Senate Judiciary Committee Holds Hearing on New Wiretap Powers Review

September 5, 2003
Senate Judiciary Committee Holds Hearing on New Wiretap Powers Review
LIST OF SPEAKERS             


LEAHY: 

    We'll begin. I understand Senator Hatch has been delayed in traffic, but is coming in. But Senator DeWine, Senator Specter, Senator Feingold are here. Before we begin, I want to commend Senator Specter -- I want to commend Senator Specter for not only this year, but for as long as I can remember, he has highlighted this whole issue of FISA and the importance of it, as has Senator Grassley; Senator DeWine, of course, has; Senator Feingold have. 

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    But I appreciate this. And I mention this, Mr. Kris, because I know you have worked so very hard on this subject. 

    Now, it occurs me as I came in today that in Vermont, my own state, but also in Arizona, North Carolina, New York, Wisconsin, Maryland and a number of other states, Americans are making our democracy work. They're casting votes in primary ballots. 

    So this committee meets today as part of its role in that same democratic process, focusing oversight on one of the most important, but I think least understood, functions of our government. We are examining how the Foreign Intelligence Surveillance Act is working or not. And we're doing this, we're asking how it works, not just in the theory of it, but in the practice of it. 

    We had begun our oversight hearings last summer as soon as the Senate majority shifted. After the terrorist attacks on September 11, we focused on expedited consideration of what became the USA Patriot Act, providing legal tools and resources to better protect our nation's security. We continue our efforts to ensure that the law is being implemented effectively and in ways that are consistent with preserving the liberties enshrined in the Constitution. 

    Much of our focus today will be on process issues in a secret system. In a nation of equal justice under law, process is important. In a nation whose Constitution is the bulwark of our liberty, process is essential. And in administering a system that rightfully must operate under a shroud of secrecy, congressional oversight of that process is crucial. 

    The USA Patriot Act made important changes to the Foreign Intelligence Surveillance Act, which is called FISA for short. This law set up a secret court to review government applications to conduct secret wiretaps and searches inside the United States for the purpose of collecting foreign intelligence information to help protect this nation's national security. 

    FISA was originally enacted in the 1970s to curb widespread abuses by both presidents and former FBI officials of bugging and wiretapping Americans without any judicial warrant based on the executive branch's unilateral determination that national security justified that surveillance. The targets of those wiretaps included a member and staff of the United States Congress, White House domestic affairs advisers, journalists and many individuals and organizations engaged in no criminal activity but, like Dr. Martin Luther King, who expressed political views deemed threatening to those in power. 

    Indeed, on our panel today is one of the victims of those abuses, Dr. Mort Halperin, whose telephone was illegally tapped by high-level officials in the Nixon Administration. I point this out just because I don't want anybody to think all this is ancient history. It's happened more recently than we'd like to think. 

    Now In the USA Patriot Act, we sought to make FISA a more effective tool to protect our national security. But the abuses of the past are far too fresh simply to surrender to the executive branch unfettered discretion to determine the scope of those changes. The checks and balances of oversight and scrutiny of how these new powers are being used are indispensable. Oversight of a secret system is especially difficult. But in a democracy, it is especially important. 

    Over the last two decades, the FISA process has occurred largely in secret. Now clearly, specific investigations must be kept secret. But even the basic facts about the FISA process have been resistant to sunlight. 

    The law interpreting FISA has been developed largely behind closed doors. The Justice Department and FBI personnel who prepare the FISA applications work behind closed doors. When the FISA process hits snags, such as during the year immediately before the September 11 attacks, that adversely affects the processing of FISA surveillance applications and orders, the oversight committees of the Congress should find out a lot sooner than the summer after the September 11 attacks. 

    Problems occurred a year ago. We should be able to find out about those problems before now. 

