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                                                        S. Hrg. 111-333
 
          REAUTHORIZING THE USA PATRIOT ACT: ENSURING LIBERTY

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

                                HEARING

                               before the

        SUBCOMMITTEE ON ADMINISTRATIVE OVERSIGHT AND THE COURTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 23, 2009

                               __________

                          Serial No. J-111-49

                               __________

         Printed for the use of the Committee on the Judiciary




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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel
                                 ------                                

        Subcommittee on Administrative Oversight and the Courts

               SHELDON WHITEHOUSE, Rhode Island, Chairman
DIANNE FEINSTEIN, California         JEFF SESSIONS, Alabama
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
BENJAMIN L. CARDIN, Maryland         LINDSEY GRAHAM, South Carolina
EDWARD E. KAUFMAN, Delaware
                Sam Goodstein, Democratic Chief Counsel
                  Matt Miner, Republican Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    79
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   113
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3

                               WITNESSES

Fine, Glenn, Inspector General, U.S. Department of Justice, 
  Washington, D.C................................................     7
Graves, Lisa, Executive Director, Center for Media & Democracy, 
  Washington, D.C................................................    36
Kris, David, Assistant Attorney General, U.S. Department of 
  Justice, Washington, D.C.......................................     5
Spaulding, Suzanne E., Principal, Bingham Consulting Group, 
  Washington, D.C................................................    32
Wainstein, Kenneth L., Partner, O'Melveny & Myers, LLP, 
  Washington, D.C................................................    34

                       SUBMISSIONS FOR THE RECORD

American Association of Law Libraries, Catherine Lemann, 
  President, Chicago, Illinois, statement........................    49
American Civil Liberties Union, New York, New York, statement....    51
Constitution Project, Sharon Bradford Franklin, Senior Counsel, 
  Washington, D.C., statement....................................    65
Fine, Glenn, Inspector General, U.S. Department of Justice, 
  Washington, D.C................................................    81
Graves, Lisa, Executive Director, Center for Media & Democracy, 
  Washington, D.C................................................    97
Kris, David, Assistant Attorney General, U.S. Department of 
  Justice, Washington, D.C.......................................   107
Spaulding, Suzanne E., Principal, Bingham Consulting Group, 
  Washington, D.C................................................   116
Wainstein, Kenneth L., Partner, O'Melveny & Myers, LLP, 
  Washington, D.C................................................   133


          REAUTHORIZING THE USA PATRIOT ACT: ENSURING LIBERTY

                              ----------                              


                     WEDNESDAY, SEPTEMBER 23, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10 a.m., U.S. 
Senate, Committee on the Judiciary, Room 226 Dirksen Senate 
Office Building, Hon. Patrick Leahy presiding.

 OPENING STATEMENT OF HON. PATRICK LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning, everybody. After September 
11th, for many of us it still feels like yesterday, I worked to 
ensure that the USA Patriot Act included oversight. I think one 
of the things that as much as we were concerned about that 
attack, as much as we were concerned about the fact that in 
many areas we had, we the United States had missed the signs 
that attack was imminent.
    I wanted to make sure that if we were going to increase 
information gathering powers of the government, that we would 
sweep in U.S. citizens. I wanted to make sure it was 
implemented appropriately. This was not a partisan attitude.
    I worked with an in-house majority leader, Republican Dick 
Armey, a very conservative member of the House who agreed with 
me on this and we included sunsets for some of the provisions 
with the greatest potential to directly affect Americans. We 
wanted to make sure that after they had been used for a while, 
we would be forced to look at them again because they could be 
reauthorized once we did.
    We debated the reauthorization of the Patriot Act for 
several months in 2005 and 2006. I again worked to protect the 
civil liberties and constitutional rights of Americans while 
providing the government with the tools it needs to 
aggressively go after those people who would harm us.
    Now, unfortunately, while the reauthorization bill of 2006 
had some improvements, some significant improvements, it lacked 
sufficient constitutional protections against the authorities 
granted the government.
    I worked with Senator Specter and we were able to expand 
public transparency in congressional oversight--but in the end 
several important checks and balances were not included in the 
final version. While I liked a lot of parts about it, I voted 
against it because those checks and balances were left out.
    Now we have three provisions expiring on December 31st, 
2009. It appears because of all the slowdowns we will be in 
session until December 31, 2009. In fact, I have already made 
plans. Normally I'd be in Vermont at Christmas which is a nice 
place to be, but it looks like the way the Senate schedule is 
going we will be here instead.
    We have another chance to get it right. The provisions 
slated to expire at the end of this year include the 
authorization for roving wiretaps, the Lone Wolf Measure and an 
order for tangible things commonly referred to as Section 215, 
the Patriot Act or the so called Library Record Provision.
    In March, I sent a letter to the Attorney General 
requesting the administration's views on these expiring 
provisions. Again in June I reiterated that request at a 
Judiciary Committee oversight hearing. I recently received a 
letter from the Department of Justice urging Congress to extend 
the expiring authority.
    I also know the President's and the Attorney General's 
emphasis on accountability and checks and balances and their 
willingness to consider additional ideas. Actually that 
openness is something unusual but welcome and I look forward to 
exploring it.
    Yesterday I introduced a bill with Senators Cardin and 
Kaufman that aims to strike the kind of balance the 
administration urges. It will extend the authorization--
expiring authorization of a new--it will add checks and 
balances by increasing judicial review of government powers, 
expand congressional oversight and public reporting on the use 
of intrusive surveillance measures, and the Leahy/Cardin/
Kaufman mandates new audits by the Department of Justice Office 
of Inspector General on the use of Section 215 and national 
security letters.
    We all appreciate the earlier audits conducted by Inspector 
General Glen Fine because those led to improvements.
    In developing our proposal, I have consulted with Senators 
Feingold and Durbin. We introduced a more expansive bill last 
week and with their encouragement I borrowed a few of the 
accountability provisions from their proposals.
    While it is a shared early draft of our proposal, Senator 
Feinstein, Chair of the Senate Committee on Intelligence, I 
look forward to working with everybody. We will turn to the 
issue of our committee meeting on October 1st which is a week 
from tomorrow.
    I am pleased that the Attorney General is moving in the 
right direction to better control assertions of the state's 
secrets privileges after our efforts over the last several 
years to bring oversight and accountability to the 
administration's invocation of this privilege.
    The administration's policies that are being announced 
right now heckle the Senate legislation we have been passing. 
It is being announced now and the administration leaked them 
last night and actually I'm pleased with them.
    The Attorney General's announcement incorporates several 
concepts drawn from our State Secrets Protection Act such as 
the adoption of a significant harm standard, the creation of 
new internal controls, the requirement the Attorney General 
personally approved, the assertion of the State Secret 
privilege.
    I press hard to shine a light on the misuse, there has been 
a misuse to the State Secret privilege. We want the privilege 
but we don't want to misuse. We have to have mechanisms to 
guide this application. Today's announcement marks progress.
    I will closely monitor the implementation of this new State 
Secret policy. I will make sure everybody has a higher level of 
accountability and transparency. I am especially concerned with 
ensuring the government makes a substantial evidentiary showing 
to a public judge in asserting the privilege so that the rule 
of the court can be there and determine whether it should be 
allowed.
    I commend the Attorney General, I commend him very highly 
for working with us and shaping these approved policies and 
procedures. I am going to yield to Senator Sessions and then we 
will go right to David Kris and Glenn Fine. Go ahead.

 STATEMENT OF JEFF SESSIONS, A U.S. SENATOR FROM THE STATE OF 
                            ALABAMA

    Senator Sessions. Thank you, Mr. Chairman. Thank you for 
this hearing. You have been a strong supporter of the Patriot 
Act. It has been a bipartisan act. I do believe that this 
committee after 9/11 fulfilled its responsibility by carefully 
scrutinizing every single word in it to make sure that there 
were no abuses of constitutional rights of our citizens. I 
think that was achieved.
    I don't believe that subsequent events have proven that 
there have been any abuses of the Act to date and I think in 
fact the history of the Act shows that it has been very helpful 
in allowing us to go now some 8 years without having another 
attack. I appreciate the work that everybody put into this when 
you were either Chairman and ranking member I guess throughout 
the whole process. Chairman, I suppose.
    Chairman Leahy. Both.
    Senator Sessions. Both I guess.
    Chairman Leahy. Of the two I will tell you later which I 
enjoyed more.
    Senator Sessions. The provisions of this Act did not create 
new or unusual powers for the Federal Government. Rather, the 
Act extended to our National Security Agency the same tools 
essentially that had long been available to domestic law 
enforcement that I used as a Federal prosecutor.
    In the fight against terrorists, it is only fair and common 
sense and reasonable that we have at our disposal abilities 
that have existed for decades to pursue drug dealers and 
mobsters.
    When this Act was passed in 2001 and then reauthorized in 
2005, some were concerned that significant violations of civil 
liberties would result. Some were concerned that libraries 
would be abused. Well, we have closely examined the performance 
of our law enforcement agencies under the Act and we can safely 
say those fears did not materialize.
    Our national security and law enforcement agencies have 
made responsible use of these tools and at the same time 
continued to protect the safety of the American people.
    Three of these essential tools are up for reauthorization. 
We have the roving wire taps, the business records provision 
Section 215 and the Lone Wolf section of the Intelligence 
Reform Act that the Chairman mentioned.
    It is important to say at the outset that the 
administration is requesting that the provisions be renewed. 
The Assistant Attorney General has written the Chairman that 
the DOJ has discussed these provisions with the Director of 
National Intelligence. They are unequivocal about the 
administration's position that we are still at war with Al 
Queda and that these provisions should be reauthorized because 
they are important tools in this war and to make America safe.
    The roving wire tap is a provision that prevents terrorists 
from evading surveillance. Before September 11, 2001, a target 
could just switch phones several times and the National 
Security Agency would have to obtain a new court order to have 
a wire tap on each one of those phones. As a matter of fact, 
criminals today use phones regularly and they throw them away.
    Narcotics and organized crime prosecutors can apply for and 
are able to apply for roving wire taps so that their agencies 
could monitor criminals bent on avoiding detection. That was 
passed in 1986. It allowed that in drug cases.
    The provision of the Patriot Act grants terrorist hunters 
the same tools to catch a savvy terrorist as law enforcement 
has been using to capture criminals.
    FBI Director Muller appeared before us last week and 
testified since the roving wire tap was authorized, it has been 
used approximately 140 times. He described this as tremendously 
important. It is essential given the technology and growth of 
technology that we have had.
    The Business Records Provision Section 215 feels the gap in 
national security intelligence gathering and according to the 
Department of Justice has proven valuable in a number of 
contexts. It permits the authorities to seek permission from 
courts, go to court to gain access to business records that can 
help ``connect the dots'' in tracking terrorists and foreign 
agents.
    When the Act was passed in 2001 and reauthorized in 2005, 
some feared it would be abused. Well, now we have several years 
of tracking this and no such incident has occurred. This 
provision simply extends to national security agents the same 
abilities basically possessed by any Federal prosecutor.
    In investigating ordinary crime, a prosecutor can issue a 
Grand Jury subpoena which orders the production of all sorts of 
business records and documents. In fact, ordinary Grand Jury 
subpoenas are not as regulated as this because they do not need 
to be approved by a judge as these types of orders are.
    As Director Muller told us, these orders have been used 
about 250 times and ``the records that are received are 
absolutely essential to identifying other persons who may be 
involved in terrorist activities.''
    The Lone Wolf section of the Act is a common sense 
provision that we need to continue the fight against terrorism 
in the 21st Century even though it has not even been used one 
time yet; it is there to defend against a very real 
possibility.
    A rogue terrorist may not be linked to a terrorist group. 
Or if he is, he may not be proven to be linked. In the past, 
the law required that the National Security Agency show a 
connection between a terrorist and a terror group or a foreign 
national power in order to monitor them. This meant that if a 
terrorist or a foreign agent left a terror group, abandoned 
them, perhaps because of a dispute, we would not be able to 
track him until he joined some other group.
    As our armed forces fight and succeed against terror 
groups, we will inevitably splinter them, perhaps causing some 
to strike out on their own, or some will self-radicalize, 
gaining fame from the internet.
    The statutory language of this provision is narrow and 
guarantees that it will not be abused and--the provision stands 
waiting to be used and has never been used.
    The DOJ notes, ``we believe that it is essential to have 
the tool available for the rare situation in which it is 
necessary rather than to delay surveillance of a terrorist in 
the hopes that necessary links could be established.''
    So I believe that Congress and the President work together 
very well to pass this Act in 2001 and reauthorize it in 2005. 
Chairman Leahy is a strong believer in civil liberties. You 
monitored the Act very, very carefully before you lent your 
support to it. I think it has proven to be valuable and proven 
not to have been abused. I think it should be reauthorized 
without any weakening of it. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much. Our first witness is 
David Kris, who currently serves as the Assistant Attorney 
General for National Security.
    Earlier in his career he worked for 8 years as a Federal 
prosecutor in the Criminal Division. Certainly the ranking 
member and I are always delighted to see prosecutors here.
    He served as Associate Deputy Attorney General and in 2003 
supervised the government's use of the Intelligence 
Surveillance Act.
    Now Mr. Kris, as you know, some of us in this committee 
worked very hard to ensure your confirmation to a vital 
position within the administration. None of the policies being 
announced today by the Attorney General with regard to 
government claims the State Secret privilege, you are going to 
have a very critical role to play. We are going to be looking 
for you to fulfill that role in the new policy by ensuring 
against misuse and overuse--the State Secret, but also I think 
by making sure the proper role of the court is respected.
    So Mr. Kris, Assistant Attorney General Kris, please go 
ahead, sir.

