[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]

REAUTHORIZATION OF THE PATRIOT ACT

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

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED TWELFTH CONGRESS

FIRST SESSION

__________

MARCH 9, 2011

__________

Serial No. 112-14

__________

Printed for the use of the Committee on the Judiciary

Available via the World Wide Web: http://judiciary.house.gov

U.S. GOVERNMENT PRINTING OFFICE
65-076 WASHINGTON : 2011
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing Office,
http://bookstore.gpo.gov. For more information, contact the GPO Customer Contact Center, U.S. Government Printing Office. Phone 202�09512�091800, or 866�09512�091800 (toll-free). E-mail, gpo@custhelp.com.

COMMITTEE ON THE JUDICIARY

LAMAR SMITH, Texas, Chairman
F. JAMES SENSENBRENNER, Jr., JOHN CONYERS, Jr., Michigan
Wisconsin HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina JERROLD NADLER, New York
ELTON GALLEGLY, California ROBERT C. ``BOBBY'' SCOTT,
BOB GOODLATTE, Virginia Virginia
DANIEL E. LUNGREN, California MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio ZOE LOFGREN, California
DARRELL E. ISSA, California SHEILA JACKSON LEE, Texas
MIKE PENCE, Indiana MAXINE WATERS, California
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
STEVE KING, Iowa HENRY C. ``HANK'' JOHNSON, Jr.,
TRENT FRANKS, Arizona Georgia
LOUIE GOHMERT, Texas PEDRO PIERLUISI, Puerto Rico
JIM JORDAN, Ohio MIKE QUIGLEY, Illinois
TED POE, Texas JUDY CHU, California
JASON CHAFFETZ, Utah TED DEUTCH, Florida
TOM REED, New York LINDA T. SANCHEZ, California
TIM GRIFFIN, Arkansas DEBBIE WASSERMAN SCHULTZ, Florida
TOM MARINO, Pennsylvania
TREY GOWDY, South Carolina
DENNIS ROSS, Florida
SANDY ADAMS, Florida
BEN QUAYLE, Arizona

Sean McLaughlin, Majority Chief of Staff and General Counsel
Perry Apelbaum, Minority Staff Director and Chief Counsel
------

Subcommittee on Crime, Terrorism, and Homeland Security

F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman

LOUIE GOHMERT, Texas, Vice-Chairman

BOB GOODLATTE, Virginia ROBERT C. ``BOBBY'' SCOTT,
DANIEL E. LUNGREN, California Virginia
J. RANDY FORBES, Virginia STEVE COHEN, Tennessee
TED POE, Texas HENRY C. ``HANK'' JOHNSON, Jr.,
JASON CHAFFETZ, Utah Georgia
TIM GRIFFIN, Arkansas PEDRO PIERLUISI, Puerto Rico
TOM MARINO, Pennsylvania JUDY CHU, California
TREY GOWDY, South Carolina TED DEUTCH, Florida
SANDY ADAMS, Florida DEBBIE WASSERMAN SCHULTZ, Florida
BEN QUAYLE, Arizona SHEILA JACKSON LEE, Texas
MIKE QUIGLEY, Illinois

Caroline Lynch, Chief Counsel

Bobby Vassar, Minority Counsel

C O N T E N T S

----------

MARCH 9, 2011

Page

OPENING STATEMENTS

The Honorable F. James Sensenbrenner, Jr., a Representative in
Congress from the State of Wisconsin, and Chairman,
Subcommittee on Crime, Terrorism, and Homeland Security........ 1
The Honorable Robert C. ``Bobby'' Scott, a Representative in
Congress from the State of Virginia, and Ranking Member,
Subcommittee on Crime, Terrorism, and Homeland Security........ 2
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Committee on the Judiciary....... 4
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan, and Ranking Member, Committee on
the Judiciary.................................................. 5

WITNESSES

Todd M. Hinnen, Acting Assistant Attorney General, National
Security Division, Department of Justice
Oral Testimony................................................. 8
Prepared Statement............................................. 10
Robert S. Litt, General Counsel, Office of the Director of
National Intellilgence
Oral Testimony................................................. 16
Prepared Statement............................................. 18
Nathan A. Sales, Assistant Professor of Law, George Mason
University
Oral Testimony................................................. 24
Prepared Statement............................................. 26
Julian Sanchez, Research Fellow, Cato Institute
Oral Testimony................................................. 36
Prepared Statement............................................. 38

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Report by the American Civil Liberties Union (ACLU) submitted by
the Honorable Henry C. ``Hank'' Johnson, Jr., a Representative
in Congress from the State of Georgia, and Member, Subcommittee
on Crime, Terrorism, and Homeland Security..................... 61

APPENDIX
Material Submitted for the Hearing Record

Prepared Statement of the Honorable Henry C. ``Hank'' Johnson,
Jr., a Representative in Congress from the State of Georgia,
and Member, Subcommittee on Crime, Terrorism, and Homeland
Security....................................................... 99
Letter from Debra Burlingame, Co-Founder, and Timothy Killeen,
Executive Director, Keep America Safe.......................... 101
Letter from J. Adler, National President, the Federal Law
Enforcement Officers Association (FLEOA)....................... 102
Letter from Konrad Motyka, President, the Federal Bureau of
Investigation Agents Association............................... 105

REAUTHORIZATION OF THE PATRIOT ACT

----------

WEDNESDAY, MARCH 9, 2011

House of Representatives,
Subcommittee on Crime, Terrorism,
and Homeland Security,
Committee on the Judiciary,
Washington, DC.

