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) - PART II
CHAIRED BY: REPRESENTATIVE HOWARD COBLE (R-NC)
WITNESSES: KENNETH L. WAINSTEIN, INTERIM U.S. ATTORNEY, DISTRICT OF COLUMBIA;
JAMES A. BAKER, COUNSEL FOR INTELLIGENCE POLICY, DEPARTMENT OF JUSTICE; ROBERT S. KHUZAMI, FORMER ASSISTANT U.S. ATTORNEY, SOUTHERN DISTRICT OF NEW YORK;
GREGORY T. NOJEIM, ASSOCIATE DIRECTOR-CHIEF LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERTIES UNION
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Mr. CHABOT. I thank the gentleman for his recognition. I'd just like to start out by reiterating something that my colleague from California, Mr. Lungren, mentioned before, and that's that I sometimes read articles and hear my colleagues sort of loosely state that after we passed the PATRIOT Act, there has been essentially no oversight; that we've kind of turned the Federal law enforcement forces loose on the American public and all kinds of kind of wild allegations, but clearly Congress has been getting the reports. Now, who's been reading these reports and whether we've been following up with our responsibilities in doing that is another matter.
But we were pretty careful in crafting this legislation. We also put in that legislation the requirement that we come back and revisit this to see how this has actually been carried out over the past 3, 4, 5 years, and that's what we're doing now. And I want to commend the Chairman for holding these hearings, and we've had a significant number of these hearings; and I think the attendance has been pretty good on both sides of the aisle. Both Republicans and Democrats who have been here I want to commend them for doing that.
But this is part of that oversight process, and I think when we passed the PATRIOT Act, we were very serious about exercising this oversight, and this is all part of that procedure and process.
Mr. Nojeim, let me start with you. In your testimony, you point out that prior to the passage of the USA PATRIOT Act, roving wiretaps were available in criminal investigations, but not, of course, in FISA investigations.
Leaving aside for a moment the two particular criticisms of section 206 contained in your testimony, do you agree with the other witnesses on the panel that roving wiretap authority should be available in FISA investigations?
Mr. NOJEIM. We believe that roving wiretaps are potentially particularly intrusive and that for that reason, if Congress decides to make them available in intelligence investigations, it ought to include the same kinds of protections that it put for roving wiretaps in criminal investigations.
Mr. CHABOT. Okay. Thank you.
Mr. Baker, let me go to you next. In Mr. Nojeim's testimony, he alleges that the Government can now issue John Doe roving wiretaps that fails to specify a target or a telephone. It's my understanding, however, that a roving wiretap order issued be the FISA Court must specify a particular target, and that this target must either be identified or described.
And furthermore, I've been told that the FISA Court must find that there is probable cause to believe that the identified or described target is a foreign power, agent of a foreign power, and may take action to thwart surveillance. Am I accurately describing the requirements set forth in FISA or is Mr. Nojeim's allegation correct?
Mr. BAKER. No. You're actuallyyou're accurately describing the requirements of FISA. We must provide the identity, if known, of the target or a description of the target, and thenand we have to establish probable cause to believe that that target is a foreign power or an agent of a foreign power.
As I said earlier, those two terms are defined. It's notwe don't just make it up. They're specifically defined in the statute, and when you come to a U.S. person, all of those definitions have a link to the criminal law of the United States.
And in addition to that, then the court has to make the specific finding, as you suggest, that that target, that target, is engaging in activities that may have the effect of thwarting surveillance.
Mr. CHABOT. And in Mr. Nojeim's testimony, he also suggests that the section 206 of the USA PATRIOT Act lacks sufficient privacy safeguards, but he doesn't mention the statutory requirement that each roving wiretap order issued by the FISA Court contains specific minimization procedures in order to limit the Government's acquisition and retention and dissemination of information about Americans.
Could you please discuss what minimization procedures are, and why they're important, and whether you feel that these procedures adequately protect the privacy of our citizens?
Mr. BAKER. In order to obtain a FISA Order in the first place, each application must include within it minimization procedures that are specifically approved by the Attorney General and that are reasonably designed in light of the purpose and technique that's going to be used to protect against the acquisition, retention, and dissemination of non-pertinent communications by Americans. And these procedures have to be specific. They have to be reasonably designed in light of the need for the Government to obtain, collect, and disseminate foreign intelligence information, and then the court makes a finding, when it's reviewing our application, that those minimization procedures meet the definition set forth in the statute by Congress.
Once the court has made that assessment and the other assessments under the statute and determines that the order can be lawfully issued, the court grants us the authority and then it orders us to follow the minimization procedures.
The minimization procedures arethere are standard procedures that exist that we use in just about every case. And then for particular circumstances, the court or the Government or both will craft specialized minimization procedures to address situations that come up where the intrusion in privacy might be higher, and you have to adjust accordingly. And so the court is very active in assuring itself before it issues an order that the minimization procedures are appropriate.
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