{"id":6247,"date":"2001-09-24T12:00:48","date_gmt":"2001-09-24T12:00:48","guid":{"rendered":"http:\/\/multiracial.com\/?p=6247"},"modified":"2017-02-14T08:50:11","modified_gmt":"2017-02-14T08:50:11","slug":"hearing-on-s-1448","status":"publish","type":"post","link":"https:\/\/multiracial.com\/index.php\/2001\/09\/24\/hearing-on-s-1448\/","title":{"rendered":"Hearing on S.1448"},"content":{"rendered":"
\n
\n
\n
Hearing Type:<\/div>\n
\n
Open<\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n
<\/div>\n
<\/div>\n
\n
\n
\n
\n
Full PDF version here:\u00a0107449.pdf<\/a><\/span><\/div>\n<\/div>\n<\/div>\n<\/div>\n<\/div>\n
<\/div>\n
\n

Full Transcript<\/h2>\n
\n
\n
\n
\n
[Senate Hearing 107-449]\r\n[From the U.S. Government Printing Office]\r\n\r\n\r\n\r\n                                                        S. Hrg. 107-449\r\n\r\n                  S. 1448, THE INTELLIGENCE TO PREVENT\r\n                    TERRORISM ACT OF 2001 AND OTHER\r\n                LEGISLATIVE PROPOSALS IN THE WAKE OF THE\r\n                       SEPTEMBER 11, 2001 ATTACKS\r\n\r\n=======================================================================\r\n\r\n                                HEARING\r\n\r\n                               BEFORE THE\r\n\r\n                    SELECT COMMITTEE ON INTELLIGENCE\r\n\r\n                                 OF THE\r\n\r\n                          UNITED STATES SENATE\r\n\r\n                      ONE HUNDRED SEVENTH CONGRESS\r\n\r\n                             FIRST SESSION\r\n\r\n                                   ON\r\n\r\n  S. 1448 THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER \r\n  LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS\r\n\r\n                               __________\r\n\r\n                       MONDAY, SEPTEMBER 24, 2001\r\n\r\n                               __________\r\n\r\n\r\n      Printed for the use of the Select Committee on Intelligence\r\n\r\n\r\n Available via the World Wide Web: http:\/\/www.access.gpo.gov\/congress\/\r\n                                 senate\r\n                                 ______\r\n\r\n79-625              U.S. GOVERNMENT PRINTING OFFICE\r\n                            WASHINGTON : 2002\r\n____________________________________________________________________________\r\nFor Sale by the Superintendent of Documents, U.S. Government Printing Office\r\nInternet: bookstore.gpr.gov  Phone: toll free (866) 512-1800; (202) 512-1800  \r\nFax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001\r\n\r\n                    SELECT COMMITTEE ON INTELLIGENCE\r\n\r\n        .........................................................\r\n\r\n                      ONE HUNDRED SEVENTH CONGRESS\r\n\r\n                              ----------                              \r\n                     BOB GRAHAM, Florida, Chairman\r\n               RICHARD C. SHELBY, Alabama, Vice Chairman\r\nCARL LEVIN, Michigan                 JON KYL, Arizona\r\nJOHN D. ROCKEFELLER IV, West         JAMES M. INHOFE, Oklahoma\r\n    Virginia                         ORRIN G. HATCH, Utah\r\nDIANNE FEINSTEIN, California         PAT ROBERTS, Kansas\r\nRON WYDEN, Oregon                    MIKE DeWINE, Ohio\r\nRICHARD J. DURBIN, Illinois          FRED THOMPSON, Tennessee\r\nEVAN BAYH, Indiana                   RICHARD G. LUGAR, Indiana\r\nJOHN EDWARDS, North Carolina\r\nBARBARA A. MIKULSKI, Maryland\r\n\r\n              THOMAS A. DASCHLE, South Dakota, Ex Officio\r\n                  TRENT LOTT, Mississippi, Ex Officio\r\n                                 ------                                \r\n                     Alfred Cumming, Staff Director\r\n                  Bill Duhnke, Minority Staff Director\r\n                    Kathleen P. McGhee, Chief Clerk\r\n\r\n\r\n                            C O N T E N T S\r\n\r\n                              ----------                              \r\n                                                                   Page\r\nHearing held in Washington, DC:\r\n    Monday, September 24, 2001...................................     1\r\n\r\n                            STATEMENTS\r\n\r\nGraham, Hon. Bob, a U.S. Senator from the State of Florida.......     1\r\nRockefeller IV, Hon. John D., a U.S. Senator from the State of \r\n  West Virginia, prepared statement..............................     6\r\nShelby, Hon. Richard C., a U.S. Senator from the State of Alabama     4\r\n\r\n                            WITNESSES\r\n\r\nBerman, Jerry, executive director, Center for Democracy & \r\n  Technology.....................................................    54\r\n    Prepared statement...........................................    48\r\nDivoll, Vicki, General Counsel, Select Committee on Intelligence; \r\n  accompanied by Steven Cash, Counsel, Select Committee on \r\n  Intelligence...................................................     6\r\nHalperin, Morton H., chair, Advisory Board and Kate Martin, \r\n  director, on behalf of the Center for National Security \r\n  Studies, prepared statement....................................    56\r\nKris, David, Associate Deputy Attorney General, Department of \r\n  Justice; accompanied by: Larry Parkinson, General Counsel, \r\n  Federal Bureau of Investigations...............................    16\r\nMartin, Kate, director, Center for National Security Studies.....    63\r\nMcNamara, Jr., Robert, General Counsel, Central Intelligence \r\n  Agency.........................................................    17\r\nSmith, Jeffrey H., partner, Arnold and Porter....................    46\r\n    Prepared statement...........................................    41\r\n\r\n \r\n S. 1448, THE INTELLIGENCE TO PREVENT TERRORISM ACT OF 2001 AND OTHER \r\n  LEGISLATIVE PROPOSALS IN THE WAKE OF THE SEPTEMBER 11, 2001 ATTACKS\r\n\r\n                              ----------                              \r\n\r\n\r\n                       MONDAY, SEPTEMBER 24, 2001\r\n\r\n                                       U.S. Senate,\r\n                          Select Committee on Intelligence,\r\n                                                    Washington, DC.\r\n    The committee met, pursuant to notice, at 3:05 p.m., in \r\nroom SH-216, Hart Senate Office Building, the Honorable Bob \r\nGraham (Chairman of the Committee) presiding.\r\n    Committee Members Present: Senators Graham, Rockefeller, \r\nFeinstein, Wyden, Durbin, Bayh, Edwards, Mikulski, Shelby, Kyl, \r\nDeWine, Thompson, and Lugar.\r\n\r\n  OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE \r\n                        STATE OF FLORIDA\r\n\r\n    Chairman Graham. I call the meeting to order.\r\n    This meeting of the Senate Select Committee on Intelligence \r\nis for the purpose of hearing testimony on legislation that was \r\nintroduced on Friday relative to law changes as it relates to \r\nAmerican intelligence and counterterrorism.\r\n    The horrific events of September 11 demonstrate America's \r\nvulnerability to international terrorism. But the warning signs \r\nof our vulnerability have been evident for some time--the \r\nbombing of the U.S. Embassy and the Marine Barracks in Beirut \r\nas long ago as 1983; the 1993 bombing of the World Trade \r\nCenter; the 1996 bombing of Khobar Towers in Saudi Arabia; the \r\n1998 bombing of the U.S. Embassies in Kenya and Tanzania; and \r\nlast year's terrorist attack against the U.S.S. COLE in Yemen.\r\n    These and other terrorist incidents have made it \r\nincreasingly important for the Senate Select Committee on \r\nIntelligence to focus on the adequacy of the Intelligence \r\nCommunity's response to the terrorist threat.\r\n    Our Committee has called this hearing today to discuss with \r\ngovernment officials and outside experts and civil libertarians \r\nthe provisions of S. 1448, The Intelligence to Prevent \r\nTerrorism Act of 2001, which Senator Feinstein and I introduced \r\nlast Friday, along with co-sponsors Senators Rockefeller, Bayh \r\nand Nelson of Florida. We will also address today selected \r\nprovisions of the proposal which was sent to the Congress by \r\nAttorney General John Ashcroft on Wednesday, September 19. The \r\nAttorney General provisions we will address today are those \r\nthat fall within the jurisdiction of the Intelligence \r\nCommittee.\r\n    A number of panels and commissions in recent years all have \r\nmade clear that any effort to improve the governmentwide \r\napproach to terrorism must take into account every facet of the \r\nissue--detection, prevention, consequence management, crisis \r\nmanagement, and law enforcement, diplomatic and military \r\nresponses. We, as a government, need to address these issues in \r\na coordinated fashion so that priorities may be set, resources \r\nallocated, and government structures changed, if necessary, to \r\nserve that overall strategy. A counterterrorism intelligence \r\nprogram must be designed within that larger context of a \r\ngovernment counterterrorism program. We must have a centralized \r\nauthority for managing the intelligence components of that \r\ncounterterrorism policy. The Director of Central Intelligence \r\nneeds to perform that intelligence role for the U.S. \r\nGovernment.\r\n    In the wake of the September 11 incidents, we must begin to \r\nact on myriad aspects of this problem. Accordingly, last \r\nFriday, in addition to the legislation I have already \r\nreferenced, I introduced another bill, S. 1449 which creates a \r\nNational Office for Combating Terrorism within the White House. \r\nSenator Feinstein and I and others have been working on this \r\nproposal for several months. We believe, along with the other \r\nco-sponsors--Senators Rockefeller, Durbin, Mikulski, Bayh, and \r\nNelson of Florida--that for a coordinator of the forty-plus \r\nFederal agencies that must play a role in counterterrorism that \r\nthe office should be with the following characteristics.\r\n    It should be created in statute so as to support the \r\nLegislative and Executive branches. It should have a Senate-\r\nconfirmed director so that he will have the stature appropriate \r\nfor the position and should have budget authority over that \r\nportion of the various agencies' budgets which relate to \r\ncounterterrorism so that the director can set priorities and \r\nallocate the resources appropriately against those priorities. \r\nAnd finally, the director should examine the overall structure \r\nof the U.S. Government to deal with terrorism prevention and \r\nresponse and, if necessary, recommend restructuring or merging \r\nof agencies and functions.\r\n    We believe that the President's Executive order was a \r\nsignificant step forward to achieve these objectives, and that \r\nthe President's selection of Governor Tom Ridge is an excellent \r\nchoice to coordinate this enormous and critical effort by the \r\nU.S. Government. We want to give him the authority and the \r\ntools he needs to be successful.\r\n    In this hearing today we will not be discussing the \r\nNational Office for Combating Terrorism. The Committee will \r\nhave hearings on that bill in the near future in conjunction \r\nwith the other committees of jurisdiction, such as the Senate \r\nCommittee on Governmental Affairs.\r\n    Today we want to focus on the issues that are most critical \r\nfor immediate resolution by the Congress. The Attorney General \r\nhas urged expedited attention to his series of proposals. Our \r\naction today and the Judiciary Committee's hearing tomorrow, \r\nwhich will focus on those matters in its jurisdiction, are \r\nindicative of the close collaboration between the \r\nAdministration and the Congress on these critical issues.\r\n    The bill that we will discuss today includes a number of \r\nstatutory provisions relating to clarifying the authorities of \r\nthe Director of Central Intelligence to combat terrorism; \r\nupdating the laws governing electronic surveillance to collect \r\nforeign intelligence so as to improve collection against \r\ninternational terrorist targets; and enhancing the ability of \r\nlaw enforcement and intelligence agencies to share critical \r\ninformation relating to the plans and intentions of terrorists.\r\n    This legislation represents the culmination of months of \r\neffort by many Members of this Committee and other Members of \r\nthe Senate. I would like to particularly recognize Senator \r\nFeinstein and Senator Kyl for the effort that they have \r\ninvested in this legislation.\r\n    My colleagues and I are committed to the substance of these \r\nprovisions because we believe that they enhance intelligence \r\ncollection without unreasonably diminishing our civil \r\nliberties. We welcome the comments from the witnesses today to \r\nhelp us ensure that the language of these provisions will \r\naccomplish both of those goals. We hope that the experts at the \r\nJustice Department, FBI and CIA will work with our staff to \r\nmake certain that we have drafted these provisions in an \r\neffective manner.\r\n    In addressing these issues, we must be mindful that the \r\nterrorist threat to the United States is not a crisis; it is a \r\ncancerous condition which we will have to deal with over an \r\nextended period of time. Many people liken the war that we are \r\nnow commencing against terrorism to the war that we have been \r\nwaging over the past three-quarters of a century against \r\norganized crime. Much of the progress we have made in the war \r\nagainst organized crime is a direct result of changing laws to \r\nenhance our abilities to deal effectively with this long- term \r\nscourge. In a similar fashion, the legislation that we are \r\nconsidering today would allow us to more effectively deal with \r\nterrorism as a long-term threat.\r\n    Many of the proposals in our bill deal with electronic \r\nsurveillance to collect foreign intelligence inside the United \r\nStates, as authorized under the Foreign Intelligence \r\nSurveillance Act of 1978. This bill will bring those collection \r\ncapabilities into the 21st century. Wiretapping laws relating \r\nto criminal collection, as contrasted to foreign intelligence \r\ncollection, have already been updated in many respects. This \r\nbill applies the same Constitutional and civil liberties \r\nprotections in the Foreign Intelligence Surveillance Act \r\ncontext that we are currently applying in the criminal context.\r\n    Vicki Divoll, our Committee's General Counsel, will walk \r\nthrough provisions of the bill in a moment.\r\n    Later we will be asking our witnesses for their views on \r\nboth the provisions of S. 1448, as well as select provisions of \r\nAttorney General Ashcroft's proposed legislative program which \r\nare relevant to the Intelligence Community.\r\n    After Ms. Divoll has completed her outline of the \r\nprovisions in S. 1448, we will turn to our first panel. But \r\nfirst Vice Chairman Shelby.\r\n\r\n         OPENING STATEMENT OF HON. RICHARD C. SHELBY, \r\n             U.S. SENATOR FROM THE STATE OF ALABAMA\r\n\r\n    Vice Chairman Shelby. Thank you. Thank you, Mr. Chairman. \r\nThank you for calling this hearing. Mr. Chairman, Members of \r\nthe Committee, I have a few observations.\r\n    For many years, this Committee has been emphatic regarding \r\nthe critical importance of our intelligence apparatus. It is \r\nour first line of defense in the war against terrorism and it \r\ncould be our first line of offense.\r\n    Granted, there are some things that we can do in the short \r\nterm to improve our ability to address this threat and I \r\nbelieve we will do them. We have already provided additional \r\nfunds and we will grant, I believe, the executive branch new \r\nlegal authorities through legislation that we are discussing \r\ntoday.\r\n    There is a more fundamental problem, however, that cannot \r\nbe fixed by quickly drafted legislation or emergency funding. \r\nOur current national security structure is a legacy of the cold \r\nwar. The Department of Defense and the Intelligence Community \r\nwere organized to counter the Soviet threat and they remain in \r\nessentially the same form today. The failure of our national \r\nsecurity institutions to transform and adapt is a direct result \r\nof nearly a decade of inaction and neglect in light of a \r\ndramatically changing world situation.\r\n    Changing circumstances, as we all know, demand a change in \r\nstrategy. If we fail to develop a comprehensive national \r\nstrategy to achieve clear objectives, there is no chance of us \r\norganizing our Government to defeat successfully the terrorist \r\nthreat.\r\n    Our Nation derives its guiding principles from the \r\nDeclaration of Independence and the Constitution. Our Federal \r\nGovernment, in accordance with these guiding principles, \r\ndevelops its objectives and strategic plans in light of the \r\ncurrent world situation.\r\n    After World War II, the United States faced an entirely new \r\nworld situation. We went from a relatively isolated and \r\ndisengaged player on the world stage to the central figure in a \r\nglobal clash between freedom and communist tyranny. Just as the \r\ngrowing Soviet menace and its developing nuclear capability \r\ngave rise to President Truman's reexamination of our national \r\nobjectives and national security strategy, so must the attacks \r\non New York and Washington give rise the to same type of \r\nexamination.\r\n    The result of Truman's reexamination was a document--NSC-\r\n68--that formed the basis of our national security strategy and \r\nour plans to achieve it for nearly the next half century. The \r\nSoviet Union subsequently collapsed not only because it was \r\nfundamentally corrupt, but because the United States had a \r\nclear purpose and vision of its place in the world and a plan \r\nto achieve it.\r\n    I believe we now need that same type of vision and a plan. \r\nThere have been many commissions, studies and reports on every \r\naspect of our national security policies and structure. But, \r\nthey all have operated in the same vacuum created by the lack \r\nof any clear statement of our national purpose in the post cold \r\nwar world.\r\n    The President has already begun the reexamination and taken \r\nsome very important steps. Now, I believe, he needs to \r\nmemorialize his vision and assign responsibility and organize \r\nthe Federal Government to achieve our national objectives.\r\n    Why is this important for the Intelligence Community? We \r\nall know very well the debilitating effects that turf battles \r\nand parochialism can have on our ability to organize and \r\naccomplish anything at all. These same maladies have often \r\nparalyzed the Intelligence Community. The Intelligence \r\nCommunity is still organized in tightly controlled ``stove-\r\npiped'' organizations that often refuse or are unable to share \r\ninformation with each other for any number of reasons.\r\n    The new threats that we face require an intelligence \r\norganization that is organized and managed in a manner that \r\nrecognizes its fundamental purpose. That purpose is to collect, \r\nanalyze and disseminate information. Our intelligence apparatus \r\nis first and foremost an information enterprise. Any effective \r\ninformation enterprise by definition must be networked, be \r\ninteractive, agile, flexible and focused.\r\n    The agencies and elements of the Intelligence Community are \r\nanything but agile. They are often paralyzed by their \r\nbureaucratic structure. Perhaps the rigid structure was \r\nappropriate for monitoring the Soviet Union, but I believe it \r\nis antithetical to meeting today's threats. It is particularly \r\nill suited for using modern information technology.\r\n    The classic bureaucracy is designed to limit interaction \r\nbetween its people. We will never be able to defeat the \r\nterrorist threat without the ability to share rapidly all \r\nsources of information on terrorist activities and then take \r\ndecisive action.\r\n    As we saw in the bombing of the U.S.S. COLE, we may not get \r\nspecific tactical warning. But, we may be able to formulate a \r\nclearer picture of the threat if our analysts have access to \r\nevery available piece of information and are allowed to \r\nsynthesize and disseminate this information. This type of \r\ninteractive and dynamic community is possible if we have strong \r\nleadership guided by a clear vision. But, it will take time, \r\nand we don't have time.\r\n    I believe that we need to embrace an unconventional \r\napproach. The terrorists think unconventionally. We need new \r\nthinking and new people looking at this problem. We need our \r\ncountry's most talented and capable people leading the effort.\r\n    The old ways, I would submit, have failed us time and again \r\nin the new threat environment that we're in today. The examples \r\ncontinue to grow. We all know we've had some successes, but \r\nlet's talk about the problems--the attack on Khobar Towers; the \r\nfirst attack on the World Trade Center; the attack on the \r\nU.S.S. Cole; the attacks on our embassies in Africa; and the \r\nattacks on September 11.\r\n    We have shed enough blood and squandered enough treasure. \r\nWe need a rapid response. And, I'm afraid that the calcified \r\nbureaucracies of our national security institutions are not \r\ncapable of rapid change. I believe we need to start over with a \r\nnational commitment of talent and resources much like \r\nPresident's Kennedy's effort to take us to the moon. We need an \r\naction-oriented approach where success is measured in the \r\namount of terrorist cells destroyed or disabled, not on how \r\nmany reports are issued.\r\n    I don't know if this new approach will spawn a new \r\norganization, but we must begin to think, as we say, outside \r\nthe box. The answers to this problem are out there and we need \r\nto bring them in, nurture and support them and let them \r\nflourish undeterred by the stranglehold of government \r\nbureaucracies. Our Intelligence Community, as presently \r\nconstituted, is virtually incapable of such an effort. As we \r\nlearned on September 11, the threats are immediate as must be \r\nour response.\r\n    We can talk about legislative fixes and appropriating more \r\nmoney to feed our failed institutions. I've done some of both. \r\nWhat we cannot do is continue to ignore our limitations and our \r\nvulnerabilities. If we fail to marshal our Nation's collective \r\ntalents and resources behind this effort, we are just waiting \r\nfor the next attack.\r\n    Thank you, Mr. Chairman.\r\n    Chairman Graham. Thank you, Mr. Vice Chairman.\r\n    [The prepared statement of Senator Rockefeller follows:]\r\n\r\n  Prepared Statement of Senator John D. Rockefeller IV, U.S. Senator \r\n                           from West Virginia\r\n\r\n    Thank you Mr. Chairman. I am grateful for the leadership you have \r\nshown over the past 2 weeks as the Congress and the American people \r\nhave struggled to come to grips with the consequences of the September \r\n11 attacks. The legislative package you and Senator Feinstein \r\nintroduced on Friday is just one example of that leadership. You have \r\nalso provided the kind of measured, temperate analysis of the situation \r\nthat has helped reassure the American people that the Congress is not \r\nonly aware of the problems we face, but is working expeditiously to \r\nimplement meaningful and well thought out solutions.\r\n    Your legislation is an example of that forward looking, measured \r\napproach. This Bill, S. 1448, is the product of several months of work. \r\nI know you and your staff have reached out to other relevant Committees \r\nin the Senate and have shared language and held discussions with the \r\nAdministration on all of these provisions. This effort, along with the \r\npriorities you have set for the Intelligence Committee and the funding \r\nincluded in the annual Intelligence Authorization Bill, provides the \r\ngroundwork to have a meaningful impact on intelligence collection \r\nagainst terrorists.\r\n    The challenge we have now is to evaluate each of these proposed \r\nchanges, not as a response to recent events, but for how they will help \r\nour intelligence and law enforcement communities deal with terrorism in \r\nthe long term. As we bolster those efforts to protect America from \r\nterrorist attacks, we must make sure we do not sacrifice civil \r\nliberties for short term security. Changes we make in the next few \r\nweeks will be with us long after we have vanquished Osama bin Laden. \r\nTherefore, those changes must be consistent with our underlying values.\r\n\r\n    Chairman Graham. Ms. Divoll.\r\n\r\n   STATEMENT OF VICKI DIVOLL, GENERAL COUNSEL, SENATE SELECT \r\n    COMMITTEE ON INTELLIGENCE; ACCOMPANIED BY: STEVEN CASH, \r\n        COUNSEL, SENATE SELECT COMMITTEE ON INTELLIGENCE\r\n\r\n    Ms. Divoll. Thank you, Mr. Chairman, Mr. Vice Chairman. I'd \r\nlike to introduce Steve Cash, who is also a counsel on the \r\nCommittee and works on counterterrorism issues for the \r\nCommittee.\r\n    I'm just going to walk through briefly the provisions in \r\nthe Graham-Feinstein bill, S. 1448. I'll start with title I, \r\nClarification of Authorities of the Director of Central \r\nIntelligence.\r\n    Section 101. The purpose of that provision is to put the \r\nDCI in his Intelligence Community hat, not his hat as head of \r\nthe CIA, this Intelligence Community role in a position to \r\nmanage the information collected under the Foreign Intelligence \r\nSurveillance Act. Currently the DCI manages the strategies for \r\ncollecting using every other tool available to him. The FISA \r\ntool is a critical tool used inside the United States, but it's \r\na critical tool for collecting foreign intelligence.\r\n    The provision is designed to put the DCI at the very front \r\nend and the very back end of that process. Operational efforts \r\nwould still be conducted by the FBI, because this is a domestic \r\nactivity. The specific targeting would be done by the FBI. But \r\nthe DCI would perform with respect to FISA the same function he \r\nperforms in other areas, which is to set an overall strategy \r\nfor how this valuable resource should be used, how it should be \r\nallocated, how it should be prioritized, and how it would fit \r\nin with the rest of the collection--would it be redundant, \r\nwould it be in addition to the other types of collection that \r\nwe have.\r\n    So he would be responsible for setting those priorities and \r\nproviding a strategy to the FBI for them to use in implementing \r\nthat strategy.\r\n    He would also find himself at the end of the process. As a \r\nVice Chairman mentioned, all the information collected of \r\nforeign intelligence value has to get to the analysts and has \r\nto be analyzed as part of all the information coming in and has \r\nto then be processed and make it to the policymaker\/consumer so \r\nthey can act on it.\r\n    FISA needs to be part of that process, and this would put \r\nthe DCI in charge of making sure that the information is \r\ntracked to the proper analysts, is analyzed and makes it into a \r\ndisseminated product to the community. We feel that that's an \r\nimportant role for him to play.\r\n    The second provision is more of a technical change but also \r\nimportant in the sense that in looking at the definitions of \r\nthe National Security Act of 1947 you see that the definition \r\nof counterintelligence includes international terrorism, but \r\nthe definition of foreign intelligence does not. The purpose of \r\nthis provision is to clarify that. The purpose is not to \r\nrearrange the responsibilities between the FBI and the CIA with \r\nrespect to collection and activities. The purpose is to clarify \r\nin the law that of course the DCI has a role in international \r\nterrorism overseas.\r\n    As you play out the National Security Act through its \r\nprovisions, we want to make sure that that is clarified in the \r\nlaw.\r\n    Section 103 is an attempt to deal with the much-publicized \r\nissue of recruitment of terrorists who have unsavory pasts, \r\nwhether it be violent crimes or human rights abuse. Everyone \r\nseems to acknowledge that those are the types of people who \r\nwould be most helpful in this effort to collect information, \r\nhuman source intelligence information. But there is a fear that \r\nthe regulations at the Agency, the CIA, have a chilling effect \r\non efforts in the field to recruit those types of people.\r\n    The effort here is to clarify in law, if the Congress \r\naccepts this provision, wants to send a message to the field \r\nthat this is lawful, to recruit such people and establish \r\nrelationships with them. This provision does not attempt to \r\ndictate to the DCI or the Executive branch what types of \r\napproval processes they need to have to make sure the officers \r\ndo their work appropriately. It merely is designed to State in \r\nlaw that this is a lawful activity.\r\n    Section 104 is an attempt to give a break to the \r\nintelligence agencies who prepare so many reports for Congress \r\non intelligence matters. Given that they are busy with other \r\nthings now, we thought we would give them an extension until \r\nFebruary 1 and they can have an extension beyond that if they \r\ncertify to the Committee that the people who prepare those \r\nreports are working on counterterrorist matters.\r\n    Title II deals with several aspects of electronic \r\nsurveillance. Section 201 is meant to deal with the definition \r\nof communications under FISA. The purpose of this provision is \r\nto carve out of that definition communications that aren't \r\nreally content-based, that wasn't intended when the provision \r\nwas enacted to be part of the FISA process.\r\n    These would be the types of communications where, for \r\nexample, a hacker tells his computer to tell another computer \r\nto do something or not do something. One example we've given is \r\nif a hacker in a foreign country communicated with the computer \r\nof the Hoover Dam, for example, and told it to open the flood \r\ngates, that type of communication is not content based and \r\nreally has no purpose in requiring a FISA order. So the FBI \r\nwould be able to collect that type of communication without \r\nhaving to get a FISA order.\r\n    Sections 202 and 203 are both provisions that we've had in \r\nthis bill for some time but that are also part of Attorney \r\nGeneral Ashcroft's package. Section 202 speaks to the duration \r\nof surveillance and physical search orders under FISA against \r\nnon-U.S. persons, including terrorists operating as agents of \r\nforeign powers inside the United States. The current law \r\nrequires the Department of Justice to renew those applications \r\nevery 90 days for electronic surveillance and every 45 days for \r\nphysical searches. This provision would extend both of those to \r\n1 year and would hopefully free up the lawyers at the \r\nDepartment of Justice and the FBI also to work on new FISAs \r\nrather than having to constantly go back and renew old FISAS.\r\n    Section 204 is a provision that clarifies in law that \r\nForeign Intelligence Surveillance Act collections can occur \r\nsimultaneously with title III collections in the criminal \r\narena. This would say that there are two courts that deal with \r\nthose. The prosecutors would have to make the showing required \r\nunder title III for a criminal wiretap, and the FISA lawyers \r\nwould have to make the showing to the FISA court that it meets \r\nthe standards of FISA.\r\n    In some cases it makes sense, if the lawyers decide that it \r\ndoes, to do both, and as long as both standards are met, both \r\ncourts approve it, we felt it was useful to clarify that in the \r\nlaw.\r\n    Title III is entitled----\r\n    Senator Feinstein. Mr. Chairman, excuse me. She skipped \r\nsection 203, which I think is an important section.\r\n    Ms. Divoll. Oh, thank you, Senator, yes.\r\n    That is a provision that is also in the Ashcroft proposal. \r\nThis is a provision that tries to get FISA up to date with the \r\ncriminal context. In criminal wiretap law there is something \r\ncalled a roving wiretap that's been accepted as an appropriate \r\napproach. This would allow that same type of targeting to be \r\ndone under FISA. If it's a situation where a terrorist target \r\nis trying to defeat the collection against him by throwing away \r\na phone and picking up a new phone or moving or whatever method \r\nhe would use, this would allow that FISA to continue on to the \r\nother technology rather than having to be re-applied to the \r\nFISA court.\r\n    Thank you, Senator.\r\n    Section 301. In law currently there is a requirement that \r\nofficers in the intelligence community agencies in the course \r\nof their duties, if they come across evidence of a crime, a \r\nU.S. crime, they are required by law to report that to the \r\nAttorney General. There's an elaborate process in the agencies \r\nto do that. This would be in a sense a reverse crimes reporting \r\nrequirement.\r\n    This requires law enforcement officers in the course of \r\ntheir duties, if they come across foreign intelligence \r\ninformation, they would also have a duty to provide that to the \r\nDCI, again so that all-source reporting, all of the information \r\navailable to the U.S. Government is used properly and \r\neffectively to counter this threat and other threats.\r\n    Section 302, the Foreign Terrorist Asset Tracking Center. \r\nThis is a reporting requirement. It's not a mandatory \r\nrequirement. It asks the DCI, the Director of Central \r\nIntelligence, and the Secretary of Treasury to work together \r\nand by February 1 come up with a proposal to implement in the \r\nDepartment of Treasury or wherever they see fit an operation \r\nthat would track terrorist financial \r\nnetworks and transactions and provide that information to the \r\nIntelligence Community, which would hopefully provide valuable \r\ninformation about relationships within terrorist groups and the \r\ncommunications among them and the transfers of money. So that's \r\nrequired as a report by February 1.\r\n    Section 303 is the National Virtual Translation Center. One \r\nof the key problems that's been highlighted by many is the fact \r\nthat we collect vast amounts of intelligence, both technically \r\nand with human sources, and that we don't have the capabilities \r\nto translate that quickly and efficiently get it to the \r\nanalysts and the operators in the field who need it.