    Even the most general information on FISA surveillance, including how often FISA surveillance targets American citizens, or how often FISA surveillance is used in a criminal case, is unknown to the public. In matters of national security, we do give the executive branch the powers it needs to do its job. But we must also have public oversight of the performance. When the founding fathers said "If men were all angels, we would need no laws," they did not mean secret laws. 

    Our oversight has already contributed to the public's understanding of this process. We brought to light the FISA court's unanimous opinion rejecting the Justice Department's interpretation of the USA Patriot Act's amendments. That was because of a request from this committee. 

    And if it had not been for the prolonged efforts of the committee -- and I want to note especially Senator Specter and Senator Grassley -- one of the most important legal opinions in the last 20 years of national security law, even though it was unclassified, would have remained totally secret. This is an unclassified government document remaining secret. We brought it out into the open. 

    As it is, this unclassified opinion was issued in May. But it was not released until three months later on August 20, in response to a letter that I sent, along with Senator Specter and Senator Grassley. The May 17 opinion is the first window opened to the public and the Congress about today's FISA and about how the changes in the USA Patriot Act are being used. 

    Without this pressure to see the opinion, the senators who wrote and voted on the very law in dispute would not have known how the Justice Department and the FISA court were interpreting it. The glimpses offered by this unclassified opinion raise policy, process and constitutional issues. 

    The first-ever appeal to the FISA Court of Review, which the solicitor general of the United States argued yesterday, was transcribed. And yesterday, with Senator Specter and Senator Grassley, I sent a letter asking the court to provide an unclassified version of the oral argument and their decision to this committee. We need to know how the law is being interpreted and enacted. 

    Now many of the FISA provisions are subject to a sunset. Because of that, it is particularly important the committee monitor how the Justice Department is interpreting them because if we don't know how they are interpreting them, I am one senator who would not agree to continuing the act once the sunset is there. 

    Now let's speak very clear about that. This act has to be renewed. If we're not going to know how it's being used, I think there's going to be an awful lot of senators -- Republican and Democrat alike -- who will not vote to continue the act. 

    The Department of Justice's brief makes a sweeping claim regarding the USA Patriot Act amendments. The department asserts that the longstanding purpose analysis adopted by numerous courts for more than 20 years is -- well, just wrong. For 20 years, they made a mistake. Specifically, the department claims that using FISA for the sole and exclusive purpose of pursuing a criminal prosecution, as opposed to collecting intelligence, is allowed. 

    The department contends that changing the FISA test from requiring "the purpose" of collecting foreign intelligence to a "significant purpose" allows the use of FISA by prosecutors as a tool for a case even when they know from the outset that case is a criminal case and will be criminally prosecuted. They claim that criminal prosecutors can now initiate and direct secret FISA wiretaps without normal probable cause requirements and discovery protections as another tool in criminal investigations even though they know that the strictures of Title III of the Fourth Amendment cannot be met. In short, the department is arguing that the normal rules for Title III and criminal search warrants no longer apply in terrorism or espionage cases, even for U.S. citizens. 

    And I was surprised to learn that, as -- quote -- "the drafter of the coordination amendment" -- close quote -- in the USA Patriot Act, the department cites my statement -- cites a Leahy statement -- to support its arguments that there is no longer a distinction between using FISA for a criminal prosecution and using it to collect foreign intelligence. Had the Department of Justice taken the time to pick up a phone and call me -- and incidentally, I have a listed phone number, both home and at the office -- I would have told them that was not and is not my belief. 

    Let me state that again. Even though the Justice Department's brief cites what is my belief, let me tell you right now, they are wrong. It is not my belief. When they cite me, they ought to talk to me first. 

    We sought to amend FISA to make it a better foreign intelligence tool. But it was not the intent of these amendments to fundamentally change FISA from a foreign intelligence tool into a criminal law enforcement tool. 

