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[Senate Hearing 110-846]
[From the U.S. Government Printing Office]
S. Hrg. 110-846
ATTORNEY GENERAL GUIDELINES FOR FBI
CRIMINAL INVESTIGATIONS, NATIONAL
SECURITY INVESTIGATIONS, AND THE
COLLECTION OF FOREIGN INTELLIGENCE
=======================================================================
HEARING
BEFORE THE
SELECT COMMITTEE ON INTELLIGENCE
OF THE
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 23, 2008
__________
Printed for the use of the Select Committee on Intelligence
Available via the World Wide Web: http://www.access.gpo.gov/congress/
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SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Cong., 2d Sess.]
JOHN D. ROCKEFELLER IV, West Virginia, Chairman
CHRISTOPHER BOND, Missouri, Vice Chairman
DIANNE FEINSTEIN, California JOHN WARNER, Virginia
RON WYDEN, Oregon CHUCK HAGEL, Nebraska
EVAN BAYH, Indiana SAXBY CHAMBLISS, Georgia
BARBARA A. MIKULSKI, Maryland ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin OLYMPIA J. SNOWE, Maine
BILL NELSON, Florida RICHARD BURR, North Carolina
SHELDON WHITEHOUSE, Rhode Island
HARRY REID, Nevada, Ex Officio
MITCH McCONNELL, Kentucky, Ex Officio
CARL LEVIN, Michigan, Ex Officio
JOHN McCAIN, Arizona, Ex Officio
----------
Andrew W. Johnson, Staff Director
Louis B. Tucker, Minority Staff Director
Kathleen P. McGhee, Chief Clerk
CONTENTS
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SEPTEMBER 23, 2008
OPENING STATEMENTS
Rockefeller, Hon. John D., IV, Chairman, a U.S. Senator from West
Virginia....................................................... 1
Bond, Hon. Christopher S., Vice Chairman, a U.S. Senator from
Missouri....................................................... 3
WITNESSES
Collins Cook, Elisebeth, Assistant Attorney General, Office of
Legal Policy, Department of Justice............................ 6
Caproni, Valerie, General Counsel, Federal Bureau of
Investigation.................................................. 7
SUBMISSIONS FOR THE RECORD
Prepared Statement of Elisebeth Collins Cook and Valerie Caproni. 9
ATTORNEY GENERAL GUIDELINES FOR FBI
CRIMINAL INVESTIGATIONS, NATIONAL
SECURITY INVESTIGATIONS, AND THE
COLLECTION OF FOREIGN INTELLIGENCE
----------
SEPTEMBER 23, 2008
U.S. Senate
Select Committee on Intelligence
Washington, DC.
The Committee met, pursuant to notice, at 2:37 p.m., in
Room SH-216, Hart Senate Office Building, the Honorable Jay
Rockefeller (Chairman of the Committee) presiding.
Committee Members Present: Senators Rockefeller, Wyden,
Feingold, Whitehouse, and Bond.
OPENING STATEMENT OF HON. JOHN D. ROCKEFELLER IV, CHAIRMAN, A
U.S. SENATOR FROM WEST VIRGINIA
Chairman Rockefeller. The Committee will come to order.
Today the Senate Intelligence Committee examines issues
related to the proposed Attorney General guidelines governing
the activities of the Federal Bureau of Investigation within
the United States.
In early August, Attorney General Michael Mukasey contacted
me and other leaders of the congressional Intelligence and
Judiciary Committees to inform us that he would soon issue a
new set of guidelines for the FBI to consolidate and harmonize
five existing sets of investigative guidelines. These
guidelines pertain to general crimes investigations, national
security investigations, the collection of foreign intelligence
information and reporting on civil disorders and
demonstrations.
The Attorney General later agreed to postpone issuing those
proposed guidelines until after Congress had held hearings this
month to examine them. I appreciate the Attorney General's
decision to consult with Congress and his willingness to seek
comments on the proposed guidelines, not only from the Hill,
but also from selected representatives of civil liberties
organizations on a read and return basis, which has already
taken place.
I regret, however, that the proposed guidelines have not
been publicly released, by which I mean in a broader sense for
broader debate and broader comment, not just the people who
would cluster about the subject, but broader than that, because
this is a huge decision. Circulating the actual proposed
guidelines would be a constructive step in generating
additional review and commentary.
The Justice Department's decision to prohibit the Committee
from retaining a copy of the draft guidelines in preparing for
this hearing and to restrict their public distribution has been
unhelpful and has unnecessarily complicated our review of them.
In light of the recently documented abuses in the FBI's use of
national security letters and continued concerns going back to
9/11 with the Department's ability to carry out the national
security mission, the Committee wants to ensure that the new
guidelines are not only effective, but subjected to sufficient
oversight.
Last week Federal Bureau of Investigation Director Bob
Mueller testified on the proposed guidelines before the House
and Senate Judiciary Committees as part of the broader
oversight hearings of the FBI. It is important, nevertheless,
that the Intelligence Committee also consider the proposed
guidelines, as their most important features concern the
intelligence activities of the FBI.
Our witnesses today are Assistant Attorney General Beth
Cook and FBI General Counsel, Valerie Caproni. Both are able
public servants, and they are experts within the Department on
these issues. They are, in fact, the experts. We welcome their
appearance before the Committee.
I regret that neither the Attorney General nor the Deputy
Attorney General were available to accept our invitation to
join our witnesses in testifying on this important topic. But
that's sort of for the record.
Over the last 32 years, the Attorney General--in fact,
since Edward Levy issued the first set of guidelines to
establish direction and control over the internal security
activities of the FBI, Attorney General guidelines have been a
signature pronouncement of the nation's top legal officer.
As the Levy guidelines have been revised over the years--
and they have a number of times, including up until just a few
years ago--and emerging investigative issues have been
addressed, these guidelines have represented what the Attorney
General thinks is the appropriate balance between the
government's duty to prevent crime and to deter threats to the
national security and the protection of the rights of Americans
under the Constitution and the rule of law. In striking that
balance, the guidelines have been highly important to the
Congress.
As the Inspector General of the Department of Justice
observed in a report on the FBI's compliance with existing
guidelines, ``The adoption of the Levy guidelines were a factor
in the decision by Congress in the late 1970s and early 1980s
not to enact a statutory charter for the FBI.'' Simply put, the
guidelines have given Congress confidence that the nation's
highest law officer had acted and would continue to act to
ensure that the FBI abuses exposed in the 1970s, which led to a
variety of things, would not be repeated.