The Subcommittee met, pursuant to notice, at 1:30 p.m., in
room 2141, Rayburn Office Building, the Honorable F. James
Sensenbrenner, Jr. (Chairman of the Subcommittee) presiding.
Present: Representatives Sensenbrenner, Smith, Gohmert,
Lungren, Poe, Chaffetz, Griffin, Marino, Gowdy, Adams, Quayle,
Scott, Conyers, Johnson, Chu, Wasserman Schultz, and Quigley.
Staff present: (Majority) Caroline Lynch, Subcommittee
Chief Counsel; Sarah Allen, Counsel; Arthur Radford Baker,
Counsel; Sam Ramer, Counsel; Lindsay Hamilton, Clerk;
(Minority) Bobby Vassar, Subcommittee Chief Counsel; Sam Sokol,
Counsel; and Veronica Eligan, Professional Staff Member.
Mr. Sensenbrenner. The Subcommittee will come to order.
And welcome to today's hearing on the reauthorization of
the PATRIOT Act. I would like to especially welcome our
witnesses and thank you for joining us today.
Presently I am joined by the distinguished Ranking Member
and Chairman emeritus of the Subcommittee, Bobby Scott of
Virginia. There will be more Members that will be coming later
on.
I yield myself 5 minutes for an opening statement.
Today's hearing on the reauthorization of the PATRIOT Act
will focus on three provisions set to expire May 27th: section
206, roving authority; section 215, business records; and the
``lone wolf'' definition.
Last month, Congress approved a 90-day extension of these
provisions to ensure their continued use by the intelligence
community. The extension also affords this Committee the
opportunity to review how these provisions are used and how to
assist our national security investigations and to ensure that
they are not being misused. The Committee plans to hold an
additional hearing later this month on the permanent provisions
of the PATRIOT Act.
As the then Chairman of the House Judiciary Committee, I
oversaw the enactment of the USA PATRIOT Act in response to the
9/11 terrorist attacks. Title 2 of the act addressed enhanced
foreign intelligence and law enforcement surveillance
authority. 14 of the 16 sections of that title were made
permanent by the 2005 PATRIOT Act reauthorization. The roving
wiretap and business records provisions were extended to
December 31st, 2009. Also set to expire on that date was
section 6001 of the Intelligence Reform and Terrorist
Prevention Act of 2004, which we call IRTPA, the lone wolf
definition. Congress did not enact a reauthorization in 2009.
Instead the expiring provisions were extended three times,
first for 60 days, then for a year, and now for 90 days, and it
is time for Congress to reauthorize this law.
Congress should make permanent the lone wolf definition.
This provision closes a gap in FISA that if allowed to expire
could permit an additional terrorist to slip through the cracks
and carry out his plot undetected. It has nothing to do
whatsoever with any type of surveillance on these people. That
is in other parts of the act.
When FISA was originally enacted in 1978, America was
concerned largely with collecting intelligence from foreign
nations such as the Soviet Union or terrorist groups like the
FARC in Colombia. Therefore, the law authorized intelligence
gathering to foreign powers and their agents.
The intelligence landscape has changed dramatically in the
last 30 years. Today we are confronted with threats from
individuals who may subscribe to certain beliefs but do not
belong to a specific terrorist group. Without the lone wolf
definition, our surveillance tools will be powerless against
this growing threat to America's security.
Section 206 of the PATRIOT Act authorizes the use of roving
or multi-point wiretaps for national security and intelligence
investigation. This allows the Government to use a single
wiretap order to cover any communications device that the
target is using or about to use. Without roving wiretap
authority, investigators are required to seek a new court order
each time a terrorist or spy changes cell phones or computers.
Section 215 of the act allows FISA Courts to issue orders
granting the Government access to business records and foreign
intelligence, international terrorism, and clandestine
intelligence cases. The 2005 reauthorization expanded
congressional oversight and added additional procedural
requirements and judicial review.
Since the PATRIOT Act was enacted, these provisions have
been scrutinized by Congress and have been either unchallenged
or found constitutional. The lone wolf definition has never
been challenged. Section 206 roving authority has never been
challenged. The criminal roving wiretap authority was upheld
under the Fourth Amendment to the Constitution by the Ninth
Circuit in 1992. Section 215 business records was challenged,
but after Congress made changes to that provision in the 2005
reauthorization, the lawsuit was withdrawn. Each of these
provisions is integral to defending America against enemy
nations, terrorist groups, and individual terrorists and must
be kept intact.
I wish to welcome our witnesses and thank you for joining
us today.
And now I would like to recognize for his opening statement
the gentleman from Virginia, Mr. Scott, who is the Ranking
Member of the Subcommittee.
Mr. Scott. Thank you, Mr. Chairman. I thank you for holding
this hearing on the reauthorization of the expiring provisions
of the USA PATRIOT Act. We are here on a temporary 3-month
extension. The House passed a much longer extension. I am
pleased that it was shorter extension, but I remain opposed to
the extension of these provisions without changes to them to
better ensure the rights of innocent Americans are not trampled
upon.
Three sections scheduled to sunset are deeply troubling.
Section 215 of the PATRIOT Act authorizes the Government to
secretly obtain any tangible thing so long as it provides, in
an ex parte proceeding, a statement of facts showing that there
is reasonable grounds to believe that the tangible things are
relevant to a foreign intelligence, international terrorism, or
espionage investigation. No showing of probable cause, no
direct connection to a foreign power or agent is needed, and
any tangible thing includes business records, library records,
tax records, educational records, medical records, or anything
else.
Before the enactment of section 215, only specific types of
records were subject to such orders and the Government had to
show specific and articulable facts giving reason to believe
that the person to whom the records pertain is a foreign power
or an agent of a foreign power. While these extraordinary
powers were authorized and defended under the rubric that they
are necessary to protect us from patriotism, the secret dragnet
style approach allows the Government to review personal records
even if there is no specific and articulable facts giving
reason to believe that the individual targeted had anything to
do with terrorism. The justification of these extraordinary
powers is to protect us from terrorism. Congress should either
ensure that things collected with this power have a meaningful
connection to at least suspected terrorism or the provision
should expire.
Section 206 provides for roving wiretaps, including a John
Doe roving wiretap, which permit the Government to secretly tap
phones it believes a non-U.S. person may use. The order may be
against any phone, including a phone of a neighbor if the
person has visited before and used the phone whether or not he
is determined to be using the phone again or if the officials
represent to a judge, on an ex parte basis, that the person is
evasive in the use of phones.
Section 6001, the so-called ``lone wolf'' provision,
permits secret intelligence gathering of non-U.S. persons in
the U.S. even if they are not affiliated with a foreign
government or terrorist organization. We have traditionally
limited this kind of Government power to situations that
involve agents of foreign governments or foreign terrorist
organizations. With the necessity for business people to
operate in a global economy and the frequency with which
American citizens interact with people from around the world,
the risk that this provision poses for ordinary activities of
such Americans to be subject to spying is unacceptable,
especially since the Government testimony indicates that the
lone wolf provision is rarely, if ever, used. And even if there
was a case where there was good cause for the Government to
keep tabs on such people, there is no reason to jeopardize the
safeguards that protect the traditional rights and freedoms of
Americans when we can pursue such persons under existing
authorities which allow emergency warrants and just about any
other Government action that is reasonably based on pursuing a
suspect.
It is encouraging that there was significant bipartisan
opposition to the extension of these PATRIOT Act provisions. It
shows a healthy skepticism of unrestrained Government power to
spy on people in the United States. We need to restore our
traditional respect for the right of every individual to be
secure from unchecked Government intrusion. I hope that we can
arrive at ways of doing so in our review of these authorities.
We did so before under your leadership, Mr. Chairman, when we
arrived at a version of the PATRIOT Act when it was originally
passed that every Member of the House Judiciary Committee voted
for, and I am confident that we can again under your leadership
do the same thing.
Thank you and I yield back.
Mr. Sensenbrenner. The time of the gentleman has expired.
The Chair now recognizes the Chairman of the Committee, the
gentleman from Texas, Mr. Smith.
Mr. Smith. Thank you, Mr. Chairman.
The September 11th attack--and this September 11th marks
the 10-year anniversary of the worst terrorist attack in U.S.
history. America is fortunate not to have suffered another
attack of such magnitude and devastation in the past decade.
This does not mean that the terrorists have given up their plot
to destroy America or that we should no longer be prepared for
another large-scale attack. As we have seen in recent years,
the absence of a major attack does not mean that America is
secure.
To avoid detection, terrorists have shifted their tactics
away from complex, coordinated attacks by a group of terrorists
to smaller, individualized plots by rogue terrorists.
On Christmas Day 2009, a foreign terrorist from Nigeria
attempted to detonate a bomb hidden under his clothes on a
plane on the way to Detroit.
Last spring, a radicalized American citizen from Pakistan
tried to explode a car bomb in Times Square.
Plots to attack both the Washington, D.C. Metro and New
York subway systems have also been thwarted.
And just 2 weeks ago, a 20-year-old student from Saudi
Arabia was arrested in my home State of Texas for attempting to
use weapons of mass destruction. Khalid Aldawasari entered the
United States in 2008 on a student visa to complete English
language training, but in reality, he came to the United States
to carry out violent jihad on innocent Americans. Aldawasari
had been planning his bombing plot for years, even seeking out
a particular scholarship to attend school in the U.S. while
carrying out this plot. According to prosecutors, Aldawasari
obtained two of the three chemicals needed for a bomb over the
last 3 months and had attempted to buy the third. He had also
researched potential targets, including the Dallas residence of
former President George W. Bush, several dams in Colorado and
California, and the homes of three former military guards who
served in Iraq.
The PATRIOT Act was enacted to prevent both large-scale
attacks and terrorist plots by individual terrorists acting
alone like the one in Dallas. Unfortunately, the myths
surrounding the PATRIOT Act often overshadow the truth, but
this is not ``Law and Order'' or some criminal justice show
painting the PATRIOT Act as a tool of ``Big Brother'' just for
their ratings. This is the real world where we must address the
real threat from foreign terrorists. As we review these
expiring provisions, Congress must set aside fiction and focus
on the facts.
The three expiring national security provisions that
Congress will consider this year are both constitutional and
common sense. For example, the roving wiretap provision allows
intelligence officials, after receiving approval from a Federal
court, to conduct surveillance on terrorist suspects regardless
of how many communication devices they use. We know terrorists
use many forms of communication to conceal their plots,
including disposable cell phones.
Roving wiretaps are nothing new. Domestic law enforcement
agencies have had roving authority for criminal investigations
since 1986. If we can use this authority to track down a drug
lord, why shouldn't we also use it to prevent a terrorist
attack?
The business records provision allows the FBI to access
tangible items, including business records in foreign
intelligence, international terrorism, and espionage cases.
Again, this provision requires the approval of a Federal judge.
That means the FBI must prove to a Federal judge that the
documents are needed as part of a legitimate national security
investigation.
The third provision amends the legal definition of an agent
of a foreign power to include a lone wolf provision. National
security laws allow intelligence gathering on foreign
governments, terrorist groups, and their agents. But what about
a foreign terrorist who either acts alone or cannot be
immediately tied to a terrorist organization? The lone wolf
definition simply brings our national security laws into the
21st century to allow our intelligence officials to answer the
modern day terrorist threat.
We cannot fight terror in this century with the tools of
the last century. Congress must reauthorize these important
national security laws. We simply cannot afford to leave our
intelligence community without the resources it needs to
dismantle terrorist organizations, identify threats from both
groups and individuals, and interrupt terrorist plots of all
sizes.
Mr. Chairman, let me say in conclusion that I personally
appreciate all the work that you have done on the PATRIOT Act.
You were the Chairman of this Committee when it first passed.
You have conducted oversight of the PATRIOT Act in the past.
You are continuing to do so today. And I hope the results of
all of our efforts will be to reassure individuals that these
three provisions need to be extended and that they are doing a
lot to protect the lives of Americans today.
I yield back.
Mr. Sensenbrenner. The Chair recognizes the most recent
Chairman emeritus of the Committee, the gentleman from
Michigan, Mr. Conyers.
Mr. Conyers. I want to thank the most senior Chairman
emeritus for recognizing me and to let you know that I do not
know if you are, as our present Chairman, about to move the
discussion of the PATRIOT Act from the Constitution
Subcommittee to the Crime Subcommittee. That is your
prerogative. And I noticed that is what the senior Chairman
emeritus did when he was Chair. And here we are doing it again.
Now, it is my understanding that many Members in the
Subcommittee opposed this 3-month extension. They wanted it
longer. I am satisfied with 3 months and apparently so is the
other body.
So we are here today. And I guess no one else has to
recount all the horror stories of terrorism, incidents of
terrorists, people arrested for terrorism and not yet
prosecuted. That has all been done. But I am not sure if that
is the main issue that surrounds us today because the most
basic questions raised to me are what intrusions on our freedom
and privacy will we accept, how much will we accept in this
fight against terrorism. I noticed that the Chairmen of the
Subcommittee and the full Committee have failed to even comment
on that, which I consider to be the crux of us coming together.
It is commented on by one of the witnesses here from the Cato
Institute.
What we are trying to do here today is reach a balance
between protection and our liberties. I just want to read you
what came from a former Senator from Minnesota--Wisconsin: ``Of
course, there is no doubt that if we lived in a police state,
it would be easier to catch terrorists. If we lived in a
country that allowed the police to search your home at any time
for any reason, if we lived in a country that allowed the
Government to open your mail, eavesdrop on your conversations,
intercept your email, if we lived in a country that allowed the
Government to hold people in jail indefinitely based on what
they write or think or based on mere suspicion that they are up
to no good, then the Government would, no doubt, discover and
arrest more terrorists. But that is not a country which we
would want to live in and that would not be a country for which
we could, in good conscience, ask our young people to fight and
die for. In short, it would not be America.'' And so it is that
set of concerns that to me bring us here today.
And for all of us, I keep remembering that the Chairman's
original PATRIOT bill was passed unanimously out of this
Committee, and then not so mysteriously substituted in the
Rules Committee for a bill that no one had ever seen before.
And so it is against that backdrop that I join in welcoming all
of the witnesses today for this discussion.
Thank you.
Mr. Sensenbrenner. The time of the gentleman has expired.
Without objection, Members' opening statements will be made
a part of the record.
And also without objection, the Chair will be authorized to
declare recesses during votes on the House floor.
It is now my pleasure to introduce today's witnesses.
Todd Hinnen is the Acting Assistant Attorney General for
National Security at the Department of Justice. Prior to
assuming this position, Mr. Hinnen was the Deputy Assistant
Attorney General for Law and Policy at the National Security
Division of the Department of Justice. He also has previously
served as chief counsel to then Senator Joseph Biden, Jr., and
as a director in the National Security Council's Combating
Terrorism Directorate and as a trial attorney in the Department
of Justice's Computer Crime and Intellectual Property Section.
Mr. Hinnen clerked for Judge Richard Tallman on the Ninth
Circuit Court of Appeals and he is a graduate of Amherst
College and Harvard Law School.
Robert Litt is the General Counsel in the Office of the
Director of National Intelligence. Before joining ODNI, Mr.
Litt was a partner with the law firm of Arnold & Porter, LLP.
He served as a member of the governing body of the American Bar
Association's Criminal Justice Section and is a member of the
advisory committee to the standing Committee on Law and
National Security.
From 1993 to 1999, Mr. Litt worked at the Department of
Justice where he served as the Deputy Assistant Attorney
General in the Criminal Division and then as the Principal
Associate Deputy Attorney General. His duties at DOJ included
FISA applications, covert action reviews, computer security,
and other national security matters.
He started his legal career as a clerk for Judge Edward
Weinfeld of the Southern District of New York and Justice
Potter Stewart of the United States Supreme Court. From 1978 to
1984, he was an assistant U.S. attorney for the Southern
District of New York. He also spent 1 year as a special advisor
to the Assistant Secretary of State for European and Canadian
Affairs.
He holds a B.A. from Harvard college and an M.A. and J.D.
from Yale University.
Nathan Sales is an Assistant Professor of Law at the George
Mason University School of Law where he teaches national
security and administrative law. Prior to coming to George
Mason, he was a Deputy Assistant Secretary for Policy
Development at the U.S. Department of Homeland Security.
He has previously served as counsel and then senior counsel
in the Office of Legal Policy at the U.S. Department of
Justice. In 2002, he received the Attorney General's Award for
exceptional service for his role in drafting the USA PATRIOT
Act.
He graduated from Duke Law School magna cum laude where he
joined the Order of the Coif and was research editor of the
Duke Law Journal.
He clerked for the Honorable David B. Sentelle of the U.S.
Court of appeals for the D.C. Circuit, and from 2003 to 2005,
he practiced at the Washington, D.C. law firm of Wiley, Rein &
Fielding. He was the John N. Olin Fellow at Georgetown
University Law Center in 2005 and 2006.
Julian Sanchez is a research fellow at the Cato Institute
who studies the intersection of privacy, technology, and public
policy. He has written extensively about surveillance and the
intelligence community for publishers across the political
spectrum, from National Review to Newsweek and The Nation. As a
journalist, Sanchez has covered these same issues as Washington
editor of the technology site, Ars Technica, a blogger for the
Economist, and an editor for Reason magazine. He studied
philosophy and political science at New York University.
Without objection, the witnesses' statements will appear in
the record in their entirety. Each witness will be recognized
for 5 minutes to summarize their written statement, and the
Chair now recognizes Mr. Hinnen.

