ANTI-TERRORISM INTELLIGENCE TOOLS

IMPROVEMENT ACT OF 2003

HEARING
BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM,

AND HOMELAND SECURITY
OF THE

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTH CONGRESS
SECOND SESSION
ON

H.R. 3179
MAY 18, 2004

Serial No. 104

Printed for the use of the Committee on the Judiciary

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Available via the World Wide Web: http://www.house.gov/judiciary
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93715 PDF

2004

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COMMITTEE ON THE JUDICIARY

F. JAMES SENSENBRENNER, JR., Wisconsin, Chairman
HENRY J. HYDE, Illinois
JOHN CONYERS, JR., Michigan
HOWARD L. BERMAN, California
HOWARD COBLE, North Carolina
RICK BOUCHER, Virginia
LAMAR SMITH, Texas
JERROLD NADLER, New York
ELTON GALLEGLY, California
ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia
MELVIN L. WATT, North Carolina
STEVE CHABOT, Ohio
ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee
SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah
MAXINE WATERS, California
SPENCER BACHUS, Alabama
MARTIN T. MEEHAN, Massachusetts
JOHN N. HOSTETTLER, Indiana
WILLIAM D. DELAHUNT, Massachusetts
MARK GREEN, Wisconsin
ROBERT WEXLER, Florida
RIC KELLER, Florida
TAMMY BALDWIN, Wisconsin
MELISSA A. HART, Pennsylvania
ANTHONY D. WEINER, New York
JEFF FLAKE, Arizona
ADAM B. SCHIFF, California
MIKE PENCE, Indiana
NCHEZ, California
LINDA T. SA
J. RANDY FORBES, Virginia
STEVE KING, Iowa
JOHN R. CARTER, Texas
TOM FEENEY, Florida
MARSHA BLACKBURN, Tennessee
PHILIP G. KIKO, Chief of Staff-General Counsel
PERRY H. APELBAUM, Minority Chief Counsel

SUBCOMMITTEE

ON

CRIME, TERRORISM,

AND

HOMELAND SECURITY

HOWARD COBLE, North Carolina, Chairman

TOM FEENEY, Florida
ROBERT C. SCOTT, Virginia
BOB GOODLATTE, Virginia
ADAM B. SCHIFF, California
STEVE CHABOT, Ohio
SHEILA JACKSON LEE, Texas
MARK GREEN, Wisconsin
MAXINE WATERS, California
RIC KELLER, Florida
MARTIN T. MEEHAN, Massachusetts
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
JAY APPERSON, Chief Counsel
ELIZABETH SOKUL, Counsel
KATY CROOKS, Counsel
JASON CERVENAK, Full Committee Counsel
BOBBY VASSAR, Minority Counsel

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CONTENTS
MAY 18, 2004
OPENING STATEMENT
Page

The Honorable Howard Coble, a Representative in Congress from the State

of North Carolina, and Chairman, Subcommittee on Crime, Terrorism, and
Homeland Security ...............................................................................................
The Honorable Robert C. Scott, a Representative in Congress from the State
of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism,
and Homeland Security .......................................................................................

1
2

WITNESSES
The Honorable Daniel J. Bryant, Assistant Attorney General, Office of Legal
Policy, United States Department of Justice
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
Mr. Thomas J. Harrington, Deputy Assistant Director, Counterterrorism Division, Federal Bureau of Investigation
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................
The Honorable Bob Barr, 21st Century Liberties Chair for Freedom and
Privacy, The American Conservative Union
Oral Testimony .....................................................................................................
Prepared Statement .............................................................................................

4
6
9
10
11
13

APPENDIX
MATERIAL SUBMITTED

FOR THE

HEARING RECORD

Letter clarifying hearing responses from the Honorable Daniel J. Bryant ........
Letter from Laura W. Murphy, Director of the American Civil Liberties Union
(ACLU), Washington National Office .................................................................
Letter from the American Civil Liberties Union (ACLU), et al. ..........................
Prepared Statement of the Honorable Sheila Jackson Lee, a Representative
in Congress from the State of Texas ..................................................................
Letter from the Honorable Bob Barr, including the case of Mar-Jac Poultry,
Inc. .........................................................................................................................
Prepared Statement of Kate Martin, Director of the Center for National
Security Studies ...................................................................................................
Article submitted by the Honorable Sheila Jackson Lee, a Representative
in Congress from the State of Texas ..................................................................
Subcommittee letter to the Honorable Daniel J. Bryant requesting responses
to post-hearing questions .....................................................................................
Subcommittee letter to Thomas J. Harrington requesting responses to posthearing questions .................................................................................................
Post-hearing questions for the Honorable Daniel J. Bryant from the Subcommittee on Crime, Terrorism, and Homeland Security ................................
Post-hearing questions for the Honorable Daniel J. Bryant from the Honorable Robert C. Scott, a Representative in Congress from the State of Virginia .......................................................................................................................
Post-hearing questions for the Honorable Daniel J. Bryant from the Honorable John Conyers, Jr., a Representative in Congress from the State of
Michigan ...............................................................................................................

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85
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ANTI-TERRORISM INTELLIGENCE TOOLS

IMPROVEMENT ACT OF 2003
TUESDAY, MAY 18, 2004

HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CRIME, TERRORISM,
AND HOMELAND SECURITY
COMMITTEE ON THE JUDICIARY,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m., in
Room 2141, Rayburn House Office Building, Hon. Howard Coble,
(Chair of the Subcommittee) presiding.
Mr. COBLE. Good morning, ladies and gentlemen. Today the Subcommittee on Crime, Terrorism, and Homeland Security will hold
a legislative hearing on H.R. 3179, the Anti-Terrorism Intelligence
Tools Improvement Act of 2003. This bill strengthens existing
anti-terror intelligence tools that lack enforcement or contain loopholes.
Congressman Sensenbrenner, the Chairman of the Judiciary
Committee, and Congressman Goss, the Chairman of the Select
Committee on Intelligence, introduced H.R. 3179 on September 25,
2003.
Viewing this legislation as almost procedural, and having heard
no complaints, Chairman Sensenbrenner scheduled the bill for
markup a few weeks ago. At that time the American Civil Liberties
Union and the American Conservative Union requested that the
Chairman delay the markup and hold a hearing. The Chairman
granted this request and we are here today for that reason.
The Department of Justice and the FBI will testify as to why we
need this legislation, and Mr. Barr, representing the ACU, will explain its concerns.
The concept behind H.R. 3179 is simply the laws of our Nation
should be enforced, should not aid and abet terrorists by providing
them intelligence-related information, and should assist in the detection and apprehension of terrorists planning to further harm
Americans.
This bill works to ensure all three principles, it seems to me. For
instance, I am sure that everyone agrees that the Congress and the
Federal agencies have a responsibility to ensure that the laws of
this country are enforced, whether those laws relate to guns, campaign finance reform, or intelligence and national security.
The current law authorizes the Federal Government to use a National Security Letter, which is basically an administrative subpoena, to make a request for transactional records, such as billing
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2
records. These requests must be related to investigations of international terrorism or clandestine intelligence activities.
The current law, however, has no mechanism to enforce the requests. Furthermore, the current law provides no penalty for an individual who decides to tip off a target of terrorism or an intelligence investigation that the Federal Government has made a National Security Letter request concerning the target. Clearly, we do
not want to tip off or alert a terrorist cell that is under investigation. Accordingly, H.R. 3179 attempts to correct these problems.
These are common sense corrections, it seems to me. The stakes
are too high to ignore correcting them. These are a few examples
of what is contained in the bill, and I look forward to the testimony
of the witnesses today.
I am now pleased to recognize the distinguished gentleman from
Virginia, the Ranking Member, Mr. Bobby Scott.
Mr. SCOTT. Thank you, Mr. Chairman. I am pleased to join you
in convening the hearing on H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003. I would like to join you
in welcoming our witnesses, especially our former colleague, the
gentleman from Georgia, Mr. Barr, and our former chief counsel,
Dan Bryant, both of whom have gone on to distinguish themselves
in other areas. When they were with the Committee, they often got
exposure to the Subcommittee of differing points of view on legislation, and I suspect it will be no different today.
H.R. 3179 would now criminalize any resistance to national security reference to administrative subpoenas, regardless of whether
the demands of the subpoenas are unreasonable, unduly burdensome, harassing, or for any other purpose. The businessman or
other target of the subpoena cannot even consult with his or her
attorney or any court, or even the Attorney General of the United
States, without subjecting himself or herself to criminal prosecution.
In addition to adding up to 5 years of imprisonment for wilful
failure to cooperate, the bill also provides for court enforcement
under pain of contempt of court. This latter part is similar to the
enforcement of administrative subpoenas in 18 USC 3486 and perhaps could be justified, but Im concerned that it would also criminalize what may be conscientious objectors by honest businesses or
other organizations to administrative subpoenas.
The bill adds a so-called lone wolf or Moussaoui fix by allowing FISA to be applied to a single individual engaged in international terrorism or preparing to do so. This proposal would seem
to undermine the premise of FISA, which allows extraordinary secretive powers to be exercised against foreigners if there is probable cause to believe they are agents of a foreign government organization.
If there is probable cause to believe an individual is engaging in
international terrorism, or attempting to do so, why not investigate
him or arrest him under the general criminal law provisions rather
than dilute further the foundation of FISA? We have already diluted it enough in the USA PATRIOT Act by changing the standard from the primary purpose of being foreign intelligence gathering to that of merely being a significant purpose of the use of
these extraordinary powers. If foreign intelligence gathering is not

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3
the primary reason, then we need to be worried about what the primary reason is before we dilute this provision further.
Another provision of the bill would take a further bite out of
court discretion and undermine the rights of accused persons by requiring the courts to exclude defendants from motions by prosecutors to redact information the prosecution does not wish to divulge
based on alleged national security. Currently, there is nothing to
prevent the prosecutors from moving the court to hear a motion to
redact sensitive information ex parte and in camera, and nothing
to stop the court from ordering the same. However, this bill doesnt
even allow a judge to make a judgment as to whether it wishes to
hear from the defense before deciding on the prosecutors motion
but requires the judge not to hear from the defense.
Moreover, it allows prosecutors to summarize orally his basis for
excluding information, whereas currently the law requires a written statement to be provided by the court. It is not clear under this
bill whether the defendant will even know that an ex parte hearing
is occurring, or ever have a reviewable record of what was said or
presented to the court.
Finally, the bill would allow secretive FISA evidence to be used
in an ordinary immigration proceeding without even disclosing to
the defendant that it is FISA-obtained evidence. These are extraordinary extensions of extraordinary, unchecked powers of the Executive branch, so I look forward to the testimony of our witnesses to
learn what justifies such extraordinary requestive powers and what
precautions have been made in considering such requests.
Thank you, Mr. Chairman.
Mr. COBLE. I thank the gentleman.
We also have the Ranking Member for the full Committee with
us today. Mr. Conyers, did you have an opening statement you
wanted to make?
Mr. CONYERS. Thank you, Mr. Chairman.
Im going to pass on my opening statement, and our colleague
from California said that she would reserve hers for later as well.
Mr. COBLE. I thank you, Mr. Conyers.
We have been joined by the gentlelady from California and the
gentleman from Virginia.
We have with us today a distinguished panel, three distinguished
witnesses. We are glad to have you with us. I would first like to
introduce Mr. Daniel Bryant. Mr. Bryant was confirmed as Assistant Attorney General for Legal Policy by the U.S. Senate on October 3, 2003. In this capacity, Mr. Bryant is responsible for planning, developing and coordinating the implementation of major
legal policy initiatives.
Prior to working in his current position, Mr. Bryant served as
Senior Advisor to the Attorney General, and Assistant Attorney
General for Legislative Affairs, and as majority chief counsel for
this Subcommittee. Mr. Bryant received his bachelor and juris doctor degrees from the American University, and his masters from
Oxford University. Mr. Bryant, its good to have you back on the
Hill.
Our second witness today is Mr. Thomas J. Harrington. In December, 2002, Mr. Harrington was appointed Deputy Assistant Director for Counterterrorism at the FBI. In this capacity, Mr. Har-

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rington conducts oversight of the Division, as well as managing the
Foreign Terrorist Tracking Task Force, the Counterterrorist Operation Response Section, and the National Threat Center. Mr. Harrington received his appointment as a special agent in the FBI in
1984. He is an alumnus of the Mount St. Marys College in Emmitsburg, MD, and the Stonier Graduate School of Banking at the
University of Delaware. Its good to have you with us, Mr. Harrington, as well.
Our final witness today, as Mr. Scott previously indicated, is our
former colleague from Georgia, Bob Barr. Its good to have you back
on the Hill.
Mr. BARR. Thank you, Mr. Chairman.
Mr. COBLE. Mr. Barr represented the Seventh District of Georgia
in the U.S. House from 1995 to 2003, serving as a senior Member
of the Judiciary Committee, including service on our Subcommittee.
Prior to his election, Mr. Barr served as U.S. Attorney for the
Northern District of Georgia. He is currently the 21st Century Liberties Chair for Freedom and Privacy and the American Conservative Union, and serves as a board member at the Patrick Henry
Center, and is the honorary chair for Citizens United.
Its good to have all of you with us.
I say to the Members on the Subcommittee that I have been told
that a vote will likely be scheduled on or about 11 oclock. As each
of you have been told, we like to apply the 5-minute rule here. We
have read your testimony and we will reexamine it, but if you all
with keep a sharp lookout on that panel thats before you, and
when that amber light appears, thats your warning that the ice is
becoming thin, and when the red light appears, that is your 5
minute limit.
Its good to have you with us, Mr. Bryant. We will start with you.
STATEMENT OF THE HONORABLE DANIEL J. BRYANT,
ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY

Mr. BRYANT. Thank you, Mr. Chairman.

Good morning, Chairman Coble, Congressman Scott, distinguished Members of the Committee and Subcommittee. Thank you
for the opportunity to appear before you today to discuss this important legislation.
Since September 11, 2001, the Department of Justice has made
significant strides in the war on terrorism. We have charged at
least 310 individuals with criminal offenses as a result of terrorism
investigations, and 179 of these defendants have already been convicted. We have broken up terrorist cells in Buffalo, Charlotte,
Portland, and northern Virginia. Due to interagency and international cooperation, nearly two-thirds of al-Qaedas leadership,
worldwide, has been captured or killed.
In the PATRIOT Act, Congress provided the Department with a
number of important tools that have enhanced our ability to gather
information so that we may detect and disrupt terrorist plots. The
act brought down the wall that sharply limited information sharing
between intelligence and law enforcement personnel, so that these
officials can better connect the dots and prevent future terrorist
acts.