\r\n    This provision would require the establishment of a center \r\nthat really is not a bricks and mortar kind of thing. It's a \r\nvirtual center that would link up, through a secure data base, \r\nthe vast translation resources available in our country. People \r\nwho live in different parts of the country and have unusual \r\ntranslation and language capabilities could be hooked up, the \r\ninformation could be put in a data base after it's collected, \r\nsent to them They would process it, put it back in the data \r\nbase. It gets to the analysts and ultimately to the consumer in \r\nan efficient way.\r\n    Section 304 is a training provision that we think augments \r\nmany of the other provisions that I've spoken about. It \r\nprovides for training of Federal, State and local officials who \r\nmay come across in their duties foreign intelligence \r\ninformation but wouldn't know how to recognize it. They would \r\nbe trained to know what to look out for and who to call to get \r\nit into the Federal Government's hands.\r\n    It also would train them to be better consumers of \r\nintelligence so in the event of a crisis such as the one we \r\njust had, when the Federal Intelligence Community reaches out \r\nto State and local they will have a point of contact and a \r\nframe of reference and be speaking the same language. So that's \r\nthe purpose of that provision.\r\n    Thank you.\r\n    Chairman Graham. Are there any questions of Ms. Divoll?\r\n    Senator Shelby.\r\n    Vice Chairman Shelby. Ms. Divoll, did you go into section \r\n103? You mentioned that, did you not?\r\n    Ms. Divoll. Yes.\r\n    Vice Chairman Shelby. This deals with the establishment and \r\nmaintenance of intelligence relationships to acquire \r\ninformation on terrorists and terrorist organizations. With \r\nrespect to section 103 of this legislation, under applicable \r\nlaw and current CIA guidelines who can our intelligence \r\nofficers recruit?\r\n    Ms. Divoll. The intelligence officers recruit those that \r\nthey feel are appropriate to meet the requirements they have \r\nbeen given, and then there's an elaborate process within the \r\nAgency to vet those recruitments and approve them up through \r\nthe chain of the Agency.\r\n    Vice Chairman Shelby. Does section 103 present any \r\nseparation of powers issue? If so, how do you resolve them in \r\nfavor of the legislative branch?\r\n    Ms. Divoll. Well, that's a good question.\r\n    Vice Chairman Shelby. I guess the first question is, do \r\nthey present any separation of powers issues?\r\n    Ms. Divoll. I don't think so, Senator. One approach \r\nrecommended by some to deal with these regulations within the \r\nAgency--these are classified regulations but essentially \r\nthey're an approval process to make sure that those who would \r\nbe recruited who have difficult pasts, that there's enough \r\napproval process up the chain to balance the risks of working \r\nwith someone like that against the gains.\r\n    To just rescind those regulations by statute I think would \r\npresent separation of powers problems because you are \r\nessentially telling the Executive branch what to do in their \r\nown internal approval processes.\r\n    Vice Chairman Shelby. We would be telling the Executive \r\nbranch what to do and how to do it.\r\n    Ms. Divoll. Yes, Senator. We thought that this didn't quite \r\ngo that far and this just states in law that this type of \r\nrecruitment is lawful and doesn't attempt to tell the Executive \r\nbranch what types of approvals they would need to make sure \r\nthat it's done properly.\r\n    Vice Chairman Shelby. But the Executive branch on their own \r\ncould change that as they changed it one time before.\r\n    Ms. Divoll. Yes, Senator.\r\n    Vice Chairman Shelby. I'd like to ask, Mr. Chairman, Mr. \r\nCash a question if I could on section 303, the National Virtual \r\nTranslation Center. My question concerns the establishment of \r\nthis center.\r\n    Mr. Cash, as a former intelligence officer, you know how \r\nimportant language skills are in the gathering, analysis and \r\ndissemination of intelligence. Could you elaborate on what this \r\ncenter would do? In other words, how would it assist us in \r\npreventing the next terrorist attack?\r\n    Mr. Cash. Mr. Vice Chairman, if I could answer that \r\nquestion with an example, if an intelligence officer sitting at \r\nLangley acquires, through whatever means, a document in a \r\nlanguage like Urdu, the only Urdu translator who may be \r\navailable right then, that day, may be living in Seattle. It's \r\ngoing to be very hard to fly him to Washington and it's going \r\nto be hard to take the document to Seattle.\r\n    The idea of the National Virtual Translation Center is that \r\nthese resources would be linked through an internet-like \r\nmechanism, secure of course, which would allow the translation \r\nto take place in Seattle, the intelligence officer in Langley \r\nto read the results, perhaps share it with a colleague in \r\nLondon or France or some other country, and then maybe with an \r\nFBI agent in New York, all in near-real time, all without \r\nmoving any human beings anywhere.\r\n    So instead of having to wait days to translate and read \r\ncritical information, it could be minutes.\r\n    Vice Chairman Shelby. I like the idea and I could see how \r\nit could work. Is there a projected cost for this center? As an \r\nappropriator, I wondered if you had talked to Senator Inouye or \r\nSenator Stevens about this.\r\n    Mr. Cash. The intention here is that, given the guidance \r\nthat this statute would contain, that the DCI in his community \r\nrole would take a look at this problem, with the general \r\nguidance we've given him, which is we would like you to \r\nestablish such a center, and then would be able to come back to \r\nthe Congress in a relatively short amount of time and say this \r\nis what it takes to get it done, this is how much money I will \r\nneed to get it done, and this is how long it will take.\r\n    Vice Chairman Shelby. What you'd be doing really, in a \r\nsense, is utilizing the latest technology to take advantage of \r\nany weapon deficiencies you might have.\r\n    Mr. Cash. That's exactly it--Napster for spies.\r\n    Vice Chairman Shelby. Thank you, Mr. Chairman.\r\n    Chairman Graham. Thank you.\r\n    Senator Edwards. Mr. Chairman.\r\n    Chairman Graham. Senator Edwards.\r\n    Senator Edwards. Ms. Divoll, I wonder if you would, for all \r\nof our purposes, contrast the provisions in this legislation \r\nwith respect to information-sharing between the FBI and the CIA \r\nwith the Administration's proposals and comment on why your \r\nlegislation is different.\r\n    Ms. Divoll. Certainly, Senator. There are some differences \r\nand there are some similarities. The Administration's package \r\nincludes express changes in title III and rule 6(e) of the \r\nFederal Rules of Criminal Procedure to make certain that \r\ninformation collected in those ways can make it to the \r\nintelligence community. It's optional, but it would remove an \r\nimpediment in law that now exists and open that up to possible \r\nsharing.\r\n    The Administration bill also has a provision that is a \r\ncatch-all that catches everything else other than 6(e) and \r\ntitle III and says everything else also collected in the \r\ncriminal context can be passed.\r\n    Our provision, section 301, goes a little further in one \r\nrespect. In current form it says ``in accord with other \r\nprovisions of law'' this information may be shared. If the \r\ntitle III and 6(e) provisions of the Ashcroft proposal are not \r\nenacted, then that type of sharing would not happen under \r\nsection 301 because it would be otherwise prohibited by law.\r\n    If they are enacted, then this provision says that all such \r\ninformation, all such foreign intelligence information, 6(e), \r\ntitle III and all other--whether it be an FBI interview or \r\ncollected in some other way--must be shared. It doesn't give \r\nthem discretion.\r\n    Senator Edwards. One other question, Mr. Chairman.\r\n    Chairman Graham. Let me just mention that the first witness \r\non the first panel will be Mr. David Kris, Assistant Deputy \r\nAttorney General at the Department of Justice, who will provide \r\nus with the same analysis of the Attorney General's provisions \r\nas they relate to the jurisdiction of this Committee, as Ms. \r\nDivoll has just done for 1448.\r\n    Senator Edwards.\r\n    Senator Edwards. Thank you. This is another question for \r\nMs. Divoll. Under current law FISA procedures can only be used \r\nwhen the primary purpose, ``the'' purpose, is foreign \r\nintelligence gathering. The Administration has proposed that \r\n``the'' be changed to ``a,'' as I understand it, which would \r\nmean that it has to be a purpose, not the primary purpose.\r\n    That provision is not in this legislation; is that correct?\r\n    Ms. Divoll. It's not.\r\n    Senator Edwards. I wonder if you could comment on why it is \r\nnot included.\r\n    Ms. Divoll. Well, we've had the Ashcroft proposals just for \r\na few days now, and these proposals we've worked on for some \r\nmonths. I think that it's fair to say that the Ashcroft \r\nproposals, coming after September 11, have sought to really go \r\nquite a bit further than we felt we would be able to go in this \r\nprovision, and we haven't looked at that provision with the \r\nChairman to determine whether it would be a good change or not. \r\nWe're still working on that.\r\n    Senator Edwards. Have you done any work yet on the question \r\nof the constitutionality of making that change and broadening \r\nthe FISA procedures? As I understand it, one of the reasons \r\nthat they have withstood constitutional muster up until now is \r\nbecause of the limitation to foreign intelligence gathering.\r\n    Ms. Divoll. Yes, Senator. I don't pretend to be an expert \r\nin the courts that have reviewed FISA, but I think it is safe \r\nto say that if you make a fundamental change in FISA it is \r\npossible that the courts would feel they would need to take a \r\nsecond look and make sure that it meets constitutional muster.\r\n    Senator Edwards. My only comment would be I think many of \r\nus believe that the expansion of some of these authorities is a \r\nvery good idea, but I think we need to make certain that we're \r\ndoing it within the framework of what's constitutionally \r\npermitted.\r\n    Thank you, Mr. Chairman.\r\n    Chairman Graham. Senator Durbin, then Senator Kyl, then \r\nSenator Bayh.\r\n    Senator Durbin. Thank you very much. Thank you for the \r\npresentation.\r\n    A lot of attention has been directed toward section 103 and \r\nthe so-called question of dirty assets and the regulations that \r\nwere issued by the CIA in 1995, as I understand it requiring \r\nfield officers to obtain prior CIA headquarters approval before \r\nestablishing a relationship with an individual who has \r\ncommitted serious crimes, human rights abuses or other \r\nrepugnant acts.\r\n    If I recall our earlier conversation, the situation that \r\ngave rise to this was in Guatemala, where some of the people \r\nwhom we were working with turned out to have been involved in \r\nthe assassination and killing of Catholic priests and nuns, \r\nwhich gave rise to this new regulation requiring headquarters \r\napproval.\r\n    If you can answer this, can you tell me, since the \r\nenactment of these regulations in 1995, has the Agency ever \r\nturned down a field request to recruit an individual in a \r\nterrorist organization or in any way avoided contact with \r\nindividuals, regardless of their past, who may have had \r\ninformation about terrorist activities?\r\n    Ms. Divoll. Senator, when the Bremer Commission on \r\nTerrorism came out with their recommendation a few months ago \r\nrecommending rescinding of these internal CIA regulations, the \r\nAgency came forward publicly and answered that question and \r\nsaid that no proposal to recruit someone with human rights or \r\nother problems who had valuable information on terrorism and \r\nterrorist targets, none of those had been turned down.\r\n    The approval process can be very prompt and efficient, \r\nparticularly if there is a sense of urgency, and I think people \r\nin the Agency believe that it has done a good job of balancing \r\nthe need to work with such people against the risks of working \r\nwith such people.\r\n    Senator Durbin. I don't know if you can answer the second \r\nquestion, but it will be my last one. Is there a belief that \r\nthese regulations have had a chilling effect on people in the \r\nfield in terms of those that they seek to recruit for fear of \r\nthese regulations or a negative response from headquarters?\r\n    Ms. Divoll. I think some believe that the people in the \r\nfield feel that way. Some of the people in the field report \r\nthat to Senators when they are on trips. Others of them, \r\nparticularly those who work exclusively in the counterterrorist \r\narea I think say ``no.'' I think they feel that this is their \r\nmission, this is their duty, and that it would be career-\r\nenhancing, if you will, to make such a recruitment. So there is \r\ncontroversy on that.\r\n    The purpose of this provision was to make sure that, to the \r\nextent anyone feared Congress's reaction to those types of \r\nrecruitments that we said clearly in law that it's appropriate \r\nand desirable.\r\n    Senator Durbin. Thank you. Thanks, Mr. Chairman.\r\n    Chairman Graham. Senator Kyl.\r\n    Senator Kyl. Thank you, Mr. Chairman. I needed to ask this \r\nquestion now. It may be appropriate for the next panel too, but \r\nI have a commitment from 4 o'clock to 5 o'clock that was made \r\nbefore this hearing was scheduled that I must honor.\r\n    So let me ask this panel first. This is really the reverse \r\nside of what Senator Edwards asked earlier. Under domestic law, \r\nlaw enforcement agencies can use pen registers and trap and \r\ntrace devices to capture so-called peripheral data associated \r\nwith a telephone call. The Supreme Court has ruled that that is \r\nfine, that there is no reasonable expectation of privacy in \r\njust the mere fact that one person called another. The actual \r\ncommunication is all that's protected. In other words, the \r\ntelephone number or fact of the call is not.\r\n    My understanding under FISA is that the existence of the \r\ncall or the data exchange is termed a communication that must \r\nbe protected from electronic surveillance. Did you look at the \r\npossibility of altering that to conform it to domestic law and, \r\nif not, is there any reason that you know of why under FISA the \r\ndigital or peripheral data associated with a call has to be \r\nconsidered as sensitive as the communication contained with the \r\ncall.\r\n    Ms. Divoll. Senator, I understand. The provisions in the \r\nGraham-Feinstein bill, again as you know because you worked on \r\nit, were put together before September 11, and I think that the \r\nprovision you're talking about, which is part of the Ashcroft \r\nproposal, will be one that this Committee will look very \r\nseriously at. We didn't include everything in this. We didn't \r\nfeel that we could push too far because we weren't in the State \r\nwe're in now. But I think people are going to look at that very \r\ncarefully through the Ashcroft provisions.\r\n    Chairman Graham. Thank you, Senator.\r\n    Senator Bayh.\r\n    Senator Bayh. Thank you, Ms. Divoll. Could you please \r\nexpound in a little greater detail on the asset tracking \r\ncenter? It seems as if the provision focuses on the analysis \r\nand dissemination of foreign intelligence related to financial \r\ncapabilities but doesn't really propose any additional action \r\nbased upon the information, such as extending the suspicious \r\nactivity reporting requirements or perhaps prohibiting a \r\nforeign entity that had been identified as a primary money-\r\nlaundering concern from doing business in the United States.\r\n    Was there a reason for that?\r\n    Ms. Divoll. If it's all right, sir, I'll defer to Mr. Cash \r\nto answer that.\r\n    Mr. Cash. The intention here was to direct the creation of \r\nan entity that would allow the effective analysis of the vast \r\namount of data from all different sources related to finance \r\nand financial transactions, analyze it, and make sure that it \r\ngets to the consumers. One of the very consumers that we were \r\nworried about are the kind of people in, for instance, the \r\nDepartment of the Treasury who make exactly the policy \r\ndecisions or operational decisions you just referred to. So the \r\nintent was not to try to change the standards for, for \r\ninstance, freezing assets or acting on a suspicious activity \r\nreport, but rather to ensure that those policymakers are \r\nserviced as well as possible by the Intelligence Community.\r\n    It addresses the concern that that wasn't happening--a lot \r\nof financial data not going to a central place, not getting out \r\nto all of the right people.\r\n    Senator Bayh. The left hand not knowing what the right hand \r\nwas doing.\r\n    Mr. Cash. Exactly.\r\n    Senator Bayh. Thank you, Mr. Cash.\r\n    Chairman Graham. Thank you, Senator.\r\n    Senator Rockefeller.\r\n    Senator Rockefeller. It's possible that Senator Durbin \r\nasked this question, but I didn't hear it. There's a follow-up \r\nto his question. If one says that no requests have been turned \r\ndown from the field for approval at a higher level in so-called \r\nless-than-savory assets, and then you come back and you say \r\n``no,'' that's a very declarative answer. The other side I'm \r\nlooking at, of course, is that not many requests are made \r\nbecause people don't want to be hung out to dry in case their \r\nasset turns in some way to be nastier than anticipated.\r\n    So my question would be, in fact, in view of the need for \r\nthis kind of asset, have there been the numbers of requests for \r\nthese folks that would warrant the statement ``Oh, there really \r\nisn't a problem because nobody's been turned down.''\r\n    Ms. Divoll. Senator, I think one way to answer that \r\nquestion is to speak to the difficulty of this type of \r\nrecruitment in the first place. I think that people look at--\r\npeople who are involved in the intelligence business look at \r\nthis type of issue and they say we haven't succeeded, what's \r\nthe problem, maybe it's these regulations, when in fact the \r\ntarget is a very difficult one and the officers are working \r\nhard to recruit that type of person, but that type of person \r\noften is not going to want to work for the U.S. Government.\r\n    So I think it's more a reflection of the difficulty of the \r\ntarget than the procedures themselves would be my answer.\r\n    Senator Rockefeller. OK.\r\n    Chairman Graham. Senator Wyden.\r\n    Senator Wyden. Thank you, Mr. Chairman. I thank both of you \r\nfor your presentations.\r\n    I think what Senators are reflecting is a desire for some \r\nbalance. It's obvious that we want to have new tools out there \r\nto protect our citizens from the threat of terrorism without \r\ngiving up the ages-old tradition of protection for freedom and \r\ncivil liberties. It seems to me what both bills are trying to \r\ndo--and maybe you can clarify this--is both them seem to give \r\nthe judiciary a pretty significant role with respect to most of \r\nthe areas where new power is authorized. Is that correct? Maybe \r\nI'm missing something. I think the hacking provision may be one \r\nthat is different, but for the most part the judiciary is given \r\npretty significant powers with respect to reviewing all this. \r\nMaybe you could comment on that with respect to both bills.\r\n    Ms. Divoll. Yes, Senator. The vast majority of the \r\nprovisions in both bills are designed to expand the situations \r\nin which a court may order a FISA. It certainly doesn't require \r\nthe court to order a FISA in those situations. It would, as you \r\nsaid, both in the criminal title III context and in the FISA \r\ncontext, judicial officials--the FISA court and the criminal \r\ncourts--would be passing on these applications. They would just \r\nhave a little bit more clear guidance from the Congress and a \r\nlittle bit more leeway on approving them, but they would still \r\nbe reviewed.\r\n    Senator Wyden. Thank you, Mr. Chairman.\r\n    Chairman Graham. Are there any other questions? If not, \r\nthank you very much, Ms. Divoll and Mr. Cash.\r\n    I'd like to ask our first panel if they would please come \r\nforward. Mr. David Kris, Assistant Deputy Attorney General of \r\nthe Department of Justice, Mr. Larry Parkinson, General Counsel \r\nof the Federal Bureau of Investigation, and Mr. Robert \r\nMcNamara, General Counsel of the CIA.\r\n    As they are settling in, Senator Feinstein would like to \r\nmake an introduction to the Committee.\r\n    Senator Feinstein. If I might, there is a gentleman in the \r\naudience that I would like to introduce to the Committee. He is \r\nthe brother of the pilot of the American Airlines Flight 77 \r\nthat crashed into the Pentagon on September 11. Of course all \r\n58 passengers and five crew members perished. The pilot, \r\nCharles Burlingame, was a graduate of Anaheim High School in \r\nCalifornia. He attended and graduated from the U.S. Naval \r\nAcademy. He served in the Navy from 1971 to 1978, where he flew \r\nF-4 Phantoms and retired with the rank of Commander. From 1979 \r\nto 1998 he served in the Naval Reserve, obtaining the rank of \r\nCaptain. He has had a 22-year career as a pilot with American \r\nAirlines and he was a day short of his 52 birthday when this \r\nhappened. He leaves a wife, Sherry, and a 26-year-old daughter, \r\nWendy, as well as two brothers, Mark and Brad, and a sister, \r\nDeborah.\r\n    Brad Burlingame is here today. He is the president of the \r\nWest Hollywood Convention and Visitors Bureau. Both Mr. \r\nBurlingame's father and mother are buried in Arlington \r\nCemetery, and the family is very desirous that Mr. Burlingame \r\nbe buried there as well. I would like to ask Brad Burlingame if \r\nhe would stand so that the Committee might acknowledge his \r\npresence.\r\n    Senator Mikulski. Thank you very much, Senator Feinstein. \r\nHis brother lived in Maryland, so we also wish to welcome you \r\nas well.\r\n    Senator Feinstein. Thank you.\r\n    Chairman Graham. Thank you very much, Senators Feinstein \r\nand Mikulski. We extend to you and through you to all of the \r\nfamilies of the victims of this horrible tragedy our deepest \r\nsympathy.\r\n    As indicated, Mr. Kris is prepared to not only comment on \r\nthe proposals that are included in the introduced legislation \r\nbut also on those provisions within the Attorney General's \r\nrecommendation which relate to the jurisdiction of the \r\nIntelligence Committee. Mr. Parkinson is not going to be making \r\nformal testimony but will be here as a colleague of Mr. Kris.\r\n    Mr. Kris.\r\n\r\n  STATEMENT OF DAVID KRIS, ASSOCIATE DEPUTY ATTORNEY GENERAL, \r\nDEPARTMENT OF JUSTICE; ACCOMPANIED BY: LARRY PARKINSON, GENERAL \r\n            COUNSEL, FEDERAL BUREAU OF INVESTIGATION\r\n\r\n    Mr. Kris. Thank you, Mr. Chairman, Mr. Vice Chairman and \r\nMembers of the Committee. Thank you for the opportunity to \r\ndiscuss proposed legislative responses to the acts of terrorism \r\ninflicted on our country on September 11.\r\n    My name is David Kris and I am an Associate Deputy Attorney \r\nGeneral at the Department of Justice. My portfolio there \r\nincludes national security policy and FISA, the Foreign \r\nIntelligence Surveillance Act. This is my first appearance \r\nbefore this Committee--actually before any Committee--and I \r\nappreciate the opportunity to present the Department's views.\r\n    Chairman Graham. We appreciate this opportunity to be your \r\nfirst exposure to the Congress and we will try to act with \r\nappropriate respect.\r\n    Mr. Kris. Thank you.\r\n    The Attorney General and the Deputy Attorney General both \r\nwanted to be here today. Unfortunately, a conflicting prior \r\ncommitment to testify before the House Judiciary Committee and \r\ntheir operational duties in connection with this investigation \r\nhave made that impossible. But, Mr. Chairman and Mr. Vice \r\nChairman, they send their apologies and they hope that you and \r\nother Members of the Committee will accept their heartfelt \r\nappreciation for your extraordinary leadership at this critical \r\ntime.\r\n    In particular, Mr. Chairman, I want to thank you and the \r\nVice Chairman and the other Members for the Committee's \r\nexpeditious consideration of our request for a hearing today. \r\nFor that and for the collaborative spirit that you have shown \r\nthroughout this process we are deeply grateful. The Department \r\nhas long enjoyed a close working relationship with this \r\nCommittee and we look forward to its continuation.\r\n    We're also grateful that you have invited our views on the \r\nbill that you and Senator Feinstein introduced 3 days ago. I \r\nknow you share our goal of giving the law enforcement and \r\nintelligence communities the tools that they need to stop \r\nterrorists before they can strike again.\r\n    Mr. Parkinson and I are prepared to discuss in detail the \r\nspecific provisions of the Administration's proposal that you \r\npreviously identified for us based on the Committee's \r\njurisdiction. That proposal obviously remains our top priority. \r\nDue to the short timeframe and the operational and policy \r\nduties that Mr. Parkinson and I must carry out, we have not had \r\nan opportunity to fully review all of the provisions in your \r\nbill, and while I believe we can endorse the substance of some \r\nof your bill's provisions and I know that we share common \r\ngoals, we would like to reserve some of our comments on the \r\nparticulars of the language as the bill is currently drafted. \r\nThe Department looks forward to working with the Committee as \r\nnecessary to ensure that we achieve the goals that all of us \r\nseek.\r\n    We are therefore prepared to answer general questions on \r\nprovisions of the Graham-Feinstein bill to the extent that \r\nthere is a cleared Administration position on them, and we \r\npledge to work with you on all of the bill's provisions to \r\nachieve our common goals of finding those responsible for the \r\nrecent attacks and preventing future attacks.\r\n    Again, let me thank you for your outstanding leadership and \r\ncommitment in holding this hearing and for focusing the Nation \r\non the needs of the intelligence and law enforcement \r\ncommunities to fight aggressively and consistent with the \r\nprotection of civil liberties the threat that terrorism poses \r\nto us and to the world.\r\n    Thank you.\r\n    Mr. McNamara. Mr. Chairman, may I make a few opening \r\nremarks, please?\r\n    Chairman Graham. Yes. Then, Mr. Kris, are you going to walk \r\nus through the Attorney General's provisions?\r\n    Mr. Kris. Yes, sir, I will do that.\r\n    Chairman Graham. Mr. McNamara.\r\n\r\n  STATEMENT OF ROBERT McNAMARA, JR., GENERAL COUNSEL, CENTRAL \r\n                      INTELLIGENCE AGENCY\r\n\r\n    Mr. McNamara. Thank you, Mr. Chairman, Vice Chairman \r\nShelby, Members of the Committee. I do not have a formal \r\nstatement for the record, but with the Chair's permission I \r\nwould like to make a few opening remarks.\r\n    Two weeks ago today the mood of the American people \r\nactually was fairly upbeat and optimistic. Summer was over, the \r\nfall looked promising, markets appeared to be recovering and \r\nmoving back to that 10,000 mark, unemployment figures were at \r\nlow levels, as were interest rates, parents were concerned \r\nabout the beginning of the school year and the students were \r\ngetting concerned about the beginning of football and soccer \r\nseason.\r\n    Less than 18 hours later, the world as we knew it changed \r\nforever for all of us. Terror was forever redefined, and \r\nSeptember 11 became a date that none of us will ever forget. \r\nNot only will we never forget the pictures we saw or the cries \r\nthat we heard or the devastation that took place. We will not \r\nforget the overwhelming emotions of the moment--the fear, the \r\nhorror and the helplessness.\r\n    If we did not know it before, we learned how vicious \r\nterrorists are and how vulnerable an open society can be. But \r\nwe also had occasion to see good among evil--extraordinary \r\ncourage and exceptional kindness. We saw clearly, perhaps as \r\nnever before, that we are neither black nor white, neither \r\nAsian nor Hispanic. We are neither Jew nor Muslim or Christian. \r\nWe are Americans and we are proud of it.\r\n    In those first few horrible moments we may have been forced \r\nto our knees, but only to pray for those who had fallen. Our \r\nhearts may have been broken but not our spirit, and certainly \r\nnot our resolve. As we stood together that day and as we stand \r\ntogether in the days ahead, we will take to heart the words of \r\nour President. Our grief has turned to anger and anger to \r\nresolution. Whether we bring our enemies to justice or justice \r\nto our enemies, justice will be done.\r\n    To that end, the men and women of the Central Intelligence \r\nAgency and of our entire Intelligence Community are working \r\naround the clock to assist our partners in law enforcement, the \r\nmilitary and diplomacy to bring to justice the perpetrators of \r\nthese atrocities and to thwart others who would harm the \r\nnational security of the United States.\r\n    Mr. Chairman, I applaud your leadership and efforts to \r\nrespond quickly and vigorously to the current and continuing \r\nthreat of terrorism. I appreciate the opportunity to testify \r\ntoday regarding two separate legislative proposals that in many \r\ninstances would provide needed enhancements to law enforcement \r\nand the Intelligence Community authorities. These enhancements \r\nhave been carefully drafted to protect the civil liberties \r\nguaranteed United States citizens by the Constitution and at \r\nthe same time to improve our ability to protect national \r\nsecurity.\r\n    The Intelligence Community's mission at its core is the \r\ncollection and dissemination of foreign intelligence and \r\ncounterintelligence information to those who chart our \r\ncountry's course in the world. Without robust collection \r\nauthorities, however, the Intelligence Community cannot provide \r\nthe important information that our Nation's leaders need to \r\nmake the difficult decisions they face in times of peace and in \r\ntimes of crisis. The statutes that control the manner in which \r\nthe intelligence community conducts electronic surveillance are \r\ncurrently struggling to keep pace with the rapid expansion of \r\ncommunication technologies. The Foreign Intelligence \r\nSurveillance Act of 1978 was drafted well before communication \r\ndevices such as cell phones and e-mail had so permeated our \r\ndaily lives.\r\n    Both pieces of proposed legislation would make a number of \r\nsensible enhancements and clarifications to existing law \r\nenforcement and Intelligence Community authorities to deal \r\neffectively with the communication technology explosion. These \r\nenhancements and clarifications would also remove artificial \r\nbarriers to information-sharing between law enforcement and the \r\nIntelligence Community.\r\n    The Intelligence Community supports in one form or another \r\na number of the provisions found in both pieces of legislation. \r\nHowever, we also believe that these proposals provide an \r\nexcellent starting point for the Administration and Congress to \r\ndiscuss other needed improvements to intelligence capabilities, \r\ncarefully balancing the interest of national security with the \r\nprivacy rights we all enjoy under the Constitution.\r\n    I welcome the opportunity to discuss these pieces of \r\nlegislation or other important proposals that would further the \r\nultimate goal of both Congress and the Administration, and that \r\nis the protection of our fellow citizens.\r\n    Thank you, Mr. Chairman.\r\n    Chairman Graham. Thank you very much, Mr. McNamara. Mr. \r\nKris, if you could walk us through the Attorney General's \r\nproposals, let me state a question which will relate to all of \r\nthe provisions. The Attorney General, when he made his \r\nannouncement, emphasized the sense of urgency. He talked about \r\ntrying to get this accomplished within a 2-week period. As you \r\ndiscuss the specific provisions within your ability to do so, \r\nif you could give us some sense of why the urgency to move \r\nforward on these particular recommendations.\r\n    Mr. Kris. Yes, sir. What I would like to do, with your \r\npermission, is actually begin with section 151 of the \r\nAdministration's proposal. I think as I go through I will be \r\nable to come back to some of the earlier sections that you \r\nidentified--sections 103, 104 and 105--but it will ensure, I \r\nthink, a little more thematic coherence if I do it that way.\r\n    For each of these provisions I'll try to give a one-\r\nsentence overview of what the amendment would do, explain the \r\ncurrent law, and then show what the amendment would do to \r\ncurrent law, and try to give you then finally a sense of the \r\nreasons that we think these amendments are needed.\r\n    Section 151 would lengthen the period of court-authorized \r\nelectronic surveillance and physical searches under FISA. In \r\ncurrent law, electronic surveillance is authorized for 90-day \r\nperiods, physical searches for 45-day periods for most FISA \r\ntargets. However, for surveillance and searches of foreign \r\npowers themselves, as opposed to their agents, authorization \r\nperiods for both physical search and electronic surveillance \r\nare 1 year.\r\n    The amendment would change those timing provisions in two \r\nways. First, it would extend from 45 to 90 days the period of \r\ncourt authorization for a physical search of an ordinary \r\ntarget, a routine target. That would bring into accord the \r\nperiod for electronic surveillance, which is currently 90 days, \r\nand the period for a physical search.