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Hearing of the Crime, Terrorism, and Homeland Security Subcommittee of the House Judiciary Committee: Implementation of the USA Patriot Act: Sec. 218

Location: Washington, DC










Mr. CHABOT This is the Subcommittee on the Constitution. We'll come to order.

[Discussion off the record.]

Mr. CHABOT. Subcommittee on Crime, I've been informed. [Laughter.]

I'm the Chair of the Subcommittee on the Constitution. I'm so used to saying that. I apologize.

This is the Subcommittee on Crime, Terrorism, and Homeland Security. And the Chair of the Committee, Howard Coble, is unable to attend this afternoon; so he asked me to stand in his place. And I'll try to remember which Committee this is for the rest of the afternoon. So I apologize for that.

This is this Committee's second hearing today on the USA PATRIOT Act. This hearing focuses on section 218 and its effect on ''The Wall'' that prevented our law enforcement agencies and intelligence community from communicating.

The Foreign Intelligence Surveillance Act limited surveillance and physical search orders to instances where authorities certified that ''the purpose'' of the order was for foreign intelligence gathering. Subsequent case law and agency guidance interpreted the ''purpose'' requirement to mean that foreign intelligence gathering had to be the primary purpose. As a result, law enforcement and the intelligence community came to believe that sharing information or coordinating efforts would preclude the ability to obtain court approval for appropriate surveillance.

The effect of this interpretation was that the metaphorical ''wall'' was built; which prevented vital communications, that some argue contributed to the failure of Government officials to share vital information that could possibly have prevented the 9/11 attacks.

The witnesses this afternoon will examine the effects of section 218 on the Foreign Intelligence Surveillance Act and ''The Wall.'' With this background on FISA, I look forward to hearing testimony from the witnesses; and now turn to the distinguished Ranking Member of this Committee, Bobby Scott, for his opening statement.

Mr. SCOTT. Thank you. And I thank you for chairing the hearing, and for holding this hearing on the issue that has been foreshadowing much of our discussion about the PATRIOT Act: the extent to which we have dismantled the so-called ''wall.''

We've broken down the traditional wall between foreign intelligence gathering—particularly foreign intelligence—and criminal proceedings, in order to give Government broad authority to collect and share information, mostly secretly. And so I'm concerned that we have blurred the traditional line between protecting our privacy and freedoms.

While I agree that some lifting of traditional restrictions in this area may be justified for Government to better use the authorities it already has in many instances, I'm also mindful that those restrictions were placed there for a good reason. We have seen, with COINTELPRO, Watergate, FBI spying on Martin Luther King, Jr., and other incidents, what abuses can occur when we do not keep tight enough rein on the Government's use of extraordinary powers. We shouldn't have to experience those problems again to ensure that the abuses do not occur.

When we operate in the foreign intelligence area, we have traditionally given broad latitude for the use of extraordinary investigatory tools abroad, particularly involving non-U.S. persons. But when we turn those tools inward, we run the risk of including U.S. persons in some of the investigative sweeps that occur, unless we have sufficient barriers to prevent unwarranted extensions.

Now, since much of the foreign intelligence side is secretive and ex-parte, with only Government participation, and with no public oversight or review, we don't have the traditional notice, challenge, and public scrutiny oversight that we have on the criminal side. So we've used ''The Wall'' as protection. That is, if you get something on the foreign intelligence side, you can't use it on the criminal side.

With ''The Wall'' gone, I believe we should focus on establishing sufficient notice, challenge, and public reporting requirements, to ensure that foreign intelligence operations do not unduly creep into the domestic activities of U.S. persons.

Now, some of our law enforcement officials seem to feel that the mere inclusion of information regarding uninvolved, innocent persons amounts to ''no harm, no foul,'' if they're not arrested or subjected to having to challenge the inclusion—excuse me, the incursion or other process; a sort of ''What they don't know won't hurt them'' philosophy. Yet if overly broad information is collected, it can also be spread all over town, greatly increasing the likelihood that any of your neighbors, who may happen to be law enforcement, military, or intelligence employees, will know private things about you that you thought were private and known only to those whom you knowingly gave the information.

So the problem with ''The Wall'' being broken down isn't just the improper acquisition and use of the information; but it's also preventing people from having it in the first place, other than those you gave it to with an expectation of privacy.

