Hearing of the House Judiciary Committee's Constitution, Civil Rights and Civil Liberties Subcommittee - H.R. 3189, The National Security Letters Reform Act of 2007
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REP. NADLER: I thank the witnesses.
And we'll now have a round of questioning for the witnesses. I will grant myself five minutes for questioning. We'll start with Ms. Caproni.
Ms. Caproni, you testify that the FBI has done a sufficient job of self-reporting and does not need any statutory remedies to address the abuses uncovered by the IG's report. Just today, however, the Electronic Frontier Foundation disclosed that documents obtained by the EFF through a Freedom of Information Act request, show that a misuse of the FBI's national security letter authority issued at the direction of FBI headquarters -- not a field office -- went unreported to the Intelligence Oversight Board for almost two years.
Given that, and the numerous reports of abuse, how is Congress and the public supposed to trust that the department is capable of self-policing? Don't we need to restore the trust in our intelligence community and checks on our process? And why didn't anyone formerly report this matter to the IOB until February of this year -- of last year?
MS. CAPRONI: The incident that you're referring to that was reflected in documents that the EFF recently released was, first off, well before the reforms that we've put into place subsequent to the IG's March '07 report.
REP. NADLER: Subsequent to what -- I'm sorry?
MS. CAPRONI: The events occurred prior to the actions that we've taken following the IG's early report. That is, we've put into place a number of controls now that I believe would have first, resulted in that NSL not being issued; or second, if it was issued, being reported much more promptly.
In terms of why there was such a delay between the time that there was public knowledge of that NSL -- and there was public knowledge, because it was reported in the press -- to March of '07 is unclear to me. There was a direction made to report the incident. It didn't get reported. When we discovered it had not been reported, it was directed to be reported and it then was reported.
REP. NADLER: Thank you.
Now, both you and the inspector general have stressed the lack of intentional misuse of the NSL authority. It's all due to improper -- I shouldn't say improper -- insufficient training and so forth. But The Washington Post has reported there was at least one IOB report of willful and intentional misconduct.
Does the FBI consider the use of an NSL to seek records beyond the scope of the statute at the specific direction of FBI headquarters not deliberate or intentional?
MS. CAPRONI: Chairman Nadler, again, I'm not quite sure why the direction was given to issue an NSL in that case.
As I look at what I believe they were seeking from the university, an NSL was not the appropriate way to go. So it's unclear to me whether this was simply a miscommunication. I find it hard to believe that the intent -- since we were entitled to the records and we obtained the records pursuant to a grand jury subpoena with the approval of a court -- this wasn't an issue of we were seeking records that we weren't entitled to. An NSL was the wrong tool to use. So it's unclear to me why headquarters directed that an NSL be used.
REP. NADLER: Okay.
MS. CAPRONI: Again, I think my -- what I am stressing is there's no evidence of the bureau using these NSLs to get documents --
REP. NADLER: That they weren't --
MS. CAPRONI: -- that are simply irrelevant to our investigative mission.
REP. NADLER: Now, you stated that the majority of abuses were made by third parties, not by the FBI. Now, a third party gives you too much or improper information -- what do you do with it? Can you look at it and issue another NSL to get that very information or more? And wouldn't that be along the line of using evidence that is the fruit of the poisonous tree?
MS. CAPRONI: Let me address both issues. First, let me say that we now have in place policies and procedures that require the case agents to review the returns to make sure there is no over production. They can't know whether they've got an overproduction unless they actually look at what they receive.
If they have received information that is in excess of what the NSL has called for, they have to sequester the information. They can then make a decision. If what has happened is the provider has provided us two extra weeks of bank records, so those records are still relevant to the investigation -- it would be unusual that they wouldn't be relevant -- they can issue a new NSL for that additional information.
If it's totally irrelevant -- that is, maybe it was -- they inadvertently provided us the wrong customer -- that information isn't relevant to the investigation so it can't be -- it can't be used in any way nor can they issue another NSL for it. That will be sequestered and eventually returned to the provider or destroyed.
REP. NADLER: Okay.
MS. CAPRONI: More generally, though, your question about fruit of the poisonous tree I'd like to address.
Fruit of the poisonous tree is a constitutional doctrine that derives from a constitutional violation. It's important to stress that these are not constitutional violations. These are third-party records held by a third party.
There is no violation of the customer's 4th Amendment right when we obtain the records if it may be in excess --
REP. NADLER: Wait a minute. If the third party violated, you could very well have a violation of the customer's 4th Amendment rights.