\r\n    The other thing that the amendment would do is it would \r\nexpand the category of targets to whom the 1-year authorization \r\nperiods apply. In particular, 1-year authorization periods \r\nwould be available against officers or employees of a foreign \r\npower and foreign members of an international terrorist \r\norganization. I think the critical point to make with respect \r\nto that expansion of the 1-year provision is that none of the \r\ntargets that would be subject to it under the Administration's \r\nproposal would be U.S. citizens or permanent resident aliens.\r\n    The reasons for these amendments are largely to deal with \r\ndifficulties we have had implementing the authority we got from \r\nthe court and to improve efficiency and streamline the process.\r\n    With respect to the 45- to 90-day expansion for physical \r\nsearches, FISA searches are unlike ordinary criminal law \r\nsearches in that they are conducted surreptitiously and it is \r\noften difficult actually to execute the authority we have from \r\nthe court within a 45-day window. Enlarging the period to 90 \r\ndays would double our chances of successfully implementing the \r\nauthority.\r\n    It would also help us in cases where we are seeking both \r\nelectronic surveillance and physical search authority \r\nsimultaneously because the similar period would keep the \r\napplications in sync as we go down the line and renew them as \r\nnecessary.\r\n    The reason for the 1-year provision expansion is that the \r\ntargets that we would add to that category are often here for \r\nlong periods of time and it is difficult to continually renew \r\napplications to maintain coverage. I want to emphasize it is \r\nnot a trivial thing to put together and file a FISA \r\napplication. As the Committee is aware, a FISA application \r\nrequires the personal certification of a high-ranking executive \r\nofficial such as the Director of the FBI or the Director of \r\nCentral Intelligence. It also requires the personal approval \r\nbefore filing of the Attorney General or the Deputy Attorney \r\nGeneral.\r\n    Finally, depending on where the search or surveillance may \r\ntake place, it will require an affidavit from a field agent in \r\nthe FBI, for example, and that will require transmission of \r\nhighly-classified material over great distances within this \r\ncountry to ensure that what we file with the court is accurate.\r\n    It is a significant process and reducing the number of \r\napplications that we need to file on these non-U.S. person \r\ntargets would aid us significantly.\r\n    Section 152 of the Administration's proposal is what is \r\ncommonly now referred to as a multi-point authority or roving \r\nwiretap authority. Under current law, when we seek authority to \r\nconduct electronic surveillance from the FISA court, the court \r\nwill issue an order of assistance to a particular \r\ntelecommunications provider to allow us to implement the \r\nsurveillance. The amendment would allow the court to issue \r\nbroader orders that we could use with any provider, if the \r\ncourt found that the actions of the target may have the effect \r\nof thwarting the surveillance.\r\n    The reason for that amendment is effectively tradecraft and \r\ncountermeasures that our adversaries can employ in this area. \r\nThe adversary in a FISA situation is often a very sophisticated \r\ntarget--state-sponsored or otherwise. It is under current law \r\npossible for a spy or a terrorist, let's say, to simply switch \r\ncellphone providers just before a critical communication will \r\noccur. In the time it takes us to go back, spin up a new \r\napplication, obtain the certification and approval from the \r\nAttorney General and file the document with the court to get a \r\nnew secondary order, it may be too late.\r\n    This authority, as the Committee is aware, exists already \r\non the criminal side and we would like the same authority on \r\nthe FISA side.\r\n    Sections 153 and 154 of the Administration's proposal are \r\ndesigned to foster and facilitate greater coordination between \r\nthe law enforcement and the intelligence sides of the \r\nGovernment. Section 153 would amend the certification provision \r\nin FISA to which I previously referred. Under current law, the \r\nDCI or the Director of the FBI, as the case may be, will \r\ncertify that the purpose of the search or surveillance is to \r\ncollect foreign intelligence information. The amendment would \r\nchange that requirement from ``the'' purpose to ``a'' purpose.\r\n    Let me also describe section 154 before I come back to the \r\nreasons for the amendments. Section 154 is designed to address \r\nthe other side of the coin, and that is it will allow all \r\nforeign intelligence information developed in a criminal \r\ninvestigation, regardless of the method used to collect the \r\ninformation, to be passed over to intelligence and other \r\nappropriate authorities within the Executive branch. That would \r\nspecifically deal with restrictions that are contained in title \r\nIII, the domestic criminal wiretap law, and rule 6 of the \r\nFederal Rules of Criminal Procedure, which governs grand jury \r\nsecrecy.\r\n    The provision would say that notwithstanding any other law, \r\nforeign intelligence information--and that is a defined term--\r\nmay be passed to intelligence authorities regardless of other \r\nrestrictions that exist. As I say, the basic animating purpose \r\nhere is to ensure that the two sides of the Government are \r\ncommunicating well. I think this investigation is a \r\nparadigmatic example of the need for that greater cohesion.\r\n    It's been reported in the press there are 4,000 FBI agents \r\nout gathering information, and I have spent time in the FBI's \r\ncommand center, SIOC, seeing that information being pulled in \r\nby any lawful means that is available to us. It is less than \r\nideal, I can say, to have information coming in through a title \r\nIII wiretap, if there is one, and have it be the case that the \r\ncriminal investigators who are running that wiretap are simply \r\nunable to pass the information over to the counterintelligence \r\ninvestigators who may be performing FISA surveillance or doing \r\nsomething else on the other side.\r\n    So the animating purpose here is to bring those two sides \r\ntogether, allow for a single unified, cohesive response, and \r\navoid splintering and fragmentation.\r\n    Now there have been questions raised about the \r\nconstitutionality of the ``a purpose'' test. Let me say a word \r\nabout that. I do think that's a real issue.\r\n    We have had, as a procedural matter, our Office of Legal \r\nCounsel, which is the component within the Department of \r\nJustice whose job it is to evaluate the constitutionality of \r\nthis kind of legislation, review the proposal here before we \r\nput it in our bill. They have approved its inclusion in the \r\nbill. Indeed, I am told that a letter is being prepared that \r\nwill communicate the substance of our analysis on this, but let \r\nme give you just the sort of short version of it now.\r\n    FISA articulates standards for electronic surveillance that \r\nare different from and in some ways more lenient than those \r\nthat exist in ordinary criminal surveillance. The justification \r\nunder the Constitution for using those different standards has \r\nhistorically in the case law been linked to the purpose of the \r\nsurveillance, in particular that the purpose of the \r\nsurveillance be to collect foreign intelligence information.\r\n    The question of exactly how much purpose and what degree of \r\npurpose is constitutionally necessary is open to question. \r\nThere is not a vast amount of case law on this. Some cases have \r\nadopted a primary purpose standard but have left open the \r\npossibility that the floor may be lower.\r\n    What our amendment would do would be to eliminate any \r\nartificially high statutory barrier and allow the \r\nconstitutional standard to be developed on a case-by-case \r\nbasis. OLC has concluded that an amendment of that kind would \r\nnot risk the statute being struck down on its face. What we \r\nwould have to deal with is a case-by-case evaluation in each \r\ncase of whether we have crossed the line. But that would allow \r\ndevelopment of the law at the constitutional level and \r\neliminate the statutory barrier, and that is the gist of our \r\nthinking that underlies section 153.\r\n    I want to emphasize this is a serious problem, and I think \r\nthe example I gave--that of being in the FBI SIOC--is one \r\nillustration of that. We hope that this can be dealt with.\r\n    Let me, having spoken about sections 153 and 154, talk \r\nabout sections 103 and 104, two of the other provisions you \r\nasked about. Section 103 and actually section 354 as well are \r\nboth sharing provisions that are designed to eliminate specific \r\nbarriers to sharing information obtained from a criminal \r\ninvestigation. Section 103 deals with title III's limitations; \r\nsection 354 deals rule 6. Both of those are covered by our \r\nsection 154.\r\n    If you were to enact section 154, I think sections 103 and \r\n354 would not be necessary because section 154 is the blanket \r\napproach to this problem.\r\n    Section 105 is another provision that you identified for \r\nus, and it would allow the use of wiretap information obtained \r\nabroad from foreign governments. Effectively it provides that \r\nif there is no U.S. law enforcement involvement or no U.S. \r\ninvolvement at all in that electronic surveillance conducted by \r\na foreign government abroad, the information may be introduced \r\nin an American court.\r\n    If there is U.S. involvement, then the basic U.S. legal \r\nstandards, such as the requirement of probable cause, would \r\napply to the surveillance and that would determine its \r\nadmissibility.\r\n    Let me go on to sections 155 through 157, which are the \r\nlast three provisions that the Committee asked about. Section \r\n155 would change the FISA pen\/trap standard. There's been a \r\ndiscussion of pen registers and trap and trace devices. They \r\nare devices that record both digits dialed but not the content \r\nof a telephone communication or the routing and addressing \r\ninformation of an electronic mail message, but again not the \r\ncontent of the electronic mail.\r\n    What this provision would do, section 155, is make the FISA \r\npen\/trap statute roughly analogous to the corresponding \r\ncriminal pen\/trap statute. Under current law, to obtain a FISA \r\npen\/trap order we must show almost as much as we have to show \r\nin order to get a full content, a full-blown FISA order. The \r\nresult of that is, frankly, that we hardly ever use the FISA \r\npen\/trap statute. Because if we're going to go to the lengths \r\nrequired under the current law, we will go the extra 5 percent \r\nand get the full content order.\r\n    Our basic position here is that it is at least ironic that \r\ninformation that is available in a routine drug investigation \r\nor some other routine criminal investigation is not available \r\nunder the same standard in an anti-terrorist or espionage \r\ninvestigation. The requirement that we're proposing is a \r\nrelevance standard, which is what applies on the criminal side. \r\nHere it would be relevance to a counterintelligence or \r\nintelligence investigation; whether there is relevance to a \r\ncriminal investigation.\r\n    Section 156 of the Administration's bill would eliminate \r\nthe requirement for prior FISA court approval and expand the \r\nscope of FISA subpoenas to make them roughly analogous again to \r\nvarious criminal administrative subpoena provisions that \r\nalready exist. Under current law, we must go to a FISA court \r\njudge or a specially designated magistrate and obtain an order \r\nto issue a subpoena that would apply only to four categories of \r\nrecipients--a common carrier, a public accommodation, a \r\nphysical storage facility, or a vehicle rental facility.\r\n    The amendment would remove both the requirement of advance \r\ncourt approval and would expand the scope of the subpoena \r\nprovision to include all records, not just those in the four \r\ncategories that I mentioned. The reason that we are seeking \r\nthat authority is effectively both speed and efficiency and \r\nbreadth.\r\n    Eliminating the requirement of advance court approval means \r\nwe can get what we need quickly, with less paperwork, and the \r\nbreadth would allow us to reach targets like schools, gyms--\r\nyou've seen some of the newspaper reporting--dry cleaners, \r\ninformation that may well be critical in one of these \r\ninvestigations. Again this would bring into parity with \r\nexisting criminal administrative subpoena authorities the FISA \r\nsubpoena provision. There is authority, for example, in a \r\nroutine drug case for the Attorney General not only to compel \r\nthe production of documents but to compel witness testimony \r\nwithout any prior court involvement. He may simply issue the \r\nsubpoena. That statute is 21 USC 876.\r\n    Finally, section 157 changes the standards for issuing so-\r\ncalled national security letters, and it changes it in two \r\nbasic ways. It would allow these letters to be issued by FBI \r\nfield offices rather than by headquarters officials, and it \r\nwould eliminate the nexus requirement to a foreign power to \r\nmake the national security letter authority more analogous to \r\ncorresponding criminal authorities.\r\n    Under current law national security letter authority--and a \r\nnational security letter is just what it sounds like. It's a \r\nletter issued by the FBI to either a telephone or internet \r\nservice provider, a financial company or a credit company to \r\nproduce documents and to keep secret the fact that they have \r\nbeen asked to produce documents in a foreign intelligence or \r\ncounterintelligence investigation.\r\n    What our amendment would do is allow special agents in \r\ncharge--that is, the top-ranking FBI field agent in each of the \r\nFBI's 56 field offices--to issue one of these letters rather \r\nthan requiring the letter to be sent out by an Assistant \r\nDirector at headquarters. It would eliminate the requirement of \r\na nexus to a foreign power, leaving in place only a relevance \r\nstandard.\r\n    That is roughly analogous to the standard that applies in \r\nthe criminal context in a grand jury. Obviously we can't and \r\ndon't use grand juries in most foreign intelligence\/\r\ncounterintelligence investigations, both because it is a \r\nquintessentially criminal investigative tool and because it is \r\nnot really part of the grand jury's historic mission to look \r\ninto counterintelligence or intelligence issues. This would \r\ngive us an authority that roughly corresponds to grand jury \r\nsubpoena authority, although in a more narrow class of cases, \r\nand I think would be an important contribution to our efforts \r\nto gather information quickly, especially in a case like this \r\none.\r\n    I think that is the last of the amendments the Committee \r\nspecifically asked about, so I will stop.\r\n    Chairman Graham. Thank you very much, Mr. Kris.\r\n    For the information of the Committee members, questioning \r\nwill be on a first-arrival basis. After the Chairman and the \r\nVice Chair, the next questioners will be Senator Feinstein, \r\nSenator Rockefeller, Senator Wyden, Senator DeWine, Senator \r\nEdwards.\r\n    You emphasized in several areas such as sections 155 and \r\n156 of the Attorney General's recommendations that you were \r\nattempting to render more comparable the standards under the \r\nForeign Intelligence Surveillance Act with those that are \r\ncurrently in place for criminal matters. Have the analogous \r\nsections to those that you are proposing for FISA been \r\nadjudicated in their criminal context and found to be \r\nconstitutional?\r\n    Mr. Kris. I think the answer to your question is yes, but \r\nlet me be more specific. With respect to pen\/trap orders, the \r\nSupreme Court has squarely held in a case called Smith v. \r\nMaryland that there is no fourth amendment privacy interest in \r\nthe telephone numbers that you dial or the numbers from which \r\nyou receive a call. I think the reasoning of that opinion would \r\napply equally to other kinds of routing and addressing \r\ninformation.\r\n    So I think with respect to pen\/trap orders there is no \r\nconstitutional question and there would not need to be any \r\nshowing made at all to satisfy the fourth amendment.\r\n    I think administrative subpoenas have also been upheld \r\nwhenever challenged, and I don't think that there is any real \r\nquestion about the Attorney General's ability to do that. There \r\nare a number of such statutes on the books.\r\n    Chairman Graham. Recognizing that the answer to this \r\nquestion may involve sensitive or classified information, are \r\nyou at liberty to select any of the provisions in the Attorney \r\nGeneral's recommendations and indicate why there is this \r\nspecial sense of urgency that the Attorney General alluded to \r\nwhen he presented these to the Congress last Wednesday?\r\n    Mr. Kris. It is difficult to answer that question in an \r\nopen hearing and, of course, we are all, I am sure, available \r\nfor a closed hearing where we could go into much greater \r\ndetail.\r\n    If I may, let me just say something generally. The current \r\ninvestigation is really a sort of all-hands-on-deck approach \r\nwhere we do have many, many agents out there and we are doing \r\neverything that we can do under law to get the information we \r\nneed to protect the public from future attack, and to give the \r\nPresident the information he needs to make the kinds of foreign \r\npolicy and other decisions that he will have to make.\r\n    As I say, having been in SIOC when information is just \r\ncoming in, the embargoes that currently exist in various places \r\nin law make it very awkward for everybody to get together and \r\nshare the information. When you have an investigation this \r\nsize, you need to have coordination or things begin to fall \r\napart.\r\n    So I will say that it would be very helpful in an \r\ninvestigation like this one to have the sharing provisions, and \r\nI think beyond that I would defer to a closed session, with the \r\nCommittee's permission.\r\n    Chairman Graham. In the legislation that has been \r\nintroduced, 1448, one of the provisions clarifies that the \r\nintelligence agencies would be authorized to retain so-called \r\ndirty assets without specifically directing them to do so and \r\nbeing sensitive to the separation of powers doctrine. Mr. \r\nMcNamara, would you have any comment on the way in which 1448 \r\ndeals with the issue of the authority of the CIA to hire assets \r\nwith suspect backgrounds?\r\n    Mr. McNamara. I think Ms. Divoll has actually laid out \r\nquite carefully and candidly what the issue is here. As you \r\nheard earlier, the reason these guidelines are in place--and I \r\nmust caution that the guidelines are still classified and I'm \r\nsomewhat constrained about what I can say--the reason they were \r\nput into place is because of a genuine and a serious concern \r\nthat Congress had in 1994 and 1995 about the way assets, CIA \r\nassets overseas both were being recruited and were being used, \r\nand whether or not there was, for lack of a better term, adult \r\nsupervision in the entire process.\r\n    What we have attempted to do or what the Agency attempted \r\nto do 6 years ago was to put in place a structure whereby both \r\nthe Agency and the Committee and the Congress could be assured \r\nthat somebody had looked at this to see whether or not the gain \r\nthat we might be able to get offset whatever the person may \r\nhave done.\r\n    I'm a little concerned about the way the statute is \r\ndrafted, Mr. Chairman, although I'm sure it's unintended. It \r\nappears in the first sentence to give a case officer, a first-\r\ntour case officer, in wherever immunity from anything that may \r\nhappen as a result of taking on this action. I'm not sure the \r\nintention, but the second part is it's also limited to only \r\nacquiring information, which means the officer could not direct \r\nthe dirty asset, for lack of a better term, to engage in covert \r\naction, which, although the President would have authorized it, \r\ncould have authorized it, to engage in any kind of disruptive \r\nactivity, although clearly that's one of the things that we do \r\nshould we be able to accomplish this objective.\r\n    Third, I've been the General Counsel now for almost 4 \r\nyears. Either I or my senior deputy see all of these before \r\nthey go to the DDO and upward. The entire purpose is to make \r\nsure that somebody else has gotten eyes on this, that people \r\nwho are responsible and accountable to Congress and the \r\nAmerican people are making a decision that does two things. It \r\nweighs in the balance whether or not this is someone in fact \r\nthat we want to have our payroll, if that's what it is, or \r\nworking as an asset.\r\n    For instance, if the individual had killed Americans or if \r\nthe individual had been involved in an airline hijacking or if \r\nan individual had been involved in some type of other terrorist \r\nactivity, somebody needs to think about that, and a first-tour \r\nofficer shouldn't be the one.\r\n    The second advantage is that it really protects the first-\r\ntour officer, or the second- or third-tour officers. So there \r\nis somebody who is saying to him, ``Yes, this can be done.'' \r\nYou can go ahead and do this. I know there's been a lot of \r\ndiscussion. I know former Director Woolsey firmly believes that \r\nthere has been a chilling effect that has had an adverse \r\nimpact. I know the Vice Chairman has been to a number of our \r\noffices overseas, as have others, and talked to officers. I \r\nhave as well. I take a chance to talk to all of our first-tour \r\nofficers when I'm out of the country.\r\n    All I can say is our information is different. But the \r\nbottom line, I think, is we're going to do whatever we have to \r\ndo and do it right to make sure that the American people are \r\nprotected. But at the same time we have to make sure we do it \r\nsmartly. I don't know whether or not this would have an \r\nunintended consequence, and I'm sure that's one of the things \r\nthe Committee is concerned about.\r\n    Chairman Graham. Thank you, Mr. McNamara. When I read the \r\nlist of questioners, I apologize. I omitted Senator Mikulski, \r\nwho will come immediately after Senator DeWine.\r\n    Senator Mikulski. Mr. Chairman, I don't have any questions. \r\nThose were answered in the discussion. Thank you.\r\n    Chairman Graham. Senator Shelby.\r\n    Vice Chairman Shelby. Mr. Kris, does the statutory \r\nauthority to conduct simultaneous title III and FISA \r\nsurveillances present the same questions that section 153 does \r\nin the Attorney General's bill? In other words, isn't there a \r\nquestion of purpose if we are conducting simultaneous taps?\r\n    Mr. Kris. I think the answer to that question is yes. The \r\nquestion of whether there is a primary or other intelligence \r\npurpose underlying FISA is a case-by-case and highly fact-\r\nintensive determination. I think in many cases at least if we \r\nwere doing simultaneous title III surveillance of the same \r\ntarget it might play into the primary purpose calculus, yes.\r\n    Vice Chairman Shelby. Mr. Kris, could you just briefly \r\naddress the separation of powers--we alluded to this earlier--\r\nissues raised by section 103 of the Chairman's bill?\r\n    Mr. Kris. Yes. I will do so. However, I should say that we \r\nhave asked OLC again to render a more formal opinion on that. \r\nWhat I will say that I think raises some separation of powers \r\nconcerns in my mind is something that Mr. McNamara mentioned \r\nbefore, and that is the ``notwithstanding any other law'' \r\nprovision.\r\n    That suggests that even if the DCI or the President were to \r\nsay to the first-year case officer don't recruit that \r\nparticular dirty asset, the case officer would be authorized to \r\ndo so anyway. Now I don't think--and based on what I heard \r\nearlier, I'm more confident--that that is the intent. We may \r\nhave an ability to work with the staff to deal with drafting \r\nissues that we have. But I think that is an area in which there \r\nmight be--and I don't want to say that there would be--\r\nseparation of powers concerns.\r\n    Vice Chairman Shelby. Mr. Kris, what specific provisions in \r\nthe Graham-Feinstein proposed legislation do you need right now \r\nin the Justice Department in order to properly prosecute the \r\nongoing war on terrorism, from your perspective?\r\n    Mr. Kris. Well, we are very, very happy with sections 202 \r\nand 203. Indeed, those provisions may be an example of the \r\nprinciple that great minds think alike, since they are quite \r\nsimilar to provisions we have in sections 151 and 152 of our \r\nbill. I think those are probably the two leading provisions \r\nfrom our perspective.\r\n    Vice Chairman Shelby. OK. Mr. Parkinson, under section 101 \r\nof the Graham-Feinstein proposal, the DCI, I believe, would \r\n``manage'' employees within the Bureau and other agencies \r\nacross the community. How would you envision this working in \r\nlight of their existing chains of command that we have today?\r\n    Mr. Parkinson. Well, let me say to begin with, Senator \r\nShelby----\r\n    Vice Chairman Shelby. ``Manage the analysis and \r\ndissemination,'' it says.\r\n    Mr. Parkinson [continuing]. We do have some concern over \r\nthe language that appears on page 3 of that legislation, and we \r\nwould like to engage the Committee and staff in a discussion \r\nabout its intent. One appearance issue is that it appears that \r\nit may--and we don't know whether this is advertent or \r\ninadvertent--put the DCI and the Agency in the domestic \r\nsecurity arena. I think that's an important issue that we have \r\nto focus on.\r\n    Assuming we work that out and the Congress makes the \r\njudgment that an expanded role for the DCI is appropriate here \r\nin terms of how it plays out I think I am quite confident that \r\nwe would work very well with the Agency, as we have, in \r\ncarrying out the authorities that are given.\r\n    Vice Chairman Shelby. Let me just share the language with \r\nyou as I see it on page 3.\r\n\r\n    Establish requirements and priorities for and manage the \r\nanalysis and dissemination of all foreign intelligence \r\ncollected under the Foreign Intelligence Surveillance Act of \r\n1978, quoting the U.S. Code, including the provision of assistance \r\nto the Attorney General in order to ensure that information derived \r\nfrom surveillance or physical searches under that Act is used \r\nefficiently and effectively for foreign intelligence purposes, \r\nexcept that the Director shall have no authority to direct, \r\nmanage or undertake electronic surveillance operations pursuant \r\nto that Act unless otherwise authorized by statute or Executive order.\r\n\r\n    That's what we're talking about here.\r\n    Mr. Parkinson. That's correct.\r\n    Vice Chairman Shelby. All right. Thank you, Mr. Chairman. \r\nMy time is up.\r\n    Chairman Graham. Thank you very much, Senator.\r\n    Senator Feinstein.\r\n    Senator Feinstein. Thanks very much, Mr. Chairman.\r\n    Mr. Kris, I think your testimony was very helpful and I \r\nwant to thank you. I also think it was very powerful in one way \r\nbecause it really is the first time the Department has \r\nofficially admitted that the communication issue is truly an \r\nissue and, as you just said, less than ideal.\r\n    One of the problems I think working in this area is people \r\nwill say to you one thing formally and they'll say another \r\nthing informally, so how you really know becomes sometimes a \r\ndifficult task. But I think you have clarified what we believe, \r\nbased not on something people said, because it's always been \r\ndenied--oh, there's no problem in intelligence-sharing--when in \r\nfact we believe there is. So I want to thank you for that.\r\n    I wanted to ask you a question on section 151, if I might. \r\nThis is the period of orders of electronic surveillance of non-\r\nU.S. persons under foreign intelligence surveillance. Is that \r\nthere largely just because of the jurisdiction of this \r\nCommittee being that if you had U.S. citizens covered under \r\nthis it would come under the jurisdiction of another Committee? \r\nBecause I have a hard time knowing why. I mean, we know there \r\nare cells operating in this country. It may even be that the \r\nU.S. citizens are participating in those cells or people here \r\nlegally. As a matter of fact, it's very likely.\r\n    So the question is why not give this authority across the \r\nboard?\r\n    Mr. Kris. OK. Before I answer that question, let me just \r\nrespond to what you said earlier.\r\n    Senator Feinstein. You're not going to take it back, are \r\nyou?\r\n    Mr. Kris. I don't want to give myself more credit than I'm \r\ndue. If Senator Thompson were here he could tell you. He \r\nrecently commissioned a GAO report which does discuss some of \r\nthe long-term issues we've had with information-sharing, and we \r\nthen wrote a letter in response to the report. So I don't want \r\nto give myself more than I deserve.\r\n    With respect to section 151, I don't think that--I mean, I \r\ncan tell you that the thinking behind section 151 has nothing \r\nto do with which committee would evaluate it, and frankly \r\nthat's well beyond my ken. The concern, though, or the reason \r\nfor limiting the 1-year authorization period is part of our \r\noverall approach here, which is to try to be balanced, to push \r\nthe envelope and give ourselves more authority where we really \r\nneed it, but to be sensitive also to the civil liberties and \r\nprivacy concerns that this kind of surveillance will go \r\nagainst.\r\n    We are really trying to get the authority where we need it \r\nmost. This provision does not enlarge or change the targets \r\nthat we can surveil. It only allows for longer periods. That, \r\nwe have found, is a significant issue primarily for non-U.S. \r\npersons, especially--and I want to be careful in an open \r\nhearing of exactly what I say--for employees or agents of \r\nforeign powers who are often here for long periods of time. \r\nThat's really the motivation here--respect for U.S. person \r\ncivil liberties, which we think are especially important, and \r\nthere is a difference between surveilling non-U.S. persons and \r\nsurveilling U.S. persons, but also to focus on exactly what our \r\nneed really is.\r\n    I think our need is greatest with respect to non-U.S. \r\npersons. For U.S. persons we can still get the surveillance, \r\nbut we'll have to come back every 90 days and have a judge keep \r\nlooking at it.\r\n    Senator Feinstein. In this situation you want to do that.\r\n    Mr. Kris. Yes.\r\n    Senator Feinstein. OK. I would think about that. But, in \r\nany event, let me go on to section 153. This section clarifies \r\nthat the certification of a FISA request is supportable where \r\nforeign \r\nintelligence-gathering is ``a purpose'' of the investigation. \r\nIt would eliminate the need continually to evaluate the \r\nrelative weight of criminal and intelligence purposes and would \r\nfacilitate the information-sharing between agencies.\r\n    Now, I am told that the primary purpose test has often been \r\ncited as one of the reasons that FISA meets the constitutional \r\nrequirements under the fourth amendment. Would elimination of \r\nthis test place the entire FISA in danger of being struck down \r\nby a court?\r\n    Mr. Kris. The answer to your question I think is no, and \r\nagain I'm relying here on the analysis of our experts in the \r\nOffice of Legal Counsel. Let me try to explain in particular \r\nwith respect to the risk to the whole statute.\r\n    Courts will occasionally evaluate constitutional challenges \r\non an as-applied basis, where you deal with only the particular \r\ncase, or on a facial basis, where you evaluate the statute in \r\ngeneral. What we would definitely not like to see is an \r\namendment to FISA that led to a facial attack and a successful \r\nfacial attack on the statute, which would throw the entire \r\nstatute out on constitutional grounds.\r\n    We are confident that changing ``the purpose'' to ``a \r\npurpose'' will not permit a facial challenge to FISA. Because \r\nof the way courts evaluate these things, we are confident that \r\nunder existing jurisprudence they will evaluate this on a case-\r\nby-case basis. There is a case, United States v. Salerno, that \r\nstands for the proposition that if a statute is valid in some \r\napplications, as the ``a purpose'' standard clearly would be, \r\nthere is no justification for striking down the statute on its \r\nface. Instead, courts deal with the challenges on a case-by-\r\ncase basis.\r\n    I think there is a possibility, if we go too far in a \r\nparticular case, that we would end up being suppressed in a \r\nsubsequent attempt to introduce the evidence in court. But we \r\nthink that's a risk that's worth taking in order to solve this \r\nproblem that we've discussed about information-sharing. But I \r\nemphasize our experts--and I agree--think that the statute is \r\nnot in jeopardy on its face.\r\n    I've been reminded and I think I mentioned this before, we \r\nwill be sending a letter to Congress that sort of details at \r\ngreat length our constitutional reasoning and the reason for \r\nthe statement I've just made to you.\r\n    Senator Feinstein. Thank you very much. Thanks, Mr. \r\nChairman.\r\n    Chairman Graham. Thank you, Senator.\r\n    Senator Rockefeller.\r\n    Senator Rockefeller. Thank you, Mr. Chairman.\r\n    I just want to go back to the so-called less-than-desirable \r\nfactor, the chilling effect, so to speak, of CIA and potential \r\nhuman rights violations. If this were carried forward and it \r\nwere lifted, as I happen to favor, and there was not the high-\r\nlevel approval every single time, is that done in part--does \r\nthat put in jeopardy in a way for the case officer, let's say, \r\non the ground in a country for the possibility of an asset \r\ncommitting an act of terrorism on the United States, in other \r\nwords putting that person at risk?