic commentator in this area, has recommended a similar approach. 
See Richard Seamon and William Gardner, The Patriot Act and the Wall 
Between Intelligence and Law Enforcement, 28 Harv. Journal on Law and 
Pub. Policy 319, 458-459 (Spring 2005) (recommending an amendment to 50 
U.S.C. Sec. 1801(e)(1) to provide that foreign intelligence information 
means ``information that relates to, and if concerning a United States 
person is necessary to, the ability of the United States, by law-
enforcement or other lawful means, to protect against'' specified 
threats).
    For a detailed explanation of why and how this sort of amendment 
would function, see Kris House Testimony at 1-4, 9-12.
    10. See Kris House Testimony at 12-14 & n.90.
    11. I know at least one very intelligent person who disagrees. See 
Letter from Professor Richard Seamon to Chairman Howard Coble, House 
Judiciary Committee, Subcommittee on Crime, Terrorism, and Homeland 
Security (May 4, 2005).
    12. A full explanation for why this is the case appears on pages 9-
12 of my House testimony last month. Here is an abbreviated 
explanation: The Court of Review interpreted Section 218 as codifying 
the ``false dichotomy'' between law enforcement methods and all other 
methods of protecting national security. It explained: ``The government 
heroically tries to give [Section 218] a wholly benign interpretation. 
It concedes that `the significant purpose amendment recognizes the 
existence of the dichotomy between foreign intelligence and law 
enforcement,' but it contends that `it cannot be said to recognize (or 
approve) its legitimacy.' Supp. Br. of U.S. at 25 (emphasis in 
original). We are not persuaded.'' In re Sealed Case, 310 F.3d at 734-
735. On that basis, the Court of Review read Section 218 to permit FISA 
searches and surveillance primarily for law enforcement methods of 
protecting national security (id. at 734):

        as a matter of straightforward logic, if a FISA application can 
        be granted even if `foreign intelligence' is only a 
        significant--not a primary--purpose, another purpose can be 
        primary. One other legitimate purpose that could exist is to 
        prosecute a target for a foreign intelligence crime.

    Section 203 of the Committee's bill would eliminate the false 
dichotomy, and so also the premise of the Court of Review's 
interpretation of Section 218. To paraphrase from the block quote 
above, if the ``foreign intelligence'' purpose now includes the purpose 
to prosecute a target for a foreign intelligence crime (because of 
Section 203), then the ``other purpose'' that can be primary under 
Patriot Act Section 218 would have to be something different than 
prosecuting a target for a foreign intelligence crime--and indeed, 
different than anything that protects national security. Allowing FISA 
to be used primarily for something other than a ``foreign 
intelligence'' purpose (once ``foreign intelligence'' has been defined 
to include prosecution) seems unnecessary and unwise.
    13. Testimony of Gregory T. Nojeim, Associate Director and Chief 
Legislative Counsel Washington Legislative Office, American Civil 
Liberties Union, before the Subcommittee on Crime, Terrorism and 
Homeland Security of the House Judiciary Committee (April 28, 2005) 
(available at http://judiciary.house.gov/media/pdfs/nojeim042805.pdf)
    14. 18 U.S.C. Sec. Sec. 2510-2522.
    15. A Title III application must contain ``details as to the 
particular offense that has been, is being, or is about to be 
committed.'' 18 U.S.C. Sec. 2518(1)(b)(i). To grant the application, 
the court must find ``probable cause for belief that an individual is 
committing, has committed, or is about to commit a particular offense 
enumerated in section 2516 of this chapter.'' 18 U.S.C. 
Sec. 2518(3)(a). These provisions apply to all Title III cases, roving 
and non-roving.
    16. See note 15, supra.
    17. A Title III application must include ``the identity of the 
person, if known, committing the [specified] offense and whose 
communications are to be intercepted.'' 18 U.S.C. Sec. 2518(1)(b)(iv) 
(emphasis added). To grant the application, the court must find 
probable cause that ``an individual is committing, has committed, or is 
about to commit a particular [specified] offense.'' 18 U.S.C. 
Sec. 2518(3)(a) (emphasis added). In keeping with these provisions, the 
Supreme Court has held that ``when there is probable cause to believe 
that a particular telephone is being used to commit an offense but no 
particular person is identifiable, a [non-roving] wire interception 
order may, nevertheless, properly issue under the statute.'' United 
States v. Kahn, 415 U.S. 143, 157 (1974).
    18. A Title III application in a non-roving case must include ``a 
particular description of the nature and location of the facilities 
from which or the place where the communication is to be intercepted.'' 
18 U.S.C. Sec. 2518(1)(b)(ii). To grant the application, the court must 
find probable cause either (1) that ``the facilities from which, or the 
place where, the wire, oral, or electronic communications are to be 
intercepted are being used, or are about to be used, in connection with 
the commission of [the specified] offense,'' or (2) that those 
facilities or places are ``leased to, listed in the name of, or 
commonly used by [the] person'' committing the specified offense. 18 
U.S.C. Sec. 2518(3)(d). However, the Department of Justice has publicly 
revealed that ``[for prudential reasons,'' it is ``often cautious about 
using the 'listed, leased, or commonly used' provision of Title III 
absent evidence that the facility is in fact being used in connection 
with the predicate offense.'' Supplemental Brief for the United States 
in In re Sealed Case, 310 F.3d 717 (FISCR 2002), at 18 n.6.
    19. To obtain Title III roving surveillance authority for oral 
communications, the government must ``identif[y] the person committing 
the offense and whose communications are to be intercepted.'' 18 U.S.C. 
Sec. 2518(11)(a)(ii). To obtain Title III roving surveillance authority 
for wire and electronic communications, the government must 
``identif[y] the person believed to be committing the offense and whose 
communications are to be intercepted.'' 18 U.S.C. Sec. 2518(11)(b)(ii).
    20. Under 18 U.S.C. Sec. 2518(11), the requirements of 18 U.S.C. 
Sec. Sec. 2518(1)(b)(ii) and (3)(d), discussed in note 18, supra, ``do 
not apply'' if the government meets the other requirements for Title 
III roving surveillance of oral, wire, or electronic communications.
    21. Here is the description of roving Title III surveillance 
authority from the United States Attorneys' Manual (Sec. 9-7.111):

          Pursuant to 18 U.S.C. Sec. 2518(11)(a) and (b), the 
        government may obtain authorization to intercept wire, oral, 
        and electronic communications of specifically named subjects 
        without specifying with particularity the premises within, or 
        the facilities over which, the communications will be 
        intercepted. (Such authorization is commonly referred to as 
        ``roving'' authorization.) As to the interception of oral 
        communications, the government may seek authorization without 
        specifying the location(s) of the interception when it can be 
        shown that it is not practical to do so. See United States v. 
        Bianco, 998 F.2d 1112 (2d Cir. 1993), cert. denied, 114 S. Ct. 
        1644 (1994); United States v. Orena, 883 F. Supp. 849 (E.D.N.Y. 
        1995). An application for the interception of wire and 
        electronic communications of specifically named subjects may be 
        made without specifying the facility or facilities over which 
        the communications will be intercepted when it can be shown 
        that the subject or subjects of the interception have 
        demonstrated a purpose to thwart interception by changing 
        facilities. See United States v. Gaytan, 74 F.3d 545 (5th Cir. 
        1996); United States v. Petti, 973 F.2d 1441 (9th Cir. 1992), 
        cert. denied, 113 S. Ct. 1859 (1993); United States v. 
        Villegas, 1993 WL 535013 (S.D.N.Y. December 22, 1993).

    22. Under Title III, the term ``oral communication'' means ``any 
oral communication uttered by a person exhibiting an expectation that 
such communication is not subject to interception under circumstances 
justifying such expectation, but such term does not include any 
electronic communication.'' 18 U.S.C. Sec. 2510(4). Oral communications 
would be intercepted by, e. g. , a concealed microphone.
    23. 18 U.S.C. Sec. 2518(11)(a). Section 2518(11)(a) provides:
    The requirements of subsections (1)(b)(ii) and (3)(d) of this 
section relating to the specification of the facilities from which, or 
the place where, the communication is to be intercepted do not apply 
if--
    (a) in the case of an application with respect to the interception 
of an oral communication--
    (i) the application is by a Federal investigative or law 
enforcement officer and is approved by the Attorney General, the Deputy 
Attorney General, the Associate Attorney General, an Assistant Attorney 
General, or an acting Assistant Attorney General;
    (ii) the application contains a full and complete statement as to 
why such specification is not practical and identifies the person 
committing the offense and whose communications are to be intercepted; 
and
    (iii) the judge finds that such specification is not practical.
    24. 18 U.S.C. Sec. 2518(12). The legislative history of this 
provision explains with respect to this ``ascertainment'' language:

          Proposed subsection 2518(12) of title 18 provides * * * that 
        where the Federal Government has been successful in obtaining a 
        relaxed specificity order, it cannot begin the interception 
        until the facilities or place from which the communication is 
        to be intercepted is ascertained by the person implementing the 
        interception order. In other words, the actual interception 
        could not begin until the suspect begins or evidences an 
        intention to begin a conversation. * * * This provision puts 
        the burden on the investigation agency to ascertain when the 
        interception is to take place.

S. Rep. No. 99-541, 99th Cong., 2d Sess. 32 (Oct. 17, 1986) 
(hereinafter ECPA Senate Report).
    25. Under Title III, the term ``wire communication'' means ``any 
aural transfer made in whole or in part through the use of facilities 
for the transmission of communications by the aid of wire, cable, or 
other like connection between the point of origin and the point of 
reception (including the use of such connection in a switching station) 
furnished or operated by any person engaged in providing or operating 
such facilities for the transmission of interstate or foreign 
communications or communications affecting interstate or foreign 
commerce.'' 18 U.S.C. Sec. 2510(1). Under Title III, a telephone call 
is a wire communication.
    26. Under Title III, the term ``electronic communication'' means 
``any transfer of signs, signals, writing, images, sounds, data, or 
intelligence of any nature transmitted in whole or in part by a wire, 
radio, electromagnetic, photoelectronic or photooptical system that 
affects interstate or foreign commerce, but does not include--(A) any 
wire or oral communication; (B) any communication made through a tone-
only paging device; (C) any communication from a tracking device (as 
defined in section 3117 of this title); or (D) electronic funds 
transfer information stored by a financial institution in a 
communications system used for the electronic storage and transfer of 
funds.'' 18 U.S.C. Sec. 2510(12). Under Title III, an electronic mail 
message is an electronic communication.
    22 27. 18 U.S.C. Sec. 2518(11)(b)(ii)-(iii). Section 2518(11) 
provides:
    The requirements of subsections (1)(b)(ii) and (3)(d) of this 
section relating to the specification of the facilities from which, or 
the place where, the communication is to be intercepted do not apply 
if--

    * * * *
    (b) in the case of an application with respect to a wire or 
electronic communication--
    (i) the application is by a Federal investigative or law 
enforcement officer and is approved by the Attorney General; the Deputy 
Attorney General, the Associate Attorney General, an Assistant Attorney 
General, or an acting Assistant Attorney General;
    (ii) the application identifies the person believed to be 
committing the offense and whose communications are to be intercepted 
and the applicant makes a showing that there is probable cause to 
believe that the person's actions could have the effect of thwarting 
interception from a specified facility;
    (iii) the judge finds that such showing has been adequately made; 
and
    (iv) the order authorizing or approving the interception is limited 
to interception only for such time as it is reasonable to presume that 
the person identified in the application is or was reasonably proximate 
to the instrument through which such communication will be or was 
transmitted.
    28. 18 U.S.C. Sec. 2518(11)(b)(iv). Under 18 U.S.C. Sec. 2518(12), 
``[a] provider of wire or electronic communications service that has 
received [a roving surveillance order] may move the court to modify or 
quash the order on the ground that its assistance with respect to the 
interception cannot be performed in a timely or reasonable fashion.''
    29. A FISA application for electronic surveillance must include 
``the identity, if known, or a description of the target of the 
electronic surveillance.'' 50 U.S.C. Sec. 1804(a)(3).
    30. A FISA application for electronic surveillance must include ``a 
statement of the facts and circumstances relied upon by the applicant 
to justify his belief that--(A) the target of the electronic 
surveillance is a foreign power or an agent of a foreign power.'' 50 
U.S.C. Sec. 1804(a)(4)(A). To grant the FISA application, the Foreign 
Intelligence Surveillance Court (FISC) must find, ``on the basis of the 
facts submitted by the applicant,'' that ``there is probable cause to 
believe that--(A) the target of the surveillance is a foreign power or 
an agent of a foreign power.'' 50 U.S.C. Sec. 1804(a)(4)(A).
    31. See 50 U.S.C. Sec. 1801(a)-(b) (defining ``foreign power'' and 
``agent of a foreign power'').
    32. A FISA application for electronic surveillance must include ``a 
statement of the facts and circumstances relied upon by the applicant 
to justify his belief that * * * (B) each of the facilities or places 
at which the electronic surveillance is directed is being used, or is 
about to be used, by a foreign power or an agent of a foreign power.'' 
50 U.S.C. Sec. 1804(a)(4)(B). To grant the FISA application, the FISC 
must find, ``on the basis of the facts submitted by the applicant,'' 
that ``there is probable cause to believe that * * * (B) each of the 
facilities or places at which the electronic surveillance is directed 
is being used, or is about to be used, by a foreign power or an agent 
of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(B). See note 32, supra.
    33. The certification that is part of every FISA application must 
designate the type of foreign intelligence information being sought by 
the electronic surveillance, and explain the basis for the designation. 
50 U.S.C. Sec. 1804(a)(7)(D) and (E)(i).
    34. 50 U.S.C. Sec. 1805(c)(2)(B).
    35. See note 32, supra.
    36. As discussed in notes 18 and 32, supra, the government normally 
satisfies Title III by establishing probable cause that ``the 
facilities from which, or the place where, the wire, oral, or 
electronic communications are to be intercepted are being used, or are 
about to be used, in connection with the commission of [the underlying] 
offense,'' 18 U.S.C. Sec. 2518(3)(d), and FISA requires probable cause 
that ``each of the facilities or places at which the electronic 
surveillance is directed is being used, or is about to be used, by a 
foreign power or an agent of a foreign power.'' 50 U.S.C. 
Sec. 1805(a)(3)(B).
    37. ECPA Senate Report at 31.
    38. 50 U.S.C. Sec. 1805(c)(1)(B).
    39. 50 U.S.C. Sec. 1805(a)(3)(B)
    40. 50 U.S.C. Sec. 1801(h)(1).
    41. The nexus requirement applies only to each facility at which 
surveillance ``is'' directed, but the use of the present tense plainly 
would not support an argument that roving surveillance--which occurs in 
the future--is exempt from the requirement. On the contrary, even in an 
ordinary (non-roving) FISA case, the surveillance commences in the 
future--i.e., after the FISC has issued its order.
    42. 18 U.S.C. Sec. 2518(11)(b)(iv).
    43. Roving FISA surveillance is in fact being done. The Department 
of Justice revealed that there had been 49 roving FISA surveillance 
orders issued as of March 30, 2005. Testimony of James A. Baker, 
Counsel for Intelligence Policy, before the Subcommittee on Crime, 
Terrorism, and Homeland Security, Committee on the Judiciary, U.S. 
House of Representatives, April 28, 2005 (available at http://
judiciary.house.gov/media/pdfs/baker042805.pdf) (hereinafter Baker 
House Testimony).
    The Department supports roving FISA surveillance with arguments 
similar to, but not identical to, the ones I advance here. As James 
Baker, the Counsel for Intelligence Policy, testified on April 28, 
2005:

          Let me respond to this criticism [concerning ``John Doe'' 
        warrants] in the following way. First, even when the government 
        is unsure of the name of a target of such a wiretap, FISA 
        requires the government to provide ``the identity, if known, or 
        a description of the target of the electronic surveillance'' to 
        the FISA Court prior to obtaining the surveillance order. 50 
        U.S.C. Sec. Sec. 1804(a)(3) and 1805(c)(1)(A). As a result, 
        each roving wiretap order is tied to a particular target whom 
        the FISA Court must find probable cause to believe is a foreign 
        power or an agent of a foreign power. In addition, the FISA 
        Court must find ``that the actions of the target of the 
        application may have the effect of thwarting'' the 
        surveillance, thereby requiring an analysis of the activities 
        of a foreign power or an agent of a foreign power that can be 
        identified or described. 50 U.S.C. Sec. 1805(c)(2)(B). Finally, 
        it is important to remember that FISA has always required that 
        the government conduct every surveillance pursuant to 
        appropriate minimization procedures that limit the government's 
        acquisition, retention, and dissemination of irrelevant 
        communications of innocent Americans. Both the Attorney General 
        and the FISA Court must approve those minimization procedures. 
        Taken together, we believe that these provisions adequately 
        protect against unwarranted governmental intrusions into the 
        privacy of Americans.