     STATEMENT OF DAVID KRIS, ASSISTANT ATTORNEY GENERAL, 
                         WASHINGTON, DC

    Mr. Kris. Thank you, Chairman Leahy, Senator Sessions and 
members of the committee, thank you for inviting me to testify 
today.
    As you know from my written submission in the letter that 
we sent on September 14th, we favor reauthorization of the 
three sunsetting provisions in the USA Patriot Act and we are 
open to working with Congress on those provisions.
    We have seen recent draft legislation from Senator Leahy, 
Senator Feingold and others and we are reviewing those drafts 
now. Of course we don't have a position on them at this time.
    Let me just walk through each of the three provisions 
quickly. The first is the roving surveillance provision. As you 
know, this was enacted in 2001 to correspond to preexisting 
authority that applies to law enforcement surveillance. I want 
to make two basic points about this roving surveillance 
provision.
    The first is that we can obtain roving surveillance 
authority from the court only when we can show to a judge that 
the actions of the surveillance target, the person or entity 
from or about whom we are seeking information may have the 
effect of thwarting our ability to conduct the surveillance 
with the aid of a specific third party like a 
telecommunications provider. So we have to show this thwarting 
effect first.
    Let me try to explain how that thwarting effect can occur. 
In an ordinary FISA surveillance case, the government shows 
probable cause to the judge of two basic facts. First that the 
target is a foreign power or an agent of a foreign power, and 
those terms are defined in great detail in the statute.
    Second, that the target is using or about to use a 
particular facility like a 10 digit telephone number or 
something like that.
    For its part then the court issues two orders. First, a 
primary order to the government that says yes, you are 
authorized to do this surveillance, and then what is called a 
secondary order directed to the particular telecommunications 
provider or other third party and that secondary order says you 
should help the government effectuate the surveillance. The 
phone company needs to help us do the surveillance on the 
particular phone number.
    If in an ordinary FISA case, the target switches carriers 
from one provider to another, the new provider will not honor a 
secondary order that was directed only at the old provider. You 
wouldn't want it any other way. You wouldn't want phone company 
number 2 to start honoring orders that are directed at phone 
company number 1.
    So that is where the thwarting can occur because we have to 
go back to court, file a new pleading and get a new order. That 
creates a gap in our coverage.
    In a roving case we avoid that problem because we get in 
effect a generic secondary order that can be served on any 
provider so that we can follow the target from provider to 
provider if he jumps around.
    That is the first point I wanted to make about this 
provision. The second point which comes at the back end of 
roving and is equally important and that is whenever we 
implement this roving authority, we must report to the court, 
to the FISA court normally within 10 days of the probable cause 
that ties the target to the new facility that he has roamed to. 
That if you think about it makes sense because the main thing 
that changes in a roving surveillance case, in effect really 
the only thing that typically changes is the new facility.
    The target is the same target. The probable cause that the 
target is an agent of a foreign power is the same probable 
cause. So the statute I think wisely and correctly focuses on 
what is new and that is the probable cause linking the target 
to this new facility. So that is the way the architecture of 
the statute works and that is essentially why we think it 
should be renewed.
    I should also add that I'm not aware of any major 
compliance problems with the implementation of the roving 
authority since its inception in 2001.
    Briefly with respect to the Lone Wolf provision which is 
the second of the three, this provision has never been used. 
Again, I have sort of two quick points. The first is as to its 
scope. This is a provision that applies only to non-US persons, 
not to US citizens, not to green card holders, and only when 
they themselves engage in or prepare to engage in international 
terrorism.
    The provision is designed basically to address the 
possibility of the situations that Senator Sessions described. 
A person who self-radicalizes and engages in this international 
terrorism without being a member of any group or a person who 
was a member but then breaks with a group and then goes off on 
his own as a kind of free agent.
    If that kind of case arises, we would have difficulty 
establishing or maintaining our coverage without the Lone Wolf 
provision. That is the idea behind it.
    Third and finally the business records provision Section 
215 of the Patriot Act. In general, this provision is used when 
three circumstances exist. First, the information sought can't 
be obtained by a national security letter. National security 
letters exist for specific types of information in specific 
situations.
    Second, a Grand Jury subpoena would not be sufficiently 
secure secret, and third, the provider either can't or won't 
turn it over voluntarily. So with that, I will stop and I look 
forward to answering your questions. Thank you.
    Chairman Leahy. Thank you very much. I am holding the 
National Security Investigations and Prosecutions which you co-
authored with Douglas Wilson. So if there is anything you 
disagree with what you have in there, be prepared.
    Glenn Fine is well known of course as the committee he 
served as the Department of Justice Inspector General since 
2000. He has been a member of the Office of the Inspector 
General since 1995.
    His office conducted comprehensive audits of Section 215 of 
the Patriot Act of the use of national security letters. These 
audits which are combined with a number of other reports issued 
by his office represented really the largest portion of the 
public reporting on the use of surveillance authorities.
    Mr. Fine, glad to have you here. Go ahead, please.