Over the course of time, Attorneys General have not only
amended the original guidelines, but have issued additional
sets of guidelines. With respect to the Justice Department new
proposal, it may be appropriate, as our witnesses will no doubt
urge, to consolidate and make consistent the five sets of
Attorney General guidelines, particularly in the area of
checking leads and conducting investigations involving
international terrorism, where the guidelines overlap to the
greatest degree.
This Committee has pushed the Department of Justice and the
FBI to make improvements in the FBI's work as an intelligence
agency. Consolidated and clarified Attorney General guidelines
could represent an improvement for FBI agents and analysts, if
they are carefully written with appropriate safeguards to
prevent abuse and ensure accountability.
The Department of Justice and the FBI, however, need to
make the case why FBI agents need greater latitude to use
sensitive investigative techniques such as physical
surveillance and pretext interviews that may mislead law-
abiding American citizens, particularly outside of the
terrorism context, without the factual predicates, higher level
of approval and periodic review and renewal that have been
required, not only before 9/11, but in Attorney General
guidelines issued since that time.
We'll also want to hear whether sufficient safeguards are
built into the proposed guidelines and resources provided to
protect the constitutional and legal rights of Americans
through appropriate oversight authorities given to the national
security division and other components of the Department of
Justice.
Before turning to the Vice Chairman for his opening
remarks, I want to take a few moments to acknowledge the
exemplary work of two members of our Committee who will be
retiring from the Senate at the end of Congress, and it saddens
me that they're not here at this particular moment because of
their extraordinary service.
And so, with the indulgence of my colleagues, I would just
say that John Warner and Chuck Hagel have been absolutely
invaluable to this Committee, not only in their knowledge, in
their diligence, in their aggressiveness, in their intellectual
curiosity, but also because of their distinguished personal
characteristics.
They're among the hardest working and the most
knowledgeable members ever to sit on this Committee. We're
losing both of them. It'll be very, very hard to fill those
positions. Over the many years of their service at countless
hearings and business meetings, Senator Warner and Senator
Hagel have been strong and the key is very independent
advocates for strengthening our intelligence community and
keeping America strong. I personally will miss them both in
every way.
I now turn to Vice Chairman Bond for any remarks he would
like to make.
OPENING STATEMENT OF HON. CHRISTOPHER S. BOND, VICE CHAIRMAN, A
U.S. SENATOR FROM MISSOURI
Vice Chairman Bond. Thank you very much, Mr. Chairman. I
join with you in wishing well our departing members and will
pass along to them your very kind words.
I'm pleased the Department of Justice and the FBI have
taken the unprecedented step of consulting with Congress prior
to the adoption of the guidelines. It make sense for us to
discuss the merits of these consolidating guidelines prior to
their adoption.
And I welcome Ms. Caproni and Ms. Cook. We appreciate your
service and look forward to your testimony.
The new FBI guidelines, as has been indicated, trace their
roots back to 1976, when Attorney General Ed Levy issued
classified guidelines governing FBI counterintelligence and
foreign intelligence investigations. These have been revised
over the years, never an easy process. The last one occurred
under General Ashcroft in 2003.
That process took almost two years from the time the FBI
formally requested an update of its foreign and
counterintelligence guidelines. And there was a general
consensus after 9/11 that the FBI's FCI guidelines were
outdated and didn't provide sufficient flexibility to allow the
FBI effectively to prevent and neutralize terrorist threats.
Two main goals of the 2003 revision process: first were to
remove the walls preventing the sharing of information within
the FBI; second, to make the FCI guidelines as flexible as the
FBI's criminal guidelines. They were a significant improvement
over previous ones, and the FBI recognized that there were
still key differences, however, between the criminal and
intelligence guidelines.
Before addressing some of those differences, I note that
these guidelines are novel in that they govern both the FBI
criminal investigations and intelligence operations. I think
this consolidated approach simultaneously eliminates any
remaining information-sharing walls, creates a framework under
which the FBI intelligence activities can be conducted with the
same flexibility as criminal investigations and operations.
Now, this is a good thing. If we expect the FBI to be able
to protect us against threats of terrorism and other national
security threats, we should at least permit them the same
latitude with all lawful steps to neutralize those threats,
including those used every day to put ordinary criminals in
jail.
Additionally, these guidelines are basically unclassified,
a remarkable departure from the past. We hope this will bolster
public confidence.
One of the key improvements in the 2003 guidelines was the
creation of a threat assessment concept, clearly laying out
activities the FBI could utilize prior to opening a formal
preliminary or full investigation. The techniques available
were based upon some of the activities permissible under the
``prompt and limited checking of leads'' authority contained in
the criminal guidelines. These new guidelines merge the two
concepts under the category of assessments.
It appears to consolidate a list of authorized assessment
techniques, borrow the best from both sets of guidelines. It's
important to remember that the real value of the assessment
phase is to allow the FBI to use non-invasive techniques to
determine quickly how best to invest its analytical and
investigative resources.
Without these assessment tools, the only alternative for
the Bureau is to go through the bureaucratic step of opening up
a predicated investigation, only to learn after one phone call
there was no substance to it. Worse, the lack of an assessment
phase keeps the FBI in a reactive mode and limits its ability
to spot potential threats or criminal activities just over the
horizon.
Another improvement, I think, allows recruiting and tasking
of sources during an assessment. Under the national security
investigative guidelines, the FBI can only interview
previously-established assets or sources during a threat
assessment. The criminal guidelines never contained such a
restriction. This restriction is not practical if the goal of
an assessment is to help prevent an attack or quickly rule out
an innocent person. Why should they be limited to going to
previous sources?
It makes sense the FBI should be allowed to task an
existing source or recruit a new asset to gather information
related to a threat or a future criminal enterprise in order to
run to the ground the truth as quickly as possible. The ability
to recruit and task assets during the ``limited checking of
leads'' phase has worked well for years under the criminal
guidelines. The authority to use this technique is long-
overdue, in my view, in the national security context.
Another technique long available prior to the opening of a
predicated investigation is to engage in observation or
surveillance not requiring a court order. The current
investigative guidelines do not explicitly authorize the use of
such observation or surveillance during a threat assessment.
But it's often useful in situations in which an unknown
individual is meeting with a subject of a current
investigation.
In these situations, a photograph or physical surveillance
that yields a license plate number or a street address should
allow the FBI to use other assessment authorities to assess the
need for additional investigations. And additionally, an
important technique that's been included in the new guidelines,
taken from guidelines, is the authority to conduct a pretext
interview, simply an interview where an FBI agent does not
disclose the FBI affiliation.