Baker House Testimony at 2 (emphasis in original).
    44. See 50 U.S.C. Sec. 1805(f).
    45. Under 50 U.S.C. Sec. 1801(b)(1)(A), an ``agent of a foreign 
power'' is defined to include:
    (1) any person other than a United States person, who--
    (A) acts in the United States as an officer or employee of a 
foreign power, or as a member of a foreign power as defined in 
subsection (a)(4) of this section.
    Under 50 U.S.C. Sec. 1801(a)(4), a ``foreign power'' is defined to 
include ``a group engaged in international terrorism or activities in 
preparation therefor.''
    Under 50 U.S.C. Sec. 1801(c), ``international terrorism'' is 
defined to mean activities that:
    (1) involve violent acts or acts dangerous to human life that are a 
violation of the criminal laws of the United States or of any State, or 
that would be a criminal violation if committed within the jurisdiction 
of the United States or any State;
    (2) appear to be intended--
    (A) to intimidate or coerce a civilian population;
    (B) to influence the policy of a government by intimidation or 
coercion; or
    (C) to affect the conduct of a government by assassination or 
kidnapping; and
    (3) occur totally outside the United States, or transcend national 
boundaries in terms of the means by which they are accomplished, the 
persons they appear intended to coerce or intimidate, or the locale in 
which their perpetrators operate or seek asylum.
    46. Under 50 U.S.C. Sec. 1801(b)(2), an ``agent of a foreign 
power'' is defined to include: any person who--
    (A) knowingly engages in clandestine intelligence gathering 
activities for or on behalf of a foreign power, which activities 
involve or may involve a violation of the criminal statutes of the 
United States;
    (B) pursuant to the direction of an intelligence service or network 
of a foreign power, knowingly engages in any other clandestine 
intelligence activities for or on behalf of such foreign power, which 
activities involve or are about to involve a violation of the criminal 
statutes of the United States;
    (C) knowingly engages in sabotage or international terrorism, or 
activities that are in preparation therefor, for or on behalf of a 
foreign power;
    (D) knowingly enters the United States under a false or fraudulent 
identity for or on behalf of a foreign power or, while in the United 
States, knowingly assumes a false or fraudulent identity for or on 
behalf of a foreign power; or
    (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).
    47. See 50 U.S.C. Sec. Sec. 1805(e)(1)(B), (e)(2)(B) (electronic 
surveillance), 1824(d)(1)(B), (d)(2)(B) (physical searches).
    48. See 50 U.S.C. Sec. Sec. 1810 (``An aggrieved person, other than 
a foreign power or an agent of a foreign power, as defined in section 
1801(a) or (b)(1)(A) of this title, respectively, who has been 
subjected to an electronic surveillance or about whom information 
obtained by electronic surveillance of such person has been disclosed 
or used in violation of section 1809 of this title shall have a cause 
of action against any person who committed such violation and shall be 
entitled to recover'' money damages); 1828 (``An aggrieved person, 
other than a foreign power or an agent of a foreign power, as defined 
in section 1801(a) or (b)(1)(A), respectively, of this title, whose 
premises, property, information, or material has been subjected to a 
physical search within the United States or about whom information 
obtained by such a physical search has been disclosed or used in 
violation of section 1827 of this title shall have a cause of action 
against any person who committed such violation and shall be entitled 
to recover'' money damages).
    49. See 50 U.S.C. Sec. Sec. 1801(b)(1)(A), 1805(e)(1)(B). FISA's 
legislative history explains that the ``term `member' means an active, 
knowing member of the group or organization which is a foreign power. 
It does not include mere sympathizers, fellow-travelers, or persons who 
may have merely attended meetings of the group or organization.'' H.R. 
Rep. No. 1283, Part I, 95th Cong., 2d Sess. 34 (1978) (hereinafter 
House Report) This is, of course, a fact-intensive inquiry.
    50. 50 U.S.C. Sec. Sec. 1805(e)(1)(B), (2)(B), 1824(d)(1)(B), 
(d)(2)(B); see 50 U.S.C. Sec. Sec. 1801(b)(1)(A).
    51. 50 U.S.C. Sec. Sec. 1801(n) (``Contents', when used with 
respect to a communication, includes any information concerning the 
identity of the parties to such communication or the existence, 
substance, purport, or meaning of that communication'').
    52. 18 U.S.C. Sec. 2510(8) (``contents', when used with respect to 
any wire, oral, or electronic communication, includes any information 
concerning the substance, purport, or meaning of that communication'').
    53. See House Report at 51 (stating that pen registers were 
intended to be included in the definition of ``electronic 
surveillance'' in 50 U.S.C. Sec. 1801(f)(2)), 67 (``devices such as pen 
registers are included''); see also S. Rep. No. 185, 105th Cong., 2d 
Sess. 27 (1998) (noting that pen registers were considered electronic 
surveillance under the original version of FISA) (hereinafter Senate 
Intelligence Pen-Trap Report).
    54. Pub. L. No. 105-272, Sec. 601, 112 Stat. 2396 (Oct. 20, 1998), 
codified at 50 U.S.C. Sec. Sec. 1841-1846. Pen-trap orders may be 
obtained on a lesser showing than would be necessary for electronic 
surveillance or a physical search because the Supreme Court has held 
that limited information concerning the source or destination of a 
communication is not protected by the Fourth Amendment. See Smith v. 
Maryland, 442 U.S. 735 (1979). The Court in Smith reasoned that a 
person does not have a reasonable expectation of privacy in the numbers 
dialed from a telephone and therefore that a pen register does not 
constitute a ``search'' within the meaning of the Fourth Amendment. Id. 
at 742-46. Absent the statutory requirements to obtain a court order, 
therefore, the government could employ pen-trap devices without any 
judicial authorization.
    55. See 50 U.S.C. Sec. 1841(2) (defining pen register and trap and 
trace by reference to 18 U.S.C. Sec. 3127).
    56. 18 U.S.C. Sec. 3127(3).
    57. See note 62, infra.
    58. 18 U.S.C. Sec. 3127(4).
    59. See www.usdoj.gov/criminal/cybercrime/PatriotAct.htm. A trap 
and trace device is still defined in the statute as a trap and trace 
``device'' even if it is in fact a process, rather than a device.
    60. See United States v. New York Tel. Co., 434 U.S. 159, 161 n.1 
(1977) (``A pen register is a mechanical device that records the 
numbers dialed on a telephone by monitoring the electronic impulses 
caused when the dial on the phone is released. It does not overhear 
oral communications and does not indicate whether calls are actually 
completed.'').
    61. See U.S. Internet Service Provider Association, Electronic 
Evidence Compliance--A Guide for Internet Service Providers, 18 
Berkeley Tech. L. J. 945, 956 (2003) (``Law enforcement may also use 
pen register and trap and trace orders to trace communications on the 
Internet and other computer networks.''). Prior to the Patriot Act, pen 
registers had been used to obtain computer routing and addressing 
information, but it was not well settled that this was the correct 
interpretation of the statute. See www.usdoj.gov/criminal/cybercrime/
PatriotAct.htm.
    62. 18 U.S.C. Sec. 3127(3) & (4). FISA does not incorporate a 
provision of the criminal code that requires the government to use 
``technology reasonably available to it that restricts'' pen-trap 
interceptions ``so as not to include the contents of any wire or 
electronic communications.'' 18 U.S.C. Sec. 3121(c). However, Section 
2.4 of Executive Order 12333 imposes similar restrictions, requiring 
Intelligence Community agencies, which include the intelligence 
elements of the FBI, to ``use the least intrusive collection techniques 
feasible within the United States or directed against United States 
persons abroad.''
    63. It applies only to the subchapter of FISA regulating electronic 
surveillance. Under the first sentence of 50 U.S.C. Sec. 1801, the 
definitions in that section apply only to ``this title,'' or Title I of 
FISA. The pen-trap provisions are in Title IV of FISA. Although 
Congress chose to incorporate by reference into the FISA pen-trap 
provisions many of the definitions applicable to electronic 
surveillance, it did not incorporate FISA's definition of ``contents.'' 
See 50 U.S.C. Sec. 1841.
    64. 50 U.S.C. Sec. 1801(n).
    65. There may, of course, be another reason for Section 202, but if 
so I am unaware of it.
    66. One other concern might arise from 18 U.S.C. Sec. 2511(2)(f), 
which provides in relevant part that ``procedures in [Title III] or 
[the Stored Communications Act, 18 U.S.C. Sec. Sec. 2701-2712] and the 
Foreign Intelligence Surveillance Act of 1978 shall be the exclusive 
means by which electronic surveillance, as described in [50 U.S.C. 
Sec. 1801], and the interception of domestic wire, oral, and electronic 
communications may be conducted.'' FISA's broad definition of 
``contents'' means that its definition of ``electronic surveillance'' 
is correspondingly broad, see 50 U.S.C. Sec. 1801(f)(1)-(3), and 
includes pen-trap surveillance. This might give rise to the concern 
that Section 2511(2)(f) forbids criminal pen-trap surveillance because 
it provides that FISA and Title III are the ``exclusive means'' for 
conducting such surveillance. In other contexts, however, the courts of 
appeals have rejected arguments that Section 2511(2)(f) forbids 
domestic law enforcement investigative conduct that is ``electronic 
surveillance'' under FISA but not under Title III. See, e.g., United 
States v. Koyomejian, 970 F.2d 536. 540-541 (9th Cir. 1992) (en banc) 
(silent video surveillance, which is ``electronic surveillance'' as 
defined by FISA but is not regulated by Title III, may be conducted 
against domestic, criminal targets without following either FISA or 
Title III). This is a very complex area, in which I may not know all 
the relevant facts, but in any event, my sense is that if an amendment 
is needed, the provision to be amended should be 18 U.S.C. 
Sec. 2511(2)(f), not FISA.
    67. See 50 U.S.C. Sec. 1841(2) (FISA pen-trap devices defined by 
cross-reference to criminal pen-trap statute), 18 U.S.C. Sec. 3127(3)-
(4) (criminal pen-trap surveillance may not intercept ``contents''), 18 
U.S.C. Sec. 3127(1) (defining ``contents'' for criminal pen-trap 
statute by cross-reference to Title III), 18 U.S.C. Sec. 2510(8) 
(defining ``contents'' in Title III as ``any information concerning the 
substance, purport, or meaning of [a] communication'').
    68. 18 U.S.C. Sec. 2510(8).
    69. See Electronic Communications Privacy Act (ECPA), Pub. L. 99-
508, Sec. 101(a)(5), 100 Stat. 1848, amending 18 U.S.C. Sec. 2510(8); 
see also ECPA Senate Report at 13-14.
    70. 50 U.S.C. Sec. Sec. 1842(a)(1), (a)(2).
    71. As a technical drafting matter, the bill should specify that 
the change pertains to the second use of the word ``for'' in the 
provision.
    72. There are similar First Amendment provisions in other parts of 
FISA. See 50 U.S.C. Sec. Sec. 1805(a)(3)(A), 1824(a)(3)(A) (``no United 
States person may be considered * * * an agent of a foreign power 
solely upon the basis of activities protected by the first amendment to 
the Constitution of the United States''). (The electronic surveillance 
version of this standard applies to foreign powers and agents of 
foreign powers; the physical search version applies only to agents of 
foreign powers. I doubt the omission was intentional.) See also 50 
U.S.C. Sec. 1842(a)(1), (c)(2), 1843(a), (b)(1) (similar provisions for 
pen-trap surveillance).
    73. 50 U.S.C. Sec. 1861(d).
    74. 334 F. Supp.2d 471 (S.D.N.Y. 2004).
    75. 18 U.S.C. Sec. 2709. Section 2709 provides that ``[a] wire or 
electronic communication service provider shall comply with a request 
for subscriber information and toll billing records information, or 
electronic communication transactional records in its custody or 
possession made by the Director of the Federal Bureau of 
Investigation.'' 18 U.S.C. Sec. 2709(a). It also provides that ``[n]o 
wire or electronic communication service provider, or officer, 
employee, or agent thereof, shall disclose to any person that the 
Federal Bureau of Investigation has sought or obtained access to 
information or records under this section.'' 18 U.S.C. Sec. 2709(c).
    76. 334 F. Supp.2d at 514.
    77. Id.
    78. The Department of Justice is apparently of the same view. See 
Baker House Testimony at 3-4 (``some criticisms of section 215 have 
apparently been based on possible ambiguity in the law. The Department 
has already stated in litigation that the recipient of a section 215 
order may consult with his attorney and may challenge that order in 
court. The Department has also stated that the government may seek, and 
a court may require, only the production of records that are relevant 
to a national security investigation, a standard similar to the 
relevance standard that applies to grand jury subpoenas in criminal 
cases. The text of section 215, however, is not as clear as it could be 
in these respects. The Department, therefore, is willing to support 
amendments to Section 215 to clarify these points.'').
    79. See, e.g., Los Angeles Police Dep't v. United Reporting 
Publishing Co., 528 U.S. 32, 37-39 (1999) (explaining First Amendment 
overbreadth doctrine); cf. United States v. Salerno, 481 U.S. 739, 745 
(1987) (``The fact that [a statute] might operate unconstitutionally 
under some conceivable set of circumstances is insufficient to render 
it wholly invalid, since we have not recognized an `overbreadth' 
doctrine outside the limited context of the First Amendment'').
    80. See, e.g., Executive Order 12958 (as amended).
    81. See, e.g., Snepp v. United States, 444 U.S. 507, 510 n.3 
(1980).
    82. 50 U.S.C. Sec. Sec. 1801(h), 1805(a), 1805(c)(2)(A), 1821(4), 
1824(a), 1824(c)(2)(A).
    83. Executive Order 12333 Sec. 2.3; see also id. Sec. 1.14. The 
intelligence elements of the FBI are in the intelligence community. Id. 
Sec. 3.4(f)(6).
    84. Baker House Testimony at 3 (``The Attorney General also 
recently declassified the fact that the FISA Court has issued 35 orders 
under section 215 from the effective date of the Act through March 30th 
of this year. The Attorney General also declassified the types of 
business records sought by these orders. They include driver's license 
records, public accommodation records, apartment leasing records, 
credit card records, and subscriber information, such as names and 
addresses, for telephone numbers captured through court-authorized pen 
register devices. None of those orders were issued to libraries and/or 
booksellers, or were for medical or gun records.'').
    85. I have not reviewed Section 212 word-by-word against the 
current postal regulations.
    86. I was recently made aware of a November 19, 2004 letter from 
Attorney General Ashcroft to the Postmaster General, in which the 
Attorney General asked the Postmaster General to amend the mail 
regulations. The requested changes were not made.
    87. Compare 39 C.F.R. Sec. 233.3(c)(1)(i) and (9)(i)-(iii), with 50 
U.S.C. Sec. 1801(e)(1).
    88. 39 C.F.R. Sec. 233.3(c)(3)(8).
    89. 39 C.F.R. Sec. 233.3(e)(3).
    90. 39 C.F.R. Sec. 233.3(e)(2)(i).
    91. 39 C.F.R. Sec. 233.3(g)(5)-(6).
    92. 39 C.F.R. Sec. 233.3(g)(8).
    93. Under 39 U.S.C. Sec. 201, the Postal Service is ``an 
independent establishment of the executive branch.'' For a discussion 
of the status and corporate governance structure of the Postal Service, 
see United States Postal Service v. Flamingo Industries (USA) Ltd., 540 
U.S. 736, 740 (2004).
    94. The current guidelines for national security investigations 
issued under Executive Order 12333 are classified in part. See 
www.usdoj.gov/olp/nsiguidelines.pdf and www.usdoj.gov/olp/
nsifactsheet.pdf. An earlier version of these guidelines, issued in May 
1995, is also classified in part. See www.usdoj.gov/ag/readingroom/
terrorismintel2.pdf.
    95. 50 U.S.C. Sec. Sec. 1861-1862.
    96. 18 U.S.C. Sec. 3486.
    97. 21 U.S.C. Sec. 876 (``In any investigation relating to his 
functions under this subchapter with respect to controlled substances, 
listed chemicals, tableting machines, or encapsulating machines, the 
Attorney General may subpoena witnesses, compel the attendance and 
testimony of witnesses, and require the production of any records 
(including books, papers, documents, and other tangible things which 
constitute or contain evidence) which the Attorney General finds 
relevant or material to the investigation.''). For what appears to be a 
truly comprehensive list of administrative subpoena authorities held by 
Executive Branch entities, see United States Department of Justice, 
Office of Legal Policy, Appendices A, B & C Accompanying Report to 
Congress on the Use of Administrative Subpoena Authorities by Executive 
Branch Agencies and Entities Pursuant to Public Law 106-544, available 
at www.usdoj.gov/olp/appendixal.pdf, www.usdoj.gov/olp/appendixa2.pdf, 
www.usdoj
.gov/olp/appendixb.pdf, and www.usdoj.gov/olp/appendixc.pdf.
    98. See United States Department of Justice, Office of Legal 
Policy, Report to Congress on the Use of Administrative Subpoena 
Authorities by Executive Branch Agencies and Entities Pursuant to 
Public Law 106-544, Table I at 40-41, available at http://
www.usdoj.gov/olp/intro.pdf (hereinafter DOJ Administrative Subpoena 
Report).
    99. Between October 26, 2001, and January 21, 2003, the FBI issued 
what appears to be several hundred national security letters, although 
the precise number is apparently classified. See www.aclu.org/patriot 
foia/FOIA/NSLLists.pdf.
    100. DOJ Administrative Subpoena Report at 41 (noting delegation 
from Attorney General to FBI Director of authority to issue subpoenas 
under 18 U.S.C. Sec. 3486 in investigations of child sex abuse).
    101. See Kris House Testimony at 16-18.
    102. See 50 U.S.C. Sec. 1808(a)(2)(A) (semi-annual report shall 
describe ``each criminal case in which information acquired under this 
Act has been passed for law enforcement purposes during the period 
covered by such report''). See also 50 U.S.C. Sec. 1806(b) (``No 
information acquired pursuant to this subchapter shall be disclosed for 
law enforcement purposes unless such disclosure is accompanied by a 
statement that such information, or any information derived therefrom, 
may only be used in a criminal proceeding with the advance 
authorization of the Attorney General.'').
    103. Under 50 U.S.C. Sec. 1808(a)(2)(B), the semi-annual report 
must include a description of ``each criminal case in which information 
acquired under this chapter has been authorized for use at trial during 
such reporting period.''