   STATEMENT OF GLENN FINE, INSPECTOR GENERAL, WASHINGTON, DC

    Mr. Fine. Mr. Chairman, ranking member Sessions, members of 
the committee, thank you for inviting me to testify about the 
Office of the Inspector General's work related to the Patriot 
Act.
    Our most significant reviews have focused on the FBI's use 
of national security letters and Section 215 orders. Pursuant 
to the Patriot Reauthorization Act, in March, 2007 and March, 
2008, we issued reports examining the FBI's use of these two 
authorities and I will focus my testimony on our findings from 
those reviews.
    First, with regard to the use of national security letters, 
NSLs. Our reports recognize the major organizational changes 
the FBI was undergoing in this counter terrorism and counter 
intelligence efforts during this period.
    Nevertheless, our reports found that the FBI had engaged in 
serious misuse of NSLs. For example, we found that the FBI had 
issued many NSLs without proper authorization and had made 
improper requests under the statutes cited in the NSLs. Most 
troubling, we identified more than 700 instances in which the 
FBI improperly obtained telephone toll billing records by 
issuing so called exigent letters.
    These letters stated that they were being issued due to 
exigent circumstances and that the FBI was in the process of 
obtaining subpoenas for the requested information.
    In fact, we found that many of these letters were not 
issued in exigent circumstances and that subpoenas had in many 
instances not been submitted to the U.S. attorney's offices as 
represented in the letters.
    As a result of our findings, the FBI has ended its 
practices of using exigent letters and the OIG is now in the 
final stages of completing a review, examining who is 
accountable for the misuse of these letters.
    In total, the OIG's two reports on national security 
letters made 27 recommendations to the FBI to ensure that it 
uses NSLs in accordance with the requirements of law, 
department guidelines and internal FBI policy. We believe that 
the FBI has taken these recommendations seriously and has 
devoted substantial time and resources to implementing them.
    For example, the FBI created an Office of Integrity and 
Compliance to identify risk areas in FBI programs. However, we 
have some concerns about the staffing of this office and we 
also do not believe that this office should be looked to as the 
primary oversight mechanism to ensure that the FBI uses NSLs 
properly.
    Because of the emphasis the FBI has placed on this office, 
the OIG intends to initiate a separate review to assess in 
detail the work of the office. In addition, in response to our 
reports, the department established a national security letter 
working group to develop minimization procedures regarding 
acquisition, dissemination and retention of information 
obtained from NSLs. Yet while this group has drafted proposed 
recommendations, these recommendations have not yet been 
finalized even though it has been more than 2 years since our 
first NSL report was issued.
    We believe the department should complete its review of the 
working group's proposals and promptly issue final minimization 
procedures for NSLs.
    With regard to the use of Section 215 orders, the OIG 
examined and issued two reports on the FBI's use of these 
orders to obtain business records. While used much less 
frequently than NSLs, the FBI believes that the Section 215 
authority is essential to national security investigations 
because it is the only compulsory process for certain kinds of 
records.
    Our reviews did not identify any illegal use of Section 215 
orders. However, a second report does discuss a case in which 
the FISA court twice refused to authorize a Section 215 order 
based on concerns that the investigation was premised on 
protected First Amendment activity.
    The FBI subsequently issued NSLs to obtain information 
about the same subject based on the same factual predicate even 
though the NSL statute contains the same First Amendment caveat 
as the Section 215 statute.
    My written statement also describes other reviews within 
the FBI that while not directly involving Patriot Act 
authorities, relate to FBI programs and functions that can 
impact its ability to perform its vital mission.
    In conclusion, we found that the FBI did not initially take 
seriously enough its responsibility to ensure that Patriot Act 
authorities such as national security letters were used in the 
court with the law, Attorney General guidelines and FBI 
policies.
    Since issuance of our reports, however, we believe that the 
FBI has devoted significant effort to correcting its misuse of 
these authorities. Yet we believe this is an ongoing process 
and is too early to conclude definitively that the FBIs efforts 
have fully and finally eliminated all the problems we found.
    We also believe that as Congress considers reauthorizing 
provisions of the Patriot Act, it must ensure through continual 
and aggressive oversight mechanism that the FBI uses these 
investigative authorities appropriately.
    We recognize that the OIG has an important role to play in 
this oversight process and we intend to continue our reviews of 
the FBI's use of these authorities.
    That concludes my testimony and I would be pleased to 
answer any questions.
    Chairman Leahy. Thank you very much, Mr. Fine. The bill I 
introduced this week, the USA Patriot Act Sunset Extension Act 
has a 4-year sunset in all the three expiring Patriot Act 
provisions similar to what we did in 2001 and again in 2005/06 
reauthorization.
    But it also has a new 4-year sunset on the use of national 
security letters. These are the letters that allow the 
government to obtain bank records and credit card statements, 
medical records and other personal information all without a 
warrant.
    Given the misuse of the NSL authority that was seen in the 
Inspector General's 2007 report, I thought it was time to take 
another look at the authority. So I introduced the USA Patriot 
Act after September 11th. I said because I thought we needed 
these aggressive tools and I was glad to do it.
    But given that these authorities allow the government to 
collect so much information about Americans, is it the 
administration's position, do they agree with me that it is 
only reasonable to have a sunset on these authorities because 
it would force us to periodically look at them and see how they 
are being used?
    Mr. Kris.
    Mr. Kris. Senator, thank you. Obviously as I mentioned, we 
don't have an official administration position on that element 
of your bill or the others. It is certainly something we can 
think about and discuss and work with the committee.
    Chairman Leahy. Let me ask Mr. Fine.
    Mr. Fine. Well, I don't speak for the administration here. 
I do think it's important to ensure that there is aggressive 
oversight of this, that it be continually looked at. Our audits 
did expose problems in NSLs and it is important to continue 
that review.
    Chairman Leahy. Let me put it this way. Has it been your 
experience that there is more oversight at the time when sunset 
provisions are about to kick in?
    Mr. Fine. There is more scrutiny of the issues as evidenced 
by this hearing. That's clear.
    Chairman Leahy. Now, Section 215, the business records 
orders has an incredibly expansive authority. As long as the 
government meets the simple relevancy standards of things 
sought pertaining to a specific kind of intelligence along 
investigation, the FISA court can allow them to take not just 
business records, but any thing. That means not just library 
records but the lawful purchase of firearms, something of some 
concern in my own state of Vermont, your own personal medical 
records of some concern to all of us, your computer, any 
tangible thing at all even if it meant it closed down your 
small business.
    The government is almost always guaranteed success because 
current law confers a presumption of relevance to the 
government's claim that what it is seeking is relevant to the 
investigation.
    It is quite an advantage to the government. You are a small 
business and somebody comes in and just swoops up and takes out 
all your computers and you are effectively closed down. Then 
you say well, there is a presumption of relevance.
    I would think as technology advances and more and more 
personal information is available, isn't it reasonable to 
require the government to have to at least prove the things 
that it is seeking are relevant in terrorism investigation and 
connect it to at least a suspected terrorist before they are 
allowed to go into all this huge amount of private material?
    Mr. Kris.
    Mr. Kris. The statute requires the statement of fact 
showing that there are reasonable grounds to believe that the 
tangible things sought are relevant.
    Chairman Leahy. But there is automatically a presumption.
    Mr. Kris. No, I understand that there is a presumption if 
the materials pertain to a foreign power or an agent of a 
foreign power or the activities of the agent of a foreign 
power. In certain categories there is a presumption, but 
nonetheless, there does have to be a statement and then a 
showing of relevance.
    If you think about how this kind of authority is used and 
the stage at which it is used. It is used at an early stage 
often of an investigation to gather documents not after 
probable cause has been established, but in order to establish 
probable cause or in order to weed out people who really don't 
belong in the investigation.
    Chairman Leahy. It is ordinarily expansive. If you have 
somebody in there who just wants to do it because they don't 
like somebody for example, on business, they could close down 
the business. If they wanted to do a fishing expedition in 
hospital records, everybody's records, yours, mine, everybody 
else's, they can do that and they are given a presumption of 
relevance.
    Mr. Fine. Well, obviously there is here a provision that 
prohibits the use of this against someone based solely on their 
exercise of First Amendment rights, so some of these cases 
where you posit some very bad hypotheticals would be just flat 
out prohibited by the statute. I should also say that----
    Chairman Leahy. I wasn't speaking about First Amendment 
matters.
    Mr. Fine. And I should also say that the recipient of a 215 
order who may not always be the person whose records are in 
play has a right to bring an action in the FISA court. That 
hasn't happened. I think that may be an indication of how the 
recipient----
    Chairman Leahy. How do they bring it? They have to overcome 
presumptions. I mean, the cards are rather stacked.
    Mr. Fine. I mean, I don't disagree with you insofar as the 
relevance standard with or without the presumption is not a 
very high standard. It isn't a probable cause standard or proof 
beyond a reasonable doubt or anything of the sort.
    I think that reflects the fact of how this investigative 
tool is used and indeed on the criminal side, if you think 
about the standard that applies to a Grand Jury subpoena under 
the R. Enterprises case, the Grand Jury has enormous authority 
without a judge signing off on the subpoenas to collect a lot 
of information under a very low standard as well and that is 
just the way investigative tools are structured.
    Chairman Leahy. You and I are going to be talking about 
this.
    Mr. Fine. I look forward to that.
    Chairman Leahy. Also the bill I introduced with Senators 
Cardin and Kaufman include new audits on Section 215 orders for 
tangible things in the use of national security letters--trace 
devices.
    Given the letter's favorable language to us, the letter you 
sent to me on reauthorization, speaking about congressional 
oversight, do you support the audits in the bill?
    Mr. Fine. As I said, we don't have a position on anything 
particular yet. I do want to say, though----
    Chairman Leahy. I mean, your letter says you support 
oversight. Are you saying that you support oversight but you 
can't take a position on oversight?
    Mr. Fine. I mean, I'm not in a position to announce an 
administration position on any particular aspect of your bill. 
The bill obviously was dropped fairly recently. We are looking 
at it now actively and we are interested in working with the 
committee and with you and others to try and see if these tools 
can be sharpened.
    Chairman Leahy. On these audits, would you get back to me 
as quickly as possible?
    Mr. Fine. Yes.
    Chairman Leahy. Thank you. Senator Sessions.
    Senator Sessions. Thank you. Mr. Kris, isn't it true that a 
Federal drug enforcement agent who is investigating a drug 
organization can issue administrative subpoenas without a court 
or a Grand Jury oversight and obtain telephone toll records or 
motel records or even bank record relating to that 
investigation?
    Mr. Kris. Yes, there are a number of administrative 
subpoenas including in the drug arena and other areas that 
operate as you----
    Senator Sessions. Well, how about an IRS agent who is 
investigating tax fraud? Can they get your bank records and 
your telephone toll records?
    Mr. Kris. Yes. Under certain circumstances they can, and 
you are right, there is an array of circumstances.
    Senator Sessions. Isn't it true that the national security 
letters really have more oversight and more requirements on 
them perhaps than the administrative subpoenas that other 
Federal agencies have been using for many, many decades?
    Mr. Kris. It is certainly true that a 215 order has more 
process associated with it than these criminal side collection 
authorities because a 215 order is issued by a judge based on 
an application made by the government in advance of the 
issuance of the order and the production of the tangible 
things.
    The authorities that you were just reciting on the criminal 
side including the Grand Jury subpoena don't require advanced 
judicial approval.
    Senator Sessions. Now, just for our members and those that 
might be interested, documents in the possession of a bank or a 
telephone company are not in the possession of the defendant. 
That is a third party.
    Hasn't it been true that the court has always recognized as 
a different standard in the burden of proof when you obtain 
information from a third party than getting it out of your desk 
drawer or coming out of your pocket or your automobile where 
you have personal control over it?
    Mr. Kris. I mean, that is certainly correct both with 
respect to the Fourth Amendment and in some cases under active 
production to the Fifth Amendment. When you give information to 
a third party, the Fourth Amendment calculus changes under the 
Miller decision from the Supreme Court.
    Senator Sessions. Because essentially the telephone toll 
records or the bank records are in possession of somebody else. 
Everybody at the bank, everybody at the phone company has 
access to those records. You have a diminished expectation of 
privacy in records held by other institutions than held by 
yourself.
    Now, with regard to the roving wire taps, isn't it true 
that you still have to have and you still have to go through 
the very significant process to obtain a warrant to have that 
approved by a Federal judge and they have to set forth 
extensive factual predicates to justify the court issuing that 
warrant and it is quite extensive and quite a major operation 
to get a Federal tap on a telephone whether it is one phone or 
a roving phone.
    Mr. Kris. I mean, both under Title 3, the Criminal Wire 
Tapping Statute and under FISA, there are lengthy applications 
that are prepared on the FISA side by attorneys in my office. I 
signed some of those, so yes, they are extensive. They have to 
make a showing of probable cause that we make in every case.
    When we want to seek roving authority, we have to make an 
additional showing about the actions of the target thwarting or 
having a possibility of thwarting the surveillance.
    Senator Sessions. And there has been no lasting of that in 
national security cases that you would have in a mafia case, an 
organized crime case, a case of that nature.
    Mr. Kris. I mean, the statute is different under FISA than 
it is under Title 3 on the criminal side. But the probable 
cause requirements that have been in FISA since 1978 have not 
been watered down.
    Senator Sessions. It seems to me that is the fundamental 
protection that every American has is that before you can 
listen in on your phone conversation, you have to have probable 
cause that a crime is underway, that this person is involved 
with it and this telephone or a telephone may be utilized in 
the furtherance of it, isn't that right?
    Mr. Kris. On the criminal side, yes, you would make a 
showing of a specific crime. Not every crime will do. They have 
to have several listed in 2516 of Title 18 and then the 
facility the phone would say is being used in connection with 
that crime.
    Senator Sessions. Well, Mr. Fine, you wouldn't dispute the 
thousands and thousands of administrative subpoenas issued by 
the IRS to find out if we paid our taxes or DEA investigating 
drugs, would you? You acknowledge that?
    Mr. Fine. I acknowledge that, yes.
    Senator Sessions. Well, let me ask you this, Mr. Fine. With 
regard to the complaints you raised initially, you have 
indicated still the FBI has not gotten its act totally together 
which I am not happy with. I think they should respond and 
follow these rules as strictly as they possibly can. But the 
national security letters are not in essence much different 
than the administrative subpoenas issued by other Federal 
agencies, are they? For the most part, the ones that are issued 
most often.
    Mr. Fine. They are similar but the are broader. There is 
more of them. They are issued in more contexts and we found in 
our particular scrutiny of this that they were not used 
properly and that they had not followed their own policies, 
that they were used sometimes in excess of the statutes.
    Senator Sessions. Have you issued your final report on 
that?
    Mr. Fine. Well, this is our March, 2007 and March, 2008 
reports on national security letters, yes.
    Senator Sessions. Have we seen that report?
    Mr. Fine. Yes.
    Senator Sessions. Well, to what extent have your recent 
evaluations discovered that the FBI is still not following 
proper procedures?
    Mr. Fine. We issued these reports in March, 2007 and in 
March, 2008 we issued a follow-up report and found that they 
had taken substantial efforts. They had made significant 
strides but there still needed to be more work done.
    We have not issued a report since then but we have been in 
contact with them and we anticipate a continuing oversight over 