It could be something as simple as a phone call to make
sure that phone's being used by the investigation subject. Or
it could be something more dangerous, like talking to a
suspected drug dealer who might not react favorably to knowing
he's being interviewed by an FBI agent. They tend to be a
little bit shaky about that.
Again, the technique has been routinely available to
criminal investigators. I see no reason why it should not be
used in the national security context, where we're talking
about keeping our homeland, our families, you and me safe here
in the United States.
The guidelines contain a number of other key improvements
that I strongly endorse. The FBI will now be able to obtain
information from foreign governments during the assessment
phase. Criminal investigations will be able to access
commercial databases during the assessment phase. The FBI may
continue to use enterprise investigations focusing on
comprehensive investigations of a group or organization.
The FBI will be explicitly authorized to be more proactive
in the use of assessment techniques in the conduct of strategic
analysis. The guidelines maintain the historical respect for
the least intrusive means concept and the exercise of First
Amendment and other protected rights. And the guidelines
explicitly preserve the application of the Attorney General's
guidance regarding the use of race by federal law enforcement
agencies.
I wrap up by thanking you and all the men and women who
participated in what must have been a long and tedious
negotiation and approval process. It appears to me that all the
hard work was well worth it. The guidelines, in our view, are a
marked improvement over the predecessor guidelines and should
protect both our civil liberties and our national security.
Please convey our congratulations to the Attorney General and
the team. I would urge that the Attorney General issue the
guidelines immediately.
Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you.
And, Ms. Cook, we would be delighted to hear from you
first, if that is your preferred order.
STATEMENT OF ELISEBETH COLLINS COOK, ASSISTANT
ATTORNEY GENERAL, OFFICE OF LEGAL POLICY, DEPARTMENT OF JUSTICE
Ms. Cook. Mr. Chairman, Vice Chairman Bond and members of
the Committee, thank you for the opportunity to appear before
you today to discuss the Attorney General's guidelines for
domestic FBI operations.
As discussed in depth in our joint statement for the
record, we believe that these guidelines will help the FBI
continue its transformation from the preeminent law enforcement
agency in the United States to a domestic intelligence agency
that has a national security mission and law enforcement
mission.
The changes we have made to the guidelines have been
focused and relatively narrow. First and foremost, we have
increased the range of techniques that would be available to
assess the potential threat to national security to include
techniques already available at the same investigative stage
when tracking down a lead as to criminal activity--
specifically, allowing agents to recruit and task sources,
conduct physical surveillance that does not require a court
order and conduct interviews without explicitly identifying
themselves as agents for the precise purpose of the interview,
so-called pretext interviews.
In practice, we believe that these changes will allow the
FBI to take significant steps forward in its change to a
proactive intelligence-driven agency.
Second, the consolidated guidelines reflect a change in
approach to oversight on the national security side, one that
we believe will result in more comprehensive and effective
oversight over time. The guidelines reflect a shift in
oversight that was accomplished primarily through notice to
main Justice and filings to the FISA court to oversight now
accomplished through a combination of a dedicated oversight
unit within the national security division, the Department's
Office of Privacy and Civil Liberties, a dedicated compliance
unit within the FBI, on-site audits, notices, filings with the
FISA court and reports.
Perhaps equally important to today's discussion, though, is
a brief description of what we have not changed in the draft
consolidated guidelines. In 2003, the Attorney General issued
new guidelines governing the investigation of threats to the
national security. Reflected in that set of guidelines was an
important and novel approach for national security cases,
namely, that there must be available some level of information
gathering prior to the opening of a formal investigation.
In the national security guidelines, that level of activity
was the threat assessment. On the criminal side, the FBI
already had the ability to check out leads without opening a
formal investigation. We have carried that basic notion in
structure into the consolidated guidelines.
The ability to ask and answer questions such as whether
there is a presence of a particular terrorist organization in a
given field office is not a new one to the consolidated
guidelines. What we have tried to do instead is to allow the
FBI to answer that question more efficiently and more
effectively through additional techniques, techniques that
would have been available had the question been, is there a
presence of a particular gang in a given field office. We have
not changed our basic structure. The standard remains the same
to open a preliminary investigation.
Some have also raised concerns about the proper role of
race or ethnicity in FBI investigations and intelligence
gathering. Although difficult questions, these are not new
questions. And we have not changed our approach in this area.
The balance struck by the Attorney General in the 2003
guidance on the use of race by federal law enforcement agencies
remains in full force with the consolidated guidelines. At the
end of the day, it is simply not feasible to eliminate race,
ethnicity or even religion as a potential factor. Consider a
suspect description that includes the perpetrator's race or an
investigation of organizations such as the Aryan Brotherhood or
the IRA.
But it is also the case that race, ethnicity and religion
alone are not and should not be sufficient to open an
investigation. The use of these factors is and should be a
matter of serious discussion, and it has been throughout our
process. After extensive consideration, we believe the balance
was struck appropriately five years ago.
We've appreciated the opportunity to work with you and your
staff and are grateful for the thoughtful comments we've
received during our discussions. I appreciate the opportunity
to be here today to continue that process. In response to your
comments today and thus far, we anticipate making changes to
the guidelines before they are finalized.
Mr. Chairman and members of the Committee, I look forward
to your questions.
Chairman Rockefeller. Thank you very much, Ms. Cook.
And now, Ms. Caproni.
STATEMENT OF VALERIE CAPRONI, GENERAL COUNSEL, FEDERAL BUREAU
OF INVESTIGATION
Ms. Caproni. Good afternoon, Chairman Rockefeller, Vice
Chairman Bond and members of the Committee. I'm pleased to be
here today.
We are here today to discuss the new Attorney General
guidelines for domestic FBI operations, which are in the
process of being finalized, which have been briefed to your
staff and which Ms. Cook just discussed in some detail. With
the help and input of this Committee, it is my hope that we can
make these guidelines effective for agents and analysts
operating in the field in the near term.
Approximately 18 months ago, the FBI asked the Department
of Justice to consider combining three primary sets of
guidelines that govern our investigations--the so-called
general crimes guidelines, the national security investigative
guidelines, or the NSIG, and the supplemental guidelines
governing collection of foreign intelligence. We asked them to
combine them because we believe certain restrictions in the
NSIG were interfering with our ability to become an
intelligence-driven agency and that the differences were not
supportable from a public policy perspective.
Finally from a compliance perspective, having different
sets of rules to govern essentially identical conduct depending
on how it is labeled is not ideal. To give you just a few
examples of the inconsistencies, the guidelines governing
national security investigations prohibited recruiting or
tasking sources unless the FBI had a preliminary investigation
or a PI open. There was no such prohibition in the general
crimes guidelines.