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But while Congress and the Administration working together
have markedly improved the Departments capacity to gather and
analyze the intelligence necessary to prevent terrorist attacks,
there is still more that needs to be done. This is why I would like
to thank Chairman Sensenbrenner and Chairman Goss for their
leadership in introducing this bill.
The Department strongly supports this bill, which contains a
number of significant reforms that would assist the Departments
efforts to collect intelligence keyed to disrupting terrorist plots.
To begin with, the bill would amend the Foreign Intelligence Surveillance Act to allow for surveillance of so-called lone wolf international terrorists. While the current definition of agent of a foreign power found in FISA includes individuals with ties to groups
that engage in international terrorism, it does not reach unaffiliated individuals who engage in international terrorism.
Section 4 of the bill would plug this dangerous gap in FISAs coverage by expanding the definition of agent of a foreign power to
include a non-United States person who is engaged in international
terrorism, or preparing to engage in international terrorism, even
if he or she is not known to be affiliated with an international terrorist group. This provision would strengthen our ability to protect
the American people against terrorism.
A single foreign terrorist with a chemical, biological or radiological weapon could inflict catastrophic damage on this country.
Consequently, there is no reason why the Department should not
be able to conduct FISA surveillance only of foreign terrorists
whom we know to be affiliated with international terrorist groups.
The bill also includes two important provisions related to the use
of National Security Letters. NSLs are used by the FBI to obtain
from specified third parties discreet types of information, such as
communications records, financial records and credit reports that
are relevant to authorized international terrorism or espionage investigations.
In order to safeguard the integrity of these investigations in
which NSLs are used, the NSL statutes prohibit persons from disclosing that they have received these requests, but these same statutes contain no explicit penalty for persons who unlawfully disclose
that they received an NSL. Section 2 would remedy this defect. The
bill further would specify procedures for the Attorney General to
seek judicial enforcement of NSLs.
The bill also includes two common sense reforms that would better allow the Department to protect classified information in criminal trials and to safeguard sensitive intelligence investigations in
immigration proceedings. First, section 5 of the bill would amend
the Classified Information Procedures Act, better known as CIPA,
to improve the Departments ability to protect classified information during the course of a criminal trial. Currently under CIPA,
district courts have discretion over whether to permit the Government to make a request to protect classified information during the
discovery phase of a criminal trial, ex parte, and in camera.
This is problematic, because in cases where the Government is
unable to make a request to withhold classified information ex
parte and in camera, prosecutors risk disclosing sensitive national
security information simply by explaining in open court why the

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classified information in question should be protected. Section 5 of
H.R. 3179 would solve this dilemma by allowing prosecutors to
make such a request ex parte and in camera.
Wrapping up, Mr. Chairman, we believe this bill contains a series of sensible reforms that would enhance the Departments ability to gather intelligence necessary for preventing terrorism.
Thank you for holding this hearing, and thank you for the invitation to be with you today.
[The prepared statement of Mr. Bryant follows:]
PREPARED STATEMENT

OF

DANIEL J. BRYANT

Good morning, Mr. Chairman and distinguished members of the Subcommittee.

Thank you for the opportunity to appear before you today to discuss H.R. 3179, the
Anti-Terrorism Intelligence Tools Improvement Act of 2003.
Since the brutal terrorist attacks of September 11, 2001, the Department of Justice has made significant strides in the war against terrorism. We have prosecuted
many cases, among them being 310 individuals charged with criminal offenses as
a result of terrorism investigations. 179 of these defendants already have been convicted. We have broken up terrorist cells in Buffalo, Charlotte, Portland, and northern Virginia. Due to interagency and international cooperation, nearly two-thirds of
Al Qaedas leadership worldwide has been captured or killed. And we are steadily
dismantling the terrorists financial network: around the world, $136 million in assets have been frozen in 660 accounts.
These successes would not have been possible without the support of Congress in
general and this Subcommittee in particular. On behalf of the Department, I would
like to thank you for providing us with the tools and resources that have made it
possible for the Department to effectively wage the war against terrorism.
As recent events in Madrid and Saudi Arabia remind us, however, our fight
against terrorism is far from over. Our nations terrorist enemies remain determined
to visit death and destruction upon the United States and its allies, and we must
maintain our vigilance and resolve in the face of this continuing threat. It is for this
reason that the Department of Justices top priority remains the prevention and disruption of terrorist attacks before they occur. Rather than waiting for terrorists to
strike and then prosecuting those terrorists for their crimes, the Department seeks
to identify and apprehend terrorists before they are able to carry out their nefarious
plans.
The success of this prevention strategy depends, however, upon the Departments
capacity to detect terrorist plots before they are executed. And the key to detecting
such plots in a timely manner is the acquisition of information. Simply put, our ability to prevent terrorism is directly correlated with the quantity and quality of intelligence we are able to obtain and analyze.
Following the terrorist attacks of September 11, Congress provided the Department in the USA PATRIOT Act with a number of important tools that have enhanced our ability to gather information so that we may detect and disrupt terrorist
plots. To give just one example, before the USA PATRIOT Act, law enforcement
agents possessed the authority to conduct electronic surveillanceby petitioning a
court for a wiretap orderin the investigation of many ordinary, non-terrorism
crimes, such as drug crimes, mail fraud, and passport fraud. Investigators, however,
did not possess that same authority when investigating many crimes that terrorists
are likely to commit, such as chemical weapons offenses, the use of weapons of mass
destruction, and violent acts of terrorism transcending national borders. This anomaly was corrected by section 201 of the PATRIOT Act, which now enables law enforcement to conduct electronic surveillance when investigating the full-range of terrorism crimes.
But while Congress and the Administration working together have made significant strides in improving the Departments capacity to gather the intelligence necessary to prevent terrorist attacks, there is still more that needs to be done. This
is why I would like to thank Chairman Sensenbrenner and Chairman Goss for their
leadership in introducing H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003, and to thank this Subcommittee for holding a hearing on this important piece of legislation. The Department of Justice strongly supports H.R. 3179.
The bill contains a number of significant reforms that would assist the Departments
efforts to collect intelligence key to disrupting terrorist plots and better allow the
Department to protect that information in criminal trials and immigration proceedings. In my testimony today, I will briefly review the five substantive provisions

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contained in H.R. 3179 and explain why the Department believes that each one of
them would assist our efforts in the war against terrorism.
To begin with, H.R. 3179 would amend the Foreign Intelligence Surveillance Act
to allow for surveillance of so-called lone wolf international terrorists. Currently,
the definition of agent of a foreign power found in FISA includes individuals with
ties to groups that engage in international terrorism. It does not, however, reach
unaffiliated individuals who engage in international terrorism. As a result, investigations of lone wolf terrorists are currently not authorized under FISA. Rather,
such investigations must proceed under the stricter standards and shorter time periods for investigating ordinary crimes set forth in Title III of the Omnibus Crime
Control and Safe Streets Act of 1968, potentially resulting in unnecessary and dangerous delays and greater administrative burdens.
Section 4 of H.R. 3179 would plug this dangerous gap in FISAs coverage by expanding the definition of agent of a foreign power to include a non-United States
person who is engaged in international terrorism or preparing to engage in international terrorism, even if he or she is not known to be affiliated with an international terrorist group.
The Department believes that section 4 of H.R. 3179 would strengthen our ability
to protect the American people against terrorism. A single foreign terrorist with a
chemical, biological, or radiological weapon could inflict catastrophic damage on this
country. Consequently, there is no reason why the Department should be able to
conduct FISA surveillance only of foreign terrorists whom we know to be affiliated
with international terrorist groups. In some cases, a foreign terrorist may, in fact,
be a member of an international terrorist group, but the Department may not be
able to establish this fact. In other cases, a foreign terrorist may be a genuine lone
wolf. In either of these scenarios, however, it is vital that the Department be able
to conduct the appropriate surveillance of such terrorists under FISA so that we are
able to effectively and efficiently gather the information necessary to prevent these
terrorists from endangering the lives of the American people.
Expanding FISA to reach an individual foreign terrorist is a modest but important
expansion of the statute. To be sure, under current law, the Department must show
under FISA that a foreign terrorist is a member of an international terrorist group.
The House Committee Report on FISA, however, suggested that a group of terrorists covered by current law might be as small as two or three persons, and the interests that courts have found to support the constitutionality of FISA are unlikely to
differ appreciably between a case involving a terrorist group of two or three persons
and a case involving a single terrorist. In addition, it is important to stress that
this proposal would not change the standard for conducting surveillance of any
United States person but rather would apply only to foreign terrorists.
The Senate has already acted in a strong bipartisan fashion to amend FISA to
cover lone wolf terrorists. Section 4 of H.R. 3179 was included in S. 113, which
passed the Senate on May 8, 2003, by a vote of 90 to 4. The Department urges the
House of Representatives to follow suit and also pass this important proposal in
order to plug this dangerous gap in the scope of FISAs coverage to cover lone wolf
terrorists.
H.R. 3179 also includes two important provisions related to the use of national
security letter (NSLs). NSLs are used by the FBI to obtain relevant information
from specified third-parties in authorized international terrorism or espionage investigations. NSLs are similar to administrative subpoenas but narrower in scope.
While administrative subpoenas can be used to collect a wide array of information,
NSLs apply more narrowly to telephone and electronic communication transactional
records, financial records from financial institutions, and consumer information from
consumer reporting agencies, as well as certain financial, consumer, and travel
records for certain government employees who have access to classified information.
In order to safeguard the integrity of the sensitive terrorism and espionage investigations in which NSLs are used, the NSL statutes generally prohibit persons from
disclosing that they received these requests for information. See, e.g., 12 U.S.C.
3414(a)(3); 12 U.S.C. 3414(a)(5)(D); 15 U.S.C. 1681u(d); 15 U.S.C. 1681v(c); 18
U.S.C. 2709(c); 50 U.S.C. 436(b). But these same statutes contain no explicit penalty for persons who unlawfully disclose that they have received an NSL. Section
2 of H.R. 3179 would remedy this defect by creating a new statutory provision imposing criminal liability on those who knowingly violate NSL non-disclosure requirements. This new offense would be a misdemeanor punishable by up to a year of imprisonment, but would carry a stiffer penalty of up to five years of imprisonment
if the unlawful disclosure was committed with the intent to obstruct an investigation or judicial proceeding.
Oftentimes, the premature disclosure of an ongoing terrorism investigation can
lead to a host of negative repercussions, including the destruction of evidence, the

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flight of suspected terrorists, and the frustration of efforts to identify additional terrorist conspirators. For these reasons, the FBI has forgone using NSLs in some investigations for fear that the recipients of those NSLs would compromise an investigation by disclosing the fact that they had been sent an NSL. To reduce these
fears and thus allow for the gathering of additional important information in terrorism investigations, the Department supports the adoption of the appropriate
criminal penalties set forth in H.R. 3179 to deter the recipients of NSLs from violating applicable nondisclosure requirements as well as the heightened penalties set
forth in the legislation for cases in which disclosures are actually intended to obstruct an ongoing investigation.
In addition to setting forth an explicit criminal penalty for those violating NSL
nondisclosure requirements, H.R. 3179 would also specify procedures for the Attorney General to seek judicial enforcement of NSLs. The NSL statutes currently make
compliance with an FBI request for information mandatory. See, e.g., 12 U.S.C.
3414(a)(5)(A); 15 U.S.C. 1681u(a)-(b); 15 U.S.C. 1681v(c); 18 U.S.C. 2709(a); 50
U.S.C. 436(c). These statutes, however, do not specify any procedures for judicial
enforcement if the recipient of an NSL refuses to comply with the FBIs request.
Section 3 of H.R. 3179 would make explicit what Congress indicated implicitly by
making compliance with NSLs mandatory: the Attorney General may seek judicial
enforcement in cases where the recipient of an NSL refuses to comply with the FBIs
request for information. The judicial enforcement provision contained in H.R. 3179
is similar to the existing judicial enforcement provision for administrative subpoenas under 18 U.S.C. 3486(c) and would help the Department to quickly and discretely obtain vital information in terrorism investigations.
H.R. 3179 also includes two common-sense reforms that would better allow the
Department to protect classified information in criminal trials and to safeguard sensitive intelligence investigations in immigration proceedings. First, section 5 of the
bill would amend the Classified Information Procedures Act (CIPA) to improve the
Departments ability to protect classified information during the course of a criminal
trial. Under section 4 of CIPA, a district court, upon the governments request, may
authorize the United States to delete specified items of classified information from
documents to be made available to a criminal defendant during discovery, to substitute a summary of the information for such classified documents, or to submit a
statement admitting relevant facts that the classified information would tend to
prove, so long as prosecutors are able to make a sufficient showing, such as that
the documents are not discoverable or that the defendant would not be disadvantaged by the substitution of a summary of the information for the classified documents themselves. Currently, however, district courts have discretion over whether
to permit the government to make such a request ex parte and in camera.
This is problematic because in cases where the government is unable to make a
request to withhold classified information ex parte and in camera, prosecutors risk
disclosing sensitive national-security information simply by explaining in open court
why the classified information in question should be protected. Section 5 of H.R.
3179 would solve this dilemma by mandating that prosecutors be able to make a
request ex parte and in camera to delete specified items of classified information
from documents or to utilize the other alternatives for protecting classified information set forth in section 4 of CIPA. This provision would ensure that the Department
is able to take appropriate steps to safeguard classified information in criminal proceedings without risking the disclosure of the very secrets that we are seeking to
protect. It would also allow the Department to make a request to protect classified
information orally as well as in writing.
In addition to understanding what this provision would accomplish, it is equally
important to understand what this provision would not accomplish. Specifically, it
would not affect in any way whatsoever the showing that the United States is required to make under section 4 of CIPA to obtain judicial authorization to withhold
classified information from criminal defendants or to take other steps to safeguard
classified information. Simply put, the assertion by some that H.R. 3179 would require a federal judge to permit the United States to turn over to a criminal defendant only a summary of evidence rather than classified documents themselves is demonstrably false. Rather, the bill would only allow the United States to make such
a request ex parte and in camera in order to ensure that such information is not
disclosed as part of the process of protecting it.
Finally, H.R. 3179 would eliminate that requirement that the United States notify
aliens whenever the government intends to use evidence obtained through FISA in
immigration proceedings. Current law mandates that the government provide notice
to an aggrieved person if information obtained through FISA electronic surveillance, physical searches, or pen registers will be used in any federal proceeding. See
50 U.S.C. 1806(c), 1825(d), & 1845(c). In 1996, Congress carved out an exception

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9
to this requirement for alien terrorist removal proceedings, see 8 U.S.C. 1534(e),
but all other immigration proceedings remain subject to this notification requirement.
Unfortunately, however, this mandate that the government notify an alien that
it is using information acquired through FISA surveillance in an immigration proceeding may jeopardize in certain situations sensitive ongoing investigations and
thus risk undermining national security. As a result, the government is sometimes
faced with the Hobsons choice of not using this information in immigration proceedings, and possibly permitting dangerous aliens to remain in the country, or
using the information and undermining its surveillance efforts. When faced with
this difficult choice, the United States has decided against using FISA information
in a number of instances in an effort to preserve the integrity of ongoing investigations.
Section 6 of H.R. 3179, however, would solve this dilemma by expanding the existing notification exception for alien terrorist removal proceedings to all immigration
proceedings. Significantly, the government still would be obliged to disclose to aliens
any information it intends to use in immigration proceedings if such disclosure is
otherwise required by law. Under H.R. 3179, the government simply would not have
to reveal the fact that the information in question was obtained through FISA. The
Department supports this provision of H.R. 3179 because it would allow the government to use intelligence in immigration proceedings to safeguard the American people from dangerous aliens without jeopardizing sensitive ongoing investigations.
In conclusion, I would like to thank the Subcommittee again for holding todays
hearing on such an important topic. H.R. 3179 contains a series of sensible reforms
that would enhance the Departments ability to gather intelligence necessary for
preventing terrorism and to protect the integrity of sensitive intelligence investigations. The Department would be happy to work with the Congress in the weeks and
months to come on this vital piece of legislation. Thank you once again for allowing
me to appear before you today, and I look forward to the opportunity to respond
to any questions that you might have.

Mr. COBLE. Thank you, Mr. Bryant.