TESTIMONY OF TODD M. HINNEN, ACTING ASSISTANT ATTORNEY GENERAL,
NATIONAL SECURITY DIVISION, DEPARTMENT OF JUSTICE

Mr. Hinnen. Thank you, Mr. Chairman.
Mr. Sensenbrenner. The Chair may withdraw his recognition
of Mr. Hinnen, seeing if we have some votes on the floor. We
have three votes on the floor. We will wait until the votes are
over with and then I will recognize you for 5 minutes.
The Committee is recessed. Would Members please come back
here promptly following the last vote?
[Recess.]
Mr. Sensenbrenner. The Subcommittee will be in order, and
the Chair will re-recognize Mr. Hinnen for 5 minutes.
Mr. Hinnen. Thank you, Mr. Chairman.
Chairman Sensenbrenner, Ranking Member Scott, Ranking
Member Conyers, and Members of the Subcommittee, thank you for
inviting me to testify today concerning the three provisions of
the Foreign Intelligence Surveillance Act currently scheduled
to sunset in May: the roving wiretap provision, the lone wolf
definition, and the business records provision.
I will make four general observations about these
provisions and then discussion each of them briefly.
First, these provisions are constitutional. Two of them,
the roving wiretap provision and the business records provision
have close analogues in criminal law: Title III roving
wiretaps, and grand jury subpoenas. The courts have upheld each
of these criminal analogues as constitutional. The lone wolf
definition is simply a specific application of FISA
surveillance authority which the courts have also upheld as
constitutional.
Second, they are important to our ability to conduct
effective national security investigations. Allowing them to
expire even for a brief time would make America less safe from
international terrorism and other foreign threats.
Third, they are subject to robust protections for privacy
and civil liberties that involve all three branches of
Government. Each requires the Government to make certain
showings to an independent court, the FISA Court. Each imposes
strict rules governing how the Government handles information
regarding United States persons. Each is subject to extensive
executive branch oversight, and each is subject to
congressional reporting requirements.
Fourth, these authorities have been subject to extensive
discussions between Congress and the executive branch, and
Congress has already renewed them several times.
My written testimony sets forth a detailed explanation of
how each of them works. Let me summarize it briefly.
First, the roving wiretap provision. Ordinarily when the
Government demonstrates probable cause that a subject is an
agent of a foreign power and is using a facility such as a
telephone number, the FISA Court issues two orders. One order
is to the Government authorizing the surveillance, and the
second order is to the provider, the telephone company,
directing it to assist the Government. When we demonstrate to
the court that the subject may take steps to thwart
surveillance, such as by switching telephone companies, the
court can issue a roving order, directing any telephone company
to assist the Government. When the Government identifies the
new phone number that the subject is using and initiates
surveillance, it must notify the court within 10 days and
provide the facts indicating that the subject is using that
phone number.
As courts have repeatedly held in the criminal context, a
roving order is not a general warrant. The Government may use
roving surveillance only against that specific agent of a
foreign power and on a specific phone number that person is
using. The Government obtains roving authority about 20 times a
year on average, generally where the subject is a highly
trained foreign intelligence officer or a terrorist with
particularly sophisticated tradecraft.
Second, the lone wolf definition permits surveillance when
the Government demonstrates probable cause that a subject is
engaged in international terrorism, even if the Government does
not demonstrate a connection to a terrorist organization. The
Government may not use this authority against a United States
citizen or lawful permanent resident. Although we have not used
this authority to date, it fills an important gap in our
collection capabilities. It allows us to collect on an
individual engaged in terrorist activity who is inspired by but
not a member of a terrorist group.
Third, the business records provision allows the Government
to apply to the FISA Court for an order directing the
production of tangible things that are relevant to an
authorized national security investigation. This authority is
analogous to grand jury subpoena authority in criminal cases.
In fact, the Government can only obtain records that could be
obtained by subpoena in criminal cases. But this authority
imposes more demanding requirements on the Government than a
criminal subpoena. The Government must demonstrate relevance
and obtain an order from an independent court. This provision
is used about 40 times per year on average. It has never been
used to obtain library circulation records or the titles of
books borrowed.
In closing, Mr. Chairman, it is appropriate to discuss
these authorities which are so important to our national
security and to Americans' privacy and civil liberties, and we
appreciate the opportunity to do so. Congress based these
provisions on well-established, time-tested authorities in the
criminal context and has refined them since they were enacted.
All three are on solid constitutional footing. All three are
important to protect this country from international terrorism
and other foreign threats, and all three are subject to robust
protections for privacy and civil liberties. The Department
urges Congress to renew them.
I look forward to the Subcommittee's questions.
[The statement of Mr. Hinnen follows:]

__________
Mr. Sensenbrenner. Thank you, Mr. Hinnen.
Mr. Litt?

TESTIMONY OF ROBERT S. LITT, GENERAL COUNSEL,
OFFICE OF THE DIRECTOR OF NATIONAL INTELLILGENCE

Mr. Litt. Thank you, Mr. Chairman. Chairman Sensenbrenner,
Ranking Member Scott, Ranking Member Conyers, Members of the
Subcommittee, thank you for inviting me here to testify today
about the three expiring provisions of the Foreign Intelligence
Surveillance Act.
Mr. Chairman, I particularly want to thank you for your
leadership on PATRIOT Act issues since 2001 which have been so
helpful for the intelligence community.
I want to start by making clear that the three expiring
provisions are tools that are critical to help us defend our
national security and they must be reauthorized. At the same
time, I want to say that I think the distinguished Ranking
Member of the full Committee correctly identified the issue
which is what is the proper balance to strike between the tools
to protect national security and the protection of civil
liberties. I think our position is--and I hope to be able to
persuade you--that these tools in fact do that.
I do want to begin by giving you a couple of unclassified
examples of how these tools have been used.
For roving taps, I can tell you that we are currently using
one against a foreign agent who changes cellular phones
frequently. Without roving surveillance, there would be a gap
in collection each time this agent switched phones because of
the time we would need to get a new court order.
The business records provision is also important. For
example, recently a business record order was used to obtain
information that was essential in the investigation of Khalid
Aldawasari, which Chairman Smith referred to earlier, who was
subsequently arrested in Texas.
In another case, hotel records that we obtained under a
business records order showed that over a number of years a
suspected spy had arranged lodging for other suspected
intelligence officers. These records provided information about
the subject that helped the FBI ultimately to get full FISA
coverage.
As you know, many uses of the authorities under FISA are
classified and we cannot discuss them publicly. This has led to
some myths and misconceptions about FISA and the PATRIOT Act,
and I want to take a couple of minutes to dispel some of those.
First, although the lone wolf definition has not been used,
it is nonetheless an important tool to have in our toolbox in
light of the constantly evolving terrorism threat that we face.
Michael Leiter, the Director of the National Counterterrorism
Center, has testified that the availability of sophisticated
extremist propaganda on the Internet means that terrorist
organizations can reach out and incite individual extremists to
attack us even when those extremists may not actually be agents
of the terrorist organization. This is the kind of situation
that the lone wolf definition applies to, and I want to
reiterate what Todd Hinnen just said, which is that this
applies only to foreigners, not to U.S. citizens or lawful
permanent residents.
Second, criminal law authorities are not always an adequate
substitute for FISA authorities. In particular, criminal
wiretaps under Title III have to be disclosed to the target
which may make it impossible to protect critical intelligence
sources and methods. And in some cases, for example, in many
instances when we are tracking foreign spies, we may not have a
criminal predicate to support a Title III wiretap.
Third, despite what some claim, we cannot get a roving
wiretap without identifying the target. The statute requires
that we provide the identity, if known, or a description of the
specific target of FISA electronic surveillance.
Finally, it is critical that the public understand that
these are not unchecked or unrestrained authorities. We
recognize that effective oversight of the intelligence
community is essential both because of the powers the
intelligence community has and because those powers are often
exercised in secret. And we welcome that oversight. There is,
in fact, extensive and effective oversight of these provisions
by all three branches of Government. The legal framework
requires that we can't predicate investigations on activity
that is protected by the First Amendment, that information we
collect under these authorities has to be minimized in
accordance with procedures that are approved by the court, and
intelligence agencies are governed by rules that limit the
collection, retention, and dissemination of information about
U.S. persons.
Each of these authorities, as Todd said, requires prior
approval by the FISA Court, and I can say from my experience in
a year and a half on this job, that the FISA Court is not a
rubber stamp but gives a searching review to each application
that comes before it and often requires changes and
modifications. In addition, FISA applications get extensive
high-level review within the executive branch even before they
are submitted to the court. Agents and analysts who work in
this area get regular training in the requirements of the law,
and use of these authorities is subject to oversight by
inspectors general, by the National Security Division of the
Department of Justice, and by my office, the Office of the
Director of National Intelligence.
And finally, the use of these authorities, including
classified details that we can't disclose publicly, is
regularly reported to the appropriate committees of Congress in
a variety of ways. So there is really an extensive oversight
framework.
And I just want to close by reiterating that, first, as the
Attorney General and the DNI have said, we are prepared to
consider appropriate additional protections for civil liberties
that don't compromise the operational utility of these
provisions, but it is important that these provisions be
reauthorized and reauthorized for as long a period as possible.
Thank you.
[The statement of Mr. Litt follows:]

0_________
Mr. Sensenbrenner. Mr. Sales?

