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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. JOHN CONYERS (D-MI): Thank you, Chairman Nadler. Welcome, all witnesses.

Let's see if during my in-and-out during this hearing -- Jaffer for the Nadler-and-recently-added-member-to-the-bill Conyers proposal; Klein (sic/Fein) for the proposal; Woods, partially for it; Kris, somewhat for it. Is that unfair characterization, or am I giving you too much support for it, Woods, than you deserve? (Laughter.)

MR. WOODS: I think the part of it that I don't support may well be very significant to the legislation's author. So perhaps I'm a little bit more in the --

REP. CONYERS: I'm over-complimentary this afternoon.

MR. WOODS: (Laughs.) But I certainly support the idea of legislation --

REP. CONYERS: How can we get it fixed so that you could go along with Nadler, Conyers, and the chairman of the Crime Committee? What would we have to do to make it -- that you would say okay? (Laughter.) Tell me.

MR. WOODS: I am primarily concerned with the standard. I -- my experience with the specific and articulable facts standard showed that to me to be a very frustrating, clumsy standard which is -- was outmoded by the time I encountered it in the 1990s. So my principal objection is the standard and, as I've said, I think the sharing with law enforcement and Homeland Security needs to be fixed as well.

But the -- certainly what is -- many of the other provisions of the legislation are quite good and the direction we need to go. And I'm not trying to do -- I'm certainly not here to defend the FBI over the last three years or what you saw in the IG reports. I think what's in the legislation addresses that, but there's a lot of it I do support.

REP. CONYERS: Mr. Fein, how can we help him sleep more comfortably in his bed at night? How can we help Mr. Woods? What's the best -- how can we fix this thing up?

MR. FEIN: Well, I think what's needed to try to test whether or not Mr. Woods' anxieties are justified is maybe in executive session you need people to say we couldn't have gotten this NSL if there was a specific and articulable facts standard, and to show whether that is more a theoretical or a practical problem.

Because remember this element -- there's a backup here. If you want to go just to the relevant standard, which was the situation before, have a grand jury do it. Grand juries can investigate, as Mr. Kris pointed out, on virtually anything, but you have the check. One, it's more in the sunshine; and second, it's an independent branch of government that does that.

And this is the reason why you would want to keep the specific and articulable standard in is because then you create an incentive to use more of the checks-and-balances approach than the unilateral approach.

That's why the Supreme Court has explained the rule is a warrant, rather than any exceptions, because you want to have an incentive to the police to use the checks and balances where it's at all feasible. That's what I would suggest.

REP. CONYERS: Thank you.

MR. KRIS: Mr. Conyers, could I add something to that?

REP. CONYERS: Of course.

MR. KRIS: I think that the reasonable and articulable grounds standard is actually -- it's a very low standard. And it just asks the FBI to provide some sort of basis for its demand for the record. It just asks the FBI to explain to somebody why it needs the records it's asking for.

And I think that if the FBI can't articulate why it needs the records, then there's a very good question about why the FBI needs the records or whether it should be collecting the records in the first place.

REP. CONYERS: Do you -- how do you feel about that, Mr. Fein?

MR. FEIN: I think that's accurate, and I think there's similar situation arose in the U.S. Supreme Court. The case out of Michigan, a U.S. versus U.S. District Court case. I was there at the Department of Justice at the time. It was a claim made by then-Attorney General John Mitchell that in domestic national security situations you didn't need any judicial warrant, because it was too complex to explain national security issues to judges.

And the court unanimously said that's nonsense. Maybe the reason you can't articulate a national security dimension is because it's not there. And the court ruled no; if you have some genuine belief that something mischievous is afoot, you should be able to articulate it. And I think that's exactly applicable to this standard here.

REP. CONYERS: Now, Mr. Kris, it's your turn. What's the reluctance, the genuine reserve that you hold back on the Nadler/Conyers/Scott approach?

MR. KRIS: Well, I think I'm somewhere in the middle here, between these various witnesses.

REP. CONYERS: Well, that's a good place to start. (Laughter.)

MR. KRIS: I -- yes. Just consider me the lukewarm water in between the fire and the ice. (Laughter.)

First, I agree with Mr. (Fine/Fein) that an executive session might be helpful here, because I think these kinds of discussions in the abstract can devolve rapidly into angels on the head of a pin. These words in a vacuum are very hard to sort of get a feel for.

I, based on my now-substantially-outdated operational experience have some doubts about the specific and articulable facts relating the records to a foreign power or an agent of a foreign power. I'm not sure I would go quite as far in opening it up as Mr. Woods.

Again, I think here the standard that ought to apply is the same standard, essentially, that applies under FISA. The information should be essentially a subset of foreign intelligence information, information that's relevant to our ability to protect against these threats. I think that's where the agents ought to be focused at all times.

And so I think that's probably the right way to go but, again, I would want to have this discussion where you could really get some hard facts and some concrete examples going around.

REP. CONYERS: Then you might go from lukewarm to warm?

MR. KRIS: Yeah.

REP. CONYERS: All right.

Thank you very much, Mr. Chairman.


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