Mr. Harrington.
STATEMENT OF THOMAS J. HARRINGTON, DEPUTY ASSISTANT
DIRECTOR, COUNTERTERRORISM DIVISION, FEDERAL BUREAU OF INVESTIGATION

Mr. HARRINGTON. Good morning, Mr. Chairman, and Members of

the Subcommittee. Thank you for the opportunity to appear before
you this morning to discuss House bill 3179, the Anti-Terrorism
Intelligence Tools Improvement Act of 2003.
As Mr. Bryant has just explained, the recent successes of the FBI
and the Department of Justice as a whole would not have been possible without the support of the Subcommittee and the passage of
the USA PATRIOT Act, which provided a number of important
tools to enhance our ability to gather information to assist us in detecting, disrupting and preventing terrorist attacks.
Since 9/11, the primary mission of the FBI has been focused on
the prevention of future attacks on the U.S. homeland. The FBI
has spent the past two-and-a-half years transforming and realigning its resources to meet the threats of the post-September 11th environment. Director Muller has rebalanced our resources among
the counterterrorism, intelligence, counterintelligence, cyber and
criminal programs. This transformation has been significantly enhanced by the enactment of the USA PATRIOT Act, which has facilitated increased information sharing between the intelligence
and law enforcement communities, both internationally and domestically. H.R. 3179, the bill which has brought us here today, contains several significant reforms that will assist the FBI in our efforts to collect the necessary intelligence and information to identify and disrupt future terrorist plots.

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Specifically, H.R. 3179 includes two important provisions related
to the use of National Security Letters, or NSLs. NSLs are administrative subpoenas that can be used to obtain several types of
records related to electronic communications, specifically telephone
subscriber information, local and long distance toll billing records,
and electronic communication transactional records; financial
records from banks and other financial institutions; and consumer
reporting records, such as consumer identifying information and
the identity of financial institutions from credit bureaus. National
Security Letters generally prohibit the recipient of an NSL from
disclosing the fact that they have received a request for this information. Section 2 of H.R. 3179 provides for a penalty for persons
who knowingly disclose the fact that they received these NSLs.
This penalty provision is important to the FBI, as critical terrorism investigations can be compromised through, for example, destruction of crucial evidence, flight of the suspected terrorist out of
the country, and frustrate efforts to identify additional associates
or cell members of the suspected terrorist group when a request for
information is disclosed.
H.R. 3179 also provides a provision for judicial enforcement if a
recipient of a National Security Letter does not comply with the
mandatory request for information. The judicial enforcement provision of section 3 of the bill is similar to those already existing for
administrative subpoenas and would assist the FBI in maintaining
information critical to terrorism investigations.
An example of where this provision would have been helpful is
a case where during an investigation into international terrorist activities analysis revealed that several subjects were using a third
party Internet service provider as a potential means of communication. NSLs served on the third party service revealed that an associate of the subjects registered for the service using a free, website
e-mail service. The NSLs were served on the web-based e-mail
service in order to obtain electronic transactional records. The webbased e-mail service has yet to provide the records associated with
this request. A judicia enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum for quick
resolution of this issue and allow the investigation to move forward
more expeditiously.
Thank you for allowing me to appear here this morning to discuss this important act. It contains reforms which the FBI believes
are necessary to assist us in gathering the intelligence we will need
in the future to prevent terrorist attacks.
I would be happy to answer any questions at the appropriate
time.
[The prepared statement of Mr. Harrington follows:]
PREPARED STATEMENT

OF

THOMAS J. HARRINGTON

Good morning Mr. Chairman and members of the Subcommittee. Thank you for
the opportunity to appear before you this morning to discuss House Bill 3179, the
Anti-Terrorism Intelligence Tools Improvement Act of 2003.
As Mr. Bryant has aptly explained, the recent successes of the Federal Bureau
of Investigation, and the Department of Justice as a whole, would not have been
possible without the support of this subcommittee and the passage of the USA PATRIOT Act (USPA) which provided a number of important tools to enhance our ability to gather information to assist us in detecting, disrupting and preventing terrorist attacks.

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Since 9/11, the main mission of the FBI has been focused on the prevention of
future terrorist attacks on the homeland. The FBI has spent the past two and a half
years transforming and realigning its resources to meet the threats of the post-September 11th environment. Director Mueller has re-balanced our resources among
the counterterrorism, intelligence, counterintelligence, cyber and criminal programs.
This transformation has been significantly enhanced by the enactment of the USA
PATRIOT Act, which has facilitated increased information sharing between the intelligence and law enforcement communities, both internationally and domestically.
H.R. 3179, the bill which has brought us here today, contains several significant reforms that will assist the FBI in our efforts to collect the necessary intelligence and
information to identify and disrupt future terrorist plots.
Specifically, H.R. 3179 includes two important provisions related to the use of National Security Letters, or NSLs. NSLs are administrative subpoenas that can be
used to obtain several types of records related to electronic communications (telephone subscriber information, local and long distance toll billing records, and electronic communication transactional records); financial records (from banks and
other financial institutions) and consumer reporting records (such as consumer identifying information and the identity of financial institutions from credit bureaus).
National Security Letters generally prohibit the recipient of an NSL from disclosing
the fact that they have received a request for information. Section 2 of H.R. 3179
provides for a penalty for persons who knowingly disclose the fact that they received
an NSL.
This penalty provision is important to the FBI as critical terrorism investigations
can be compromised through, for example, destruction of crucial evidence, flight of
the suspected terrorist out of the country, and frustrate efforts to identify additional
associates or cell members of the suspected terrorist, when a request for information
is disclosed.
H.R. 3179 also provides for a procedure for judicial enforcement if a recipient of
a National Security Letter does not comply with the mandatory request for information. The judicial enforcement provision in Section 3 of the bill is similar to those
already existing for Administrative Subpoenas and would assist the FBI in obtaining information critical to terrorism investigations. An example of where this provision would have been helpful is a case where during an investigation into international terrorist activities, analysis revealed that several subjects were using a
third party internet service as a potential means of communication. NSLs served
on the third party service revealed that an associate of the subjects registered for
the service using a free, web-based email service. NSLs were served on the webbased email service in order to obtain electronic transactional records. The webbased email service has not yet provided the records associated with the request.
A judicial enforcement provision, such as the one included in H.R. 3179, would assist by providing a forum to quickly resolve this issue and allow the investigation
to move forward more expeditiously.
Thank you again for allowing me to appear before you this morning to discuss
the Anti-Terrorism Intelligence Tools Improvement Act of 2003. It contains advantageous reforms which the FBI believes are necessary to assist us in gathering the
intelligence that will prevent future terrorist attacks. I would be happy to answer
any questions you may have at this time.

Mr. COBLE. Thank you, Mr. Harrington.

Mr. Barr.
STATEMENT OF THE HONORABLE BOB BARR, 21ST CENTURY
LIBERTIES CHAIR FOR FREEDOM AND PRIVACY, THE AMERICAN CONSERVATIVE UNION

Mr. BARR. Thank you, Mr. Chairman. It is a tremendous honor

to appear before this very distinguished Subcommittee on which I
had the honor of serving for many years during my service in the
Congress of the United States. I appreciate the Chairman calling
this hearing, and the Ranking Member lending his support to this
hearing today as well.
I do hope that this will not be the end of the Subcommittees or
the Committees deliberations on these important issues, but merely the start of a very long and searching comprehensive look at the
PATRIOT Act, where we are with it, what it does, what fixes on

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the limitations or expansions might be necessary at some point, but
that all of us resist the effort to rush into something such as what
I worry the Congress may do in this particular case with H.R.
3179.
Both the distinguished Chairman and the distinguished Assistant Attorney General used the word common sense in speaking
of these proposals. What I would respectfully submit to the Subcommittee and to the Congress is that common sense really requires us, particularly those of us who consider ourselves good
strong conservatives, Mr. Chairman, to not allow the Government
to obtain more power based on generalized arguments such as
those that have been put forward here or those that may appear
on the surface to be very sound. But when you look below the surface, such as the so-called Moussaoui fix, which some of these
lone wolf provisions are supposed to address, it really falls apart.
This piece of legislation is not a Moussaoui fix, so to speak. The
problem with the Moussaoui investigation, as I know the Chairman
and other Members are fully aware, had nothing to do with not
having the power that the Government would obtain in H.R. 3179.
It had to do with a misreading, a misinterpretation, of the existing
FISA law.
I think there are some other instances as well, Mr. Chairman,
where the arguments that the Government is putting forward to
obtain these additional powers, which again I think, as conservatives, we ought to be very, very hesitant to grant the Government,
without hearing from them, and common sense tells us this, without hearing from the Government very specific instances where the
powers that they currently have, or had even prior to the USA PATRIOT Acts passage and signing into law in 2001, could not have
been if used properly, and according to the proper criteria, could
not have given them what they need.
Even if, in fact, at some point the Subcommittee recommends enactment and adoption by the House of H.R. 3179, I would certainly
hope that the Subcommittee would require of the Government a
much more specific rather than just generalized set of reasons why
these provisions ought to be enacted.
These provisions are not mere technical corrections, Mr. Chairman, as with much of the USA PATRIOT Act, which the Administration characterized as technical amendments or technical improvements. They were extremely substantive. In this case, for example, where we look at the so-called lone wolf provision, we find
that this would reach very, very broadly and affect the fundamental underpinnings of the entire FISA structure that has been
built up. By removing it from the nexus with a foreign power, you
lose the entire underpinning and constitutional argument for allowing this exception to the fourth amendment requirements for specific probable cause before electronic surveillance and other types
of secret monitoring can occur.
Again, Mr. Chairman, with regard to the lone wolf procedures,
there has been no instance whatsoever in which the Department of
Justice has come forward and explained why the provision is necessary to have, given the extensive power that the Government already has with traditional subpoenas, traditional title 3 taps, and

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a whole range of subpoena power and warrant power that the Government already has.
Even on the Senate side, with regard to FISA oversight just last
year, I believe Senators Leahy, Grassley and Specter indicated that
the Department of Justice, even at that timeand this provision
has been sought by the Department of Justice for much longer than
thatthat the Department had laid out no cases in which existing
powers were not sufficient to attack lone wolfs, and they could
have gone after Moussaoui but for a misreading of the statute, not
that they didnt have this power.
When one looks also, Mr. Chairman, at the expansion of the secret proceedings, this provision in sections 5 and 6 would set up basically a whole new category of evidence, sort of secret secret evidence, where the individual against whom that secret secret proceeding is being directed doesnt even know that theres a secret
proceeding.
I think we would, just as we did in the 107th Congress, Mr.
Chairman, in which you and many of us joined in supporting legislation to place limits on secret proceedings, we ought to be looking
very carefully at that, particularly as strong conservatives who care
deeply about the Constitution, rather than going in the other direction and creating additional secret proceedings.
So I would very much respectfully urge this Subcommittee and,
of course, the full Committee, to not pass this or recommend adoption of this legislation at this time. I think its premature, Mr.
Chairman, particularly in light of the lack of specific cases that the
Justice Department has been unable to prosecute or investigate
that they have come forward with.
[The prepared statement of Mr. Barr follows:]
PREPARED STATEMENT

OF THE

HONORABLE BOB BARR

Chairman Coble, Ranking Member Scott, and distinguished subcommittee members, thank you for inviting me to testify on H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003, which expands federal secret surveillance
powers under the USA PATRIOT Act.
Until January of 2003, I had the honor to serve with many of you as a United
States Representative from Georgia. Previously, I served as the presidentially appointed United States Attorney for the Northern District of Georgia, as an official
with the U.S. Central Intelligence Agency, and as an attorney in private practice.
Currently again a practicing attorney, I now occupy the 21st Century Liberties
Chair for Privacy and Freedom at the American Conservative Union (ACU) and in
that capacity I am pleased to be speaking on behalf of the American Conservative
Union today. I also consult on privacy matters for the American Civil Liberties
Union.
As a student and supporter of the Constitution and its component Bill of Rights,
I will not concede that meeting this governments profound responsibility for national security entails sacrificing the Rights given us by God and guaranteed in that
great document. Yet, unfortunately, the road down which our nation has been traveling these past two years, with the USA PATRIOT Act, is taking us in a direction
in which our liberties are being diminished in that battle against terrorism.
Despite the broad concerns expressed by many grassroots conservative organizations, such as the American Conservative Union, Free Congress Foundation, and
Eagle Forumwith whom I continue to work closelythe Administration has
pressed on with a ill-considered proposal to prematurely make permanent all of the
USA PATRIOT Act. I respectfully submit this would be a serious mistake. Along
with many of you, I balked at making the PATRIOT Acts new powers permanent,
insisting on a sunset clause that would allow Congress to review these new powers. Making those powers permanent now would take away any leverage Congress
now has to secure cooperation from the Justice Department in its oversight efforts.

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The Administration has also attempted to push forward, on a piecemeal basis,
parts of the Son of PATRIOT proposal that surfaced last year. H.R. 3179 includes
several of the provisions of the Justice Departments draft Son of PATRIOT bill,1
and the Administration is pushing other bills separately that include other provisions.2 Passing pieces of Son of PATRIOT this year would be a mistake.
The House Judiciary Committee has yet to convene a series of long-planned hearings to examine how the USA PATRIOT Act is being used. Are its provisions being
used widely, in ordinary cases having nothing to do with terrorism? The Attorney
General has said he hasnt used some powers. If so, are such powers really needed?
These are just a few of the questions that the Justice Department has not adequately answered. While I have faith the Chairman will hold these promised hearings, these questions should be examined before the Committee considers new legislation.
The question before us today is whether the USA PATRIOT Act should be expanded this year. In short, the answer is NO. Put simply, Congress should not provide more powers to an ever-growing federal government without carefully and exhaustively reviewing how it is using the powers it already has.
The Fourth Amendment is clear: The 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 (emphasis added).
Note carefullypeople, not citizens. The Founding Fathers meant what they
wrote. Conservatives do not believe that, more than two hundred years later, we
should creatively interpret the Bill of Rights when the words dont suit our transitory notions of what is convenient. While the Constitution does reserve some rights
exclusively to American citizens, the Founders protected certain fundamental rights
for all people, including the right to due process of law and the right to be free from
searchesa word broad enough to include the 18th and 19th Century physical variety, the 20th Century telephone variety, and the 21st Century Internet variety
not based on probable cause.
At bottom, the problem with the surveillance powers of the USA PATRIOT Act
is that they play fast and loose with clear constitutional commands. Unfortunately,
H.R. 3179 takes certain provisions of the USA PATRIOT Act that weaken the
Fourth Amendment and other fundamental rights and makes them worse.
CREATING NEW CRIMINAL PENALTIES FOR SECRET FBI LETTER DEMANDS FOR
CONFIDENTIAL RECORDS

Sections 2 and 3 of H.R. 3179 add new criminal penalties to enforce a far-reaching
and troubling power of the FBIthe power to demand, without a court order, that
a business or individual release a broad range of highly confidential records. The
records demands are secret and the recipient is barred from informing anyone that
the demand has been made or that records have been turned over. Section 505 of
the USA PATRIOT Act amended the so-called national security letter power to
eliminate the need to assert any individual suspicion (much less probable cause) before issuing such a letter. Section 2 of the bill adds a new crime to enforce the gag
provisions. Section 3 allows the FBI to invoke a courts aid in enforcing the letter
demandsand punish any failure to comply as contempt.
The records subject to these FBI letters include the customer records of communications service providerssuch as an Internet Service Provider, telephone company, or (according to the FBI) the records of your use of a computer terminal at
the local library or Internet cafe. They also include credit reports and the customer
records of financial institutions. The term financial institutions was expanded
and redefined by last years intelligence authorization act to include a host of large
and small businesses, including casinos, the local jewelry store, post office, car deal1 The Domestic Security Enhancement Act of 2003 (DSEA) was leaked early last year. Although never introduced, several of its sections are contained in H.R. 3179. Sections 2 and 3
of H.R. 3179 are identical to section 129 of DSEA. Section 4 of H.R. 3179 is a modified version
of section 101 of DSEA (section 101 of DSEA would have eliminated the foreign power standard for citizens as well as non-citizens). Section 5 of H.R. 3179 is identical to section 204 of
DSEA. Section 6 of H.R. 3179 appears to be new.
2 These include H.R. 3037, The Antiterrorism Tools Enhancement Act of 2003, (administrative subpoenas); H.R. 3040 and S. 1606, The Pretrial Detention and Lifetime Supervision of
Terrorists Act of 2003, (presumptive denial of bail); and H.R. 2934 and S. 1604, the Terrorist
Penalties Enhancement Act of 2003 (new death penalties).

