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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


Location: Washington, DC


REP. TRENT FRANKS (R-AZ): Well, Mr. Chairman, thank you.

Ms. Caproni, you've testified that national security letters generally permit us to obtain the same sort of documents from third- party businesses and prosecutors that agents obtain in criminal investigations with grand jury subpoenas essentially all the time. But these are, of course, in domestic criminal investigations.

NSLs have been instrumental in breaking up cells like the Lackawanna 6 and the Northern Virginia Jihad. Through the use of NSLs, the FBI has traced sources of terrorist funding, established telephone linkages that resulted in further investigations and arrests, and allow the FBI to link terrorists together financially and pinpoint cells and operatives by following the money.

In other words, it gives us some dots to connect. It's not just a line. We don't just get a few triangles. We get a picture that helps us solve or prevent some of these very serious potential acts of terrorism against Americans.

Can you elaborate on what the loss of such a tool would be, and perhaps even answer, first, are we somehow thwarting the constitutional rights of American citizens here?

MS. CAPRONI: Again, absolutely not. These are records that are being held by third parties. There is not a 4th Amendment constitutional protection for those vis-a-vis the customer of the records.

In terms of the importance of national security letters, they are critically important to our ability to do our job. By getting records with national security letters, things like phone records and bank records, those are the basic building block of any investigation. In a criminal investigation, they're critical. They're obtained with grand jury subpoenas or, depending on the type of case, with an administrative subpoena.

In the national security context, when we're looking at terrorists or intelligence officers or spies, where the risk to the country is much higher, we use national security letters to get the documents. But the same underlying need exists, which is to build enough information about the person, about the subject of our investigation, to know whether or not this is someone who intends to do us harm, and therefore we need to follow them, figure out who their compatriots are, so that we can disrupt and dismantle their organization, or whether, in fact, they intend no harm, in which case we close the investigation and move on. But without the ability to get these sorts of records, we will be stopped in our tracks before we ever begin.

REP. FRANKS: Well, you know, many FBI personnel has told us that the NSLs are an essential and indispensable intelligence tool. And I guess, Ms. Caproni, I don't want to put words in your mouth. I mean, from my perspective, this seems, through the use of these NSLs, that we're doing everything that we can to get at terrorists while, at the same time, doing everything we possibly can to observe the constitutional rights of anyone in America, whether they be citizen or otherwise, that the effort here is to truly protect American citizens and to defend ourselves in a preventative capacity from being attacked in this country.

So I'll just ask a couple of basic questions; put them in your own words. Do you think, once again, that we are thwarting the Constitution here, that somehow we're subjecting people on American soil to unconstitutional search and seizure or somehow thwarting their civil rights?

MS. CAPRONI: Absolutely not.

REP. FRANKS: And yet you are saying to me that this is a vital tool in being able to help prevent -- identify, prevent and defend this country against terrorism.

MS. CAPRONI: Absolutely. I do not believe that we could do the job that Congress and the American people expect us to do in terms of keeping us safe from terrorism and from spies and those who would steal our secrets without national security letters.

REP. FRANKS: Well, Ms. Caproni, I could probably elaborate, but I just wish that those basic points could be put forward, because sometimes, you know, there's a lot of noise that goes around here and a lot of political grandstanding. But the reality is here that the desire of this country is to protect its citizens, to protect their constitutional rights. And unfortunately terrorists have other ideas, and they have to be dealt with in ways that we, you know, really have little alternative.

It's about an intelligence (scheme ?). If we knew where every terrorist was in the world today and what they were up to, the war on terror would be over in two months. But unfortunately, we don't. So I just thank you for your service to the country and for doing everything you can to protect the citizens of this country.


REP. TRENT FRANKS (R-AZ): Well, thank you, Mr. Chairman.

Mr. Chairman, Mr. Woods wrote in his testimony that a clear goal of counterintelligence is to identify spies and international terrorists. If an investigator has specific and articulable facts that a target is an international terrorist, then essentially they've already achieved that goal. And I think that was extremely insightful.

One of the things we have to separate here, in my judgment, is you know, in Mr. Fine's case he has pointed out some things that I respect very deeply -- that we need to leave our citizens alone. And I believe that, but we also have a responsibility to leave them alive. And we want to make sure that we separate those things that are directly having to do with their privacy and these things that are just kind of -- that are not 4th amendment protected -- things that are information that give us the ability to identify whether someone is a potential terrorist that we can then take to the court in the first place.

Without some of this information, we wouldn't be able to go to a judge, because we don't have enough information even to suggest that there's any issue. The police officer can't go to the judge before he takes a blindfold off to look at the neighborhood. We have to kind of try to get a little bit common sense and reasonable here in my opinion.