 STATEMENT OF DAVID S. KRIS, FORMER ASSOCIATE DEPUTY ATTORNEY 
                 GENERAL, DEPARTMENT OF JUSTICE

    Mr. Kris. Yes. Chairman Roberts, Vice Chairman Rockefeller, 
thank you very much for the opportunity to testify about your 
draft bill. I am speaking this morning as a private citizen and 
for myself only. But as a former government lawyer I would like 
to begin by joining the Department of Justice in applauding the 
bill. I think several provisions of it will help to keep us 
safe.
    For example, the renewal of several provisions from the 
Patriot Act is, in my view, a good idea about which I know 
you've heard a lot.
    My written testimony singles out two PATRIOT Act 
provisions, the ones pertaining to the FISA wall, Section 218, 
and the one pertaining to FISA roving surveillance, where I 
think I've made some observations that may not be obvious and 
may be helpful to you.
    I also applaud the bill as a private citizen and one who 
cares about and values privacy and civil liberties. There are a 
couple of provisions in the bill worthy of mention in that 
regard--section 211 which expands the disclosure rights and the 
reporting obligations for FISA tangible things orders; and 
section 213, which, in authorizing administrative subpoenas, 
also specifically provides for motions to quash such subpoenas 
filed by the recipients either in their local U.S District 
Courts or even in the Foreign Intelligence Surveillance Court. 
Actually, I have to say that that, in my view, is a 
questionable provision although it is protective of civil 
liberties, I think.
    At some sort of basic level it seems to me pretty clear 
that the Department and the FBI need to have the authority to 
compel the production of documents and other things in national 
security investigations, whether it be by National Security 
Letters or tangible things orders or administrative subpoenas, 
just as they have corresponding authority by administrative 
subpoena or grand jury subpoena in criminal cases.
    The question, it seems to me, is under what circumstances 
and what conditions will that authority be exercised? And just 
in sitting here listening to the dialog I sort of sketched out 
what I think are five or six factors that might or might not be 
applied to the exercise of administrative subpoena power.
    There is first the requirement for high level executive 
branch approval before such a subpoena could be issued; a 
requirement for a submission or a certification by an applicant 
in front of a judicial officer; advance judicial review, either 
substantive--looking at the certification and questioning it or 
procedural--making sure that the certification has all the 
required elements. There would be consultation rights and 
nondisclosure rules governing recipients. And then finally 
there would be the possibility of after-the-fact judicial 
review, either in a motion to quash by the recipient or maybe 
in some kind of ratification by a court of the administrative 
subpoena in the same way that FISA emergency orders are 
ratified after the fact.
    So those it seems to me are the factors. And this bill it 
seems to me is aiming for a balanced approach to the question 
of granting authority but also conditioning it in appropriate 
ways. At a minimum, it strikes me as a good place to begin the 
dialog.
    One other thing that I think is worth thinking about in 
considering the administrative subpoena provisions and the 
other provisions in this bill: it is not just a question of 
whether the government as a whole should have this power or 
should not have this power under certain conditions. I think 
it's also a question of which parts of the government have the 
power, because in a bureaucracy as big as the executive branch, 
every time you grant power to one part you change the way it 
relates to the others.
    And in my view, it is important to grant the authority here 
to the Attorney General, for two reasons--first to reaffirm 
once again that the Attorney General is, in fact, in charge 
both of DOJ proper and of the FBI, and also because I think it 
is important as we go forward, sort of emerging from the shadow 
of the FISA wall, to encourage wherever possible the 
interaction of agents and lawyers, whether they be prosecutors 
or other lawyers, within the Department of Justice.
    And so I think the Attorney General ought to have the 
authority to delegate this power of administrative subpoenas, 
if it's granted, to whomever he or she believes is the 
appropriate recipient, maybe with some floor set by statute.
    For example, right now there is a discussion I believe, 
according to the New York Times, about whether to create a 
national security division within the Department of Justice. 
And if such a division were created the Attorney General might 
well choose to delegate this power to the assistant attorney 
general for that division rather than to the Director. So I 
think the statute should give the Attorney General that 
authority.
    And now I would obviously be happy to answer any of your 
questions.
    Chairman Roberts. We thank you for your testimony, Mr. 
Kris.
    Mr. Onek.
    [The prepared statement of Mr. Onek follows:]

                   Prepared Statement of Joseph Onek

    Mr. Chairman, Senator Rockefeller, Members of the Committee. I 
greatly appreciate this opportunity to testify on the pending proposals 
to extend and amend provisions of the Patriot Act and the Foreign 
Intelligence Surveillance Act. The Patriot Act and FISA are important 
tools in the fight against terrorism, but both raise significant civil 
liberties issues. We therefore need to subject them to careful and 
continuing scrutiny.

                        ADMINISTRATIVE SUBPOENAS

    The draft legislation proposes to amend FISA by providing for 
administrative subpoenas in national security investigations. 
Administrative subpoenas are now used in many types of investigations, 
and the government asks why they shouldn't also be used by the FBI in 
the fight against terrorism. But the government ignores some very 
crucial facts.
    First, administrative subpoenas are typically used for discrete 
purposes and to obtain limited types of records. But here the subpoenas 
would be seeking records relating to foreign intelligence and 
terrorism. The range of activities that relate foreign intelligence and 
terrorism is enormous and, therefore, there is virtually no limit to 
the type of records the FBI will be able to subpoena. The FBI will seek 
financial records, employment records, transportation records, medical 
records and yes, sometimes, library records. The collection of this 
massive array of records creates special problems. Inevitably, FBI 
investigations will sweep up sensitive information about innocent, law-
abiding people. How do we assure this information is not abused? The 
FBI will also sweep up information about people who have nothing 
whatsoever to do with terrorism but who may have committed other 
infractions, both minor and major. What will the FBI do with this 
information? Should it use the information in criminal prosecutions or 
other proceedings unrelated to terrorism? Does it make any difference 
that a highly disproportionate amount of this information will be 
collected about people who (quite naturally and innocently) happen to 
write, visit and send money to places such as Pakistan and Iraq?
    I am not suggesting that the Committee now address these complex 
privacy and profiling issues. But I do believe the Committee should 
keep these issues in mind as it considers whether to give the FBI 
essentially unlimited subpoena authority.
    There is a second crucial difference between the ordinary use of 
administrative subpoenas and proposal before the Committee. As set 
forth in the draft, the FBI's subpoenas must be kept completely secret 
whenever the FBI says that national security requires non-disclosure. 
This means that a record holder who receives a subpoena that is 
overbroad or impinges on first amendment rights will not be able to 
complain to the press, the Congress or the public.
    This is not an insignificant disadvantage. Just last year, a 
Federal prosecutor in Iowa served grand jury subpoenas on Drake 
University and members of the university community in connection with a 
peaceful antiwar forum. The university community protested loudly, the 
press took up the controversy, and the subpoenas were promptly 
withdrawn. This cannot happen when the subpoenas are secret.
    If subpoenas covering a vast array of records are going to be 
served in secret, there must be additional safeguards. The most obvious 
safeguard is prior judicial approval, such as is provided, however 
inadequately, in Section 215 of the Patriot Act. We should not permit, 
for the first time in our history, the massive use of secret subpoenas 
that have not been approved by a judge.
    I recognize that the proposed draft provides record holders with 
the opportunity to challenge any subpoena in Federal court. But this 
opportunity is no substitute for prior judicial approval. Third party 
record holders will generally have no incentive to undertake the 
burdens of a Federal court challenge, and the secrecy provisions 
further reduce the likelihood of a challenge. If, for example, a 
hospital receives a subpoena for a massive number of medical records 
and the subpoena is made public, the medical staff and patient groups 
might pressure the hospital to file a challenge. There will be no such 
pressure with a secret subpoena. Thus, there will be little judicial 
supervision of the FBI's use of secret subpoenas.
    The FBI should be required to obtain a court order when it seeks 
access to business records. I believe the current standards for issuing 
such orders, as set forth in Section 215 of the Patriot Act, should be 
tightened along the lines suggested by the SAFE Act. Subpoena power 
should be limited to records involving or pertaining to an ``agent of a 
foreign power'' as defined in FISA. But in any event there must be a 
requirement for judicial approval. Such a requirement imposes a 
salutary discipline on the government. It forces the government to 
think through and describe, in the words of Deputy Attorney General 
Comey, the ``meaningful, logical connection between the record sought 
and the subject of the investigation.'' If the government believes that 
obtaining a court order is too slow in certain circumstances, it should 
propose procedures for the prompter handling of urgent requests.
    In sum, I believe the Committee should not go forward with the 
proposal for new subpoena authority for the FBI. But if the Committee 
does go forward, it should clarify and improve certain provisions.
    Section 808(a)(3)(b), providing for judicial review, states that 
upon the government's request the court ``shall'' receive government 
submissions ex parte and in camera. Of course, there may be a need for 
the government to submit classified information to the court ex parte 
and in camera. But under the section as written the government could 
make a submission to the court without even notifying the opposing 
party of that fact and without disclosing those portions of its 
submission, such as discussions of legal precedents, that do not 
require special protection. This section should be modified to grant 
the court discretion to assure that, as in the Classified Information 
Procedures Act, both the government's interest in protecting national 
security and the private party's interest in a fair hearing are 
appropriately accommodated.
    Section 808(d), Standard of Review, is ambiguously worded. The 
standard for court modification of a subpoena is whether compliance 
would be ``unreasonable or oppressive'', while the standard for setting 
aside a subpoena is ``abuse of discretion.'' What is the relationship 
between the two standards? Can there be an unreasonable or oppressive 
subpoena that does not constitute an abuse of discretion? Can there be 
an abuse of discretion based on other factors?

                              MAIL COVERS

    In addition to granting the FBI new subpoena power, the draft 
legislation proposes to amend FISA to authorize the FBI to request mail 
covers from the Postal Service. As with the subpoena power, it is not 
clear why this new authority is necessary. The FBI already has the 
ability to request mail covers under Postal Service regulations.
    Perhaps, however, this is an opportunity to make the laws 
regulating FBI investigations more coherent. Mail covers are 
conceptually similar to the pen registers and trap and trace devices 
that are presently regulated by Title IV of FISA. Why shouldn't they be 
treated in a similar fashion under FISA? This would require the FBI to 
obtain a court order for mail covers. As you know from previous 
Committee hearings, there is some dispute about the standards for the 
issuance of pen register and trap and trace orders. I will not go into 
that here. The crucial point is that there should be some judicial 
supervision and some coherence in the law.

                               LONE WOLF

    The Committee draft repeals the sunset of the ``Lone Wolf '' 
provision that was enacted just a few months ago. I believe the ``Lone 
Wolf '' provision may well be unconstitutional and that, in light of 
criminal surveillance authorities, it is unnecessary. The Committee has 
not yet received the government's first report on the provision and 
cannot have an adequate record as to how the provision has been used 
and whether alternative surveillance authorities were available. I 
suggest, therefore, that the current sunset requirement be extended 
until December 31, 2007. This will give the Committee and the Congress 
a better opportunity to assess the need for the provision.

                           OTHER FISA ISSUES

    Section 203 of the Committee's draft amends FISA by stating that 
``foreign intelligence information'' includes information relating to 
national security criminal prosecutions. Once again, I am not sure why 
this amendment is necessary, since there is widespread agreement that 
the ``wall'' no longer exists. But the amendment does underscore the 
very significant fact that today an increasing number of criminal cases 
involve the use of FISA evidence. This requires a re-examination of 
whether current procedures for the use of FISA evidence in criminal 
cases are fair.
    As Jim Dempsey testified before this Committee in April, criminal 
defendants in most cases can obtain access to the affidavit that served 
as the basis for the wiretap order or search warrant and thus can 
challenge the basis for the wiretap or search in an adversarial 
proceeding. By contrast, defendants in FISA cases have never been 
granted such access and have never had a meaningful opportunity to 
challenge the basis for the search. Congress should assure that normal 
criminal adversary procedures apply when FISA evidence is used against 
individuals, with appropriate use of the Classified Information 
Procedures Act to protect government interests.
    There is another problem with FISA that has not been adequately 
addressed. Under FISA, the government can obtain an order to conduct 
secret searches of any home or office. Unlike the ``sneak and peek'' 
searches authorized in Section 213 of the Patriot Act, these searches 
remain secret forever unless the government chooses to disclose them or 
there is a criminal trial involving evidence seized during the search. 
This means that innocent Americans have had, and will have, their most 
intimate records and belongings searched by the government without ever 
being informed of the search. Similarly, although Title III wiretaps 
are ultimately disclosed, FISA wiretaps are not.
    I believe that FISA should be amended to assure that individuals 
are informed they have been subject to a secret FISA search or wiretap 
unless there are valid national security grounds to continue the 
secrecy. In cases where there has been a secret search or wiretap but 
no disclosure of that fact in a criminal trial the government should be 
required to periodically file a motion with the FISA court requesting 
and justifying continued non-disclosure.

                               CONCLUSION

    In concluding, I would like to commend the Committee for its 
attention to congressional oversight, including the reporting 
requirements contained in the draft legislation. Congressional 
oversight is crucial and must be pursued vigorously. But executive 
branch accountability requires more than congressional oversight; it 
requires judicial oversight and as much openness as is consistent with 
national security. When, as in terrorism investigations, a high degree 
of secrecy is warranted, a meaningful role for the judiciary becomes 
all the more important. The Committee should not eviscerate that role 
by granting broad subpoena power to the FBI.