The NSIG also prohibited physical surveillance other than
casual observation without a PI opened. The difference between
surveillance and casual observation was something close to a
Jesuitical or Talmudic question.
The general crimes guidelines which governed other criminal
investigations did not contain such a limitation. So,
ironically, in many instances an agent could readily use
physical surveillance to assess whether a particular location
was being used for drug dealing but not for terrorist training.
In the past, these rules may have been sufficient for the
threats they were intended to address. But criminal threat and
national security threats do not fall neatly into separate
categories. Different rules should not apply depending on how
the agent decides to describe what he or she is investigating.
I must emphasize that despite the headlines of some
newspaper articles, the new guidelines do not give the FBI any
new authorities. Instead, they remove the last vestige of the
metaphorical wall that has separated criminal and national
security matters for years and has limited the use of certain
authority that we have in the national security realm. They
will replace several sets of guidelines with a single, uniform
set of rules to govern the domestic activities of our
employees.
The guidelines set consistent rules that apply across all
operational programs, whether criminal or national security.
They will give us the ability to be more proactive and to
continue our transformation into an intelligence-driven
national security and criminal organization. They will
eliminate virtually all inconsistencies that present compliance
challenges and that have confused our employees.
Several bipartisan commissions, the Congress and the
American people have asked and expect the FBI to be able to
answer questions such as, are there sleeper cells in this
country planning attacks like those that occurred in London or
Madrid. In order to answer those questions, the FBI must expand
its intelligence collection beyond that which is collected as
part of predicated investigations. We must examine threats in a
proactive fashion and not simply rely on information that is
provided to us in order to initiate action.
To achieve the mission of protecting the United States
against terrorist and criminal threats, the Director is
insisting that our employees think proactively about the
threats and vulnerabilities in their areas of responsibility.
Our employees are up to the task, but they need consistent,
clear guidelines that do not vary based on whether they're
considering a threat from MS-13, Hizbollah or a foreign
government.
The FBI has the responsibility of protecting the country
from national security and criminal threats while upholding the
Constitution. We will fail as an agency if we safeguard the
country from terrorism but sacrifice the privacy and civil
liberties that make us the country we are today.
We know that we can only achieve our mission of keeping the
country safe if we maintain the trust and confidence of the
American people. We understand that with these new guidelines
comes the responsibility to ensure that the authorities granted
are used responsibly and consistently with the best traditions
of the FBI.
Mr. Chairman, I would like to conclude by thanking this
Committee for the time your staff spent with us discussing the
guidelines. As you know, historically the Attorney General has
not brought Congress or outside groups into the process of
drafting guidelines. Having the consultation process is new,
and I believe it was extremely helpful.
We accepted many of the specific suggestions we received,
and we have reconsidered certain provisions based on
discussions with your staff as well as the advocacy groups.
Although these are the Attorney General guidelines and they
govern the FBI's activities, the truth is that everyone has an
interest in making sure that we get the authority that we need
to achieve our mission and that the authority comes with
sufficient oversight and compliance mechanisms to ensure that
the FBI does not achieve its mission at the cost of privacy and
civil liberties.
I'm happy to answer any questions that you may have.
[The prepared statement of Ms. Cook and Ms. Caproni
follows:]
Prepared Statement of Elisebeth Collins Cook, Assistant Attorney
General, Office of Legal Policy, Department of Justice and Valerie
Caproni, General Counsel, Federal Bureau of Investigation
Mr. Chairman, Vice Chairman Bond, and Members of the Committee,
thank you for the opportunity to appear before you today to discuss the
Attorney General's Guidelines for Domestic FBI Operations. We believe
that these guidelines will help the FBI continue its transformation
from the pre-eminent law enforcement agency in the United States to a
domestic intelligence agency that has a national security mission and
law enforcement mission.
The new guidelines provide more uniform, clear, and straightforward
rules for the FBI's operations. They are the culmination of prior
efforts to revise the FBI's operating rules in the wake of the
September 11 terrorist attacks. They are consistent with and help
implement the recommendations of several distinguished panels for the
FBI to coordinate national security and criminal investigation
activities and to improve its intelligence collection and analytical
capabilities.
These guidelines will protect privacy rights and civil liberties,
will provide for meaningful oversight and compliance, and will be
largely unclassified. Consequently, the public will have ready access
in a single document to the basic body of operating rules for FBI
activities within the United States. The guidelines will take the place
of five existing sets of guidelines that separately address, among
other matters, criminal investigations, national security
investigations, and foreign intelligence collection. They are set to
take effect on October 1, 2008.
We have greatly appreciated the interest of this Committee and
others in these guidelines. Over the past six weeks, we have made a
draft of the guidelines available for review to the Members and staff
of this Committee, the House Permanent Select Committee on
Intelligence, the Senate Judiciary Committee, and the House Judiciary
Committee. We have provided briefings (and made the draft guidelines
available for review) to a wide range of interested individuals and
groups, including Congressional staff, public interest groups ranging
from the American Civil Liberties Union (ACLU) to the Arab-American
Anti-Discrimination Council (ADC) to the Electronic Privacy Information
Center (EPIC), and a broad set of press organizations. The dialogue
between the Department and these individuals and groups has been, in
our view, both unprecedented and very constructive. We have appreciated
the opportunity to explain why we undertook this consolidation, and we
are amending the draft guidelines to reflect feedback that we have
received.
I. Purpose of the Consolidation Effort
Approximately 18 months ago, the FBI requested that the Attorney
General consider combining three basic sets of guidelines--the General
Crimes Guidelines, which were promulgated in 2002, the National
Security Investigative Guidelines (NSIG), which were promulgated in
2003, and a set of guidelines that are called the Supplemental Foreign
Intelligence Guidelines, which were promulgated in 2006.
This request was made for three primary reasons. First, the FBI
believed that certain restrictions in the national security guidelines
were actively interfering with its ability to do what we believe
Congress, the 9/11 Commission, WMD Commission, and the President and
the American people want the FBI to do, which is to become an
intelligence-driven agency capable of anticipating and preventing
terrorist and other criminal acts as well as investigating them after
they are committed. The clear message to the FBI has been that it
should not simply wait for things to fall on its doorstep; rather, it
should proactively look for threats within the country, whether they
are criminal threats, counterintelligence threats, or terrorism
threats.
Second, the FBI believed that some of the distinctions between what
an agent could do if investigating a federal crime and what an agent
could do if investigating a threat to national security were illogical
and inconsistent with sound public policy. Specifically, the FBI argued
that there was not a good public policy rationale for (a) the
differences that existed, and (b) the guidelines that governed national
security matters to be more restrictive than those that governed
criminal matters.