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ership and pawnbrokers store; as well as any other business the Treasury Secretary
sees fit to designate.3
The government does not need these records powers, also known as administrative subpoenas or national security letters, to obtain records of suspected terrorists. An ordinary search warrant or grand jury subpoena can be used in the investigation of any crime, including one alleging terrorism. National security letters are
used in potentially wide-ranging foreign intelligence investigations. These records
demands can be used without even the minimal oversight of the secret Foreign Intelligence Surveillance Court or any other court.
There is no right to challenge the scope of a national security letter, andbecause
it was repealed by the USA PATRIOT Actno standard for protecting individual
privacy. Compliance with a national security letterand compliance with the gag
provision that muzzles a recipient from protesting such a letteris mandatory
under the law, although no specific penalties are listed.
Specific penalties arent needed for national security letters to serve their intended function of giving cover to businesses and or individuals to cooperate with
wide-ranging government intelligence investigations. The recipient can point to a legally-binding national security letter in response to any complaints from customers
about turning over their confidential information to the government.
Without specific penalties, the business or individual who receives a letter still
has some, albeit very limited, leverage to try to persuade the government to narrow
an exceedingly broad or intrusive request. Adding criminal penalties to such letters
for the first timeand to the gag provision that prevents a recipient from complaining about themtips the balance decisively in the governments favor and
away from the business or individual whose records are being demanded.
Before Congress considers adding criminal penalties to this troubling power
which has already been expanded twice since 9/11it should hold hearings to find
out much more about how these letters work in practice. The government has refused to release even the most general information about national security letters
including the type of records being monitored and whether the government is seeking to obtain entire databases.
At a minimum, Congress should make explicit the right of a recipient to challenge
a national security letterjust as a recipient can challenge a grand jury subpoena.
Congress should require some individual suspicion before compliance with a national security letter can be ordered by a court. Finally, the recipient should be able
to challenge the gag provision in court, and should be allowed to contact an attorney, congressional committee, or the Justice Department Inspector General without
fear of being prosecuted for violating the gag provision.
ALLOWING SECRET GOVERNMENT EAVESDROPPING WITHOUT ANY CONNECTION TO
FOREIGN GOVERNMENT OR TERRORIST GROUP

Section 4 of H.R. 3179, the so-called lone wolf provision, would eliminate the
foreign power standard for one type of surveillance: non-citizens suspected of involvement in terrorism. The foreign power standard serves as a vital protection
against overzealous use of the governments national security power to wiretap,
and otherwise secretly monitor, private communications outside the standards of
criminal investigations.
As I discussed earlier, the Fourth Amendment is clearno searches without a
warrant based on probable cause. Yet despite that clear command, the Executive
Branch has long claimed an unwritten national security exception to the Fourth
Amendment that allows secret domestic surveillance for foreign intelligence and
counterintelligence outside criminal probable cause standards.
The carefully-crafted, compromise law that keeps this exception within reasonable
bounds is the Foreign Intelligence Surveillance Act (FISA). The law permits secret
surveillance outside normal criminal bounds when approved by the Foreign Intelligence Surveillance Court. The government can appeal any denials (which are exceedingly rare) to another secret courtthe Foreign Intelligence Surveillance Court
of Review.
One of the most important limitations on FISA surveillancethe requirement
that FISA surveillance is only allowed when foreign intelligence is the purpose of
the surveillancehas already been substantially weakened by the USA PATRIOT
Act, which allows such surveillance when foreign intelligence is merely a significant purpose.
3 Intelligence Authorization Act for FY2004, Pub. L. No. 108177, at 374 (providing that definition of financial institution at 31 U.S.C. 5312(a)(2) applies for national security letters).

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The Foreign Intelligence Surveillance Court of Review, in its first-ever case, approved this change against a constitutional challenge mainly because the foreign
power standard remains.4 Although FISA surveillance may now be used even
where the governments main purpose is other than foreign intelligence, the government must still show probable cause that the target of FISA surveillance is a foreign power or agent of a foreign power. The Court of Review, in line with other
courts that have looked at the issue, made clear that the required connection to a
foreign powerand therefore to the Presidents national security powersis a
major reason why a separate, secret scheme of surveillanceoutside the normal
bounds of criminal investigationis constitutional.
The so-called lone wolf provision eliminates this foreign power standard for
wiretapping and other secret surveillance for non-citizens suspected of involvement
in international terrorism. Notwithstanding its limitation to non-citizens, the provision violates the Fourth Amendment because the Fourth Amendment protects people, not citizens. Certainly we can expect that the next request will be to expand
this power to citizens, as originally proposed in Son of PATRIOT. Ultimately, this
provision sets a dangerous precedent for all Americans, because it severs secret national security surveillance from its constitutional mooringsthe Presidents constitutional responsibility to defend the nation against foreign powers.
Supporters wrongly call this unconstitutional, unwise and unprecedented provision the Moussaoui fix. They say it is needed because the government failed to
seek a FISA warrant, before 9/11, to search suspected hijacker Zacarias Moussaoui
and that, with this lone wolf provision, they might have done so.
In fact, this provision is not the Moussaoui fix. FBI agents did not seek a FISA
warrant becauseeven though Moussaoui was connected to a foreign rebel group
national security bureaucrats said FISA could not be used because the rebel group
was not a recognized foreign power. They were wrong. Congress own investigation
of the pre-9/11 intelligence problems found those government officials misunderstood the legal standard for obtaining an order under FISA. The foreign power
standard requires only that the government show probable cause that the person
is an agent for some foreign government, foreign political faction or organization,
or group involved in international terrorismwhich can be as few as two individuals. A group involved in international terrorism need not be formally designated
as a foreign terrorist organization (as these officials mistakenly believed) to be a
foreign power under FISA. Whether the foreign power is recognized is legally
both irrelevant and meaningless.
Finally, the investigation found that FBI agents were so quick to leap to FISA
in the case of Zacarias Moussaoui, they did not fully consider getting a plain vanilla
criminal search warrant. Insofar as these problems involved a misunderstanding of
existing federal power, not a lack of power, Congress investigation recommended
greater legal training for national security officials.5
How, then, should we monitor terrorists who may be acting alone? The answer
is simplewith ordinary search warrants and wiretaps, based on probable cause.
Criminal warrants and wiretaps have long been available for federal crimes, including terrorism. Rather than distorting foreign intelligence surveillance, the government should use the tried-and-true methods of regular criminal warrants and court
orders.
Indeed, while this proposal has been pending in Congress for more than two
years, the Justice Department has been unable to explain why criminal powers are
not sufficient to deal with individual terrorists. In a February 2003 report on FISA
oversight, Senators Leahy, Grassley and Specter said that the Justice Department
was unable to provide even a single case, even in a classified setting, that explained
why the lone wolf provision was necessary. As they said, In short, DOJ sought
more power but was either unwilling or unable to provide an example as to why.
If Congress is determined to go forward with an unnecessary lone wolf provision, it should at least adopt a provision that gives the Foreign Intelligence Surveillance Court some discretion to deny a wiretap request where the evidence clearly
shows there is no connection to any foreign threat. For example, as Senator Feinstein has proposed, Congress could establish a presumption that a non-citizen is
connected to a foreign power based on evidence of involvement in international terrorism.
4 In

re Sealed Case, 310 F.3d 717 (For. Intel. Sur. Ct. Rev. 2002).
Inquiry Into Intelligence Community Activities Before and After the Terrorist Attacks
of September 11, 2001, Report of the U.S. Senate Select Comm. on Intelligence and the U.S.
House Permanent Select Comm. on Intelligence 321323 (December 2002).
5 Joint

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EXPANDING THE POWER TO USE SECRET EVIDENCE AND SECRET SURVEILLANCE
INFORMATION IN CRIMINAL AND IMMIGRATION CASES

Finally, sections 5 and 6 of H.R. 3179 also tip the balance towards the government, and away from the individual, when the government seeks to use secret evidenceclassified informationagainst an individual in legal proceedings without revealing the information to the accused.
Section 5 takes away some of the judges discretion in handling classified information in criminal proceedings under the Classified Information Procedures Act
(CIPA). It requires a federal judge to hear a government request to delete classified
information from documents made available to the defendant during discovery proceedings in camera and ex partethat is, in secret without hearing from the other
side. It also allows the government to make this request orally, rather than in writing. While it still permits the judge to deny the government request to delete classified information, or to order a more complete summary, it nevertheless represents
an incremental shift of power away from the court and towards the prosecutor. Congress should hear much more from both prosecutors and defense lawyers with experience in this area before making such a change, in order to determine whether the
effect may be much larger than intended.
Section 6 of the bill is a major shift in favor of greater use of secret information
in immigration proceedings. Section 6 amends the Foreign Intelligence Surveillance
Act (FISA) to permit the government secretly to use FISA-derived information in
immigration cases. Section 6 would amend FISA to eliminate very important safeguards that are designed to ensure that when secret foreign intelligence wiretaps
and other surveillance are used to put a persons liberty in jeopardy, he has notice
and an opportunity to challenge whether the surveillance was lawful. Under this
change, however, a person could face lengthy detention, and ultimately deportation,
without ever knowing about the governments use of secret surveillance information
or having the ability to challenge it.
Mr. Chairman, this issue is, as many of you know, dear to my heart. I firmly believe it is simply un-American for our government to withhold critical information
from an individual whose liberty is in jeopardy. Star chamber proceedings have been
the hallmark of totalitarian governments, not our own. As a result, when I served
in this illustrious body and on this Committee, I worked across party lines to author
the Secret Evidence Repeal Act (H.R. 1266 in the 107th Congress), which would
have ensured that individuals in immigration proceedings had the same access to
a summary of classified information as those in criminal proceedings. My bill attracted the support of over 100 cosponsors and after two hearings passed this Committee with a vote of 262 in favor of my substitute.6 Unfortunately, however, the
Secret Evidence Repeal Act was not passed by the full House and is not, as a result,
the law of the land. While I am certainly gratified that President Bush has pledged
publicly not to allow classified information in immigration proceedings, the government still claims the power to do so and a future Administration is free to reverse
that policy, as is this one.
The passage of section 6 of H.R. 3179 would seriously undermine this Committees
efforts to reform the use of classified information in immigration proceedings. Put
simply, section 6 goes beyond allowing the use of secret evidence. It allows the secret
use of secret surveillance information. Not only would the defendant have no right
to see the classified information, derived from FISA surveillance, that is being used
against him in the immigration case, he would not even have the right to be notified
that such information was going to be used, and obviously would have no ability
to challenge it.
Amending FISA to allow the secret use of such secret surveillance information in
immigration cases is an idea that simply flies in the face of the House Judiciary
Committees commendable efforts to reform the use of classified information and end
the use of secret evidence.
There is also some dispute about whether the amendment would really affect only
immigration proceedings, or would affect a wide range of civil proceedings, including
asset forfeiture, tax, and regulatory proceedings. I understand the drafters intended
to limit the amendment to immigration proceedings. However, even with a clarification, I caution you that allowing the secret use of secret surveillance in one type of
civil casein this case, immigration proceedingscan and will be used as a precedent when the Justice Department comes back to you and asks for this exception
in other types of civil cases.
6 H.R. Rep. No. 106981, Secret Evidence Repeal Act of 2000, 106th Cong., 2nd Sess. (Oct.
18, 2000). The bill, as amended, passed on a voice vote. Three members filed dissenting views.

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CONCLUSION

As a former CIA official and federal prosecutor, I witnessed first-hand how much
of our national security apparatuseven our counter-terrorism and international intelligence workis built on very basic policing methods. From your local grifters to
the Bin Ladens of the world, bad guys are generally found and punished using a
system that includes basic checks and balances on government power and which
militates against dragnet investigative fishing expeditions.
In many other countries, it is neither acceptable nor lawful to reflect openly on
and refine past action. In America, it is not only allowable, it is our obligation, to
go back and reexamine the decisions made by the federal government during the
panic of an event like September 11th.
Of course, a country suffering through the immediate fallout from the worst terrorist attack on American soil ever is going to make some mistakes. To err isnt just
human, its a direct result of representative democracy.
Case in point: myself. I voted for the USA PATRIOT Act. I did so with the understanding the Justice Department would use it as a limited, if extraordinary power,
needed to meet a specific, extraordinary threat. Little did I, or many of my colleagues, know it would shortly be used in contexts other than terrorism, and in conjunction with a wide array of other, new and privacy-invasive programs and activities.
According to a growing number of reports, as well as a GAO survey, the Justice
Department is actively seeking to permit USA PATRIOT Act-aided investigations
and prosecutions in cases wholly unrelated to national security, let alone terrorism.
This should not be allowed to continue. As my esteemed colleague in the House,
former Speaker Newt Gingrich wrote recently, in no case should prosecutors of domestic crimes seek to use tools intended for national security purposes. When we
voted for the bill, we did so only because we understood it to be essential to protect
Americans from additional, impending terrorist attacks, not as tools to be employed
in garden-variety domestic criminal investigations.
With conservatives expressing these serious doubts about the reach of the USA
PATRIOT Act, it is time to go back and review the law, hold oversight hearings and
consider corrections. It is certainly not the time to consider making it permanent
or expanding it.
Conservative or liberal, Republican or Democrat, all Americans should stand behind the Constitution; for it is the one thingwhen all is said and donethat will
keep us a free people and a signal light of true liberty for the world. Thank you
again for allowing me to testify.