 STATEMENT OF JOSEPH ONEK, SENIOR POLICY ANALYST, OPEN SOCIETY 
      INSTITUTE, AND SENIOR COUNSEL, CONSTITUTION PROJECT

    Mr. Onek. Thank you, Chairman Roberts, Vice Chairman 
Rockefeller, members of the committee.
    I'd like to begin, if I may, by talking about the Lone Wolf 
provision because I think it may get lost in the shuffle. This 
provision was not passed 3\1/2\ years ago; it was passed just a 
few months ago. Yet the draft legislation would repeal the 
sunset for it. And I think this may be a good example of what 
Senator Rockefeller had described earlier of a provision where 
the sunset should clearly be extended.
    I happen to believe that the Lone Wolf provision may be 
unconstitutional and that, in light of other criminal 
surveillance authorities, it's unnecessary.
    But the crucial point is that this Committee has not yet 
received the government's first report, because the 6-month 
period isn't up yet, on this provision. The Committee can't 
have an adequate record as to how often or when the provision 
has been used and whether alternative surveillance authorities 
are available.
    So I think this is the perfect occasion, certainly, to take 
up Senator Rockefeller's suggestion about these provisions. And 
in this case I think it's clear the sunset provision should be 
extended for 3 or 4 years. This would give the Committee and 
the Congress a better opportunity to assess the need for the 
Lone Wolf provision.
    I'd like to turn to administrative subpoenas. There's been 
a discussion of how often they've been used in other contexts. 
There's also already been a discussion about the fact that here 
we're dealing with a much, much broader array of records. 
Indeed, because we're investigating foreign intelligence and 
terrorism, there's essentially no limit on the kinds of records 
that can be subpoenaed. And I think this raises all sorts of 
privacy and profiling issues, which I'd be glad to discuss in 
the questioning.
    But there's another difference between these subpoenas and 
the other uses of administrative subpoenas. These are going to 
be largely secret. That means that the recipient can't complain 
to the press, can't complain to the public, can't complain to 
the Congress.
    And this isn't insignificant. Just last year in Iowa, a 
Federal prosecutor requested records from Drake University and 
members of the community in connection with a peaceful antiwar 
forum. The university community got up in arms and protested. 
The press took up the controversy. And the subpoenas were 
withdrawn 3 days later. Now, that just can't happen when the 
subpoenas are secret.
    So if you're going to have secret subpoenas, I think there 
have to be additional safeguards. And the obvious and best 
safeguard is prior judicial approval, as is provided, for 
example, in Section 215. Now there can be an exception for 
emergency cases, as Senator Feinstein suggested, and FISA 
already has exceptions in Title I and Title III for 
emergencies.
    But never in our history, I don't believe, has there ever 
been a situation where there's been massive use of secret 
subpoenas without prior judicial approval. This is a totally 
new thing. All the other subpoenas they're talking about are 
not secret, and the people who get them have a chance to 
complain about them.
    This is a very different situation. You'd be creating, for 
the first time in our history, a regime of mass secret 
subpoenas, because I'm sure this is going to be used a great 
deal. Most of the time they will be secret. And under those 
circumstances I think prior judicial approval is required.
    Post-judicial approval won't work. Ms. Caproni was very 
candid with this Committee when she pointed out that very few 
third-party record-holders ever move to quash a subpoena. She 
was very clear on that. So I don't think that post-hoc judicial 
review is going to take place. It just ain't going to happen.
    And by the way, it's going to happen even less because of 
the secrecy. For example, if you subpoena hospital records and 
was public, maybe the patient groups and the medical staff 
would pressure the hospital into challenging the subpoena. But 
if it's a secret subpoena and, as in this legislation, the 
hospital has immunity from giving the records over, its just 
going to give them over.
    So after-the-fact judicial review is not going to happen. 
This is a classic case where we should have judicial approval. 
If you're going to have vast numbers of secret subpoenas, the 
real safeguard you must have is prior judicial approval as in 
Section 215. I happen to believe that the standard in Section 
215 should be tightened. We can, of course, discuss that in the 
question-and-answer period.
    Thank you.
    Chairman Roberts. We thank you for your testimony, sir.
    Mr. Collins.
    [The prepared statement of Mr. Collins follows:]

                Prepared Statement of Daniel P. Collins

    Chairman Roberts, Vice-Chairnian Rockefeller, and Members of the 
Committee, I am grateful for the opportunity to testify before you 
today. Three and one-half years ago, the USA PATRIOT Act was signed 
into law by President Bush with overwhelming support in both Houses of 
Congress. See Pub. L. No. 107-56, 115 Stat. 272 (Oct. 26, 2001). That 
strong bipartisan consensus reflected the gravity and importance of the 
chief objective of that legislation, which was set forth right in the 
title: ``providing appropriate tools required to intercept and obstruct 
terrorism.'' As the horrific events of September 11 demonstrated, there 
are few priorities more pressing than detecting and preventing 
terrorist attacks. It is critical that the men and women whose job it 
is to protect us have the tools they need to get that job done, and to 
get it done in a manner that both enhances security and respects 
liberty.
    However, as the Committee is well aware, several provisions of 
Title II of the PATRIOT Act are scheduled to expire on December 31, 
2005, absent action by Congress. Id., Sec. 224(a), 115 Stat. at 295. 
Under Section 101 of the draft legislation that is the subject of this 
hearing, nine of the PATRIOT Act provisions that are currently subject 
to sunset would be made peiivanent. See Section 101 (repealing the 
sunset of sections 203(b), 203(d), 204, 206, 207, 214, 215, 218, and 
225 of the PATRIOT Act). I agree that these nine provisions should be 
made permanent. Today, as in 2001, they are ``appropriate tools'' in 
the war on terror.
    My perspective on these matters is informed by my service over the 
years in various capacities in the Justice Department. Most recently, I 
served from June 2001 until September 2003 as an Associate Deputy 
Attorney General (``ADAG'') in the office of Deputy Attorney General 
Larry Thompson. During the same period, I also served as the 
Department's Chief Privacy Officer, and in that capacity, I had the 
responsibility for coordinating the Department's policies on privacy 
issues. I also served, from 1992 to 1996, as an Assistant United States 
Attorney in the Criminal Division of the U.S. Attorney's Office for the 
Central District of California in Los Angeles. And prior to that, I had 
served from 1989 to 1991 as an Attorney-Advisor in the Office of Legal 
Counsel in Washington, D.C. I am now back in private practice in Los 
Angeles, and I emphasize that the views I offer today are solely my 
own.
    Before turning to the nine relevant PATRIOT Act provisions that are 
up for ``sunset'' review by this Committee, I think it is useful to 
outline some of the basic principles that should guide an analysis of 
these provisions. The overarching question whether a particular 
surveillance authority is an ``appropriate tool'' ultimately turns on 
whether that tool assists in detecting and preventing terrorism, and 
whether it does so in a manner that preserves and enhances privacy. In 
making that judgment, it is important not to fall into the fallacy of 
``zero-sum'' thinking, whereby every expansion of government 
surveillance authority is somehow deemed inherently to represent a loss 
of privacy. This sort of thinking does not make much sense either from 
a national security perspective or from a civil liberties perspective. 
The question instead is whether the conditions placed on the 
availability and use of a particular tool are sufficient to permit it 
to be deployed effectively when warranted, but only in a manner that is 
respectful of privacy and basic civil liberties.
    Beyond that very general statement, there is, I think, general 
agreement on a number of more specific principles that help to inform 
any judgment about the propriety and adequacy of the conditions place 
upon the use of a particular tool:
     Unwavering fidelity to the Constitution. Privacy is a 
cherished American right. Among the various ways in which the 
Constitution protects that right, the Fourth Amendment specifically 
reaffirms the right of the people to be free from unreasonable searches 
of their ``houses, papers, and effects.'' Our laws must scrupulously 
respect the limits established by the Constitution. As many have said, 
we have to think outside the box, but not outside the Constitution. But 
while the Constitution sets the minimum, our laws have long properly 
reflected the judgment that, from a policy perspective, there should be 
additional statutory protections for privacy. I do not question that 
judgment.
     Not all privacy interests are the same. Not all privacy 
interests are of the same magnitude, and it makes no policy sense to 
act as if they were. For example, some categories of information are 
more important and more sensitive than others. The fact that the 
supermarket club could maintain a computerized stockpile of information 
about my personal buying habits may raise a privacy concern, but it is 
not on the same level as someone eavesdropping on my phone 
conversations or reading my medical records. The nature and severity of 
the privacy intrusion at issue are certainly important factors to 
consider.
     Privacy is not always the most important value. It is 
essential to keep in mind that, while privacy is an important right, it 
is by no means the only important value. Human society, by its very 
nature, involves some loss of personal privacy. Competing concerns 
raised by new technology may also justify particular intrusions on 
privacy: no one can deny that airport inspections are essential to 
public safety, regardless of the cost to privacy.
     If it's good enough for fighting the mob, it's good enough 
for fighting terrorism. Any tool that is already available to fight any 
other type of crime--be it racketeering, drug trafficking, child 
pornography, or health care fraud--should be available for fighting 
terrorism, and should have an appropriate analog in the foreign 
intelligence context. If the judgment has already been made that the 
tool is appropriate for fighting these other crimes, and that any 
privacy interests at stake must yield to that effort, then surely the 
tool should also be available to fight terrorism.
     The law of inertia must not be a principle of privacy 
policy. It does not make much sense to perpetuate outmoded ways of 
doing things simply because it has always been done that way. As times 
and technologies change, the judgments that are reflected in existing 
statutory rules may need to be re-evaluated.
     The importance of technological neutrality. In applying 
privacy principles to new and emerging technologies, an important 
benchmark is the concept of ``technological neutrality.'' The idea is 
that, just because a transaction is conducted using a new technology, 
there should not have to be a loss of privacy when compared to similar 
transactions using older technologies. To use an example, the privacy 
protection for ordinary email should be roughly equivalent to that of 
an ordinary postal letter. Conversely, the emergence of new 
technologies should not provide foreign agents with new ways to thwart 
legitimate and legally authorized foreign intelligence activities. The 
notion of technological neutrality takes into account both sides of the 
coin.
    With these basic principles in mind, let me explain why I think 
each of the nine pertinent sections of the PATRIOT Act that would be 
made permanent by Section 101 of the proposed legislation are ones that 
properly enhance the abilities of intelligence officials in a manner 
that respects and preserves our freedoms.

                   (1)-(2) SECTIONS 203(B) AND 203(D)

    These provisions, which authorize certain forms of information 
sharing between law enforcement officers and intelligence officials, 
are among the most important in the PATRIOT Act.
    Specifically, section 203(b) authorizes the sharing of Title III 
wiretap information with intelligence and national security officials, 
subject to several conditions: (1) the information must have been 
obtained ``by any means authorized by this chapter,'' i.e., in 
accordance with the strict requirements of Title III; (2) the 
information to be shared must ``include foreign intelligence or 
counterintelligence'' or ``foreign intelligence information'' as those 
terms are specifically defined by the relevant statutes; (3) the 
information may only be used by such official ``as necessary in the 
conduct of that person's official duties''; (4) any such official must 
also comply with ``any limitations on the unauthorized disclosure of 
such information''; and (5) to the extent the information ``identifies 
a United States person,'' the disclosure must comply with statutorily 
mandated guidelines issued by the Attorney General. See Pub. L. No. 
107-56, Sec. 203(b), (c), 115 Stat. at 280-81.
    Section 203(d) more generally authorizes sharing of information 
``obtained as part of a criminal investigation,'' subject to the 
following restrictions: (1) the information to be shared must comprise 
``foreign intelligence or counterintelligence'' or ``foreign 
intelligence information'' as those terms are specifically defined by 
the relevant statutes; (2) the information may only be used by such 
official ``as necessary in the conduct of that person's official 
duties''; and (3) any such official must also comply with ``any 
limitations on the unauthorized disclosure of such information.'' See 
Pub. L. No. 107-56, Sec. 203(d), 115 Stat. at 281.
    As the 9/11 Commission and others have noted, the need for 
appropriate sharing of information between law enforcement and 
intelligence officials is absolutely critical to detecting and 
preventing terrorism. Moreover, the safeguards imposed by section 
203(b) and section 203(d) seem properly tailored to ensure that law 
enforcement officials will only share information that qualifies as `` 
foreign intelligence or counterintelligence'' or ``foreign intelligence 
information'' and will do so only subject to appropriate restrictions. 
It must be emphasized that these modest provisions do not, as some 
critics have wrongly claimed, put the CIA in the business of ``spying 
on Americans.'' By definition, all information subject to sharing under 
sections 203(b) and 203(d) has been obtained by the lawful 
investigative activities of law enforcement officials either under 
Title III or ``as part of a criminal investigation.''

                            (3) SECTION 204

    Section 204 is a largely technical amendment that clarifies the 
relationship between the authorities under the criminal statute 
governing ``pen registers'' and ``trap-and-trace'' devices and the 
authorities under otherwise applicable Federal law concerning certain 
foreign intelligence activities. Pub. L. No. 107-56, Sec. 204, 115 
Stat. at 281. I am not aware of an substantial reason why this 
provision should not be made permanent.

                            (4) SECTION 206

    Section 206 of the PATRIOT Act addresses the subject of so-called 
``roving wiretaps'' under the Foreign Intelligence Surveillance Act of 
1978 (``FISA''). In my view, section 206 strikes an appropriate balance 
on this subject and should be preserved.
    Under the current version of Section 105(c)(1)(B) of FISA, a FISA 
order authorizing electronic surveillance only needs to specify the 
nature and location of each such facility or place ``if known.'' 50 
U.S.C. Sec. 1805(c)(1)(B). Notably, the addition of the phrase ``if 
known'' was not made by the PATRIOT Act, but rather by the Intelligence 
Authorization Act for Fiscal Year 2002, Pub. L. No. 107-108, 
Sec. 314(a)(2)(A), 115 Stat. 1394, 1402 (2001); that amendment is 
therefore not subject to the PATRIOT Act's sunset provision. Although 
current law thus dispenses with a specification requirement when the 
exact nature and location of the facilities or places are not known in 
advance, the existing version of Section 105(a)(3)(B) continues 
unambiguously to State that an authorizing order may only be issued if, 
inter alia, ``there is probable cause to believe that . . . each of the 
facilities or places at which the electronic surveillance is directed 
is being used, or is about to be used, by a foreign power or an agent 
of a foreign power.'' 50 U.S.C. Sec. 1805(a)(3)(B). Reading these 
provisions together, it would seem clear that, even when it cannot be 
specified in advance what are the particular facilities and places that 
will be surveilled, the Government must nonetheless provide a 
sufficient description of the categories of facilities and places that 
will be surveilled (presumably by describing their connection to the 
target) so as to permit the court to make the finding that remains 
required by Section 105(a)(3)(B).
    The pertinent change made by Section 206 of the PATRIOT Act was 
merely to eliminate the requirement that the authorizing order in all 
cases specify in advance those third parties (e.g., wire carriers) who 
were directed to supply assistance in carrying out the order. See Pub. 
L. No. 107-56, Sec. 206, 115 Stat. at 282 (amending 50 U.S.C. 
Sec. 1805(c)(2)(B)). Instead, the PATRIOT Act states that, if the court 
finds that ``the actions of the target of the application may have the 
effect of thwarting the identification of a specified person,'' the 
order may require the cooperation of other such persons who have not 
been specified. Id. This modest change makes perfect sense: the prior 
third-party-assistance specification requirement had the obvious 
potential to allow targets to defeat surveillance simply by changing, 
for example, from one cell phone to another. Indeed, it is hard to see 
why one would want to allow this specific amendment to sunset: there is 
no apparent advantage to requiring the Government to go back to the 
FISA Court merely because the target has shifted from one wire service 
provider to another.
    Some have called for making the roving wiretap provisions of FISA 
more analogous to those for ordinary criminal roving wiretaps in Title 
III. Under 18 U.S.C. Sec. 2518(11), the requirement in ' 2518(1)(b)(ii) 
to provide a ``particular description of the nature and location of the 
facilities from which or the place where the communication is to be 
intercepted'' does not apply if, inter alia, the application 
``identifies the person believed to be committing the offense.'' 
Setting aside the issue about what the ``identification'' requirement 
thus imposed by Title III requires here, the apparent intent of these 
critics of Section 206 is that FISA should mimic Sec. 2518(11) by 
imposing an identification requirement in any case in which the 
requirement to specify particular places has been waived. The analogy, 
however, is flawed, because of a crucial difference between ' 2518(11) 
and Section 105 of FISA.
    In addition to waiving the specification-of-places requirement in 
Sec. 2518(1)(b)(ii), the roving wiretap provision of Title III also 
waives the requirement in Sec. 2518(3)(d) that the court must first 
find probable cause to believe that ``the facilities from which, or the 
place where, the wire, oral, or electronic communications are to be 
intercepted are being used, or are about to be used, in connection with 
the commission of such offense, or are leased to, listed in the name 
of, or common used by [the target].'' See 18 U.S.C. Sec. 2518(11) 
(stating that the ``requirements of subsections (1)(b)(ii) and 3(d) of 
this section relating to the specification of the facilities from 
which, or the place where, the communication is to be intercepted do 
not apply'' to roving wiretaps authorized under Title III). As I 
explained above, FISA's analog to Sec. 2518(3)(d) of Title III is 
contained in Section 105(a)(3)(B) of FISA, which states that an 
authorizing order may only be issued if, inter alia, ``there is 
probable cause to believe that . . . each of the facilities or places 
at which the electronic surveillance is directed is being used, or is 
about to be used, by a foreign power or an agent of a foreign power.'' 
50 U.S.C. Sec. 1805(a)(3)(B). It is important to note that nothing in 
the roving wiretap provisions of FISA waives this requirement. The 
apparent effect of that difference is that unlike Title III, a FISA 
roving wiretap application must still provide, as I explained earlier, 
a sufficient description of the categories of facilities and places 
that will be surveilled (presumably by describing their connection to 
the target) so as to permit the court to make the additional probable 
cause finding that remains required by Section 105(a)(3)(B). This 
additional safeguard strikes a different balance from Title III, but an 
appropriate one, and it makes any analogy to Title III inapt. That is, 
in light of FISA's preservation of this requirement, the need for a 
requirement to ``identify'' the target is doubtful. Indeed, because it 
overlooks this crucial additional requirement that only FISA imposes, 
the clear effect of incorporating Title III's restrictions would be to 
make FISA roving wiretaps harder to obtain that Title III wiretaps.