TESTIMONY OF NATHAN A. SALES, ASSISTANT PROFESSOR
OF LAW, GEORGE MASON UNIVERSITY

Mr. Sales. Thank you, Mr. Chairman. Chairman Sensenbrenner,
Ranking Member Scott, Ranking Member Conyers, thank you for
your time. Members of the Subcommittee, thank you for your
time.
My name is Nathan Sales. I am a law professor at George
Mason Law School.
My testimony today is that the three provisions that are up
for renewal, roving wiretaps, business records, and lone wolf,
are actually quite modest. Generally speaking, these tools
simply let counter-terrorism investigators use some of the same
investigative methods that ordinary cops have been using for
decades, tools in fact that the Federal courts repeatedly have
upheld. Plus, the law contains elaborate safeguards. In several
respects, these safeguards under the PATRIOT Act are even
stronger than the laws that apply in the ordinary criminal
context.
Take, for instance, roving wiretaps. Sophisticated
criminals like drug dealers and mobsters sometimes try to evade
surveillance by using burner cell phones or swapping out their
SIM cards. The result is a drawn-out game of cat and mouse.
Investigators get a court order to tap a particular phone, only
to find out that he already switched to an even newer one. So
it is back to the courthouse for a fresh warrant.
Now, in 1986, Congress solved this problem for criminal
investigators by letting them use roving wiretaps, basically a
wiretap--a court order that applies to particular people rather
than to particular devices. Agents, thus, can monitor a cell
phone--a suspect regardless of what cell phone he happens to be
using without first heading back to court for yet another
order.
Now, roving wiretaps have been upheld by no fewer than
three Federal appellate courts, the Ninth, the Fifth, and the
Second Circuits. To my knowledge, no appellate court has
disagreed.
So what the PATRIOT Act did was allow the same sort of
investigative technique in terrorism cases. The basic idea is
to level the playing field. If a roving wiretap is good enough
for Tony Soprano, it is good enough for Mohamed Atta.
In addition, the law contains strict safeguards. A court
order is necessary. FBI agents can't unilaterally eavesdrop on
every phone a person uses. They have to convince a judge that
there is probable cause first. Agents also have to follow
minimization procedures. That means they have to follow rules
that limit their collection, retention, and sharing of
information about innocent Americans, information that is
inadvertently collected.
Now, there may be cases where agents don't yet know the
precise name of a terrorist. Indeed, that's one of the reasons
why you investigate the terrorist. But even then, the law
requires agents to provide the FISA Court with--and I am
quoting now--a description of the specific target. They cannot
just run a dragnet under the law.
Second, let us focus on the business records provision. In
criminal cases, grand juries routinely subpoena documents from
entities like online retailers and banks. The PATRIOT Act lets
investigators do the same sort of thing in national security
cases, but only if they persuade the FISA Court that the
documents they seek are relevant to an ongoing and authorized
investigation. This provision isn't aimed at libraries, though
it conceivably might be applied to them, although as we have
heard, it has not yet been so. Still, that is not unusual.
Grand juries sometimes demand business records from libraries
in ordinary criminal investigations. Indeed, the Iowa Supreme
Court once upheld a library subpoena in a case involving cattle
mutilation. If we can investigate cattle mutilators, hopefully
we can investigate international terrorists using the same
technique.
In fact, the PATRIOT Act's protections are even stronger
than the protections that apply to grand jury rules. Federal
prosecutors can issue grand jury subpoenas more or less on
their own, but PATRIOT requires the FBI to get a court's
approval first. In addition, PATRIOT expressly bars
investigators from investigating Americans based on their First
Amendment protected activities. It also imposes special limits
when investigators seek sensitive records such as medical
records or library records. Grand jury rules offer no such
guarantees.
Finally, there is lone wolf, which wasn't in the PATRIOT
Act but which Congress adopted in 2004. Sometimes it is
difficult to prove that a suspect is formally linked to a
terrorist organization overseas. The FBI faced a similar
problem just before 9/11. It was suspected that Zacarias
Moussaoui was up to no good, but agents hadn't yet connected
him to any foreign terrorists. As a result, it was unclear
whether they had legal authority under FISA to search his
apartment or search his laptop. The 9/11 Commission would go on
to speculate later that if agents had been able to investigate
Moussaoui, they might have unraveled the entire 9/11 plot.
There is another reason for lone wolf: the growing danger
of what might be called ``entrepreneurial terrorism.'' Solitary
actors who are inspired by al Qaeda are on the rise, and they
are capable of causing just as much death and just as much
destruction as those who are formally members of that group.
PATRIOT fixes these problems. Now investigators can get a
court order to monitor any target who is engaging in
international terrorism. There is no need to make the
additional showing that he is engaging in international
terrorism on behalf of a foreign power. Again, PATRIOT provides
robust protection for civil liberties, perhaps the most
important of which is that investigators can't start monitoring
a lone wolf who is engaging in domestic terrorism. There is
still a foreign nexus. Investigators can only investigate
international terrorism.
Thank you, Mr. Chairman. Thank you, Members of the
Subcommittee. I would be happy to answer any questions.
[The statement of Mr. Sales follows:]

__________

Mr. Sensenbrenner. Thank you, Mr. Sales.
Mr. Sanchez?

TESTIMONY OF JULIAN SANCHEZ, RESEARCH FELLOW,
CATO INSTITUTE

Mr. Sanchez. Thank you, Mr. Chairman, and thanks again to
the Committee for soliciting Cato's perspective on these
important issues.
I am drawing in my remarks today on a forthcoming Cato
paper focusing on these issues, which I hope to be able to make
available within the next few days. I just want to pull out a
few important issues about each provision here.
With respect to lone wolf, I think it is important to
recall that prior to the passage of this provision, the
architecture of FISA tracked the constitutionally salient
distinction made by a unanimous Supreme Court in the Keith case
between ordinary national security investigations and those
involving foreign powers which present special challenges and
obstacles to investigations. In the absence of those special
needs, which may justify the extraordinary breadth and secrecy
of FISA surveillance, I think the criminal authority that a
bipartisan Senate report found would have been available and,
indeed, was used on 9/11 to obtain records and the laptop of
Zacarias Moussaoui should be the norm. It is just hard to see
why that authority is justified when we are dealing with
persons who don't have access to the resources of a global
terror network.
With respect to roving wiretaps, I think it is important to
emphasize that everyone agrees that roving authority should be
available to intelligence investigators as it is in criminal
cases, but that the same requirement of identifying a named
target that the Ninth Circuit emphasized was crucial to
allowing that criminal authority to meet the particularity
requirements of the Fourth Amendment and limit the discretion
of investigators so that, as the Ninth Circuit put it, there
was virtually no possibility of error or abuse, be added on
this side to match.
Now, again, the roving surveillance constitutes about 22 of
the FISA warrants issued every year, which is a tiny fraction
of FISA surveillance. Most of those cases we have to assume do,
in fact, involve a named target. So closing this loophole would
affect a relatively tiny percentage of FISA warrants issued.
I think it is also important to recognize that on the
criminal side, there are important structural differences
between the way surveillance is subject to scrutiny after the
fact. The FISA Court may be informed about the nature of roving
surveillance, but what we don't have on the FISA side is the
assumption that surveillance collection is for the purpose of
criminal trial where the parties will learn that they have been
targeted by surveillance, where defense counsel will have an
opportunity to seek disclosure and have an incentive to impose
that kind of distributed surveillance of the enormous volume of
collection. Again, recall, we are talking about surveillance
that takes in essentially hundreds of years' worth of audio
every year, millions of digital files. Without that kind of
distributed scrutiny, there is much greater need for checks on
the front end limiting the discretion of agents, especially in
the context of online surveillance where I think, again, we are
not in the situation at all where there is, as the Ninth
Circuit put it, virtually no possibility of error or abuse.
Finally, with respect to section 215--and I want to suggest
that 215 orders and national security letters be grouped
together. These are complementary orders, and so changes to one
authority are likely to affect the scope of the other. The
Inspector General found that it is the extraordinary breadth of
national security letters that account for the relatively
sparing use that has been made of section 215.
I would like to see greater use made of 215 insofar as that
would replace essentially agency fiat with judicial scrutiny. I
don't need to recount for the Committee the widespread and
serious abuse that the Inspector General has found in the case
of national security letters. I do want to mention that former
Senator Russ Feingold believes that 215 has been misused but
was unable to specify in an unclassified setting what that
might consist of.
But I think it may actually be a mistake to focus too much
on formal misuses of authorities that are already so broad and
that after the PATRIOT Act permit records to be acquired that
pertain to people who have no even suspected connection to the
target of a terror investigation. This creates a situation
where we have enormous and ever-growing databases consisting of
billions of records about Americans who again are not under
suspicion. These third party records are generally subject to
less Fourth Amendment scrutiny which is why the probable cause
standard here as a general rule doesn't apply. But in the last
decade, we have seen courts increasingly finding that certain
categories of third party records like location information do,
in fact, merit Fourth Amendment protection in a way that has
previously been assumed not to obtain. And there are other
First Amendment interests often implicated by, in particular,
telecommunication records. And so I would suggest that the
analogy between these criminal side authorities is not always
appropriate.
[The statement Mr. Sanchez follows:]