So Mr. Chairman, I look forward to the testimony of our witnesses on the extent to which our privacies and freedoms are being protected despite the dismantling of ''The Wall'' through the USA PATRIOT Act and other measures, and what safeguards are needed to prevent the creep of overly intrusive foreign intelligence operations and powers into the privacy of our homes. Thank you, Mr. Chairman.

Mr. CHABOT. Thank you very much. And it's the practice of the Subcommittee to swear in witnesses who are appearing before it. So if you would, all please rise and raise your right hands.

[Witnesses sworn.]

Mr. CHABOT. Thank you. Let the record show that each of the witnesses answered in the affirmative.

And at this time, I'd like to introduce this afternoon's very distinguished panel. Our first witness is Patrick J. Fitzgerald, United States Attorney for the Northern District of Illinois. Prior to his appointment to this position by President George W. Bush, Mr. Fitzgerald served for 13 years as an Assistant U.S. Attorney in the United States Attorney's Office for the Southern District of New York, General, of the United States. He graduated from Amherst College, Phi Beta Kappa, with a bachelor's degree in economics and mathematics, and from Harvard Law School. We welcome you here this afternoon, Mr. Fitzgerald.

Our second witness is David Kris. David Kris joined the Department of Justice after clerking for U.S. Court of Appeals Judge Stephen S. Strott. For 8 years, he served in the criminal division in the U.S. Attorney's Office for the District of Columbia. In 2000, Mr. Kris was named Associate Deputy Attorney General, with responsibilities for managing the Justice Department's national security programs. He attended Haverford College, and Harvard Law School. In June 2003, Mr. Kris joined Time Warner Inc., as vice president in the legal department. And we welcome you here this afternoon, Mr. Kris.

Our third witness would be Kate Martin. Ms. Martin has been Director of the Center for the National Security Studies since 1992. And prior to assuming her current role, she served as litigation director for the center. She graduated from the University of Virginia Law School, and from Pomona College, with a B.A. in philosophy. And we welcome you here this afternoon, Ms. Martin.

And our fourth and final witness this afternoon will be Peter Swire, a professor of law at the Ohio State University's Morris College of Law. I thank Professor Swire for returning. He has graciously agreed to testify for a second time in this series of PATRIOT Act hearings.

And also, coming from Ohio State, we ought to give you a special recognition for that, as well. Cincinnati's not too far from there.

Prior to joining the faculty at Ohio State University, Mr. Swire served in the Clinton Administration as chief counselor for privacy in the Office of Management and Budget. Professor Swire is a graduate of Princeton University, and Yale Law School. After graduating from law school, he clerked for Judge Ralph K. Winter, Jr., of the United States Court of Appeals for the Second Circuit.

And so we have a very distinguished panel here this afternoon. And as I'm sure you're all aware of, we have a lighting system here. We'd ask each witness to stay within the 5-minute time frame, if at all possible. There'll be a green light that'll stay on for 4 minutes; a yellow light will tell you you've got about a minute to wrap up; and then, the red light will come on. And we'll give you a little leeway, but if you could stay within that we'd really appreciate it.

And we'll begin this afternoon with you, Mr. Fitzgerald.


Mr. CHABOT. Thank you. Mr. Kris, let me follow up with you here. In Mrs.—in Ms. Martin's written testimony, she suggests that we amend FISA so that, if it turns out that the person who was under surveillance was not a terrorist or spy, the individual would be notified of the surveillance after some reasonable period of time.

I'm concerned, however, that such a requirement could jeopardize sensitive investigations. For example, were the associate of a terrorist notified that he'd been under investigation, that associate would almost certainly tip off the terrorist that the Government was probably onto him as well. Do you share that concern? Or what comment might you like to make on that?
Mr. KRIS. Well, I share your concern about the case you just described. If they mistakenly go up on someone who is connected with, but not himself, a terrorist, and then he tips off the other target, I think that would be very dangerous.

I guess my basic sense of this is that notification is acceptable, except when it's not. And right now, FISA has a provision under which—I think it's 1825(b), under which, if there's a search of a U.S. person home, and the Attorney General determines that there is no national security basis for maintaining the secrecy, then he shall inform the target. And I believe that provision——

[Sound of buzzer.]

Mr. KRIS. Every time I talk. And I believe that provision is involved in the Mayfield case; although I'm not absolutely sure. To expand it to reach all forms of searches or surveillance, not just U.S. person house searches, I think conceptually would be okay, if you could figure out what the right standard was. Maybe it would be when probable cause is found to be lacking under Franks v. Delaware.