                            (5) SECTION 207

    Section 207 extends the time periods for which the FISA Court can 
initially authorize, and later extend, electronic surveillance and 
physical searches. See Pub. L. No. 107-56, Sec. 207, 115 Stat. at 282. 
Notably, Section 207 only peimits these more generous time periods to 
be used with respect to a FISA target who is not ``a United States 
person.'' 50 U.S.C. Sec. 1805(e)(1)(B), (e)(2)(B) (limiting this 
authority to ``an agent of a foreign power, as defined in section 
1801(b)(1)(A) of this title''); id., Sec. 1801(b)(1) (stating that the 
definition in that paragraph applies only to a ``person other than a 
United States person'') (emphasis added). Pre-existing law had already 
permitted more generous authorization periods for FISA orders directed 
at entities, organizations, and groups that constitute ``foreign 
powers,'' 50 U.S.C. Sec. 1805(e)(1)(A),(e)(2)(A), and Section 207 
properly permits longer authorization periods to also be used only for 
that subset of agents of foreign powers who are not United States 
persons. There seems to be little advantage to allowing this provision 
to sunset; the net effect would merely be more paperwork and a 
diversion of scarce resources that would be more appropriately deployed 
on other matters.

                            (6) SECTION 214

    Section 214 is one of several provisions of the PATRIOT Act that 
properly endeavor to ensure that there will be appropriate analogs, in 
foreign intelligence investigations, for the various tools that are 
available to assist law enforcement in criminal investigations. In 
particular, Section 214 addresses the use of ``pen registers'' and 
``trap and trace devices,'' i.e., instruments for collecting 
information about the address or routing of a communication (e.g., the 
telephone numbers of outgoing calls dialed on a telephone and the 
telephone numbers of incoming calls), but not the content of the 
communication.
    The Supreme Court held long ago that the proper use of a pen 
register does not implicate the Fourth Amendment, because there is no 
reasonable expectation of privacy in the numbers dialed on a 
telephone--numbers that, by definition, the dialer has voluntarily 
turned over to a third party (i.e., the telephone company). Smith v. 
Maryland, 442 U.S. 735, 744 (1979). Since 1986, however, Congress has 
appropriately regulated the use of such devices, requiring (inter alia) 
an attorney for the Government to make an application to a court in 
which the attorney certifies that the information to be collected is 
relevant to an ongoing criminal investigation. 18 U.S.C. 
Sec. 3122(b)(2). Prior to Section 214, FISA analogously allowed the use 
of pen registers and trap and trace devices in foreign intelligence 
investigations, but the limitations imposed by FISA on such devices 
were much more restrictive than in the criminal context. Specifically, 
in contrast to the more generous ``relevance'' standard imposed in 
criminal cases, FISA limited the use of such devices to situations 
where the facilities in question have been or are about to be used in 
communication with ``an individual who is engaging or has engaged in 
international terrorism or clandestine intelligence activities'' or a 
``foreign power or an agent of a foreign power.'' 50 U.S.C. 
Sec. 1842(c)(3) (2000 ed.). Section 214 amended FISA's standards to 
permit appropriate use of such devices upon a certification that the 
device is likely to obtain (1) ``foreign intelligence information not 
concerning a United States person'' or (2) information that is 
``relevant to an ongoing investigation to protect against international 
terrorism or clandestine intelligence activities.'' See Pub. L. No. 
107-56, Sec. 214(a)(2), 115 Stat. at 286. In the latter context, 
Section 214 provides explicit protection for the First Amendment rights 
of United States persons. Id.
    Under Section 214, the ability to use pen registers and trap and 
trace devices under FISA is thus rendered more analogous in scope to 
its criminal counterpart. With respect to information concerning a 
United States person, Section 214 imposes the same standard of 
``relevance'' to an ongoing investigation, but it also specifies that 
the investigation must be one to protect against ``international 
terrorism'' or ``clandestine intelligence activities.'' Given that 18 
U.S.C. Sec. 3122 imposes a relevance standard in all ordinary criminal 
cases, it is hard to see why that standard is not sufficient in an 
intelligence investigation to protect against international terrorism 
and clandestine intelligence activities. That is, if relevance to an 
ongoing investigation is a sufficient basis for authorizing a pen 
register in, say, a fraud case or a drug case, why would it not be a 
sufficient basis for permitting the use of such a device to investigate 
international terrorism?

                            (7) SECTION 215

    Section 215 of the PATRIOT Act is another provision designed to 
ensure that a tool available to assist law enforcement in ordinary 
criminal investigations will have an appropriate counterpart in foreign 
intelligence investigations. For a very long time, grand juries have 
had very broad authority to obtain, by subpoena, records and other 
tangible items that may be needed during the course of a criminal 
investigation. Section 215 provides a narrow analog to such subpoenas 
in the context of certain intelligence investigations under FISA. 
Indeed, in many respects, Section 215 contains more protections than 
the rules governing grand jury subpoenas:
     A court order is required. 50 U.S.C. Sec. 1861(c).
     The court is not merely a rubber-stamp, because the 
statute explicitly recognizes the court's authority to ``modif[y]'' the 
requested order. Id., Sec. 1861(c)(1).
     The section has a narrow scope, and can be used in an 
investigation of a U.S. person only ``to protect against international 
terrorism or clandestine intelligence activities.'' Id., 
Sec. 1861(a)(1), (b)(2). It cannot be used to investigate domestic 
terrorism.
     The section provides explicit protection for First 
Amendment rights. Id., Sec. 1861(a)(1), (a)(2)(B).
    The draft bill would make the important clarification that the 
records may only be obtained if they are ``relevant'' to an 
investigation to protect against international terrorism or clandestine 
intelligence activities. See Section 211(a)(1)(A), (2). As I understand 
it, this amendment would not alter the current understanding of the 
provision, but would merely eliminate any doubt about whether the 
relevance standard is applicable here.
    Some have called for a standard that is higher than ``relevance'' 
to an investigation, and have instead suggested that a Section 215 
order should be granted only upon a showing of specific and articulable 
facts giving reason to believe that the person to whom the records 
pertain is a foreign power or an agent of a foreign power. This is much 
too narrow a standard. Suppose that FBI agents suspected that an as-
yet-unidentified individual foreign agent may have consulted certain 
specific technical titles on bomb-making or on nuclear power 
facilities, and they are informed that 5 persons have checked out those 
specific titles from public libraries in the relevant area and time 
period. Because it cannot be said that there are ``specific and 
articulable facts'' to suspect all 5 persons who checked out the books 
as all being foreign agents (the most that can be said is that one of 
them may be), application of such a high standard would seemingly 
require more evidence before any of the records could be obtained. Even 
if one were to agree that the general business records authority in 
Section 215 might benefit from greater reticulation in the contexts of 
particular types of records, this particular requirement seems too 
strict. Given the various safeguards already in place in Section 215, 
which adequately take account of the difference between investigations 
under FISA and ordinary criminal investigations, there is insufficient 
justification for a standard that is so much more demanding than the 
ordinary ``relevance'' standard that has long governed grand jury 
subpoenas in criminal investigations (some of which, like the Versace 
murder and Zodiac gunman investigations, did consult library records).
    Despite what some of its critics seem to imply, the narrowly 
drafted business records provision in Section 215 has no special focus 
on authorizing the obtaining of ``library records.'' On the contrary, 
because the provision specifically forbids the use of its authority to 
investigate U.S. persons ``solely upon the basis of activities 
protected by the first amendment to the Constitution,'' the provision 
explicitly does not authorize Federal agents to rummage through the 
library records of ordinary citizens. Because I think this language 
properly addresses a concern that has been raised about Section 215's 
sweep, I would recommend against retaining Section 211(a)(1)(B) of the 
draft legislation, which would appear to eliminate this clause of 
Section 215, i.e., the clause that provides specific protection for 
first amendment rights. That is, while I disagree with those who 
recommend imposing additional significant substantive limitations on 
Section 215, I would also recommend against eliminating the substantive 
safeguards that are currently contained in the provision.
    The draft legislation properly declines to create any sort of 
carve-out for libraries from the otherwise applicable scope of Section 
215: that would simply establish libraries and library computers as a 
``safe harbor'' for international terrorists. Indeed, over the years, 
grand juries have, on appropriate occasions, issued subpoenas for 
library records in connection with ordinary criminal investigations. In 
my view, a sensible privacy policy should allow an appropriately 
limited analog in the FISA context, and Section 215 is just that.
    Section 211(b) of the draft bill would make appropriate and 
necessary clarifying changes to Section 215 by specifying that the 
prohibition on nondisclosure of Section 215 orders is not intended to 
preclude the recipient of such an order from consulting with counsel or 
from requesting permission from the FBI to make other appropriate 
consultations (e.g., perhaps consulting an accountant with respect to 
an order requesting financial records).
    Section 211(c) properly establishes additional procedural 
protections by requiring the Attorney General to adopt ``minimization 
procedures governing the retention and dissemination'' of any items 
obtained under a Section 215 order.
    The Attorney General, in his testimony before this Committee on 
April 27, 2005, indicated that the Department of Justice agreed that a 
recipient of a Section 215 order could bring a challenge to such an 
order in court. Section 215 is silent as to where and how such a review 
might be carried out, as is the draft bill. I would recommend that 
specific provisions establishing the proper venue and procedures for 
such challenges be set forth in legislation.

                            (8) SECTION 218

    Despite being only one sentence long, Section 218 is one of the 
most important provisions in the PATRIOT Act. Prior to Section 218, an 
application for electronic surveillance under FISA had to contain a 
certification that ``the purpose'' of the surveillance ``is to obtain 
foreign intelligence information.'' 50 U.S.C. Sec. 1804(a)(7)(B) (2000 
ed.). Section 218 changed the phrase ``the purpose'' to ``a 
significance purpose,'' thus clarifying that the presence of other 
purposes (such as a possible criminal prosecution) did not preclude a 
FISA application. In doing so, Section 218 disapproved the ``primary 
purpose'' test that had been engrafted onto the pre-PATRIOT Act 
language. In re Sealed Case, 310 F.3d 717 (For. Intel. Surv. Ct. of 
Rev. 2002). This amendment, as many have noted, was important in 
tearing down the ``wall'' between intelligence personnel and law 
enforcement personnel. It should not be permitted to lapse. Moreover, 
allowing Section 218 to expire could potentially put the law in a state 
of confusion, because the Foreign Intelligence Surveillance Court of 
Review has cast doubt on whether the ``primary purpose'' test was a 
correct reading of the pre-PATRIOT Act statutory language. In re Sealed 
Case, supra. As a result, there is considerable room for argument over 
what exactly would be the effect of allowing this provision to lapse. 
The Congress should ensure clarity in this important area of the law by 
making Section 218 permanent. Section 101 of the draft legislation does 
that, and Section 203 also includes a further, appropriate amendment 
confirming the correctness of the Court of Review's conclusion that 
FISA Section 101(e)(1)'s reference to c, protect[ing]'' against 
international terrorism, etc., includes protecting by means of a 
criminal prosecution that disables the foreign agents involved.

                            (9) SECTION 225

    This section extends to the FISA statute the same immunity from 
civil liability that exists under Title III for wire or electronic 
communications service providers who assist in carrying out a court 
order or an emergency request for assistance under FISA. Pub. L. No. 
107-56, Sec. 225, 115 Stat. at 295-96. There is no good reason the 
immunity of a service provider for carrying out court orders for 
surveillance should depend upon whether the order was issued under 
Title III or under FISA. This provision should be made permanent.

             ADDITIONAL PROVISIONS OF THE DRAFT LEGISLATION

    The draft bill also contains detailed provisions providing for the 
use of ``administrative subpoenas'' in certain intelligence 
investigations, and codifying (with changes) the use of so-called 
``mail covers'' in such investigations. See Sections 213 and 212. The 
authorization of administrative subpoenas by Section 213 would appear 
to be an appropriate invocation of the principle that, if a tool is 
available to fight other crimes, it should be available to fight 
terrorism. Under 18 U.S.C. Sec. 3486(a), administrative subpoenas are 
currently authorized in the investigation of, inter alia, a ``Federal 
health care offense'' and ``a Federal offense involving the sexual 
exploitation or abuse of children.'' As I said before, if the judgment 
has already been made that this tool is appropriate for fighting these 
other crimes, and that any privacy interests at stake must yield to 
that effort, then surely the tool should also be available to fight 
terrorism, and should have an analog in the foreign intelligence 
context. The appropriate questions should, in my view, instead focus on 
the technical issues concerning how such authority would be granted in 
the FISA context. Thus, for example, to the extent that the procedures 
specified in Section 213 differs from those in 18 U.S.C. Sec. 3486, are 
those differences warranted by differential factors unique to the FISA 
context? Moreover, what should be the relation between the scope of the 
administrative subpoena authority in Section 213 of the draft bill and 
the business records provision in Section 215 of the PATRIOT Act? These 
are questions that I think warrant careful study and consideration. But 
I find it very hard to say that administrative subpoena authority is 
just fine when it comes to health care fraud, but is somehow a grave 
threat to liberty when it comes to fighting terrorism.
    The ``mail cover'' provisions in Section 212 relate solely to 
information on the exterior of mail that is not subject to any 
reasonable expectation of privacy, such as addressing information. The 
provision appears to be fairly narrowly drafted in terms of the scope 
of the authority it confers, the high-level approval it requires, and 
the requirement for ``minimization'' with respect to retention and 
dissemination of records obtained by a mail cover under this section. 
Notably, the provision only applies to requests made to the ``United 
States Postal Service.'' The apparent intent of the provision is to 
ensure appropriate cooperation from the Postal Service, while leaving 
the judgment whether to request the mail cover with the FBI. That 
formal allocation of authority seems sensible (since only the FBI will 
be privy to the full context of the intelligence investigation that 
leads to the request). The Committee should evaluate whether it is 
needed as a practical matter in light of the history on this issue 
between the FBI and the Postal Service.
    I would also like to make a brief comment about Section 202 of the 
draft bill. This section would amend FISA's definition of ``content'' 
so that it more closely conforms with the definition of ``content'' 
under the Title III wiretap statute, 18 U.S.C. Sec. 2510(8). This 
appears to be a sensible change. By defining ``any information 
concerning the identity of the parties to [a] communication'' as 
``contents,'' FISA's current definition could be misconstrued as 
casting doubt on whether mere addressing information, not derived from 
the substance of the communication, is ``contents.'' As the pen 
register statutes reflect, mere addressing information is not 
ordinarily considered to be ``contents,'' and there is no harm in 
eliminating a perceived potential ambiguity in FISA on this score.
    I would be pleased to answer any questions the Committee might have 
on this subject.