__________

Mr. Sensenbrenner. Thank you very much.
The Chair will now recognize the Members alternatively by
sides in the order in which they appear after Mr. Scott and I
are able to question the witnesses. And I yield myself 5
minutes.
Mr. Sanchez, you really haven't complained very much about
the section 215 orders and have taken off after the national
security letters to a much greater extent. Are you aware that
the national security letters were authorized in 1986
legislation sponsored by Senator Leahy?
Mr. Sanchez. I am, of course. But I believe it is
important----
Mr. Sensenbrenner. No, no. Okay. You know that that was not
a part of the original PATRIOT Act.
Are you aware that there were civil liberties protections
that were put into the national security letter statute at the
time of the 2006 reauthorization?
Mr. Sanchez. Certainly.
Mr. Sensenbrenner. What is wrong with those protections?
Mr. Sanchez. Well, I think the problem here is that as, for
example, the recent WikiLeaks disclosures have made clear, when
databases, however protected or classified they may be, are
allowed to contain so many records about so many different
people without the requirement of some sort of individualized
suspicion, it takes only really one bad actor to enable
enormous disclosure of----
Mr. Sensenbrenner. But does that mean that the tools of
section 215 and the national security letters should be
completely thrown out the window because of one bad actor?
Mr. Sanchez. No. What I would suggest, however----
Mr. Sensenbrenner. Okay. Well, then when the
reauthorization was done, section 215 was declared
unconstitutional by a Federal court. I believe it was in
Michigan. And after the Congress did the reauthorization that
many of my friends opposed, the plaintiffs withdrew their
lawsuit. Now, were the changes that caused the plaintiffs to
withdraw their lawsuit inadequate in any respect, and if so,
how?
Mr. Sanchez. Well, I would suggest, again to return to what
I alluded to----
Mr. Sensenbrenner. Answer the question if they were
inadequate in any respect.
Mr. Sanchez. I believe that one the changes that was
considered by not implemented ultimately but that was approved
by the Senate unanimously creating a requirement that there be
at least a one-removed nexus to a terror suspect would have
narrowed that authority in a way that----
Mr. Sensenbrenner. But section 215 is directed at people
who hold business records, and the courts have already
determined that they are not subject to the protections of the
Fourth Amendment because the potential criminal defendant or
terrorist, if you would, was not in possession of those
records. And there is a pretty significant difference that the
courts have recognized.
Now, you know, again I am asking if the protections were
inadequate.
Mr. Sanchez. Well, let me suggest two differences.
Mr. Sensenbrenner. No. Just tell me how they were
inadequate because there hasn't been a ruling of
unconstitutionality.
Mr. Sanchez. Nor, of course, covert authorities and so----
Mr. Sensenbrenner. You know, yes, they are, but in the
amendments, we gave anybody who got a section 215 FISA Court
order the opportunity to go to court and to get it quashed or
cancelled, and to my knowledge, there has been no court that
has done that.
Mr. Sanchez. Well, if you look at what the Inspector
General has found about----
Mr. Sensenbrenner. No. I am looking at what the courts have
been saying, sir. You know, the Inspector General has got an
opinion just as the Attorney General has an opinion. I don't
know that since the changes in 2006 were made there has been
any finding by a court that there is unconstitutionality.
Mr. Sanchez. One problem is that in the criminal context
where----
Mr. Sensenbrenner. But we are not talking about the
criminal context. We are talking about FISA here.
Mr. Sanchez. But I wanted to suggest a contrast in that----
Mr. Sensenbrenner. No. There is no need for a contrast
because we are talking about either extending a provision of
FISA or letting a provision of FISA drop.
Mr. Sanchez. The third option, though, would be to extend
it suitably narrowed to compensate for the fact that third
party record custodians, where the acquisition of records does
not ultimately become public, lack the incentive that they have
on the criminal side and we see frequently in challenges to
subpoenas for records that----
Mr. Sensenbrenner. Well, just because they don't have the
incentive doesn't take away their right to go to court to get
it quashed.
Okay. Let me talk about roving wiretaps. You know, we have
heard from the previous witnesses that if roving wiretaps are
okay for the Sopranos, you know, why not for Mohamed Atta. Why
not for Mohamed Atta?
Mr. Sanchez. I do not oppose these roving wiretaps in
intelligence investigations.
Mr. Sensenbrenner. Okay, thank you very much.
My time has expired.
The gentleman from Virginia, Mr. Scott?
Mr. Scott. Thank you, Mr. Chairman.
Mr. Hinnen, on the lone wolf provision, it is my
understanding that these cannot be used against U.S. persons.
Is that right?
Mr. Hinnen. That is correct.
Mr. Scott. Are they limited to terrorism as opposed to
routine foreign intelligence?
Mr. Hinnen. Yes. The statutory definition requires that the
individual be engaged in or preparing for international
terrorism.
Mr. Scott. And what do you need to represent to a court to
get a lone wolf----
Mr. Hinnen. You need to demonstrate to the court probable
cause that the individual is engaged in or preparing for
international terrorism and probable cause that he is using or
is about to use the telephone that you want to surveil.
Mr. Scott. The information that you have to show that--
would that not be sufficient to get a Title III normal criminal
warrant?
Mr. Hinnen. It might in some cases.
Mr. Scott. How can you have that information and it not be
sufficient? How could it not be sufficient?
Mr. Hinnen. It may in most cases be sufficient. I think
that because the criminal statute requires proof of probable
cause that a crime is being committed, whereas the FISA statute
requires probable cause that the individual be engaged in or
preparing to engage in international terrorism, there is a
possibility that there might be some slight difference, but I
will certainly grant the Congressman's point----
Mr. Scott. International terrorism is a crime.
Mr. Hinnen [continuing]. That they are very similar.
Mr. Scott. International terrorism is a crime. Is that
right?
Mr. Hinnen. There are jurisdictional elements to criminal
statutes as well, and we need to ensure that those are
satisfied.
Mr. Scott. On 215, you are entitled to get information
relevant to foreign intelligence. Is that right?
Mr. Hinnen. That is correct.
Mr. Scott. Is that limited to terrorism?
Mr. Hinnen. No, that is not limited to terrorism. That
includes counter-intelligence as well and information regarding
the national defense or foreign affairs.
Mr. Scott. Foreign affairs, diplomacy.
Mr. Hinnen. Correct.
Mr. Scott. What was done before the USA PATRIOT Act in
getting information? What do you get under the PATRIOT Act that
you couldn't get otherwise?
Mr. Hinnen. Under these specific authorities?
Mr. Scott. Right.
Mr. Hinnen. I think these authorities provide an
opportunity for the intelligence community to obtain in a
secure way, while at the same time protecting classified
information and sources and methods, records that are relevant
to national security investigations.
Mr. Scott. You couldn't get that before USA PATRIOT Act?
Mr. Hinnen. We could get it before the USA PATRIOT Act.
Certainly the grand jury subpoena authority was available then.
Of course, the----
Mr. Scott. What about just FISA?
Mr. Hinnen. You know, I don't know the answer to that
question. I wasn't practicing in this area before the PATRIOT
Act.
Mr. Scott. Mr. Litt, were you practicing then?
Mr. Litt. I am going out on a limb here. I have a
recollection that there may have been some authority prior to
the PATRIOT Act that was expanded in the PATRIOT Act, but I am
not certain of that. I wouldn't want to be quoted on that.
There certainly was NSL authority.
Mr. Scott. But, Mr. Hinnen, what you get is information
relevant to foreign intelligence. Do you need to show any
probable cause of any crime or speculation or terrorism?
Mr. Hinnen. You don't for a business records order. As with
the grand jury subpoena----
Mr. Scott. Do you have show that the records are connected
to a foreign agent?
Mr. Hinnen. Collected through a foreign agent?
Mr. Scott. Connected to a foreign agent.
Mr. Hinnen. You need to show that they are relevant to a
national security investigation.
Mr. Scott. Which includes foreign intelligence, not just
terrorism.
Mr. Hinnen. Correct.
Mr. Scott. When people hear of national security, they
think terrorism, but you are talking just normal diplomacy kind
of stuff.
Mr. Hinnen. No. It includes spies and espionage and that
sort of thing as well.
Mr. Scott. Now, on the roving wiretap, how is the standard
to get a roving wiretap different from the normal Title III
warrant?
Mr. Hinnen. The difference with respect to a roving wiretap
is that the Government has to demonstrate, in addition to
probable cause, that the individual is an agent of a foreign
power and is using or is about to use a telephone number. The
Government also has to demonstrate to the court that the
individual may take steps to thwart the surveillance.
Mr. Scott. Now, is the roving wiretap under this authority
limited to terrorism as opposed to 215 which is any kind of
spying?
Mr. Hinnen. No.
Mr. Scott. Is the roving wiretap limited to----
Mr. Hinnen. Excuse me. It too permits the collection of
foreign intelligence information.
Mr. Scott. Which----
Mr. Hinnen. Which is the broad definition that we have been
discussing, Congressman.
Mr. Scott. And the minimization. You said collection,
dissemination, and retention. Does the minimization include
collection?
Mr. Hinnen. It does for surveillance, yes, Congressman.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you.
Mr. Sanchez, you cited the Ninth Circuit which from my
perspective is the most reversed, least likely to be correct
circuit in the country. Can you cite any other authority for
your concerns?
Mr. Sanchez. As Mr. Sales mentioned, there are three
Federal appellate courts that have examined roving wiretaps in
the criminal context, and I think--back me up--that all three
have stressed the additional requirement in the case of roving
taps that a named target be identified as important to allowing
those taps to meet the particularity standard.
Mr. Gowdy. Would you agree with me that the United States
can indict Fnu Lnu?
Mr. Sanchez. Yes.
Mr. Gowdy. Well, then why can't they investigate Fnu Lnu?
Mr. Sanchez. I am not opposed to investigation and
certainly of persons who are reliably believed to be connected
to terror groups. The issue is not whether the investigation
should happen but what constraints should exist to narrow the
investigation to ensure that the information pertaining to
innocent people is not swept up especially given the relative
lack of the kind of back-end constraints that exist in the
criminal context.
Mr. Gowdy. Well, if you don't know the name of the person,
if his first name is unknown and his last name is unknown, how
are you going to investigate him under your recommendations?
Mr. Sanchez. Well, if his first name is unknown and the
last name unknown, how are you sure you are investigating that
person?
Mr. Gowdy. There are lots of people in the criminal context
that you know a crime was committed. You don't have any idea
what their first name or last name is. Trust me from 16 years
of doing it. A name is sometimes the last piece of information
that you get.
Mr. Sanchez. And what can be done in that context is to
target a facility. Again, both FISA and criminal warrants
permit a facility where there is an evidentiary nexus
connecting it to a crime or in this case an agent of a foreign
power can be specified. The question is whether the agent in a
case where the target is not known, where there isn't that
anchor, has discretion to choose new facilities not----
Mr. Gowdy. When you say the target is not known, there is a
difference between not being known and not being identified.
Correct?
Mr. Sanchez. It borders on metaphysics, but yes.
Mr. Gowdy. Well, it doesn't border on metaphysics. It is a
fact. You can not know the identity of someone and still know
that that person exists. Correct?
Mr. Sanchez. Certainly.
Mr. Gowdy. So there is a difference between being
identified and being known.
Mr. Sanchez. And when a target is known by description,
which will often be connected to the facility which is
originally monitored, I think that anchor should limit the
extent of the warrant until identification of information about
the identity of that person can be obtained.
Mr. Gowdy. You don't have serious concerns about the roving
wiretap. Correct? If I understood your testimony correctly.
Mr. Sanchez. If it is narrowed to match the criminal
authority, no.
Mr. Gowdy. You are upset about national security letters,
but that is not part of what we are doing.
Mr. Sanchez. I was tying those with----
Mr. Gowdy. But that is not part of this reauthorization.
Mr. Sanchez. That is true.
Mr. Gowdy. So roving wiretaps, not that much of an issue
with roving wiretaps.
Lone wolf----
Mr. Sanchez. There is potential for roving--for these John
Doe warrants, but I think that is, again, a very narrow set of
cases. And so closing that loophole would----
Mr. Gowdy. We have Fnu Lnu indictments. That would even be
worse than a Fnu Lnu warrant. Wouldn't it? I mean, we indict
unknown people.
Mr. Sanchez. In the context of a criminal investigation
where the point is, of course, to identify that person and to
have trial in a public fashion.
Mr. Gowdy. Business records. A Federal prosecutor can send
a subpoena without going to any Article III judge and getting
permission, without getting any permission from anyone, can do
it on behalf of a grand jury anytime she or he wants to.
Correct?
Mr. Sanchez. Yes.
Mr. Gowdy. So you would agree that there is an additional
layer of protection in these cases that doesn't even exist in
drug cases or child pornography cases or carjacking cases or
bank robbery cases.
Mr. Sanchez. But there is an absent layer of protection
insofar as there is no independent grand jury in these cases
and also insofar as the secrecy removes----
Mr. Gowdy. Wait a second. What do you mean there is an
absence? You think an Article III judge who has a job for life
is less independent than a grand jury?
Mr. Sanchez. Well, there is a difference in terms of the
nature of the scope of the investigation. Again, on the
criminal side, we are talking about in most cases some kind of
nexus to a crime that has been or is being committed. And then
again----
Mr. Gowdy. But you would concede we cannot wait in these
cases until a crime is committed. So that analogy falls. I
mean, the goal is not to wait until a crime has been committed
in these cases and then do a really good job prosecuting it.
Correct?
Mr. Sanchez. But to the extent that scope difference
creates more discretion, additional protections I think are
appropriate.
Mr. Sensenbrenner. The gentleman's time has expired.
The junior Chairman emeritus of the Committee, the
gentleman from Michigan, Mr. Conyers?
Mr. Conyers. Thank you, Mr. Chairman.
Mr. Hinnen and Mr. Litt, I understand that the Judiciary
Committee in the other body is considering a bill that would
make some changes in some of this law that we are discussing,
S. 290. Do any of you have any operational concerns about
anything in this bill that you would like to bring to our
attention this afternoon?
Mr. Hinnen. Mr. Ranking Member, I am not sure exactly which
bill S. 290 is. Who is the sponsoring Senator, please?