But administratively, it would impose a pretty significant burden. I think there were some 15, 17 hundred FISAs last year. And it would, I guess, mean that the Government would need to review each and every one of those to determine whether it met the standard. So I have some concerns about that, on that theory, as well.

Mr. CHABOT. Thank you. Professor Swire, do you agree with those you interviewed at the Department of Justice, that the greatest problem with the ''primary purpose'' test is that investigators generally don't know in the early stages of an investigation whether the case will be primarily for intelligence or instead for law enforcement? And do you agree that ''The Wall'' did prevent sharing of vital information?

Mr. SWIRE. Yes.

Mr. CHABOT. Okay.

Mr. SWIRE. I mean, I think that one of the questions comes up later on. So you've done your first wiretap. You didn't know which way it was going to go; but now it's up for renewal, and you really know it's turning into a law enforcement investigation. And I think it makes sense for the law to push things toward law enforcement at that point, if that's what's really happened. Among other things, that means that it will get notice to people after the fact of the wiretap.

Mr. CHABOT. Okay. And finally, Mr. Kris, in your written testimony, you suggest that keeping ''The Wall'' down will enhance the protection of civil liberties. And you stated this and described it to some degree in your opening statement.

Could you say again why you believe that coordination between law enforcement and intelligence officials helps to safeguard constitutional rights? And I know you went into that, but I'd like to hear about it again.

Mr. KRIS. Sure. I mean, I think there are two reasons to believe that it will be helpful in protecting civil liberties. The first is that it opens up these cases, these investigations, to a large number of energetic lawyers inside the Department of Justice, who previously really were limited in their access. And lawyers, I mean, for all their faults, you know, do have an awareness of and a respect for rules and laws. And it is for that reason, I think, that this country uses lawyer oversight to safeguard civil liberties in the area of national security.

And so, if it's done right, I think the opening up of these cases to many, many more lawyers will be a good thing, because they will be able to spot potential abuses early on and maybe put a stop to them.

The other reason that I articulated—and I say it with some hesitation, because I'm afraid it will be misconstrued and misused—but there are cases, and I think there always will be, where somebody needs to get locked up, if you're going to keep the country safe from terrorism. And today, if you can't do it using traditional law enforcement because of ''The Wall,'' then I think you have to go to the alternatives. And one of those alternatives is military detention; which I believe, after Hamdi, civil libertarians do not smile upon.

And so, for that reason as well, I think, if compared to the alternatives, prosecution in an open court, with a jury of 12, court-appointed lawyer, public access, and so forth, is not something that we need to be afraid of.

Mr. CHABOT. Thank you. My time's expired. The gentleman from Virginia is recognized.


Mr. CHABOT. The gentleman's time has expired. We are going to go to a second round at this time, so I recognize myself for 5 minutes.

Mr. Kris or Mr. Fitzgerald, let me ask you this question. Do terrorist organizations work with other criminal elements, such as drug dealers and street gangs and other violent criminals of that nature? And if so, can you give some specific examples of that? And how common is this cooperation or association between terrorists or terrorist organizations and other criminal elements?

And prior to enactment of 218, how would the law enforcement agency in charge of the criminal investigation coordinate with the foreign intelligence agency in charge of the terrorist investigation? And how cumbersome was that process? And again, some of these things we've already touched on time and time again.

Mr. FITZGERALD. I will give you my limited perspective. I do know there have been occasions in the past where gangs and terrorists have linked up. I think going back to the late '80's, there was a Chicago gang that tried to get shoulder-fired missiles for a foreign country—I think Libya—and that was exposed and later prosecuted. So that has happened.

In my personal experience, I've more seen more incidental involvement of gang members or street criminals. For example, the plot where they were trying to blow up the bridges and tunnels in New York City: they had to get stolen cars; they had to get guns; they had to get things like that; where in the course of an investigation they were dealing with street-level criminals, just because they needed fake passports; they needed cars; they wanted to get detonators. So they got into this with the criminal underworld because they needed to get logistics. But it was more of a—the plan was being done by the terror ring, and they were reaching out to other people just to get logistics.

I don't see us using FISA to go after a gang problem, at all. What I do see is if FISA's going after a terrorist problem, we may incidentally pick up someone if they turn to a gang member or street criminal as part of their effort to get a, you know, weapon or a detonator, that sort of thing. But I haven't seen yet a situation where we haven't been able to just deal with it as a terrorism issue where you might incidentally come across street-level criminals. And I hope it stays that way.