    STATEMENT OF DANIEL P. COLLINS, FORMER ASSOCIATE DEPUTY 
ATTORNEY GENERAL AND CHIEF PRIVACY OFFICER, U.S. DEPARTMENT OF 
                            JUSTICE

    Mr. Collins. Chairman Roberts, Vice Chairman Rockefeller, 
members of the Committee, I'm pleased to testify before you 
today on the important bill and the important subject that 
you've taken up.
    The title of the PATRIOT Act, we're used to calling it the 
PATRIOT Act but that stands for Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism. And part of this 
Committee's work is evaluating whether, in light of the 
opportunity since enactment of the PATRIOT Act to review those 
tools, whether they are still judged to be appropriate.
    The draft bill before the Committee would make nine of 
those tools permanent, and I agree with that assessment. Today, 
as in 2001, they remain appropriate tools in the war on terror. 
I've addressed all nine of those in my written statement. I'd 
like to focus on two of them and then make a few comments on 
administrative subpoenas.
    Section 206 on roving wiretaps has been a subject of 
significant controversy--section 206 of the PATRIOT Act. As 
I've set forth in my written statement, I think that it's based 
on a misunderstanding of the differences between FISA and Title 
III, because the primary criticism toward section 206 is that 
it does not incorporate all of the restrictions that are 
contained on roving wiretaps in Title III on the criminal side. 
But that is because Title III, on the other hand, waives 
certain other restrictions that are present in FISA.
    So you have actually a different set of restrictions on 
each side of the ledger. It's a different balance struck on 
each side. But I think in both cases it's an adequate balance 
that is struck, and that therefore that provision should be 
made permanent without modification.
    Section 215 of the PATRIOT Act is another provision that's 
designed to ensure that on the intelligence and national 
security side, there are counterparts in terms of investigative 
tools to the tools that are present on the criminal side. And 
that is the provision that allows for access with a court order 
to business records.
    And the current version of Section 215 contains a number of 
protections. A court order is required. The court is not merely 
a rubber stamp, because the statute explicitly recognizes the 
right of the court to modify the requested order. It has a 
narrow scope that is specified in the statute. It can't be used 
to investigate, for example, domestic terrorism. And it 
provides explicit protection for First Amendment rights, a 
provision that I think should be retained in that statute.
    The draft bill that's before the Committee would make this 
permanent, would make, I think, an important clarification that 
the relevance standard, which is actually not reflected on the 
text of the current provision, is meant to be in the provision 
and that is made explicit in the provision as modified by the 
bill before this Committee.
    Also, the bill properly establishes additional procedural 
protections by requiring the Attorney General to adopt 
minimization procedures governing the retention and 
dissemination of any items obtained under a Section 215 order.
    There's been reference this morning to the fact that the 
Attorney General, in his testimony before this Committee on 
April 27, indicated that judicial review should be available to 
challenge 215 orders. That is not a subject that is currently 
addressed in Section 215 and I would respectfully submit would 
be profitably addressed in draft legislation.
    The draft bill also contains a provision which has been the 
subject of much discussion concerning administrative subpoenas. 
With respect to that provision, my basic approach to that is 
that with respect to terrorism--which is essentially one of our 
most important priorities, is fighting terrorism--there should 
be something equivalent to a most-favored-nations clause.
    If we have a tool that is available for some other crime, 
for some lesser harm, and we have presumably already made the 
choice that privacy interests that are at stake with respect to 
that tool must yield in those other circumstances, then I think 
the burden is on those to say why that tool should not be 
extended to terrorism. It would seem that without more, it 
should be applied terrorism. And I think that is the basic 
logic behind the extension of the administrative subpoena here.
    The placement of the administrative subpoena authority on 
the FISA side does raise, I think, a number of questions that 
need to be addressed. First and foremost is, what is the 
relationship between that authority and the authority that 
exists within Section 215, because there's certainly a 
significant overlap between the business records authority, and 
indeed the standards are described similarly in the two 
devices.
    Senator Feinstein suggested that the administrative 
subpoena should apply only in emergency situations, and 
presumably would leave the Section 215 authority to be the 
authority that is invoked in the non-emergency situations. 
Another possibility would be, in crafting the regime of 
judicial review for Section 215, to make the standards more 
lenient--in other words, that the judicial review would be less 
searching on the Section 215 side than it might be on the 
administrative subpoena side if the Department went to the 
trouble of getting judicial review of the order before it was 
actually issued. There are a number of possibilities the 
Committee could consider in that regard.
    Mr. Kris has raised the issue of delegation, that if 
there's concern about whether it should be placed with the 
Director or particular officials within the Bureau, that it 
could be raised to the Attorney General and leave the Attorney 
General with flexibility to change the designation.
    There's also the issue of the court that should conduct the 
review. The current provision on administrative subpoenas here 
would give any district court in the United States the 
authority to hear the challenges. Another possibility would be 
to model the judicial review after, in a sense, the pen/trap 
provision that's in FISA, which allows the FISA court or, in 
that case, its magistrate judges, a list of magistrate judges 
publicly designated by the Chief Justice.
    You could have a similar model apply to the districts 
across the country so that we would know that you were 
selecting venues that would have the capacity to act quickly in 
terms of the facilities, et cetera, to handle something that 
would involve in-camera review of sensitive material.
    I would be pleased to answer any questions the committee 
may have.
    Chairman Roberts. We thank you very much for your 
testimony, Mr. Collins. Mr. Dempsey, you're next. And I would 
like to put a bug in your ears. I'm not asking for a rendition 
of Capital Gang or anything that's on television, but if each 
of you would have a comment on any of the others' comments in 
terms of a suggestion, why, we would be interested in that 
after Mr. Dempsey finishes his testimony.
    And so we will now ask Mr. Dempsey for his commentary, 
please.
    [The prepared statement of Mr. Dempsey follows:]

      Prepared Statement of James X. Dempsey, Executive Director, 
                   Center for Democracy & Technology*

    Chairman Roberts, Vice Chairman Rockefeller, Members of the 
Committee, thank you for the opportunity to testify this morning. I 
previously testified before the Committee on April 19, at which time I 
urged the Committee to preserve the PATRIOT Act powers but to adopt 
checks and balances to make them more effective and less subject to 
abuse. In particular, I stressed the role of prior judicial review 
based upon a factual showing and particularized suspicion. The draft 
bill before the Committee takes some small steps in the right 
direction, but overall the draft shifts radically in exactly the wrong 
direction.
---------------------------------------------------------------------------
    * The Center for Democracy and Technology is a non-profit, public 
interest organization dedicated to promoting civil liberties and 
democratic values for the new digital communications media. Among our 
priorities is preserving the balance between security and freedom after 
9/11. CDT coordinates the Digital Privacy and Security Working Group 
(DPSWG), a forum for computer, communications, and public interest 
organizations, companies and associations interested in information 
privacy and security issues.
---------------------------------------------------------------------------
    In particular, I will focus on the proposal for administrative 
subpoenas in national security investigations. This is a big deal. The 
first, threshold question of need has not been addressed. And contrary 
to what has been said by some, there is no precedent in existing law 
for the grant of administrative subpoena power to the FBI in national 
security cases. Given the unique nature of intelligence investigations, 
which call for greater not lower standards, we urge the Committee to 
reconsider and reject this proposal.
    At the outset, let me re-emphasize some basic points on which I 
hope there is widespread agreement:
     Terrorism poses a grave and imminent threat to our nation. 
There are people--almost certainly some in the United States--today 
planning additional terrorist attacks, perhaps involving biological, 
chemical or nuclear materials.
     The government must have strong investigative authorities 
to collect information to prevent terrorism. These authorities must 
include the ability to conduct electronic surveillance, carry out 
physical searches effectively, and obtain transactional records or 
business records pertaining to suspected terrorists.
     These authorities, however, must be guided by the Fourth 
Amendment, and subject to meaningful judicial controls as well as 
executive and legislative oversight and a measure of public 
transparency.

INTELLIGENCE INVESTIGATIONS ARE MORE DANGEROUS TO LIBERTY THAN CRIMINAL 
    INVESTIGATIONS--THEY ARE BROADER, CAN ENCOMPASS FIRST AMENDMENT 
 ACTIVITIES AND ARE MORE SECRETIVE AND LESS SUBJECT TO AFTER-THE-FACT 
     SCRUTINY--AND THEREFORE INTELLIGENCE POWERS REQUIRE STRONGER 
                        COMPENSATING PROTECTIONS

    Throughout the PATRIOT Act debate, and now in the context of 
administrative subpoenas, the government has argued that it should have 
the same powers subject to the same standards in intelligence 
investigations that it has in criminal investigations. As we will 
explain below, administrative subpoenas are not normally available in 
criminal investigations, but even if they were, there are strong 
reasons not to extend criminal justice norms (like ``relevance'') to 
intelligence investigations.
    Intelligence investigations are special, in ways that make them 
preferable to the government, but also in ways that make them more 
dangerous to liberty than criminal investigations. First, intelligence 
investigations are broader. They are not limited by the criminal code. 
They can investigate legal activity. In the case of foreign nationals 
in the United States, they can focus solely on First Amendment 
activities. Even in the case of U.S. persons, they can collect 
information about First Amendment activities. In this context, the 
concept of ``relevance'' has little meaning. Look at Section 215 and 
the proposed administrative subpoena authority. They refer to ``an 
investigation to protect against international terrorism.'' The 
standard does not say ``an investigation into international terrorism 
activities''--that would at least mean that there was some specific 
terrorism activity being investigated. Instead, it says ``an 
investigation to protect against international terrorism.'' Think about 
an investigation to ``protect against'' tax fraud. Or an investigation 
to ``protect against'' bank robbery. How broad would that be?\1\
---------------------------------------------------------------------------
    \1\ This point was articulated by Suzanne Spaulding in her May 10, 
2005 testimony before the Senate Judiciary Committee.
---------------------------------------------------------------------------
    Second, intelligence investigations are conducted in much greater 
secret than criminal cases, even perpetual secret. When a person 
receives a grand jury subpoena or an administrative subpoena in an 
administrative proceeding, normally he can publicly complain about it. 
In a criminal case, even the target is often notified while the 
investigation is underway. Most searches in criminal cases are carried 
out with simultaneous notice to the target. Even though wiretaps are 
conducted in secret, the target is notified afterwards. Notice is an 
important element of Fourth Amendment norms, but most searches and 
wiretaps in intelligence investigations are secret forever. Under the 
proposed administrative subpoena authority, the FBI can compel the 
recipient to perpetual secrecy.
    Third, the big show in a criminal investigation is the trial. A 
prosecutor knows that, at the end of the process, his actions will all 
come out in public. If he is overreaching, if he went on a fishing 
expedition, that will all be aired, and he will face public scrutiny 
and even ridicule. That's a powerful constraint. Similarly, an 
administrative agency like the SEC or the FTC must ultimately account 
in public for its actions, its successes and its failures. But most 
intelligence investigations never result in a trial or other public 
proceeding. The evidence is used clandestinely. Sometimes the desired 
result is the mere sense that the government is watching.
    Since intelligence investigations are broader, more secret and 
there is no after the fact scrutiny, protections must be built in at 
the beginning. That is where the PATRIOT Act fell short and where the 
proposal for administrative subpoenas falls short.

  THE DIGITAL REVOLUTION IS PLACING MORE AND MORE INFORMATION IN THE 
                         HANDS OF THIRD PARTIES

    Section 215 of the PATRIOT Act and to an even greater degree the 
administrative subpoena authority are of especially grave concern 
because they exploit trends in technology that threaten to almost 
eliminate privacy. More and more information about our lives is 
collected in daily transactions by those with whom we transact 
business. Grocery stores, other merchants, hotels, travel agents, 
insurance companies, and banks all collect computerized information 
about our actions. Credit cards, EZ passes, cell phones, and the 
Internet generate digital fingerprints giving a broad picture of our 
interests and associations. Congress has tried to keep pace, with laws 
on financial privacy and medical privacy, but the administrative 
subpoena provisions of the draft bill would wipe those protections 
away.
    Moreover, a storage revolution is sweeping the field of information 
and communications technology. ISPs, websites and other online service 
providers are offering very large quantities of online storage, for 
email, calendars, photographs and even voicemail. Increasingly, 
ordinary citizens are storing information not in their homes or even on 
portable devices but on networks, under the control of service 
providers who can be served with compulsory process and never have to 
tell the subscribers that their privacy has been invaded.

       THE THRESHOLD QUESTION--THERE HAS BEEN NO SHOWING OF NEED

    The 9/11 Commission concluded that the burden of proof for 
retaining--and equally so for adding--a particular governmental power 
should be on the executive to explain that the power actually 
materially enhances security. To show that a power is needed, the 
government must show that current powers are inadequate. With respect 
to administrative subpoenas, the government has not met that burden.
    As the Justice Department itself has noted, the rationale behind 
administrative subpoenas is that ``Without sufficient investigatory 
powers, including some authority to issue administrative subpoena 
requests, Federal governmental entities would be unable to fulfill 
their statutorily imposed responsibility to implement regulatory or 
fiscal policies.'' U.S. Department of Justice, Office of Legal Policy, 
``Report to Congress on the Use of Administrative Subpoena Authorities 
by Executive Branch Agencies and Entities, pursuant to Public Law 06-
544'' (2002) at p. 6. As the DOJ goes on to note, limiting this 
authority ``would leave administrative entities unable to execute their 
respective statutory authorities.'' Id at 7.
    Under current law, the FBI already has far-reaching and sufficient 
compulsory powers to obtain any relevant information when it is 
investigating terrorism, under both its criminal and intelligence 
authorities:
     Search Warrants. In any criminal investigation of 
international terrorism, the FBI can obtain a search warrant for 
documents or other materials if there is a judicial finding of probable 
cause that a crime is being planned. Search warrants can be issued not 
only to search a suspect's home, but also to obtain documents from any 
other third party if they constitute evidence of a crime.
     Grand Jury Subpoenas. The FBI also can use grand jury 
subpoenas in any criminal investigation of international terrorism to 
obtain any documents or other materials.
     FISA Orders and NSLs. In internatiional terrorism cases, 
the FBI has sweeping authority to obtain business records and any other 
tangible things under the Foreign Intelligence Surveillance Act, as 
amended by the PATRIOT Act. This authority exists not only in Section 
215, but also in the five National Security Letter authorities for 
those categories of records considered especially pertinent to 
intelligence investigations.
    The government has made no showing that these powers are 
insufficient. To the contrary, it has repeatedly praised the PATRIOT 
Act as providing the necessary tools to prevent terrorism and to 
prosecute a host of terrorism-related cases. Given these broad existing 
powers, and given the widespread public and Congressional concern that 
some of the existing PATRIOT Act powers are not subject to sufficient 
checks and balances, there is no justification for going even further 
down the path of unchecked authority.