Mr. Conyers. Chairman Leahy.
Mr. Hinnen. Congressman, Mr. Ranking Member, with the
caveat that that bill is currently going through markup or at
least was until very recently and we may not have reviewed the
most recent set of changes, the Administration had reached a
point where it was supporting a very similar bill to that at
the end of the last Congress when these provisions were set to
expire. So without knowing every jot and title that may have
been changed in the recent markup, we are prepared to support a
bill that is similar to the one that was considered at the
close of the last Congress.
Mr. Conyers. Mr. Litt?
Mr. Litt. Mr. Ranking Member, that bill--I think the
provisions in there are examples of the kinds of provisions
that I described in my statement as provisions that would
provide enhanced protection for civil liberties without
affecting operational utility. So, yes, that is our view on
those.
Mr. Conyers. Thank you both.
Mr. Sanchez, it has been a fairly difficult afternoon,
hasn't it? [Laughter.]
Mr. Sanchez. I am having fun.
Mr. Conyers. Could I inquire if you are an attorney?
Mr. Sanchez. I am not.
Mr. Conyers. Well, that may account for some of the
difficulty.
What would you tell a Member of this Committee this
afternoon who might be thinking about voting against this 3-
year extension?
Mr. Sanchez. Well, first of all, in terms of the
operational impact, there is a grandfather clause. That means
these powers would continue to be in effect for investigations
already underway. So the immediate operational impact I think
would likely be limited by that.
I would suggest that certainly all three appear to--well,
in one case, not used at all; in the other cases, used in a
fairly limited way.
But I would suggest that at least with respect to roving
wiretaps in 215, what would be desirable is to sufficiently
constrain them so that they are narrowed to minimize the
collection of information about innocent Americans in a way to
account, again, for the structural differences between
intelligence and criminal investigations and that fixing these
provisions so that they can be made permanent is actually
preferable to allowing them to expire.
Mr. Conyers. Does anyone here want to comment on that
suggestion?
Mr. Hinnen. I would just say, Congressman, that I think the
reference to a distinction in the constitutional architecture
between a group and an individual--I actually, with due
respect, disagree with the assertion that that is what Congress
did in 1978 and that that is what the Keith case does. What
those cases do and what the Fourth Amendment cases that focus
on this do is distinguish between the Government's interest in
criminal investigation and the Government's interest in
protecting the national security. They don't distinguish
between--the distinction of constitutional significance is not
one between an individual and a group.
Mr. Litt. I think from the intelligence community's point
of view, we certainly share the hope that we can reach the
stage where these authorities can be authorized on a permanent
basis. From our point of view, while we encourage oversight,
having to run up against repeated expirations is not something
that we particularly enjoy doing. I guess at the generic level,
I can share the sentiment that I hope we get to the stage where
we all agree on what the appropriate way is that we can
authorize these permanently. We may disagree as to what the
details of that are.
Mr. Conyers. Professor?
Mr. Sales. I think, if I may--I know we are very short on
time. So I will be as brief as I can, which is hard for a
professor to do.
I think Congress has struck the right balance with the
provisions as they exist. Since the PATRIOT Act was enacted,
Congress has revisited these provisions time and time again,
each time adding additional layers of oversight and additional
safeguards. I think those additional mechanisms to protect
privacy and civil liberties would justify a permanent extension
of these provisions now without any additional tinkering.
Thank you, sir.
Mr. Sensenbrenner. The time of the gentleman has expired.
The Vice Chair of the Subcommittee, the gentleman from
Texas, Judge Gohmert?
Mr. Gohmert. Thank you, Mr. Chairman.
I appreciate your all's testimony.
One of the things I got hit up--when we were talking about
extending 206, 215 of the PATRIOT Act, was that under 206,
apparently somebody had been talking about it on TV that that
could allow the FBI to get a wiretap on an entire neighborhood
because the person being pursued had used a neighbor's phone
before and therefore might be likely to use other people's
phones in the neighborhood. Has anybody here ever heard of an
entire neighborhood being wiretapped under 206?
Mr. Hinnen. No, Congressman, and I think that would be
inconsistent with the terms of the statute which require the
Government to demonstrate probable cause that the specific
agent of a foreign power is using a specific telephone number.
Mr. Litt. In addition to that, when you do get a roving
wiretap order, every time the agents go up on a new telephone,
they have to report that to the FISA Court within 10 days and
they have to report the specific basis on which they believe
that the particular facility was being used. And I would doubt
that that would pass muster with the FISA Court if anybody
tried that.
Mr. Gohmert. In my understanding with the roving wiretap,
the goals was to go after cell phones that could be disposed of
quickly and not give time to go after the new phone. Is that
correct?
Mr. Hinnen. And other similar kinds of tradecraft where
individuals cycle through providers quickly in order to try and
shake surveillance, yes.
Mr. Gohmert. Professor, do you have any comment on that? Do
you think it is plausible, possible even to get a wiretap of an
entire neighborhood under 206?
Mr. Sales. No, sir. I think that would be inconsistent with
the terms of FISA as it is written. As my colleagues have said,
FISA is very clear about what is required in order to initiate
surveillance. You must establish, in the case of 206, probable
cause to believe that the target is engaging in international
terrorism. I think it would be extraordinarily difficult to
persuade the FISA Court that there is probable cause to believe
that an entire neighborhood is engaging in international
terrorism.
In addition, it must be shown that there is probable cause
to believe that the target is using a specific facility in
question. If there is a terrorist using a phone, then we should
be listening to it, but it is inconceivable to me that the FISA
Court would approve dragnet surveillance like this. I think
that is the most important part. It is the court that decides,
not the FBI.
Mr. Gohmert. Well, Mr. Sanchez, you brought up NSL's. I
think most of us were quite alarmed when the IG came in with a
report that they had been badly abused and they were not
getting the supervision we had been assured that NSL's would
get. And you had FBI agents just doing fishing expeditions
without proper supervision.
If I understood you correctly, you seem to think that 215
could take care of the needs that are currently given to--or
the power that is currently under the national security
letters. Is there anybody else that you know of that agrees
with that? If you just did away with national security letter
power----
Mr. Sanchez. I am not proposing doing away with the
national security letter power.
Mr. Gohmert. Oh, you are not? What is your specific
proposal?
Mr. Sanchez. My suggestion is that if the national security
letter authority were narrowed further, for example, as it
previously did, to permit the acquisition of records that
pertain to a suspected terrorist and in the case of
communications records for basic subscriber information for
persons believed to be in contact with a suspected terrorist,
that narrower authority could allow the kind of initial
investigation on the basis of relatively limited records that
don't sweep in people 2 and 3 degrees removed. And if that kind
of greater breadth is necessary, 215 orders could be employed
for those categories of records.
Mr. Gohmert. So you think national security letters do
perform an important function. They just need to be narrowed.
Is that correct?
Mr. Sanchez. I think that is accurate, yes.
Mr. Gohmert. I see my time has expired and I yield back.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from Georgia, Mr. Johnson?
Mr. Johnson. Thank you, Mr. Chairman, for holding this very
important hearing.
I have--well, before I go down that line, let me say that
section 215, the business records section, can be used against
Americans who are alleged to be an agent of a foreign power. Is
that correct?
Mr. Hinnen. Yes, that is correct.
Mr. Johnson. And you would just simply need specific and
articulable facts giving reason to believe that an American may
be assisting a foreign power or an agent of a foreign power, in
other words, not probable cause but a level below probable
cause.
Mr. Hinnen. Certainly the relevant standard is a more
lenient or a minimal standard as opposed to probable cause.
What the business records provision actually allows us to
do is to get records from a third party custodian, to go to a
bank and get an individual's bank records or that kind of
thing. And so that is why the importance is demonstrating their
relevance to a national security investigation, not necessarily
anything specific about the individual because they don't
actually act against the individual directly.
Mr. Litt. Let me here--just to be clear, in those FISA
authorities which do depend upon a finding that somebody is an
agent of a foreign power, that finding is based on probable
cause by the court.
Mr. Johnson. The finding that the person is an agent of a
foreign power looks to me that it simply requires a showing of
specific and articulable facts as opposed to probable cause. I
am correct on that, am I not?
Mr. Hinnen. That was the distinction, Congressman, I was
trying to draw. I don't think I articulated it very well. What
the business records provision requires the Government to show
is something with respect to the investigation itself rather
than something----
Mr. Johnson. Yes. Well, I understand that part. That is
probable cause, the fact that it may be related to a terrorism
or a security investigation, national security.
But the person whose documents are being subpoenaed, if you
will--that person can be an American and they can be
established as an agent of a foreign power merely through an
articulable, reasonable suspicion as opposed to probable cause.
Now, I have serious concerns about the possible abuse and
misuse of counter-terrorism technologies developed by Federal
contractors under the authority of the PATRIOT Act and the
Homeland Security Act. Are either one of you familiar with the
recent Chamber leaks controversy?
Mr. Litt. I am sorry. The recent what?
Mr. Johnson. Chamber leaks, a situation where there was a
group of----
Mr. Litt. The Chamber of Commerce?
Mr. Johnson. Yes.
Mr. Litt. I am familiar from reading it in the newspapers,
yes.
Mr. Johnson. So the technologies that were developed by
these security contractors which could have been unleashed on
American citizens for domestic illegitimate purposes, the
mining of social network sites, the planting of false personas
and things like that, false documentation--these are
technologies that are depended upon by individuals who are
executing their authority under the PATRIOT Act. Correct?
Mr. Litt. Well, I don't specifically know what technologies
those people planned to use, but I do know----
Mr. Johnson. Let me ask you are you familiar with Palantir
Technologies, Bar Code technologies, or HBGary Federal and
whether or not the Department of Justice or the national
security agency which you belong to, Mr. Litt, contracts with
any of those firms for their software?
Mr. Litt. I am familiar with the names of the companies. I
don't know whether there are any contracts between the
intelligence community and any of those companies.
Mr. Johnson. Well, I have asked for a congressional hearing
to take place in Judiciary, and I look forward to hearing back
from the Chairman of the full Committee as to whether or not
there will be hearings held on this most important topic, which
is directly related to our subject matter today.
Thank you.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentleman from California, Mr. Lungren?
Mr. Lungren. Thank you very much, Mr. Chairman.
Mr. Sanchez, you talked about the Ninth Circuit. I am a
little familiar with the Ninth Circuit. They were, during the
time I had experience with them, the most reversed circuit in
the entire United States. I think 1 year they had 19 out of 20
cases reversed; 1 year, 21 out of 22, a number of them that my
office brought before the Supreme Court.
But I was interested in the language that you cited as
exemplary for what we ought to be using. It really caught my
attention because you quoted their language saying that they
approved it in the criminal context because there is virtually
no possibility of abuse or mistake. I guess my question is,
should that be the standard that we use, virtually no
possibility of mistake, before we are allowed to have a roving
wiretap in a case in which we are trying to stop an attempted
terrorist attack?
Mr. Sanchez. Well, I should say in the context----
Mr. Lungren. I mean, that is the language that you used. So
I assume that you meant that that is the kind of standard we
ought to have, virtually no possibility of mistake.
Mr. Sanchez. I think in fact, again in particular when we
are talking about online surveillance or surveillance of
electronic communications, anytime a tap is roving, there is
inherently some possibility of error, but that is dramatically
magnified without the anchor of----
Mr. Lungren. So that would not be your standard. I
appreciate that.
Mr. Litt and Mr. Hinnen, sort of the general talk about
roving wiretap--can you tell me how many times it has been
utilized under section 206?
Mr. Hinnen. I am afraid we don't have that number with us
today. As I mentioned in my testimony, we obtain the
authorization about 20 times a year. The set of circumstances
doesn't always eventuate such that we need to use the authority
despite the fact that we have gotten it. So it would be
something less than 20 times a year.
Mr. Lungren. There would be some people that would believe
perhaps, if they heard some of the commentary today, that my
goodness, if we don't have the same restrictions that you have
in a criminal case, this must give rise to your ability to have
a wide-ranging, exploratory search with no specificity. As I
read the statute, it doesn't allow that. Could you explain
exactly what you have to do in order to obtain the authority
for a roving wiretap in a section 206 case?
Mr. Hinnen. Sure. Thank you, Congressman.
The Government has to make three important showings in that
case. It has to make the two showings that are required for
regular FISA surveillance in any case: probable cause to
believe the individual is an agent of a foreign power and
probable cause that the individual will use the specific phone
number----
Mr. Lungren. The individual. It is an individual even
though you may not know the individual's name.
Mr. Hinnen. That is correct. I thought Congressman Gowdy
did an excellent job of demonstrating the difference between
being able to identify someone and being able----
Mr. Lungren. But I want to make sure that as you understand
the statute, it requires you to have some specificity with
respect to an individual who is the target of your inquiry.
Mr. Hinnen. That is correct, Congressman. Specificity both
with respect to a specific individual and with respect to a
specific phone number.
Mr. Lungren. And if in fact in the process of using the