Mr. COBLE. Thank you, Mr. Barr, and thanks again to all the
witnesses.
Gentlemen, we apply the 5-minute rule to ourselves as well, so
when we question you, if you can limit your answers as succinctly
as possible.
Mr. Bryant, under FISA, a specially designed court may issue an
order authorizing electronic surveillance of a physical search upon
probable cause that the target of the warrant is a foreign power or
an agent of a foreign power. Mr. Barr claims that this bill would
eliminate the probable cause requirement.
What do you say to that?
Mr. BRYANT. That would be an inaccurate characterization, Mr.
Chairman, of the effect of this bill as it relates to the provision calling for amending FISA, so as to allow FISA to be used in connection with so-called lone wolf terrorists or terrorists for whom the
affiliation with an international terrorist group is unknown.
The bill would in no way affect the current FISA standards in
current law. That is to say, the probable cause required with respect to the identity of the subject being an international terrorist
or a spy, a foreign power or an agent of a foreign power, is in no
way changed by this law. So I think that would be my initial response, Mr. Chairman.
Mr. COBLE. Mr. Barr and I were talking prior to the hearing
commenced, and we agreed that the PATRIOT Act is going to be

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sputtering around for a long time, as well it should. So with that
in mind, Mr. Barr, let me put a question to you.
In your testimony you clearly expressed concern that the Department of Justice may well abuse its authority. Senator Feinstein
pointed out at a recent oversight hearing that the ACLU could not
provide her with a single instance of abuse as far as PATRIOT Act
provisions are concerned.
What do you say in response to that, or do you have specific evidence of abuses?
Mr. BARR. I think, Mr. Chairman, as the cases that are being investigated and prosecuted by the Federal Government under provisions of the PATRIOT Act start to now, after a couple of years
working their way through our court system, start to manifest
themselves publicly in hearings and court orders and so forth
there is a case that reaches from, I think, out of D.C. or Northern
Virginia all the way down to Georgia, which has to do with the
scope and applicability of nationwide subpoena power under the
PATRIOT Act. That case is now moving forward and I think has
established a pretty clear record of abuse in that area, the use of
these expanded subpoena powers for fishing expeditions. So I think
were going to see more of that as these cases finally work their
way through the system.
Of course, as the Chairman is well aware, one of the reasons why
its so difficult to answer that question is because the proceedings
are secret, so we dont know when, for example, a FISA warrant
is served on a repository of records, perhaps a pawn shop which engages in second amendment transactions, or a doctors office. They
are gagged and they are prevented from disclosing that, so we dont
know how often these powers have been used or the extent to
which they may have been abused.
I think this also is a reason to conduct a great deal more oversight before we move to even seriously consider enactment of this
and other similar legislation.
Mr. COBLE. Thank you, Mr. Barr.
Mr. Harrington, the bill before us amends the law to add enforcement mechanisms for compliance with National Security Letter requests and against illegal disclosure of such a request. Explain in
a little more detail why we need to enforce these requests.
Mr. HARRINGTON. Well, as I stated a little bit earlier, there have
been several rare occasions where we have not had compliance
with an NSL, an administrative type subpoena. In those cases we
have no recourse currently to have that resolved in a quick and
timely fashion. It becomes a protracted negotiation between the
Government and the recipient of the NSL.
Of course, the work that we do must be kept quiet and secret,
as we try to investigate enterprises. These are cells, these are
groups that work together. There are relationships that are formed.
By doing it in a public venue, it would alert other subjects or other
coconspirators and would, of course, be detrimental toward our investigation in the long run.
Mr. COBLE. Let me get one more question in before the red light
comes to either of you.

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Do NSLs violate the fourth amendment because we dont inform
the terrorist or the target that theyre under investigation? Any of
you.
Mr. BRYANT. I would be pleased to respond, Mr. Chairman. They
dont. Terrorists have no such fourth amendment right. NSLs are
akin to administrative subpoenas. As you know, Mr. Chairman,
Federal law currently provides for 335 different administrative subpoenas to use in a wide variety of crimes, crimes that dont rise to
the magnitude of terrorism or espionage. NSLs, National Security
Letters, can only be used in connection with an investigation of an
international terrorist or a spy. Thats it.
Mr. COBLE. Mr. Barr, do you want equal time on that?
Keep in mind my red light is on, so make it quick, if you will.
Mr. BARR. Yes, sir, Mr. Chairman.
The problem is, of course, that the fourth amendment applies to
persons, not just citizens, and it applies to people who have not yet
been convicted. Certainly from the Governments standpoint, they
may believe that these people are terrorists, but until they are
proven as such through judicial proceedings, they are persons
under the fourth amendment.
Insofar as provisions of the PATRIOT Act and provisions of H.R.
3179 would prevent them from knowing that there is evidence
going to be used against them that has been gathered under FISA,
as opposed to the standard applicable under the fourth amendment, yes, it would result in, could result in, a violation of their
fourth amendment rights.
Mr. COBLE. My time has expired. I recognize the gentleman from
Michigan, Mr. Conyers.
Mr. CONYERS. Thank you, Mr. Chairman.
One hardly knows where to begin. I heard a colloquy about the
terrorist. That assumes the terrorist was convicted or that he was
being tried to determine whether he was a terrorist. A kind of important consideration, wouldnt you think? I mean, were saying the
terrorist and what his rights are, as if there had been a trial that
determined he had committed acts of terror.
Anyway, lets begin with the recognition that right now FISA applies to immigration cases, right?
Mr. BRYANT. It appliesif I might, Mr. Chairman, it applies in
investigations in connection with international terrorists and spies.
Put differently, it applies in connection with investigations of foreign powers or agents of foreign powers. The FISA surveillance
tools
Mr. CONYERS. Yes or no?
Mr. BRYANT. Is the question does FISA apply in immigration proceedings?
Mr. CONYERS. Yeah.
Mr. BRYANT. It is the case that
Mr. CONYERS. Yes or no?
Mr. BRYANT. The law allows FISA-derived information to be used
in immigration cases.
Mr. CONYERS. Mr. Harrington, FISA applies to immigration
cases?
Mr. HARRINGTON. I would have to defer. Im not an attorney.
Mr. CONYERS. Okay.

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Mr. Barr, welcome to the Committee again. FISA applies to immigration cases?
Mr. BARR. It can apply to immigration cases.
Mr. CONYERS. And what this bill is doing is going beyond the
present application of FISA to immigration cases, right, Mr. Bryant?
Mr. BRYANT. No, sir, thats not
Mr. CONYERS. It isnt going beyond?
Mr. BRYANT. No, sir. It does not affect, in any respect, the requirement
Mr. CONYERS. Well, what does it do, then, if its not going beyond
the existing law?
Mr. BRYANT. Its improving existing law. I thought your question
was, is it extending FISA in the immigration setting?
Mr. CONYERS. Its not going beyond the law; its improving the
law?
Mr. BRYANT. Its not increasing the application of FISA information in immigration
Mr. CONYERS. And this isnt PATRIOT II. This is just enhancing
PATRIOT I, right? Right?
Mr. BRYANT. This does not
Mr. CONYERS. Yes or no.
Mr. BRYANT. No.
Mr. CONYERS. Oh, it doesnt enhance PATRIOT I?
Mr. BRYANT. No. It is not specific to the PATRIOT Act, Mr. Conyers. These are additional provisions which speak to important
counterterrorism tools.
Mr. CONYERS. Its not doing anything to the PATRIOT Act?
Mr. BRYANT. It is not
Mr. CONYERS. Okay.
Mr. Barr, can you help us out here?
Mr. BARR. I certainly dont want to get crosswise with my friend
and Assistant Attorney General, but I think that, very clearly, the
intent of H.R. 3179 is to grant additional powers to those already
granted under the PATRIOT Act, in the very same areas addressed
by the PATRIOT Act.
Mr. CONYERS. Of course.
Now, since were into this semi-denial mode, let me ask you
about the PATRIOT Act II thats been widely known to have been
drafted in the Department of Justice for months. Mr. Bryant?
Mr. BRYANT. Yes, sir.
Mr. CONYERS. Yeah. What? What is the response?
Mr. BRYANT. Im sorry. I didnt understand the question, Mr.
Conyers.
Mr. CONYERS. I said what about the widely-known fact that PATRIOT II was being drafted in the Department of Justice for
months?
Mr. BRYANT. We have not
Mr. CONYERS. You dont know anything about it?
Mr. BRYANT. We have been working with Congress extensively
over the last 2 years to
Mr. CONYERS. Well, Im in Congress.
Mr. BRYANT.to provide additional
Mr. CONYERS. They havent been working with me.

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Mr. BRYANT. We stand ready to, sir.
Mr. CONYERS. Well, let me ask you this.
Good night, man. Im spending a lot of time on ancient history.
Everybody knows that in town. I mean, read the Washington Post.
They have been drafting FISA, redrafting FISA, re-redrafting
FISA.
Let me ask you this. Did you know that the PATRIOT bill that
came out of this Committee was substituted by the Department
that you work in the night before it went to Rules? Did you know
that? You didnt know that, either?
Mr. BRYANT. No, sir.
Mr. CONYERS. And you worked in the Judiciary Committee.
Mr. BRYANT. Of course, we cant substitute legislation that this
Committee
Mr. CONYERS. Well, it happened. What do you mean you cant do
it?
Mr. BRYANT. We dont have a vote on this Committee, sir.
Mr. CONYERS. Please help me control myself.
What do you mean you cant do it? You did it. The bill that we
sent to the Rules Committee was replaced by another bill that nobody had seen. Was that at your request?
Mr. BRYANT. The substitution?
Mr. CONYERS. Yes.
Mr. BRYANT. If the question is, did we support the substitution,
then the answer is yes.
Mr. CONYERS. Thats the question. Was it at your request?
Mr. BRYANT. Were we urging that the bill reported out of Committee be further improved? We were.
Mr. CONYERS. Right. So dont give me this business about you
never can do this orYoure the one that did it.
Mr. COBLE. Mr. Conyers, your time has expired.
Mr. CONYERS. Okay.
Mr. COBLE. If you want to wrap up, Mr. Conyers
Mr. CONYERS. No, no. I need another round.
Mr. COBLE. All right. Very well.
The gentleman from Virginia, Mr. Goodlatte.
Mr. GOODLATTE. Thank you, Mr. Chairman.
Mr. Barr, welcome. We are very pleased to have your participation, as well as the representatives of the Justice Department.
Quite frankly, when we wrote the PATRIOT Act the first time,
regardless of some view of the process, we gave it very intense
scrutiny. There were a number of things requested by the Justice
Department that we did not agree to and took off the list right
away. Most everything else was very closely and carefully discussed and in some sense negotiated amongst Members of this
Committee.
I think that the final product is a good product. The fact of the
matter is, when you do something like this and you change things
in a very sensitive areaand Im sensitive to both civil liberty concerns and law enforcement concernsyou dont necessarily know
the impact that youre going to get. So we added what Im in favor
of doing with more legislation, and that is sunset provisions on a
great many of the provisions of the PATRIOT Act. A number of the
other provisions are very much common sense, simply provisions to

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update things that were needed in the law, and I think that is the
same approach that we should take to any new requests for
changes in the law.
Mr. Barr, Im wondering if thats your philosophy as well. In reviewing your statement, I notice that toward the end of page 1, you
state, as I recallyou did, you voted for the PATRIOT Actwith
the understanding that the Justice Department would use it as a
limited, if extraordinary power needed to meet a specific extraordinary threat.
Yet earlier in your statement, you say that the Attorney General
has said he hasnt used some of the powers, which I am absolutely
certain is true. This is a very lengthy piece of legislation and includes many, many provisions, some of which may not have been
exercised, and quite frankly, if law enforcement doesnt need to exercise something, I dont think they should. You then question
whether those powers were needed.
Im just wondering, if the Attorney General has not, in fact, used
the powers, is that good or bad that he hasnt used them?
Mr. BARR. Well, we dont know until we have more information.
I think the gentlemans question goes to the heart of the need for
additional oversight so that we can get answers to those questions,
the answers which lie only in the breast of the Department of Justice.
I think its important to recognize or to conclude that if, in fact,
some of these extraordinary provisions which at the time the PATRIOT Act was submitted and defended by the Administration
when it was brought up to the Hill were portrayed as absolutely
essential to fight terrorism have not, in fact, been used, then I
think there ought to be, particularly from a conservative standpoint, a presumption that they are not needed and that they ought
to be taken from the Government and given back to the people, and
at such time as the Government feels and can demonstrate the
need for those powers, to then at that time come back to the Congress and ask for them and justify them.
Mr. GOODLATTE. Are these particular powers amongst those that
would expire at the end of next year?
Mr. BARR. Some of them, but as the gentleman from Virginia
knows, unfortunately, despite our joint efforts to have the number
of provisions of the USA PATRIOT Act sunsetted much broader
than we wound up with, a lot of the problematic provisions such
as the sneak and peak and the 215 provision are not sunsetted.
This is a problem.
Mr. GOODLATTE. But the examinationand I fully agree with
you, that we need to exercise a considerable oversight over the use
of the PATRIOT Act to make sure that it is being used as intended,
and certainly one of the questions, as always, whether something
is, indeed, needed. But there have been those who advocated that
we pass legislation, I think prematurely, to lift those sunset provisions and make the PATRIOT Act permanent, and on the other
hand, there are those who would like to take steps to repeal portions of it, what I also think are premature. I think we ought to
allow it to operate for the amount of time that the Congress designated, and then, as it approaches the sunset provisions for some
of the provisions, use that as an opportunity to examine all of the

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provisions in the act. While some may not automatically sunset, we
certainly have the ability and the authority to examine those that
do not sunset and determine whether they arent used or are not
necessary or have been abused, in which case we can do that.
But I so far have not seen a tremendous amount of evidence from
anybody regarding misuse of the PATRIOT Act. I wonder if you
would want to comment on that, if Mr. Chairman would allow that,
since my red light is on. And then I would also ask if Mr. Bryant
could respond as well.
Mr. BARR. Again, in the interest of time, not to repeat my answer
to a question that the distinguished Chairman raised earlier, we
dont really know at this point because of the secrecy attendant to
so many of these provisions and the use of these provisions by the
Government. The Committee, through vigorous oversight, and the
Subcommittee, certainly can get to the bottom of it, and I think
should.
But, of course, ultimately the question of whether or not a provision of the law, including those that bring us here today, are constitutional has nothing to do with how many times they are used
or whether theyve been abused. They are unconstitutional ab
initio. That, I think, is a problem with some of what is going on
here.
Mr. COBLE. The gentleman put his question before the red light
appeared, Mr. Bryant, so you may answer briefly, if you will.
Mr. BRYANT. Yes, sir.
Mr. Goodlatte, in response to the question is it good or bad that
certain sections havent been used, I think we reflect on and ask
the same question, is it a good or bad thing that a law enforcement
officer has a firearm but doesnt have to use it. The fact that discretion is shown, restraint is shown, in connection with utilizing authorities or powers that are granted law enforcement or
counterterrorism capability, we think is a good thing.
In terms of the question of the sunsets, we think Congress did
a very good job in passing PATRIOT. We think the sunsets should
not be realized; that is to say, we think the sunsetted provisions
should not, in fact, sunset but should be continued. We support
their reauthorization. We stand ready to continue working with
this Committee and Congress to ensure careful oversight of how all
of the authorities, including the sunsetted authorities, are being
used.
We think with PATRIOT the angel is in the details, not the devil
is in the details. We think that you all deserve the details, the
American people deserve the details, and that that will
Mr. COBLE. The gentlemans time has expired. Thank you, Mr.
Bryant.
The gentleman from Virginia.
Mr. SCOTT. Thank you, Mr. Chairman.
I noted, Mr. Bryant, you said that these investigations and National Security Letters were in conjunction with the investigation
on terrorism, and terrorists dont have rights that others might
have.
Do I understand that once you get a letter, the investigation is
in connection with the terrorist investigation but they can be
served on anybody?

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Mr. BRYANT. NSLs can be used by the FBI in connection with
duly authorized investigations of international terrorism or espionage, and can be served on third partiesspecified certain congressionally-articulated third partieswho have relevant information
to that investigation, thats correct.
Mr. SCOTT. Like law-abiding citizens?
Mr. BRYANT. To designated institutions, such as financial institutions or credit reporting agencies
Mr. SCOTT. Under the bill, a pawn shop?
Mr. BRYANT. Yes, a pawn shop, which has become
Mr. SCOTT. A law-abiding pawn shop can be subject to one of
these things. They get issued not by the Attorney General but get
issued by the local guys?
Mr. BRYANT. This is a request for information that, under statute, can be issued by the FBI.
Mr. SCOTT. The local guys can do this?
Mr. BRYANT. No, it hasCongress has designated how it can be
delegated, and I believe it can be delegated to the special agent in
charge
Mr. SCOTT. Local?
Mr. BRYANT. Yes, who is sometimes local, is in the region.
Mr. SCOTT. And once the local guy issues one of these things and
you get one, you have to comply, you cant tell anybody, and if its
abusive, how do you complain?
Mr. BRYANT. A couple of points, Congressman. This is important,
so I would like to try to get it right.
With respect to not being able to tell anybody, it is the position
of the Department that the recipient of an NSL can confer with
counsel, with a lawyer, with an attorney. We believe thats an implied exception in the law, and we would be pleased to work with
you as this legislation is
Mr. SCOTT. So you are pleased to put that in the bill, that consultation with an attorney does not violate the disclosure from
Mr. BRYANT. Thats correct.
Secondly, with respect to compliance, the sanctions that currently dont exist, that this bill would call for, only apply to breaching the nondisclosure requirement. In order for there to be sanctions in connection with not complying with the request, the Justice Department would have to enforce the National Security Letter
in court, and the penalty then would be sanctions applied by the
court in connection with the failure to comply.
Mr. SCOTT. If youre complaining or protesting, you know, you explain it to a judge and youre on the barrel end of a 5-year sentence
if you happen to lose.
Let me move on to these ex parte proceedings. How many ex
parte requests have been denied by judges?
Mr. BRYANT. I dont know the answer to that, Congressman.
Mr. SCOTT. Do you know if any have been denied?
Mr. BRYANT. Its my understanding that ex parte in connection
with CIPA, the Classified Information Procedures Act, that requests for CIPA authorizations are denied.
Mr. SCOTT. Some are denied?
Mr. BRYANT. Yes, sir.