this matter.
    Senator Sessions. Well, I think that's fine, but some of 
the errors were like the agency had used a U when they should 
have used a subsection B and more clerical errors that you 
counted correctly as being errors, is that correct?
    Mr. Fine. There were a whole range of errors. Some were 
clerical errors, some were errors by the telecommunication 
providers, some were errors by the agency, some were serious 
errors where they were issuing NSLs in instances when they were 
not proper.
    Senator Sessions. Thank you.
    Chairman Leahy. Thank you very much.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman. Thank 
you for the bill. Gentlemen, welcome. I'd like to put on my 
other hat which is Chairman of the Intelligence Committee.
    There was so much criticism after 9/11 that the 
intelligence community really didn't know where an attack would 
take place or was able to put together certain facts that would 
lead to an arrest that would prevent an attack. So since that 
time we have seen a greatly developed intelligence community 
aimed at protecting the homeland which I very much appreciate.
    We are in the process of a major intelligence investigation 
in both New York and Colorado. I happen to believe it is a real 
investigation and I know that the FBI has enormous resources 
expended in this investigation.
    Mr. Kris, I would like to begin with this question. Is 
there anything in this bill that would impede or affect the 
present investigation?
    Mr. Kris. Senator, thank you for that question. I think the 
best answer to that is that that is something that would 
properly be discussed in a classified setting and I think we 
would be happy to do that.
    Obviously we are not going to discuss classified matters 
here, and also there is this Justice Department policy about 
commenting on ongoing investigations. So I think for both of 
those reasons, that will be deferred to a different setting, 
but I appreciate the question.
    Senator Feinstein. Well, then clearly your answer is not 
no, so I think we ought to have that----
    Chairman Leahy. I think in fairness to Mr. Kris, his answer 
is what his answer was.
    Senator Feinstein. All right. Well, thank you very much but 
I am free to interpret it however I might choose to and I 
certainly think we should have that classified session.
    Can you describe what types of information would be 
included in a statement of fact? I am now talking about the NSL 
provisions of this bill. How much detail would have to be in 
the statement of facts in order to prove relevancy?
    Mr. Kris. Do you mean under Senator Leahy's bill?
    Senator Feinstein. That's correct.
    Mr. Kris. I want to be very cautious about commenting on it 
because we just haven't worked all the way through the bill to 
figure out what it would actually mean. It is complicated 
stuff, as you know.
    If we are changing the standard in a significant way, then 
it will by definition, and I think it is designed to, have an 
effect on the way the authorities are used and that is a 
question of striking a balance as to how much authority you 
want to give. But we haven't as an administration yet worked 
through at that level of detail exactly what the implications 
would be here.
    Senator Feinstein. So could you answer the question? Would 
the information in a statement of facts be classified? And if 
so, how would private sector companies be expected to handle 
that information?
    Mr. Kris. I'm not sure I understand, Senator. There is a 
provision I think I have read that would require us to explain 
to private sector entities, telecom providers or others exactly 
what our basis is. That would be a change I think in current 
law. Again, we are still trying to work through that and figure 
out how it would work, so I don't want to announce or take a 
position on it. I think I understand that is what you are 
referring to. That would be a change.
    Senator Feinstein. The Leahy bill would add a requirement 
for the statement of fact which would show reasonable grounds 
to believe that the information sought is at least relevant to 
an authorized investigation. Would you have a problem with 
that?
    Mr. Kris. Again, I think that's a position we would like to 
work through in an orderly fashion and then deliver to the 
committee once we have done that homework. I apologize that I'm 
not in a position to announce an administration position here.
    Senator Feinstein. OK. You laid out certain tangible things 
sought under the business records section as presumptively 
relevant if the government shows that they pertain to a foreign 
power, an agent of a foreign power, the activities of a 
suspected agent of a foreign power who is the subject of an 
authorized investigation or an individual in contact with or 
known to an agent of a foreign power who is the subject of such 
investigation.
    The bill as I understand it removes the presumption of 
relevance described above and it requires the government to 
show relevance. Can you describe how the government would be 
expected to show relevance? Would this also require a statement 
of fact to a court? And how much detail would be required?
    Mr. Kris. I will answer that question carefully so that I 
don't get into anything classified or operational. But yes, I 
mean, the statute currently requires a statement of facts 
showing that there are reasonable grounds to believe that the 
tangible things sought are relevant.
    So today we are making a statement of fact to a judge. We 
would be aided by the presumption that you just described if 
the conditions of that presumption are satisfied, if that 
presumption is eliminated then we won't have that benefit of 
the presumption. We are still going to be making a statement of 
fact.
    What that would be would vary from case to case as you can 
imagine. But when you are making a statement of fact in support 
of a showing of relevance, you are trying to show the judge why 
it is that this information that you are seeking pertains to or 
is important to the investigation that you are undertaking.
    Senator Feinstein. So you do not see this as slowing down 
an investigation? It could be done in a very timely way?
    Mr. Kris. Well, under 215, obviously Mr. Fine has written 
extensively about the delays associated with the use of 215 in 
the past. I think we have made improvements on making it 
faster. When you change the bill, if you change the law, it may 
have an effect. We just haven't sort of worked through in every 
detail exactly what those changes would mean operationally yet.
    Senator Feinstein. Thank you very much.
    Chairman Leahy. Thank you, Senator.
    Senator Feingold.
    Senator Feingold. Thanks, Mr. Chairman. I'm glad the 
committee is moving forward on Patriot Act reauthorization. I 
introduced legislation along with Senator Durbin and eight 
other senators that takes a comprehensive approach to fixing 
the USA Patriot Act and the FISA Amendments Act.
    It permits the government to conduct necessary surveillance 
but within a framework of accountability and oversight. I 
understand as you indicated, Mr. Chairman, of course that you 
have also introduced legislation. I look forward to working 
with you closely on these issues.
    I have a full statement that I ask be placed in the record.
    Chairman Leahy. Without objection.
    Senator Feingold. Thank you, Mr. Chairman. I also ask that 
letters in support of the Justice Act bill that we have 
introduced be placed in the hearing record as well.
    Chairman Leahy. Without objection.
    Senator Feingold. Mr. Kris, let me start by reiterating 
something you and I talked about previously, and that is my 
concern that critical information about the implementation of 
the Patriot Act has not been made public. Information that I 
believe would have a significant impact on the debate.
    I urge you to move expeditiously on the request that I and 
others in this committee have made before the legislative 
process is over.
    Now, in Suzanne Spaulding's testimony for the next panel, 
she argues that additional safeguards are needed in the context 
of intelligence investigations because of the very broad scope 
of intelligence investigation. The secrecy with which they must 
be conducted and the fact that they often do not lead to 
prosecution. That is, we have to take into account that 
safeguards inherent to criminal investigations are simply not 
always present in the context of intelligence investigations.
    Mr. Kris, do you agree that additional vigilance is needed 
in the context of intelligence investigations?
    Mr. Kris. Yes.
    Senator Feingold. And in fact isn't that what was 
demonstrated at least in part by the IG reports on national 
security letters?
    Mr. Kris. Well, I think the problems that Mr. Fine found 
are significant. I think they have been remedied. I'm not sure 
that those are inherent in an intelligence use of NSLs, but, I 
mean certainly they are significant and they warrant attention 
and I think they have gotten a lot of attention.
    Senator Feingold. Mr. Fine, would you agree that the lack 
of safeguards contributed to the misuse of NSLs?
    Mr. Fine. I think to some extent the fact that they were 
not transparent does produce an environment where there needs 
to be more significant vigilance.
    Senator Feingold. Mr. Kris, as you know, the Patriot Act 
provided statutory authority for the government to obtain that 
special sneak and peak, criminal search warrants that allow 
agents to break into American homes and conduct secret searches 
without telling them for weeks, months or even longer.
    It is true, isn't it, that these searches can be conducted 
also in run of the mill criminal cases and do not require any 
connection to terrorism?
    Mr. Kris. That's true, both before and----
    Senator Feingold. In fact, according to a July, 2009 report 
of the Administrative US courts, isn't that exactly how this 
authority has most recently been used?
    The report shows that in fiscal year 2008, sneak and peak 
search warrants were requested 763 times but only three of 
those initial requests, just three, were in terrorism cases? 
The vast majority were for drug cases.
    Now, is that your understanding of that report and does it 
concern you at all?
    Mr. Kris. It is my understanding and I want to say thank 
you to your staff who alerted me and allowed me to read the 
report in advance of this hearing. It does say here that 65 
percent of the, these are criminal sneak and peak were in drug 
cases.
    Obviously just to make something clear which I know you 
understand, but on the FISA side, the searches that we do 
pursuant to FISA are not exactly sneak and peak. They are 
generally covert altogether. So this authority here on the 
sneak and peak side on the criminal side is not meant for 
intelligence, it is for criminal cases.
    I guess it is not surprising to me that it applies in drug 
cases.
    Senator Feingold. As I recall, it was in something called 
the USA Patriot Act which was passed in a rush after an attack 
on 9/11 that had to do with terrorism. It didn't have to do 
with regular run of the mill criminal cases.
    Let me tell you why I'm concerned about these numbers. That 
is not how this was sold to the American people. It was sold as 
stated on DOJ's website in 2005 as being necessary `to conduct 
investigations without tipping off terrorists.'
    I'm going to say it is quite extraordinary to grant 
government agents the statutory authority to secretly break 
into American's homes in criminal cases and I think some 
Americans might be concerned that it has been used hundreds of 
times in just a single year in non-terrorism cases and that is 
why I am proposing the additional safeguards to make sure that 
this authority is available where necessary but not in 
virtually every criminal case and also to shorten the time 
period for notification.
    Mr. Kris. Well, I don't mean to quibble with you. I do want 
to just point out one thing which is before, and I was trying 
to carve out FISA, just to clarify that FISA is a different 
authority where it is covert, and also it puts, if I am correct 
on this, I believe two Courts of Appeals prior to the Patriot 
Act had authorizes sneak and peak under existing law. This was 
meant to be a codification of that doctrine.
    Senator Feingold. Some courts permitted secret searches in 
limited circumstances before the Patriot Act as I remember, but 
they also recognize the need for notice unless a reason to 
continue to delay notice and it was demonstrated and they 
specifically said that notice had to occur within 7 days which 
is what we fought for at the time of the Patriot Act which is 
what our bill proposes.
    So I think you make a fair point that it was allowed to 
some extent. But without these protections, this is a dramatic 
change in our general criminal law that doesn't necessarily 
relate to terrorism. Thank you, Mr. Chairman.
    Chairman Leahy. Do you want to respond to that, Mr. Kris.
    Mr. Kris. Well, I was just going to sort of support Senator 
Feingold's conclusion by saying that this report says the 
periods of delay range from 3 days to 365 days with 90 days 
being the most common period. So just based on the report you 
provided.
    Chairman Leahy. Thank you. Senator Durbin.
    Senator Durbin. Thanks, Mr. Chairman. My first run-in with 
librarians was at a very early age when they were infringing on 
my personal liberties in the East St. Louis Public Library in 
telling me to shut up and now librarians have taken a different 
role when it comes to individual rights and liberties on the 
national stage.
    It has become very vocal in considering the impact of some 
of our conversation on the privacy of individuals who use 
libraries. It led to former Attorney General Ashcroft 
characterizing librarians as hysterics and he went on to say 
that the Department of Justice has neither the staffing, the 
time nor the inclination to monitor the reading habits of 
Americans. Former Attorney General Gonzales said something 
along the same lines.
    In your testimony, Mr. Kris, about Section 215, you said it 
has not been used to `collect sensitive personal information on 
constitutionally protected activities such as the use of public 
libraries.'
    However, we do know that under the previous administration, 
the Justice Department issued national security letters for the 
library records of innocent Americans. Isn't that true?
    Mr. Kris. Actually, I won't dispute you on that, but I 
don't have a specific recollection of that.
    Senator Durbin. I think it is accurate. What I would like 
to ask is what is the Justice Department's current policy on 
using national security letters on libraries?
    Mr. Kris. Well, as you know, Section, now are you talking 
about national security letters or 215? Because national 
security letters unless I'm having a moment here, don't get 
sent to libraries. It is, you know, RIPA, FICRA, those are 
specific financial. So I think you mean 215 orders.
    Senator Durbin. There was testimony before our committee, 
George Christian?
    Mr. Kris. Oh, you probably meant a 2709 letter.
    Senator Durbin. A librarian who received an NSL for library 
records.
    Mr. Kris. I understand. I'm sorry. I did have a moment 
there. I'm sorry.
    I mean, if it is within the ambit of statute, then I think 
we might use the statute in that way and there have been cases, 
I can think of an espionage case, a terrorism case and a 
conventional murder case I believe in which libraries have been 
used.
    Section 215, which is what I mistakenly thought you were 
referring to obviously expressly can apply to a library, hasn't 
been used that way but could be. You wouldn't I think want to 
declare a library a safe zone.
    Senator Durbin. No, but in your words you called sensitive 
personal information on constitutionally protected activities 
such as the use of public libraries.
    The Patriot Act allows the FBI to issue NSLs for sensitive 
personal information on innocent Americans, not just those that 
we have connected up or believe we can connect up to terrorist 
activities without a demonstration of that connection.
    As Mr. Fine has reported, the standard for issuing an NSL 
is ``can be easily satisfied.'' For example, if an FBI field 
office wanted to identify someone who used an internet terminal 
at the Chicago public library, they could issue an NSL for the 
internet and email records of the library including the records 
of hundreds of ordinary innocent citizens.
    Now, we are talking about changing that for obvious reasons 
since as you characterize it and I agree, we are dealing with 
constitutionally protected activity.
    Would you agree that under current law, the Justice 
Department cannot guarantee innocent Americans that their 
library records, their activities, internet terminals and 
libraries for example are safe when the law allows the FBI 
agents to obtain these records without the approval of the 
Department of Justice and without any connection to a suspected 
terrorist act?
    Mr. Kris. Well, I wouldn't put it the way you just put it, 
Senator Durbin, but I take your basic point which is that there 
are statutes that allow this. Also on the criminal side, you 
know, Grand Jury subpoenas could be directed at libraries and 
have been. So the nature of an investigation at that stage is 
that the government has to sweep more broadly than just the 
individual who may end up being the defendant or identified as 
a terrorist precisely because they are trying to develop the 
case.
    So that is how I think I would put it. Not quite the way 
you put it.
    Senator Durbin. And this is how our debate comes down. When 
you take the concept of minimization which basically says yes, 
keep us safe but don't sweep into your net innocent Americans 
who are doing things that are ``constitutionally protected'' in 
your own words.
    I might also add that this reference, frequent reference 
here at the committee to the use of Grand Jury subpoenas, I 
hope you will acknowledge that the language that we are talking 
about here under 215 when it comes to gag orders for example, 
is substantially different than current language in the law 
when it comes to the use of Grand Jury subpoenas. Would you 
acknowledge that?
    Mr. Kris. I do, and as I said in response to Senator 
Feingold's questions, there are differences between ordinary 
criminal investigations and intelligence investigations.
    I mean, I do think that it is a legitimate policy debate to 
have and we are having it in an orderly fashion.
    Senator Durbin. I would just like to close by saying I 
started off kind of with a negative view of librarians in my 