Mr. Woods, in your written testimony, you criticized the idea of returning to the pre-9/11 standard of specific and articulable facts. You write that the FBI counterterrorism operations will suffer if the FBI cannot expeditiously obtain relevant information in these settings. And that you think that the need for the harmonization of criminal and national security legal standards for the acquisition of transactional information remains as vital now as it was at the time of the Patriot Act.

Can you elaborate on that a little bit? You know, you're very articulate -- and talk to us about that.

MR. WOODS: I'll try.

The reasoning behind that position --

REP. NADLER: Your microphone.

MR. WOODS: Oh, sorry.

The green light is on.

MR. FRANKS: Maybe pull it a little closer, sir.

MR. WOODS: Sorry. I'll start again.

The reasoning behind that is reflected in your question, which is -- and I've tried to lay out in my testimony and I've laid out in truly mind-numbing fully annotated detail in my Law Review article attached to it -- how these authorities developed. And they -- the specific and articulable facts standard, as I said, worked very well in the traditional counterintelligence environment when we often worked from known individuals -- intelligence officers that we have under surveillance that we were sort of moving outwards from.

It, however, began to run into difficulty in the counterterrorism environment when you're working sort of the other direction from inchoate threat information, from threats that point you toward perhaps a large number of people that you need to sort through and focus very quickly on the people who are going to be relevant to the investigation.

And so the problem is, when you address that sort of situation under specific and articulable facts, you did not have specific and articulable facts with reference to all of the people in that group. The information was relevant, but you were short of that standard -- just as you would be short of the probably cause standard in FISA.

And so this is the reason why the FBI came to Congress asking for the standard to be made relevant -- in my view, the principal reason. The second reason was simply the, as has been pointed out in other parts of the testimony, to make these authorities roughly equivalent to the criminal authorities. Recognizing, though, that we have to do something. And I agree with everyone that has been testifying. We have to do something about the secrecy provisions. We have to do something about retention and dissemination. But the general intent was: Make these authorities roughly equivalent to criminal authorities and make them appropriate to the threat.

I don't think that rolling back to the old standard addresses -- neither does it address the problems that were brought up in the IG reports nor does it leave us well positioned to address the threat in the environment that we're encountering it.

REP. FRANKS: Mr. Chairman, I will try to squeeze one more quick question in here.

Mr. Woods, in your written testimony you also expressed deep concerns with the provision in H.R.3189 that would prevent the use of national security letter information for intelligence purposes.

You wrote that the sections of the bill that address the dissemination of NSL enforcement to law enforcement -- information to law enforcement would be a thoroughly unwarranted revival of the wall separating intelligence and law enforcement that operated to such a crippling effect prior to 9/11, and this is not justified by the specific interests at stake here.

And I think that's obviously, again, an articulate point of view, and I wonder if you could elaborate on that.

MR. WOODS: I'll try to do so briefly. The wall situation was a very complicated one. Mr. Kris and I and others could talk about it for hours.

But the difficulty I have with that provision of 3189, I think it mirrors provisions in the FISA statute which are there for a little bit different reason. But it -- when we did have that requirement, when we had to track FISA-derived information that might get into law enforcement channels, we very quickly got ourselves into a very complex situation that had very negative effects on counterterrorism operations prior to 9/11. And this is all documented in the 9/11 Commission report.

I think proposing to take the same approach now in national security letters, which are 10 times, 20 times the number of FISA's is essentially asking for trouble. We're going down a road that was very -- proven to have difficulty, and is inconsistent with our counterterrorism strategy at the moment.

If we obtain useful information through a national security letter, we should be sharing it with law enforcement, Homeland Security. The idea that we would hold back intelligence reports, trying to figure out if there was national security letter information in it, that we would slow down the sharing of information among Homeland Security and other protective services, state and local law enforcement, is not going to help us.

And so I think that provision needs to be looked at and, in fact, I would advocate taking it out and having -- sort of defaulting to the dissemination guidelines in the attorney general's guidelines, which make it far easier to disseminate to those entities.

REP. FRANKS: Thank you, Mr. Chairman, and thank all of you.


REP. FRANKS: Well, thank you, Mr. Chairman. You're always kind in that regard. I wish we could figure out a way to bring that in the philosophical terms here.

Mr. Chairman, I guess, first of all, when we're gathering information that law enforcement -- you know, it's just, it's just information that's out there, I think it's very important to make this distinction, you know. We know that -- like Sudafed, and some of these other kinds of over-the-counter drugs can be purchased, and then used to make other kinds of drugs that are very, very dangerous.