MS. CAPRONI: With all due respect, sir, that would not be correct under current Supreme Court precedent.
REP. NADLER: Because it's not the government doing it directly.
MS. CAPRONI: No, it's because the records -- the customer's privacy interest in the records is not constitutionally protected. Under existing Supreme Court precedent, once they share the information with the third party, the third party is free to disclose that information.
REP. NADLER: And doesn't that argue that in order to protect those privacy records, there have got to be some checks on the third party?
MS. CAPRONI: There are checks on the third party. Congress has passed a number of different privacy statutes that provide statutory protection for the document.
REP. NADLER: And given the fact --
MS. CAPRONI: (Inaudible.)
REP. NADLER: -- that everything here is secret, how are those protections guaranteed --
MS. CAPRONI: Well --
REP. NADLER: -- or enforced?
MS. CAPRONI: -- the issue of the secrecy versus the protection are kind of two separate things.
REP. NADLER: Well, but they interact with each other.
MS. CAPRONI: The provider is still subject to a statutory requirement that they not release the records without appropriate process. That's their obligation. There still -- whether they comply or even if they violate the statute, there's not a constitutional violation. There's a statutory violation.
REP. NADLER: My time has expired. I now recognize the gentleman from Arizona for five minutes.
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REP. NADLER: The gentleman's time has expired.
I just want to -- I believe the court, the lower court, had decided it was not severable, correct?
MS. CAPRONI: That's correct.
REP. NADLER: Thank you.
We thank the witnesses from the first panel.
We ask that the members of the second panel come forward and take their seats.
And while they're -- while they're taking their seats, let me perform the introductions. Jameel Jaffer -- I hope I got that pronunciation correct, is the director of the American Civil Liberties Union's National Security Project. The Project litigates civil liberties and human rights cases related to detention, torture, surveillance, censorship, and secrecy. Mr. Jaffer's own limitation -- own litigation docket includes Doe v. Mukasey, a challenge to the FBI's National Security Letter authority.
Before joining the staff of the ACLU, Mr. Jaffer served as law clerk to the Honorable Amalya Kearse, U.S. Court of Appeals to the Second Circuit; and then to the Right Honourable Beverley McLachlin, chief justice of Canada. He is a graduate of Williams College, Cambridge University and Harvard Law School.
Bruce Fein needs no introduction, but I will introduce him anyway. He's a graduate of Harvard Law School; joined the U.S. Department of Justice where he served as assistant director of the Office of Legal Policy; a legal adviser to the assistant attorney general for Antitrust, and the associate deputy attorney general.
Mr. Fein then was appointed general counsel of the Federal Communications Commission, followed by an appointment as research director for the Joint Congressional Committee on Covert Arms Sales to Iran. Mr. Fein has been an adjunct scholar with the American Enterprise Institute; a resident scholar at the Heritage Foundation; a lecturer at the Brookings Institute; and an adjunct professor at George Washington University.
Michael J. Woods served as chief of the FBI's National Security Law Unit from 1997 to 2002; as counsel to the National Counterintelligence Executive in 2002; and as a Department of Justice prosecutor from 1993 to 1997. During his time at the FBI, Mr. Woods and the lawyers his supervision were responsible for providing legal advice to agents and analysts involved in counterintelligence and counterterrorism operations, and for the production and review of National Security Letters. Mr. Woods is a graduate of Harvard Law School and of Oxford University.
David Kris is a graduate of Haverford College and Harvard Law School. He clerked for Judge Stephen Trott of the Ninth Circuit; joined the Department of Justice through its honors program; he worked as a prosecutor for eight years, from 1992 to 2000, conducting several trials and arguing appeals across the country.
From 2000 to 2003, he was associate deputy attorney general. In that role, his unclassified responsibilities included supervising the government's use of the Foreign Intelligence Surveillance Act, or FISA, which has been somewhat in the news lately; representing the Justice Department in the National Security Council, and in other interagency settings; briefing and testifying before Congress; and assisting the attorney general in conducting oversight of the U.S. intelligence community. He is an adjunct professor at Georgetown University Law Center.
Without objection, your written statements will be made part of the record in their entirety. We would ask each of you to summarize your testimony in five minutes or less. As a reminder, there's a timing light at your table; when one minute remains, the light will switch from green to yellow, and then to red when the five minutes are up.
Before we begin, it's customary for the committee to swear in its witnesses.
(The witnesses are sworn in.)
MR. NADLER: Thank you. Let the record reflect that the witnesses answered in the affirmative. You may be seated.
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