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Mr. SCOTT. If this bill passes, will the defendant know that an
ex parte proceeding went on?
Mr. BRYANT. The defendant might have reason to know that an
ex parte in camera proceeding has occurred. The defendant
wouldnt, by definition, know necessarily or would not know what
occurred in that proceeding.
Mr. SCOTT. Would he necessarily know that it went on?
Mr. BRYANT. No.
Mr. SCOTT. Would there be a reviewable record of what went on?
Mr. BRYANT. The proposed change in this bill would allow the requested CIPA authorization to be made orally, so as to expedite the
request and judicial determination.
Mr. SCOTT. So if the information was misleading, you know, kind
of confusing, there wouldnt be anything to review; is that right?
Mr. BRYANT. Im unaware that there would be a record to review.
Mr. SCOTT. There wouldnt be a transcript.
Mr. BRYANT. Thats correct.
Mr. SCOTT. So if the judge was allowed to, there wouldnt be any
transcript.
If the judge decides that he really doesnt agree that it ought to
be ex parte and he would like to hear from the defendant, under
this bill he cant do it, is that right?
Mr. BRYANT. Well, under current law a judge is not free to discuss any and all classified information with the defendant, absent
provisions specifically made for that.
Mr. SCOTT. Or defense counsel?
Mr. BRYANT. Thats correct.
Mr. SCOTT. If he decides that he would like to discuss with counsel who has a security clearance, this bill would prevent him from
involving the defense counsel in the decision, is that right?
Mr. BRYANT. Thats my understanding.
Mr. SCOTT. I had one quick technical question, Mr. Chairman. Do
you have the bill before you?
Mr. BRYANT. I do.
Mr. SCOTT. On page 4, line 15.
Mr. BRYANT. Mine might not have the same pages, Congressman
Scott.
Mr. SCOTT. Section 6, the first sentence.
Mr. BRYANT. Uh-huh.
Mr. SCOTT. Where it says in parenthesis other than in civil proceedings or other civil matters under the immigration laws, Im
assuming that it means civil proceedings under immigration laws
or other civil matters under immigration laws.
Mr. BRYANT. Yes, thats our reading of the meaning of the text
of the bill.
Mr. SCOTT. Okay.
Mr. COBLE. I thank the gentleman.
The gentleman from Indiana, Mr. Pence.
Mr. PENCE. I thank the Chairman. Thank you for holding this
hearing. I want to thank the witnesses, and I apologize for arriving
a little bit late. I have a couple of questions.
Its good to see Mr. Bryant here. I real with great relish the story
of 310 individuals charged and 179 convicted, terrorist cells broken
up in Buffalo, Charlotte, Portland, and Northern Virginia. Mr. Bry-

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ant, I would just sayand I hope you convey to your colleagues at
the Department of Justicethe gratitude of the people I represent.
Mr. BRYANT. Ill be pleased to, Congressman.
Mr. PENCE. We appreciate you. I do not consider it luck that we
have been without a major terrorist event on American soil in the
days since September 11th.
Also, I am grateful to see my good friend and former colleague,
Congressman Barr, here. I think I may actually be physically occupying what many of us call on the Committee the Bob Barr chair
in the upper shelf. I appreciate your passion for civil liberties.
Mr. BARR. If you are, Mr. Pence, be aware that theres a trap
door underneath, which my colleagues wanted to use frequently.
[Laughter.]
Mr. PENCE. I honestly find myself, I would say to the panel,
somewhere between my good friend, Mr. Barr, and the Department
of Justice on this. So I have a couple of quick questions.
I would really echo Mr. Barrs statement, prepared statement. I
literally was added to this Committee, unlike some of my distinguished colleagues, I was added to this Committee 1 week before
the PATRIOT Act was passed. I havent crammed for a test like
that since my law school days.
But it was axiomatic to me at that time that we were creating
temporary powers and focused on confronting a specific threat to
our country, so I do want ever to have Congress hold to that theory
in force the temporary elements of the PATRIOT Act, where possible, and where its prudent to do so. I also want to be very careful
about expanding even in the area of, to use Mr. Barrs language,
the PATRIOT Act.
But I am also intrigued, Mr. Bryant, and I would like you to
speak to this lone wolf idea. It seems to me that in the days since
September 11th we have gotten to know our enemy better through
hard labors and confrontations, I think, of the circumstances that
occurred prior to the elections in Spain, where in testimony before
the International Relations Committee John Bolton told me that he
did not believe al-Qaeda today was operating from a central command but rather from disparate groups and individuals.
I just would like to ask you a fairly open-end question, Mr. Bryant. Could you explain to me how the instant bill addresses that
lone wolf whole, where we are relegated to dealing with issues
under essentially domestic criminal law? What is the benefit in this
bill for us when we cant establish a direct nexus to a terrorist organization or group of terrorists?
Mr. BRYANT. Yes, sir. The question that we have sought to address in thinking about this lone wolf or unaffiliated terrorist circumstance is whether or not the benefits, the strengths of the FISA
regime, and the protections that are built into the FISA regime,
should be brought to bear in connection with a terrorist whose affiliation with a foreign terrorist organization is unknown.
We think the answer is yes, because the potential catastrophic
consequences of an international terroristand this provision
would only apply to non-U.S. personswhether or not an international terrorist perpetrating or seeking to perpetrate a terrorist
incident should be able to be pursued with the FISA tools that are

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currently deployable against an international terrorist whose affiliation with an international terrorist organization is known.
Mr. PENCE. Let me interrupt before my time runs out.
Mr. Barr, could you speak to that? Does the lone wolf style of
terrorism, does it give you pause? Is your concern here with haste,
or is it with the substance of that specific proposal?
Mr. BARR. Its with the substance. I dont think that, in my experience as a prosecutor and as a Member of this Committee engaging in oversight of the Justice Department for 8 years, Im not
aware of any instance in which failure of judges to operate quickly
if the Government related to them exigent circumstances was a
problem.
What we have here, though, is the fact thatI think one thing,
from a practical standpoint, Mr. Pence, that is important is the instance of a true lone wolf. That is, a suspected terrorist with absolutely no ties to anybody, that he manufactured the so-called
whatever the device was in his basement, he didnt deal with anybody outside of his own house and so forthI think thats unrealistic. So what were talking about from a realistic standpoint, when
we talk about a lone wolf, is a person that, while perhaps the
Government isnt able to link them to a formal organization, they
do have contacts. And under existing FISA standards, without removing the nexus to foreign power, the Department of Justice can
go after that person if they show as little as there is one other person with whom they are dealing as part of their conspiracy or their
activities.
This provision is simply unnecessary to break that important
link between the Presidents national security power and the extraordinary power of gathering evidence outside of the fourth
amendment. Thats why I think its so important that we not do
this, and certainly not until the Government has come forward and
laid out a much stronger need for it.
Mr. COBLE. The gentlemans time has expired.
Did you have another question, Mr. Pence?
Mr. PENCE. It just appeared to me, Mr. Chairman, that Mr. Bryant wanted to react to that. I would be grateful to have him do so,
if the chair would permit it.
Mr. COBLE. Is there further response? Mr. Bryant.
Mr. BRYANT. I would be pleased to respond to Mr. Pence, Mr.
Chairman, if you would permit.
Mr. COBLE. Why dont you suspend for a moment. Well have a
second round, so we will do that on the second round, Mr. Pence.
The gentlelady from California, Ms. Waters.
Ms. WATERS. Thank you very much, Mr. Chairman.
I am almost stunned at what we have already done, invading the
privacy of American citizens with the PATRIOT Act, and violating
the Constitution of the United States. I am absolutely amazed that
we keep pushing further to do it and that the American people are
not responding in a profound way.
I suspect that it is just a matter of time before this will backfire
on us, just as the interrogations in Iraq are backfiring. In the name
of terrorism, we have given ourselves permission to violate the
Constitution, to violate privacy, to basically violate human beings
in some extraordinary ways. For those who were so heady that

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they felt they could do interrogations and not have to think about
the Geneva Convention and all of that, I think were traveling
down the same road with PATRIOT Act II, with no oversight and
expansion.
Let me ask Mr. Bryant to describe to usand you probably did
it already and Im sorry if Im asking you to repeat. Describe to me
the gag provision of the National Security Letters. Describe as accurately as you possibly can what that gag provision mandates,
what does it say, what does it allow or not allow someone to do or
not to do?
Mr. BRYANT. Under current law, Congresswoman Waters, the recipient of a National Security Letter, which is akin to an administrative subpoena, limited to the context where theres a duly authorized investigation of an international terrorist or a spy, the recipient of an NSL, a National Security Letter, is obligated, under
current law, not to disclose the fact that they have received that
NSL.
The reason that Congress has found compelling and caused Congress to provide this nondisclosure requirement is that to not require nondisclosure is to allow the recipient to talk about the fact
that the NSL, pursuant to an international terrorism investigation,
has been received, to tip off others, to tip off associates.
Ms. WATERS. Okay, thats good. Let me just stop you for one moment so that I can understand.
The recipient of one of these letters could or could not be someone involved in terrorism? Anybody could get one?
Mr. BRYANT. Anyone who has been designated within the category of third parties that are eligible to receive them, so its a limited category. Financial institutions, its communications transactions, communications providers, its credit bureaus
Ms. WATERS. Libraries?
Mr. BRYANT. Yes, they fall under the definition.
Ms. WATERS. Okay. So
Mr. BRYANT. That is, they fall under the definition if they provided Internet services.
Ms. WATERS. So describe to me, so I can really understand, if a
library receives one of these letters and they ask them for extensive information related to the checking out of books, materials,
and other kinds of activities of individuals in that library, then
youre saying that that library, no one associated with it, can tell
anybody, they cant raise any questions about it, they cant do anything; is that correct?
Mr. BRYANT. The request has to be for relevant information.
There is no
Ms. WATERS. Who decides relevant?
Mr. BRYANT. Well, in the first instance, the FBI, which is
issuing. But there is no sanction for this library in this hypothetical for not complying. The only sanction is if they disclose the
receipt of it. What that means is they do not have to immediately
comply with the request, in terms of its scope. They can respond
to the FBI that the scope of that NSL is unreasonably broad. They
are not going to be sanctioned for having that as a response. The
FBI and the recipient can then discuss the proper scope of the request to ensure that it is only for relevant materials.

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The only sanction that could be brought to bear against the recipient is if the FBI sought to judicially enforce the NSL and the
court were to enforce it at that point, if the recipient were to still
not agree to comply, then there could be sanctions imposed by the
court.
Ms. WATERS. Youre asking for penalties now?
Mr. BRYANT. For nondisclosure, thats right.
Ms. WATERS. Not simply for nondisclosure.
Mr. BRYANT. The penalties would be, in the first instance, for
knowing violation of the nondisclosure requirement, a 1-year penalty for a knowing violation, a 5-year penalty for a knowing violation with the intent to obstruct the ongoing investigation. Those
are the two sanctions.
Ms. WATERS. Tell me about that aspect of it, where the librarian,
what not, could not call an attorney, could not call in anyone to say
what is this? What have I got here? Do I have to comply with
this? Would that be a violation of any kind?
Mr. BRYANT. It is the position of the Department that the recipient of an NSL can confer with their attorney in connection with the
receipt of that NSL.
Ms. WATERS. Who is it they cannot confer with?
Mr. BRYANT. They can confer only with counsel in connection
with the receipt of the NSL. So they would be prohibited from conferring more broadly.
Ms. WATERS. What about a relative? What about a wife? What
about anybody else?
Mr. BRYANT. I think its important to remember that were talking about only two kinds of investigations here: an international
terrorism investigation or an espionage
Ms. WATERS. The librarian is not a terrorist. The librarian is
being asked to disclose information on other people who have used
that library, who have access information in some way.
What youre telling me is, in addition to failure to disclose or
nondisclosure, that this gag order says youve gotten this request
and you cant talk about it with anybody. Youre saying they can
confer with an attorney, is that what youre saying?
Mr. BRYANT. A recipient can confer with an attorney, but this is
a terrorism investigation, and broadly communicating the receipt of
such an NSL poses real risks to national security. So Congress,
going back to 1986, when NSLs were first passed, has seen appropriate to impose
Ms. WATERS. So what if this librarian talks with his wife about
it? Then what could happen to that librarian?
Mr. COBLE. If the gentleman will suspend, Ms. Waters, if you
would wrap up, we need to hear from the gentlelady from Texas
before we go to vote.
Mr. Bryant, you may respond to that.
Ms. WATERS. I appreciate that.
Mr. BRYANT. The only exception, Congresswoman, that is implicit
in the statute, or that is provided for, has to do with
Ms. WATERS. Just what would happen to the librarian if he
talked to his wife.
Mr. BRYANT. If a recipient of an NSL speaks to someone other
than counsel, that would be viewed as a violation of the nondisclo-

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sure requirement. Currently, there is no sanction in the law in connection with
Ms. WATERS. So the gag would give him 5 years, could cause him
to be convicted and 5 years in prison?
Mr. BRYANT. Under this bill, a recipientweve been discussing
this in the context of a librarian, but only libraries which provide
Internet services could conceivably
Ms. WATERS. I dont care who it is. Im talking about a human
being who gets one of these letters, who talks about it with a wife,
a family member, a close friend, another colleague, they could go
to prison for 5 years; thats what youre telling me. Is that right?
Mr. BRYANT. Under this bill, there is a 1-year prison term, up to
1 year, provided for the knowing disclosure in violation of
Ms. WATERS. And what triggers the 5 years?
Mr. BRYANT. The 5 years, it has to be of the wilful intent to obstruct an ongoing investigation
Ms. WATERS. Thank you, Mr. Chairman. This is so outrageous,
I dont need to hear any more. Thank you very much for the extended time.
Mr. COBLE. Folks, we are going to have a vote in just a minute,
and I want to recognize the gentlelady from Texas. But did the
Ranking Member of the full Committee want to be heard?
Mr. CONYERS. I would like
Mr. COBLE. Before I recognize the gentlelady from Texas.
Mr. CONYERS. Oh, no. By all means, the gentlelady from Texas
may proceed me almost always.
Mr. COBLE. The gentlelady from Texas is recognized for 5 minutes.
Ms. JACKSON LEE. The Ranking Member ranks, and if the Ranking Member seeks to clarify and/or speak?
Mr. CONYERS. I will wait.
Ms. JACKSON LEE. I thank the Chairman very much, and I thank
the Chairman of the Subcommittee.
Let me first of all thank the witnesses. Mr. Barr, welcome. It is
a pleasure to see you, and I am going to start with you, and if I
might, Im not sure if you took your testimony verbatim, but Id
like to read it into the record again.
As a student and supported of the Constitution and its component Bill of Rights, I will not concede that meeting this Governments profound responsibility for national security entails sacrificing the right given us by God and guaranteed in that great document.
Would you share in your own words, even though your testimony
might have been so, your assessment of the expanse of what we
have been doing in the name of national security? You might allude
to the present bill before us, but as you well know, Im going to
have some other questions, so if you can just get us right to the
jugular vein, if you will, on this issue.
Mr. BARR. I think it can be answered with two basic statements,
Ms. Jackson Lee. One is we are making everybody a suspect until
they can prove themselves otherwise. Secondly, we are essentially
moving in the direction of gutting the fourth amendment with all
of these exceptions, exceptions if you travel, exceptions if you have
records that the Government believes are somehow related, how-

