HEADLINE: HEARING OF THE CRIME, TERRORISM, AND HOMELAND SECURITY SUBCOMMITTEE OF THE HOUSE JUDICIARY COMMITTEE
SUBJECT: THE IMPLEMENTATION OF THE USA PATRIOT ACT: FOREIGN SURVEILLANCE INTELLIGENCE ACT (FISA)
CHAIRED BY: REPRESENTATIVE HOWARD COBLE (R-NC)
MARY BETH BUCHANAN, UNITED STATES ATTORNEY, WESTERN DISTRICT OF PENNSYLVANIA;
JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY, DEPARTMENT OF JUSTICE;
SUZANNE SPAULDING, MANAGING DIRECTOR, THE HARBOUR GROUP, LLC
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Mr. CHABOT. Thank you, Mr. Chairman. Mr. Baker, prior to the enactment of the Lone Wolf amendment, how difficult was it for intelligence agencies to obtain wiretap orders for foreign terrorists who do not belong to any identified terrorist organizations?
Mr. BAKER. Well, it was not authorized by the statute for us to be able to do that. So the answer is we could not do that. We had to find a connection between the target and a foreign power, an international terrorist group or a foreign government, so on.
But it is worth mentioning that from the beginning, from 1978, an international terrorist group could consist of as few as two people. So the difference here really is going, at the minimum, or at the base level, I guess, from a group of two people to a group, if you will, of one person.
Mr. CHABOT. And what must the FISA court find before issuing a surveillance order under the Lone Wolf provision?
Mr. BAKER. That the Lone Wolf, that the target is an agent of a foreign power, meaning in this context that they are a non-U.S. Person, that is critical to remember, non-U.S. Person, who engages in international terrorism or activities in preparation therefor. So this is the Lone Wolf whoan individual who could, I mean, in sort of the doomsday scenario, the things that we are most worried about, an individual who might have access to some kind of a weapon of mass destruction, chemical, biological, nuclear, or radiological weapon, attempt to use a device such as that in the United States, but have no known or apparent connection to another individual or a group or a foreign government.
Mr. CHABOT. And do you believe that real or apparent Lone Wolf terrorists could threaten the safety and security of the American people?
Mr. BAKER. Absolutely. As I have just described, that is what we are very worried about. And it seems to me that, I mean, as the FISA court of review said back in 2002, FISA is constitutional because the searches it authorizes are reasonable.
And it seems to me that targeting an individual such as the one I just described, bringing in a weapon of mass destruction into the United States, under the fourth amendment that is reasonable, and I think therefore that this provision of FISA is certainly constitutional.
Mr. CHABOT. Now, critics of the Lone Wolf provision argue it is a dangerous expansion of authority allowing the application of FISA to individuals lacking any connection to foreign powers.
Do you agree with Mr. Woods who counters this claim on patriotdebates.com when he says, quote, the language actually enacted, however, integrates a definition of international terrorism that preserves a sufficiently strong foreign nexus requirement, unquote?
And if so, could you explain that nexus and why it is important.
Mr. BAKER. Yes, I agree with that comment. Again, to be an agent of a foreign power under this provision, you have to first be a non-U.S. Person and you have to be engaged in international terrorism activities. International terrorism is a defined term under the statute. It includes or covers or applies only to, said differently, violent acts or acts dangerous to human life that are a violation of the criminal laws of the United States or would be if committed here, that have a coercive or intimidation factor associated with them, and occur outside the United States or transcend national boundaries, and the perpetrators, the locale that they are going to be taking place in, or the places where the target is going to seek asylum.
And so there is a nexus to international terrorism. You cannot use the Lone Wolf provision to conduct electronic surveillance of a U.S. Person who is engaged in domestic terrorism in the United States. It doesn't apply to that kind of situation.
Mr. CHABOT. Okay. And who determines whether an individual will be classified as a Lone Wolf and what are the criteria used in making such a determination?
Mr. BAKER. Well, at the end of the day it is the FISA court. We have to go before the FISA court before we can get one of those approvals. Prior to that, the Attorney General must sign every application that would use the Lone Wolf provision. Before that, you would have to have a certification from someone, such as the Director of the FBI or another high ranking Government official with national security responsibilities. And my office reviews that, the FBI reviews that and so on.
And, again, the legal foundation is that there is probable cause to believe that the target is an agent of a foreign power under the standard I just articulated, and that they are using or are about to use the facilities at which the surveillance will be directed.
Mr. CHABOT. Finally, has provision alone resulted in a dramatic increase in the use of FISA warrants in situations that do not justify such extraordinary Government power?
Mr. BAKER. Well, I wouldI mean I would say, first of all, the number of times that we have used this I believe is still classified, so I can't discuss that today.
But I would say that, I mean certainly, wheneverif we can meet this standard, I think that surveillance of such a person would be justified and would be warranted.
Mr. CHABOT. Thank you. I know that the light is ready to come on. So I yield back the balance of my time.
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