\r\n    I put that in this context. The answer that I got when I \r\npreviously put this forward was, ``Well, we really don't have \r\nthat many requests.'' That strikes me as a little bit of a pre-\r\nSeptember 11 type of answer and that if there's anything which \r\nhas been on the public airwaves in the last several weeks it's \r\nbeen the need for a much greater body of human intelligence, \r\nnot all of which, I guess, can be of the most attractive sort.\r\n    So in a sense I'd like to know is the idea of not doing \r\nthis to protect the case officer, making the approval come from \r\na higher level in case the person turns nasty toward the United \r\nStates?\r\n    Mr. McNamara. Senator, I think it actually has multiple \r\npurposes. One is to protect the officer. Especially a first-\r\ntour officer shouldn't be going out there and making a \r\ndetermination to bring on somebody and pay him and use him as \r\nan asset without ever even telling the chief of station. But, \r\nmore importantly, many times the individual officers--and in \r\nfact just for the record, the way this is drafted it's not just \r\na CIA case officer who actually knows tradecraft. It is anybody \r\nwho is a member of the Intelligence Community, the way it's \r\ndrafted now.\r\n    So somebody from NRO who has never done this could \r\nactually, according to the way it's drafted, be running assets \r\nthat we wouldn't know anything about.\r\n    The purpose is multiple. No. 1, is to protect the case \r\nofficer. No. 2, is to make sure we're doing the right thing. \r\nNo. 3, is to bring it back and make sure we run it against our \r\ndata bases and traces. Is there something else we know about \r\nhim or her? Have they been involved in something we're looking \r\nfor? Is there an outstanding U.S. warrant for this individual? \r\nThere are a number of things where you just really need \r\nheadquarters to be aware of.\r\n    I think, more importantly, this Committee should be \r\ninsisting that we be accountable, the senior intelligence \r\nofficers at the CIA be accountable before somebody does \r\nsomething like this. This is not slowing the process down, I \r\ndon't think. As I said, I've only been there 4 years and these \r\ncan be done very, very quickly.\r\n    PDD-35 comes out and lays out everything that we're \r\ntargeting. The chiefs of station are pushing at their people to \r\ntry and find people who can penetrate these. They are very, \r\nvery hard to do. Not only do they not like us, in many cases \r\nthey hate us and will not work with us. The opportunity to get \r\nsomebody who will do something for us, even to the extent of \r\ngiving us some information, would be a career-enhancing \r\nopportunity and not a career-limiting event.\r\n    Senator Rockefeller. It's not a question of congressional \r\nsecond-guessing which worries you on this. It's simply what you \r\nspoke about?\r\n    Mr. McNamara. No, sir. I don't have any problem with \r\ncongressional oversight. In fact, I think in many cases this \r\nwould enhance congressional oversight. We have come to the \r\nCommittee to tell them what we are doing when we're bringing \r\ndirty assets in. We wouldn't be able to do that. I think this \r\nCommittee should know what we're doing.\r\n    Senator Rockefeller. OK. The whole concept of the virtual \r\nlanguage capacity is a very, very interesting one to me and I \r\nthink is a very strong part of the Graham-Feinstein amendment. \r\nNow as I think Senator Graham indicated in his press \r\nconference, it's aimed at Arabic, Farsi, Urdu or maybe not \r\nFarsi but Pashto. But it's for the whole panoply of languages.\r\n    That has been a concern of mine in any event in terms of \r\nthe capability, and I've frequently referred to the fact that \r\nMormons are doing many of our best language work. We are not \r\nteaching any longer in our schools. America is in a sense \r\nwithdrawing from the world. Now that could have changed very \r\ndramatically, probably will have since September 11 in terms of \r\nthings like teaching languages.\r\n    But it strikes me as a very, very powerful initiative and \r\none that I think we ought to undertake.\r\n    Mr. McNamara. Senator, I think you're right. What the \r\nChairman and Senator Feinstein have put together is a very \r\nnovel and intriguing idea. My only concern or our concern from \r\nthe Intelligence Community is there are a number of \r\ncounterintelligence issues this raises, No. 1. No. 2, there are \r\na lot of security problems. The issues of connectivity in and \r\nof itself are something that we are trying to deal with within \r\nthe community, that we've already tried to approach.\r\n    The cost could be absolutely prohibitive. I'm just \r\nwondering whether or not on a short-term basis we can actually \r\nlook at this with the Committee and study its ramifications to \r\nsee whether or not this is the framework you want to put into a \r\nstatutory construction. The difficulty is that once it's etched \r\nin concrete as a statute and a requirement, we don't have the \r\nflexibility that I think you and Mr. Cash were talking about \r\nearlier on when he mentioned it in terms of what that \r\ncapability is.\r\n    But our translators are different than FBI translators. Our \r\nrequirements are different than the FBI translators. Protection \r\nof classified information is different. The difficulty is it \r\nshould not be paralytic. On the other hand, what it should be \r\nis something that is done in a way that both is effective and \r\nefficient and quick and gets it turned around.\r\n    I don't know--and on behalf of the community--I don't know \r\nif this is exactly the right paradigm, but what we'd like to do \r\nis experiment and see what we can come up with and then maybe \r\ncome back to you and say, ``Here's some of the other options.'' \r\nWould this satisfy it?\r\n    Senator Rockefeller. That's fair enough. But you wouldn't \r\ndisagree that there has to be a sharp increase in our capacity.\r\n    Mr. McNamara. Absolutely agree.\r\n    Senator Rockefeller. Thank you, Mr. Chairman.\r\n    Chairman Graham. Thank you, Senator.\r\n    Senator DeWine.\r\n    Senator DeWine. Thank you, Mr. Chairman.\r\n    Mr. Kris, let me first say that I think the Attorney \r\nGeneral has come forward with some very, very positive \r\nproposals. Some of these have been made in the past and \r\nCongress has not acted upon them. I hope that now, with this \r\nsituation that we are in and the tragedy of September 11, we \r\nwill. I think also that the Chairman's proposal has many, many \r\nvery positive things in there, and I would congratulate you, \r\nMr. Chairman, on that as well.\r\n    I don't want to beat a horse that's going to be going \r\naround a few more times beyond today, but I want to come back, \r\nif I could, to section 153. I understand your explanation and \r\nif we do pass this I guess I hope you're right that you are \r\nlucky enough and we're all lucky enough to do it on a case-by-\r\ncase basis. I'm not sure you're right.\r\n    I'm not even sure, though, if it's on a case-by-case basis \r\nthat's what we want. It seems like to me that's going to be a \r\nreal mess and there are going to be some real problems for us \r\nas a country.\r\n    As you know, the case that really is kind of the \r\nintellectual underpinning of the FISA statute was United States \r\nv. U.S. District Court, or the Keith case. When you read that, \r\nas I know you have and the counsel has, it's very, very clear \r\nthat what the Supreme Court of the United States was saying is \r\nthere are apples and oranges, and when you're dealing with a \r\ncriminal it's one thing, and when you're dealing with national \r\nsecurity it's something else and we're going to treat them \r\ndifferently and the standards are going to be different. The \r\nCourt elaborates in four or five different ways what the \r\ndifferences are.\r\n    The statute today, as you know, talks about ``the \r\npurpose.'' That I suppose, it seems to me, is pretty much \r\ninterpreted as ``the primary purpose.'' We might be able to get \r\nby with ``a primary purpose,'' maybe. But I think when you get \r\nto ``a purpose'' I just think what does that mean--2 percent of \r\nwhat you're trying to do is national security and 98 percent is \r\ncriminal? Where do you draw the line?\r\n    I just think we're getting into some real, real problems. \r\nI'm very sympathetic with what you're trying to do. I just \r\nwanted to make that statement.\r\n    I want you to explain to me, though, one more time what \r\nthis gets you. What does it get us in national security? I'm \r\nmissing it. I really understand the problem about sharing \r\ninformation. I understand about the artificial walls. I \r\nunderstand the reason we have to have more cooperation. A lot \r\nof what's in the Chairman's bill and a lot of what's in \r\nAttorney General Ashcroft's bill goes to that. I have a couple \r\nof provisions I want to add that I think will help in that \r\narea, and I won't get into them today.\r\n    Explain to me, though, what the change in the statute does \r\nto accomplish the breaking down of those walls and the sharing \r\nof that information, because it seems like it's going the wrong \r\nway to me on the information. But maybe I'm missing something.\r\n    Mr. Kris. Well, with respect to the purpose inquiry that is \r\nconducted both by the FISA Court in the case of a U.S. person \r\nwhen it evaluates the certification of the purpose of the \r\nsought electronic surveillance or search and a District Court \r\nif under FISA it evaluates a motion to suppress, I think the \r\nanalysis has focused concretely on two things--first the flow \r\nof information from the intelligence side to the criminal side \r\nand, second, the advice that goes back from the criminal side \r\nto the intelligence side.\r\n    Senator DeWine. OK. I'm with you so far.\r\n    Mr. Kris. So, to give you a hypothetical example, if \r\nprosecutors start telling counterintelligence investigators, \r\n``Hey, you're up on Joe Jones'', you should probably go up on \r\nhis brother Fred because he's involved in money-laundering, \r\nit's not a crime that affects national security but we would \r\nreally like to get some good surveillance on Fred, that advice-\r\ngiving can alter the perceived purpose of the surveillance of \r\nFred because it is being driven by or it is perceived to be \r\nbeing driven by criminal equities and a criminal purpose.\r\n    The concern that we have, therefore, is to allow just the \r\nright amount of information-sharing and advice-giving but not \r\ntoo much, so that we don't cross the line, the purpose line, \r\nand end up in a bad situation where we are either conducting or \r\nattempting to conduct unauthorized surveillance or, if the FISA \r\nCourt agrees with us but a District Court later disagrees, we \r\nend up suppressed in a criminal case.\r\n    Senator DeWine. OK. Give me another example, because I \r\nreally didn't understand that one, or do it again--if the \r\nChairman will indulge me just a minute--because I think this is \r\nvery important. We have to understand the situation. You're \r\ngoing in to get a FISA and the factual case you have to create \r\nis a case where it's not ``the purpose.'' It's much less than \r\nthat, because that's why you're making the change. You're going \r\nfrom ``the'' purpose to ``a'' purpose.\r\n    So now we're down to you've got a lot of other reasons out \r\nthere that you want a FISA, but one of them is, ``a'' purpose, \r\nnational security.\r\n    Mr. Kris. OK.\r\n    Senator DeWine. Because that's the factual situation that \r\nyour change in the statute leads me to. With me so far?\r\n    Mr. Kris. I think I understand you.\r\n    Senator DeWine. OK. Now create the case. Tell me the case \r\nwhere it's just a portion of really what I want to do.\r\n    Mr. Kris. OK. I think that issue comes up in a number of \r\nboth terrorism and espionage cases because terrorism and \r\nespionage are, by their nature, both counterintelligence \r\nconcerns--we want to stop spies from stealing our secrets and \r\npassing them to foreign governments--and, because of the way \r\nthe criminal law is today, they are Federal crimes. We see that \r\nin the prosecution of Robert Hanssen or Brian Regan or Ana \r\nMontes.\r\n    What you face inevitably in a case like that, both in \r\nespionage cases and in terrorism cases, is an inquiry that's \r\nbeing conducted by courts into sort of what is driving this \r\nsurveillance or search. Is it the desire to gather evidence so \r\nthat we can successfully prosecute this person and lock them \r\nup, or is it instead the non-law enforcement concern about \r\nstopping espionage and preventing further harm or what have \r\nyou.\r\n    Now there is an argument that prosecution of spies and \r\nterrorists is just one more counterintelligence tool, one more \r\nprotective measure. By surveilling them we can recruit them, \r\ndouble them, we can cut them off from access to classified \r\ninformation, we can PNG their handlers, or possibly prosecute \r\nthem. But that argument would be, I think, new.\r\n    So the basic concern is that in these cases there is the \r\npossibility of criminal prosecution and the concern is that \r\nthat not be the driving force behind the surveillance.\r\n    Senator DeWine. Mr. Chairman, I've gone too long and I \r\napologize. I thank the Chair for your indulgence.\r\n    Let me just say to our witnesses today I appreciate the \r\ntestimony very much. I'm going to explore this a little more \r\nbecause I'm not, contrary maybe to what I said, I'm open. I'm \r\nwilling to listen. If there's a compelling reason to do this, \r\nmaybe we should do it. I guess I just don't get it yet. So I'm \r\ngoing to explore it a little more. I appreciate it.\r\n    Mr. Kris. We're at your disposal.\r\n    Senator DeWine. Thank you.\r\n    Chairman Graham. Senator Wyden.\r\n    Senator Wyden. Thank you, Mr. Chairman.\r\n    I'd like to ask you, Mr. Kris, if I could, about electronic \r\nsurveillance and particularly how the Administration sees \r\ndrawing the line between what constitutes lawful online \r\nactivity and matters that we ought to be concerned about, such \r\nas criminal hacking from abroad.\r\n    Section 201 is trying to define criminal hacking, and \r\nclearly this is going to be an issue for the Congress. How \r\nwould you define it?\r\n    Mr. Kris. It's a difficult term to define. We take a run at \r\nit on the criminal side in section 106 of our bill and, if \r\nyou'll permit me, I'll turn to that provision.\r\n    We define hacking in terms of trespass and if you are a \r\ntrespasser into a computer then effectively that is the core of \r\nthe hacking definition that we have in section 106. I want to \r\nsay that this is--and I'm happy to respond--I want to say that \r\nthis is not one of the sections identified and it is not really \r\nwithin my personal area of expertise. This is a criminal law \r\nprovision here. But that is the gist of what we are doing in \r\nsection 106.\r\n    I think the section 201 provision, as I understand it, is \r\nmotivated by a similar concern. I think it's intriguing notion \r\non the FISA side to take out hacking from the definition of \r\nFISA electronic surveillance. I think that's one that we would \r\nlike to sit down with not only our interagency process in the \r\nIntelligence Community but also with the staff to sort of work \r\nto see if we can ensure that we're doing exactly what we want \r\nto do and nothing more.\r\n    Senator Wyden. Let me, if I might, change the subject to \r\nthe question of biological and chemical and radioactive \r\nmaterials. Your bill has a provision that makes it unlawful to \r\npossess a variety of materials--biological agents and a host of \r\nother areas that are essentially health-related. What do you \r\nthink the major vulnerabilities are now in this area and how \r\nwould your bill address it?\r\n    Mr. Kris. Again I have to sort of apologize, Senator. That \r\nis not one of the provisions that was identified to us by the \r\nChairman in advance of the hearing, and I am really very \r\nreluctant to set out into an explanation of something that I am \r\nnot really prepared to discuss. We can certainly get back to \r\nyou with the right people on that, but I don't think I am.\r\n    Chairman Graham. Senator Wyden, I asked the General Counsel \r\nto screen the Attorney General's recommendations for purposes \r\nof identifying which of his recommendations were in the \r\njurisdiction of our Committee, and it was only those that we \r\nsubmitted to Mr. Kris and asked him to be prepared to comment \r\non today.\r\n    Senator Wyden. So we can't get an answer out of any of the \r\npeople at the table.\r\n    Suffice it to say this is what my constituents are asking \r\nabout today, and this is in the Justice Department's bill. I \r\ncertainly respect you, Senator Graham, if they are not prepared \r\nto talk about it, but clearly there are statutes and \r\nregulations that apply to the possession of chemical agents and \r\ntoxins and biological agents, and I hope we'll talk about it \r\ndown the road.\r\n    Mr. Parkinson. Just quickly, Senator Wyden, I assume you're \r\nreferring to section 305 of the Administration's bill, and \r\nwhile we didn't come necessarily prepared to talk about that, \r\nthat section does enhance the number of offenses in the \r\nbiological weapons arena. It adds subsections to existing \r\nstatute 175 to include additional offenses of possessing \r\nbiological agents and toxins, and then it has a section about \r\nselect agents within the jurisdiction of the Health and Human \r\nServices Department.\r\n    The intent and the goal of those sections is to make sure \r\nthat biological agents or toxins are only in the hands of \r\nauthorized personnel, and it does two things. It establishes a \r\nnew regulatory regime within the purview of HHS and it also \r\nadds a couple of new offenses to address it on the law \r\nenforcement side.\r\n    Senator Wyden. Are there vulnerabilities that you can \r\ndiscuss this afternoon that make the need for those \r\nimprovements necessary?\r\n    Mr. Parkinson. There certainly are vulnerabilities. I can't \r\ncomment about imminent vulnerabilities, but certainly at a \r\nlarger level we and the Department and the Intelligence \r\nCommunity have been focused on biological and chemical weapons \r\nas a priority for several years now. I think that there's no \r\nquestion there are vulnerabil- ities, and this provision, \r\nsection 305, is one attempt to deal with it both on the law \r\nenforcement side and the regulatory side.\r\n    Senator Wyden. Mr. Chairman, obviously this is not a day to \r\nget into as much detail as we might in this area, but I hope we \r\nwill turn to it, because this is something I am getting asked a \r\ngreat deal about, and it is in the Justice Department's bill \r\nand we're going to be anxious to talk to you.\r\n    Thank you.\r\n    Chairman Graham. Senator Edwards and then Senator Kyl.\r\n    Senator Edwards. Thank you, Mr. Chairman.\r\n    Mr. Kris, you were probably here when I asked Ms. Divoll \r\nsome questions about the differences between the Administration \r\nproposals and the provisions of the bill. Let me say first of \r\nall that I spent part of Saturday in Charlotte with our FBI \r\nofficials in North Carolina, and their overwhelming message to \r\nme was we have to bring these FISA procedures up to being able \r\nto deal with what we're confronted with technologically today.\r\n    I understand the concern and I am with you. I want to make \r\nthis work. But I also share some of the concerns that others \r\nhave expressed and I expressed earlier. Let me just talk about \r\nit briefly and then get you to respond if I can.\r\n    If I understand it correctly, the fundamental premise on \r\nwhich FISA is based is that, unlike a title III wiretap, \r\nbecause it's a foreign intelligence-gathering operation, it's \r\nnot required to meet some of the constitutional standards--for \r\nexample, probable cause requirements. At least that's not been \r\nrequired in the statute. You can comment on that if you would.\r\n    But that of underlying premise has been critical in the \r\nanalysis of why this legislation has to date been \r\nconstitutional. Now the change from ``the'' to ``a'' of course \r\nis a huge change in terms of the law. It may not sound like \r\nmuch, but in terms of the law it's an enormous change. That \r\nchange means that the primary purpose of the investigation \r\ncould in fact be criminal, as long as a purpose was foreign \r\nintelligence-gathering. So I have multiple concerns, one of \r\nwhich you've already addressed.\r\n    I was concerned about the possibility that somewhere down \r\nthe road the U.S. Supreme Court may declare the statute \r\nfacially unconstitutional. You've talked about that some. I'd \r\nlike to hear more about that because I continue to have \r\nconcerns about that. But I understand your reasoning about \r\nthat.\r\n    Second, the possibility that a conviction may be overturned \r\nor also that information gathered as a result of a FISA \r\napplication may not be allowed into evidence, suppressed by the \r\ncourt, and, I might add, I think it goes further than that. It \r\nseems to me that it creates the possibility that not only that \r\nparticular FISA would be suppressed but that others within the \r\nsame class would be found to be unconstitutional as applied. \r\nTherefore you have a problem not just in the individual case, \r\nwhich I know you've talked about some here today, but you could \r\nhave a declaration by a \r\nFederal district court somewhere in the country that could have \r\nimplications for ongoing FISAs, for FISAs that are similar and \r\nfall within the same class, and as a result would have much \r\nbroader implications. So I'd be concerned about that.\r\n    I might add I know from having looked at the Supreme Court \r\ncases the Supreme Court has taken a particular interest, I \r\nthink, in the last couple of years in this specific issue, not \r\ndealing with FISA but what the primary purpose of the search \r\nwas. So that's a concern I have.\r\n    Then finally I know that the U.S. Supreme Court has \r\nhistorically--you've talked about the fact that we're going to \r\nhave the courts deal with this on a case-by-case basis. The \r\nU.S. Supreme Court has traditionally, in issues of foreign \r\nintelligence-gathering, showed deference to Congress, and \r\nproperly so. I agree with that. But they showed deference to \r\nCongress. I just wonder from your perspective whether it would \r\nnot be some abdication of our responsibility to say, ``Well, \r\nwe're going to leave this issue to the courts on a case-by-case \r\nbasis, where the courts are very likely to say or very possibly \r\ncould say this is an area of foreign policy, this is an area of \r\nforeign intelligence-gathering, this is an area traditionally \r\nleft to Congress.''\r\n    That being the case, who has the responsibility for \r\ndeciding whether in fact this is appropriate and \r\nconstitutional?\r\n    Just one last notion. Instead of changing the statute, \r\nsuppose we said--and this is nothing but an idea--you expressed \r\nconcern about having to constantly evaluate whether the primary \r\npurpose was a criminal investigation or the primary purpose was \r\nforeign intelligence-gathering. That makes sense to me. I can \r\nsee that.\r\n    But instead of changing the language of the statute, which \r\nmight potentially create more problems than it cures, suppose \r\nwe said that in your initial application you are required to \r\nshow that the primary purpose was the FISA requirement that \r\nexists now--foreign intelligence-gathering--but at some point \r\ndown the road if it changed, when you come up for renewal you \r\nwouldn't have to make that showing again. In other words, it \r\nonly has to be shown in the initial application.\r\n    I'm sorry. I went on too long. But if you could respond I \r\nwould appreciate it.\r\n    Mr. Kris. It's a tall order to cover all of that. I'll do \r\nmy best. First, with respect to the probable cause issue that \r\nyou raised, as a technical matter FISA does require a showing \r\nof probable cause, but it is of a different thing. In the \r\ncriminal context it's probable cause that a crime has been \r\ncommitted; here it is probable cause that the target is an \r\nagent of a foreign power. But I take your larger point about \r\nthe difference in standards.\r\n    I guess, responding to the other point about how this would \r\nplay out in a suppression situation, the first thing I guess I \r\nshould say is I don't think that even under the current regime \r\nand under any possible regime we can avoid making case-by-case \r\ndeterminations. Whether it be a primary purpose inquiry, a \r\npurpose inquiry, or any other inquiry, we are and have to \r\nexamine each one of these applications not only because I think \r\nthey are going to be evaluated on a case-by-case basis but \r\nbecause the certification from the Director of the FBI and the \r\napproval of the Attorney General is made on a specific case-by-\r\ncase basis. One of the safeguards of FISA is that it requires \r\nthat high-level involvement.\r\n    Also, I don't know if this has been made clear, but I think \r\nthe FISA Court, in evaluating FISA applications, would be \r\nentitled, and OLC is of this view as well, to evaluate the \r\nconstitutionality of an application ex ante. So we would not \r\njust be in a situation where we're rolling the dice and taking \r\nour chances in district court.\r\n    Senator Edwards. The evaluation would take place on the \r\nfront end, is what you're saying.\r\n    Mr. Kris. Yes, exactly.\r\n    As to the sort of derivative suppression, that is a fairly \r\ncomplex body of fourth amendment law about when, assuming an \r\ninitial constitutional violations, the fruits of that violation \r\ntaint subsequent searches. That has got to be evaluated also on \r\na case-by-case basis. But I acknowledge the issue.\r\n    With respect to the deference and the delegation issue, I \r\nwould like to think that the courts have recognized Executive \r\nauthority and have paid deference to Executive determinations \r\nin the area of foreign intelligence, and indeed I think that's \r\nreflected in FISA. When the DCI or the Director of the Bureau \r\nmakes a certification as to purpose, the FISA Court by statute \r\nis required, even in the case of a U.S. person--and district \r\ncourts I think would operate under the same standard--to review \r\nthe certification only for clear error. So there is a built-in \r\ndeference mechanism where if the DCI or the Director of the \r\nBureau makes a certification, it is to be upheld unless it is \r\nclearly erroneous, which is a fairly generous standard of \r\nreview.\r\n    I think that deference, even if not in that precise form, \r\nwould continue to apply regardless of how the statute is \r\namended and indeed even if there were no statute.\r\n    Finally, I guess with respect to the initial application \r\nidea I guess I think that if we are going to allow a lower \r\nstandard than primary purpose in second and subsequent \r\napplications I'm not sure that will do the trick for us. I'm \r\nnot sure it will solve the problem, I guess more importantly, \r\nbecause we will be up on multiple renewals and if after the \r\nsecond one we are dropping down I think we will face a lot of \r\nthe same concerns that you have. That's sort of a idea that I \r\nwould want to give a little more thought.\r\n    Senator Edwards. I've taken too much time already. Thank \r\nyou for that response. Let me just make clear I want to work \r\nwith you. I want to make this work. We appreciate the work \r\nyou're doing. I know first-hand from my folks that what you're \r\nproposing is of critical importance. We just need to be sure \r\nthat it's going to do what we want it to do.\r\n    Mr. Kris. Yes, sir. Thank you.\r\n    Chairman Graham. Thank you, Senator Edwards.\r\n    Senator Kyl.\r\n    Senator Kyl. Thank you, Mr. Chairman. I have three specific \r\nquestions, if I could.\r\n    The first is a situation in which at least it's my \r\nunderstanding that FISA actually presents a tougher standard \r\nthan generally. This has to do with the--well, the best example \r\nis the trap and trace or the pen registers that the U.S. \r\nSupreme Court has held in the regular context do not present a \r\nconstitutional expectation of privacy or constitutional issue, \r\nwith respect to just the existence of the call or the numbers \r\nthemselves and so on. Yet under FISA the mere existence of the \r\ncall or the data exchange is termed a communication and must be \r\nprotected from electronic surveillance.\r\n    Why is that so? Why isn't that being suggested for change? \r\nQuestion No. 1.\r\n    Question No. 2, is it the fact that FISA does only apply to \r\nnon-U.S. citizens? Once somebody is identified as meeting the \r\ncriteria agent of a foreign power or terrorist group and so on, \r\nthen why should citizenship constitutionally make a difference \r\nhere? Why should there be a higher standard?\r\n    Finally, I wasn't here when you answered Senator Shelby's \r\nquestion, Mr. Kris, but I understand from staff that you \r\nexpressed a concern about section 204, and I just wondered \r\nwhether you could go into greater detail on the problems \r\nassociated with section 204 requiring the Government to meet \r\nboth title III and FISA standards.\r\n    Mr. Kris. Yes, sir. With respect to the first question \r\nconcerning pen\/trap authority, there is a proposal in the \r\nAdministration's bill--section 155--that would lower the \r\nstandard for FISA pen\/trap orders to make them roughly \r\nanalogous to the standard for criminal pen-trap orders. You are \r\nright. Under Smith v. Maryland there is no fourth amendment \r\nprivacy interest in pen\/trap information, and the standard in \r\ncriminal cases is a certification from the applicant that the \r\ninformation sought is relevant to a criminal investigation.\r\n    We're seeking a standard in FISA that would require a \r\nsimilar certification that the information sought is relevant \r\nto a counterintelligence investigation. So that would be our \r\nsection 155.\r\n    With respect to FISA and U.S. citizens, U.S. citizens may \r\nbe FISA targets if they are agents of a foreign power as \r\ndefined by statute, and the statute contains two definitions of \r\nagent of a foreign power. The first applies to any person other \r\nthan a U.S. person, and the statute defines a U.S. person to be \r\na citizen or a permanent resident alien. So that could apply \r\neither to U.S. citizens or foreign persons. Then a second \r\nprovision that defines the term for U.S. persons. It has a \r\nslightly higher standard--I may have misspoken. I want to make \r\nsure I get it clearly.\r\n    There is a provision that applies to anyone other than a \r\nU.S. person, so only to foreigners, and then another provision \r\nthat applies both to U.S. persons and foreigners. So a U.S. \r\nperson, a U.S. citizen, can be an agent of a foreign power if \r\nthey meet the statutory requirements.\r\n    Finally, with respect to----\r\n    Senator Kyl. On that, I mentioned the terrorist group. Does \r\na terrorist organization fit within the foreign power such as \r\nto include for our purposes here today that definition?\r\n    Mr. Kris [continuing]. Yes. Under 1801(a) of title 50, \r\nsubsection (4), a group engaged in international terrorism--and \r\nthat is itself a defined term--is a foreign power, and a U.S. \r\nperson can be an agent of an international terrorist group just \r\nas a non-U.S. person can under slightly different standards. So \r\nit does cover a U.S. citizen who is a member of a terrorist \r\norganization and acts to further the goals of that \r\norganization.\r\n    With respect to section 204, as I understand it, I think \r\nthe gist of section 204 is to allow simultaneous title III and \r\nFISA surveillance of the same target. I guess the concerns I \r\nhave about that provision--well, let me back up and just say \r\nthis. I think it is a good idea to make clear--and we have a \r\nprovision in here that does so--that FISA governs FISA, pen\/\r\ntrap governs pen\/trap, title III governs title III.\r\n    Doing them simultaneously I think raises two concerns for \r\nus. The first is that under the purpose analysis that's been \r\ndiscussed quite a bit today I think when we start using \r\ncriminal authorities to get surveillance on a FISA target we \r\nmuddy the water. We raise an issue there. I think second, and \r\nthis is maybe more pressing, title III does not contain the \r\nspecial secrecy provisions that FISA contains. In a FISA case \r\nif there is a motion to suppress it's handled ex parte and in \r\ncamera so that the defendant doesn't get access to the \r\napplication that led to the surveillance. That's critical to \r\nprotect our sources and methods. The same is not true in title \r\nIII.\r\n    So if we were to go up title III on some of these targets \r\nwe would risk exposing our sources and methods. That's why we \r\nactually use FISA for most of these targets.\r\n    Senator Kyl. Thank you very much.\r\n    Chairman Graham. Senator Shelby.\r\n    Vice Chairman Shelby. Mr. Chairman, I'll try to follow up \r\non what Senator Kyl's talking about in a sense.\r\n    Mr. Kris, section 105 of the Ashcroft proposals, as I \r\nunderstand it, would allow U.S. prosecutors to use against U.S. \r\npersons, information obtained by foreign government wiretaps \r\noverseas as long as U.S. intelligence or law enforcement \r\npersonnel were not involved in the surveillance. Is that right?\r\n    Mr. Kris. Yes, sir, that is correct.\r\n    Vice Chairman Shelby. How do you envision the government \r\nestablishing at trial that no employee of the U.S. Government \r\nwas involved in the foreign surveillance? That might be tough. \r\nIt might not be. I don't know.\r\n    Mr. Kris. I think it might depend on the case. I can, just \r\nsitting here, sort--it's been a while since I was a trial \r\nlawyer, but I can think of a couple ways. One is we might be \r\nable to call or obtain evidence from the foreign official who \r\nconducted the wire and have the appropriate official over \r\nthere, wherever it may be, make a certification, or I think \r\nthere are authorities for depositions of foreign witnesses. I \r\ndon't want to overstate it because I'm not intimately familiar \r\nwith those. But I think there is a mechanism for obtaining \r\nevidence from a foreign government official.