   THERE IS NO PRECEDENT FOR GIVING THE FBI ADMINISTRATIVE SUBPOENA 
 POWER--WHAT WE DO WITH ``CROOKED DOCTORS'' HAS NO BEARING ON NATIONAL 
                        SECURITY INVESTIGATIONS

    Contrary to what has been said by some, there is no precedent for 
giving the FBI administrative subpoena power. The FBI has long sought, 
and Congress has long rejected granting it, the authority to issue its 
own orders compelling disclosure of records. This is an issue that goes 
back to the momentous debates around the ``FBI Charter'' in the late 
1970s and early 1980s, when administrative demand authority was one of 
the most contentious issues. More recently, in July 1996, after the 
Oklahoma City bombing, the Administration sought administrative 
subpoena authority and Congress rejected it. In 2001, in the original 
PATRIOT Act proposal, the Administration again sought administrative 
subpoena power and again Congress rejected it.
    Congress has repeatedly denied the FBI the power to write its own 
compulsory orders for good reason. An administrative subpoena is an 
extraordinary device. In this case, it is essentially a piece of paper 
signed by an FBI official that requires any recipient to disclose any 
documents or any other materials. (We note that the proposed 
administrative subpoena in the Committee draft would not convey the 
power to compel a person to give testimony to the FBI. This, at least, 
is an important line to draw.)
    In a 2002 study, the Department of Justice identified approximately 
335 administrative subpoena authorities existing in the law.\2\ Of 
those, 330 are for administrative agencies and not really relevant 
here, since, to say the least, the FBI's intelligence division is not 
an administrative agency. The 330 are in the context of administrative, 
regulatory programs--such as OSHA and the SEC. They are subject to 
various checks and balances. They often issue directly to the subjects 
of investigations. They are generally not subject to secrecy rules. 
Only 5 are for use primarily in criminal investigations and even those 
have histories and limitations that make them unsuitable as analogies 
for what the FBI is seeking:
---------------------------------------------------------------------------
    \2\ U.S. Department of Justice, Office of Legal Policy, ``Report to 
Congress on the Use of Administrative Subpoena Authorities by Executive 
Branch Agencies and Entities, pursuant to Public Law 06-544'' (2002). 
See also Charles Doyle, Congressional Research Service, 
``Administrative Subpoenas and National Security Letters in Criminal 
And Foreign Intelligence Investigations: Background and Proposed 
Adjustments'' (April 15, 2005).
---------------------------------------------------------------------------
     21 USC 876--Controlled Substances Act. When the FBI in 
1982 was given joint jurisdiction with the DEA over drug enforcement, 
it got for drug cases the administrative subpoena authority that went 
with the enforcement of the regulatory system for controlled 
substances. The subpoenas are served, for example, on pharmacies and 
doctors suspected of engaging in the diversion of controlled substances 
to the black market. According to CRS, ``The earliest of the three 
Federal statutes used extensively for criminal investigative purposes 
appeared with little fanfare as part of the 1970 Controlled Substances 
Act. . . . [T]he legislative history of section 876 emphasizes the 
value of the subpoena power for administrative purposes--its utility in 
assigning and reassigning substances to the acct's various schedules 
and in regulating the activities of physicians, pharmacists and the 
pharmaceutical industry. . . .''
     5 U.S.C. App. (III)--Inspectors General Act. The Inspector 
General system is unique, because it is largely focused inward, toward 
the conduct of Federal agencies and programs. The Inspectors General 
seek to achieve systemic reform, and their powers are quasi-regulatory. 
They oversee the administration of Federal procurements, the use of 
Federal resources and the administration of Federal procurements.
     U.S.C. 3486(a)(1)(A)(i)(I)--In a little-noticed provision 
in the Health Insurance Portability and Accountability Act (HIPAA), the 
massive medical insurance law of 1996, the Department of Justice was 
given administrative subpoena authority for investigation of Medicare 
and Medicaid fraud. Notably, the Attorney General has not delegated his 
administrative subpoena power to the FBI in health care fraud 
investigations. The medical care sector is highly regulated. Medicare 
and Medicaid involve Federal tax dollars. Generally, in these cases, 
the government serves the subpoena on the entity it is investigating, 
not some third party. Thus, when the Justice Department demands records 
from a hospital or insurance company as part of a health care fraud 
investigation, it is investigating that hospital or insurance company--
not the customers of those entities. That creates some built-in checks 
on the administrative subpoena process. Indeed, the HIPAA rules for 
administrative subpoenas require that individuals' health information 
contained in those records can be depersonalized whenever possible.
     18 U.S.C. 3486(a)(1)(A)(i)(II)--The administrative 
subpoena provision for child abuse cases was also adopted without much 
debate and is used mainly to obtain subscriber account information from 
Internet Service Providers. See 18 U.S.C. 3486(a)(1)(C).
     18 U.S.C. 3486(a)(1)(A)(ii)--The Secret Service has 
authority to issue administrative subpoenas, but only in cases 
involving an ``imminent'' threat to one of its protectees. According to 
the Department of Justice, ``Where a finding of ``imminence'' is not 
appropriate, the Secret Service does not seek an administrative 
subpoena but proceeds, instead, through the process of procuring a 
grand jury subpoena through a local United States Attorney's office.'' 
DOJ report, p. 39. The provision was adopted in 2000, but the authority 
was not delegated to the Secret Service until November 2001, and in 
calendar 2001, neither the Secretary of the Treasury nor the Secret 
Service issued a single administrative subpoena.
    It is apparent from the foregoing that the FBI's administrative 
subpoena authority is limited to only two situations, drug matters and 
child abuse cases. The former is largely related to the administration 
of a regulatory scheme and is often subject to the accountability that 
comes from serving the subpoena on the target (a drug company or 
pharmacy), rather than secretly on a third party. By contrast, the 
administrative subpoena proposal in the Committee draft is designed to 
allow the FBI to obtain information, in secret, from entities that are 
not under investigation themselves but have customers whose records the 
FBI is seeking. The person under investigation never knows that the FBI 
has sought or obtained those records. With no other external check like 
a court or grand jury, the FBI would have almost limitless power to 
collect sensitive personal information.

 JUDICIAL CHALLENGE IS A LIMITED PROTECTION, INSUFFICIENT TO OVERCOME 
                      CONCERNS WITH THE AUTHORITY

    The Committee bill would allow the recipient of an administrative 
subpoena to challenge it, and consideration is being given to providing 
some form of judicial challenge for Section 215 orders. While judicial 
challenge is appropriate, it does not resolve our concerns, for two 
reasons:
    First, few recipients of Section 215 orders or administrative 
sybpoenas would be likely to challenge them. These disclosure orders 
are not served on individuals. They are served on businesses--airlines, 
hotel chains, and other third parties. These businesses are provided 
immunity for complying. They never have to tell their customers that 
there records have been soought and the customers never receive notice. 
So why would such a business go to the expense of challenging a Section 
215 order or administrative subpoena? A business has little incentive 
to spend its money challenging a subpoena for records that pertain to 
someone else. And since the business is prohibited from notifying its 
customer of the existence of the subpoena, the customer has no right to 
challenge the subpoena.
    Second, the rules for administrative subpoenas require the courts 
to be extremely deferential to executive branch agencies. Courts must 
defer to an agency's determination of relevancy ``so long as it is not 
`obviously wrong.' '' United States v. Hunton & Williams, 952 F. 2d. 
843, 845 (3rd Cir. 1995). The Third Circuit noted that the 
``reasonableness'' inquiry in such cases is even more deferential than 
the Administrative Procedure Act's ``arbitrary and capricious'' 
standard for review of agency action. Id. As the Justice Department 
admits, ``the burden of proof imposed on a challenger to an 
administrative subpoena is steep.'' DOJ Report. For example, a 
challenge based on bad faith will be successful only upon a showing of 
``institutionalized bad faith, not mere bad faith on the part of the 
official issuing the subpoena.'' United States v. LaSalle Nat'l Bank, 
437 U.S. 298, 316 (1978).

   INTELLIGENCE INVESTIGATIONS POSE UNIQUE RISKS AND REQUIRE SPECIAL 
                              PROTECTIONS

    The argument is made, if over 300 agencies have administrative 
subpoena power, why shouldn't the FBI in intelligence investogations. 
The answer is that no doctor will be deatined and deported in a secret 
proceeding following use of the HIPAA administrative subpoena power, no 
pharmacist will be held in a military prison as an illegal enemy 
combatant based on information provided under the Controlled Substances 
Act, no subject of an administrative subpoena will be sent to Egypt via 
``rendition'' in a child abuse investigation. The governemnt has 
claimed an extraordinarily broad range of powers in intelligence 
investigation, especially against foreign nationals but also against 
citizens. Given the secrecy with which these investigations are 
conducted, their breadth, and the lack of after-the-fact checks and 
balances, protections of liberty must come up front, in the form of 
meaningful judicial review based on a factual premise and 
particularized suspicion.

                              MAIL COVERS

    We will say only a few words on the provisions related to mail 
covers. First, we know of no justification for this provision. We 
suspect that the problems the FBI has encountered with the Postal 
Service are minor and could be resolved by negotiation, perhaps 
mediated by this Committee.
    Second, though, we fear that the proposal is not merely a 
codification of existing practice but rather than shift of power from 
the Postal Service to the FBI. We note that the Postal Services 
regulations start with an affirmation of the policy that the ``U.S. 
Postal Service maintains rigid control and supervision with respect to 
the use of mail covers.'' 39 CFR 233.3. We are concerned that the FBI 
may not be as careful.
    Finally, we note a fundamental question: Is the concept of a mail 
cover, whether administered by the Postal Service or the FBI, outdated? 
Congress has moved to bring a variety of intelligence processes under 
the supervision of the FISA court. Section 215 applies to business 
records, and FISA also requires court approval for use of pen registers 
and trap and trace devices. The mail cover is a little like a 
transactional record, although it requires effort to create it. The 
mail cover is also comparable to a pen register or trap and trace 
device: A mail cover collects to and from information on surface mail, 
a pen register collects to and from information on a telephone call or 
email. The records provision of FISA and the pen/trap are both subject 
to judicial approval. If the Committee really found a need to codify 
mail cover authorities, then it should consider making all 
transactional record provisions subject to the same standard: judicial 
approval, based on a factual showing and particularity.

                               CONCLUSION

    Twenty-five public interest organizations from across the political 
spectrum have written to oppose the administrative subpoena provision. 
Their letter states:

          At the very time when there seems to be an emerging consensus 
        around adding meaningful checks and balances to PATRIOT Act 
        powers to protect against government abuse, ``administrative 
        subpoenas'' would represent a new, unchecked power. At the very 
        time when the Attorney General is supporting amendments to 
        strengthen judicial oversight of orders under Section 215 of 
        the PATRIOT Act, authorization of ``administrative subpoenas'' 
        would move radically in the opposite direction.
          Indeed, Attorney General Gonzales has repeatedly emphasized 
        that the prior judicial approval required for Section 215 
        orders is a safeguard against abuse. The Attorney General's 
        assurances would be meaningless, however, if the FBI could 
        issue disclosure orders with no judicial approval.

    The Center for Democracy and Technology looks forward to working 
with you to strike the right balance, to ensure that the government has 
the tools it needs to prevent terrorism, and that those tools are 
subject to appropriate checks and balances.

 STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR 
                    DEMOCRACY AND TECHNOLOGY