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ever indirectly, to a terrorism or national security investigation, we
are allowing so many ways, sort of reverse loopholes, for the Government to secure evidence to be used against people, including
citizens in criminal proceedings, without laying a foundation that
they have probable cause to suspect that person has engaged in
criminal behavior, that if we go much furtherand thats what
were doing today, going further in that directionthe fourth
amendment will be rendered essentially meaningless.
Ms. JACKSON LEE. You took the words out of my mouth, loopholes and the expanse being gutting of one constitutional provision
and thats a right of reasonable search and seizure.
My next question to you then, and taking into account this Committees posture when we worked in a bipartisan way to produce
I think a PATRIOT Act that we all could have lived with and
would have been a very effective tool of fighting terrorism. You recall those days after 9/11 the unity that was in this House was
probably more than we had ever seen. The unity in this congressional Judiciary Committee was superior, but of course, that did
not prevail.
Can you tell me what light this particular legislation brings to
the question of fighting terrorism? Following along the lines of my
colleagues inquiry, which is my concern, this looks like a fishing
net, not a fishing pole, but a fishing net, where we are throwing
out a net, and we may gather in it a number of innocent persons
who through their own sense of freedom, meaning that we are used
to being free in this country and may offer a conversation that is
not in any way undermining national security, but is this legislation before us the kind of legislation that can in essence be a fishing net drawing in innocent persons, leaving them with little defense mechanisms in terms of their own defense?
Mr. BARR. I think the gentlelady is correct. And in addition to
that, for example, following on the discussion that the gentlelady
and the gentlelady from California were just having with the distinguished Assistant Attorney General about the gag order and the
penalties and so forth, if the Government of course is able to extract penalties, that is, prosecute criminally people who have disclosed beyond their attorney, which is very limited disclosure certainly, then theres no incentive whatsoever and no way to hold the
Government to narrow its requests under the FISA provisions.
Secondly, such a provision that the Government seeks is unnecessary. The Government can under existing law, long-established
existing law, seek a subpoena under seal if it believes that disclosure to third parties, that is other than the recipient of the subpoena to secure the evidence, would harm national security or
would harm an ongoing investigation, they already have a tool to
do that. Thats why its somewhat mystifying to me why the Government is now saying that it has to have this additional power,
which they were not granted in the initial PATRIOT Act, and one
reason they werent is because they already had the power then
and they have it now.
Ms. JACKSON LEE. Interestingly enough, I remember your debate
in this Committee, and a number of times you recounted, with your
past experience, the fact that the Government already had some of
the powers that we were even discussing at that time. Thats why

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we tried to balance that bill at the time that we were discussing
it.
Mr. Bryant, welcome back, and I thank you for your leadership.
Thank you very much, Mr. Barr.
He makes a very valid point, and I would just like to explore it
with you very briefly. Section 5 of this legislation takes away a defendants right to challenge secret evidence that the Government
has against eitheragainst him. My concern is can you provide an
example, one example where a defendant has jeopardized a case
because he or she was allowed to just petition the court to have access to this secret evidence. I say that in the context again of the
idea of a fishing net and the idea that this Committee, this Congress, and I think the Government, should be problem solvers. We
should not, if you will, undo or to make wrong what is already okay
and right.
In this instance it appears to me that the Government is coming
forward with advocacy for a position where there has not been sufficient problems that have been discovered, and/or that you have
presented to this Committee, or as I understand, to anyone.
so what is the basis of havingthwarting a defendants right to
understand what is going on and to give them an able defense? It
seems to be a simple right that we have.
Mr. BRYANT. Thank you, Congresswoman. CIPA, the Classified
Information Procedures Act, sets up a mechanism whereby the
Government can seek to protect classified information in a trial setting by petitioning the Court to explain ex parte and in camera
why that information should not be disclosed. The judge is then in
a position to redact or summarize that information for purposes of
trial.
To not allow the Government to seek that ex parte in camera opportunity with the judge and to not allow redactions or summaries
of that information, is to risk disclosing classified, sensitive, national security information in an open court setting. Thats the concern that CIPA for many years has addressed and that this bill further addresses.
Ms. JACKSON LEE. Do we have examples of defendants who have
misused any access to secret evidence if theyve ever gotten access
to it? Do you have a record of such?
Mr. COBLE. Mr. Bryant, if you would be brief, the gentleladys
time has expired, but you may answer.
Ms. JACKSON LEE. I thank the Chairman.
Mr. BRYANT. I am aware of examples where Government has had
real struggles in a trial setting presenting information, given the
fact of it being classified, and what this does is it allows the Government simply to get to a judge, who can then decline the request
to seek redactions or summaries of that classified information.
Ms. JACKSON LEE. Mr. Chairman, if you will just yield for me to
have a final sentence, I would just say that justice and democracy
is a struggle, and the problem is, is that the struggle seems to be
heavily burdening the defendant who is now increasingly not having the opportunity for a fair trial under this new legislative initiative and certainly the PATRIOT Act.
Mr. COBLE. I thank the lady.

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We have been joined by the gentleman from Ohio, Mr. Chabot.
Do you have any comment to make?
Mr. CHABOT. No.
Mr. COBLE. Colleagues, let me think aloud for a minute. We have
proposed three votes upcoming, and you are talking about close to
an hour. So what I propose to do is to start a second round, and
when that bell rings we will adjourn for the day, but the record will
remain open for 1 week, so if Members have questions to put to the
witnesses that they have not had a chance to orally submit, if all
are in agreement with that.
Mr. CONYERS. Mr. Chairman, could we ask for a 2-week response
on the questions that might be sent to any of the witnesses?
Mr. COBLE. Two-week response, without objection, 2-week response will be in order.
I will start a second round now.
Mr. Harrington, we have gone here, there and yonder, and appropriately so. Let me put two questions to you that can maybe bring
us back into the deep water away from the shoals and the rocks.
What is a national security letter? When can it be used and who
can use it, (A)? (B) Why is a national security letter preferred over
other types of subpoenas or court orders? These are two rather simple questions.
Mr. HARRINGTON. I think Mr. Bryants laid it out very nicely a
little while ago, but the national security letters can only be used
in a counterterrorism or an intelligence investigation, a spy type
investigation. Those letters are directed toward three groups primarily for electronic communication response, financial records,
and consumer reporting records. Those are the only three areas
that it can be used in.
Why NSLs versus others? Our whole approach has changed since
9/11. The walls between criminal and intelligence investigations
have basically been taken down, as the Congress has worked with
us to do that. All of our investigations now in counterterrorism
start off as an intelligence investigation. Criminal provisions are
just one tool in our tool belt basically to attack the particular organization or terrorist group that were trying to pursue. Certainly is
it easier for the investigators to be able to go locally to their Special Agent in Charge, show that they have a pending investigation
and that the NSL is warranted to obtain this information. Its an
abbreviated process.
Mr. COBLE. Mr. Barr, I will give you a chance since you are on
the, quote, other side of this issue. You want to respond to that?
Mr. BARR. Thank you very much, Mr. Chairman. I think its important to recognize that the PATRIOT Act, in Section 505, dramatically weakened theor dramatically strengthened the ability
of the Government to secure information without that individualized suspicion, those specific and articulable facts that are so vitally important to ensure that the fourth amendments mandate is
kept in mind. Thats why the Government is relying more and more
on national security letters as opposed to judicial subpoenas or
grand jury subpoenas, one, because theyre so easy to get, and especially with a gag order theres no check whatsoever on what the
Government is doing. And all they have to do, contrary to the traditional fourth amendment standard which requires that specific

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link for the Government to show between the information and the
individual against whom the information is being sought, it removes that. Thats why we ought to tread so very carefully in seeking to or granting the Government the power to expand that. They
already gained a tremendous expansion of power already under the
PATRIOT Act section 505.
Mr. COBLE. I thank you.
The gentleman from Virginia. The gentleman from Michigan, Mr.
Conyers.
Mr. CONYERS. Thank you, Mr. Chairman. Now that I am feeling
much better and have digested Mr. Bryants comments earlier, let
us continue on.
Mr. Bryant, how long have you served on the Judiciary Committee before your ascension to the Department of Justice?
Mr. BRYANT. It would have been for a period of approximately 6
years.
Mr. CONYERS. Six years. Okay. Now, has there, to your knowledge, been any oversight of the PATRIOT Act?
Mr. BRYANT. Extensive, sir.
Mr. CONYERS. Oh? Well, would you enlighten us? Did the Judiciary Committee conduct it?
Mr. BRYANT. I think both the House and the Senate Judiciary
Committees have had the Attorney General testify before them
since the passage of the PATRIOT Act
Mr. CONYERS. That is not the same thing.
Let me ask the Chairman of the Subcommittee. Have we conducted any oversight, sir, of the PATRIOT Act, to your knowledge?
Mr. COBLE. I think we have, Mr. Conyers. There was
Mr. CONYERS. Well, when?
Mr. COBLE. June the 5th of 2003, May the 20th of 2003. That
was the Subcommittee on the Constitution. Witnesses forthose 2
days come to mind, John.
Mr. CONYERS. We will clear this up. Let me get to the point. I
notice that nobody, none of the witnesses, or at least my favorite
witnesses, have used the term libraries or bookstores. You prefer the euphemism communications providers. And I think I know
why you do that. But heres the problem that were having. We do
not feel that there is any necessity to go beyond where we are now.
You mentioned 179 convictions, Mr. Bryant, right? and what were
those convictions for?
Mr. BRYANT. A variety of terrorism-related offenses including
material support for terrorism.
Mr. CONYERS. Oh, yeah? Well, would it be offensive to the secrecy of the Department of Justice that the nature of those convictions be revealed to the Subcommittee that has jurisdiction over
this subject?
Mr. BRYANT. Theyre a matter of public record. Wed be pleased
to pull it together and make sure the Subcommittee has it.
Mr. CONYERS. Right. But what about all the oneswerent there
more people convicted for petty offenses and minor immigration
violations and other things than there were for terrorist offenses,
if there were any terrorist offense convictions?

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Mr. BRYANT. Respectfully, Mr. Conyers, I think thats a false dichotomy. Immigration law is an essential tool in our effort against
terrorism.
Mr. CONYERS. I see. So Immigration procedures of any kind that
result in convictions like not having a green card could be terrorist
related, right?
Mr. BRYANT. It could be if the individual was involved in terrorism.
Mr. CONYERS. Which is why we took the Immigration and Naturalization Service and put it in Homeland Security, right?
Mr. BRYANT. I dont follow the question, sir.
Mr. CONYERS. Well, it was pretty simple, a sentence with a subject and a verb andI mean whats the problem with what I asked
you? What dont you understand?
Mr. BRYANT. The agency historically known as the INS is now
part of the Department of Homeland Security.
Mr. CONYERS. Yes. You understand that. Isnt it true?
Mr. BRYANT. Thats correct.
Mr. CONYERS. Well, then what was so hard about that? Now,
how many people have received letters since September 11, 2001,
national security letters have been issued?
Mr. BRYANT. Im unaware of the number, Mr. Conyers.
Mr. CONYERS. What about Mr. Harrington? You are the one that
issues them.
Mr. HARRINGTON. Yes, sir, and we do report to Congress routinely as far as
Mr. CONYERS. Yeah. How many?
Mr. HARRINGTON. I believe that numbers classified, sir.
Mr. CONYERS. Classified?
Mr. HARRINGTON. Just as the number of FISAs are classified,
yes.
Ms. WATERS. Put him under oath.
Mr. CONYERS. Well, hes already under oath. I mean when you
testify youre under oath here.
Ms. WATERS. Make him raise his hand.
Mr. CONYERS. No, thats all right.
You cant tell us because thats classified. Well, let me ask you,
when you hold a trial on terrorism, is that information classified
too?
Mr. HARRINGTON. No, sir.
Mr. CONYERS. Has anybody over there been thinking about
classifying the trials where this kind of information is routinely
sought and answered under oath in public, just like you are?
Mr. COBLE. Mr. Conyers, if you will spend just a bitMr. Bryant, if you will answer that, and then there is a vote on, so we need
toif you want to respond to that, Mr. Bryant.
Mr. CONYERS. What do you know about that, Mr. Harrington?
Mr. COBLE. Oh, Mr. Harrington.
Mr. HARRINGTON. Yes, sir. Theresof course in a trial its open
to the public and it is a public record.
Mr. CONYERS. In other words, this Committee would have to go
into a secret hearing to get the answer to my question from you.
Mr. HARRINGTON. I believe so.
Mr. CONYERS. Would you provide it then?

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Mr. HARRINGTON. Yes, sir.
Mr. CONYERS. All right. Mr. Chairman, I would like to seek immediately, next week, a hearing in which I could get a civil response to this question.
Mr. COBLE. Well, I cannot give you assurance on that right now,
John. I will talk to you after we adjourn here.
Mr. CONYERS. All right.
Ms. JACKSON LEE. Will the gentleman yield for one moment,
please?
Mr. CONYERS. Yes.
Ms. JACKSON LEE. Mr. Chairman, I would like for you to give the
gentleman another opportunity to answer Mr. Conyers. He said
that the pure number was classified information. Is he sure about
that? Does he want to leave this Committee with that as a fact?
Mr. HARRINGTON. I believe I am correct, that this is a classified
number, and that we would be happy to make it available to Congress
Mr. CONYERS. Okay, Mr. Harrington. Are there any numbers we
can ask you about, the letters being sent that you could tell us
about? I mean like if I ask you how many people work over there
in your department, is that a classified number?
Mr. HARRINGTON. Yes, it is.
Mr. CONYERS. It is?
Mr. HARRINGTON. Yes, sir.
Mr. CONYERS. If I ask you who the head of the department was,
would that be classified?
Mr. HARRINGTON. No, it would not.
Mr. CONYERS. Well, we are making progress.
Mr. COBLE. The gentlemans time has expired. I hate to cut you
off, John, but we have to go vote.
I thank the witnesses for your testimony. The Subcommittee very
much appreciates your contribution.
This concludes the legislative hearing on H.R. 3179, the Anti
Ms. JACKSON LEE. Mr. Chairman, I have something to put in the
record.
Mr. COBLE. Let me finish, and then I will recognize you.
The record will remain open for 2 weeks.
The gentleman from Virginia.
Mr. SCOTT. Two letters.
Mr. COBLE. For the record, without objection.
The lady from Texas?
Ms. JACKSON LEE. Yes, I have, I would like to submit an article
in USA Today, dated May 17, 2004, The Ordeal of Chaplain Yee.
Id like to submit that into the record.
Mr. COBLE. Without objection.
The Subcommittee stands adjourned, and thank you again, gentlemen, for your appearance.
[Whereupon, at 11:35 a.m., the Subcommittee was adjourned.]