early life, but I want to salute them.
    Mr. Kris. You have come to admire them more?
    Senator Durbin. I have come to admire them more and salute 
them for the important role they play in this national debate. 
Thank you very much. Thank you.
    Chairman Leahy. Thank you. When it comes to librarians, 
Senator Durbin, I would mention that one of the formative parts 
of my life was in the library at the age of four in the--
Library in Mount Pilier, Vermont.
    Ms. Holbrook, who was the librarian, and what she did to 
urge me to read. The library is much, much larger now and has a 
new wing partly paid for by some residuals from Batman movies. 
There is a long story behind that which I won't go into here.
    Senator Whitehouse.
    Senator Whitehouse. Thank you, Chairman. I wanted to ask 
you both about two issues. The roving wire tap, I understand 
the need for it. I have seen the nuisance that one has to go 
through to track a phone or track an individual over multiple 
phones and other investigations from my prosecutor days and 
obviously the 215 order has its purpose. I don't think at this 
point the discussion is about whether or not to continue any of 
these authorities. The question is what refinements might be 
necessary.
    I am concerned as I think some of the other senators and 
witnesses have been about the question of the presumption that 
certain things are relevant. I ask first I guess, Mr. Kris, if 
you could tell me what effect a presumption has as a matter of 
kind of standard law.
    Mr. Kris. Right. Well, Senator, from your days as a U.S. 
attorney and as a lawyer, you know a presumption is just what 
it sounds like. It pushes you toward the finish line of 
establishing what you need to establish.
    Senator Whitehouse. But it has a particular effect, doesn't 
it? Doesn't it have the particular effect of shifting the 
burden of either production or persuasion in a particular 
matter?
    Mr. Kris. I mean, I think in an ex parte setting like this 
one as opposed to in a----
    Senator Whitehouse. Precisely my problem with it. If as a 
matter of Horn Book law the presumption has the legal effect of 
shifting the burden of persuasion or proof to another party and 
you are in an ex parte proceeding where there is no other 
party, I would submit to you that we are using the wrong 
language and the wrong tools to work through the problem that 
that is designed to solve.
    Rather than continue to exist in a sort of fairyland in 
which a burden shifts to an empty chair and we all pretend to 
be satisfied with that set of procedures, we should maybe try 
to rethink how to do that in a more logical and sensible way 
that doesn't defeat what a presumption is all about in the 
first place.
    I'm correct that there has never once been an adverse party 
that showed up in a 215 hearing. Not once.
    Mr. Kris. Not to my knowledge, no.
    Senator Whitehouse. And you would know.
    Mr. Kris. There is a vacuum process, but not at the front 
end. I guess a couple of points though in response. I think it 
is a fair question.
    You are a very precise and careful technical lawyer to pick 
up on this. I guess two responses. The first is----
    Senator Whitehouse. One of many not unheard of. I mean, it 
isn't something I just invited. This is a pretty well known 
problem.
    Mr. Kris. I should just confine myself to answering the 
question, shouldn't I? The first is in order to take advantage 
of the presumption under 215, we have to show in the statement 
of facts that we are submitting certain things, the three 
elements that Senator Feinstein outlined before.
    So one point is just this presumption doesn't come free. 
You have to make a showing at the front end in order to trigger 
it. So if that showing is satisfactory as a policy matter, then 
the issue evaporates.
    Also I think as a practical matter you could quibble with 
the use of presumption here along the lines you stated. Maybe 
it is more than just a quibble. But at the end of the day the 
fact remains we need to establish reasonable grounds to believe 
that the documents are relevant.
    If we can trigger the presumption by establishing those 
facts, we are most of the way home and you're right, there is 
no opposing party to rebut. But the statute is still the same 
in terms of ultimately requiring a showing of relevance.
    Senator Whitehouse. The other question in my time remaining 
has to do with the Lone Wolf provision which as has been 
indicated, has never been used. There is another sort of 
logical difficulty in its application in that it is hard to 
imagine that the proof that an individual is an agent of a 
foreign power which is one of the prerequisites for the Lone 
Wolf provision would not also include proof that they are 
working with shall we say a foreign power in which case it is 
hard to imagine that you would need the Lone Wolf provision.
    What is the difference between what is required to prove 
that somebody is an agent of a foreign power? Agency implies 
multiplicity. It is almost a legal impossibility to be acting 
purely alone and yet be the agent in the legal sense of that 
term of some other entity.
    If you could walk me through that conundrum, I'd appreciate 
it.
    Mr. Kris. I'm going to come next time with a Horn Book. I 
think this one is genuinely a labeling concern. The way the 
statute was established in 1978, it defined two possible kinds 
of targets. Foreign powers and agents of foreign powers with 
the latter typically being an individual associated in one of 
the specified ways with the former. So Osama Bin Laden being an 
agent of Al Queda, Al Queda being the foreign power.
    When Congress enacted the Lone Wolf provision, they said we 
are going to call this individual an agent of a foreign power 
because that is where it is going to fit in terms of the 
headings of the statute. But obviously the whole point----
    Senator Whitehouse. But he doesn't really have to be one?
    Mr. Kris. That's right. I mean, the whole point of the Lone 
Wolf provision is that there isn't a foreign power, there isn't 
an international terrorist group as there normally would be.
    Senator Whitehouse. And yet that remains a nominal 
requirement for the Lone Wolf authority, doesn't it?
    Mr. Kris. Well, I don't think it's a nominal requirement. 
This is what I mean when I say it is really just a labeling 
requirement. They are calling this person an agent of a foreign 
power and so that definition which is used throughout the 
statute is a convenient thing to hitch your wagon to here so 
that you don't have to re-write the entire statute all the way 
through. But I don't think it is meant to fool anybody or that 
Congress misunderstood when they enacted it that there is some 
foreign power lurking behind this guy.
    There may very well be, but whether there is and we just 
can't establish it or whether there is indeed no foreign power 
because he is a genuine free agent I think it is clear the 
statute is meant to cover that and they call him an agent of a 
foreign power because it fits in with the grammar of the rest 
of the statute.
    Senator Whitehouse. My time has expired.
    Chairman Leahy. Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman, and 
thank you to both of you for being here. As I said during the 
confirmation hearing for Attorney General Holder, I support the 
extension of these three provisions. I think that they are 
important.
    I first wanted to follow up on what Senator Whitehouse was 
talking about with the Lone Wolf provisions. Do you see given 
the fact that it hasn't been used, are there some changes that 
should be made to it to make it more usable?
    Mr. Kris. It is hard for me to imagine, I mean, there are a 
number of policy judgments involved in the Lone Wolf provision. 
For example, it does not apply to U.S. persons. It would be a 
major policy shift if you extended this thing to U.S. persons 
as opposed to non-U.S. persons.
    Senator Klobuchar. Agreed.
    Mr. Kris. And I'm not advocating one way or the other on 
that from where I sit today.
    I think it is important to have this provision. The fact 
that we haven't used it yet doesn't mean that we won't use it 
or won't need it at some point in the future. As I said, I 
think in the letter that we sent on September 14th to Senator 
Leahy and in my testimony, in the age of the internet and 
decentralized Al Queda, I think there is the possibility of a 
person who is inspired by but not a member of an international 
terrorist group or the possibility of someone who is a member 
of a group but then breaks with the group for whatever reason. 
Perhaps it is not sufficiently radical for his tastes.
    In either of those two situations, the person would be 
engaged in a national terrorism, wouldn't be any longer or ever 
a member of a group and would be I think someone who we would 
want to be able to cover. So I think we should reenact it and I 
don't, or reauthorize it. I guess I don't have specific ideas 
for changing it that I would advance on behalf of the 
administration.
    Senator Klobuchar. OK. Thank you. You started out with your 
testimony saying that you're willing to work with Congress on 
specific proposals and one of the reasons we have these sunsets 
is so we can see if there is some improvements or changes we 
can make.
    But your testimony didn't address any possible changes. 
Should we take this to mean that the DOJ has not found any 
significant problems in either the structure or exercise of 
these authorities that would warrant modification?
    Mr. Kris. Well, I think what has actually happened is that 
Congress has seized the initiative here. Senator Leahy has 
dropped a bill, Senator Feingold and others as mentioned, and 
so what we are doing right now is we are looking hard at those 
bills and there are a lot of provisions in them, a very 
complicated area of law. We are reviewing them aggressively and 
trying to figure out whether the provisions that are suggested 
there will work for us as is or perhaps with modifications.
    So I think the dialog is joined because you have put 
several provisions on the table for us to look at and we are 
doing that.
    Senator Klobuchar. Senator Whitehouse had also said--
through wire taps and sought authorization of wire taps on a 
state level, county attorney level, and so I know how 
complicated these minimization procedures are and what 
protections are in place.
    Do you think that the protections that we have in place are 
sufficient to protect innocent Americans whose personal 
information might be caught in either a roving wire tap or 
Section 215?
    Mr. Kris. I think the existing law does protect very well 
and I think in part that is because of the diligence of the 
FISA court which pays very careful attention to the way these 
authorities are used.
    That doesn't mean of course that they can't be improved. 
There is a lot of different ways to build these statutes and 
combine various elements and that is why we are open to working 
with you without condemning the existing law.
    Senator Klobuchar. And then Mr. Fine's testimony states 
that the FBI has said that the department has dropped the new 
minimization procedures for business records but these 
procedures haven't been issued.
    When do you think these will be issued, and could you 
discuss how they might differ from the current minimization 
procedures?
    Mr. Kris. I am always reluctant to give a prediction about 
the timing of a deliverable, but it does seem to me that we are 
getting close. In terms of the content, I would be reluctant to 
discuss that in an open hearing.
    Senator Klobuchar. OK. In your review of the minimization 
procedures, did you see any problems that deserve our 
attention? Do you want to not discuss that either right now?
    Mr. Kris. Yes, I think I should defer getting into the 
possibly classified details of anything there.
    Senator Klobuchar. OK. On the Lone Wolf provision that we 
just talked about, and I will ask this as my last question. Do 
you believe there is any gaps in the definitions? I want to go 
back to that again, that we could change to make it more usable 
that wouldn't inhibit any intelligence gathering.
    Mr. Kris. We are really not seeking any expansions of the 
definitions of foreign power or agent of foreign power at this 
time.
    Senator Klobuchar. All right. Thank you very much, Mr. 
Kris.
    Chairman Leahy. Thank you. Mr. Kris, I made a note that 
many of us have had briefings on some of the aspects of the 
classified matters that you're talking about. We have several 
members of the, in both parties by tradition in the 
intelligence committee on the Judiciary Committee for that.
    If you feel as you look over your answers there are things 
that you need to be answered in a classified version, we can 
arrange to have that provided for Senators and cleared staff. 
So if you feel that you are unable to give a full answer to 
Senator Klobuchar's question and anybody else and wish to 
follow up, please avail yourself of that and we will arrange 
it.
    Senator Franken.
    Senator Franken. Thank you, Mr. Chairman. Mr. Fine, I am 
going to ask you a question soon.
    Mr. Fine. Okay. I'm waiting for it.
    Senator Franken. First, Mr. Kris, I'm not a lawyer like all 
the, my colleagues here now nor a careful lawyer like you 
singled out. But I did some research and most Americans aren't 
lawyers.
    So I've got a question on the roving wire tap thing and I 
think I understand why it is important because of the 
terrorists and other people we suspect of being terrorists use 
different phones, right?
    Mr. Kris. Yes.
    Senator Franken. Okay. And that's why it is there. But 
under the Patriot Act, the roving wire tap provision does not 
require law enforcement officials to identify the individual or 
the phone or the computer that will be tapped, is that right?
    Mr. Kris. No, I don't think so. The statute requires roving 
or not that the government identify, provide the identity if 
known or a description of the specific target.
    Senator Franken. A description of it, but not the actual 
name.
    Mr. Kris. Not always the name, but you have to say 
something about the specific target.
    Senator Franken. Okay. That is what brings me to this 
because they give you this when you get in the Senate. It is a 
constitution, and I was sworn to uphold it or support it anyway 
and protect it.
    This is the Fourth Amendment. The right of the people to be 
secure in their persons houses, papers and effect against 
unreasonable searches and seizures should not be violated and 
no warrants shall issue but upon probable cause supported by 
oath or affirmation and particularly describing the place to be 
searched and the persons or things to be seized.
    Now, it seems to me, that is pretty explicit language. I 
was wondering if you think that this is consistent with the 
Fourth Amendment.
    Mr. Kris. I do think it is and I kind of want to defer to 
that other third branch of government. The courts in looking 
at----
    Senator Franken. I know what they are. Go ahead, sir.
    Mr. Kris. The courts prior to FISA, prior to FISA every 
Court of Appeals to squarely consider the question had actually 
upheld warrantless foreign intelligence surveillance, that is 
without an advanced court order. The Supreme Court had declined 
to hold that a warrant was required in the so called Keith case 
for foreign intelligence surveillance. So I think you begin 
with that baseline.
    FISA then by requiring advanced judicial approval goes 
above and beyond what the constitution requires for this kind 
of foreign intelligence surveillance. I do think there is an 
argument and probably a good argument that the language that I 
read to you before, that even if you cannot identify the 
particular target but that you describe the specific target 
that it would satisfy the particularity clause that you just 
cited.
    Senator Franken. Thank you. I want to get to Mr. Fine.
    Mr. Fine. Thank you.
    Senator Franken. You're welcome. When the FBI wants 
documents for an investigation, it can either go to the FISA 
court or it can get one of these national security letters, 
right?
    Mr. Fine. Right.
    Senator Franken. And for national security letters you 
don't need approval of the FISA court, right?
    Mr. Fine. You don't need a court approval for a national 
security letter.
    Senator Franken. Okay. So I'm wondering what is to keep the 
FBI from always using the national security letter. So let me 
ask you, are national security letters now being used to get 
around higher requirements of the FISA courts for formal 
business records?
    Mr. Fine. National security letters only apply to certain 
types of information from certain providers. So it can be used 
in those contexts. It cannot be used in other contexts.
    So what limits it is the five statutes under which national 
security letters are authorized which specify very clearly 
where they can be used and where they can't be used. That is 
why, for example, the importance of Section 215 orders because 
there are certain types of records and things that can't be 
obtained by national security letters that have to be obtained 
by Section 215 orders.
    Senator Franken. I'm not sure that was, I didn't 
understand. Was that a yes or a no?
    Mr. Fine. No, I don't think they are using it to get around 
the law.
    Senator Franken. Okay. Let me ask you, have they ever been 
used to get around?
    Mr. Fine. I think they have improperly used them. I don't 
think it was intentional, that there were instances where we 
know we can't get these records but we are going to use them 
anyway. I think it was because of sloppiness, lack of training, 
lack of supervision, lack of knowledge, and those are the 
things that needed to be improved and rectified. That is what 
we pointed out in our report. I think the FBI has made some 
improvements in that area, but I think we need to still monitor 
it and oversee that.
    Senator Franken. Okay. That is just a concern of mine that, 
you know, if they can be misused and have been misused, that 
they will be misused in the future. That is a concern of mine.
    If men were angels, there would be no need for government. 
I think that's Madison. You know, if angels were the 
government, we wouldn't, you know, need external controls. So I 
worry about the next administration might not be as trustworthy 
as this one or the last one.
    Mr. Fine. That's why I believe there needs to be, as I 
stated in my statement, aggressive, important oversight 
mechanisms that don't rely on individuals that have controls on 
this so regardless of the administration there will be ways to 
verify and oversee and determine if they have been used 