Third, the FBI concluded that having inconsistent sets of
guidelines was problematic from a compliance standpoint. The FBI made
its request for consolidation after the Inspector General had issued
his report on the use of National Security Letters. That report helped
crystallize for the FBI that it needed stronger and better internal
controls, particularly to deal with activities on the national security
side, as well as a robust compliance program. The FBI argued that, from
a compliance standpoint, having agents subject to different rules and
different standards depending on what label they gave a matter being
investigated was very problematic. The FBI asserted that it would
prefer one set of rules because compliance with a single set of rules
could become, through training and experience, almost automatic.
The Department agreed with the merits of undertaking this
consolidation project, and the result is the draft guidelines we are
discussing today. These guidelines retain the same basic structure of
predicated investigations on the one hand, and pre-investigative
activity on the other--currently called threat assessments on the
national security side and prompt and limited checking of leads on the
criminal side. The standard for opening a preliminary investigation has
not changed and will not change.
The most significant change reflected in the guidelines is the
range of techniques that will now be available at the assessment level,
regardless of whether the activity has as its purpose checking on
potential criminal activity, examining a potential threat to national
security, or collecting foreign intelligence in response to a
requirement. Specifically, agents working under the general crimes
guidelines have traditionally been permitted to recruit and task
sources, engage in interviews of members of the public without a
requirement to identify themselves as FBI agents and disclose the
precise purpose of the interview, and engage in physical surveillance
not requiring a court order. Agents working under the national security
guidelines did not have those techniques at their disposal. We have
eliminated this differential treatment in the consolidated guidelines.
As discussed in more detail below, the consolidated guidelines also
reflect a more comprehensive approach to oversight.
II.Uniform Standards
The guidelines provide uniform standards, to the extent possible,
for all FBI investigative and intelligence gathering activities. They
are designed to provide a single, consistent structure that applies
regardless of whether the FBI is seeking information concerning federal
crimes, threats to national security, foreign intelligence matters, or
some combination thereof The guidelines are the latest step in moving
beyond a reactive model (where agents must wait to receive leads before
acting) to a model that emphasizes the early detection, intervention,
and prevention of terrorist attacks, intelligence threats, and criminal
activities. The consolidated guidelines also reflect the FBI's status
as a full-fledged intelligence agency and member of the U.S.
Intelligence Community. To that end, they address the FBI's
intelligence collection and analysis functions more comprehensively.
They also address the ways in which the FBI assists other agencies with
responsibilities for national security and intelligence matters.
The issuance of these guidelines represents the culmination of the
historical evolution of the FBI and the policies governing its domestic
operations that has taken place since the September 11, 2001, terrorist
attacks. In order to implement the decisions and directives of the
President and the Attorney General, to respond to inquiries and
enactments of Congress, and to incorporate the recommendations of
national commissions, the FBI's functions needed to be expanded and
better integrated to meet contemporary realities. For example, as the
WMD Commission stated:
[C]ontinuing coordination . . . is necessary to optimize the
FBI's performance in both national security and criminal
investigations . . . . [The] new reality requires first that
the FBI and other agencies do a better job of gathering
intelligence inside the United States, and second that we
eliminate the remnants of the old ``wall'' between foreign
intelligence and domestic law enforcement. Both tasks must be
accomplished without sacrificing our domestic liberties and the
rule of law, and both depend on building a very different FBI
from the one we had on September 10, 2001. (Report of the
Commission on the Intelligence Capabilities of the United
States Regarding Weapons of Mass Destruction 466, 452 (2005))
To satisfy these objectives, the FBI has reorganized and reoriented
its programs and missions, and the guidelines for FBI operations have
been extensively revised over the past several years. For example, the
Attorney General issued revised versions of the principal guidelines
governing the FBI's criminal investigation, national security
investigation, and foreign intelligence collection activities
successively in 2002, 2003, and 2006.
Despite these revisions, the principal directives of the Attorney
General governing the FBI's conduct of criminal investigations,
national security investigations, and foreign intelligence collection
have persisted as separate documents that impose different standards
and procedures for comparable activities. Significant differences exist
among the rules these separate documents set for core FBI functions.
For example, even though activities that violate federal criminal laws
and activities that constitute threats to the national security
oftentimes overlap considerably, FBI national security investigations
have been governed by one set of rules and standards, while a different
set of rules and standards has applied to the FBI's criminal
investigations generally. These differences have created unfortunate
situations where the same kind of activity may be permissible for a
criminal investigation but may be prohibited for a national security
investigation.
As an example of how the prior guidelines treated comparable
activities differently based on how those activities were categorized,
consider the question of what the FBI can do in public places. Under
the multiple guidelines regime, the rules were different if the FBI
received a tip that a building was connected to organized crime as
opposed to a tip that the building was connected to a national security
matter, such as international terrorist activity. The rules for how
long the FBI could sit outside the building, or whether the FBI could
follow someone exiting the building down the street, were different;
specifically, more restrictive on the national security side and
difficult to apply. It makes no sense that the FBI should be more
constrained in investigating the gravest threats to the nation than it
is in criminal investigations generally.
Similarly, under the prior guidelines, human sources--that is,
``informants'' or ``assets''--could be tasked proactively to ascertain
information about possible criminal activities. Those same sources,
however, could not be proactively tasked to secure information about
threats to national security, such as international terrorism, unless
the FBI already had enough information to predicate a preliminary or
full investigation.
The consolidated guidelines we are discussing today carry forward
and complete this process of revising and improving the rules that
apply to the FBI's operations within the United States. The new
guidelines integrate and harmonize these standards. As a result, they
provide the FBI and other affected Justice Department components with
clearer, more consistent, and more accessible guidance for their
activities by eliminating arbitrary differences in applicable standards
and procedures dependent on the labeling of similar activities
(``national security'' versus ``criminal law enforcement''). In
addition, because these guidelines are almost entirely unclassified,
they will make available to the public the basic body of rules for the
FBI's domestic operations in a single public document.
III. Coordination and Information Sharing
In addition to the need to issue more consistent standards, the
FBI's critical involvement in the national security area presents
special needs for coordination and information sharing with other DOJ
components and Federal agencies with national security
responsibilities. Those components and agencies include the
Department's National Security Division, other U.S. Intelligence
Community agencies, the Department of Homeland Security, and relevant
White House agencies and entities. In response to this need, the
notification, consultation, and information-sharing provisions that
were first adopted in the 2003 NSIG are perpetuated in the new
guidelines.
