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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. BOBBY SCOTT (D-VA): Thank you.

Ms. Caproni, I'm sure some of the letters are necessary. Are all of these NSLs necessary?

MS. CAPRONI: I'm sorry. Are all of these --

REP. SCOTT: Are all of them absolutely necessary for the protection of the national security?

MS. CAPRONI: Well, I believe they are. I don't think agents issue national security letters to get records that aren't relevant to their investigations and needed in order either to close out a lead, for us to ascertain that the person does not pose a risk to the country, or, in fact, to disclose that the person does pose a risk.

REP. SCOTT: Now, exactly where is the oversight in all of this?

MS. CAPRONI: The oversight comes in a number of different ways. First off, this congressionally mandated series of inspector general reports obviously provided a great deal of oversight. Subsequent to the March '07 report, we have mandated that there must be legal review of any NSL before it is issued. I think that's going to help.

REP. SCOTT: Say that again.

MS. CAPRONI: Subsequent to the March '07 inspector general report, as a matter of internal policy, FBI has mandated that there must be legal review of any NSL before it's issued.

REP. SCOTT: And so the check and balance is within the same agency that's doing the issuing of the NSL? Some of us think check and balance means you check with another branch of government. We have another concept of check and balance. You check with your co- workers, and if your co-worker says what you're doing is okay, then it's okay. That's not what some of us thought really was a check and balance.

MS. CAPRONI: If I could just continue on the other controls; and might I also say that I think the lawyers in the Bureau, many of whom work directly for me, take their responsibility, relative to reviewing national security letters, very seriously. And if the material that's laid out in the document supporting the NSL doesn't support the issuance of an NSL, the lawyer won't sign off on it.

REP. SCOTT: And these are all people who are hired by the same attorney general. I mean, it's all within the same agency.

MS. CAPRONI: That's correct.

REP. SCOTT: So when that person says, "This is what I want," all of his employees are checking and balancing themselves.

MS. CAPRONI: Again, the director of the FBI has made it very clear that he wants to achieve the mission of the FBI, but to achieve it lawfully. So the mission of the employees of the FBI is to achieve their goals consistent with the law.

REP. SCOTT: But what happens if they -- what happens if he decides that he wants to do a little political shenanigans? What happens then, where are the checks and balances?

MS. CAPRONI: There is absolutely no evidence that this director of the FBI would ever engage in political shenanigans.

REP. SCOTT: Okay, well, you know, the attorney --

MS. CAPRONI: If I could get to the third --

REP. SCOTT: Well, let me just say this, that as part of -- when I listen to this, we are also listening, trying to get an answer out of the Department of Justice as to whether or not U.S. attorneys were fired because they didn't indict Democrats in time to affect the next election. And so we haven't had a credible response to that. So, sometimes we suspect that there may be some political shenanigans going on, and we're just asking where the checks and balances are.

MS. CAPRONI: Well, again, I would say, Mr. Fine works for the -- for the Department of Justice too, and it seems to me he has provided very vigorous oversight. But I think merely because your paycheck comes from the Department of Justice does not mean that you're not capable or desirous of obeying the law in providing the appropriate legal advice to your client.

REP. SCOTT: Under -- under --

MS. CAPRONI: Let me -- if I just -- I can't answer for the Department of Justice and why they're not providing you documents. That's not -- that's not within the scope of my responsibilities. But the third element of oversight, that I think it's important for this committee to recognize is -- again, subsequent to the March '07 report, and subsequent to Congress establishing a National Security Division within the Department of Justice -- the National Security Division has set up an oversight group within the National Security Division. Those attorneys go out to field offices and do what are called "national security reviews." They have access to everything in the file; they can go through it from (suit to not ?) --

REP. SCOTT: And this is the same agency, though -- they're employed by the same agency?

MS. CAPRONI: Well, they're Department of Justice attorneys.


What happened with this -- what did the Supreme Court decide in -- decided it was unconstitutional in September 6th, 2007?

MS. CAPRONI: I'm sorry, say again?

REP. SCOTT: Excuse me, the District Court in 2007, what did the court strike down, and what's the status of those --

MS. CAPRONI: Is that the -- is that the Southern District case?

REP. SCOTT: Yes --

MS. CAPRONI: I don't know the dates --

REP. SCOTT: -- the Southern District of New York, yes.