properly or not. That is properly our role and partly other's 
role as well including national security and Congress for 
holding these important hearings.
    Senator Franken. Thank you. I have used my time.
    Chairman Leahy. Thank you. I will submit for the record a 
resolution to the Vermont Library Association a letter from the 
Constitution Project as part of the Leahy/Cardin/Kaufman bill 
statement submitted to ACLU and others.
    I was sort of thinking, I was pulling out some notes here 
as Senator Franken was asking this question. We have the FISA 
authority, and I direct this to you, Mr. Kris. We have the FISA 
authority to obtain tangible things such as library or medical 
business records.
    Then we have the Title 18 Authority to issue national 
security letters. Now, you testified earlier and we have all 
agreed these can't be issued based solely on conduct protected 
by the First Amendment but the Inspector General found that in 
one case the FBI was twice denied tangible things ordered by 
the FISA court and the FISA court which normally grants these 
turned them down because they said the underlying conduct was 
protected by the First Amendment and there is no other basis in 
which to issue an order.
    So the FBI then just turned around and issued a national 
security letter based on the exact same conduct protected by 
the First Amendment having been turned down by the court they 
went and did it administratively.
    I think that is why you have a lot of Americans on the 
right and left who are worried about intrusive and unchecked 
government surveillance. We all want to be safe. We all want to 
catch criminals. That is not the issue.
    The issue though is each one of us is our own privacy. The 
vast majority of Americans are law abiding Americans. If there 
is, the material is picked up, they go to data banks and then 
they can't get on an airplane, they can't get a job, they 
can't, the kids can't get a student loan, and you know all the 
horror stories.
    We had a former longest serving member of this committee, 
the late Senator Ted Kennedy was eight or nine or ten times 
refused to go on one of the, an airplane or a flight he had 
been taking for 40 years back to Boston because he somehow is 
named on one of these lists.
    So my question is, and I think this is what Senator Franken 
was saying too, what do we do to ensure this sort of thing 
isn't repeated? I mean, you talk about standards and whatnot. 
How do you ensure that these standards are followed?
    I mean, I know you follow them. I know the Attorney General 
follows them. I know the Director will follow them. Well, how 
do we make sure the agents out in the field follow them?
    Mr. Kris. Senator, it is an excellent question and I think 
a very trenchant one. I mean, I think there is a variety of 
different interlocking methods that can be used to protect 
against misuse or abuse.
    The first is writing the law, setting the standards at a 
certain level and that is something you can do through amending 
the statute. The next is within the executive branch through 
training, oversight by Mr. Fine's office, in some cases my 
office, the National Security Division does oversight of the 
FBI.
    There are electronic systems, for example, for national 
security letters. The FBI developed an electronic subsystem 
that essentially ensures that all of the requirements are met 
before a letter can be issued so we can develop internal 
systems.
    They have an Office of Integrity and Compliance as Mr. Fine 
talked about that does oversight, and obviously congressional 
oversight whether fueled by a sunset provision or just more 
generally about the use of the authorities can provide an 
effective check, and in some cases, the courts. So a variety of 
different methods.
    Chairman Leahy. Let me use one concrete. In the 2006 USA 
Patriot Act Reauthorization, we required, and I helped write 
this, the Attorney General to adopt procedures to minimize 
retention and improper dissemination of private information 
that was obtained by Section 215.
    Going back to what I was referring to earlier about all the 
material that is in data banks floating around there in every 
one of us. Again, I know most Vermonters are somewhat concerned 
about their privacy but I think they are in every state.
    Minimization procedures are supposed to protect the 
constitutional rights of all of us. But Mr. Fine, you found in 
your March 2008 report these safeguards that everybody agreed 
on, Republicans, Democrats, everybody else, minimization. They 
were never put in place. The Attorney General simply recycled 
the FBI's national security investigation guidelines, adopted 
those as the interim minimization procedures you found were 
woefully inadequate.
    They didn't follow the statute. It is one thing to talk 
about oversight and all that and the reauthorization, but the 
statute is not followed and it is a concern. Now we have a new 
Attorney General who followed up on your recommendation that 
specific minimization procedures be developed and adopted. Do 
we have those procedures now?
    Mr. Fine. No, they have not been issued. As I pointed out 
in my statement, they adopted these interim procedures that 
were not specific that they believe that comply with the 
statute, but we believe that there ought to be those specific 
minimization procedures as contemplated by the Patriot 
Reauthorization Act that do apply specifically to Section 215 
orders and they have been in draft, they have been in draft for 
a long time. We think they ought to be considered, finalized 
and issued.
    Chairman Leahy. I will, my time has expired. I will follow 
up more on this. I just wanted to get the information. But if 
it's not something you need, I want to get it out of the data 
banks. I don't want it to cloud over me when I get on an 
airplane or when my constituents do or when they apply for a 
job or whatever else it might be.
    I won't go into discussions of George Orwell and everything 
else, but these things can be frightening. One of the great 
things about this country is we have always said we'd balance. 
Senator Sessions? I don't want material in there on Senator 
Sessions that shouldn't be there.
    Senator Sessions. Well, 1984 came and went and the 
communists didn't get us. I'm glad to have been on the right 
side of that battle.
    The idea of keeping, maintaining confidentiality of an 
investigation, Mr. Kris, can be exceedingly important in a 
national security matter, a terrorism matter. From what I see 
in the paper, and I don't have any inside information, I 
believe the New York Times reported again today that in this 
case, arrests have been made in the Afghan case, that the New 
York police wanted to inquire of an Iman about the individual, 
or an individual and asked him not to reveal that but asked him 
for information about this person as they tried to figure out 
what may have been happening.
    What I understand from the reports is that he went straight 
and reported it to one of the members connected to this 
individual and that may have been, caused the entire 
investigation to be altered and made perhaps more difficult to 
identify people that are involved in a plot to attack and kill 
American citizens.
    Isn't that a legitimate concern and can't we do that based 
on historic settled principles of American constitutional law?
    Mr. Kris. It is a very grave concern when information that 
compromises an investigation is leaked for the reasons that you 
stated. It can have very profound effects on our ability to 
investigate matters and I think existing law in the 
confidentiality requirements and the secrecy requirements exist 
precisely for that reason, in order to protect the secrecy of 
the intelligence investigations because if they are made 
public, they can be compromised.
    Senator Sessions. And it hasn't always been recognized that 
there is a huge difference between surveillance and 
investigations of foreign powers, espionage and counter 
espionage than investigations of American citizens.
    Mr. Kris. There has historically been recognized in law and 
in policy, yes, a distinction between security threats based 
abroad, that is foreign security threats on the one hand, 
domestic security threats, domestic terrorism and ordinary law 
enforcement on the other.
    Senator Sessions. I think Senator Franken's comments about 
the Fourth Amendment, the right of the people to be secure in 
their houses, papers, effects against unreasonable searches and 
seizures.
    So we have set up a system by which you have to go to a 
Federal judge in a Federal case and submit extensive evidence 
to justify a search. But I would also want to emphasize to my 
colleagues and Senator Franken, records held in a bank are not 
your records, they are the bank's records.
    In a motel sign-in sheet that could be decisive in a case 
is not the person who registered's records, it is the motel's 
record. That is why the courts have always recognized that it 
does not violate this court.
    Now, when I was watching Senator Franken I talked about 
Dragnet, Joe Friday and company. They used to go out to the 
motel and get the records to see if old Billy checked in. And 
they would give it to them. Now because of the laws and 
lawyers, banks and everybody often demand subpoena or some sort 
of official document before they will turn it over because they 
don't want to be sued by somebody and have to defend the case 
whether they win or lose.
    But the principles are pretty much the same here. You have 
a diminished expectation of privacy and records held by 
independent third parties. Isn't that right?
    Mr. Kris. I mean, I certainly agree under the Miller case 
in particular that you do have a diminished expectation of 
privacy in such materials and in some cases Congress has seen 
fit to enact protections by statute by such material. For 
example, ECBA is a major example.
    Senator Sessions. Now, with regard to these nondisclosure 
orders, which as a former prosecutor, these investigated drug 
organizations, one of the most delicate, important matters is 
when you start making arrests.
    If you arrest some low level guy the first time you have a 
bit of evidence, the rest of them scatter. They flee, they 
cover their tracks. They disappear. That is even more critical 
in a terrorism investigation to me.
    But isn't it true that it takes the direction of the FBI or 
his high level designee to justify, certify that a non-
disclosure order is needed, and isn't that one thing that the 
Patriot Act did to ensure that it is not done willy nilly 
without some thought and oversight?
    Mr. Kris. Certainly with respect to Section 215 a 
relatively high ranking person makes a submission and then the 
court grants an order. With respect to NSLs, there is no court 
order and the Doe decision from the Second Circuit found First 
Amendment difficulties with that and suggested a so-called 
reciprocal notice procedure that the FBI has adopted which I 
think responds to that concern.
    Senator Sessions. Well, as a Federal prosecutor, I remember 
distinctly that we would issue subpoenas in FBI cases. The 
Grand Jury was not advised until later. No Federal judge was 
given any notice of it and the FBI went out and served it.
    They were always irritated as the United States attorney, 
Mr. Whitehouse, my colleague here, will know that the DEA could 
get a subpoena to go out to the telephone company or the bank 
and get records without asking the U.S. attorney's permission.
    It is not a historic alteration of American criminal 
jurisprudence to have a national security letter in my opinion, 
and it is in an area that is very, very, very important to our 
safety. Thank you.
    Senator Whitehouse. Thank you, Senator Sessions. A question 
for Mr. Fine. Your report when it first came out on the 
national security letters----
    Senator Sessions. Mr. Chairman, can I interrupt you just to 
say that my Republican colleagues, at least three are in the 
Finance Committee trying to do the health care thing. They 
would have been here otherwise. I wanted to state that for the 
record. It is a matter I think all of us take seriously.
    Senator Whitehouse. It is for the record that we're trying 
to do the health care thing?
    Senator Sessions. They are trying to do a good health care 
bill.
    Senator Whitehouse. When the report came out, it dealt very 
heavily with operational issues, failures out in the field of 
people to adhere to the different regulations and statutory 
requirements that had been put in place for the issuance of 
those national security letters.
    One of the points that I raised with the Director at the 
time was that it also showed a very significant organization 
and management failure. These national security letters were 
issued pursuant to statutory authority that a lot of people in 
this building had real reservations about. Republicans and 
Democrats alike, and set a lot of markers saying all right, we 
will give you this, we will trust you, but here is what you 
have got to do.
    In terms of the credibility of the Federal Bureau of 
Investigation as an institution in this building, one would 
have thought that there would have been somebody at the very 
highest level reporting to the Director saying wow, we got this 
new authority under very strict requirements and kind of on 
trust in the confidence that we would follow those rules. 
Therefore, to us as an institution it is really important that 
we follow those.
    I, as that imaginary person, am really, it is my job to 
make sure of this so that when we come back for other 
authorities later on, we don't get into the cry wolf problem of 
hey, we trusted you last time, you completely blew it and now 
you don't have the same trust with us any longer.
    That struck me as being a significant institutional gap 
that the FBI wouldn't have somebody in their leadership whose 
job it was to basically protect that flank of theirs from their 
own junior folks' lack of adherence to these different things.
    In your review of this on an onging basis, are you 
comfortable not only that at an operational level the FBI has 
improved its adherence to the various protocols for national 
security letters, but at the management level they have a 
sensitivity to the importance of adhering to whatever the trust 
is that Congress has given them and that there is more 
management oversight of all compliance and adherence and 
regulatory measures than this displayed?
    Mr. Fine. Yes. I think that as a result of our report in 
March 2007 the FBI was--by it and you are absolutely right, 
there was an institutional failure.
    They received these very important and vital authorities, 
but they did not take measures to ensure that they would be 
used properly and they just assumed that it would be used 
properly.
    When we came out with our report, it was very eye opening 
for them and I do remember even at the time Director Muller 
stating that clearly, stating he took responsibility in stating 
to be honest that he was at fault for not putting in the 
measures to ensure that these authorities that they are given 
are used properly.
    You cannot simply put out a memo and then think it is all 
going to be followed in the 56 field offices of the FBI. You 
have to make sure that they are trained constantly, that they 
are supervised, that they are overseen and that they are 
monitored and audited. I think they have made strides in that 
direction. They made significant progress.
    I mentioned the Office of Integrity compliance, they did 
inspection division reviews, we have national security division 
reviews, but I don't think being an Inspector General that you 
can simply say that is going to solve all the problems and you 
can stop doing it and we can rest assured. You have to 
continually be vigilant on it and we are going to do a review 
of the Office of Integrity Compliance.
    Are they fulfilling their stated mission? Are they having 
an impact? Or was this simply another office that was created 
that is not being effective? We don't know that for sure. We 
are going to determine that. But that is what the FBI also has 
to do on an ongoing basis rather than simply assuming that the 
measures they have implemented are going to be effective.
    Senator Whitehouse. And it is your observation that as an 
institutional wake up call, this incident did in fact have that 
effect?
    Mr. Fine. I think it did. I think it was a very, very 
significant eye opening experience for them when they saw how 
significant our findings were and that they hadn't found them, 
that we found them and exposed them and they were not happy 
about that.
    Senator Whitehouse. Senator Franken.
    Senator Franken. Thank you, Mr. Chair. Senator Whitehouse 
did actually follow up with what I wanted to follow up with. I 
just want to make it clear to Mr. Kris that what I was talking 
about was the roving wire taps and when Senator Sessions 
referred to it, I think it was Section 215. So those are very 
different issues.
    I understand that hotel records aren't the record of the 
person, but when you are doing a roving wire tap and you're not 
telling the FISA judge either the identity of the person or 
exactly where you want to tap them, that just caused me concern 
on the reading of the amendment in the constitution.
    Mr. Kris. Yes. No, I understood absolutely the difference 
there.
    Senator Franken. Okay.
    Mr. Kris. You have raised what I consider to be a 
particularity clause in effect a problem that the warrant or 
the order under FISA is not sufficiently precise and particular 
in specifying exactly what is to be done.
    I tried to give you an answer to that question, but I think 
we----
    Senator Franken. Okay. I just wanted to make it clear that, 
because in response to Senator Sessions, I don't think you made 
the distinction or made it clear that there was a distinction 
between what I was asking and what Senator Sessions was 
discussing.
    Mr. Kris. Yes, sir. There is a very significant distinction 
between Section 215 and FISA collection. I mean, what we are 
talking about in a roving wire tap or an ordinary wire tap is 
the collection of content of communications. That enjoys much 
greater constitutional protection than do say business records 
that are held by a third party absolutely.
    Senator Franken. Okay. I just wanted to make that clear. 
Thank you. No further questions.
    Senator Whitehouse. All right. I thank the witnesses very 
much for their testimony. We will take a minute or so to reset 
the room for the second panel and then we will proceed with the 
hearing.
    [Off the record at 11:48 a.m.]
    [On the record at 11:51 a.m.]