    Mr. Dempsey. Chairman Roberts, Vice Chairman Rockefeller, 
good morning. Thank you for the opportunity to testify at this 
hearing.
    The premise of my testimony, Mr. Chairman, is that 
terrorism poses a grave and urgent threat to our Nation and 
that the government must have strong investigative powers to 
collect information to prevent terrorism, and that these 
authorities must be subject to clear standards and meaningful 
judicial controls, as well as executive and legislative 
oversight.
    Although we have serious concerns about the mail-cover 
proposal--and I'll be happy to address some of the other 
questions that Vice Chairman Rockefeller raised--I will focus 
on the proposal for administrative subpoenas.
    What the bill proposes is a very big step. The first 
threshold question of need has not been addressed adequately. 
And, contrary to what has been said, administrative subpoena 
power is not generally available in criminal cases. Even if it 
were, the argument that the government should have the same 
powers, subject to the same standards, in intelligence 
investigations that it has in other investigations is off 
track.
    The fact is, the government is seeking the tools of 
administrative or criminal investigations without the checks 
and balances. Intelligence investigations are different from 
criminal investigations in ways that make them preferable to 
the government but also in ways that make them more dangerous 
to liberty.
    First, intelligence investigations are broader. They're not 
limited by the criminal code. They can investigate legal 
activity. Even in the case of U.S. persons, they can collect 
information about First Amendment activities.
    Terrorism is uniquely ideological. By definition, it 
involves political views. In this context, the concept of 
relevance has little meaning.
    Second, intelligence investigations are conducted in much 
greater secrecy than criminal or administrative cases, even 
perpetual secrecy. When a person receives a grand jury subpoena 
or an administrative subpoena, often he can complain about it 
at the time, and any secrecy imposed is limited. Intelligence 
investigations, of course, are generally kept secret forever.
    Third, the big show in a criminal investigation is the 
trial. The prosecutor knows that at the end of the process, his 
actions will all come out in public. If he was on a fishing 
expedition, that will come out. He could be subject to 
ridicule. That's a powerful constraint.
    Now, if the government really wanted the same powers in 
intelligence investigations that they have in criminal 
investigations, I would be inclined to say, ``Fine, let them 
issue subpoenas publicly without secrecy. Let them inform the 
target. Let them be focused and limited only to investigating 
crimes.'' But that's not what intelligence investigations are 
about. And that's why they need special protections.
    Now, on the threshold question, there's been no showing of 
need. The government has failed to show need, with the one 
exception of speed--and I'll address the question of urgency or 
emergencies. Other than that, they have not shown that their 
current counter-
terrorism powers are inadequate.
    Senator, why do 330 administrative agencies have 
administrative subpoena power? Because otherwise they could not 
do their jobs. They have no grand jury power. They have no 
National Security Letter authority. They have no orders under 
Section 215 of the PATRIOT Act and FISA. The justification for 
the administrative subpoenas is that those are non-criminal 
agencies.
    In the absence of a showing of need, one argument for 
administrative subpoenas has been that, well, everybody else 
has it. But, if you look at the record closely, you will see 
that there is no precedent for granting the FBI administrative 
subpoena power in national security cases. This is an issue 
that goes back decades. I always tell people I have in my files 
on this mimeographed documents. Back in the momentous debate 
over the FBI charter in the seventies and eighties, the FBI 
sought administrative subpoena power, Congress declined to give 
it.
    More recently, in 1996 after the Oklahoma City bombing and 
the African embassy bombings, the administration sought 
administrative subpoena power and Congress rejected it. In 
2001, in the original PATRIOT Act proposal, the administration 
sought administrative subpoena power, and the Congress rejected 
it.
    In 2002, the Justice Department completed a study in which 
they identified approximately 335 administrative subpoena 
authorities existing in law. Of those, 330 are for 
administrative agencies and not really relevant here since, to 
say the least, the FBI national security division is not an 
administrative agency. Only five of the administrative subpoena 
powers on the books are primarily used in criminal 
investigations and, of those, only two are available to the 
FBI.
    Everybody talks about crooked doctors. The administrative 
subpoena power for health care investigations grows out of a 
regulatory scheme for Medicare and Medicaid and the 
administration of those systems. And as far as I know, that 
administrative subpoena power resides in the Justice Department 
and has not been delegated by the Attorney General to the FBI. 
If anybody has any information to the contrary, I'd welcome it, 
but, as far as I know, that is not an FBI power for health care 
investigations.
    Second, is Inspectors General but they largely look inward. 
They administer government programs. There's no inspector 
general for the FBI, and there's no inspector general 
administrative subpoena power at the FBI. The Secret Service 
has administrative subpoenas, but only for imminent threats to 
protectees. Otherwise, the Secret Service has to go the grand 
jury route as well.
    So, we come down to two--one for drugs, which also grows 
out of an administrative process; the whole scheduling of 
prescription drugs and narcotics, and the regulation of 
pharmacies to make sure drugs aren't diverted into the illegal 
market. And then one for child abuse cases, which is largely 
limited, if you look at the statute, to obtaining customer 
identifying information in the case of communications, which 
for national security investigations, the FBI already has with 
the National Security Letter.
    So the issue seems to boil down to the question of speed 
and, if so, then the solution is clear. And I think Senator 
Feinstein has offered it--an emergency exception to Section 
215, the business records provision. Title III, the criminal 
wiretap law, the criminal pen register law, FISA for electronic 
surveillance, FISA for physical searches, all have emergency 
exceptions.
    You have to go get a court order, generally, to do a 
wiretap or to get a pen register, but there's an emergency 
exception. Section 215 could have--maybe should have--an 
emergency exception, not as a matter of course, not as a 
general rule, but in those situations where speed is of the 
issue.
    Intelligence investigations pose unique risks, and they 
require special protections. No doctor will be detained and 
deported in secret proceedings based upon an administrative 
subpoena issued in a healthcare investigation. No subject of an 
administrative subpoena will be sent to Egypt via rendition in 
a child abuse case. The Inspectors General are not worried 
about the use of political demonstrations as a cover for 
terrorism, but the FBI is.
    The government has claimed an extraordinarily wide range of 
powers in intelligence investigations. Given the secrecy with 
which these investigations are conducted, their breadth, and 
the fact that most of them never come to light, that the 
subjects never know that they were being conducted, protections 
of liberty must come up front in the form of meaningful 
judicial review based on a factual premise and particularized 
suspicion.
    I'll be happy to discuss mail covers and some of the other 
issues posed by both the Committee draft bill as well as the 
PATRIOT Act.
    Thank you, Mr. Chairman. I look forward to your questions.
    Chairman Roberts. We thank you Mr. Dempsey.
    As I indicated, if any member of the panel has any comment 
to make at this particular time, hearing the summation of the 
total panel, now would be the time to offer any commentary. And 
we already have a hand raised with Mr. Onek.
    Mr. Onek. I'd like to take off on two comments by Mr. 
Collins. The first is when he talked about the most-favored 
nation rules. As I think my testimony and Mr. Dempsey's 
testimony suggest, we'll live by that rule, because there is no 
comparable subpoena power anywhere else. There is no subpoena 
power that's as broad and there is no subpoena power that's as 
secret. So, the most-favored nation rule is fine because 
there's nothing equivalent, and what is being suggested here is 
absolutely new.
    Second, Mr. Collins was discussing Section 215, and 
definitely, and he said the court order is not a rubber stamp. 
And this is interesting because the administration, throughout 
the debate on the PATRIOT Act, as been going around the country 
saying how wonderful Section 215 is. Now, we tend to disagree, 
although we like the fact that Section 215 does have a court 
order, but now, after going around the country and saying how 
wonderful Section 215 is, they're eviscerating it. Section 215 
will become unnecessary, because the FBI will simply be able to 
use administrative subpoenas.
    So it's just inconsistent. You can't go around defending 
Section 215 and saying it's good because the judge is not a 
rubber stamp and the judge can do this and the judge can do 
that, and he can modify the order, et cetera, et cetera, and 
then propose something which just wipes Section 215 off the 
map. It's just totally inconsistent.
    Chairman Roberts. Mr. Collins, I presume you would like to 
say something.
    Mr. Collins. Yes I would, Mr. Chairman.
    I think it is not accurate to say that there's no 
precedent. I think Mr. Dempsey has incorrectly described the 
scope of the administrative subpoena authority, for example, in 
child porn cases. He indicated that it was limited to the NSL-
type information that can be requested under 2709.
    If you look at 18 USC 3486, which describes the scope of 
the administrative subpoena authority in child porn cases, 
there is a specific provision that governs subpoenas in those 
cases to providers of electronic communications. That's in 
subparagraph C, but in the paragraph before, it says, except as 
provided in subparagraph C--so we treat electronic service 
providers differently--a subpoena issued under subparagraph A 
may require ``the production of any records or other things 
relevant to the investigation'' and ``testimony by the 
custodian of the things required to be produced concerning the 
production and authenticity of those things.''
    It is as broad; it is indeed the model, so far as I can 
tell, for the draft bill that is before the Committee, where 
relevance is the operative standard. Indeed the draft bill 
before the Committee is in one respect narrower in that it does 
not authorize the actual taking of physical testimony. It does 
not require anyone to actually show up, but merely requires 
production of the documents and a certification. So in one 
respect, actually, it's even narrower than the child porn model 
that's already in existing law on the criminal side.
    Chairman Roberts. Mr. Dempsey, do you have any response to 
that?
    Mr. Dempsey. All I'll say, Mr. Chairman, is that the most 
important evidence in a child porn investigation is what's 
stored on the computer, or what's with the service provider.
    Chairman Roberts. Or the child.
    Mr. Dempsey. Well, you're trying to find the child, which 
means you're trying to find the person who might have him, and 
the administrative subpoena power is limited to subscriber 
identifying information.
    Chairman Roberts. The distinguished vice chairman has a 
question.
    Vice Chairman Rockefeller. What interests me about all of 
this--neither the Chairman nor myself are lawyers, which is----
    Chairman Roberts. A good thing.
    [Laughter.]
    Vice Chairman Rockefeller. Which is a good thing. But it 
also causes us to look at the way people who are lawyers, 
whether they're from the FBI or formerly associated with other 
administrations, look at things. And it occurs to me that 
people get very hung up on precedents or the possibility of 
something going wrong and that somebody's rights might get 
violated.
    I think we look at that, and without being conclusive in 
our thinking, as I indicated in my opening statement, this is 
kind of a new era. Now, we put into place the PATRIOT Act 
shortly after 9/11. There were a lot of new things in that, and 
some of them have--I would say for the most part, I have been 
impressed at how little criticism it has received except in 
some quarters, and there it's very, very hard, hard shell.
    What is wrong in taking ideas, like an administrative 
procedures approach--subpoenas approach--and not making the 
conclusion that the government will set out to violate rights, 
but understanding that in a new world--and when I say that, I 
say that with the fullest, deepest concern about the future of 
our country--and homeland security is not only the great weak 
link, but homeland security also affects this conversation. So, 
it's a form of homeland security, security of the American 
people, also the rights of the American people.
    What is wrong in taking something which could do good and 
which could very well pick up that person at the hotel more 
quickly that the DOJ witness referred to, and saying, as I 
think you did Mr. Kris--you just nodded, so I just picked on 
you--that you go with that.
    You worry about it, but you don't make it permanent. You do 
what we did in fact with the original PATRIOT Act, which is to 
say we are introducing new concepts here, because 9/11 was 
extraordinary, and by the way, the situation in Iraq and across 
the world, in my judgment, generally speaking and not of 
interest to this panel, is that the world is getting worse 
quickly and that there will be results from that, and that you 
go with something with which you can nail down somebody who 
would do substantial damage to the country through a dirty bomb 
or something of that sort, but you don't let it be permanent. 
You say, let's come back and look at it in 4 years, just as we 
have done on the original parts of the PATRIOT Act. What is 
wrong with that?
    Mr. Onek. Senator, I was originally skeptical--I have to 
admit--of the sunsets, but in retrospect they were brilliant. 
They have worked. I think I cited to this Committee--but if I 
didn't, I think it's highly relevant--that the FBI's own 
internal memos on the PATRIOT Act talk about the fact that the 
sunsets are there, that these authorities will be subject to 
scrutiny, and therefore the FBI general counsel's office 
advised the field, be careful how you use these authorities 
because you're going to be subject to that sunset scrutiny.
    Now, if we remove the sunsets entirely, where do the 
countervailing checks and balances come from? I would suggest 
that they should come from meaningful judicial review before 
the fact in all but emergency cases. I think the after-the-fact 
review is limited, as Ms. Caproni recognized. But if we remove 
the sunsets entirely, such as on Lone Wolf, which hasn't even 
been in effect for 6 months now, and on some of these other 
provisions that we may not be sure of, then where does the 
constraint come from?
    Chairman Roberts. If I might, I think some of that review 
comes from the Congress. As Chairman of the Committee, and as 
Vice Chairman of the Committee, I know that both of us feel 
very strongly, as do all members of the Committee, if it were a 
sunset of 4 years that means that we would have reviewed it 
eight times if it's on the 6-month basis; if it were more 
frequent than that, that would be the case.
    And let me assure everyone here that while much of this is 
closed because of the classified nature of the operations, we 
do take this very, very seriously. I don't mean that you 
implied anything otherwise, but I did want to point out that 
this doesn't happen in a vacuum, that we do take it very 
seriously, we do review it very seriously, and I interrupted 
somebody.
    Yes, Mr. Onek.
    Mr. Onek. Senator, we are in a new world, but as we just 
heard from the FBI spokesperson, all they've said is there may 
be emergency situations. So if that's the case, then I don't 
see why the Committee should do more than create some sort of 
new emergency provision. The ideal one, from our standpoint, 
would be a new emergency provision under FISA, just as you 
already have under FISA for searches and for wiretaps. Why do 
they need the total package--administrative subpoenas for 
everything when the only reason they really cite to is an 
emergency.
    So, give them that, and if they feel somehow that that's 
not enough, or the emergency provision that the Congress writes 
is inadequate, they, of course, can come back and tell us. But 
they have not given any justification here or anywhere else for 
the broad sweeping power that they ask for.
    The 9/11 Commission, which was certainly concerned with 
security, as are we all, said when the government asks for a 
new authority, it has to justify why it needs it. And the most 
we have heard here today is that there may be some emergency 
situations like the hotel situation. Fine, let's deal with that 
situation, but they're going way, way beyond it. They're 
asking--remember, what they are asking for is the ability to 
circumvent Section 215 altogether.
    The Congress spent a lot of time on that provision in the 
PATRIOT Act. But the proposed legislation will do away with it. 
Why would anybody ever have to use Section 215 for anything, 
whether it's a library record, a medical record, if they can 
just issue a subpoena?
    You're throwing away Section 215 of the PATRIOT Act. Why? 
The witness was right here. The most she could say was, ``Gee, 
we sometimes have emergencies.'' I don't want to make light of 
that because obviously one emergency can obviously mean saving 
thousands of lives, so let's have an emergency exception. But 
why have this general, sweeping legislation way beyond anything 
that the government has ever seen before?
    Don't kid yourself. Mr. Collins says, ``Gee, there's broad 
authority under child porn.'' Well, yes, but it's about child 
porn only. There's only a narrow set of records you can get. 
The FBI, when it's investigating foreign intelligence, can 
potentially get every record about everything. And, of course, 
there's secrecy here that doesn't exist in these other 
situations. Why do you want to go down that road? It doesn't 
make any sense. What makes sense, if there is any emergency 
need, is an emergency exception, and as Jim Dempsey has pointed 
out, there are several models. There are emergency exceptions 
in Title III and in FISA, and there may be other models you can 
use. Sit down and work that out.
    But there's no justification for something beyond an 
emergency provision. I just don't see it.
    Vice Chairman Rockefeller. I hear what you're saying, all 
of you, and I will need to decide what makes sense to me. Thank 
you.
    Chairman Roberts. Mr. Kris, I think you have something to 
say.
    Mr. Kris. Yes, I guess I just wanted to sort of follow up. 
I was struck in listening to the testimony that both Mr. 
Dempsey and Mr. Onek both favor ex-ante judicial review over 
ex-post in a motion to quash.
    And I don't speak for the government any longer, but if I 
were the government, I would happily trade motions to quash, 
particularly motions to quash filed in the Foreign Intelligence 
Surveillance Court, in exchange for a requirement for ex-ante 
judicial review before a magistrate, particularly if we want to 
spread the authority out into the field with an emergency 
exception.
    I don't know if DOJ would make that trade, but once we get 
into the horse trading part of legislative deliberations it 
seems to be that that's a good bargain for the government, and 
I'm interested in the fact that the sort of civil libertarians 
are more focused on and think there is more value in ex-ante 
than ex-post judicial review.
    Chairman Roberts. Yes, Mr. Collins.
    Mr. Collins. Let me make one brief comment. The existing 
HIPAA and child porn administrative subpoena provision doesn't 
have a sunset and isn't limited to emergencies. If it were a 
choice between those two, I would probably lean in favor of a 
sunset over an emergency, because at least the sunset allows 
you to see it in operation and then make the informed choice at 
the end in light of the data actually received.
    Because at that point you may have the same reaction that 
Mr. Dempsey had to the child porn, which is that, well, that 
hasn't turned out to be a problem because they actually look 
only at a narrow set of records. You could make that judgment 
rather than speculate about it.
    Mr. Dempsey. Why not both? Why not emergency only and 
sunset? A sunset would certainly be better than no sunset, but 
when there's no justification for going beyond emergency, I 
think it would be extraordinary for this Committee to do that, 
truly extraordinary, sunset or not.
    Chairman Roberts. I'm just having a little trouble 
subscribing to the notion that if you have something that would 
be an infrequent use of the constitutional investigative tool, 
that that means it should not be provided. Nor do I think, at 
least at this juncture, that we shouldn't provide or extend 
authority because another tool may be used less.
    I don't know. Maybe it's because every week in this place, 
in the hallowed halls of Congress, we find ourselves in the 
park or someplace, the train station, some other area allegedly 
that is safe, and I think most people are getting a little 
tired of it, and I know my staff is and I know their parents 
are back in Kansas.
    Maybe that's not analogous to the statements that have been 
made, but it just seems to me that we need more tools, not 
less, when it comes to terrorism and espionage, and by saying 
that, don't misunderstand me. I appreciate all of your 
suggestions, more especially in regards to privacy and civil 
rights.
    Mr. Dempsey, I was a bit struck, although it's not being 
fair because I was in the back and I heard you--I wasn't here 
but I was here; I was sort of in-camera, so to speak. But I 
think you asserted that the concept of relevance has no meaning 
in a terrorism investigation. What does that mean?
    Mr. Dempsey. Well, Senator, look at Section 215 of the 
PATRIOT Act, the business records provision, or Section 214. 
They talk about investigations ``to protect against'' 
international terrorism--not investigations of international 
terrorism, not investigations of terrorist activities, but 
investigations ``to protect against'' international terrorism.
    Think about an investigation to protect against tax fraud 
or an investigation to protect against bank robbery. How broad 
would that be? In the terrorism area, the intelligence area, 
the standard is foreign power and agent of a foreign power, 
which applies to organizations that engage in legal as well as 
illegal activity, and the scope of those investigations can 
encompass legal activity. In the case of non-U.S. persons, 
those investigations can be predicated solely on the basis of 
legal activity.
    So, in an investigation to protect against international 
terrorism, I think the agent may think he knows what he's 
doing, but I think there should be some factual premise for 
that. The reason I have a problem with Section 215 is that it 
involves a judge, but the government comes in and says this 
information is relevant to an investigation to protect against 
international terrorism. They don't have to say which 
investigation, they don't have to say who they are looking for, 
they don't have to provide any factual evidence.
    And the statute says the judge ``shall'' issue the order, 
as requested or modified. He can't even ask, tell me where this 
is going, why do you need these particular records? I agree 
with you entirely, Mr. Chairman, and with the Vice Chairman as 
well, the government needs access to information to prevent 
terrorism. But we know people under pressure--and absolutely 
the FBI and the other homeland security and intelligence 
agencies are under pressure--people under pressure cut corners. 
They do the easy thing rather than the hard thing. They go off 
on false tangents.
    I don't think that it's incompatible with our national 
security to have checks and balances. I don't think that we're 
only talking here about privacy or civil liberties, although 
definitely we are. I think we're also talking about guidance, 
focus, effectiveness, ensuring that investigations are going 
somewhere, because the threats are pouring in every day, as you 
suggested--fleeing the Capitol here in response to what turned 
out to be in two cases false alarms.
    There are a lot of false alarms out there and the agencies 
are drowning in information. They need more focus, not less. 
They need more standards and guidelines, not fewer. Sure, give 
them the tools, but make sure those tools are subject to 
controls.
    And this Committee takes very seriously its oversight role, 
but given all the rest that this Committee has to deal with and 
that the members of this Committee have to deal with, it's very 
hard to look at those individual FISA applications. I don't 
know, I would hesitate to wonder how many people here have 
actually read a pen register/trap and trace FISA application. 
There are thousands of them. There's a thousand FISA orders.
    So, Committee is important. You know, Germany has a purely 
parliamentary approach to the approval of national security 
wiretaps. But that's not the route we've chosen to go here. 
We've chosen to combine judicial oversight. The U.K. has, of 
course, just ministerial, AG-type approval, but we've chosen to 
go with both judicial approval and with legislative and 
executive oversight based upon our system of checks and 
balances. And I think that should apply throughout, including 
to the mail covers.
    Chairman Roberts. I think I've opened up Pandora's Box 
here.
    Mr. Kris.
    Mr. Kris. Let me just make a very brief and pretty narrow 
technical response to that. It's true that under section 1861 
of FISA you can get records and tangible things if you certify 
that they're sought for an investigation against terrorism.
    What I'm about to say, I don't know if it will make people 
feel better or worse, but if you compare that to the standards 
that govern a routine criminal grand jury investigation, I 
don't think they're very different. The Supreme Court has held 
in a case called The United States against R. Enterprises that 
a grand jury can issue a subpoena, which means effectively, 
that a grand jury, through an Assistant U.S. Attorney, can 
issue a subpoena to investigate even rank hearsay and gossip 
suggesting the possibility of a crime or even just to satisfy 
itself that no crime is being committed at all.
    And the standards for trying to quash a grand jury subpoena 
are extremely difficult to meet. So, again, I don't know if 
that makes you feel better or worse, but I do think that 
standard in FISA is not all that different conceptually from 
the standard that governs a grand jury investigation. Those 
standards have to be low, because the acquisition of records 
occurs very early in an investigation when the government 
doesn't have all of the information that it has at the end.
    Chairman Roberts. Well, I want to thank all of you members 
for your testimony. I think it's been very helpful and we will 
consider all of your suggestions and comments as we continue 
the markup of this legislation. As I've indicated before, this 
is an open process in which all members concerned will be 
seriously considered.
    I would just say that I would hope that after the many 
incidents that we have seen happen not only in the United 
States but also throughout the world, that we do have an 
international problem and that we do want to stop terrorism 
before it counts, to detect and deter it as opposed to getting 
into the tragedy of consequence management.
    I don't think it's a good idea to go back and to try to 
investigate it as a crime, and I don't mean that to perjure 
anything that anybody has said here in regard to this panel. I 
think you've offered some very fine advice and suggestions and 
I thank you for coming.
    And since I'm the only person here that you would be 
testifying to, perhaps it's a good time to say the Committee 
stands adjourned.
    [Whereupon, at 11:47 a.m., the Committee adjourned.]
  

                                  
.