    We all wanted to improve coordination between the criminal prosecutors and intelligence officers, something I've asked for for years. But we did not intend to obliterate the distinction between the two. And we did not do so. Otherwise, we'd simply say, "Let the CIA secretly investigate any Americans for anything they want, at any time. Indeed, if we wanted to make that kind of a sweeping change in FISA, it would have required changes in far more parts of the statute than were affected by the USA Patriot Act. 

    In addition, as Professor Banks points out in his testimony, such changes would present serious constitutional issues. The issues relating to FISA implementation are not just legal issues, however. Our committee has also held closed sessions and briefings. And we have heard from many of the FBI and Justice Department officials responsible for processing and approving FISA applications. 

    We cannot go over this in an unclassified forum, but I can say this: before the 9/11 attacks, we discovered that the FISA process was strapped by unnecessary layers of bureaucracy and riddled with inefficiencies. And some of these inefficiencies had to do with legal issues. And we addressed those in the USA Patriot Act. 

    But many of the problems were not of legal issues. They related to the same problems that this committee has seen time and time again at the FBI -- poor communication, inadequate training, a turf mentality, cumbersome information management and computer systems that date back to the Dark Ages. Even a cursory read of the unanimous FISA Court opinion bears that out. 

    The FISA Court was not frustrated with the state of the law. Instead, all seven federal judges were concerned about a track record marred by a series of inaccurate affidavits that even caused them to take the extraordinary step of banning an agent from appearing before the court in the future. 

    And I continue to support Director Mueller's attempts or efforts to address these problems. But the going has not be easy. 

    And as we conduct oversight of the FBI and the Justice Department, I am convinced there is no magic elixir to fix these problems. It is tempting to suggest further weakening of the FISA statute to respond to specific cases. But the truth is that the more difficult systemic problems must be properly addressed in order to combat terrorism effectively. 

    Furthermore, given the secrecy of the FISA process and the law relating to the FISA, it is impossible to intelligently address the problems that do exist without risking doing more harm then good. And as this week's mostly secret appeal before the FISA Court demonstrates the consequences of amending that statute can be far-reaching and perhaps unintended. 

    FISA was enacted for a reason. It is even more important to the nation today than it was a year ago. 

    We need to do our work well and ensure that domestic surveillance is aimed at true national security targets and does not simply serve as an excuse to violate the constitutional rights of our own citizens. We have to exercise the utmost care and diligence in understanding and overseeing its use. 

    I believe it's the "Los Angeles Times," in an editorial shortly after September 11, that said, "The buildings may have come down. Our Constitution did not." And if we want to protect ourselves, we should make sure that both the buildings and the Constitution have not come down. 

    Senator Hatch? 


HATCH: 

    Well, thank you, Mr. Chairman. I want to commend you for holding a hearing on this important issue, the Foreign Intelligence Surveillance Act, or FISA, process. 

    The intelligence community and the law enforcement agencies rely on FISA to conduct critical intelligence gathering in order to protect our country and prevent further terrorist attacks. And let nobody miss the point: we have to be very vigilant and will have to continue to be very vigilant in order to prevent any future terrorist attacks in this country. 

    And we're very concerned when people are willing to give their own lives in suicide bombings. We know that that's a matter of even greater concern to many people. 

    Now I look forward to examining this important issue relating to the FISA process today. And I'm hopeful that we can do this in a spirit of bipartisanship. 

    These are complex issues. And the committee's constructive role is important. 

    The timing of this hearing -- one day before the first year anniversary of the attack on our country -- could not be more telling. Our joint session last Friday in New York City helped to emphasize to everyone the horrible tragedy that our country suffered on September 11. It reminded us of our continuing need to be vigilant in protecting our country from further terrorist attacks. 

    After last year's tragic attack on September 11, the administration and Congress worked together to enact the Patriot Act. This is a broad package of measures that provided law enforcement and the intelligence communities with the necessary tools to fight terrorism worldwide and, of course, protect our country. These reforms were critical to enhance our government's ability to detect and prevent terrorist attacks from occurring again. We worked together on these reforms and passed them in the full Senate on a vote of 99 to 1. 