IV. Intelligence Collection and Analysis
Additionally, the new guidelines carry out a significant area of
reform by providing adequate standards, procedures, and authorities to
reflect the FBI's character as a full-fledged domestic intelligence
agency--with respect to both intelligence collection and intelligence
analysis--and as a key participant in the U.S. Intelligence Community.
In relation to the collection of intelligence, legislative and
administrative reforms expanded the FBI's foreign intelligence
collection activities after the September 11, 2001, terrorist attacks.
These expansions have reflected the FBI's role as the primary collector
of intelligence within the United States--whether it is foreign
intelligence or intelligence regarding criminal activities. Those
reforms also reflect the recognized imperative that the United States'
foreign intelligence collection activities inside the United States
must be flexible, proactive, and efficient in order to protect the
homeland and adequately inform the United States' crucial decisions in
its dealings with the rest of the world. As the WMD Commission stated
in its report:
The collection of information is the foundation of everything
that the Intelligence Community does. While successful
collection cannot ensure a good analytical product, the failure
to collect information . . . turns analysis into guesswork. And
as our review demonstrates, the Intelligence Community's human
and technical intelligence collection agencies have collected
far too little information on many of the issues we care about
most. (Report of the Commission on the Intelligence
Capabilities of the United States Regarding Weapons of Mass
Destruction 351 (2005))
The new guidelines accordingly provide standards and procedures for
the FBI's foreign intelligence collection activities that are designed
to meet current needs and realities and to optimize the FBI's ability
to discharge its foreign intelligence collection functions.
In addition, enhancing the FBI's intelligence analysis capabilities
and functions has consistently been recognized as a key priority in the
legislative and administrative reform efforts following the September
11, 2001, terrorist attacks. Both the Joint Inquiry into Intelligence
Community Activities and the 9/11 Commission Report have encouraged the
FBI to improve its analytical functions so that it may better ``connect
the dots.''
[Counterterrorism] strategy should . . . encompass specific
efforts to . . . enhance the depth and quality of domestic
intelligence collection and analysis . . . . [T]he FBI should
strengthen and improve its domestic [intelligence] capability
as fully and expeditiously as possible by immediately
instituting measures to . . . significantly improve strategic
analytical capabilities . . . . (Joint Inquiry into
Intelligence Community Activities Before and After the
Terrorist Attacks of September 11, 2001, S. Rep. No. 351 & H.R.
Rep. No. 792, 107th Cong., 2d Sess. 4-7 (2002) (errata print).)
A ``smart'' government would integrate all sources of
information to see the enemy as a whole. Integrated all-source
analysis should also inform and shape strategies to collect
more intelligence . . . . The importance of integrated, all-
source analysis cannot be overstated. Without it, it is not
possible to ``connect the dots.'' (Final Report of the National
Commission on Terrorist Attacks Upon the United States 401, 408
(2004))
The new guidelines accordingly incorporate more comprehensive and
clear authorizations for the FBI to engage in intelligence analysis and
planning, drawing on all lawful sources of information. The guidelines
will allow the FBI to do a better job of being an intelligence-driven
agency.
To be an intelligence-driven agency, the FBI needs to be asking
questions. What is the threat within our environment? To give an
example, without the new quidelines, if the question were asked of a
Special Agent in Charge (SAC) of an FBI field office, ``Do you have a
problem of theft of high technology or theft of classified information
within your domain?'' the answer would be phrased in terms of how many
cases were open. But the number of cases open is a reflection only of
what has already been brought to the FBI's attention; it is not an
accurate measure of the true scope of a given risk.
The new guidelines will allow the FBI fundamentally to change who
it approaches in answering the types of questions that we believe this
Committee and the American people would like it to be answering. If a
field office is seeking to assess whether it has a substantial threat
within its area of responsibility of theft of classified or sensitive
technology, it might begin the analytic work necessary to reach a
conclusion by considering whether there are research universities in
the area that are developing the next generation of sensitive
technology or doing basic research that will contribute to such
technology and considering whether there are significant defense
contractors in the area. From there, the field office should compare
those potential vulnerabilities with specific intelligence regarding
the intentions of foreign entities to unlawfully obtain sensitive
technology.
If an SAC determines that, within his or her area of
responsibility, sensitive technology is being developed at a local
university that is of interest to foreign powers, the SAC should then
determine whether there are individuals within the field office's area
of responsibility that pose a threat to acquire that technology
unlawfully. In this example, a logical place to start would be to look
at the student population to determine whether any are from or have
connections to the foreign power that is seeking to obtain the
sensitive technology.
Under existing guidelines, agents are essentially limited to
working overtly to narrow the range of potential risks from the
undoubtedly over-inclusive list of students with access. They can talk
to existing human sources, and they can ask them: ``Do you know
anything about what's going on at the school? Do you know any of these
students?'' If the agent does not have any sources that know any of the
students, then the assessment is essentially stopped from a human
source perspective, because recruiting and tasking sources under the
national security guidelines is prohibited unless a preliminary
investigation is open. Similarly, the agent also cannot do a pretext
interview without a preliminary investigation open, but the agent does
not have enough information at that point to justify opening a
preliminary investigation. An overt interview in the alternative may be
fine in a wide range of scenarios, but could result in the end of an
investigation by tipping off a potential subject of that investigation.
At the end of the day, the inability to use techniques such as
recruiting and tasking of sources, or engaging in any type of interview
other than an overt one, was inhibiting the FBI's ability to answer
these types of intelligence-driven questions.
The ability to use a wider range of investigative techniques at the
assessment stage, prior to the opening of a predicated investigation,
is a critical component of the FBI's transformation into an
intelligence-driven organization. Since 2003, we have had the ability
to conduct threat assessments to answer questions such as whether we
have vulnerabilities to or a problem with the theft of sensitive
technology in a particular field office. With the new consolidated
guidelines, the FBI will now have the tools it needs to ascertain the
answer to those questions more efficiently and effectively.
V. Oversight and Privacy and Civil Liberties
The new guidelines take seriously the need to ensure compliance and
provide for meaningful oversight to protect privacy rights and civil
liberties. They reflect an approach to oversight and compliance that
maintains existing oversight regimes that work and enhances those that
need improvement.
As a result of the stand up of the National Security Division, and
the reports by the Inspector General on the use of National Security
Letters, the Department and the FBI have been engaged in extensive
efforts to reexamine and improve our oversight and compliance efforts
in the national security area. Our assessment has been that oversight
in the criminal arena is provided through the close working
relationship between FBI agents and Assistant U.S. Attorneys (AUSAs),
as well as the oversight that comes naturally in an adversarial system
for those investigations that ripen into prosecutions. Oversight on the
national security side is different because of more limited AUSA
involvement and because ultimate criminal prosecutions are less
frequent in this area.