\r\n    The other way I guess would be to do it from the U.S. side. \r\nThe difficulty I guess I see there is it could be anybody.\r\n    Vice Chairman Shelby. Certification would be hearsay, \r\nwouldn't it, in a sense, unless there's an exception to it.\r\n    Mr. Kris. I think--and Larry you may have more detail on \r\nit--there is a method of getting information from foreign \r\ngovernment officials into evidence in an American court.\r\n    Vice Chairman Shelby. Could you furnish that for the \r\nCommittee?\r\n    Mr. Kris. I would be happy to do that.\r\n    Mr. Parkinson. I would say, Senator Shelby, an analogous \r\nsituation arose in the African bombing prosecutions in New \r\nYork. It was not electronic surveillance but the circumstances \r\nsurrounding a statement given by one of the defendants while in \r\nforeign custody was a significant issue. At the end of the day \r\nin pretrial suppression hearings the prosecutor, who was the \r\nprimary prosecutor on the case, actually testified about all \r\nthe circumstances and what kinds of contact we had with the \r\nforeign government. So it was fully explored during pretrial \r\nproceedings. It actually worked reasonably well.\r\n    Vice Chairman Shelby. And it came in?\r\n    Mr. Parkinson. Well, yes, eventually the statement came in. \r\nThe judge ruled that under the circumstances it was admissible.\r\n    Vice Chairman Shelby. I'm just raising the question. I \r\nthink it should be raised.\r\n    Thank you, Mr. Chairman.\r\n    Chairman Graham. Thank you very much, Senator. I wish to \r\nextend my appreciation to this panel for an excellent and I \r\nimagine not the last time that we'll be discussing these \r\nmatters with you. I appreciate the comments that I believe all \r\nthree of you have made that it would probably be an appropriate \r\nnext step for your offices and our staff to continue to pursue \r\nsome of the issues raised here.\r\n    My goal is to achieve a blending of what the Attorney \r\nGeneral has recommended and what we had been developing prior \r\nto September 11 so that we can present as the intelligence \r\ncomponent of what is likely to be a larger piece of legislation \r\na piece of legislation, multiple sections, that had as high a \r\ndegree of consensus as possible.\r\n    I think the question that Senator Wyden raised underscores \r\nthat we aren't the only place that this issue is going on. As \r\nyou mentioned, Mr. Kris, the reason that maybe you're here \r\ninstead of the Attorney General is that he's testifying before \r\na Judiciary Committee, which has jurisdiction over a number of \r\nother of the Attorney General's proposals, particularly those \r\nthat are more of a criminal rather than an intelligence \r\norientation.\r\n    So we've got a lot of work to do, with a sense of urgency \r\nto get on with it. I appreciate your contributions to our \r\nprogress in understanding and appreciating the Attorney \r\nGeneral's proposals as well as your comments on those that we \r\nhave made.\r\n    Mr. McNamara. Thank you again for your leadership, Mr. \r\nChairman.\r\n    Mr. Kris. Thank you, Mr. Chairman.\r\n    Chairman Graham. The second panel--and I appreciate your \r\npatience and perseverance--is comprised of Mr. Jeff Smith, \r\nformer General Counsel to the Senate Armed Services Committee \r\nand former General Counsel to the CIA, and now a partner of the \r\nlaw firm of Arnold and Porter; Ms. Kate Martin, director of the \r\nCenter for National Security Studies; and Mr. Jerry Berman, \r\nexecutive director, Center for Democracy and Technology.\r\n    Thank you very much to all three of you. Again, I \r\nappreciate your willingness to testify on short notice and \r\nabout this important and complex set of legislative proposals.\r\n    Mr. Smith.\r\n    [The prepared statement of Mr. Smith follows:]\r\n                 Prepared Statement of Jeffrey H. Smith\r\n    Mr. Chairman, it is an honor to appear before you this afternoon to \r\ndiscuss these issues of great national importance.\r\n    You have asked me to discuss my views on how the United States \r\nshould respond to this attack, particularly from an intelligence and \r\nlaw enforcement perspective. You have also asked for my views on the \r\nlegislation pending before the Senate, particularly on those issues for \r\nwhich this Committee has jurisdiction.\r\n    It is a special privilege for me to appear before this Committee, \r\nbecause I was honored to be a member of its staff for nearly 5 years. \r\nMr. Chairman, Mr. Vice Chairman, I commend you for your leadership over \r\nthe years, particularly in this extraordinarily difficult and demand \r\ntime. I am sure this Committee and the Congress will play a great role \r\nin leading this Nation to victory.\r\n    Let me also add, Mr. Chairman, a note of commendation to the truly \r\nextraordinary efforts being made by the men and women of the U.S. \r\nIntelligence Community. They are working around the clock in an \r\nunprecedented effort of dedication and determination to find out who \r\nattacked us, prevent future attacks, and support the U.S. diplomatic, \r\nmilitary, law enforcement and intelligence response that is \r\nforthcoming. In particular, I know that George Tenet has put his heart \r\nand soul in this effort, and he deserves the nation's thanks.\r\n                                overview\r\n    Not long ago, there was much talk that we were headed toward a \r\nborderless world. Many believed that such factors as the revolution in \r\ninformation technology would render borders meaningless. Some even \r\nquestioned the future of State sovereignty, although others asserted \r\nthat the State would survive and remain the principal actor in \r\ninternational politics.\r\n    The increased flow of capital, goods, people, technology, and ideas \r\nacross borders has brought much to many of the world community. \r\nHowever, as the President has stated, those who stand to lose from such \r\ntrends have lashed out in irrational fear at the freedom, progress and \r\nprosperity the rest of the world enjoys. These forces of fear have \r\nwoven a network across many borders of like-minded individuals, \r\norganizations and governments to declare war on us and our allies.\r\n    The very nature of this international network presents us with \r\nunique challenges for which we must find new and innovative responses. \r\nThis threat comes at us from many directions and in many guises, and we \r\nmust be prepared to respond on an equally broad front.\r\n    The terrorists have created their own borderless world, and it is \r\ntherefore ironic--and most appropriate--that President Bush has called \r\nupon all states to enforce the most basic rules of international law: \r\nnamely, that states must exercise governmental authority within their \r\ndefined borders. President Bush has rightly demanded that every State \r\nabide by the rule of law by rooting out terrorists on its territory or \r\ncooperating with us in doing so. Indeed, all states have a common \r\ninterest in defeating these forces of terror and fear because these \r\nforces can turn on other states as surely as they have turned on us.\r\n    How then, should the United States respond? In my opinion, five \r\nprinciples should govern our response.\r\n    First, because this is a seamless, borderless attack we cannot have \r\nartificial seams or borders in our responses. In the past, we have \r\napproached terrorists acts by asking whether a particular act is a law \r\nenforcement, intelligence, or national security matter. That question \r\nmust no longer be the first question. We must be able to collect and \r\nanalyze information; then sort out later whether it's ``evidence'' or \r\n``intelligence.''\r\n    We must see this as an integrated threat for which we must have a \r\nsingle, integrated response. There should be no artificial ``stove \r\npipes'' in our responses. By that I mean we must have, as the armed \r\nservices do, a ``joint'' response. For many years now, the Department \r\nof Defense has worked very hard to create joint organizations that will \r\nfight jointly. The same must be true not just within our military but \r\nacross the government.\r\n    This is easier said than done, but the President took a major step \r\nin this direction by appointing Governor Ridge as the cabinet-level \r\ncoordinator for homeland security. The contours of his responsibility \r\nare not entirely clear at this point, but consideration should be given \r\nto a ``civilian CINC'' who would be responsible for coordinating the \r\nU.S. war on terrorists. Much as the Goldwater-Nichols Defense \r\nReorganization Act of l986 gave increased authority to our CINCs \r\noverseas, a civilian CINC for counter-terrorism could pull together all \r\nof the various elements to respond to the war. Perhaps, like a military \r\nCINC, the various agencies should assign ``forces'' to him for the \r\nfight. President Bush may have intended that Governor Ridge function in \r\nthis manner. In any event, I believe we need to continue to work very \r\nhard to resolve the organizational issues.\r\n    Second, our laws and regulations must be reviewed to assure that \r\nthey do not foster the stovepipes that have caused so many problems in \r\nthe past. For example, we know that government agencies do not share \r\ninformation as efficiently or as quickly as they should. In some \r\ninstances, current law prevents such information-sharing. Those laws \r\nshould be reviewed and changed as appropriate to foster effective \r\ninformation-sharing. I am pleased to see that many of the specific \r\nproposals before Congress make those changes.\r\n    In addition to legal requirements, attitudes and traditional \r\nrivalries continue to impair information-sharing. Nevertheless, it has \r\nbeen my experience that when U.S. officials are given a particular \r\nmission, they roll up their sleeves, share the information and get the \r\njob done. I am sure that is what has happened after this attack. It is \r\nnow up to Congress to eliminate unnecessary impediments in the law that \r\nclog the machinery of government. The executive branch, too, must \r\nreduce or eliminate unnecessary constraints on the sharing of \r\ninformation.\r\n    At the same time, we must recognize that many of these rules, such \r\nas grand jury secrecy, were enacted to protect the rights of our \r\ncitizens. We must find a way to accommodate the Intelligence \r\nCommunity's needs without impairing the rights of U.S. citizens.\r\n    Third, we must be as aggressive as our Constitution will permit. \r\nFor example, we should examine whether the standards for conducting \r\nelectronic surveillance of non-U.S. citizens within the United States \r\nto acquire foreign intelligence should be changed. Yesterday's \r\nWashington Post reports (p. A18) that the FBI wanted to initiate \r\nelectronic surveillance against some of Osama Bin Laden's non-U.S. \r\nperson associates in the United States prior to the attack but the \r\nJustice Department did not believe there was adequate authority under \r\nFISA to obtain a wiretap. If that's true, we should change the law.\r\n    The basic concept underlying FISA is that a warrant is required to \r\napprove electronic surveillance to collect foreign intelligence in the \r\nUnited States--but that a somewhat lower standard is appropriate than \r\nfor criminal purposes. FISA also distinguishes between U.S. persons and \r\nnon-U.S. persons and it is, in theory, easier to obtain a warrant to \r\ncollect against non-U.S. persons than U.S. persons.\r\n    I have not had time to review the recent case law on surveillance \r\nof non-U.S. persons. But I am generally aware that courts have, over \r\ntime, extended more Fourth Amendment protections to non-U.S. persons. I \r\nsuspect, however, that most if not all of those cases are criminal \r\ncases. I believe, therefore, that Congress should take a hard look at \r\nthe standards in FISA for conducting surveillance of non-U.S. persons \r\nand consider easing the standards for obtaining warrants for electronic \r\nsurveillance against non-U.S. persons for foreign intelligence \r\npurposes.\r\n    As Justice Arthur Goldberg said, the Constitution is not a suicide \r\npact.\r\n    Consideration should also be given to changing the rules on \r\n``minimization'' of information about U.S. citizens obtained in the \r\ncourse of electronic surveillance under FISA. It is my impression that \r\nintelligence analysts believe that valuable intelligence frequently is \r\nlost because of an overly cautious interpretation of the minimization \r\nrules.\r\n    Fourth, we will win this war--but how we win it matters. We must \r\nnot abuse the rule of law at home in seeking to enforce it overseas. We \r\nmust be determined, and when necessary prepared to use lethal force. \r\nBut that does not mean that we should, as some people have said, \r\n``throw out all the rules.'' The world has developed a body of law, the \r\nLaw of War, governing the conduct of armed conflict. These rules are \r\ndesigned not only to reduce the horrors of war and to protect \r\nnoncombatants, but also out of a recognition that the manner in which \r\nthe war is fought should not cause future conflict by sowing the seeds \r\nof hatred.\r\n    In that respect, we need to examine each of our proposed actions \r\nwith respect to the rule of law and how it will be seen by others. For \r\nexample, we should not rescind the ban on assassinations. Americans are \r\nnot assassins. Repealing the ban crosses a line that most Americans are \r\nuncomfortable crossing. In any event, we have been able to conduct \r\nmilitary and intelligence activities, including some using lethal \r\nforce, to accomplish our objectives in the past. Moreover, it is not an \r\neffective deterrent to terror. It often creates martyrs and heroes \r\namong the terrorists and exposes our own leaders to increased threats \r\nof assassination. Finally, when this war is over, I do not believe we \r\nwant a world in which our actions have established the assassination of \r\nforeign leaders as an acceptable norm of international behavior.\r\n    Fifth, the U.S. response should mobilize all resources of the \r\nnation. In particular, the President should call upon American industry \r\nto put its genius to work to meet and defeat this threat. The President \r\nshould support innovative, public\/private cooperative efforts to ensure \r\nthat the best minds in industry, academia and other elements of the \r\nprivate sector are marshaled against this national threat.\r\n    However, concerning the specific legislation currently under \r\nconsideration, I believe that the Congress should make clear that with \r\nrespect to increased electronic surveillance, the government will not \r\nadopt technical mandates requiring the information technology industry \r\nto build their systems in such a way as to facilitate interception, to \r\nenhance security or to control the dissemination of encryption. \r\nInstead, the government should reach out to industry and harness market \r\nforces to achieve the necessary results.\r\n    A national objective must be to assure that U.S. industry remains \r\nthe world leader in these fields. Our security is much better enhanced \r\nby having American industry continue to lead rather than to face \r\ninformation technology and encryption produced overseas, which would \r\nhappen if the United States exerts an overly heavy hand and interferes \r\nin the marketplace in the development of technology.\r\n    I also believe, Mr. Chairman, that this committee should carefully \r\nreview the Administration's bill from the perspective of whether it \r\ntakes into account all of the concerns raised by the Intelligence \r\nCommunity. I appreciate that the bill was very quickly pulled together \r\nand I value the need for speed. But we must be careful not only on the \r\ncivil liberties side, but also on the government's side. For example, I \r\nknow there are concerns as to whether there has been adequate sharing \r\nof information from the law enforcement agencies to the Intelligence \r\nCommunity. There may also need to be minor adjustments to FISA to \r\naddress recent or anticipated developments in technology.\r\n    For all of these reasons, it seems prudent to me to enact those \r\nprovisions for which there is wide support and proceed more \r\ndeliberately on other provisions.\r\n\r\n                          PROPOSED LEGISLATION\r\n\r\n    Now let me turn to the specifics of the legislation.\r\n    You have asked me to consider those provisions of the bill as \r\nintroduced on behalf of the Administration that are within the \r\njurisdiction of this Committee. You have also asked me to comment on \r\nthe bill introduced by the Chairman of this Committee. I have not had a \r\ngreat deal of time to study either bill, but I am happy to provide the \r\nfollowing preliminary comments.\r\n\r\n                         ADMINISTRATION'S BILL\r\n\r\n    Turning first to the bill as introduced on behalf of the \r\nAdministration, I note that Section 103 amends 18 U.S.C. 2510(7) to \r\npermit sharing of Title III wiretaps with any officer or employee of \r\nthe executive branch of the Federal Government.\r\n    The proposed change in the statute includes no limitation as to \r\nwhom it may be given. It seems prudent to limit the purposes for which \r\nsuch information may be disseminated within the executive branch, for \r\nexample by limiting it to national security matters.\r\n    The analysis also says that it will harmonize Title III standards \r\nwith those of FISA. However, intelligence officers have complained that \r\ntoo frequently the Department of Justice either refuses to share \r\ninformation collected under FISA or is very slow in providing it. I \r\nbelieve this is a more fundamental question and ought to be addressed \r\nalong the lines I suggest above. I can see no reason why information \r\ncollected by the Department of Justice under a FISA wiretap is not \r\nimmediately made available to a relevant agency of the Intelligence \r\nCommunity. If it concerns a U.S. person, it seems to me that the \r\nAttorney General could require common minimization standards to be \r\nfollowed by all intelligence agencies.\r\n    Section 104 is characterized as a ``savings provision,'' and the \r\nexplanation says that it provides that collection of foreign \r\nintelligence is governed by foreign intelligence authorities rather \r\nthan by criminal procedural statutes. That is a noteworthy objective, \r\nas I discuss above. However, it is not clear to me what this proposed \r\nchange would accomplish. I believe more detailed explanation of the \r\nproposed changes and its consequences are needed.\r\n    Section 105 appears to codify the so-called ``silver platter'' \r\ndoctrine; namely that when a foreign government provides information to \r\nthe U.S. Government for which the U.S. Government has not asked nor had \r\nany role in collecting, the U.S. Government may use that information. \r\nHowever, I am troubled by the proposed language of the new section \r\n2514(1)(b). It would require that when a U.S. official participated in \r\nthe electronic surveillance, the information collected may only be used \r\nwhen it ``would have been lawful if executed within the United \r\nStates.'' That may be entirely appropriate in the case of a criminal \r\nprosecution, but I do not believe such limitation should apply in a \r\ncase of collection of foreign intelligence. There may also be reason to \r\ndistinguish between information collected on a U.S. person--for which a \r\nhigher standard might be appropriate--and a non-U.S. person.\r\n    Section 151 extends the duration of the time--to 1 year--that the \r\nFISA court may authorize search and surveillance in the United States \r\nof officers and employees of foreign powers and foreign members of \r\ninternational terrorist groups. This is the same provision as section \r\n202 of Senator Graham's bill and seems to be a sensible provision.\r\n    Section 152 expands the obligations of third parties to furnish \r\nassistance to the government under FISA, particularly when the target \r\nmoves frequently to avoid detection. This is substantially the same as \r\nsection 203 of Senator Graham's bill and enhances the ability to \r\nmonitor individuals who move rapidly to change the mode of their \r\ncommunication to avoid detection. It also seems sensible and should be \r\nadopted.\r\n    Section 153 would change the language of FISA so that it may be \r\nused where foreign intelligence is ``a'' purpose of the investigation, \r\nas opposed to current law which limits it to instances in which it is \r\nthe sole or primary purpose of the investigation. Consistent with my \r\nviews as outlined above, I believe this is an appropriate change. I \r\nbelieve the government should have flexibility in deciding whether to \r\ninitiate a FISA collection, particularly when foreign nationals are \r\ninvolved, as opposed to being forced into a Title III collection with \r\nits higher standards. However, the Committee should ask the \r\nAdministration whether current law has limited its ability to conduct \r\nFISA in instances in which the Administration thinks it would have been \r\nappropriate. The Committee should be careful in endorsing this change \r\nbecause it holds out the potential that the government would seek FISA \r\nsurveillance warrants--when it didn't have enough information to get a \r\nTitle III order--but in which the foreign intelligence information to \r\nbe obtained was remote or highly speculative.\r\n    Section 154 calls for greater sharing of foreign intelligence \r\ninformation held in the hands of the Department of Justice, whether in \r\na grand jury proceeding or obtained under Title III. I believe this is \r\nan extremely important provision but note that it does not appear to be \r\ncodified. I believe it should be. I also note that it is similar to \r\nsection 354 of the Administration's bill and section 301 of Senator \r\nGraham's bill. My first impression is that this provision in the \r\nAdministration's bill is the most clear. In particular, the \r\nAdministration's proposal mentions Rule 6E of the Federal Rules of \r\nCriminal Procedure, which has been a significant bar to providing \r\nrelevant information from Grand Jury investigations to the Intelligence \r\nCommunity.\r\n    Section 155 would eliminate the requirement that the government \r\nestablish that a communications device has been used to contact ``an \r\nagent of a foreign power'' in order to obtain a FISA order for a pen \r\nregister\/trap and trace order. I believe this makes sense and should be \r\nadopted.\r\n    Section 156 would give the Attorney General the authority to seek \r\ninformation with an ``Administrative Subpoena'' for documents and \r\nrecords similar to the authority that he has in drug investigations. \r\nThis seems to be a sensible provision.\r\n    Section 157 expands the authority of the FBI to issue National \r\nSecurity Letters to request certain information. Current law requires \r\nboth a showing of relevance and a showing of links to ``an agent of a \r\nforeign power.'' The elimination of this latter requirement would \r\npermit the FBI to seek information in the same fashion as with criminal \r\nsubpoenas. It seems to me sensible and should be adopted?\r\n    Section 354 makes specific changes to the Federal Rules of Criminal \r\nProcedure, and in combination with section 154 seems a sensible \r\napproach.\r\n    Although the Committee does not have jurisdiction over section 110 \r\nof the Administration's bill, I have one comment that I believe the \r\nCommittee should consider and perhaps recommend to the Judiciary \r\nCommittee. That section amends Title 18 so that a provider of \r\ntelecommunications and services, including ISPs, could provide \r\ninformation to a governmental entity, including the contents of the \r\ncommunication, if the company ``reasonably believes that an emergency \r\ninvolving immediate danger of death or serious physical injury to any \r\nperson justifies disclosure of the information.'' Companies ought to be \r\nencouraged to provide such information to the government in such \r\ncircumstances. However, I note that there is no immunity for a company \r\nthat makes such a disclosure. There is such proposed statutory immunity \r\nin Section 158, which provides for disclosure of educational records. \r\nThat section provides ``no person furnishing records or information \r\npursuant to this subsection shall be liable to any other person for \r\nfurnishing such information.'' I suggest that a similar provision be \r\nconsidered to protect those companies who voluntarily provide \r\ninformation on individuals to the government as provided under Section \r\n110.\r\n\r\n                       CHAIRMAN GRAHAM'S PROPOSAL\r\n\r\n    Turning to the bill suggested by the Chairman, I have the following \r\ncomments.\r\n    Section 101 would add a new provision to the responsibilities of \r\nthe DCI to ``establish requirements and priorities for and manage the \r\nanalysis and dissemination of all foreign intelligence collected under \r\nFISA.'' My inclination is that this is a good idea in that it would \r\nauthorize the DCI to take a greater role in the use of FISA to collect \r\nand analyze foreign intelligence. However, I believe that the views of \r\nthe DCI should be sought and carefully considered. It is important that \r\nthe authority of the DCI be sufficient to assure that FISA collection \r\nis done in an efficient manner to support the collection of foreign \r\nintelligence but without giving the DCI excessive authority to direct \r\nthe use of electronic surveillance in the United States.\r\n    Section 102 revises the National Security Act to make it clear that \r\nthe DCI has particular responsibilities for international terrorism. \r\nAgain, I believe this is a good change, as there has been considerable \r\ndebate within the executive branch as to primacy for the collection, \r\nanalysis and dissemination of information on international terrorism. \r\nThis is a welcome change.\r\n    Section 103 would add a provision to the National Security Act \r\nstating that an officer of the Intelligence Community ``may establish \r\nand maintain an intelligence relationship with any person for purposes \r\nof acquiring information'' on a variety of terrorist targets. This is \r\nclearly aimed at assuring that case officers in the field will be \r\nencouraged to take the necessary risks associated with recruiting a \r\nhuman source in a terrorist organization, even when that individual may \r\nhave committed murder or engaged in other serious human rights abuses \r\nor criminal activities.\r\n    The current guidelines were adopted by the CIA in 1995 because of \r\nconcerns expressed widely in the press and the Congress that the Agency \r\nhad dealt with such individuals. The guidelines adopted a simple test: \r\nDoes the value of the intelligence that the individual could provide \r\noutweigh the risks to the United States that would be associated with \r\ndealing with this individual? The guidelines have two purposes. First, \r\nto assure that Headquarters make an informed decision to authorize the \r\nrecruitment of such an individual. The view was that the balancing test \r\nshould be done at Headquarters, not in the field. The second purpose is \r\nto protect the officer involved. Once approval had been granted from \r\nHeadquarters, the officer has a ``hunting license'' and is free to \r\nproceed, knowing that he or she had the full backing of Headquarters. \r\nThis latter point was particularly important because in the mid-90's \r\nseveral officers were under investigation by congressional committees, \r\nthe PFIAB, the CIA\/IG, and, in some instances, criminal grand juries. \r\nMany officers, as this Committee well knows, felt it necessary to \r\npurchase personal liability insurance on their own to cover the costs \r\nof hiring outside counsel to defend themselves from the various \r\ninvestigations. I thought then, and think now, that no CIA case officer \r\nshould ever have to purchase such insurance out of his or her own \r\npocket.\r\n    I understand that many officers in the field believe that these \r\nguidelines are a hindrance to recruiting sources in terrorist \r\norganizations. I also understand that CIA Headquarters maintains that \r\nthe guidelines do not hinder the recruiting of sources who could \r\nprovide valuable intelligence in these organizations. It is therefore \r\ndifficult to know where the truth is. However, it is clear that there \r\nis a perception in the field that these guidelines inhibit recruiting. \r\nCIA case officers must know that they are encouraged to take risks and \r\nthat when they do so, they will be backed up by CIA Headquarters, the \r\nrest of the National Security establishment, and the Congress.\r\n    Therefore, these guidelines should be carefully reviewed by the DCI \r\nand his top leadership team, and if they are in fact inhibiting \r\nrecruiting in the field, they should be changed.\r\n    I do have reservations about Section 103 of this bill. First, it \r\nprovides that an officer may maintain a relationship only ``for \r\npurposes of acquiring information.'' Thus, if an officer had a \r\nrelationship with a source inside a terrorist organization, this \r\nlanguage would limit our ability to direct that officer to use that \r\nrelationship to disrupt a terrorist organization, for example by \r\nfeeding misinformation to his source or by using his source to support \r\na covert operation that would be designed to disrupt or destroy the \r\nterrorist organization. Second, it raises questions about CIA case \r\nofficers dealing with persons in other groups, such as international \r\norganized crime or international narcotics organizations, that enjoy no \r\nsimilar provision.\r\n    On reflection, I think the Congress could usefully order the \r\nDirector of Central Intelligence, perhaps in conjunction with PFIAB or \r\nsome other outside organization, to conduct a careful review of these \r\nguidelines and, if they are in fact hindering the recruiting efforts in \r\nthe field, they should be changed accordingly.\r\n    Section 104 defers submittal to Congress of certain reports and \r\nwill surely be most welcome.\r\n    Section 201 amends FISA to exclude from the definition of \r\ninterception an instruction or signal that is given to operate an \r\nelectronic device. That seems a sensible provision and should be \r\nadopted.\r\n    Sections 202 and 203 are analogous to Sections 151 and 152 in the \r\nAdministration's bill and, as noted above, should be adopted.\r\n    Section 204 seeks to clarify the relationship between Title III and \r\nFISA wiretaps. The consequences of this provision are not immediately \r\nclear but it does not seem sensible to me to have a situation in which \r\ntwo collections efforts are being mounted in parallel.\r\n    Section 301, as discussed above, is designed to assure that the \r\nIntelligence Community is given access to information held by the \r\nDepartment of Justice. This is a commendable objective but my \r\ninclination is to favor the provisions in the Administration's bill, as \r\nthey seem more clear.\r\n    Sections 302, 303 and 304 also make reasonable and thoughtful \r\nchanges to existing law and should be adopted.\r\n    Mr. Chairman, in conclusion let me repeat how honored I am to \r\naddress these issues, and I look forward to answering the Committee's \r\nquestions.\r\n\r\n         STATEMENT OF JEFFREY H. SMITH, PARTNER, ARNOLD\r\n                           AND PORTER\r\n\r\n    Mr. Smith. Thank you, Mr. Chairman. I will be brief. The \r\nhour is late. I have submitted a statement which I will try to \r\nsummarize here in just two or three moments.\r\n    It's clearly an honor to be here and to be back in front of \r\nthis Committee. I was Senator Nunn's designee to this Committee \r\nfor many years, and it's an honor to be back.\r\n    Also, on behalf of my former colleagues at CIA and in the \r\nIntelligence Community, they are putting forward an \r\nunprecedented level of dedication as we speak, and I think we \r\nall owe them a vote of thanks. George Tenet, also a former \r\nalumni of this great Committee, has put his heart and soul into \r\nthis effort and he deserves the Nation's thanks.\r\n    As I think about the issues you've asked me to address, it \r\nseems to me there are five principles that we ought to \r\napproach. I have taken a somewhat broader approach than just \r\nsome of the specific questions you've asked me. This is a \r\nseamless attack on the United States across international \r\nborders, and in our response we need to have a seamless \r\nresponse as well. We need to, as you are trying to do, Mr. \r\nChairman, try to create an integrated response to an integrated \r\nthreat. There should be no stovepipes in the U.S. Intelligence \r\nCommunity that would impair our ability to respond.\r\n    Senator Shelby mentioned that in his opening statement. We \r\ndon't want any stovepipes. We need to get rid of those.\r\n    Much as the Goldwater-Nichols Defense Reorganization Act of \r\n1986 gave increased authority to our CINCS overseas--\r\ncommanders-in-chief overseas--I'm rather attracted to the idea \r\nof a civilian CINC to attack counterterrorism, perhaps even \r\nadopting the model where forces from various U.S. agencies are \r\nassigned to this individual much as they are assigned an \r\noverseas CINC so that he or she can accomplish his mission.\r\n    Second, our laws and regulations must be reviewed to make \r\nsure that they do not foster the stovepipes that have caused so \r\nmany problems in the past, and I am pleased to see that many of \r\nthe proposals you've put forward address those changes.\r\n    Clearly we have to recognize that many of these rules--such \r\nas grand jury secrecy and so on--were enacted to protect the \r\nrights of our citizens, but we have to find a way to make our \r\ngovernment work more effectively.