    One of the most significant issues addressed by the Patriot Act was the lack of effective coordination between intelligence and criminal investigations. This was not a new issue. The Bellows Report relating to the Wen Ho Lee investigation, as well as the GAO report on the subject, clearly identified the problem of intelligence sharing and the need to address the issue even before the September 11th attack. The issue was also identified by the Hart-Rudman Commission and dated back to the 1990's. 

    The Patriot Act addressed the issue in two significant ways. First, Congress, with Section 218 of the Act, modified the -- quote -- "primary purpose" -- unquote -- requirement for FISA surveillance and searches to allow FISA to be used where a significant, but not necessarily primary, purpose is to gather foreign intelligence information. 

    Second, Section 504 of the Patriot Act specifically authorized intelligence officers who are using FISA to consult with federal law enforcement officers to -- quote -- "coordinate efforts to investigate or protect against" -- unquote -- foreign threats to national security, including international terrorism. Based on these two provisions, it is clear that Congress intended to allow greater use of FISA for criminal purposes and to increase the sharing of intelligence information and coordination of investigations between intelligence and law enforcement officers. 

    At issue now is a very difficult but critical issue and that is where to draw the line between intelligence gathering and criminal investigations to ensure that our intelligence community and law enforcement agencies are fully capable of detecting and preventing future terrorist attacks while at the same time ensuring that Americans' civil liberties are preserved. 

    The Justice Department's interpretation of the Patriot Act modifications to the FISA process is currently at issue before the FISA Court. And I commend the Justice Department for bringing this issue to the FISA Court for its review. 

    In March of this year, the Justice Department adopted revised guidelines governing intelligence sharing and criminal prosecutions and then sought FISA Court approval for these revisions. The FISA Court approved most of these modifications but rejected a portion dealing with the role of criminal prosecutors in providing advice and direction to the intelligence investigations. The matter is now pending on appeal before the Foreign Intelligence Court of Review. 

    We all expected the courts to review this matter. But we can not deny that Congress specifically intended such enhanced information sharing to take place. We must not revert back in this process and again risk a culture that would fail to pursue aggressively the investigation of terrorist threats. 

    In reviewing the FISA process, we need to consider the fact that there has been a dramatic change in the terrorist landscape since 1978 when FISA was enacted. There is no question that in response to our country's efforts to fight terrorism worldwide, terrorists are increasingly operating in a more decentralized manner, far different from the terrorist threat that existed in 1978. The threat posed by a small group -- even a lone terrorist -- may be very real and may involve devastating consequences, even beyond those suffered by our country on September 11th. Given this increasing threat, we have to ensure that intelligence and law enforcement agencies have sufficient tools to meet this new -- and even more dangerous -- challenge. 

    Being now aware of the evolving terrorist threat, we also may need to examine carefully proposals to modify the FISA statute. This committee's inquiry should be forward looking and done without exaggeration of past missteps and miscues, which have since been corrected. The stakes are simply too high for anyone to inject politics into an area which requires careful and studied deliberation. 

    Today's witnesses will help us to consider these critical issues. And I look forward to hearing each of our witnesses today. And I welcome you all to the committee. We appreciate the effort and time that you have put into present your views to us here today. 


LEAHY: 

    Thank you, Senator Hatch. 

    Normally, we would go right to the witnesses now. But Senator Feinstein has asked to make a brief statement, as has Senator Specter and Senator Feingold and Senator DeWine, each one of whom have had an interest in this subject. And so we will not follow the normal routine, but I'd ask the senators if they might be brief. 

    Make sure your microphone is on. We have these fancy new ones. They're very sensitive. They pick up your jokes with each other. That's why you've got "on" and "off" switches. 


FEINSTEIN: 

    We're a very sober crowd down here. 

    (LAUGHTER) 


LEAHY: 

    I know you are, as are Senator Hatch and I. 