                                Panel II

    Senator Whitehouse. The hearing will come back to order. 
Why don't I begin by asking the various witnesses to stand and 
we can get them sworn.
    Do you affirm that the testimony you're about to give 
before the committee will be the truth, the whole truth and 
nothing but the truth so help you God?
    Group Answer. I do.
    Senator Whitehouse. Please be seated. We have a 
particularly distinguished panel here this morning and I would 
like to welcome all three witnesses. I am delighted that they 
are here.
    I think what I will do is make all three introductions 
right away and then we will proceed across the panel beginning 
with Ms. Spaulding.
    Suzanne Spaulding is a Principal with Bingham Consulting 
Group and of counsel to Bingham McCutchin in Washington, DC. 
She has spent over 20 years handling national security issues 
for Congress and the Executive Branch, including serving as 
Assistant General Counsel out at the CIA, Minority Staff 
Director for the House of Permanent Select Committee on 
Intelligence, General Counsel for the Senate Select Committee 
on Intelligence and as Legislative Director to Senator Arlen 
Specter.
    Kenneth Wainstein is currently a partner at O'Melveny & 
Myers where he works in the white collar crime group. Mr. 
Wainstein is the first Assistant Attorney General for National 
Security serving in the Bush Administration. He also served as 
Homeland Security Advisor to President George W. Bush and as a 
United States Attorney for the District of Columbia.
    Ms. Lisa Graves is the Executive Director of the Center for 
Media and Democracy at the University of Wisconsin. She has 
served as a Senior Advisor in all three branches of the Federal 
Government and is a leading strategist on civil liberties and 
constitutional protections.
    She served as Chief Nominations Counsel to Senator Leahy 
from 2002 until 2005. We welcome you back to the Judiciary 
Committee. We welcome all of the witnesses. We are honored to 
have you with us. Those of you who I have had the experience of 
their work in public service, I am particularly grateful to 
have you back here today. Thank you for your service.
    Suzanne Spaulding.

STATEMENT OF SUZANNE E. SPAULDING PRINCIPAL, BINGHAM CONSULTING 
                     GROUP, WASHINGTON, DC

    Ms. Spaulding. Thank you, Acting Chairman Whitehouse, 
Ranking Member Sessions and members of the committee. Thank you 
for your invitation to participate in today's hearing on 
Ensuring Liberty and Security.
    Earlier this month we marked another anniversary of the 
attacks of September 11th. In the 8 years since that indelible 
manifestation of the terrorist threat, we have come to better 
understand that respect for the constitution and the rule of 
law are a source of strength and can be a powerful antidote to 
the twisted lure of the terrorists.
    In fact, after spending almost 20 years working national 
security and terrorism issues for the government, I am 
convinced that this approach is essential to defeating the 
terrorist threat.
    Given this national security imperative, Congress should 
use this opportunity to examine more broadly ways to improve 
our overall domestic intelligence framework, including a 
comprehensive review of FISA, national security letters, 
attorney general guidelines and applicable criminal 
investigative authorities and I would encourage the 
administration to do the same.
    This morning, however, I will focus my remarks on the 
sunsetting provisions that are the focus of this hearing. 
Sections 215 and 206 both have corollaries in the criminal 
code. Ultimately, however, important safeguards were lost in 
their translation into the intelligence context.
    Section 206, for example, was intended to make available an 
intelligence surveillance, the roving wire tap authority that 
criminal investigators have. This was an essential update. 
However, there are specific safeguards in criminal Title 3 
provision that were not carried over to FISA, requirements that 
provided significant safeguards designed to protect Fourth 
Amendment rights of innocent people.
    Their absence in Section 215 increases the likelihood of 
mistakes and the possibility of misuse. In addition, in the 
criminal context where the focus is on successful prosecution, 
exclusionary rules serve as an essential deterrent against 
abuse, one that is largely absent in intelligence operations 
where prosecution may not be the primary goal.
    This highlights the care that must be taken when importing 
criminal authorities into the intelligence context. And why it 
may be necessary to include more rigorous standards and other 
safeguards. I have suggested in my written testimony some ways 
to address these concerns.
    Similarly, Section 215 governing orders for tangible things 
attempted to mimic the use of Grand Jury or administrative 
subpoenas in the criminal context. However, criminal subpoenas 
require some criminal nexus, FISA's 215 does not.
    Moreover, the Patriot Act amendments broaden this Authority 
well beyond business records to allow these orders to be issued 
to obtain any tangible thing from any person. This could 
include an order compelling you to hand over your personal 
notes, your daughter's diary or your computer. Things to which 
the Fourth Amendment clearly applies.
    Again, in my written testimony I have tried to suggest ways 
to tighten the safeguards without impairing the national 
security value of this provision. In the interest of time, 
however, I will move to the Lone Wolf provision.
    Four years ago I urged Congress to let the Lone Wolf 
provision sunset and I reiterate that plea today. The 
administration admits that Lone Wolf authority has never been 
used but pleads for its continuation just in case.
    The problem is that this unnecessary provision comes at a 
significant cost of undermining the policy and constitutional 
justification for the entire FISA statute, a statute that is an 
extremely important tool for intelligence investigations.
    Legislative history, court cases before and after the 
enactment of FISA including two cases from the FISA court 
itself make clear that this extraordinary departure from Fourth 
Amendment standards is justified only by the unique 
complications and secrecy requirements inherent in 
investigating foreign powers and their agents.
    Unfortunately instead of repealing or fixing Lone Wolf, 
Congress expanded it by adding a person engaged in 
proliferation. There is no requirement that this activity be 
unlawful or that the person know that they are contributing to 
proliferation.
    So someone who is involved in completely legal sales, for 
example, of dual use goods, unbeknownst to her that are being 
sold to a front company could be considered to be engaged in 
proliferation and have all of her phone conversations and 
emails intercepted and her home secretly searched by the United 
States government.
    As a former legal advisor to the intelligence community's 
non-proliferation center and executive director of a 
congressionally mandated weapons of mass destruction 
commission, I fully understand the imperative to stop the 
spread of these dangerous technologies.
    However, there are many tools available to investigate 
these activities without permitting the most intrusive and 
secretive techniques to be used against people unwittingly 
involved in legal activity.
    In conclusion, let me commend the committee for its 
commitment to ensuring that the government has all the 
appropriate and necessary tools at its disposal in this vitally 
important effort to counter today's threats and that these 
authorities are crafted and implemented in a way that meets our 
strategic goals as well as our technical needs.
    With the new administration that provokes less fear of the 
misuse of authority, it may be tempting to be less insistent 
upon statutory safeguards. On the contrary, this is precisely 
the time to seize the opportunity to work with the 
administration to institutionalize appropriate safeguards in 
ways that will mitigate the prospect for abuse by future 
administrations or by this administration in the aftermath of 
an event. Thank you.
    Senator Whitehouse. Thank you very much, Ms. Spaulding.
    Mr. Wainstein, welcome back to the committee. Please 
proceed.

 STATEMENT OF KENNETH L. WAINSTEIN PARTNER, O'MELVENY & MYERS, 
                      LLP, WASHINGTON, DC

    Mr. Wainstein. Thank you very much, Chairman Whitehouse. It 
is very good to be back here again.
    Senator Whitehouse. Good to have you back.
    Mr. Wainstein. Chairman Whitehouse, Ranking Member 
Sessions, members of the committee, thank you very much for 
holding this important hearing and for soliciting our views 
about the USA Patriot Act.
    Today I want to discuss the three sunsetting provisions and 
the reasons why I believe they should all be reauthorized. As 
you well know, the Patriot Act was passed in late October, 2001 
within a mere 45 days after the 9/11 attacks. Four years later 
in 2005, Congress in its enduring credit undertook a lengthy 
process of carefully scrutinizing each and every provision of 
the Patriot Act, a process that results in the Reauthorizaton 
Act that provided significant new safeguards for many of the 
original provisions.
    We are now at a point where the authorities and the Patriot 
Act are woven into the fabric of our counterterrorism 
operations and have become a critical part of our defenses 
against what President Obama has aptly described as Al Queda's 
``far reaching network of violence and hatred.''
    This is particularly true of the three provisions that are 
subject to reauthorization this year. First, the roving wiretap 
authority. First, this provision allows agents to maintain 
continuous surveillance as a target moves from one telephone or 
communication device to another which is standard tradecraft 
for many surveillance conscious spies and terrorists.
    This is a critical investigative tool and it is one that 
criminal investigators pursuing drug traffickers know their 
regular criminals have been able to use for years.
    It is especially critical nowadays given the proliferation 
of inexpensive cell phones, calling cards and other innovations 
that make it easy to dodge surveillance by rotating 
communication devices.
    While some have raised privacy concerns about this 
authority, the reality is it has a number of safeguards built 
into it to make sure that it is used appropriately. For 
example, it is specifically limited to those situations where 
the government can show to the FISA court that the target is 
swapping cell phones or otherwise thwarting the government's 
surveillance efforts and it requires the government to keep the 
FISA court fully apprised with detailed reports whenever they 
move their surveillance from one communication device to 
another.
    Given the narrow application of the statute, given the FISA 
court's oversight of the roving surveillance and given the 
absolute imperative of being able to maintain uninterrupted 
surveillance on terrorists and spies who are in our midst, 
there is no question in my mind that the roving wiretap 
authority should be reauthorized.
    Now, on to Section 215. Section 215 authorizes agents to 
get a FISA court order that will compel businesses to produce 
the same kind of records that law enforcement officers and 
prosecutors have always been able to obtain to grand jury 
subpoenas.
    Prior to the enactment of Section 215, our national 
security personnel were hamstrung in their effort to obtain 
business records because the operative statute at the time 
limited those orders only to certain types of businesses and 
required a higher evidentiary standard than grand jury 
subpoenas did.
    Section 215 addressed these weaknesses by allowing these 
orders to be used to get records from any businesses or any 
entities and by squaring the evidentiary standard with the 
traditional relevant standard used for grand jury subpoenas.
    At the same time, Congress built in a number of safeguards 
that protect against misuse and in fact make Section 215 
significantly more protective of the civil liberties than the 
grand jury subpoenas that are issued by the hundreds or 
thousands by criminal prosecutors around the country every day.
    For example, as Ranking member Sessions pointed out 
earlier, unlike grand jury subpoenas that a prosecutor can 
issue or his or her own, a 215 order must be approved by a 
Federal judge on the FISA court. Unlike the subpoena authority, 
Section 215 also does several other things.
    It specifically bars issuance of an order if the underlying 
investigation is focused solely on First Amendment activities. 
It requires regular and comprehensive reporting to Congress and 
it imposes a higher standard when the government seeking 
library records or other sensitive records.
    With these safeguards in place, there is simply no reason 
in my mind that we should be returning to the days when it was 
easier for a prosecutor to get records in a simple assault case 
than it was for national security investigators to obtain 
records that might help defend our country against a terrorist 
attack. Section 215 should be reauthorized.
    Last, the Lone Wolf provision. This provision allows the 
government to conduct FISA surveillance on non-US persons who 
engage in international terrorism without having to demonstrate 
that that person is affiliated with a particular terrorist 
organization.
    When FISA was originally passed back in 1978, it 
contemplated terrorist target of FISA surveillance was the 
agent of an organized terrorist group kind of like the Red 
Brigades, the kind of target that easily fit within the 
statutory definition of an agent of foreign power.
    Today we face adversaries that range from loosely knit 
terrorist networks to self-radicalized foreign terrorists who 
may not be part of a particular terrorist group but who are 
nonetheless just as committed to pursuing the violent 
objectives of international terrorism.
    As a result, there is a risk today that we will encounter a 
Lone Wolf foreign terrorist who cannot be identified with a 
known terrorist group and therefore would not qualify for FISA 
coverage under the original statute.
    Congress solved this problem by passing the Lone Wolf 
provision. It allows for FISA surveillance based on a showing 
that the target is involved in international terrorism 
regardless of affiliation.
    Although as the government reported we have not yet used 
the Lone Wolf provision, the threat posed by foreign 
terrorists, no matter what their affiliation, is more than 
ample justification for keeping this authority available for 
the day that the government might need it.
    Thank you once again for inviting me here today. I am 
grateful for the opportunity to discuss the sunsetting Patriot 
Act provisions and to lay out my reasons why I firmly believe 
that they should all be reauthorized this year. I look forward 
to answering any questions you might have. Thank you.
    Senator Whitehouse. Thank you, Mr. Wainstein.
    Ms. Graves.