Mr. CHABOT. Thank you. Mr. Kris, anything you want to add to that?

Mr. KRIS. I'm not going to say anything about any particular cases, I don't think, in an open hearing; and as a former Government lawyer, not a current one.

I will say that there are cases that I know of that are public, in which terrorist organizations or other national security threats have used what would otherwise be sort of more traditional kinds of crime, to finance or facilitate their terrorist acts. We had cigarette smugglers, for example, who were raising money to buy weapons. And that can happen.

I think, legally, those kinds of crimes are treated like foreign intelligence crimes, under the new law tearing down ''The Wall.'' And FISA could be used to gather evidence of those kinds of crimes. It can't be used to gather evidence—or primarily to gather evidence of ordinary crimes that are not being committed to facilitate those kinds of national security threats.

Mr. CHABOT. Thank you. Ms. Martin, you stated in your written testimony, and I think today orally as well, that the FISA statute authorizes secret surveillance on less probable cause of criminal activity than is authorized by the fourth amendment in criminal investigations. Some have claimed that FISA has no probable cause requirement. Is it your opinion that FISA has a probable cause requirement, or not? Would you comment on that, please?

Ms. MARTIN. Yes. It's clear that it does have a probable cause requirement, and the probable cause requirement is, as Mr. Fitzgerald stated, that someone be an agent of a foreign power. There are then paragraphs defining what an agent of a foreign power is.

In the terrorist context, it's pretty clear that that would be the equivalent of probable cause of criminal activity. But in the clandestine intelligence gathering context, which also applies to FISA, it's also clear that—if you read the FBI's own memo on the use of FISA, that the probable cause required is less than the probable cause required for a purely criminal warrant in that context. Which is not to say there's no probable cause and that there is a criminal nexus, but the—And I see Mr. Kris agreeing with me, so I'll just end——

Mr. CHABOT. Okay.

Ms. MARTIN. —before I say anything else.

Mr. CHABOT. Okay. My time is about ready to expire. Let me ask one more question, if I could. Either Mr. Kris or Mr. Fitzgerald, would you explain why the FISA Court of Review concluded back in 2002 that section 218 of the USA PATRIOT Act is constitutional? And as the Chairman of the Constitution Subcommittee, I'm particularly interested in that.

Mr. KRIS. I'll try to—I'll try to tackle that. The court basically held that FISA is constitutional because it is reasonable, and reasonableness is the touchstone of analysis under the fourth amendment.

The court specifically relied, I think, on two prior Supreme Court decisions. First, the Keith case, United States against the United States District Court, from the 1970's; and the more recent decision of City of Indianapolis v. Edmond.

Keith held that in the case of surveillance involving domestic terrorists, standards different than and lower than those in title III would be permissible, because of the special nature of the threat that those kinds of domestic terrorist cases present. And I think that reasoning applies, a fortiori, to FISA, which involves foreign threats to national security, which are even more dangerous and more difficult to investigate.

In Edmond, the Supreme Court drew a distinction between ordinary and special kinds of law enforcement in its analysis and discussion of a checkpoint. And so I think the basic reason that the Court upheld FISA is that, like the statute which distinguishes between kinds of threats, rather than kinds of responses to threats, so, too, the fourth amendment ultimately draws that distinction. And surveillance is lawful under FISA if it is addressing the kind of threat that the statute deals with, regardless of the kind of method being used to deal with the threat.

Mr. CHABOT. Thank you very much. My time has expired.


Mr. CHABOT. Thank you. The gentlelady's time has expired. That concludes the second round of questioning.

And at this time, I'd like to ask unanimous consent to include in the record the Department of Justice's response to a letter from Senator Feinstein alleging abuses under the PATRIOT Act. And I understand that this indicates the absence of those abuses.

I'd also like to thank the witnesses for their testimony here this afternoon, which I really thought was excellent. The Subcommittee very much appreciates your contribution to this important effort. And in order to ensure a full record and adequate consideration of this important issue, the record will remain open for additional submissions for 7 days. Also, any written questions that a Member wants to submit should be submitted within the same 7-day period.

That concludes the Oversight Hearing on the ''Implementation of the USA PATRIOT Act: Section 218—Foreign Intelligence Information. ('The Wall')'' I want to thank all the Members for their attendance and their participation this afternoon. We want to especially thank the witness panel for being here and answering our questions. And if there's no further business to come before the Subcommittee, we're adjourned. Thank you.


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