FEINSTEIN: 

    Well, thank you, Mr. Chairman, very much for holding the hearing. And I appreciated the opening statements of both yourself and the ranking member. 

    I was present at the hearing when the attorney general brought forward his concern and took an interest in it. And I think I actually suggested the word "significant." So I want to make a couple of comments. 

    I have read the attorney general's opinion of March 6. And I have read the FISA opinion -- I think it's April 17th. And I want to go back, to the best of my recollection, to the hearing when we made the decision. 

    We knew about the problems FBI agents in the Minneapolis field office had in getting a FISA order in the Moussaoui case. However, I don't believe any of us ever thought that the answer to the problem was to merge Title III and FISA purposes. 

    Now we felt -- or I felt -- that that was what the administration originally proposed when they sent legislation to us to change the words "primary purpose" in the FISA statute to "a purpose." And many of us believe that such a change would have eliminated the distinction between Title III and FISA. "Any purpose," if it was done, even a stupid or a silly one, would have passed muster and allowed a FISA application to proceed. 

    When I questioned Attorney General Ashcroft at this Judiciary Committee hearing, he agreed that the "significant purpose" would represent a compromise. Now Webster's defines the word significant as "having or likely to have influence or effect: important; a significant piece of legislation. Also, of a noticeably or measurably large amount; a significant number of layoffs, for example, producing significant profits. 

    So that was the definition that we then selected to lower the bar slightly, but not entirely, and to provide that when one went for a FISA warrant, there had to be a significant relationship to foreign intelligence. And the bill that ultimately passed both House and Senate and became law included this compromise "significant purpose" standard.

    Now, in the attorney general's brief in the FISA Appellate Court, this brief argues against the balancing compromise language that Attorney General Ashcroft accepted -- I thought -- at the hearing. Under the administration's primary argument in its brief, the administration need not show any purpose of gathering foreign intelligence in any investigation involving national security. The administration seems to contend that a federal prosecutor can direct the FISA process in a case that's 100 percent law enforcement. 

    I don't agree with that. 

    As a backup alternative argument, the administration seems to contend that any foreign intelligence purpose need not only be insignificant and, in any event, can still be fully directed by law enforcement. I disagree in that. 

    Apparently, they believe they can get a FISA order even if a case is 80 or 90 percent law enforcement. I disagree with that. 

    In my view, there has been a skewing, Mr. Chairman, of what we set up in utilizing a "significant purpose must be foreign intelligence." 


LEAHY: 

    I tend to agree. And that's why I got very concerned when I saw them quote me and what my position was on that. It was just totally different than what my position is. 


FEINSTEIN: 

    So that's my recollection of the matter and the discussion that took place. Because I think in my Q&A with the attorney general, we talked about various words. And if I thought it was the intent of the committee that we wanted to maintain the primary purpose being the gathering of foreign intelligence, not Title III. But we wanted to slightly lower the bar because of the particular nature of the circumstances we were in; and therefore, came up with the words "significant purpose," meaning important, significant, noticeably, measurably large amount. 

    Thank you, Mr. Chairman. 


LEAHY: 

    Senator Specter? 


SPECTER: 

    The application of the Foreign Intelligence Surveillance Act, the proper application, is of enormous importance as we are trying to deal with homeland security. And at the same time, there are major challenges to what the Department of Justice is doing with civil rights. 

    And the department's actions leave a lot to be desired on both scores. It would have seemed logical that after the extensive examination of the Foreign Intelligence Surveillance Act in the Wen Ho Lee case, that there would have been an understanding of its application. And there was a miscommunication -- at the highest levels -- between the director of the FBI and the attorney general, which we corrected by statute. 

    And without going into the many ramifications of Wen Ho Lee, suffice it to say that the Department of Justice was on notice as to what FISA required. The failure to obtain a warrant under the Foreign Intelligence Surveillance Act for Zacarias Moussaoui was a matter of enormous importance. 

  

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