roving wiretap, you move it to another instrumentality, do you
not have to then inform the court of that?
Mr. Hinnen. We do. We have to inform the court of the facts
that lead us to believe that the target for whom we have
already shown probable cause that he was an agent of a foreign
power is using a specific phone number at that new provider.
Mr. Lungren. So there is a continuing oversight by the
court in that context?
Mr. Hinnen. That is correct.
Mr. Lungren. And obviously in a criminal case and in a case
such as this, when you allowed to have a roving wiretap, I
assume you collect conversations with people who are not
targets.
Mr. Hinnen. That is certainly correct that when the
Government conducts surveillance, not every conversation
relates to the conduct being----
Mr. Lungren. And the Government has done this for years and
years in the criminal context. I presume that you handle it in
this context in a similar manner, that is, you are required to
minimize those conversations of people who are not targets.
Correct?
Mr. Hinnen. Although the minimization process works
slightly differently, yes, there is a strict minimization
requirement in the FISA statute.
Mr. Lungren. Would you explain for the record what that
minimization process is?
Mr. Hinnen. In a criminal context, real-time minimization
is required. In other words, an agent literally listens to the
phone call, and if it appears to be a call to mom about picking
up milk on the way home, the call is dropped. Because Congress
recognized that spies and terrorists don't always operate that
way, there may be language issues, there may be issues of
talking in code, there may be tradecraft issues, the FISA
statute does not require real-time minimization. It requires
after-the-fact minimization.
Mr. Lungren. But minimization nonetheless.
Mr. Hinnen. Minimization nonetheless.
Mr. Sensenbrenner. The time of the gentleman has expired.
The gentlewoman from California, Ms. Chu?
Ms. Chu. I was interested in a couple of anecdotes from the
Inspector General report, the first case where the FBI was
collecting information about a certain telephone line. During
this time the phone company assigned the number to a different
person but failed to inform the FBI of this fact for several
weeks, and as a result, the FBI collected information about an
innocent person who was not connected to the investigation.
And then a second anecdote where the FBI learned that a
source who had provided significant information about the
target changed his mind and no longer believed that the target
was involved with a particular terrorist group, but the change
was not reported to the court until about a year later. Hence,
all that information was collected.
Well, let me ask about these roving wiretaps, Mr. Hinnen or
Mr. Litt. The criminal law also permits roving wiretaps, as it
should, but it also includes a critical protection that section
206 of the PATRIOT Act does not. It requires the Government to
specifically identify the target if it is not going to identify
a device and rove with an individual. There have been
legislative fixes proposed for almost 10 years to put this
common sense protection into FISA. Do you oppose this proposal
or do you support this proposal? Please explain what your
position is on this.
Mr. Litt. I must say I think that proposal is entirely
unnecessary. As Mr. Hinnen explained before, the FISA statute
already requires that we either identify the person by name or
give a sufficient description of him so that we know who it is.
I must say I spent a number of years at the beginning of my
career as an assistant U.S. attorney, and I encountered
situations where we would wiretap somebody and the target of
the wiretap would be, you know, John Doe, aka, Chico. All we
knew was a nickname, but we knew enough to know who it was so
that when we were listening to the phone, as Mr. Hinnen said,
we could turn it off if we didn't have our target on the line.
It is the same principle here. We may not know the person's
name and we certainly may not know that we know his true name,
but we can't get a FISA order unless we know enough to convince
the court that we know who the person is and that that person
is an agent of a foreign power. And that requires
particularity.
Ms. Chu. Well, another protection in criminal wiretaps is
that the Government must ascertain that the subject is actually
using the device before it begins recording, thereby greatly
reducing the number of innocent people that are inadvertently
recorded by the Government. As you can see here in the anecdote
that I just named, the suspected person wasn't even using that
particular phone.
Do you oppose putting this protection into FISA, and if so,
why?
Mr. Hinnen. Congresswoman, that protection is in FISA for
surveillance. The Government must show, in addition to probable
cause that the targeted individual is an agent of a foreign
power, probable cause that the individual is using or is about
to use the phone. I suspect--and I am not familiar with that
particular passage of the Inspector General's report, but I
expect that that was a mistake. I won't sit here and tell you
that mistakes never occur in this area of human endeavor, just
like they occur in all others. But the FISA statute does
require the Government to demonstrate probable cause that the
individual is using or about to use the specific number that
the Government wants to conduct surveillance on.
Ms. Chu. Mr. Sanchez, how do you respond to this?
Mr. Sanchez. I think what is crucial to keep in mind when
talking about the equivalence between two powers is the larger
framework in which they are embedded. So as Mr. Hinnen already
discussed, collection in the first instance is much broader, is
weighted toward, as the FISA Court has said, the Government's
need to acquire foreign intelligence, and that even when it is
minimized, often that doesn't entail the destruction of
information. So there have been a number of cases where FISA
recordings that were nominally minimized were when the
Government was faced with the Brady obligation to provide
exculpatory information, they were actually able to ultimately
retrieve many, many times more hours of recording than had been
not minimized.
So in particular, in the context of where you are talking
about roving across facilities where I think the inherent
possibility of using an identifier like Chico creates a lot
more slippage, a lot more potential for error, the need to
compensate on the front end means that the protections on the
discretion of agents need to be at least as strong as they are
on the criminal side where, again, there is going to be a lot
more back-end scrutiny in a distributed fashion if not by the
court itself.
Mr. Sensenbrenner. The time of the gentlewoman has expired.
The gentleman from Pennsylvania, Mr. Marino?
Mr. Marino. Thank you, Mr. Chairman.
Gentlemen, I think you have been asked a question to a
certain extent, but before I ask you to answer my question, am
I correct there are two attorneys and two non-attorneys? Or
there are three attorneys and one non-attorney. Got it. All
right.
Just for the interest of brevity, I would like to start at
the left end, my left, of the table. Could you please
succinctly describe the difference between a Title III search
warrant and a FISA warrant? I think that is critical at this
point because as a U.S. attorney for 6 years and a district
attorney for 12 years, to some extent I had more latitude as a
district attorney in acquiring a Title III warrant than I did a
FISA warrant.
Mr. Hinnen. Yes, Congressman. The principal differences
between a Title III warrant and a FISA order are that in the
first case the Government needs to demonstrate that the
individual target is an agent of a foreign power, not an
individual committing a crime but must show probable cause in
both cases.
Second, Congress decided in 1978 that it would be harmful
to foreign intelligence investigations if the strict notice
requirements in Title III also existed in the criminal context.
You would essentially in every case in which you conducted
surveillance against a spy or a terrorist have to notify him
within a certain amount of time after that surveillance had
occurred.
And then the last is one that we have already discussed
here today as well which is in the technical manner in which
the minimization is applied to the information collected.
Mr. Marino. Attorney Litt, please. Can you follow up on
that?
Mr. Litt. I agree with that.
Mr. Marino. Good.
Professor?
Mr. Sales. Thank you, Congressman.
I agree with that and one additional and important
difference between the Title III context and the FISA context
is the internal approval mechanism for a wiretap order. In the
Title III context--let me talk about the FISA context first.
The FISA context requires incredibly high-level sign-off
from the highest levels within the Justice Department. The FBI
Director is involved. The Deputy Attorney General is personally
involved. The Attorney General is personally involved. That is
much more rigorous internal executive branch scrutiny than you
have for a Title III wiretap which I suspect may explain your
own experience of the relative ease of obtaining a Title III
versus a FISA.
Mr. Marino. And it hinges on the credibility of the United
States attorney and the FBI agent or whatever agent requesting
that. Okay.
Mr. Marino. Sir?
Mr. Sanchez. I think they have covered it fairly well, but
I would stress again the distinction between minimization in
real time and minimization after the fact as again weighted
toward broad acquisition of most of the information flowing
through a facility unless it could not be foreign intelligence
information which almost anything could. So again, just the
idea that there is much broader initial collection.
Mr. Marino. Broader initial collection where?
Mr. Sanchez. That is to say as opposed to the case where
information is recorded only when there is some nexus to the
predicate offense, there is generally recording of all
communications.
Mr. Marino. You know, with all due respect you are throwing
out first-year law school criminal law terms, ``predicate
offense,'' ``nexus,'' you know, the whole 9 yards, something
that any one of us can get off the Internet. But you are not
getting specifics. Do you understand, sir, with all due
respect, the delineation between the two and what one has to go
through for the FISA order compared to the Title III?
Mr. Sanchez. I do. I am referring only to, again, the
question of when minimization occurs, which everyone else here
has, I think, already alluded to.
Mr. Marino. Thank you.
I yield my time.
Mr. Sensenbrenner. The gentleman from Arkansas, Mr.
Griffin?
Mr. Griffin. Thank you, Mr. Chairman.
I want to follow up with some questions for you, Mr.
Sanchez. I was reading in your written statement when you were
talking about--and these pages are not numbered. You have a
section here where you are talking about the transparency that
normally surrounds the acquisition of documents via grand jury
subpoena.
Mr. Sanchez. Yes.
Mr. Griffin. And you indicate that it is impossible to
overstate the significance of the transparency that normally
surrounds the acquisition of documents by those means, those
means being via the grand jury subpoena. Could you talk a
little bit about what that transparency is?
Mr. Sanchez. Well, insofar as normally on the criminal side
that those processes do not involve gag orders, as 215 orders
and national security letters normally do, the incentives I
believe are different for companies served with those orders.
They are not always incentivized to stand up for the privacy
rights of their customers, the people whose records they are in
custody of. But we see frequently booksellers or companies like
Google moving to quash subpoenas specifically citing the ground
that they fear that their reputation would be damaged by the
disclosure of the fact that they were turning over sensitive
records without making any kind of move to limit the scope of
the subpoenas.
By contrast, what we have seen, again, in at least the
national security letter and 215 cases, is that often when
there have been identified misuses, they have typically
occurred with the enthusiastic collaboration of the record
custodians, often violating the rules because of
overproduction.
Mr. Griffin. I am limited on time here.
So I guess in my experience, I haven't seen a lot of
transparency, not that it is warranted. The whole nature of a
grand jury process is secrecy. I am not sure where you are
going with your transparency argument. But the grand jury
issues the subpoena in secrecy. It is issued and complied with
in secrecy. The documents are obtained and brought to the grand
jury. So I am not exactly sure what that argument is that you
are making there.
But I also want to go over here. You talk about the PATRIOT
Act's roving wiretap provision includes no parallel requirement
that an individual target be named. We just discussed that. We
were given the example of at least identifying the individual
even if we don't know the name.
But then you go on and you say, quote, this is disturbingly
close to the sort of general warrant the Founders were so
concerned to prohibit when they crafted our Bill of Rights. A
little hyperbole there maybe.
Mr. Litt, would you comment on that?
And this gets me to the broader question, and this is what
I have heard a lot back home. If you would each--I know I am
running out of time--just briefly comment on the
constitutionality of the three provisions that we just voted to
extend. Do you any of you have constitutionality concerns? And
if this was asked previously, I apologize.
Why do we not just start on the end and go down?
Mr. Hinnen. No, Congressman.
Mr. Griffin. Mr. Litt?
Mr. Litt. No. No, I don't. I think the only two issues that
have been raised--with respect to the lone wolf provision, I
think there has been concern expressed that this may be beyond
the national security powers as set out in the Keith case. And
I think that when you have a situation where you are talking
about non-U.S. persons who are engaged in international
terrorism and a collection which is certified to be for the
purpose of collecting foreign intelligence, I don't think that
is a serious constitutional concern.
And similarly, for the reasons we previously discussed, I
think that the roving wiretap adequately meets the
particularity requirement of the Fourth Amendment.
Mr. Griffin. Mr. Sales?
Mr. Sales. Thank you, Congressman.
I agree with that as well.
I think we are pretty far away from the days of King George
III. FISA, as amended by the PATRIOT Act, doesn't allow the
sort of general warrant dragnets that our founders justifiably
worried about 200 years ago. That is not the situation that
FISA authorizes. In all cases, FISA, as amended by the PATRIOT
Act, requires probable cause to believe that the target is an
agent of a foreign power, i.e., somebody who is a spy or a
terrorist. That seems like it meets the particularity
requirement pretty precisely to me.
Mr. Sensenbrenner. The time of the gentleman has expired.
Mr. Griffin. Thank you, Mr. Chairman.
Mr. Sensenbrenner. I would like to thank all of our
witnesses today for their testimony. I think it has been very
enlightening and elucidating.
Without objection, all Members will have 5 legislative days
to submit to the Chair additional written questions for the
witnesses which we will forward and ask the witnesses to
respond as promptly as they can so that their answers may be
made part of the record.
The gentleman from Georgia?
Mr. Johnson. Thank you, Mr. Chairman.
I would ask unanimous consent to introduce into the hearing
record a report by the American Civil Liberties Union titled
``Reclaiming Patriotism.''
Mr. Sensenbrenner. Without objection.
[The information referred to follows:]