MS. CAPRONI: That case is pending on appeal. I believe it has been fully briefed in the Second Circuit, but it might not quite be fully briefed. So I would anticipate arguments in the next few months. That case did, as Chairman Nadler pointed out, hold that there was -- even after the Patriot Act Reauthorization Act, which changed the rules on disclosure and nondisclosure of National Security Letters by the recipients -- Judge Marrero found, nonetheless, that the new statute continues to be unconstitutional under the First Amendment.

That's what's pending on appeal, is whether, in fact, the structure that the Congress passed in the Patriot Reauthorization Act is constitutional under the First Amendment. And there's also an issue about whether the gag provisions of that -- of that bill are severable. That is, would Congress prefer there to be no national security statute if there's not a nondisclosure requirement, or, can we sever the nondisclosure requirement as being unconstitutional and keep the balance of the statute? Those are the two primary issues that are pending on appeal before the Second Circuit.


REP. SCOTT: Thank you.

Mr. Fein, I was intrigued when you said that the judge will decide when you have a warrant. The judge really doesn't decide, because that assumes he's got both sides of a forum. It's an ex parte decision. He makes a decision based on only one side presented. But I guess that's the decision.

But let me ask you about checks and balances generally. You know, I always thought checks and balances, as I indicated in the previous panel, checking with another branch of government -- what's wrong with checking with your subordinates to see if you're doing a good job?

MR. FEIN: Like putting the fox in charge of the chicken house, where the problem is that everyone knows that you're on a team as part of the executive branch. I was. And you're expected to fulfill the mission of the team. And there are a thousand ways that are undetectable that someone can lose promotions, can be otherwise marginalized in their job, given the equivalent of a transfer to Butte, Montana, if they come up with an opinion that's not liked.

And that's just what human nature is about. That's why we don't let people be judges in their own case. Why do you have the executive branch be the judge in its own case here? And we know the problems that can be created. You know that because the issues concerning advice as to the legality of waterboarding. Now the department takes the position, "We told the CIA interrogators this was legal. Then, if they follow it, we can't get at them because we are the final say on this." And it's a very incestuous, what I call intellectually endogamous situation, and that's not the way you get reliable judgments. No one's infallible.

And the situation with regard to a judge ex parte deciding on warrants -- it's true, he only hears one side, but he doesn't have a benefit like someone in law enforcement that he gets promoted if there's an arrest made or not. That's why, even though it's not a perfect system, it's superior to the unilateral action.

REP. SCOTT: And why is the necessity for an outside check and balance even more important in this case when you have the relevance to an investigation? What's the standard on these NSLs? What standard are you using?

MR. FEIN: See, well, the current statute is irrelevant to a terrorist investigation, which is rather broad.

REP. SCOTT: Well, you know it covers some stuff that needs to be covered. Where is the limitation? I mean, you could almost investigate anything using that standard, it seems to me. Is there any limitation? I mean, what are terrorists? What is relevant? Whose records?

MR. FEIN: Well, I think you're pointing out the elusiveness of a relevant standard with regard to terrorism. You can try to connect dots all around the world. It's conceivable something that looks innocuous 99,000 out of 99,001 times maybe turns up something, so maybe you're looking for something that's relevant. That's why it's so open-ended. And if it's going to be that broad, the way in which we traditionally have a check is through grand jury and then the sunshine aspect after the fact, where -- (inaudible) -- could be exposed.

REP. SCOTT: Any definition of what a terrorist investigation is, Mr. Woods?

MR. WOODS: Yes. These national security letter statutes were intended and make explicit reference to the attorney general guidelines, which are now called the guidelines for national security investigations, which define in great detail, unfortunately classified detail, the standards for opening investigations, the definitions applicable to --

REP. SCOTT: Well, you know, that's kind of -- the attorney general makes up his own guidelines and he can investigate what he wants. I mean, we have in the back of our minds the fact that we haven't gotten a good answer to the allegations that they fired U.S. attorneys for failing to indict Democrats in time to affect an upcoming election. And these are the people who are writing their little guidelines to get at things they want.

Are you getting information on people who aren't charged with a crime?

MR. WOODS: Well, the guidelines are intended to cover the collection of intelligence, which often does involve that. Intelligence officers, for example, working in this country often go out of their way not to commit crimes, but yet need to be surveiled. Terrorist cells --

REP. SCOTT: Now, if it's relevant to the investigation, you're getting information on the secrets of people who are not even charged with a crime, if you say that information might be relevant to somebody else's criminal activity.

MR. WOODS: As you would in a criminal investigation, yes.

REP. SCOTT: With a warrant.