Traditionally, on the national security side, oversight was
accomplished through two primary means: notice and reporting to then-
Office of Intelligence Policy and Review, now a part of the National
Security Division, and through filings with the FISA Court. We believe
that conducting oversight in this manner was not as effective as the
system set forth in the new guidelines. The prior oversight system was
based primarily on reporting and generated many reports from the FBI to
the Department that did not provide meaningful insight into the FBI's
national security investigations. Thus, the Department's oversight
resources were not focused on those activities that should have been
the highest priority--namely, those activities that affected U.S.
persons. Moreover, to the extent that the process relied in part in
filings with the FISA court for more in-depth oversight, it was under-
inclusive. Many national security investigations proceed without ever
seeking or obtaining an order from the FISA Court. The guidelines
establish an approach to oversight that focuses the Department's
oversight efforts on protecting the civil liberties and privacy rights
of Americans in all national security investigations.
The new guidelines accomplish oversight on the national security
side in a number of ways. The guidelines require notifications and
reports by the FBI to the National Security Division concerning the
initiation of national security investigations and foreign intelligence
collection activities in various contexts. They also authorize the
Assistant Attorney General for National Security to requisition
additional reports and information concerning such activities.
Additionally, many other Department components and officials are
involved in ensuring that activities under the guidelines are carried
out in a lawful, appropriate, and ethical manner, including the Justice
Department's Office of Privacy and Civil Liberties and the FBI's
Privacy and Civil Liberties Unit, Inspection Division, Office of
General Counsel, and Office of Inspection and Compliance. A significant
component of the oversight that will be provided by the National
Security Division will come in the form of ``National Security
Reviews,'' which are the in-depth reviews of national security
investigations that the National Security Division and the FBI's Office
of General Counsel commenced following the Inspector General's report
on National Security Letters in 2007.
Moreover, the new guidelines carry over substantial privacy and
civil liberties protections from current investigative guidelines. They
continue to prohibit the FBI from investigating or maintaining
information on United States persons in order to monitor activities
protected by the First Amendment or the lawful exercise of other rights
secured by the Constitution or laws of the United States. In connection
with activities designed to collect foreign intelligence in response to
Intelligence Community requirements, where the lawful activities of
U.S. persons can be implicated, the guidelines require the FBI to
operate openly and consensually with U.S. persons, if feasible.
Additionally, as the Attorney General emphasized when he testified
before the Senate Judiciary Committee, the guidelines prohibit
practices (such as racial or ethnic ``profiling'') that are prohibited
by the Guidance Regarding the Use of Race by Federal Law Enforcement
Agencies.
The issue of how investigators may take race, ethnicity, or
religion into account during an investigation is a difficult question,
but it is not a new question. We have long recognized that it is not
feasible to prohibit outright the consideration of race, ethnicity or
religion--the description of a suspect may include the race of the
perpetrator, and groups (such as Aryan Brotherhood, La Cosa Nostra, or
the IRA) that are under investigation may have membership criteria that
tie to race, ethnicity, or religion. But it is also the case that it
cannot be, and should not be, permissible to open an investigation
based only on an individual's perceived race, ethnicity, or religion.
We believe that the balance struck in 2003 in this regard--reflected in
the Attorney General's Guidance Regarding the Use of Race by Federal
Law Enforcement Agencies--is the appropriate one, and we have not
changed that balance.
These guidelines continue to require notice to appropriate
Department officials when investigations involve domestic public
officials, political candidates, religious or political organizations,
or the news media. Moreover, as a matter of FBI policy, the FBI imposes
higher levels of approval on many activities that have an academic
nexus, reflecting the American tradition of academic freedom in our
institutions of higher learning.
Finally, these guidelines operate in conjunction with numerous
privacy and civil liberties officials and components within the FBI and
Department of Justice. As mentioned earlier, the vast majority of the
new guidelines will be made available to the public, thereby providing
the public with more ready access to the rules governing FBI activities
within the United States. Before the consolidated guidelines take
effect, the FBI will carry out comprehensive training to ensure that
their personnel understand these new rules and will be ready to apply
them in their operations. Indeed, this training is already underway.
The FBI is also developing appropriate internal policies to implement
and carry out the new guidelines. These policies cannot afford agents
or supervisors more flexibility than the guidelines themselves but can,
and in several cases do, set forth additional restrictions.
VI. Conclusion
Over the last seven years, the FBI has altered its organizational
structure, and the Attorney General has issued new policies to guide
the FBI as it seeks to protect the United States and its people from
terrorism, intelligence threats, and crime, while continuing to protect
the civil liberties and privacy of it citizens. The changes reflected
in the new guidelines are necessary in order for the FBI to continue
its important transformation to being an intelligence-driven
organization. We believe that using intelligence as the strategic
driver for the FBI's activities will improve its ability to carry out
its national security, criminal law enforcement, and foreign
intelligence missions.
Thank you again for the opportunity to discuss these issues with
you, and we will be happy to answer any of your questions.
Chairman Rockefeller. Thank you.
Ms. Cook, have the guidelines changed in any way since our
staff was able to see them?
Ms. Cook. We have been discussing a number of changes
internally in response to the very thoughtful suggestions that
your staff has given us, that we have received from other staff
as well and the outside groups that we had met with. We have
not yet come to rest on final language, and there is not a new
draft. It continues to be a work in progress. We would assume
it would continue to be a work in progress after this hearing
as well.
Chairman Rockefeller. Were there some pretty basic areas
involved? I mean, can you talk about the areas?
Ms. Cook. I'm happy to talk about some of the areas. One
area that was brought to our attention during the briefing with
members of this Committee, in particular, the staff, was how we
had folded in the 1976 guidelines dealing with civil disorders
and demonstrations.
We do anticipate revisiting some of the decisions that we
made when we did fold those into the consolidated guidelines
with respect to potential time limits on the investigation, the
techniques that would be available, and ensuring that these
types of investigations remain the narrowly focused types of
investigations that they were always intended to be. That is
one area where I think we would anticipate fairly significant
changes from the draft that we had previously circulated.
Chairman Rockefeller. The civil disorders referred to, are
they any kind of civil disorders, or are they intelligence
related or foreign related or somebody's been interviewed and
didn't like what they were asked at pretext interview?
Ms. Cook. The 1976 guidelines on civil disorders and
demonstrations covered essentially two types of activities.