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APPENDIX

MATERIAL SUBMITTED
LETTER

FOR THE

HEARING RECORD

CLARIFYING HEARING RESPONSES FROM THE

HONORABLE DANIEL J. BRYANT

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(39)

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41

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FROM

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LAURA W. MURPHY

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LETTER

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45

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FROM THE

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AMERICAN CIVIL LIBERTIES UNION (ACLU),

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47
OF THE HONORABLE SHEILA JACKSON LEE, A
IN CONGRESS FROM THE STATE OF TEXAS

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PREPARED STATEMENT

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54

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FROM THE

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HONORABLE BOB BARR, INCLUDING

MAR-JAC POULTRY, INC.

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81
PREPARED STATEMENT

OF

KATE MARTIN

This Statement is being submitted on behalf of the Center for National Security
Studies, a a civil liberties organization, which for 30 years has worked to ensure
that civil liberties and human rights are not eroded in the name of national security. The Center is guided by the conviction that our national security must and can
be protected without undermining the fundamental rights of individuals guaranteed
by the Bill of Rights. In our work on matters ranging from national security surveillance to intelligence oversight, we begin with the premise that both national security interests and civil liberties protections must be taken seriously and that by
doing so, solutions to apparent conflicts can often be found without compromising
either.
The Center has worked to protect the Fourth Amendment rights of Americans to
be free of unreasonable searches and seizures, especially when conducted in the
name of national security for more than twenty years. For example, the Center,
then affiliated with the American Civil Liberties Union, was asked to testify before
Congress when the Foreign Intelligence Surveillance Act was first enacted. In 1994,
when Congress amended the Act to include physical searches, Kate Martin, Director
of the Center was again asked to testify about the civil liberties and constitutional
implications of the legislation. Since September 11, 2001, the Center has been actively involved in evaluating the many changes to these authorities.
SUMMARY.

This Committee is currently considering H.R. 3179, the Anti-Terrorism Intelligence Tools Improvement Act of 2003. The bill contains two amendments to the
Foreign Intelligence Surveillance Act (FISA) 50 U.S.C. 18011863, which
amendments raise the most serious civil liberties concerns in the bill and which will
be the focus of this Statement. Both amendments are of dubious constitutionality
and would be counter-productive in the fight against terrorism. Both amendments
must be analyzed in light of the USA Patriot Acts substantial expansion of FISA
authorities, in particular the Patriot Acts elimination of the requirement that secret
FISA surveillance be limited to circumstances where the governments primary purpose is the gathering of foreign intelligence and not making a case against an individual. We commend this Committee for its commitment to vigorous oversight of the
effect of those Patriot Act changes and urge that consideration of further expansions
of FISA authority, such as are contained in HR 3179, await the Congress examination of those sunsetted provisions of the Patriot Act next year.
A. LONE WOLF AMENDMENT (HR 3179 SEC. 4).

The first such amendment would authorize FISA surveillance against non-US persons with no showing that they are acting on behalf of a foreign terrorist organization or government. This amendment tracks the first section of the leaked draft of
the Justice Departments Domestic Security Enhancement Act of 2003 (Patriot II),
although that draft would extend the provision to citizens. The provision is unconstitutional and unnecessary. While this provision has been described as the
Moussaoui fix, that rationale has been discredited by the Joint Inquiry of the Intelligence Committees. Nor is the amendment needed to allow surveillance of lone
wolf terrorists. As FBI officials have admitted, the government already has all the
authority it needs to conduct surveillance of the individuals described as lone wolf
terrorists.
Eliminating the foreign power nexus will render FISA surveillance unconstitutional. The amendment is fundamentally inconsistent with the Constitution because
it would authorize FISA surveillance against individuals with no showing that they
are acting on behalf of a foreign terrorist organization or government. In doing so,
the amendment would eliminate the constitutional requirement that the lesser
standards and privacy protections authorized for FISA surveillance be limited to use
against foreign powers and their agents.1 See In re Sealed Case No. 02001, slip op.
at 42 (Foreign Intelligence Surveillance Ct. of Rev. Nov. 18, 2002). While FISA requires no showing of probable cause of crime, it is constitutional in part because
it provides another safeguard . . . that is, the requirement that there be probable
1 Such (FISA) surveillance would be limited to a foreign power and an agent of a foreign
power. Senate Report (Judiciary Committee) No. 95604 (I and II), November 15, 22, 1977 [To
accompany S. 1566], at 16.

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cause to believe the target is acting for or on behalf of a foreign power. 2 Indeed,
adoption of the amendment could undermine criminal prosecutions of terrorists because the information obtained from a FISA surveillance under these procedures
may well be ruled inadmissible.
Not a Moussaoui Fix or otherwise necessary. This amendment has been described as necessary to provide a so-called Moussaoui fix. Zacarias Moussaoui was
detained three weeks prior to September 11 on suspicions of terrorist activity, but
FBI field agents were rebuffed by headquarters in their efforts to obtain a FISA
warrant to search his computer. Initially, the FBI claimed that they were not able
to obtain a warrant because of the requirement to demonstrate a link to a foreign
power. However, the Joint Inquiry of the Intelligence Committees concluded that
the failure to seek a warrant to search Moussaouis computer was the result of
FBIHQ personnel misunderstanding the law.3 Since the problems that the FBI experienced during the FISA application process resulted from misunderstanding the
law, there is no need for a legislative Moussaoiu fix. Current law does not require
that an individual be connected to a recognized terrorist group, but only to at least
one other individual engaged in planning terrorist activities in order to meet constitutional standards. Even if a legislative clarification of the agent of a foreign
power requirement were deemed advisable, this amendment performs surgery with
a butcher knife instead of a scalpel.
As pointed out by Senators Leahy, Grassley and Specter, the Justice Department
has not provided a single case, even in classified form, where the absence of this
provision resulted in the FBI being unable to conduct necessary surveillance. As
those Members said, In short, DOJ sought more power but was either unwilling
or unable to provide an example as to why. 4
Lone Wolf Terrorists Can Be Investigated With Existing Criminal Authority. Lone
wolf terrorists are a problem that can be handled by the criminal justice system.
If investigators possess reliable information that an individual is preparing to commit an act of terrorism, they have all the authority they need to get a criminal surveillance warrant. There is no need to use FISA. As Senator Rockefeller has pointed
out:
If we know for certain a person really has no foreign connections, if he or she
is a true lone wolfa foreign Unabomber, for examplethen it is a straightforward criminal investigation. There is no foreign intelligence to be gotten at
all, and that person is not a valid target under FISA. 5
Indeed, the FBI has admitted that that they do not need this change to get the warrants they need to protect against lone wolf attacks.6
This violation of Fourth Amendment standards could soon be made applicable to
citizens. The Fourth Amendments protections apply to searches and seizures in the
U.S. and protect those who are voluntarily here without regard to their citizenship.7
If the lesser standards for secret searches and surveillance embodied in this amendment were to be deemed constitutional by the Congress and the Executive, they
would be deemed constitutional when applied to citizens. Indeed the Justice Department proposed applying the lone wolf amendment to citizens in the draft of Patriot
II.
Treating Lone Wolfs as National Security Threats is Counter-Productive. Finally,
encouraging the use of valuable and already scarce investigative resources under
FISA to target individuals acting alone increases the risk not only of increased surveillance based on religious or political activities, but also that once again, the FBI
2 This holding was essential to the review courts holding that FISA as amended is constitutional because the surveillances it authorizes are reasonable. In re Sealed Case No. 02001, slip
op. at 56. Even a court with the broadest view of the governments surveillance power has found
the requirement that the government show probable cause that a target is acting for a foreign
power to be constitutionally based.
3 However, personnel at FBI Headquarters . . . misunderstood the legal standard for obtaining an order under FISA. Final Report, Inquiry of the Joint Intelligence Committees, Finding
5f.
4 Sens Leahy, Grassley and Specter, Interim Report on FBI Oversight in the 107th Congress
by the Senate Judiciary Committee: FISA Implementation Failures, Feb. 2003 at 11 n. 4.
5 Consideration of S. 113, United States Senate, May 8, 2003.
6 In private briefings, even FBI representatives have said that they do not need this change
in the law in order to protect against terrorism. They are getting all the warrants they want
under the current law. Senate Report 10840, at 12, Additional views by Senators Leahy and
Feingold. See also exchange between FBI Deputy General Counsel Bowman and Senator
Graham, Hearing of Senate Select Intelligence Committee, July 31, 2002.
7 See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court applied the
Fourth Amendment to the governments search of a KGB colonel, who came to the U.S. as a
Soviet spy.

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will miss those truly dangerous individuals, who because they act in concert with
other terrorists are thereby capable of inflicting grave damage to our national security, rather than ordinary, even though murderous crimes.
Alternative amendment. In the Senate, Senators Feinstein and Rockefeller, introduced an amendment, that would, in our view, address the concerns that have been
raised by the government, while leaving in place the agent of a foreign power requirement that is essential to the constitutionality of the statute. The FeinsteinRockefeller substitute states that when considering an application for surveillance
of a non-US person, the court may presume that a non-United States person who
is knowingly engaged in sabotage or international terrorism, or activities that are
in preparation therefor, is an agent of a foreign power under section 101(b)(2)(C).
This language would preserve the requirement that the FISA only applies to agents
of a foreign power and provide the court with some discretion regarding the designation of individual terrorists as agents of a foreign power.
B. SECTION 6: ALLOWING SECRET USE OF THE FRUITS OF SECRET SURVEILLANCE IN
IMMIGRATION PROCEEDINGS.

The second amendment to FISA included in HR 3179 would allow the government
to introduce in evidence or otherwise use the fruits of secret FISA surveillance in
any immigration proceeding without telling the individual that he had been overheard or subjected to a secret search, in violation of basic due process requirements.
The government already has this authority in cases of alleged alien terrorists per
the 1996 Alien Terrorist Removal Proceedings provisions. This proposed amendment
would extend those provisionsdeemed constitutionally suspect by this Committee
in the pastto all immigration proceedings against anyone including permanent
residents and others lawfully here.
Section 6 would eliminate the current requirement in FISA that the government
notify individuals whenever it intends to use evidence obtained through FISA in immigration proceedings. It would allow the government to use the fruits of secret
electronic surveillance, physical searches or pen registers to deport individuals without ever informing them that they have been subject to such surveillance or
searches, without allowing any opportunity to challenge the legality of the surveillance, and most importantly deprive individuals of the right to challenge the veracity and validity of the information through cross-examination. The government already has the authority to do all this in the case of individuals alleged to be alien
terrorists, under the 1996 amendments establishing the Alien Terrorist Removal
Proceedings. 8 U.S.C. sec. 15311537. HR 3179 would extend this authority, of dubious constitutionality even when applied against suspected terrorists, to any individual, including legal permanent residents, without even the minimal safeguards
provided in the 1996 law.
In doing so, the amendment would violate fundamental due process rights. As the
Judiciary Committee recognized in passing the Secret Evidence Repeal Act in 2000,
the Supreme Court has ruled that There are literally millions of aliens within the
jurisdiction of the United States. The fifth amendment, as well as the 14th amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law. Even one whose presence in this country is unlawful, involuntary or transitory is entitled to constitutional protection. Matthews v.
Diaz, 426 U.S. 67, 77 (1976).8
It is important to note that current law already provides only minimal procedural
protections whenever the government intends to enter into evidence, or otherwise
use or disclose information obtained from FISA electronic surveillance or physical
searches in any court proceeding against a person whose conversations were overheard or whose house or office was searched pursuant to FISA, 50 U.S.C. sec.
1806(c), 1825(d) and as noted above, these minimal protections are only available
to individuals not alleged to be alien terrorists. 8 U.S.C. sec. 1534(e).
Indeed, rather than further eroding existing minimal due process protections, especially in light of the Patriot Acts substantial expansion of FISA authorities to
allow secret surveillance when the governments primary purpose is not foreign intelligence gathering, but making a case against an individual, Congress should consider how to bring the use of FISA information in line with basic due process requirements in all proceedings, both civil and criminal. One way to do this would be
to insure that FISA information is treated like all other kinds of classified information and make the provisions of the Classified Information Procedures Act applica8 See H.R.Rep. No. 106981, Secret Evidence Repeal Act of 2000, 106th Cong., 2nd Sess. (Oct.
18, 2000).

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ble to FISA information, instead of the much less protective provisions currently in
FISA.
But, allowing the government to introduce in evidence or otherwise use the fruits
of FISA surveillance in any immigration proceedings without telling the individual
that he had been overheard on electronic surveillance or subjected to a secret
search, as proposed in HR 3179 would be a fundamental violation of both the Fourth
Amendment and constitutional due process requirements. FISA wiretaps and physical searches are at the core of the Fourth Amendments protection against unreasonable searches and seizures and that protection applies to all persons found within the U.S.9 The law has never permitted the government to conduct secret wiretaps
or searches of individuals and then secretly use the fruits of such secret surveillance
and searches against him without even informing him that he has been overheard
or searched.
There is no need to exempt immigration proceedings from the current rules regarding the use of FISA information because those rules already protect against the
disclosure of sensitive information, even in proceedings not involving alleged alien
terrorists. Current FISA law requires the government to notify an individual that
he has been targeted under FISA only when it seeks to use the information against
him. The government is not required to disclose anything more than the existence
of the FISA surveillance unless it either seeks to introduce FISA information into
evidence or the information is required to be disclosed to the defendant under the
Brady exculpatory evidence rule. Even then, of course, all the government provides
to the defendant is a record of his own telephone conversations or a copy of his own
papers. The government is not required to disclose and, it appears, has never disclosed the application for a FISA warrant to anyone. Indeed, information obtained
under FISA is accorded much greater secrecy than any other kind of classified information is accorded under the Classified Information Procedures Act (or, in our view,
than is consistent with constitutional due process requirements).
It is especially important that the existing minimal protections are available when
the government seeks to use FISA information to deport an individual. There are
many fewer due process protections available in immigration proceedings than in
criminal proceedings, even though immigration proceedings may result in substantial deprivations of liberty. Given the relaxed hearsay and due process requirements
already existing in immigration proceedings, this amendment would enable the government to use FISA information against an individual with no check as to whether
the information was illegally obtained and, even more significantly, absolutely no
check as to the accuracy or reliability of the information itself.

9 See Abel v. United States, 362 U.S. 217 (1960), in which the Supreme Court applied the
Fourth Amendment to the governments search of a KGB colonel, who came to the U.S. as a
Soviet spy.

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SUBMITTED BY THE HONORABLE SHEILA JACKSON LEE, A

IN CONGRESS FROM THE STATE OF TEXAS

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ARTICLE

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LETTER TO

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THOMAS J. HARRINGTON REQUESTING RESPONSES TO

POST-HEARING QUESTIONS

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SUBCOMMITTEE

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LETTER TO

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THOMAS J. HARRINGTON REQUESTING RESPONSES TO

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SUBCOMMITTEE

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POST-HEARING QUESTIONS 1 FOR THE HONORABLE DANIEL J. BRYANT FROM
SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

THE

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1 Responses to these questions had not been received at the time of the printing of this hearing.

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94
POST-HEARING QUESTIONS 2 FOR THE HONORABLE DANIEL J. BRYANT FROM THE HONORABLE ROBERT C. SCOTT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
VIRGINIA

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2 Responses to these questions had not been received at the time of the printing of this hearing.

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POST-HEARING QUESTIONS 3 FOR THE HONORABLE DANIEL J. BRYANT FROM THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF
MICHIGAN

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3 Responses to these questions had not been received at the time of the printing of this hearing.

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