STATEMENT OF LISA GRAVES, EXECUTIVE DIRECTOR, CENTER FOR MEDIA 
                  & DEMOCRACY, WASHINGTON, DC

    Ms. Graves. Senator Whitehouse, Chairman Leahy who is not 
here, but who I was hoping to have the chance to address, 
Ranking Member Sessions and the members of the judiciary 
committee, I am very pleased to be here and I really appreciate 
the invitation.
    I have a full statement for the record but I was hoping 
today for these opening remarks to focus on some of the things 
that have come up today in the conversation.
    Before I begin, I do want to say that I am pleased to 
endorse the legislation sponsored by Senator Leahy and Senator 
Cardin and Senator Kaufman, the Patriot Sunset Extension Act. I 
think it is an important down payment on restoring civil 
liberties.
    I am hoping that other improvements will be made. I would 
also like to endorse S. 1686 which is Senator Feingold's 
Justice Act. I think it is a comprehensive approach to some of 
the problems that have arisen over the last 7 years and I think 
that bill which is proposed by Senator Feingold and Senator 
Durbin is an important, has an important array of provisions to 
restore civil liberties.
    I want to focus my testimony today on Section 215 of the 
national security letters. But before I do that, I want to 
touch briefly on Section 206 and the particularity requirement 
issue.
    I would only say that it is a bit difficult to focus on 
what the rules should be for roving wire taps in this context 
when we haven't had the needed reforms to the broader Foreign 
Intelligence Surveillance Act amendment Act, the FISA amendment 
Act that was pushed through last year.
    What we have is a circumstance in which an enormous array 
of communications involving Americans, particularly 
international communications, telephone communications and 
internet communications are now accessible through blanket 
orders or broad orders without individualized particularity 
that are being approved by the FISA court.
    So on the one hand we have an enormous array of information 
about American content spoken and written by Americans that is 
being obtained through the FISA Amendments Act powers. On the 
other hand we have this roving wire tap authority that exists 
and happens domestically that is distinct and yet to me not the 
biggest issue compared with what we have in terms of the broad 
authorities under the FISA Amendments Act. But I will save the 
rest of that for another day.
    Today I want to focus on Section 215, the issue of business 
records, the issue of tangible things and national security 
letters.
    So a lot of the conversation today focused on this 
presumption issue for Section 215 orders and whether something 
is relevant. But what the law now requires is merely that the 
government say that the records pertain to, that's the 
relevance test, do these record pertain to a particular person 
and that particular person can be someone who has contact with 
a suspected terrorist or someone who is under surveillance.
    So mere contact is a very low standard. There are 100 
people in this room. There may be 1,000 people you have contact 
with every year, probably a lot more than that. The government 
doesn't have to show any particular suspicious activity. Based 
on showing mere contact, they can have access to any tangible 
thing about you.
    So relevant to what? Relevant to merely a person and that 
person doesn't have to be someone who is a suspected terrorist. 
In fact, what the Justice Department said in a report in 2006 
was that the Patriot Act authorized the FBI to collect, and 
this is for national security letters which is basically the 
same standard, for national security letters the FBI is 
authorized to collect information such as telephone records, 
internet usage, credit and banking information on persons who 
are not subject to FBI investigations. This is according to the 
Justice Department.
    This means that the FBI and other law enforcement and 
intelligence community agencies with access to FBI data bases 
is able to review and store information about American citizens 
and others in the United States who are not subjects of FBI 
counter intelligence investigations and about whom the FBI has 
no individualized suspicion of illegal activity.
    That is why this issue matters so much. The 215 orders 
cover any tangible thing. The national security letters cover 
anything held by a bank, a credit card company, an insurance 
company, a pawn broker, a real estate closing service, the 
United States postal service and a casino among other 
authorities.
    So these aren't just narrow authorities that relate 
particularly to internet service providers and banks. They are 
broad authorities in the national security letter powers.
    The ISP authority that came up in the context of the 
questions for about the library, what happened there is the FBI 
construed the library to be an internet service provider. If a 
library can be an internet service provider, then anyone can be 
an internet service provider. Any Senate office, any business 
that maintains an internet service would be basically 
accessible through these authorities. That is why they are so 
broad. That is why they need further containment and that's why 
the improvements that have been proposed by Senator Feingold 
and by Senator Leahy are so important.
    These powers go to the heart of what the power should be 
for the government vis-a-vis the citizens of the United States 
and we know that these documents, the documents that are 
obtained through these powers are being put into FBI data 
bases. The FBI data base, the investigative data warehouse now 
has almost 1 billion records in it.
    The Inspector General Glenn Fine said that the national 
security letter powers were used to clear cases, to clear 
people and close cases. But the FBI has said that even if you 
are cleared or your case is closed, those records will be 
maintained basically forever.
    That is why your inquiry is so important and that's why I'm 
pleased to be here today to talk about the needed reforms for 
the Patriot Act authority that were expanded in 2001.
    Senator Whitehouse. Thank you, Ms. Graves. I will call on 
our distinguished ranking member first and then Senator 
Feingold and then I will wrap up unless other Senators appear. 
But first the distinguished ranking member.
    Senator Sessions. Thank you. Mr. Wainstein, if records are 
obtained by the FBI as part of a terrorist investigation, how 
are they secured? Are they available to anybody that wants to 
walk in and look at them? Or are they kept in a secure 
circumstance regardless of what is normal criminal case or 
terrorist case?
    Mr. Wainstein. Well, sir, as you know in the criminal 
context there are procedures in place and have been since--to 
make sure that records that are secured by Grant Jury subpoena 
are kept confidential because there are rules governing any 
material that is collected in the course of the grand jury.
    Senator Sessions. It's a criminal offense to reveal a grand 
jury document.
    Mr. Wainstein. Yes, sir, absolutely. Those procedures are 
even more strict on the national security side where you have 
classified information potentially and also national security 
information which is even more sensitive in some ways.
    Senator Sessions. Ms. Spaulding, you signed a letter back 
in '05 to reauthorize the Patriot Act. Fundamentally you 
support it. Have you changed your view about the Lone Wolf 
issue?
    Ms. Spaulding. Senator, I have always been opposed to the 
Lone Wolf provision and I think what you are referring to is a 
letter by a bipartisan working group that states very clearly 
at the outset that what we were attempting to do was come 
together on a compromised package, overall package, and that it 
did not mean that all of the signatories agreed with each and 
every recommendation.
    Senator Sessions. I understand. But in fact you concluded 
at the time it was worth passing even though you might have had 
a disagreement about that part?
    Ms. Spaulding. Well, I concluded at that time along with 
the other members of that group that the overall provisions of 
the Patriot Act had implemented some important updates and 
should be reauthorized with some changes as we recommended. I 
have always been opposed and continue to be opposed to the Lone 
Wolf provision.
    Senator Sessions. I don't think that letter you wrote said 
it had to be taken out. But regardless, on the telephone you 
indicated that on the 215 your telephone conversations could be 
intercepted, is that correct?
    Ms. Spaulding. No, Senator. I think I said your personal 
notes, your daughter's diary and your computer, all of which 
are tangible things susceptible to a 215 order.
    Senator Sessions. Well, if your daughter is connected to a 
terrorist organization, maybe that is important. I don't think 
the FBI is out just gratuitously wanting to peruse people's 
diaries. That's the only thing I would say here.
    With regard to the 215, you say it could take your personal 
records. You cannot under 215, can you, take somebody's records 
that you own in your home or on your possession.
    Ms. Spaulding. There is nothing in the statute that would 
prohibit that. The Section 215 allows the government to compel 
anyone to produce any tangible thing.
    Senator Sessions. So you think it can replace a search 
warrant?
    Ms. Spaulding. According to the plain terms of the statute, 
it does not have to be directed to a business or an entity. It 
can be directed to any person to compel any tangible thing.
    Senator Sessions. Mr. Wainstein, can you utilize a 215 
request to obtain a target's personal records in his desk 
drawer in his home?
    Mr. Wainstein. You raise a very good question, sir. I think 
the analysis is the same as on the criminal side. You know, the 
person would have certain privileges to invoke, so there is a 
mechanism for challenging a 215 order before the FISA court.
    One of the bases for that challenge could be I have got a 
Fifth Amendment right not to disclose the items that are 
sought.
    Senator Sessions. So on the 215 it is akin, I mean, it is, 
you go to the court first before you can execute it, unlike the 
national security letter which you can execute administratively 
essentially?
    Mr. Wainstein. Yes, sir. And as you pointed out, like any 
administrative subpoena, and there are I think 300 different 
types of administrative subpoenas out there for various civil 
and criminal kinds of enforcement.
    In none of those situations does the agency have to go to 
the court. Then as we had both pointed out, the prosecutor 
doesn't need to go to the court before issuing a grand jury 
subpoena in a regular criminal context.
    Senator Sessions. Do you say that there is an intellectual 
problem let me say with defining an entity at war with the 
United States, the Lone Wolf thing, as a single person as 
opposed to a multiplicity? Intellectually can't an individual 
be at war with the United States just as well as a group of 
people?
    Mr. Wainstein. Well, I think actually sort of stepping back 
and looking at taking it out of the context of, the terminology 
of a statute, looking at the purpose of the Lone Wolf 
provision, it is exactly that. There could be a person out 
there who is maybe working with international elements and is 
inspired by international terrorists, terrorist groups but we 
cannot hook that person to a particular group.
    He could be just as dangerous and just as devastating to 
America and Americans as somebody who is a card carrying member 
of Al Queda.
    Senator Sessions. The thing about these contacts and these 
records that might be issued to this or that bank or telephone 
company, the reality is that the person may be perfectly 
innocent but they may be in contact with a terrorist.
    Just the fact that they have contact can be proof of 
something or prove they were in town, prove they were making 
communications, proving that they were furthering their agenda. 
Maybe it was to rent a U-haul truck to carry explosives in. 
Those kinds of things can be just critical to an investigation.
    I think we struck the right balance. I think there is a lot 
of controls and limits and reviews over this. Senator 
Whitehouse, I think that Senator Leahy and others, we went 
through this weeks and weeks and it was not rushed through. It 
was a number of months of intense effort.
    Senator Feingold held our feet to the fire time and time 
again on issues that he felt were important and won a number of 
battles and lost some. I think it was not just thrown together 
as a blind reaction to a terrorist attack. We did not just 
ignore our constitutional principles and traditional law 
enforcement principles. Thank you.
    Senator Whitehouse. Thank you, Senator Sessions.
    Senator Feingold.
    Senator Feingold. Thank you, Mr. Chairman. The Senator from 
Alabama, I really enjoy working with him, but I wish I 
remembered those victories. I don't recall them, but it was an 
excellent experience trying to achieve them.
    I want to thank this panel very much. Ms. Spaulding, you 
argued that the so called Lone Wolf authority undermines the 
policy and constitutional justification of FISA and the 
Congress allowed to sunset and I know Senator Sessions was 
talking to you a little bit about that.
    As you know, the Justice Department argues that the 
authority should be reauthorized even though it has never been 
used. Can you explain why the connection to a foreign power is 
so important to FISA's constitutionality?
    Ms. Spaulding. The reference to the foreign power and agent 
of foreign power as underlined the justification for FISA comes 
out of a Supreme Court case in which they were looking at a 
domestic national security case and decided that the 
traditional Fourth Amendment warrant requirements would still 
apply there.
    In a footnote they said that they were not ruling on cases 
that involved foreign powers or agents of foreign powers 
because of the unique complications and requirements inherent 
in those kinds of investigations.
    Clearly one of the key aspects of FISA that is beneficial 
in intelligence investigations is the secrecy. It is also a 
source of concern as you noted and as we have discussed this 
morning. But the secrecy with respect to FISA electronic 
surveillance versus the ability to use a Title 3 criminal 
wiretap which is always an option for a Lone Wolf or anyone 
else, it really goes to the sensitivity of the information in 
the application for an electronic surveillance under FISA and 
the sensitivity really derives from the information you would 
put in that application, tagging this person to a group.
    It is the information that you have in that application 
with regard to the broader activities of a terrorist group that 
make it so sensitive and different from a Title 3 criminal 
application with respect to an individual.
    That sensitivity simply isn't as pronounced when you are 
going after a Lone Wolf, a single individual that you are not 
tying to a group. Your application is going to contain----
    Senator Feingold. So is the option of a criminal wire tap 
order an adequate alternative in the Lone Wolf situation?
    Ms. Spaulding. I think a Title 3 wiretap application ought 
to be sufficient. I think if the government can make the 
compelling case that if they determine there is actually 
attachment to a group, perhaps Congress would want to consider 
allowing a transfer then from a Title 3 to a FISA with the 
secrecy. I think there are ways to work through that but I 
think that Title 3 wire tap for these True Lone Wolf ought to 
be sufficient.
    Senator Feingold. Ms. Spaulding, last week I asked the FBI 
Director Muller if the FBI had made any changes to the way it 
handles the gag orders associated with Section 215 orders as a 
result of the second circuit decision ruling that the gag 
orders associated with the national security letters violate 
the First Amendment. The section 215 issue was of course not 
directly addressed by the court which was considering NSLs, but 
the court's opinion certainly seems to have some implications 
in the same context.
    Yet Director Muller said the FBI has not made any changes 
to the way it handles 215 gag orders. What is your view on the 
applicability of the court's decision to gag orders under 
Section 215 and does the FBI's position suggest that 
legislative changes are needed?
    Ms. Graves.
    Ms. Graves. Thank you, Senator Feingold. I would say that 
clearly the language in the second circuit's decision is 
applicable. It is relevant to how these matters should be 
addressed by the government.
    To take a very narrow view of that decision which was in 
the national security letter case and say because it deals with 
Section 505 of the Patriot Act, even though the gag terms are 
similar if not substantially the same, it shouldn't be applied 
to Section 215 gag order is the wrong approach.
    Even though they are not technically legally bound by that 
precedent in that other context, as a matter of good 
constitutional interpretation, they ought to consider 
themselves bound by it and ought to change their approach to 
handling those gag orders. So I think we definitely need a 
legislative fix.
    Unfortunately in this area and a number of areas as you 
pointed out in your legislation, the administration, any 
administration saying we are going to look into it or take care 
of it is not adequate. We need strong rules and clear rules.
    Senator Feingold. Ms. Spaulding.
    Ms. Spaulding. I think that's right, Senator. The second 
circuit was very clear about the constitutional basis for 
requiring that the government make more than just merely an 
assertion of the need for secrecy, for example, and I think 
that is something that carries forward to Section 215 and other 
contexts in which we have got gag orders in place.
    Senator Feingold. I thank you and I thank the Chair.
    Senator Whitehouse. Thank you, Senator Feingold. Thank you 
for your determined and passionate and very thoughtful advocacy 
in these areas.
    Let me start with Ms. Graves' concern that the scope of the 
215 authority is very broad in the sense that all the record 
has to do is pertain to a person and all that person has to 
have is contact with the target. It could be the butcher at the 
market, it could be somebody who knows them at work, it could 
be any sort of thing.
    From a point of view of relevance, it would seem logical 
that the record request in the pertaining to universe would 
relate in some fashion to the contact. So if we went back to 
Senator Sessions' example of the U-haul sales person or rental 
person, if the contact with the target is that they came and 
rented a U-haul, then it would seem that the logical relevance 
of records in that U-haul operators universe would be to those 
dealing with the rental of U-haul to that target.
    But there is nothing that I see in the authority that 
limits it to that. You could go after say school records of the 
U-haul operator or medical records or phone records or DNA 
records or any other such thing. I'm wondering given that very 
broad scope have there been operational guidelines implemented 
that prevent that sort of thing from happening in the 
implementation of these statutes and of these requirements to 
your knowledge, Ms. Spaulding and Mr. Wainstein?
    Ms. Spaulding. I don't know the answer to that, Senator.
    Senator Whitehouse. You know, sometimes you've got a very 
broad legislative authorization but an agency that is 
implementing it either through administrative rulemaking or 
through internal procedure narrows it and specifies more 
precisely in order to keep itself out of trouble, in order to 
avoid an attack on the statutory authority that they're going 
to do things in a certain way that is narrower than the full 
range of their statutory authority.
    To your knowledge, has that happened with this particular 
question pertaining to relevance for somebody who has mere 
contact with a target?
    Mr. Wainstein. Senator Whitehouse, in regards to the 215, 
the relevance of 215, off the top of my head I can't remember 
particular internal FBI guidelines that would be a response to 
your question.
    But keep in mind a couple of things. One, the court, we 
have to make the showing to the court. So built into the 
statute unlike in the NSL----
    Senator Whitehouse. Well, this falls within the presumption 
that we talked about earlier, doesn't it?
    Mr. Wainstein. Yes.
    Senator Whitehouse. So once the government has made the 
showing to the court, the statute says that it is presumptively 
relevant, the court at that point is faced with an interesting 
situation because the burden of going forward with showing that 
it is not relevant has now shifted to a party that is not 
present in the room, to an imaginary person or a non-existent 
person.
    So where you are the court and you have I think the very 
awkward situation in front of you unless there is some 
clarification which is the government is now, or the statute 
has now moved the burden of going forward and disputing that 
presumption to a party who does not exist and is not present. 
So you are kind of stuck with the government's case.
    I don't know, the statute would not be any different if you 
simply said when the government shows you this stuff, you shall 
issue. I mean, the presumption is a really false linkage. It 
falsely implies that there is some flexibility there when in 
fact it is a direct shot because there is nobody to actually 
claim, to take up the burden of persuasion.
    So it is not very reassuring to me to say that well, the 
judge has a look at it because the judge may very well take the 
view that hey, I'm stuck with this statutory presumption. If 
there were somebody here, maybe I could decide between the two 
parties, particularly if you believe a certain school of 
judicial activism for the judge to take that step would be, you 
know, activist because it is not something that is being argued 
by a party.
    The judge is now really hamstrung. So that is not a very 
reassuring fall back for you, Mr. Wainstein.
    Mr. Wainstein. Well, if I may at the risk of sort of wading 
into the semantic discussion that you had with Mr. Kris. I do 
understand your concern.
    Senator Whitehouse. I thought semantics were important.
    Mr. Wainstein. They are important. I understand your 
concern about the word presumption and how it doesn't really 
fit in the ex parte context.
    It is usually used in the context of two people who are 
adversarial and they are arguing one way or the other and--the 
bailout. There is a presumption that someone is a risk of 
flight or a danger to the community if they are charged with a 
certain type of violent crime.
    That is a presumption that sort of moved the needle over 
toward the government in the argument as to whether a defendant 
should be held prior to trial.
    Senator Whitehouse. Correct.
    Mr. Wainstein. You are very familiar with that. I believe 
though that it is not inconsistent to apply that same logic to 
the ex parte context because judges make ex parte decisions all 
the time.
    Let's say in the context of a regular search warrant in a 
drug case, a judge looks at a search warrant and says OK, I 
have to look for probable cause. Well, you know, on the meter 
of burden of proof, probable cause is right here somewhere. So 
the judge applies that.
    Now, there is something to say, there is a presumption on 
that that moves it over this way and presumably the judge moves 
that internal needle over to the right a little bit.
    So I see your concern about the use of the term that it 
doesn't really fit. I don't think though that it is 
inconsistent with sort of standard practice to have judges just 
be told this is the standard you are going to apply and this 
standard might change, you know, might rise or lower depending 
on the existence with certain facts.
    If I could just very quickly get to the substance here.
    Senator Whitehouse. I'm just not sure that a legal 
presumption is the technical way that you want to be doing 
that. I will let you continue, but I just want to summarize. In 
your testimony, it concludes in very, all or nothing fashion 
that the roving wire tap authority 215 order authority and the 
Lone Wolf authority should all be continued. They should be 
reauthorized.
    I don't know that there is any doubt anywhere in this 
committee that that is the case, so I think the question more 
is in reauthorizing them, are there further refinements and do 
I take it from your testimony that it is your belief that there 
are no further refinements that are appropriate or necessary in 
any of these provisions?
    Mr. Wainstein. No. I would not take my testimony to mean 
that these provisions are perfect and they should not be 
touched. I think that the core authorities though are 
necessary, they are proven to be effective and under sort of 
the current oversight regimes and with the limitations that are 
currently built into the statutes, they are being implemented 
in a way that is consistent with civil liberties.
    Senator Whitehouse. I took you off the point that you 
wanted to make.
    Mr. Wainstein. That being said, if there are refinements 
that could be proposed which would improve the safeguards 
against misuse but not undermine their effectiveness, and I 
have heard some ideas here about more public reporting, maybe 
certain audits, this kind of thing which may very well be very 
salutary improvements, I'm not objecting to that.
    I guess the only point I wanted to make is to kind of 
reiterate something that David Kris had said earlier when 
talking about the use of NSLs and 215 orders. Keep in mind that 
as he said, these are used very early on in an investigation 
and they are often used to weed out the people who are 
innocent.
    But you are talking about the situation where contact is 
just sort of a glancing contact and suddenly your records 
because you happen to be the contacter and the known terrorist 
is the contactee, your records are now in the possession of the 
FBI.
    In reality, we need that. We need to be able to do that 
because we have a foreign spy and we see that foreign spy just 
like we see any--novel sitting on a park bench with a fedora on 
his head and somebody else walks up with a fedora and a trench 
coat and sits on that bench and they look very suspicious at 2 
in the afternoon, there is good reason to think that maybe that 
is a drop going on. Some kind of espionage taking place right 
in that park.
    We might want to know something about that guy when he goes 
and gets in the car and drives away. That's the kind of thing 
that we need to do early on.
    Senator Whitehouse. But then when he gets up from that 
suspicious meeting and goes down the street and stops in and 
buys a pack of cigarettes and then goes back out and walks down 
the street, the poor fellow who just sold him the cigarettes is 
subject to the exact same degree of scrutiny as the person 
having the suspicious potential drop meeting and not only in 
the context of the sale of the cigarettes or even more broadly 
the operation of that store, but conceivably as to their 
medical records as to their banking records or as to their, any 
other kind of personal thing.
    It just seems that there might even be an internal relevant 
standard that would make some, you know, once you are in that 
world, that the government should still have some burden of 
showing what they want actually had some relevance to an 
investigative strategy or theory that the government can 
articulate before they just go wandering through the bus 
driver's psychological records. I mean, who knows what it could 
be. It is a big universe when it is any record pertaining to 
any person who had any contact with the target. That's a huge 
universe in this modern world.
    Mr. Wainstein. True. Keep in mind however that this has to 
be explained to a FISA court judge and so the FISA court judge 
reviewing that factual statement as to what that connection 
was, and if it is quite clear that it was an obviously innocent 
day to day interaction, I think you're going to have some 
questions from the FISA court judge.
    Ms. Spaulding. Although the FISA court judge is limited to 
applying the law as written as opposed to how the judge thinks 
it should be written.
    Senator Whitehouse. But presumptively the thumb is on the 
scale in that FISA judge's calculation at that point.
    Ms. Spaulding. The other issue that this raises that is 
very important of course is that it places a very high premium 
on having minimization procedures that are very rigorous.
    Inevitably you are going to collect records that turn out 
not to be relevant to your investigation and it is why it is of 
such concern that the Inspector General found that the 
minimization procedures for Section 215 were deficient, that 
they still haven't been issued and that we really weren't able 
to have a public discussion about those procedures today.
    Ms. Graves. And if I may, Senator.
    Senator Whitehouse. Please.
    Ms. Graves. On that issue, the standard for national 
security letters, the same rule applies in essence so long as 
the records pertain to someone who has any contact without any 
indicia of suspiciousness, always the hypotheticals involve 
some suspiciousness. But the statute doesn't require that that 
contact have any suspicious element to it.
    So for the national security letters of which there have 
been over 200,000 requests, those require no sort of statement 
of fact that would show suspiciousness. It merely requires that 
they show that the record pertain to this person who may have 
had contact.
    The national security letters have been issued in one 
investigation. There were nine national security letters that 
covered 11,000 people. This isn't just a hypothetical example 
of what one degree of separation is. One degree of separation 
might be 100 people. Two degrees of separation might be 10,000 
people. It might be 100,000 depending on how far you wanted to 
take it.
    Of course they don't take it that far but the statute isn't 
limiting in that way. So the question of requiring that there 
be something that shows that the records are relevant that the 
person has engaged in some sort of suspicious activity is 
important.
    When Mr. Comey testified before the House Judiciary 
committee on this provision in 2005, he said even if you are 
standing in line at the cafeteria downstairs, he wants to be 
able to know everything about you and this power allows them to 
do so. That is why this power is so far reaching and that is 
why it must be contained.
    Senator Whitehouse. Just one other technical point, and let 
me work off, Ken, your example of the suspicious novel meeting 
on the park bench. Let's say just for purposes of this example 
that it had happened not just once but let's say twice, and so 
there was reasonable grounds for some suspicion that the other 
individual on the bench might be involved.
    Would it not be the case that that other individual at that 
point could not be designated a target and therefore the 
universe expands suddenly to now anybody who has contact with 
the second individual?
    I mean, at what point, it is not clear to me at what level 
of evidence or investigative support the initial designation of 
who the target is to define the contact with university doesn't 
grow so that a contact with person now is designated by the 
government as somebody who has enough suspicion that now we 
think that they are actually a target themselves and whoosh, 
now all of their contact with universe gets swept into it.
    Is it your view that if there were, the suspicion that you 
indicated, let's just use those two examples. One meeting on a 
park bench that has no apparent justification and it looks like 
a John Lacaray drop type thing or even it being repeated a week 
later at the same time.
    At that point would the second person on the park bench now 
be able to be designated under the 215 procedure as a target 
such that anybody with contact with them would be subject to 
the same 215 inquiries? What is that trigger?
    Mr. Wainstein. There are rules. You are probably familiar 
with the national security guidelines which lay out different 
levels of investigation. There are full investigations and then 
there are threat increases and the like that are sort of 
lesser.
    My recollection is that 215, in order to go to the court to 
get a 215 order, it has to be within the range of a full 
investigation. There has to be a certain predicate for the FBI 
to open that.
    Senator Whitehouse. Within that investigation the question 
of who is designated a target versus who is a contact with a 
target is one that is made administratively by the bureau as I 
understand it. I don't understand the mechanism or the trigger 
point at which somebody who is a contact with the target 
becomes a target themselves.
    That's a very small barrier, and it probably should be 
given the complexity of these investigations, that you contact 
with universe and they expand very rapidly.
    Mr. Wainstein. And I think you have probably been briefed 
over time as to the FBI's practices in terms of how many hops 
out from particular known terrorists they go in terms of 
analyzing relationships. I am not sure how much I can get into 
at this point.
    Senator Whitehouse. Probably not much.
    Mr. Wainstein. But the bottom line is there is analysis 
that goes on there. It is done administratively by the bureau, 
but there is a relevance standard that has to be met when you 
go to the FISA court or when you issue an NSL, administratively 
it has to be satisfied. So the connection can only be so 
attenuated.
    I don't want to go beyond that though in terms of the hop 
analysis. If I could just get one other point in.
    Senator Whitehouse. Please.
    Mr. Wainstein. Keep in mind one of the purposes of being 
able to use these tools, in particular the 215, is to run down 
a threat that might be about to happen. So you have a scenario 
for instance where we might well get intelligence that a 
terrorist is going to be boarding a train from DC to Charlotte 
and blow that train up with a backpack.
    The first thing they will want to do is find out who has 
booked tickets on that train or an airplane, what have you. 
That means you are going to issue process to the railroad or 
the airplane, the airline and say I want to know everybody who 
is in all those seats.
    Well, obviously if it just one target that you are looking 
for, you are going to be getting information about a lot of 
people who do not fit within the parameters of that 
presumption. That is not a tool we can deny investigators.
    So if you were to make that, the three part presumption a 
showing, a mandatory showing of relevance, you preclude the 
Bureau from having the ability to use the 215 order to get 
records in that situation which really could be debilitating.
    Senator Whitehouse. Yeah, I think that would be 
debilitating. I would think that the, at that point you have a 
very different investigative nexus between the threat and the 
evidence that you seek to secure than you do when the 
evidentiary nexus is mere contact with.
    There you actually have an investigative theory. It is a 
very clear one and it makes perfect sense for the government to 
pursue that. If when you get into this contact with theory, it 
begins to seem a little bit unbounded.
    But I want to thank all of you for your testimony. This has 
been very helpful. I think we are in substantial agreement that 
there are fine tuning refinements and a variety of audit and 
accountability measures that are probably appropriate to the 
statute but that the fundamental authorities are important to 
keeping our country safe.
    I thank you all for your testimony. The record of the 
hearing will remain open for another 7 days for anybody who 
wishes to add to it. But other than that, again my thanks to 
the witnesses. We are adjourned.
    [Whereupon, the hearing was adjourned.]
    [Submissions for the record follow.]

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