\r\n    Third, I think we should be as aggressive as our \r\nConstitution will permit, particularly with respect to non-U.S. \r\npersons. Yesterday's Washington Post reports on page A18 that \r\nthe FBI wanted to initiate electronic surveillance against \r\nOsama bin Ladin's non-U.S. person associates in the United \r\nStates prior to the attack, but the Justice Department did not \r\nbelieve that there was adequate authority, given the \r\ninformation available to them, to get a FISA tap. If that's the \r\ncase, I think we ought to look at the law and see whether it's \r\nworking adequately. As Mr. Justice Goldberg said, the \r\nConstitution is not a suicide pact.\r\n    Fourth, we will win this war against terrorism, but how we \r\nwin it matters. We must not abuse the rule of law at home in \r\nseeking to enforce it overseas. We need to examine each of our \r\nproposal actions with respect to the rule of law and see how it \r\nwould be seen by others. It's beyond the scope of what you've \r\nasked me to think about, but, Mr. Chairman, I don't think it's \r\na good idea to rescind the ban on assassinations. Americans are \r\nnot assassins. We've been able to do everything we need to do \r\nwithout crossing that line. When this war is over, I do not \r\nbelieve we want a world in which the actions of the United \r\nStates have established that the assassination of foreign \r\nleaders is an acceptable norm of international behavior.\r\n    Fifth, I think we should mobilize all resources of the \r\nNation. In particular, I think the Government ought to reach \r\nout to industry and harness some of the genius of our industry \r\nto assist in the war on terrorism. The national objective must \r\nbe to assure that our industry remains the world leader in all \r\nof the fields at play here, from aviation to information \r\ntechnology.\r\n    Finally, Mr. Chairman, I know you asked the Administration \r\nwitnesses this, but I think particularly from this Committee's \r\npoint of view as you move forward I urge you to consult closely \r\nwith the Intelligence Community. To be perfectly candid about \r\nit, the Administration's bill was put together in a great rush, \r\nand I think we want to make certain that the issues that \r\nconcern the Intelligence Community are adequately reflected in \r\nthe Administration's bill or clearly in any bill that the \r\nCongress passes.\r\n    I've given the Committee extended comments on details of \r\nthe legislation. I'm pretty rusty in many of the ins and outs \r\nof how these laws work, so please forgive my conclusions if \r\nthey are inadequate. I won't go through them at any length. Two \r\nor three things I want to mention very briefly.\r\n    The first is again beyond the scope of this Committee but \r\nsection 110 of the Administration's bill says that companies \r\nare encouraged to provide information to the Government even \r\nincluding the content of U.S. person communications when in an \r\nemergency it would risk life and limb. I think that's an \r\nhonorable provision, but I notice that there's no immunity for \r\nthe companies should they do that.\r\n    The Administration has also made a proposal that \r\neducational universities have to turn over educational records \r\nof individuals, and in that instance they are proposing to give \r\nthe educational institutions immunity. I think a similar grant \r\nof immunity should be considered in the case of U.S. companies \r\nwho give to the Government information on U.S. persons \r\nvoluntarily.\r\n    I'm happy to talk about section 103 of your bill, Mr. \r\nChairman, that would deal with the question of dirty assets. I \r\ndo want to commend you for section 102, which gives the DCI \r\nincreased authority over counterterrorism. When I was general \r\ncounsel of the CIA we spent an unconscionable amount of time \r\narguing with the FBI over who was going to issue the report \r\nprior to the 1996 Atlanta Olympics, whether that was the FBI's \r\nresponsibility or our responsibility. Those sorts of arguments \r\nought not take place.\r\n    Mr. Chairman, I'm happy to answer your questions.\r\n    Chairman Graham. Good. Thank you very much, Mr. Smith. I'm \r\ngoing to call in your two brethren on this panel and then we \r\nwill ask questions to all of you together.\r\n    Mr. Berman. We talked and tried to say could we split the \r\nbaby in half.\r\n    Chairman Graham. I will call on both of you collectively \r\nand you can allocate the time as you wish.\r\n    [The prepared statement of Mr. Berman follows:]\r\n  Jerry Berman, Executive Director, Center for Democracy & Technology\r\n    Mr. Chairman, Mr. Vice-Chairman, members of the Committee, thank \r\nyou for the opportunity to testify at this hearing on the momentous \r\nquestion of improving our nation's defenses against terrorism in a \r\nmanner consistent with our fundamental Constitutional liberties.\r\n    The Center for Democracy and Technology is a non-profit, public \r\ninterest organization dedicated to promoting civil liberties and \r\ndemocratic values for the new digital communications media. Our core \r\ngoals include enhancing privacy protections and preserving the open \r\narchitecture of the Internet. Among other activities, CDT coordinates \r\nthe Digital Privacy and Security Working Group (DPSWG), a forum for \r\nmore than 50 computer, communications, and public interest \r\norganizations, companies and associations working on information \r\nprivacy and security issues.\r\n    CDT joins the Nation in grief and anger over the devastating loss \r\nof life resulting from the September 11 terrorist hijackings and \r\nattacks against the World Trade Center and the Pentagon. Like many, our \r\nrelatively small staff had friends and acquaintances killed in those \r\nheinous acts. We fervently support the efforts of our Government to \r\nhold accountable those who direct and support such atrocities.\r\n    It is clear that improvements need to be made in America's counter-\r\nterrorism procedures, and it appears there are many things that can be \r\ndone without harming civil liberties. But we know from history that \r\nmeasures hastily undertaken in times of peril--particularly measures \r\nthat weaken controls on government exercise of coercive or intrusive \r\npowers--often infringe civil liberties without enhancing security. In \r\nthe current climate, it is all the more important to act deliberately \r\nand ensure that our response is balanced and properly targeted. If we \r\ngive up the constitutional freedoms fundamental to our democratic way \r\nof life, then the terrorists will have won.\r\n    In that regard, Mr. Chairman, we commend you and the Committee for \r\nholding this hearing, and taking the time to consider the legislative \r\nproposals put forth by the Administration and those you have developed. \r\nOnly through the hearing process can you and the American public \r\nunderstand what is being proposed, how it would change current law, and \r\nwhether the changes are responsive to any deficiencies that the \r\nSeptember 11 attack may have revealed. Just as President Bush and his \r\nmilitary advisers are taking their time in planning their response, to \r\nensure that they hit the terrorist targets with a minimum of collateral \r\ndamage, so it is incumbent upon this Congress to avoid collateral \r\ndamage to the Constitution.\r\ncomments on chairman graham's ``intelligence to prevent terrorism act''\r\n    My testimony will focus on the electronic surveillance provisions \r\nin both Chairman Graham's ``Intelligence to Prevent Terrorism Act'' and \r\nthe Administration's proposed ``Anti-Terrorism Act of 2001.'' My \r\ncolleague Kate Martin will focus on several other provisions in the \r\nbills that need clarification. Many provisions of the Chairman's bill \r\nappear narrowly and approximately crafted to carefully provide desired \r\nintelligence capabilities; however I will also highlight at least one \r\nprovision of the bill--Section 201--that may have broad implications \r\nfor the Internet.\r\n    As you well know, this Committee--and the current legal structure \r\nof the Intelligence Community--were established after Watergate both to \r\nimprove intelligence and to ensure that the rights of Americans were \r\nnot eroded by the vast and sometimes vague intelligence authorities \r\nthat had previously existed. The legal and oversight system for \r\nintelligence sprang not just from a concern about civil liberties, but \r\nalso from a concern about improving the efficacy of intelligence \r\ngathering. As such, the Committee mission demands a careful vetting of \r\nany new proposed intelligence authorities and we applaud the committee \r\nfor holding these public hearings to do so.\r\n    A number of the provisions of both the Chairman's bill and the \r\nAttorney General's bill would change provision of the Foreign \r\nIntelligence Surveillance Act of 1978 (FISA). As the Committee is also \r\nwell aware, FISA gave extensive authority to the Intelligence \r\nCommunity. Under it the FBI and CIA have considerable capability to \r\nconduct electronic surveillance without the high standards (such as a \r\nshowing of probable cause of criminal conduct, notice, and eventual \r\nadversarial scrutiny) demanded under our domestic criminal law for \r\nwiretapping. In exchange for these significantly lowered standards \r\nallowing much greater intelligence surveillance, FISA demanded a clear \r\nseparation--a wall--between electronic surveillance conducted for \r\nintelligence purposes and electronic surveillance conducted for \r\ncriminal law purposes. FISA was based on a clear understanding that it \r\nwould not become a back door for use of foreign intelligence \r\nsurveillance in domestic criminal investigations. FISA information that \r\nwas incidentally collected regarding criminal matters could be shared \r\nacross this wall but the purpose of a FISA surveillance had to be \r\nintelligence. This was intended to avoid a major erosion of our \r\nconstitutional rights through the lower standards of FISA surveillance.\r\n    As we read the Chairman's bill, we applaud what appears to be the \r\ncommittee's intent to maintain that distinction between intelligence \r\nauthorities and domestic law enforcement provisions. We are \r\nparticularly pleased to see that the Chairman's bill does not appear to \r\nintended a rewriting of the FISA authorities. As described below, \r\nhowever, we believe that the Attorney General's bill does not reflect \r\nthis deeper understanding and would eviscerate the FISA principles, \r\nallowing foreign intelligence surveillance standards to be used in \r\ncriminal investigations. (See, e.g., Administration bill, Sections 151-\r\n157) Thus, while we have concerns about some specific provisions, we \r\nbelieve the Chairman's bill is far more narrowly crafted, and more \r\nappropriately targeted to the situation at hand.\r\n    First and foremost, we note with approval Section 204's attempt to \r\nmake it clear that the FBI could conduct both a Title III criminal \r\nwiretap and a FISA wiretap, intercepting the same communications for \r\ndifferent purposes. If done properly, this is a more direct and \r\nappropriate approach to allow criminal investigations and intelligence \r\ninvestigations to go forward side-by-side. We need to explore with the \r\ncommittee the specific language of the section, but if it tracks the \r\nintent expressed in the section-by-section analysis, we believe it is \r\nan appropriate approach.\r\n    Section 202, regarding the duration of certain FISA surveillance \r\nauthorities, raises some concerns. FISA electronic surveillances of \r\npersons are already granted for periods three times longer than Title \r\nIII surveillances. Under 202, the duration of surveillance before any \r\njudicial oversight would be extended from 90 days to 1 year. In the \r\ncase of physical searches, the period would be extended from 45 days to \r\n1 year. Courts have only turned down one FISA application in the 22-\r\nyear history of the statute's use. Judicial review, after 45 or 90 \r\ndays, hardly seems overly burdensome; if surveillance should continue a \r\njudge will surely--given the history of discretion in these matters--\r\nrenew the order. The risk of this provision is that unproductive \r\nsurveillance could continue for long periods of time without any \r\njudicial oversight.\r\n    Section 203, the assistance section, may also merit more careful \r\ndrafting. To the extent, as indicated in the section-by-section \r\nanalysis, it is only requiring additional assistance from service \r\nproviders that cannot be identified in advance, we believe it is a \r\nmeasured response. However, we believe the language should be reviewed \r\nwith staff to ensure that it is not granting new surveillance \r\nauthorities.\r\n    Section 201 raises concerns and is one area where we should not \r\nlegislate quickly in this complex field of electronic surveillance law. \r\nFrankly, we find the language to be very ambiguous and potentially very \r\nbroad. It must undergo further discussion and more careful drafting.\r\n    As drafted, the provision would exclude from the definition of \r\n``electronic surveillance'' any ``instruction or signal'' sent to a \r\ncomputer--if it was not a communication to another person, or was not \r\nfor lawful information retrieval--thereby exempting such information \r\nfrom the reduced standards of FISA. As we read the interaction of Title \r\nIII and FISA, this would allow the interception of such signals with no \r\njudicial oversight.\r\n    While apparently intended to allow interception of communications \r\n``from a hacker, located abroad'' the provision also sweeps in a broad \r\nclass of otherwise protected communications. It would appear to \r\ninclude, for example:\r\n     commands sent remotely to a home security system;\r\n     reminders being sent to an online calendar or alarm clock \r\nsystem;\r\n     stock trade commands sent to an electronic trading system;\r\n     programs or files being sent (not retrieved) to a computer \r\nsystem;\r\n\r\nor any other commands one sends to one's own computer, Palm Pilot, or \r\nwireless phone. All of these sensitive communications, in which there \r\nis both a reasonable expectation of privacy and a warrant would be \r\nrequired for law enforcement purposes, could now be obtained under FISA \r\nand without judicial oversight.\r\n    It is also unclear how the provision could be applied in practice. \r\nIn a packet-switched data interception environment like the Internet, \r\nit is difficult if not impossible to know in many cases which packets \r\nto be intercepted contain an ``instruction or signal'' for a computer \r\nand are not for information retrieval, and which contain information \r\nthat should require a judicial order. In many, if not in most, cases it \r\nwill only be possible to see whether this provision applied after the \r\ncommunication is intercepted, read, and analyzed. Thus, if this \r\nprovision is to be used it would appear to create a license for \r\ninterception of numerous communications that would ultimately be \r\ndiscarded after they are read and analyzed.\r\n    Section 201 would appear to create a giant hole in the FISA \r\nelectronic surveillance requirements and would allow the interception \r\nof numerous personal communication without judicial oversight. It is in \r\nserious need of redrafting at the very least; if its goal is to allow \r\ninterception of hackers attacking a computer, it seems better addressed \r\nby provisions that would allow target computer owners to consent to the \r\ninterception of attacks on their computers.\r\n    We recommend that this section be deleted or substantially \r\nclarified.\r\n\r\n                  COMMENTS ON ADMINISTRATION PROPOSALS\r\n\r\n    The Administration's Anti-Terrorism Act of 2001 goes far beyond the \r\nmeasured response of this committee. It would expand Federal Government \r\nauthorities, including the authorities of the intelligence agencies, to \r\nconduct electronic surveillance and otherwise collect information on \r\nU.S. citizens. Some of the changes are quite fundamental. The bill \r\nincludes numerous, complex provisions extending the surveillance laws \r\n(while raising many questions about how they will be implemented) and \r\naltering the long-standing distinction between criminal investigations \r\nand foreign intelligence investigations. Many of the changes are not \r\nrelated to security concerns raised by the September 11 terrorist \r\nattacks. Many are not limited to terrorism cases, but relate to \r\ncriminal investigations. Some have been proposed by the Justice \r\nDepartment before, and some have even been rejected by Congressional \r\ncommittees.\r\n    In terms of the issues within the jurisdiction of this Committee, \r\nthese are our top concerns:\r\n     Section 153. Foreign Intelligence Information. Allows the \r\nFBI to collect evidence for criminal cases under the looser standards \r\nof foreign intelligence investigations--an end-run around the \r\nrelatively stringent requirements for wiretaps in criminal cases and a \r\nbreach of the understanding that led to enactment of FISA.\r\n     Section 155. Pen Register and Trap and Trace Authority. \r\nEliminates the only meaningful statutory control that exists on use of \r\npen registers ant trap and trace devices in intelligence cases.\r\n     Section 156. Business records. Allows access to any \r\nbusiness records upon the demand of an FBI agent, with no judicial \r\nreview or oversight.\r\n     Sec. 157. Miscellaneous national-security authorities--\r\nAmends several key privacy laws, allowing much greater access to \r\nbanking, credit, and other consumer records in counter-intelligence \r\ninvestigations, with no judicial review at all.\r\n    A more detailed analysis of the Administration's bill follows \r\nbelow. Once again, we appreciate and commend this Committee's efforts \r\nto gather public input and to hold this hearing today. We hope the \r\nCommittee will move forward with those provisions of its bill and the \r\nAdministration's bill that are non-controversial and responsive to the \r\ntragic attacks of September 11, but will defer on the other more \r\ncomplex and divisive provisions that we have identified. We look \r\nforward to working with the Committee and staff to craft an appropriate \r\nresponse at this perilous moment in our country's history, and to avoid \r\na rush to judgment on legislation that could ultimately imperil both \r\nfreedom and security.\r\n\r\n              EXTENDED ANALYSIS OF THE ADMINISTRATION BILL\r\n\r\n    The Administration's bill has two kinds of provisions that give \r\nrise to concerns: those that would lower the standards for government \r\nsurveillance and those that address the difficult question of \r\ninformation sharing.\r\n    In terms of collection standards, our law enforcement and \r\nintelligence agencies already have broad authority to monitor all kinds \r\nof communications, including e-mail. Both the criminal wiretap statute \r\nand the Foreign Intelligence Surveillance Act already cover terrorism. \r\nFor some time, it has been recognized that those standards need to \r\nstrengthen the standards for government surveillance. We see no \r\njustification for the changes proposed in the Administration bill that \r\nweaken those standards. We are particularly opposed to changes that \r\nwould eliminate the judicial review that can be the most important \r\nprotection against abuse.\r\n    The Foreign Intelligence Surveillance Act allows the FBI to conduct \r\nelectronic surveillance and secret physical searches in the United \r\nStates, including surveillance of U.S. citizens, in international \r\nterrorism investigations. FISA also authorizes court orders for access \r\nto certain business records. As you know, the standards under FISA are \r\nmuch lower than the standards for criminal wiretaps, and in return, the \r\nsurveillance is supposed to be focused on the collection of \r\nintelligence, not criminal evidence. The FISA court, which last year \r\napproved more than 1000 surveillance requests, has denied only one \r\nrequest in its 22 year history.\r\n    Distinct from the Administration's unsupportable desire to avoid \r\njudicial controls on its authority, perhaps the central and most \r\nimportant problem facing the Congress is the question of information \r\nsharing. For many years, this has been recognized as a very difficult \r\nquestion; it is one that will be especially difficult to resolve \r\nsatisfactorily given the pressure-cooker atmosphere of this time. We \r\nwant to work out a balanced solution. But it cannot be done by wiping \r\naway all rules and barriers. Any solution needs to preserve the \r\nfundamental proposition that the CIA and other intelligence agencies \r\nshould not collect information on U.S. citizens in the United States.\r\n\r\nSec. 103. Authorized Disclosure\r\n    Allows disclosure of information obtained from wiretaps with any \r\nexecutive branch official.--This is clearly too broad, especially in \r\nlight of the vague language in 18 USC 2517 that allows sharing when \r\nappropriate to the proper performance of the duties of the official \r\nmaking or receiving the disclosure. The issue of greatest concern to us \r\nis that the CIA and other intelligence agencies would begin compiling \r\nfiles on U.S. persons. This provision should be narrowed, so that it \r\nauthorizes disclosures to personnel with intelligence, protective, \r\npublic health or safety, or immigration duties, to the extent that such \r\ndisclosure is related to proper performance of the official duties of \r\nthe officer receiving the disclosure, and with the proviso that nothing \r\ntherein authorizes any change in the existing authorities of any \r\nintelligence agency. (Rather than amending the definition section of \r\nTitle III, it might be better to build these concepts directly into \r\nsection 2517.)\r\n\r\nSec. 105. Use of Wiretap Information from Foreign Governments\r\n    Allows use of surveillance information from foreign governments, \r\neven if it was seized in a manner that would have violated the fourth \r\namendment.--Section 105 makes surveillance information collected about \r\nAmericans by foreign governments (so long as U.S. officials did not \r\nparticipate in the interception) admissible in U.S. courts even if such \r\ninterceptions would have been illegal in the United States. Such a \r\nprovision is ripe for abuse and provides unhealthy incentives for more \r\nwidespread foreign surveillance of U.S. individuals.\r\n\r\nSec. 151. Period of Orders of Electronic Surveillance of Non-United \r\n        States Persons Under Foreign Intelligence Surveillance\r\n\r\n    Allows secret searches and electronic surveillance for up to 1 year \r\nwithout judicial supervision.--Under current law, the FISA Court can \r\norder a wiretap of a ``non-U.S. person'' for a period of 90 days, after \r\nwhich the Government must report to the court on the progress of the \r\nsurveillance and justify the need for further surveillance. The court \r\ncan authorize physical searches for up to 45 days. The amendment would \r\nextend both timeframes to 1 year, meaning that after the Government's \r\ninitial ex parte showing there would be no judicial review for 1 year. \r\nWe think this is too long. We recommend that the current timeframes be \r\nretained for the initial approval. (After all, they are already far \r\nlonger than the 30 days for which criminal wiretaps, including criminal \r\nwiretaps in terrorism cases, can be approved.) If, after 90-days of \r\nelectronic surveillance or 45 days of physical searches, the Government \r\ncan show a continuing justification for the surveillance or search \r\nauthority, then we would agree that the court could authorize a longer \r\nsurveillance. We would recommend 1 year for electronic surveillance, \r\n180 days for physical searches (thus preserving the current law's \r\nrecognition that physical searches are more problematic than electronic \r\nsearches and need to be authorized for shorter periods of time).\r\n\r\nSection 152 Multi-Point Authority\r\n    Allows roving taps, including against U.S. citizens, in foreign \r\nintelligence cases with no limits--ignoring the Constitution's \r\nrequirement that the place to be searched must be ``particularly \r\ndescribed.''--This section purports to afford the FBI ``roving tap'' \r\nauthority for intelligence investigations similar to what already \r\nexists for criminal investigations. See 18 USC 2518(11). A roving tap \r\nallows the Government to intercept whatever phone or e-mail account a \r\nsuspect uses, even if the Government cannot specify it in advance. \r\nRoving tap authority is constitutionally suspect, at best, since it \r\nruns counter to the Fourth Amendment's requirement that any search \r\norder ``particularly describe the place to be searched.'' However, the \r\nproposed language places no limitation on the exercise of the roving \r\ntap authority and offers the FBI no guidance for its exercise. The \r\nproposed change merely authorizes the court to issue to any ``person'' \r\nan order commanding them to cooperate with a surveillance request by \r\nthe Government. If roving tap authority is supposed to focus on the \r\ntargeted person, not on the telephone instrument, then the intercept \r\nauthority should be limited to the target--it should only allow \r\ninterception of communications to which the target of the surveillance \r\nis a party. Such limitations are absent from this proposal.\r\n\r\nSection 153. Foreign Intelligence Information\r\n    Allows the FBI to collect evidence for criminal cases under the \r\nlooser standards of foreign intelligence investigations--an end-run \r\naround the relatively stringent requirements for wiretaps in Title \r\nIII.--This section, which merely changes the word ``the'' to ``a,'' \r\nwould actually make a fundamental change in the structure of the \r\nwiretap laws. It would permit the Government to use the more lenient \r\nFISA procedures in criminal investigations which have any counter-\r\nintelligence purposes and would destroy the distinctions which \r\njustified granting different standards under FISA in the first place. \r\nUnder existing law, FISA can be used only if foreign intelligence \r\ngathering is ``the'' purpose of the surveillance. The proposed \r\nprovision would permit FISA's use if this is ``a'' purpose, even if the \r\nprimary purpose was to gather evidence for a criminal prosecution. This \r\nis an extraordinary change in the law which has no justification.\r\n\r\nSection 154. Foreign Intelligence Information Sharing\r\n    With no standards, permits the sharing of grand jury information, \r\nTitle III wiretap information, and any other ``foreign intelligence \r\ninformation'' acquired in a criminal case with many different Federal \r\nofficials not involved in law enforcement.--This is a sweeping change \r\nin the law. ``Foreign intelligence information'' is not defined. The \r\nprovision places no limits on the purpose for which the information may \r\nbe shared, and no limit on its reuse or redisclosure. It requires no \r\nshowing of need and includes no standard of supervisory review or \r\napproval. As written, a criminal investigator could share with White \r\nHouse staff information collected about foreign policy critics of the \r\nAdministration. The provision, at the very least, should be drastically \r\ncurtailed.\r\n\r\nSection 155. Pen Register and Trap and Trace Authority\r\n    Eliminates the only meaningful statutory control that exists on use \r\nof pen register and trap and trace devices in intelligence cases.--The \r\nlaw currently requires a showing that the person being surveilled is a \r\nforeign power, an agent of a foreign power or an individual engaged in \r\ninternational terrorism or clandestine intelligence activities. This \r\namendment would eliminate that standard and permit the use of FISA for \r\npen registers whenever the Government claimed that it was relevant to \r\nan ongoing intelligence investigation. Contrary to the DOJ's assertion \r\nin its section-by-\r\nsection, this is not the same as the standard for pen registers in \r\ncriminal cases. There, the surveillance must be relevant to an ongoing \r\ncriminal investigation, which is moored to the criminal law. There is \r\nno similar constraint on foreign intelligence investigations, since \r\nthey can be opened in the absence of any suspicion of criminal conduct. \r\nThis provision ignores the fact that the Government was granted the \r\nspecial rules of FISA only for situations that involved intelligence \r\ngathering about foreign powers.\r\n\r\nSection 156. Business Records\r\n    Allows access to any business records upon the demand of an FBI \r\nagent, with no judicial review or oversight. Traditionally, the FBI had \r\nno ability to compel disclosure of information in intelligence \r\ninvestigations. The compulsory authorities were limited to criminal \r\ncases, where the open, adversarial nature of the system offered \r\nprotections against abuse. For example, in criminal cases, including \r\ninternational terrorism cases, the FBI can obtain grand jury subpoenas, \r\nunder the supervision of the prosecutor and the court, where the \r\ninformation is relevant to a criminal investigation. The FBI has no \r\nability to invoke the power of the grand jury in intelligence \r\ninvestigations, since those investigations are conducted without regard \r\nto any suspicion of criminal activity. In 1998, in an expansion of \r\nintelligence powers, FISA was amended to give the FBI a new means to \r\ncompel disclosure of records from airlines, bus companies, car rental \r\ncompanies and hotels: Congress created a procedure allowing the FBI to \r\ngo to any FISA judge or to a magistrate. The FBI had only to specify \r\nthat the records sought were for a foreign intelligence or \r\ninternational terrorism investigation and that there were specific and \r\narticulable facts giving reason to believe that the person to whom the \r\nrecords pertain is an agent of a foreign power. This is not a \r\nburdensome procedure, but it brought the compulsory process under some \r\njudicial control. The Administration's bill would repeal the 1998 \r\nchanges and permit the use of ``administrative subpoenas'' rather than \r\nan application to a court to get any business records under FISA. An \r\nadministrative subpoena is a piece of paper signed by an FBI agent. \r\nThere is no judicial review, no standard of justification, no \r\noversight. Particularly in intelligence investigations, which are not \r\neven limited by the scope of the criminal law and in which there is no \r\ninvolvement of the U.S. Attorney's Office, FBI agents should not have \r\nsuch unreviewable discretion to compel disclosure of personal \r\ninformation.\r\n\r\nSee. 157. Miscellaneous National-Security Authorities\r\n    Allows much greater access to banking, credit, and other consumer \r\nrecords in counter-intelligence investigations.--Current provisions of \r\nlaw allow the Federal Government to obtain sensitive banking, credit, \r\nand other consumer records under the relaxed and secretive oversight of \r\nFISA--but only when there are ``specific and articulable'' facts \r\nshowing that the target consumer is ``a foreign power or the agent of a \r\nforeign power.'' Section 157 would eliminate these essential \r\nrequirement, mandating disclosure of this sensitive consumer data \r\nsimply if an FBI official certifies that they are needed for a \r\ncounterintelligence investigation (and with an ex parte court order for \r\naccess to credit reports). Section 157 would eliminate the ``agent of a \r\nforeign power'' standard in:\r\n     The Fair Credit Reporting Act, allowing access to records \r\nfrom consumer reporting agencies (including the names of all financial \r\ninstitutions where accounts are held, all past addresses and employers, \r\nand credit reports);\r\n     The Financial Right to Privacy Act, broadly allowing \r\naccess to financial records; and\r\n     The Electronic Communications Privacy Act, allowing access \r\nto telephone and toll billing records, and, newly added, all \r\n``electronic communication transactional records.''\r\n    As such, the Section would greatly increase access to the personal \r\ninformation of consumers or groups who are not agents of foreign \r\npowers. And in each case access the institutions granting access to \r\nconsumer information would be prohibited from disclosing that \r\ninformation or records had been obtained.\r\n\r\nSection 158. Disclosure of Educational Records\r\n    Amends the law protecting education records to permit access to \r\nthem.--While this might be justified in terrorism cases, the provision \r\ncovers all cases involving ``national security'' and is far too \r\nsweeping.\r\n\r\nSection 159. Presidential Authority\r\n    Does not appear to permit judicial challenge to seizure of \r\nproperty. At the very least, there must be such opportunity. A second \r\nprovision allows the use of secret evidence. Use of such evidence, if \r\never permitted, must be on a much higher standard than that the \r\ninformation is properly classified, as provided here. The Government \r\nmust be required to persuade a court that the disclosure to the party \r\nwould result in imminent and serious harm and the court must require \r\nthe Government to provide sanitized information to the party.\r\n\r\n   STATEMENT OF JERRY BERMAN, EXECUTIVE DIRECTOR, CENTER FOR \r\n                    DEMOCRACY AND TECHNOLOGY\r\n\r\n    Mr. Berman. I am the executive director of the Center for \r\nDemocracy and Technology, which specializes in communications \r\nand internet privacy and freedom issues. But I've been around a \r\nlong time, and in prior incarnations I was part of the lobbying \r\neffort to create this Committee in 1976 and also to pass and \r\nhelp draft the Foreign Intelligence Surveillance Act of 1978 \r\nand the Electronic Communications Privacy Act of 1986, working \r\nclosely as a civil libertarian with Administration and Hill \r\npeople to try and strike a careful balance between national \r\nsecurity and civil liberties. I think the effort proved \r\nsuccessful.\r\n    We have to go back and remember that this Committee was set \r\nup after Watergate for two purposes--first, to improve our \r\nintelligence capabilities and monitor that and keep track of \r\nthat; and second to make sure that the CIA and FBI and other \r\nintelligence agencies do not go off the rails again, as they \r\nhad done during the Watergate era, where they were \r\ninvestigating domestic dissent and Martin Luther King.