__________

Mr. Sensenbrenner. Also without objection, all Members will
have 5 legislative days to submit any additional materials for
inclusion in the record, and without objection, the hearing is
adjourned.
[Whereupon, at 3:54 p.m., the Subcommittee was adjourned.]

A P P E N D I X

----------

Material Submitted for the Hearing Record

Prepared Statement of the Honorable Henry C. ``Hank'' Johnson, Jr., a
Representative in Congress from the State of Georgia, and Member,
Subcommittee on Crime, Terrorism, and Homeland Security
Mr. Chairman, on October 26, 2001, in a time of fear and
uncertainty that followed the terrorist attacks of September 11, 2001,
President George W. Bush signed the Uniting and Strengthening America
by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001, commonly referred to as the PATRIOT Act, into
law.
The PATRIOT Act is one of the most controversial laws to date. It
was more than 300 pages long and was passed a little over a month after
the September 11th attacks.
I am not down-playing the significance of the September 11th
attacks; it was the worst terrorist attack in American history.
While the threat of terrorism is real, and law enforcement must
have the right tools to protect Americans, any counterterrorism
measures must have a solid Constitutional footing and respect the
privacy and civil liberties of the American people.
The framers of the Constitution recognized the inherent danger of
giving the government unbridled authority to look into our private
lives and put checks and balances in place to curb government abuses.
As we started off the 112th Session, my colleagues on the other
side of the aisle demonstrated their commitment to the Constitution by
reading it on the House floor.
Surely, they are familiar with the Fourth Amendment which states
``[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures, shall
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.''
The provisions of the PATRIOT Act that will sunset on May 27, 2011
are disconcerting and expand the government's authority to meddle in
our lives with little or no evidence of illegal conduct.
Section 215 of the PATRIOT Act allows the government to seize ``any
tangible thing,'' from an American who has not been suspected of
terrorism, including library records and diaries, relevant to a
terrorism investigation, even if there was no showing that the
``thing'' pertains to suspected terrorists or terrorist activities.
Section 206 of the PATRIOT Act, commonly referred to as the
``roving wiretap'' provision, is less controversial. Roving wiretaps
are commonly used by law enforcement and it is reasonable to make it
available to intelligence officers. Under the Foreign Intelligence
Surveillance Act (``FISA''), ``John Doe'' wiretaps that do not specify
the person's identity are allowed. This standard could be tightened to
decrease the likelihood that the wrong person will be targeted.
Finally, Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 (``IRTPA''), also known as the ``lone wolf''
provision, permits secret service intelligence surveillance of non-U.S.
persons suspected of being involved in terrorist activities even if
they are not connected to any overseas terrorist group. Because the
``lone wolf'' provision operates in secret, it could be subject to
government abuses. To date, this provision has never been used.
There is bipartisan consensus, evidenced by the 26 Republican
Members who voted against reauthorization of the expiring provisions of
the PATRIOT Act on February 17th, that they need improvement to
preserve the rights of the American people.
If Congress reauthorizes these provisions again with no changes,
Americans merely visiting a website, mentioning a matter under
investigation on social networks, or checking out a ``controversial''
book from a library is enough not only to invade the privacy of law-
abiding Americans, but to also do so without any of them knowing that
the Feds are watching.
One of the most difficult tasks for Congress is balancing the
nation's need for security against Americans' rights to privacy, but
this is a duty that should not be ignored.
I look forward to hearing from the witnesses about how we can
achieve this goal.
Thank you, Mr. Chairman, and I yield back the balance of my time.

Letter from Debra Burlingame, Co-Founder, and Timothy Killeen,
Executive Director, Keep America Safe

Letter from J. Adler, National President,
the Federal Law Enforcement Officers Association (FLEOA)

Letter from Konrad Motyka, President,
the Federal Bureau of Investigation Agents Association