MR. WOODS: With a national security letter, as you would use a grand jury subpoena --

REP. SCOTT: Well, grand jury -- you've got two different branches of government working at that point.

MR. WOODS: In theory.

REP. SCOTT: And then, see, this is why we like a little oversight from somebody other than the ones doing the chasing.

MR. WOODS: I'm not disagreeing on the point about oversight. I think there does need to be oversight outside the executive branch. We've struggled with this. Congress has struggled with this for years in regulating intelligence operations. And it is difficult to do that, but we do need it ultimately in the statute. I'm in favor of that.

REP. SCOTT: Well, just to make a comment, Mr. Chairman, that's why we have a FISA court kind of in secret at least looking over the proceedings. That's all ex parte. At least you've got somebody in another branch of government watching what's gone on with these vague standards and somebody that has the authority to put an end to it if they're going into areas that are more shenanigans than investigation.


REP. SCOTT: Thank you.

I think all the witnesses have indicated that the term "foreign intelligence" includes fights against terrorism. Mr. Fein has also suggested it includes a lot more than that.

Let me just ask in terrorism: Mr. Kris, you indicated that terrorism -- does it have to be related to a state supported terrorist, or can you have a free, kind of a loosely organized group of terrorists that are not state supported? Would they be included in all of this?

MR. KRIS: Yes. Non-state supported terrorism would be included. FISA's legislative history's pretty clear in saying you could have the Larry, Moe and Curly terrorist organization. I mean, three guys who are actually engaged in terrorism would be a terrorist group.


Now, you indicated two sections. When we talk about foreign intelligence -- for the purpose of national security letters, are both sections of the foreign intelligence -- the terrorism part and the trade deal part -- are both of them subject to national security letters?

MR. KRIS: Well, you mean currently or what I think should be?


MR. KRIS: Well, currently, it's -- it depends on, you know, there's several different NSL statutes and it depends on which statute, but most of them are focused on international terrorism -- most of the broad ones. So they wouldn't include the so-called affirmative foreign intelligence of the banking sort, if you want, or the foreign trade stuff.

My own view is -- but then there are some statutes that do refer to the foreign trade, as long as it doesn't concern a U.S. person. So that basically --

REP. SCOTT: What it's concern -- if it's relevant to a foreign intelligence investigation, you're getting information relevant to that investigation, can you not get information -- records pertaining to an innocent United States citizen?

MR. KRIS: Well, you may. But --

REP. SCOTT: That's what the whole NSL letter is about, isn't it?

MR. KRIS: I may be messing this up by causing more confusion than I'm resolving.

But in current law, there is a distinction between this protective information -- the information you need to fight against terrorism and all these other threats -- and affirmative foreign intelligence information. The sort you want to get when we're spying on them: For example, trying to get trade-related information or what have you.

And by and large -- there's a number of different laws, so I don't want to make an absolute blanket statement -- by and large, the second category of affirmative foreign intelligence information in this context has to be information that doesn't concern a U.S. person.

So it might for --

REP. SCOTT: So using those -- using that section where you -- the trade deals section --

MR. KRIS: Yeah.

REP. SCOTT: -- you cannot get information pertaining to a -- innocent United States citizen?

MR. KRIS: Or any, guilty or innocent.

REP. SCOTT: With an NSL?

MR. KRIS: I mean, at least under the standard that I'm talking about. I --

REP. SCOTT: Is this "should be" or "is"?

MR. KRIS: Well, it's what I proposed, yes, and it also has a basis in current law. But there are several different provisions of current law that have different standards. So I want to be careful.

REP. SCOTT: So is there any provision in present law where you can get information, records, of an innocent United States citizen pertaining to an investigation, trade-deal-type investigation, foreign intelligence, where you can get information on an innocent United States citizen?

MR. KRIS: I don't think so, sir, but I --

REP. SCOTT: Does anybody want to comment?

MR. KRIS: I think at least under FISA. Now, that's not a national --

(Cross talk.)

MR. KRIS: Right.

REP. SCOTT: Well, with FISA you've got a judge --

MR. KRIS: The FISA judge --

(Cross talk.)

REP. SCOTT: FISA, you've got a judge looking at it, which -- you have some protection.

MR. KRIS: Yes.

MR. JAFFER: Mr. Scott, could I just jump in on this whole discussion? I may be misunderstanding Mr. Kris' proposal, and if I am, I apologize in advance. But if the proposal is simply to replace the current -- or effectively to replace the current relevance language in the NSL statutes with the language that's in the foreign intelligence definition, which uses the phrase "relates to," I'm not sure that actually solves any of the problems that at least the ACLU is concerned about.