If someone goes in the drug store, they have a right to have privacy about what kind of drugs they buy. But if they -- if they buy 400 boxes of Sudafed, that might cause a law enforcement eyebrow to go up. And if we make that to where that the law enforcement, before he can even gather that information, even look at it -- to be something that we go through the standard process of probable cause, I mean, we'd never get anything done. The policeman would have to go around with their eyes closed.

And I just think it's very important, as someone who believes so strongly in the foundational Constitutional principles, to make sure that we apply them in the correct way.

And, Mr. Fein, in all due respect, I don't think there are any American citizens at Guantanamo. And, you know, we got to be careful how we throw these things around. If we apply Constitutional rights to terrorists that we fight in the, in the, say, the outlands of Afghanistan, and we've got to read them their rights before we arrest them, that would pretty much do away with any ability for us to fight a war on terror. And so we have to be somewhat practical-minded here, while in keeping with the basic foundations of justice.

With that said, you know, there was a time when Congress was trying to do this in the Patriot Act. And when this Patriot Act was debated in Congress, and they changed the standard for NSLs from requiring a government statement of, quote, "specific and articulable facts," to one of relevance, they did so after carefully considering the FBI's supplies of examples from actual operations.

And even Senator Patrick Leahy -- the Democratic chairman of the Senate Judiciary Committee -- found that, quote -- this is Patrick Leahy, you know -- "The FBI has made a clear case that a relevant standard is appropriate for counterintelligence and counterintelligence investigations, as well as for criminal investigations." Now, Mr. Leahy is not my mentor, so I don't suggest that you all go out and follow his perspective in every case, but it should be something maybe for the Democrats on the committee to consider.

So with that, let me ask Mr. Kris, if I could: H.R.3189 provides that, quote, "No information acquired by a national security letter shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived there from, may only be used in a criminal proceeding with the advanced authorization of the attorney general." Do you support that provision, and if you don't, why not?

MR. KRIS: I mean, first of all, let me just say that that is not a prohibition on the use of NSL-derived information in a criminal prosecution.

I sympathize with what I understand to be the rationale behind that, which is the same as the rationale behind the corresponding language in FISA, which is that you don't want accidental disclosure through localized criminal prosecution of information that reveals a national security investigation, which has to be kept secret for longer than might otherwise occur.

And I'm in favor, I think -- within the context of these, by definition, national and international investigations -- of some kind of centralized monitoring, because they aren't just local problems the way some street crime, for example, is.

Having said that, given the volume of national security letters -- some about 50,000 a year -- it might be a bit steep to ask the attorney general each time to approve the way he does or she does in respect to FISA applications, where there are only about 2,000 a year. So I mean, I sympathize with the idea behind it. I'm not sure that it would be administrable. And it may be better to get at the same issue through minimization procedures, which are part of 3189 and which I do strongly support.

REP. FRANKS: Would you -- the bill would also raise the standard for the government's access to business records in terrorism investigations by requiring that the government show, quote, "specific and articulable facts giving reason to believe that the information or records sought by that NSL would pertain to a foreign power or an agent of a foreign power."

MR. KRIS: Yeah. As I say, I think I'm sort of the lukewarm water on that. I have some concerns about that language and I do think that the use of the definition of foreign intelligence information is right. And I just want to point out: Foreign intelligence information has two separate subsections. The one that Mr. Fein referred to, with respect to Hong Kong banking information, is in a second and different subsection than the one we've been talking about, which, I think rather rigorously defined to be information that relates to the ability of the United States to protect against sabotage, international terrorism, espionage, attack and other grave hostile acts carried out by foreign powers or agents of foreign powers.

I mean, this is a standard that has some meat on the bones. And I think it would be a reasonable way to go. And it has the advantage as compared, say, to the current reference to the AG guidelines, which are classified, that it refers to statutory language with definitional subsections that are pretty well known and could be discussed and debated, publicly at least, in the abstract.

REP. FRANKS: Mr. Chairman, I don't know if there's time for Mr. Woods to say a word on that.

REP. NADLER: There is.

MR. WOODS: I think, you know, the point I would make about sharing with law enforcement information -- and Mr. Kris makes some excellent points on the relationship to FISA -- but it is -- we have to also consider this in the context of our homeland security and counterterrorism strategy.

If I have information -- threat information -- about something that would occur in New York City, criminal prosecution is not the first thing on my mind. The first thing I want to do is tell the NYPD. Now, if I have to worry about, you know, is this piece of paper or e-mail that I'm sending to the NYPD -- does that contain national security letter information? If so, do we need to go to the attorney general first? I'm just saying that on a basis of practical experience, that backs up the system and you get to the situation in which that stuff is not disseminated the way I think all of us would want it to be disseminated. And I think that's not the intent of the statue, but that is an effect that I'm concerned about.


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