\r\n    So we must be careful, and what we learned in that period \r\nis that emergency powers passed very quickly during World War \r\nII eventually spread out and eventually, instead of going after \r\nour foreign foes, which we need to do in this critical crisis, \r\nbegan to go after domestic dissent and it was not a happy \r\nperiod.\r\n    So, learning from that lesson, I think the Chairman asked \r\nthe right question. Why are we in a race for a multi-multi-\r\nsection bill covering the waterfront, which has provisions on \r\nlaw enforcement, intelligence and so forth? What needs to pass \r\nnow and what needs to pass later?\r\n    The key issue that's been discussed here deals with the \r\nwall that was built on electronic surveillance--let me focus on \r\nthat--the wall between electronic surveillance for intelligence \r\npurposes and electronic surveillance for law enforcement. The \r\nstandards for intelligence are lower, and we're not just \r\ntalking about electronic surveillance; we're talking about \r\nblack bag jobs. We're talking about secret searches which never \r\nget turned over to the target of the investigation. The \r\nstandards are important to give national security a leg up, but \r\nthey need to be carefully reviewed, they need judicial \r\nsupervision, and they need to be carefully thought out.\r\n    We applaud the Committee in your statute proposal. That \r\nwall is preserved, or at least the intent appears to preserve \r\nthat wall by requiring that if you're conducting an \r\nintelligence investigation conduct it there, under FISA. If you \r\nalso have a criminal investigation or information that leads to \r\na criminal investigation, open a title III warrant. That dual \r\nauthority maintains that wall.\r\n    If there is a problem between our intelligence agencies, it \r\nis not by eliminating the primary purpose test, which may be \r\nunconstitutional--Mr. DeWine raised that question and a number \r\nof the Committee--but surgically dealing with information-\r\nsharing that may be barred in criminal cases where you find out \r\ninformation that's of intelligence--and I would say \r\ninvestigation related to terrorism and international terrorism, \r\nwhich in a criminal wiretap ought to be turned over to \r\nappropriate agencies under proper circumstances.\r\n    That's a sharing issue, not a standard issue. That's why \r\nthe unwillingness to share and clarifying that is an important \r\nthing we can work on. It requires some surgery. So you preserve \r\nthat standard.\r\n    There are issues. You try to extend the length of a \r\nsurveillance to a year, where foreign persons are concerned, \r\nand 90 days for physical surveillance. The issue there is that \r\nwe're talking about secret searches again which never get \r\ndisclosed. The judicial supervision is to ensure that there are \r\nnot fishing expeditions, and the question is, since no FISA \r\nwiretap or extension except one has been turned down in the 22-\r\nyear history of the statute, what is the bureaucratic problem \r\nof continuing that supervision?\r\n    I did not hear an explanation of why that's necessary. \r\nThat's one section we have a concern.\r\n    I do have a concern in your bill with the gathering of \r\nmachine instructions to a computer. I don't know how you pick \r\nthose bits and bytes out of the air. Dealing with the computer, \r\nbits are bits, and instructions that may look like maybe a non-\r\nhuman communication to a computer also may contain packets \r\nwhich are communications. We need to figure out how to sort \r\nthat out. That takes a little time.\r\n    But still, you're on the track of trying to maintain the \r\ndemarcation. You need to look carefully at the Justice \r\nDepartment bill because it has vast implications for your \r\nmission, both intelligence and protecting our civil liberties. \r\nIt breaks down that purpose, the primary purpose test. It \r\nallows roving wiretap authority, which is available in law \r\nenforcement, but under much broader discretion. It's not tied \r\nto any device. You're not just following telephones, you're \r\nfollowing a person. Does that mean that you can follow the \r\nperson to any computer they are using, or can you follow them \r\nto a park and use electronic surveillance with a spike mike on \r\nwhoever they are talking to?\r\n    These need to be examined. So there are expansions that \r\nneed. Again, in terms of maintaining your intelligence mission, \r\nturning over grand jury information to the White House for \r\nintelligence purposes and not just to intelligence agencies is \r\na very serious question. Maybe it should occur in an \r\nintelligence investigation, but you need to look at \r\ncompromising sources and methods, the implications of having \r\nthat information turned over. A grand jury investigation, from \r\nlaw enforcement investigation, wiretaps, not only to the \r\nintelligence but the other people in the Administration, what \r\nis the implications of those standards being taken down.\r\n    I want to emphasize that they are not only breaching the \r\nwall on the intelligence side but on the law enforcement side \r\nlowering authorities in the name of going after international \r\nterrorism which apply across all criminal investigations, not \r\njust terrorism investigations and then not just using \r\ninformation-sharing from the criminal side for terrorism \r\ninvestigations but in a wide range for any intelligence \r\npurpose. That is a very broad, sweeping change in our law.\r\n    I could go on to business records and privacy issues that \r\nit raises. There is a lot to examine, and since I cannot on the \r\npublic record find any of the sweeping authority that they \r\nalready have having interfered with this investigation in any \r\nway, that it was an intelligence failure and not a restrictions \r\nfailure, why can't we take the time and go through this in a \r\ncareful way, maybe a couple months, but to try and have a \r\nstatute on the President's desk in 2 weeks without floor action \r\nis not the appropriate way to strike the balance between \r\nnational security and civil liberties.\r\n    Thank you.\r\n    Chairman Graham. Ms. Martin.\r\n    [The prepared statement of Ms. Martin follows:]\r\n   Statement of Morton H. Halperin, Chair, Advisory Board, and Kate \r\nMartin, Director, on Behalf of the Center for National Security Studies\r\n    Thank you Mr. Chairman and Vice Chairman for the opportunity to \r\ntestify today on behalf of the Center for National Security Studies. \r\nThe Center is a civil liberties organization, which for 30 years has \r\nworked to ensure that civil liberties and human rights are not eroded \r\nin the name of national security. The Center is guided by the \r\nconviction that our national security must and can be protected without \r\nundermining the fundamental rights of individuals guaranteed by the \r\nBill of Rights. In its work over the years on legislation from the \r\nForeign Intelligence Surveillance Act to the Intelligence Oversight \r\nAct, the Center has begun with the premise that both national security \r\ninterests and civil liberties protections must be taken seriously and \r\nthat by doing so, solutions to apparent conflicts can often be found \r\nwithout compromising either.\r\n    We appear before you today at a time of great mourning, when it is \r\ndifficult to turn our thoughts and attention from anything but our \r\ngrief and trouble. And we appreciate the enormous efforts of those \r\nindividuals who have put their own grief aside to concentrate on \r\nsearching for survivors, comforting those who have suffered most \r\ndirectly and finding and holding accountable the perpetrators of these \r\ncrimes.\r\n    It is not too soon to begin thinking about how we can improve our \r\nability to prevent such unspeakable events from occurring again. \r\nHowever, as we do so we must resolve to act in a way that protects our \r\nliberties as well as our security and which recalls the lessons of the \r\npast from times when we permitted our concerns for security to accept \r\nerosions of our liberty that we now regret. The Alien and Sedition \r\nActs, the Internment of Japanese Americans, McCarthyism, and the \r\nefforts of intelligence agencies and the FBI to disrupt the civil \r\nrights and anti-war movements were not our proudest moments. We must \r\nnot repeat them or lay the seeds for future abuses.\r\n    We owe it to all those innocent people who were murdered to reflect \r\nupon those basic principles and values which should inform our \r\ndiscussion today. What distinguishes us as a people from our fellow \r\nhuman beings who committed these terrible acts is our commitment to law \r\nand to individual freedom. It is a commitment to law made deliberately, \r\nwith calm reflection and an opportunity for public debate. The genius \r\nof democracy is the understanding that in the noisy and seemingly \r\ninefficient marketplace of ideas, the wisest decisions will be made. \r\nAnd certainly there is no more important subject than how to protect \r\nboth our liberty and security most especially at a time like this when \r\nboth may be so at risk. The American people look to the Members of this \r\nCommittee to make law as the founders of the Constitution envisaged \r\nwhen they set up this legislative body, after a full public debate \r\ninformed by facts, analysis and the chance for reflection. We owe \r\nnothing less to those who have been killed and to our children born and \r\nto be born.\r\n    We commend the Chair and the Vice Chair for their hard work and \r\nquick action to outline proposals intended to help prevent such \r\nhorrific acts in the future and to focus on needed structural reforms \r\nin the Intelligence Community. We are grateful to this committee for \r\nholding public hearings and for inviting the Center for National \r\nSecurity Studies to testify. At the same time, we call upon this \r\ncommittee not to precipitously make changes to long-standing rules on \r\nsome of the most technically complicated and difficult issues before \r\nthe Congress.\r\n    In urging you to proceed calmly and deliberately we speak on behalf \r\nof a coalition of more than 140 organizations from all ends of the \r\npolitical spectrum who last week all agreed on a Statement, which reads \r\nin part:\r\n\r\n                         In Defense of Freedom\r\n\r\n          This tragedy requires all Americans to examine carefully the \r\n        steps our country may now take to reduce the risk of future \r\n        terrorist attacks. We need to consider proposals calmly and \r\n        deliberately with a determination not to erode the liberties \r\n        and freedoms that are at the core of the American way of life. \r\n        We need to ensure that actions by our government uphold the \r\n        principles of a democratic society, accountable government and \r\n        international law, and that all decisions are taken in a manner \r\n        consistent with the Constitution. We can, as we have in the \r\n        past, in times of war and of peace, reconcile the requirements \r\n        of security with the demands of liberty. We should resist the \r\n        temptation to enact proposals in the mistaken belief that \r\n        anything that may be called anti-terrorist will necessarily \r\n        provide greater security. We must have faith in our democratic \r\n        system and our Constitution, and in our ability to protect at \r\n        the same time both the freedom and the security of all \r\n        Americans.\r\n\r\n    I ask permission, Mr. Chairman to submit for the record as an \r\nattachment to my statement the full statement of the In Defense of \r\nFreedom coalition and a list of the organizational and individual \r\nsigners of the statement. The danger of haste is not just to our civil \r\nliberties but equally to our security. We face an equal danger that in \r\nthe understandable rush to do something, what is done will not be \r\neffective in making us any safer, that it will substitute for the \r\ndifficult analysis and work that is needed to figure out just how to \r\nprevent such attacks in the future. This is particularly true with \r\nregard to widening surveillance of Americans, where extending the net \r\nof surveillance, rather than doing the difficult work of trying to \r\nfigure out who should be targeted, may well lead to information \r\noverload, where it will not be possible for the government to \r\ndistinguish the important from the insignificant.\r\n    We have had the Chairman's bill since Saturday morning and the \r\nadministration's proposals being considered by this committee for 2 \r\ndays more than that. We have done our best to provide the Committee \r\nwith our preliminary analysis of the proposals.\r\n    But most significantly, we urge you before acting, to hold \r\nadditional hearings, to obtain in writing the careful analyses needed \r\nof what the current authorities are and what changes would be effected \r\nby these proposals, why such changes would be useful and what the risks \r\nwill be. These are very technical and complicated issues, with enormous \r\nimplications for both civil liberties and our security and we need to \r\nact carefully.\r\n    If there are specific authorities immediately needed by the current \r\ninvestigators into last week's acts, those authorities could be \r\nseparated from the rest of the proposals and considered as quickly as \r\npossible. But those proposals designed to prevent such intelligence \r\nfailures in the future, can only be done wisely and effectively after \r\nmore is known about the cause of the failure and a public discussion \r\nabout how to fix them.\r\n    On the subject of haste, we welcome the provision that would undo \r\nthe hasty action of the Senate 10 days ago in repealing the DCI \r\nguidelines on recruitment of assets involved in terrorism or other \r\nhuman rights violations. That provision (sec. 815 in the September 13 \r\namendment to H.R. 2500) was apparently based on the misunderstanding \r\nthat the existing guidelines had prevented the CIA from recruiting \r\nterrorist informants, when the guidelines in fact simply required \r\nprocedures intended to insure that the appropriate high level officials \r\nat the agency approved the use of any such informants. They were \r\nadopted in response to the report by the President's Intelligence \r\nOversight Board that the CIA had not kept this committee informed as \r\nrequired by law of serious human rights violations. We understand that \r\nSection 103 of S. 1448, the Graham-Feinstein bill is intended to \r\noverride section 815 passed September 13 by specifically authorizing \r\nwhat is already the case, that the CIA may use terrorist informants. We \r\nwould suggest that the section 103 simply be amended to add that agency \r\nofficers may do so ``pursuant to guidelines or directives issued by the \r\nagency.''\r\n    We have organized our discussion of the proposals before the \r\nCommittee into three categories:\r\n     Changes to the Foreign Intelligence Surveillance Act.\r\n     Proposal to allow wiretap evidence obtained overseas in \r\nviolation of Fourth Amendment standards to be introduced against \r\nAmericans in U.S. courts; and\r\n     Changes to the current authorities of the Director of \r\nCentral Intelligence and rules regarding sharing of information \r\ngathered on Americans with the Intelligence Community.\r\n\r\n    I. PROPOSED CHANGE TO THE FOREIGN INTELLIGENCE SURVEILLANCE ACT\r\n\r\n    We have attempted to coordinate our testimony with that being \r\npresented by the Center for Democracy and Technology. Mr. Berman will \r\nprovide you with detailed comments on the specific provisions, but \r\nsince one of us was intimately involved in the lengthy negotiations \r\nwhich led to the enactment of FISA, we wanted to provide you with some \r\ngeneral remarks relating to the structures and purposes of FISA and of \r\nthe efforts to protect civil liberties while giving the government the \r\nauthority it needed to conduct electronic surveillance to gather \r\nforeign intelligence.\r\n    It is important to remember that FISA was a grant of authority to \r\nthe government to conduct surveillance, which the Supreme Court had \r\nheld was clearly within the ambit covered by the Fourth Amendment. The \r\nCourt had suggested that the warrant requirements of the Fourth \r\nAmendment might be different in national security matters and Congress \r\nand the Administration worked together, with the active involvement of \r\noutside groups and scholars, over a period of several years to craft \r\nthe careful compromise incorporated in FISA.\r\n    At the heart of FISA was this trade. Congress would authorize \r\nelectronic surveillance of foreign powers and their agents within the \r\nUnited States under a standard different and less stringent than \r\nrequired for national security wiretaps and it would authorize the \r\ngovernment never to tell the targets that their conversations were \r\nintercepted. In return the government accepted greater judicial \r\ninvolvement and oversight of the process (carried out in an ex parte \r\nrather than adversarial manner however) and a wall to insure that it \r\ndid not use these procedures to gather information for criminal \r\nprosecutions.\r\n    Proposals to alter FISA need to be understood in this context. It \r\nis not an anomaly that the government has to go back to court more \r\noften than under Title III to get authority to continue surveillance of \r\na private person lawfully resident in the United States. Since the \r\nperson will never be told of the surveillance nor have an opportunity \r\nto move to have the surveillance records purged, it is important that a \r\njudge check regularly, at least as a surveillance begins, to be sure \r\nthat the government's suspicion that the person was acting as the agent \r\nof a foreign power was correct and that the surveillance was producing \r\nforeign intelligence information while minimizing the collection of \r\nother information.\r\n    We urge you to keep this basic structure in mind as you consider \r\nobjections to specific provisions. We urge also that you remember the \r\ncare with which FISA was enacted and maintain the same spirit of \r\nskepticism and openness as this committee considers the proposed \r\namendments.\r\n    In this connection, it is also important to remember that \r\ninvestigations of terrorism pose particularly difficult problems \r\nbecause of the intersection of First Amendment, Fourth Amendment and \r\nnational security concerns. Unlike international narcotics \r\ninvestigations, it is important to distinguish between those engaged in \r\ncriminal terrorist activity and those who may share in the religious or \r\npolitical beliefs of the terrorists, or even their ethnic background, \r\nwithout engaging in any unlawful acts.\r\n    Regarding specific proposals on both FISA and changes to other \r\nstatues permitting national security investigations of financial \r\nrecords and other information, we refer you to Mr. Berman's testimony \r\nin addition to our comments below.\r\n\r\nElimination of the Primary Purpose Requirement, Administration Bill \r\n        Sec. 153\r\n    We want to stress our concern, as spelled out by Mr. Berman, about \r\nthe administration's proposal to eviscerate the original premise of the \r\nFISA, that its procedures would only be employed when the primary \r\npurpose of the surveillance was to gather foreign intelligence. The \r\nadministration's proposal in section 153 would turn the statutory \r\nscheme on its head by allowing the use of FISA surveillance when the \r\ngovernment's primary purpose is to bring criminal charges against an \r\nindividual, a change which we believe would violate basic Fourth \r\nAmendment guarantees.\r\n\r\nDuration of Authority to Conduct Surveillance and Searches of Non-U.S. \r\n        Persons Under FISA. Graham-Feinstein Bill, Sec. 202, \r\n        Administration Bill, Sec. 151\r\n    These sections would extend the period allowed for the conduct of \r\nFISA surveillance and searches of non-U.S. persons from 90 days and 45 \r\ndays respectively, to 1 year for both surveillance and searches. For \r\nthe reasons outlined above, the current limitations are an integral \r\npart of the balance intended to provide judicial supervision of the use \r\nof secret wiretaps and secret searches targeted against individuals, \r\nwho, while not permanent residents or U.S. citizens may well be long-\r\ntime legal residents and are protected by the Fourth Amendment. The \r\nstatute currently provides 1-year authorization for surveillance and \r\nsearches of embassies and similar establishments, because the Fourth \r\nAmendment does not apply to foreign embassies. If there is some \r\nnecessity, other than to avoid inconvenience, for longer authorizations \r\nfor individuals, we would suggest considering an amendment that would \r\nallow extended authorizations on a second application if the government \r\nmade a showing that the initial surveillance or search did in fact \r\nobtain foreign government information. In such a case, the second order \r\ncould authorize electronic surveillance for an additional 6 months, \r\nrather than the current 90 days, and authorize physical searches for 90 \r\ndays rather than the currently allowed 45 days.\r\n\r\n II. PROPOSAL TO ALLOW WIRETAP EVIDENCE OBTAINED OVERSEAS IN VIOLATION \r\n  OF FOURTH AMENDMENT STANDARDS TO BE USED AGAINST AMERICANS IN U.S. \r\n                COURTS, ADMINISTRATION BILL, SECTION 105\r\n\r\n    As described by the administration, section 105 of its bill would \r\nprovide that United States prosecutors may use against American \r\ncitizens information collected by a foreign government even if the \r\ncollection would have violated the Fourth Amendment. As the \r\nadministration points out, as criminal law enforcement becomes more of \r\na global effort, such information will come to play a larger role in \r\nFederal prosecutions and indeed other provisions of the administration \r\nbill would extend the extraterritorial reach of U.S. criminal law to \r\neven more crimes than are currently covered today.\r\n    Section 105 would for the first time codify the extraordinary view \r\nthat as the United States works to promote the rule of law throughout \r\nthe world and to extend the reach of U.S. criminal law, it should leave \r\nthe Bill of Rights behind. Implicit in this approach is the view that \r\nthe Constitution is merely an inconvenience to law enforcement rather \r\nthan acknowledging it as the best instrument yet written to govern the \r\nrelations of a government to the governed.\r\n    Certainly, it is not obvious how to implement the protections of \r\nthe Fourth Amendment against unreasonable searches and seizures in a \r\nnew era of global law enforcement. It is an issue that has just begun \r\nto be examined by the courts. While a bare majority of the Supreme \r\nCourt has held that the Fourth Amendment does not apply to the search \r\nand seizure of property owned by a nonresident alien and located in a \r\nforeign country, (United States v. Verdugo-Urquidez, 494 U.S. 259) it \r\nhas affirmed that the Fifth and Sixth Amendments do protect Americans \r\noverseas. Reid v. Covert, 354 U.S. 1 (1957). The question must also be \r\nconsidered under international human rights law, as it is quite likely \r\nthat unreasonable searches and seizures that don't meet Fourth \r\nAmendment standards also violate existing human rights treaties signed \r\nby the United States. The question of how to implement Fourth Amendment \r\nprotections for overseas searches will probably at some point require \r\ncongressional action, but it is a difficult and complicated issue that \r\ncannot be adequately addressed in the context of an emergency response \r\nto last week's terror attack.\r\n\r\n   III. CHANGES TO CURRENT LAW CONCERNING SHARING OF INFORMATION ON \r\n               AMERICANS WITH THE INTELLIGENCE COMMUNITY\r\n\r\n    Several provisions of both bills would significantly change current \r\nstatutory authorities and responsibilities for conducting terrorism \r\ninvestigations involving Americans or other U.S. persons inside the \r\nUnited States. The problem of effective coordination between such \r\ninvestigations and overseas intelligence activities is certainly one of \r\nthe most important ones before this Committee. It is also one of the \r\nmost difficult, both in terms of actually insuring effective \r\ninvestigations and making sure that the unintended consequences are not \r\nto repeal crucial protections for individual rights.\r\n    Since the creation of the CIA in the 1947 National Security Act, \r\nthere has been an attempt to distinguish between law enforcement, the \r\ncollection of information on Americans and others to be used in \r\ncriminal prosecutions of individuals, and foreign intelligence, the \r\ncollection of information about the plans, intentions and capabilities \r\nof foreign governments and organizations. When the CIA was created, its \r\ncharter specifically prohibited the agency from any ``law enforcement \r\nor internal security functions'' 50 U.S.C. 403-3(d)(1). As was \r\ndocumented in the Church committee report, it was the blurring of the \r\ndistinction between law enforcement and foreign intelligence national \r\nsecurity investigations that led to the abuses by the intelligence \r\nagencies outlined in that report. Many of the reforms intended to \r\nprevent such abuses from happening again, were explicitly predicated \r\nupon recognizing the differences between law enforcement and \r\nintelligence, they have different objectives and require different \r\nmeans and different rules should apply in order to protect individual \r\nliberties. The most obvious examples are the different rules for \r\ncriminal wiretaps set out in Title III and for foreign intelligence \r\nwiretaps in the Foreign Intelligence Surveillance Act, as well as the \r\ntwo sets of Attorney General guidelines governing FBI investigations, \r\none for General Crimes, including domestic terrorism, and a different \r\nset for Foreign Counter-Intelligence investigations.\r\n    At the same time, it has always been recognized that some matters, \r\nmost particularly internationally-sponsored terrorism and espionage on \r\nbehalf of foreign powers implicate both law enforcement and foreign \r\nintelligence concerns. In the past few years, there has been an \r\nincreasing number of situations where intelligence and law enforcement \r\ninterests coincide and there are a substantial number of executive \r\nbranch regulations, directives, working groups and practices that have \r\nbeen developed to address the myriad specific issues that are involved; \r\nfor example reconciling the need for intelligence agencies to keep the \r\nidentities of their human sources a secret with due process \r\nrequirements that a criminal defendant be informed of the evidence \r\nagainst him and allowed to cross-examine his accusers.\r\n    The threat of terrorism obviously requires effective and close \r\ncoordination between the Intelligence Community and law enforcement. We \r\nwelcome these proposals as the first step toward examining whether \r\nstatutory changes are now needed. However, we urge the Committee to \r\ntake the time to examine the issue in depth beginning with an analysis \r\nof existing rules and practices. Nothing is more central to the \r\nprotection of the liberties of Americans from the abuses of the past \r\nthan the distinction between law enforcement and intelligence. The \r\ncurrent proposals would be a sea change in laws that have been on the \r\nbooks for 30 years. Before that is done, we urge the Committee to act \r\nslowly and deliberately. We would welcome the opportunity to sit down \r\nwith you and the Judiciary Committee together to work on solutions that \r\nwill ensure an effective anti-terrorism effort without sacrificing \r\nindividual liberties.\r\n    The specific provisions at issue include the following sections in \r\nthe Department of Justice draft:\r\n    Section 103, repealing the present prohibition on disclosing Title \r\nIII intercepts of Americans' conversations to the Intelligence \r\nCommunity, other than the FBI.\r\n    Sections 154 and 354, repealing the present prohibitions on sharing \r\ngrand jury information and other criminal investigation information \r\nwith the Intelligence Community, other than the F1BI.\r\n    The provisions in the Graham-Feinstein bill on this subject, are \r\nmuch narrower. However, they would also effect an important shift in \r\ncurrent responsibilities that needs much more extensive discussion and \r\nanalysis, before being acted upon. Specifically, Section 101 would \r\nshift from the Attorney General to the Director of Central Intelligence \r\nthe responsibility for determining which Americans should be targeted \r\nfor FISA surveillance.\r\n    Section 102 of the Graham-Feinstein bill would also change the \r\nforeign intelligence definitions in the National Security Act of 1947.\r\n    This provision would change the definitions in the National \r\nSecurity Act of 1947 so that ``international terrorism'' is included in \r\nthe definition of ``foreign intelligence'' rather than \r\n``counterintelligence.'' While, this may be a wise idea, it requires an \r\nextensive reading of the many and various laws and regulations which \r\nincorporate the current definitions in the Act to determine what the \r\neffect of the change would be, which we have not had an opportunity to \r\ndo.\r\n\r\n    MISCELLANEOUS. SEC. 104 TEMPORARY AUTHORITY TO DEFER REPORTS TO \r\n                                CONGRESS\r\n\r\n    This seems like a good way to insure that adequate resources may be \r\ndirected to the September 11 attack while also insuring that the \r\nCongress continue to receive the information required by the \r\nIntelligence Oversight Act on all intelligence activities. In this \r\nconnection, we note that paragraph (c) entitled ``Exception for Certain \r\nReports'' should refer to section 501 of the National Security Act (50 \r\nU.S.C. 413) as well as to sections 502 and 503 (50 U.S.C. secs 413a and \r\n413b).\r\n                                 ______\r\n                                 \r\n               In Defense of Freedom at a Time of Crisis\r\n\r\n    1. On September 11, 2001 thousands of people lost their lives in a \r\nbrutal assault on the American people and the American form of \r\ngovernment. We mourn the loss of these innocent lives and insist that \r\nthose who perpetrated these acts be held accountable.\r\n    2. This tragedy requires all Americans to examine carefully the \r\nsteps our country may now take to reduce the risk of future terrorist \r\nattacks.\r\n    3. We need to consider proposals calmly and deliberately with a \r\ndetermination not to erode the liberties and freedoms that are at the \r\ncore of the American way of life.\r\n    4. We need to ensure that actions by our government uphold the \r\nprinciples of a democratic society, accountable government and \r\ninternational law, and that all decisions are taken in a manner \r\nconsistent with the Constitution.\r\n    5. We can, as we have in the past, in times of war and of peace, \r\nreconcile the requirements of security with the demands of liberty.\r\n    6. We should resist the temptation to enact proposals in the \r\nmistaken belief that anything that may be called anti-terrorist will \r\nnecessarily provide greater security.\r\n    7. We should resist efforts to target people because of their race, \r\nreligion, ethnic background or appearance, including immigrants in \r\ngeneral, Arab Americans and Muslims.\r\n    8. We affirm the right of peaceful dissent, protected by the First \r\nAmendment, now, when it is most at risk.\r\n    9. We should applaud our political leaders in the days ahead who \r\nhave the courage to say that our freedoms should not be limited.\r\n    10. We must have faith in our democratic system and our \r\nConstitution, and in our ability to protect at the same time both the \r\nfreedom and the security of all Americans.