It doesn't solve the problem that the FBI can go on fishing expeditions and collect information about innocent people many degrees removed from actual suspects. And it doesn't in itself solve the oversight problem --

REP. SCOTT: Well, let me try to get in another question.

What -- is there any difference of the information you can get under FISA -- anything you can get under FISA that you can't get under -- with a national security letter or vice versa?


REP. SCOTT: What can you get --

MR. JAFFER: Well, under FISA you can get all kinds of information. You can get records relating to Fourth Amendment activity, you can get phone calls, you can get the content of phone calls, you can get e-mails. With national security letters, you can get a narrower class of information.

Now, the fact that it's a narrower class doesn't mean that it's a non-sensitive class or a not-constitutionally protected class. But it's nonetheless a narrower class of information than is available to the FBI through FISA.

REP. NADLER: Has the gentleman concluded?

REP. SCOTT: Not really. Let me -- since you insist, let me ask another question. (Laughter.)

REP. NADLER: Without objection.

REP. SCOTT: If you find information on an innocent United States citizen in one of these investigations, what happens to that information if it turns out not to be relevant to the investigation? Do you keep the information? Do you turn it over to -- if it turns out not to be relevant, can you have a collateral criminal --

MR. JAFFER: I think that the OIG has documented that the information, at least the practice, has been to keep some of that information. That's one of the problems that the inspector general identified.

REP. SCOTT: Well, let me say -- if you got somebody who was a terrorist trying to bomb something, you find out somebody you thought might have been related was unrelated, but you trip over some drug use, can you have a criminal investigation of that drug use? And can you back-door investigate drug use with these NSLs using foreign intelligence as a pretext? Can you run a criminal investigation without probable cause, just out of suspicion -- not probable cause, but you know he's dirty. And so let's do a little pretext and call it one of these foreign intelligence investigations and see what we trip over?

MR. KRIS: Well, that would seem to me to violate the act, if you could ever get inside someone's head and be able to prove that this was a pretense all along. Other than confessions, I doubt whether that's something that would ever be detected, but certainly it's a possibly.

REP. SCOTT: But we changed the standard from primary purpose to --

MR. KRIS: Significant purpose.

REP. SCOTT: -- to significant purpose, which suggests, if it's significant and not primary, it invites the question of what was the primary purpose. And, in fact, the attorney general, at one answer to the question, blurted out criminal investigation without probable -- he didn't say without probable cause, but that's what he meant.

MR. KRIS: Yeah. That's -- in fact, that's exactly what the danger is of lowering the standard, is you get the criminal investigation to piggyback on an intelligence investigation, and -- without the same constraint.

(Cross talk.)

REP. SCOTT: Yeah, without the burdensome requirement of having probable cause before you start delving into people's personal papers.

MR. KRIS: Exactly.


MR. JAFFER: Just -- no, go ahead.

MR. WOODS: All right. The -- a criminal investigation can be initiated without probable cause. Criminal investigation can obtain materials that we've been talking about, transactional materials, without probable cause, through the use of a grand jury subpoena. The requirement of probable cause only attaches when I would execute a search warrant or do electronic surveillance in a criminal investigation to get to that level.

The same hierarchy applies in intelligence investigations. You know, I would use a national security letter, which is not a probable- cause instrument to get transactional information. I would use a FISA to conduct a search warrant or do electronic surveillance for these purposes.

It's very hard -- and part of the definition that Mr. Kris has been talking about for foreign intelligence information -- the purpose of that definition is to prevent FISA, sort of the surveillance-and- search authority, to be used as a subterfuge for criminal investigations.

So regardless of whether it's significant purpose or primary purpose in FISA, it still has to be for the collection of foreign intelligence -- as the primary.

REP. SCOTT: Yeah, but if it's a significant purpose, but the primary purpose was really trying to catch somebody that you knew was dirty but you couldn't initiate a criminal investigation because you didn't have probable cause to start searching his house, but you can -- with an NSL and all these other things -- can do a intelligence, foreign intelligence investigation and back-door, because you don't have the probable cause problems, get subpoenas and warrants to start searching somebody's house?

MR. WOODS: Well, I can't. I can't, under FISA. I have to convince a judge, to get a warrant under FISA, that I am -- that this person is an agent of a foreign power. Now, if the question is can I use the NSLs, because that doesn't require a judge, then the restraint there -- and this is something we've already --


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