\r\n    Endorsed by:\r\n\r\nAl-Fatiha Foundation, Washington, DC\r\nAlliance for Justice, Washington, DC\r\nAmerican-Arab Anti-Discrimination Committee, Washington, DC\r\nAmerican Association of Law Libraries, Washington, DC\r\nAmerican Association of University Women, Washington, DC\r\nAmerican Civil Liberties Union, Washington, DC\r\nAmerican Conservative Union, Alexandria, VA\r\nAmerican Federation of State, County and Municipal Employees, \r\n    Washington, DC\r\nAmerican Friends Service Committee--Washington Office, Washington, DC\r\nAmerican Humanist Association, Washington, DC\r\nAmerican Immigration Lawyers Association, Washington, DC\r\nAmerican Liberty Foundation, Alexandria, VA\r\nAmerican Muslim Alliance, Newark, CA\r\nAmerican Muslim Council, Washington, DC\r\nAmerican Policy Center, Warrenton, VA\r\nAmericans for Democratic Action, Washington, DC\r\nAmericans for Religious Liberty, Silver Spring, MD\r\nAmericans for Tax Reform, Washington, DC\r\nAmnesty International--USA, Washington, DC\r\nArab American Institute, Washington, DC\r\nAsian American Legal Defense and Education Fund, New York, NY\r\nAsian Pacific American Labor Alliance, Washington, DC\r\nAssociation for Competitive Technology, Washington, DC\r\nAssociation of American Physicians and Surgeons, Tucson, AZ\r\nBaptist Joint Committee on Public Affairs, Washington, DC\r\nBenton Foundation, Washington, DC\r\nCalifornia First Amendment Coalition, Sacramento, CA\r\nCampaign for America, Washington, DC\r\nCatholic Vote.org, Washington, DC\r\nCenter for Democracy and Technology, Washington, DC\r\nCenter for Digital Democracy, Washington, DC\r\nCenter for Economic and Social Rights, Brooklyn, NY\r\nCenter for Media Education, Washington, DC\r\nCenter for National Security Studies, Washington, DC\r\nChinese for Affirmative Action, San Francisco, CA\r\nCitizens and Immigrants for Equal Justice, Mesquite, TX\r\nCitizens Committee for the Right to Keep and Bear Arms, Bellevue, WA\r\nCitizens' Commission on Civil Rights, Washington, DC\r\nCivil Rights Forum on Communications Policy, Washington, DC\r\nCommon Cause, Washington, DC\r\nCommon Sense for Drug Policy Legislative Group, Washington, DC\r\nCompetitive Enterprise Institute, Washington, DC\r\nConsumer Action, San Francisco, CA\r\nCouncil on American Islamic Relations, Washington, DC\r\nCriminal Justice Policy Foundation, Washington, DC\r\nDemocracy Foundation, Ballwin, MO\r\nDoctors for Disaster Preparedness, Tucson, AZ\r\nDrug Reform Coordination Network, Washington, DC\r\nEagle Forum Washington, DC\r\nEagle Forum of Alabama, Birmingham, AL\r\nElectronic Privacy Information Center (EPIC), Washington, DC\r\nEthics & Religious Liberty Commission of the Southern Baptist \r\n    Convention, Nashville, TN\r\nFamilies Against Mandatory Minimums Foundation, Washington, DC\r\nFamily Violence Clinic, Columbia, MO\r\nFederation of American Scientists, Washington, DC\r\nFirst Amendment Foundation, Washington, DC\r\nFree Congress Foundation, Washington, DC\r\nFree the Eagle, Fairfax, VA\r\nFreedom of Information Center, Columbia, MO\r\nFriends Committee on National Legislation, Washington, DC\r\nFund for New Priorities in America, New York, NY\r\nFund for the Fourth Amendment, Washington, DC\r\nGlobal Strategic Management, Annapolis, MD\r\nGod Bless America, http:\/\/myweb.ecomplanet.com\/GOBA1953\/defauft.htm\r\nGovernment Accountability Project, Washington, DC\r\nGun Owners of America, Springfield, VA\r\nHarvard Information Infrastructure Project at Harvard University, \r\n    Cambridge, MA\r\nHealth Privacy Project, Georgetown University, Washington, DC\r\nHuman Rights Watch, Washington, DC\r\nInternational Religious Liberty Association, www.irla.org\r\nIndependent Institute, Oakland, CA\r\nIslamic Institute, Washington, DC\r\nJames Madison Project, Washington, DC\r\nJapanese American Citizens League, San Francisco, CA\r\nLatina and Latino Critical Legal Theory, Inc., Coral Gables, FL\r\nLawyers Committee for Human Rights, Washington, DC\r\nLeadership Conference on Civil Rights, Washington, DC\r\nLindesmith Center--Drug Policy Foundation, New York, NY\r\nMoveOn.org, Washington, DC\r\nMultiracial Activist & Abolitionist Examiner, Alexandria, VA\r\nMuslim Public Affairs Council, Washington, DC\r\nNational Asian Pacific American Bar Association, Washington, DC\r\nNational Asian Pacific American Legal Consortium, Washington, DC\r\nNational Association for the Advancement of Colored People, Board of \r\n    Directors, Washington, DC\r\nNational Association of Criminal Defense Lawyers, Washington, DC\r\nNational Black Police Association, Washington, DC\r\nNational Coalition to Protect Political Freedom, Washington, DC\r\nNational Committee Against Repressive Legislation, Washington, DC\r\nNational Consumers League, Washington, DC\r\nNational Council of Churches of Christ, Washington, DC\r\nNational Council of La Raza, Washington, DC\r\nNational Gay and Lesbian Task Force, Washington, DC\r\nNational Lawyers Guild, New York, NY\r\nNational Legal Aid and Defender Association, Washington, DC\r\nNational Native American Bar Association, Birmingham, AL\r\nNational Youth Advocacy Coalition, Washington, DC\r\nNet Action, San Francisco, CA\r\nNetwork: A National Catholic Social Justice Lobby, Washington, DC\r\nNuremberg Legacy Project, Washington, DC\r\nNorth American Council for Muslim Women, Great Falls, VA\r\nOMB Watch, Washington, DC\r\nPatrick Henry Center for Individual Liberty, Fairfax, VA\r\nPeople for the American Way, Washington, DC\r\nPhiladelphia II, Washington, DC\r\nPhysicians for Human Rights, Washington, DC\r\nPrivacilla.org, http:\/\/www.privacilla.org\r\nPrivacyactivism.org, Bellevue, WA\r\nPrivacy International, Washington, DC\r\nPrivacy Rights Clearinghouse, San Diego, CA\r\nPrivacy Times, Washington, DC\r\nProject On Government Oversight, Washington, DC\r\nResearch & Policy Reform Center, Washington, DC\r\nRutherford Institute, Charlottesville, VA\r\nSecond Amendment Foundation, Bellevue, WA\r\nSentencing Project, Washington, DC\r\nSeventh-Day Adventist Church, World Headquarters, Silver Spring, MD\r\nSixty Plus Association, Arlington, VA\r\nSociety of American Law Teachers, Minneapolis, MN\r\nSovereign Society, Ltd., Baltimore, MD\r\nSquare One Media Network, Seattle, WA\r\nStrategic Issues Research Institute, Arlington, VA\r\nUnitarian Universalist Association of Congregations, Washington, DC\r\nUnited Church of Christ, Justice & Witness Ministries\r\nUnited States Committee for Refugees & Immigration and Refugee \r\n    Services, Washington, DC\r\nUSAction, Washington, DC\r\nWashington Lawyers' Committee for Civil Rights and Urban Affairs, \r\n    Washington, DC\r\nWILD for Human Rights, San Francisco, CA\r\nWomen's International League for Peace and Freedom, U.S. Section, \r\n    Washington, DC\r\n\r\n    STATEMENT OF KATE MARTIN, DIRECTOR, CENTER FOR NATIONAL \r\n                        SECURITY STUDIES\r\n\r\n    Ms. Martin. Thank you, Mr. Chairman and Mr. Vice Chairman, \r\nfor the opportunity to testify here today on behalf of the \r\nCenter for National Security Studies, an organization which has \r\nfor 30 years worked to protect civil liberties from being \r\neroded in the name of national security.\r\n    We appear today before you at a time of deep mourning, when \r\nit is in fact quite difficult to turn our attention to this \r\nkind of issue and to anything other than our grief and sorrow \r\nat the losses that we all suffered. At the same time, we \r\nrecognize that it is not too soon to begin thinking about how \r\nwe can improve our ability to prevent such unspeakable events \r\nfrom occurring again. However, as we do so we must resolve to \r\nact in a way that protects our liberties as well as our \r\nsecurity and which recalls the lessons of the past from times \r\nwhen we were permitting our concerns for security to accept \r\nerosions of our liberties that we now regret.\r\n    What distinguishes us as a people from our fellow human \r\nbeings who committed these terrible acts is our commitment to \r\nlaw and individual freedom. It is a commitment to law made \r\ndeliberately, with calm reflection and with opportunity for \r\npublic debate. Certainly there is no more important subject \r\nthan how to protect both our liberty and our security. The \r\nAmerican people look to the Members of this Committee to make \r\nlaw as the founders of the Constitution envisioned when they \r\nset up this legislative body, after a full public debate \r\ninformed by facts, analysis and the chance for reflection.\r\n    We commend the Committee for its hard work and quick action \r\nto outline proposals intended to help prevent such horrific \r\nacts in the future and to focus on needed structural reforms in \r\nthe Intelligence Community. We are grateful to the Committee \r\nfor holding these public hearings and for inviting \r\nrepresentatives of our community to testify.\r\n    At the same time, we call upon this Committee not to \r\nprecipitously make changes to longstanding rules on some of the \r\nmost technically complicated and difficult issues before the \r\nCongress, with enormous implications for civil liberties. In \r\nurging reflection and time for calm deliberation, we speak on \r\nbehalf of a coalition of more than 140 organizations from all \r\nends of the political spectrum who last week agreed upon a \r\njoint statement to the Congress urging such calmness. That \r\nstatement I have attached to my prepared remarks.\r\n    I want to mention that the danger of haste of course is not \r\njust to civil liberties but equally to our security. We face an \r\nequal danger that in the understandable rush to do something \r\nwhat is done will not be effective in making us any safer, that \r\nit will substitute for the difficult analysis and work that is \r\nneeded to figure out just how to prevent such attacks in the \r\nfuture. This is particularly true with regard to widening \r\nsurveillance of Americans where extending the net of \r\nsurveillance rather than doing the difficult work of trying to \r\nfigure out who should be targeted may well lead to information \r\noverload where it will not be possible for the Government to \r\ndistinguish the important from the insignificant.\r\n    We have had the Chairman's bill since Saturday morning and \r\nthe Administration's proposals being considered by this \r\nCommittee for 2 days longer than that. We have done our best to \r\nprovide the Committee with our preliminary analysis of the \r\nproposals and it is attached in our written statement. But most \r\nsignificantly, we urge you before acting to hold additional \r\nhearings to obtain in writing the careful analyses needed of \r\nwhat the current authorities are and what changes would be \r\neffected by these proposals, why such changes would be useful, \r\nand what the risks will be.\r\n    If there are specific authorities immediately needed by the \r\ncurrent investigators into last week's acts, those authorities \r\ncould be separated from the rest of the proposals and \r\nconsidered as quickly as possible. But those proposals designed \r\nto prevent such intelligence failures in the future, as Senator \r\nShelby mentioned, can only be done wisely and effectively after \r\nmore is known about the cause of the failure and we have a \r\npublic discussion about how to fix them.\r\n    I just wanted to mention on the subject of haste we applaud \r\nthe Chairman's bill in undoing what the Senate did on September \r\n13 when it overruled the DCI guidelines on the recruitment of \r\nassets and we suggest that the provision about the recruitment \r\nof assets that's contained in the Chairman's bill is the \r\nappropriate way to deal with that issue, and we would only \r\nsuggest that, in line with some of the comments made by earlier \r\nwitnesses, that the section could be amended to add that Agency \r\nofficers may recruit terrorist informants ``pursuant to \r\nguidelines or directives issued by the Agency.''\r\n    I want to basically, I think, second Mr. Berman's remarks \r\nabout particular changes to the Foreign Intelligence \r\nSurveillance Act and to the information-sharing authorities and \r\njust make a couple of brief comments about those.\r\n    I think it's important to keep in mind that what the \r\nForeign Intelligence Surveillance Act does is authorizes secret \r\nsurveillance and secret searches of the houses of Americans, \r\nand it does so in the context of a carefully drafted statute \r\nwhich many individuals in this room spent some number of months \r\nand years working out. We urge you to keep this in mind as you \r\nconsider amending the statute and that you remember the care \r\nwith which FISA was enacted. We especially urge you to remember \r\nthat investigations of terrorism, while perhaps the most \r\nimportant undertaking for the Intelligence Community in the \r\nnear or perhaps long-term future, at the same time pose the \r\nmost difficult constitutional problems with regard to \r\ncollection of information and investigations of Americans.\r\n    That is because of the unique intersection of first \r\namendment, fourth amendment, and national security concerns \r\ninvolved in the investigation of Americans for terrorist \r\nactivity. Unlike international narcotics investigations, for \r\nexample, it is important to distinguish between those engaged \r\nin criminal terrorist activity and those who may share in the \r\nreligious or political beliefs of the terrorists and even their \r\nethnic background without, however, engaging in any unlawful \r\nacts. For 30 years we have had on the books a set of statutes \r\nand an even more extensive set of Agency guidelines, some \r\nclassified and some public, all of which are designed to \r\naddress the problem of effective investigation of terrorist \r\nactivity while not infringing on first amendment rights and not \r\ntargeting individuals based on their ethnic background.\r\n    Before those provisions are changed, we urge the Committee \r\nto take the time to sit down and look at what the perhaps \r\nunintended consequences might be of basic statutory changes.\r\n    I think I won't talk at the moment about the primary \r\npurpose requirement. I do believe, however, that this Committee \r\nhas a constitutional responsibility itself to determine whether \r\nor not in your view the lower standards of FISA authorizing \r\nsecret searches and secret surveillance would be constitutional \r\nif the primary purpose requirement were to be eliminated. I do \r\nnot think it is an answer to say that the court will not \r\naddress that question except on a case-by-case basis. I think \r\nthis Committee and this body has a constitutional obligation to \r\nmake that determination, not only in terms of its national \r\nsecurity responsibilities but even more so in terms of its \r\nresponsibility to protect individual liberties.\r\n    I want to just mention that we have serious concerns about \r\nthe proposal that would allow wiretap evidence obtained \r\noverseas in violation of fourth amendment standards to be used \r\nagainst Americans in the U.S. courts. This is also a new and \r\nvery difficult legal issue that comes about as part of the \r\never-increasing globalization of U.S. law enforcement. Without, \r\nI believe, adequate thought or adequate development of the law \r\nin the court, the Administration proposal would for the first \r\ntime codify the extraordinary view that as the United States \r\nworks to promote the rule of law throughout the world and to \r\nextend the reach of our criminal law it should leave the Bill \r\nof Rights behind.\r\n    Implicit in this approach is the view that the Constitution \r\nis merely an inconvenience to law enforcement rather than an \r\nacknowledgment of it as the best instrument yet written by \r\nhuman beings to govern the relations of a government to the \r\ngoverned. Certainly it is not an easy question as to how to \r\napply fourth amendment standards to searches and seizures of \r\nevidence gathered overseas to be used in the U.S. court. We \r\nsuggest that it is an issue that at some time will most likely \r\nrequire congressional action and congressional determination. \r\nWe suggest that in the terrible days following last week's \r\ntragedy is not the time to address that problem.\r\n    Finally, there is the question of the changes to the \r\nauthorities and the responsibilities for information-sharing \r\nbetween the Intelligence Community and the law enforcement \r\ncommunity about terrorism. This is, I believe, one of the most \r\nserious and difficult problems facing this Committee and this \r\ncountry at this moment. There is no doubt about it that the \r\nthreat of terrorism requires effective and close coordination \r\nbetween the Intelligence Community and law enforcement. It is \r\nalso true, though, that since the creation of CIA, when the \r\nNational Security Act provided explicitly that the CIA would \r\nhave no law enforcement or internal security functions, that we \r\nhave recognized that the division and the distinction between \r\nlaw enforcement and intelligence is very important in \r\nprotecting civil liberties.\r\n    At the same time, of course, we have recognized that there \r\nare areas like terrorism and espionage which overlap both \r\nintelligence and law enforcement. Nevertheless, we have a whole \r\nseries of both statutes and present guidelines and directives \r\non the books that recognize the distinction and in fact are \r\npremised on that distinction--for example, the FISA and Title \r\nIII or the Attorney General guidelines for the conduct of FBI \r\ninvestigations, one of which is classified and covers foreign \r\nintelligence matters and one of which covers general crimes.\r\n    Before we change the authorities set forth in the National \r\nSecurity Act we believe it's important to have a careful and \r\ncautious examination of what the effect would be of changing \r\nthose longstanding authorities, with an eye again, let me \r\nstress, to improving the needed coordination between the two \r\ncommunities to provide the most effective kind of both law \r\nenforcement and intelligence against terrorist organizations, \r\nbut to do that in a way that is respectful and protects the \r\nliberties in this country.\r\n    Thank you.\r\n    Chairman Graham. Thank you very much, Ms. Martin, and thank \r\nyou to each of the panelists.\r\n    In your three comments the importance of our appreciation \r\nof the wall, as you described it, Mr. Berman, between using \r\nintrusive surveillance for foreign intelligence purposes and \r\nusing intrusive surveillance for criminal purposes is a caution \r\nthat is well placed and that we do need to keep very much in \r\nthe forefront.\r\n    One of the areas in which this is raised with particular \r\nstark impact would be if we were to amend the law to say that \r\nyou could get a FISA wiretap with something less than foreign \r\nintelligence being the primary purpose. As I gather, the \r\nrecommendation of the Attorney General is that we eliminate \r\nthat standard and then leave it up to the FISA court on a case-\r\nby-case basis to make judgments of if it's not the primary \r\npurposes, if it's 50\/50 or if it's 40\/60, where do you reach \r\nthe point where you do lose the constitutional basis for a FISA \r\ntap.\r\n    To put that into its context, and if you feel, Mr. Smith, \r\nbased on your previous background and current understanding, \r\nespecially your role at the CIA, what is the problem that is \r\nraised by using the primary purpose standard as the basis of \r\ngetting a FISA wiretap? What are the kind of cases that are \r\ncompromised or threats to our security that are tolerated \r\nbecause we use this high standard for getting a FISA wiretap?\r\n    Mr. Smith. In my experience, Mr. Chairman, what happens is \r\nthat oftentimes it's not clear at the outset of an \r\ninvestigation whether this should be pursued as a law \r\nenforcement matter and ultimately possibly prosecution or \r\nsimply to collect foreign intelligence and take action later \r\non. Oftentimes you'll start down one road and find that you \r\nhave to shift to another.\r\n    The question as I understand it with respect to ``a'' \r\nversus ``the'' is whether or not, particularly in the case of a \r\nU.S. person, the courts would ultimately hold that the test had \r\nbeen met under the fourth amendment to engage in this intrusive \r\nsurveillance.\r\n    I'm not sure I know what the right answer is. My guess is \r\nthat the folks in OLC at the Justice Department are right, \r\nnamely that, depending on the facts of the cases as they come \r\nalong, the courts would be willing to give a considerable \r\ndeference if, for example, the first criminal cases that go to \r\ncourt are foreign nationals who presumably have fewer fourth \r\namendment rights than Americans. They might not be so troubled \r\nif it's just ``a'' purpose and it then turns into a \r\nprosecution. In the case of a U.S. person, it may come out \r\nquite differently.\r\n    I think my colleagues on the panel are right. This is a \r\nhard issue and needs a lot of careful thought, and I think the \r\nAdministration ought to be asked quite directly why do you need \r\nthis. Why can you not proceed under the current procedures? I \r\ndon't know the answer to that one.\r\n    Mr. Berman. I think the record is they haven't had \r\ndifficulty here, and if you turn up in your intelligence \r\ninvestigation that you've got a money-laundering case, your \r\nbill says go get a title III warrant. Again I come back and say \r\nthat if there is a wall between a criminal investigation with \r\nwiretapping, sharing relevant information in the middle of an \r\ninvestigation of money laundering it turns out that someone's \r\nlaundering money for bin Ladin and that comes up in a criminal \r\nwiretap, there's the grounds for a FISA tap, which I think is \r\nprobably already on, but there ought to be some way to turn \r\nthat information over to an intelligence agency.\r\n    There's an information-sharing issue which may be a \r\nrestriction in both statutes that could be worked on. But it's \r\nnot the standard; it's the sharing of the data.\r\n    I also think that if you went on a fast-track\/slow-track \r\nthat you could take the most troubling issues of when you might \r\nget information about a terrorist investigation in a grand \r\njury. I think that the Justice Department and the CIA will make \r\nstrong cases that there are circumstances when use of illegal \r\nwiretap information may be critical in such a case. But rather \r\nthan amending the criminal statutes across the board to provide \r\nthat kind of information for any intelligence purpose, why \r\ndon't we try and craft a terrorism section that deals with this \r\ncrisis and the special circumstances of a new kind of enemy, \r\none that we've got to be careful. Kate's absolutely right that \r\nthis is an intersection between national security, law \r\nenforcement and civil liberties.\r\n    The new terrorist target is someone who drinks Bud, has a \r\ncollege education, goes to work at some company that Jeff may \r\nbe representing, and lives in Laurel. How do we do that kind of \r\ntargeting and not be over broad and at the same time, while \r\nwe're worrying about collateral damage in Afghanistan, so we \r\ndon't prevent our ability to penetrate those organizations by \r\nmaking everyone hate us across the whole Islamic world, you \r\ndon't want the same thing to happen here.\r\n    Over-surveillance, the sense that there is an agent behind \r\nevery bush, will make innocent people of that community stop \r\ntalking to our agents. That's what happened in Watergate and \r\nyou don't want it to happen here. It will be counterproductive \r\nnot just to civil liberties but to your intelligence mission.\r\n    Vice Chairman Shelby. Mr. Chairman.\r\n    Chairman Graham. Yes, Senator.\r\n    Vice Chairman Shelby. I appreciate all of your testimony, \r\nand, Jeff, we welcome you back here.\r\n    As I understand it--and I'll direct this to all of you, my \r\nobservation first and then a question--under the criminal \r\ninvestigations you have today do the statutes afford the FBI \r\nroving tap authority for intelligence investigations? In other \r\nwords, they would like what they now have for criminal \r\ninvestigations; is that right, Mr. Berman?\r\n    Mr. Berman. They have it for criminal investigations. It's \r\nalways with a shudder. I'm not saying we like it, because you \r\nparticularize things. I think that following telephones under \r\nFISA may make sense, but the way that it's drafted it's not \r\nclear that it's tied to devices any more; it's tied to the \r\nperson and wherever that person is. We need some explanation of \r\nwhat they mean by that.\r\n    Vice Chairman Shelby. As we discuss this matter, we're \r\nmindful of the Constitution, which grants us our rights. But we \r\nare also mindful here today of a heck of a challenge to our way \r\nof life, and what we want to do is have some balance. We do not \r\nwant to destroy our constitutional rights for our citizens, but \r\nat the same time we want to give, if we can, under the auspices \r\nof the Constitution, the tools to the Justice Department and \r\nthe FBI to fight this and win this without doing damage to the \r\nrest of us. Isn't this what we're trying to achieve?\r\n    Mr. Berman. I think we can do that. It doesn't require \r\nmeeting the content standard. It can be a lower standard. But \r\nit needs to be more carefully drafted.\r\n    Vice Chairman Shelby. The precision of language is very \r\nimportant, as we all know, and words have meanings, and \r\nwhatever we do we ought to do carefully. But I believe we've \r\ngot to do something to help the FBI, to help the Justice \r\nDepartment, because we cannot sit back and do nothing. None of \r\nus would want to do that. But we can be wise in what we do, if \r\nwe're careful in what we do, can't we, Jeff? Isn't that your \r\nbasic message here today?\r\n    Ms. Martin. Definitely.\r\n    Vice Chairman Shelby. Thank you, Mr. Chairman.\r\n    Chairman Graham. To follow on with what Senator Shelby was \r\njust saying, it seems to me prior to September 11 we had been \r\naware of the fact that many of our previous laws had been \r\ndeveloped with a certain expectation of what the technology was \r\ngoing to be. It was that telephone that sat on your desk or \r\nyour night table, and that was how you communicated. Now, if we \r\ncould step back and say what was the philosophical context, \r\nrationale, and constitutionally acceptable basis for allowing \r\nthat telephone sitting on your desk to be wiretapped, then ask \r\nthe question, now, in the new technology, where the same act, \r\ncommunication from human being to human being, is being carried \r\nout but the technology is substantially different, how do we \r\nadapt the laws to be consistent with the philosophy that \r\nallowed the static telephone to be wiretapped to now allow the \r\ncomputer or the cellular phone or the other forms of \r\ncommunication to be similarly accessed under the same \r\ncircumstances that we tolerated before.\r\n    Mr. Berman. As I work a lot on the internet I've been \r\ntalking to a lot of staffs about on a pen register all you're \r\nsaying is, ``Well, all we want from the internet is the same \r\ninformation from a computer that we get from a telephone, the \r\npen register,'' which is the dialed digits. There is no \r\nequivalent on the internet. The transactional information that \r\nfollows an e-mail has a name, it has a subject line, often with \r\nthe subject line having the whole content of the message in it, \r\nwhich is, ``Hey, Joe, join the meeting,'' and several messages \r\nlike that tell you as much as what's in the content of the \r\nmessage.\r\n    I'm not saying that you don't provide pen register \r\nauthority for advanced technologies and give the computers a \r\npass, but you have to look at what's the equivalent. You've got \r\na very low standard because you think you're only getting \r\ntelephone numbers. If you're getting the content of the \r\ncommunications in many cases, shouldn't we be more circumspect \r\nand have a higher review. So that's the kind of technology \r\nissue we're prepared to address, but we need some dialog.\r\n    Chairman Graham. I'm going to recognize Senator Shelby, but \r\nmaybe I'm expressing a personal frustration. I thank you for \r\nyour comments about having this open hearing and I look forward \r\nto having more as we focus on these issues. On the other hand, \r\nsometimes the factual predicate for needing these changes is \r\nstated to be classified. So we then have to go behind closed \r\ndoors to hear what it is that is making it necessary to propose \r\nthese changes.\r\n    Then we come back in a public hearing and we can't be as \r\ncandid as we are being today in terms of a discourse between \r\ndifferent points of view.\r\n    Mr. Berman. Just back on the process of FISA, this dialog \r\nbetween public and private, there was all classified \r\ninformation that we were dealing with in trying to craft the \r\nwarrant requirement for FISA. It was done with dialog between \r\nthe Justice Department and industry and civil liberties. All \r\nthey did was they would present us, instead of classified \r\ndocuments, hypotheticals that were not related to and would not \r\nblow a source and method, and we would try and wrestle with \r\nwhat they thought were problems and see whether we could fit \r\nthem into statutes. And you can do that. You have to do that \r\nbecause not everyone's going to be under a clearance.\r\n    But there is a lot that can be discussed in an open session \r\nor not in a classified room, where people can be brought \r\ntogether to explore these issues and work toward solutions.\r\n    Ms. Martin. I just want to second that. I think that this \r\nCommittee has over the years many examples of crafting very \r\ncomplicated law in a public manner, with lots of public \r\nhearings, and that it's important to do so for another reason \r\nthat hasn't really been talked about at great length, which is \r\nthe public confidence in the process.\r\n    I think that while on the one hand the American public is \r\nvery eager for you to do what's necessary to protect it, I \r\nthink that we have to not forget that the suspicion of the \r\nsecret intelligence agencies is just below the surface and \r\nthat, as Jerry mentioned, it is important that that not become \r\na cancer, especially in our minority communities in the United \r\nStates and that if you're talking about expanding intelligence \r\nauthorities that that be done in a way that people come to \r\nunderstand why it's necessary and what built-in protections are \r\nin there against abuses. That is very important.\r\n    That's the role I think this Committee has played over the \r\nyears with us in having these dialogs.\r\n    Mr. Berman. I also point out that there are many \r\nauthorities in the Justice Department bill where the authority \r\nis being delegated down, to a magistrate in any town. They are \r\nmaking decisions about nationwide searches involving terrorist \r\nactivity. That is a prescription for real mischief because it \r\nought to go to people who have some understanding. That's the \r\nsame argument the Intelligence Community would make if we said \r\nwhy don't we just let any District Court judge approve these \r\nFISA taps. There's a special court sitting there.\r\n    Maybe it ought to have more appointees than just made by \r\nthe Chief Justice of the United States, but there is expertise \r\nthat ought to be involved and you've got to worry about how \r\nthat process is played out. I don't think the bill that's on a \r\nfast track has been drafted carefully.\r\n    Vice Chairman Shelby. Mr. Chairman, just a few \r\nobservations. I think we all believe--I hope we do--that the \r\nsecurity of our people, our Nation is very, very important. \r\nThat's one of our highest priorities. We also believe strongly \r\nin the Bill of Rights, as well as in our constitutional rights \r\napart from the Bill of Rights.\r\n    Now, I think one of the problems is going to be to make \r\nsure that we move but that we move wisely and that whatever we \r\ncraft and whatever we pass and the President signs into law, \r\none, will give the tools to the Justice Department to do its \r\njob. I think that's paramount. Also, we should be careful in \r\nour language because if we pass something that's \r\nconstitutionally questionable or suspect, it will be \r\nchallenged. If we use all of this and develop great cases and \r\nprosecute the terrorists, if we find them--and I hope we will--\r\nand then ultimately the courts throw out some of this because \r\nof some laws that we haven't thought out, we're back to square \r\none, if not in a hole, aren't we?\r\n    Mr. Berman. Yes.\r\n    Vice Chairman Shelby. Jeff, you've been the General \r\nCounsel.\r\n    Mr. Smith. You are absolutely right, Senator. You're very \r\nwise to do this.\r\n    I want to pick up on something that Jerry said that fits \r\nright here. We need to be very careful about this. Drafting \r\nFISA, I was involved on the Government side at the time. It \r\nwas, I think, a very good exercise where we all sat down at the \r\nstaff level in what seemed endless meetings to hammer this out. \r\nJerry mentioned the role of industry. Let me encourage you and \r\nothers to bring in industry, particularly the high tech \r\nindustry whose equipment and technology is involved here. They \r\nwere very much involved in 1978 when we were working on FISA, \r\nand I think they can bring a lot to the table because they \r\nunderstand precisely in ways that I certainly don't as to how \r\nthe technology works, No. 1, and No. 2, perhaps equally \r\nimportant, they can tell you where it's headed.\r\n    Because a year from now we may be facing new technology and \r\nnew challenges that we cannot now anticipate, and this is an \r\nopportunity to legislate and get it right. The old carpenter's \r\nadage of measure twice and cut once seems to be appropriate \r\nhere.\r\n    Vice Chairman Shelby. Thank you.\r\n    Mr. Berman. We did receive a letter from Senator Leahy to \r\nCDT's Digital Privacy and Security Working Group, in which Jeff \r\nhas participated many times. It has civil liberties \r\norganizations, but it has a very broad cross-section of \r\ncommunications industry--telephone companies, Microsoft, AOL--\r\nworking and asked to give advice on the communications \r\ninfrastructure impacts of these proposals. I think that's worth \r\nhaving. We'd be glad to provide it to this Committee also.\r\n    Vice Chairman Shelby. Well, let's win this war against \r\nterrorism.\r\n    Mr. Berman. Absolutely.\r\n    Vice Chairman Shelby. Protect our liberties too.\r\n    Chairman Graham. If I could close with a reference to \r\nAmerican history, I have almost finished the biography of John \r\nAdams, and clearly the low point in John Adams' personal and \r\npolitical life was his signing the alien and sedition laws, \r\nwhich were a response early in our Nation's history to what was \r\nperceived to be a serious security attack.\r\n    Those laws proved to be not only unacceptable legally but \r\nthey turned out to be unacceptable politically, as John Adams \r\nbecame the first incumbent President in our Nation's history to \r\nbe defeated, in large part because of his role in the alien and \r\nsedition laws. Then they were subsequently repealed by his \r\nsuccessor, Thomas Jefferson.\r\n    So the American people also have a history of concern about \r\nprecipitous actions and there is a potential political price to \r\nbe paid as well as the other concerns that you've discussed. So \r\nI would hope that we would be cognizant of all of those warning \r\nsignals. Yes, we want to give to our security agencies the \r\npowers that they need to protect our citizens. We also want to \r\ndo it in a way that does not cause the United States to become \r\nlike those very people that we are trying to protect our \r\ncitizens against. It would be the ultimate victory of the \r\nterrorists if they were to force us to become like them by our \r\nsurrendering of our individual freedoms and liberties, which so \r\ndistinguish us as Americans.\r\n    So, with those thoughts, I want to extend again my thanks \r\nand appreciation. Please be receptive if and, I expect, as we \r\ncall upon you over the next few days and weeks for your further \r\ncounsel on these issues.\r\n    Mr. Berman. We applaud you for holding this hearing.\r\n    Chairman Graham. Thank you.\r\n    [Whereupon, at 6:17 p.m., the Committee adjourned.]<\/pre>\n