Civil disorders, the basic question is essentially whether or
not you have a riot situation that is sufficiently dangerous
that you should call in the federal troops. So the precise
question that is being asked of the FBI is to gather
intelligence to inform the President's decision as to whether
or not to call in the troops. So that's the civil disorder
side.
Chairman Rockefeller. I understand. So that's intelligence
relating to a non-intelligence event?
Ms. Cook. Exactly.
Chairman Rockefeller. Right. Will the guidelines be
released at some point? I mean, obviously if it's a work in
progress you can't release them until they're done. What do you
think the timeline will be on that?
Ms. Cook. We do hope to wrap this project up in the very
near term. As Ms. Caproni indicated, this has been going on for
about 18 months. But one of our goals in combining and
consolidating the guidelines was to try and make them as public
as possible.
Some of the guidelines that we were folding in and
consolidating had been largely classified. And we believe that
approximately 99 percent of the final set of consolidated
guidelines will be not only unclassified, but publicly
available.
Chairman Rockefeller. I think that's a wise thing to do.
Ms. Caproni, if you would, describe the kind and extent of
the physical surveillance that will now be allowed during
threat assessments.
Ms. Caproni. It would be any sort of physical surveillance
that doesn't involve intrusion into a constitutionally
protected area. So it's surveillance that does not involve or
doesn't implicate someone's reasonable expectation of privacy
such that a warrant would be required.
So we could follow someone. We could follow a car. We could
watch the outside of a building or a facility, anything that's
public that you wouldn't need a warrant in order to do it.
Chairman Rockefeller. Okay. Will the authority or this
particular authority allow the FBI to follow a law-abiding U.S.
citizen or a permanent resident all day or for many days
without grounds to believe that the person followed is engaged
in activities that endanger the national security?
Ms. Caproni. It could, but let me explain that further.
We've imposed some structure on an assessment. So you have to
open it, and you have to describe what you're doing, what's the
purpose of it, what do you want to achieve. And that purpose
has to be an authorized purpose. It has to be within FBI's
mission.
So the description of what we're doing has to be provided
to the supervisor for certain types of assessment. For limited
checking of leads, there are slightly different rules. So the
agent needs to describe what it is they're doing. In order to
engage in surveillance, they need a supervisor's approval, and
they need to, again, describe the purpose is of the
surveillance. Is there a goal of the surveillance that is
within the parameters of the assessment that they've described?
So it is conceivable that you would have someone who, for
reasons that are sufficient to the assessment, we're trying to
figure out whether there is a relationship between two people,
because we have had some reason to believe that there might be
and that there might be either a corrupt or an illegal
relationship or that one or the other of them is an
intelligence officer. There are lots of different reasons why
you might need to engage in surveillance. And you want to know
where the person lives, and you want to know where he works.
And so, you may well follow that person to ascertain where
he lives and where he works. And that could be surveillance for
a day. All of this would be, again, in non-privacy protected
areas. So it's conceivable. It would depend on what the purpose
is.
Chairman Rockefeller. Thank you.
The Vice Chairman.
Vice Chairman Bond. Thank you very much, Mr. Chairman.
You know, Ms. Caproni, we've heard a lot of criticisms, as
you might expect, that it's broad, new powers. But it seems to
me the point is just to give the FBI a simple set of rules to
follow in both criminal and national security investigations.
Can you set the record straight directly on that point?
Ms. Caproni. Our goal in issuing a consolidated set of
guidelines was to ensure that the FBI agents had a clear,
consistent and rational set of guidelines to be following when
they were doing investigations of potential crimes, threats to
national security or intelligence gathering, foreign
intelligence gathering. We thought it was important, not just
for the agents, but also the American public to see that there
was one set of clear and coherent rules.
We did also revisit the decisions that had been made in
2002 and 2003 to have different techniques available under
general crimes guidelines as opposed to the national security
guidelines. And based on our information as to how those
guidelines worked out in the field, we determined that it no
longer was rational to have those types of distinctions and, in
fact, was impeding the FBI from becoming the intelligence-
driven agency that we've asked them to become.
Vice Chairman Bond. Based on your former federal prosecutor
experience, I guess that it makes sense. Should this not
improve the FBI's ability to prevent and respond to national
security threats?
Ms. Caproni. We believe that this will allow the FBI to
take additional necessary steps to becoming a more proactive
organization. One of the key issues that we think the FBI needs
to be able to do is assess potential risks and vulnerabilities.
Having these additional techniques available at the assessment
level, we think, will be key to the FBI's ability to
efficiently and effectively answer those questions and assess
risks.
Vice Chairman Bond. Sounds reasonable.
Ms. Caproni, just to follow up and I think to state it
positively with what you implied to the Chairman, if
surveillance goes into an area where an individual has an
expectation of privacy, will the FBI be required to get a
warrant? And can you give us an example of that instance in
which they would have to move from just the assessment
indicating a warrant?
Ms. Caproni. Sure. Obviously the guidelines can't change
the Constitution.
Vice Chairman Bond. Right.
Ms. Caproni. But if we're intruding into an area where
there is a reasonable expectation of privacy, the agent either
has to stop or they have to go get a warrant. A warrant is
not--a search warrant is not an authorized technique for an
assessment.
So if they're in a situation where something happens and
they want a search warrant, they're, first off, going to need
to open an investigation. They're going to have to show that
they have sufficient reason or sufficient factual predicate
that someone's either committing a crime or they're a terrorist
or a spy in order to get supervisory approval to open an
investigation.
If they don't have that, they're not going to be able to
persuade a magistrate to give them a search warrant, because
that requires probable cause. So they would need to take those
steps.
An example might be: suppose there had been some reason to
be concerned about what was happening at a particular storage
locker. And so, the agents sit and watch the storage locker.
And what they see is someone going in and out and taking
fertilizer in and out of the storage locker.
That's probably enough, under the circumstances, assuming
we're not in a farm area and it's not a logical place to store
your fertilizer. There's a logical inference that that person
is up to something. That would be enough to open an
investigation, probably enough to get a search warrant,
depending on what they want to do with the fertilizer. But they
may want to substitute it for less volatile materials.
They would have to open an investigation and then go to a
judge in order to get a warrant to do whatever it is they
wanted to do relative to what was contained within the storage
locker.
Vice Chairman Bond. Okay.
Ms. Caproni. But that would, again, be an example. If I
might just go back to the Chairman's question where it could be
that we got a bum tip on the storage locker and we're watching
the storage locker and what we see is, in fact, someone who is
engaged in perfectly lawful activity--putting the excess from
his attic.
Vice Chairman Bond. Loading the fertilizer in his tractor
spreader.
Ms. Caproni. Correct.
Vice Chairman Bond. That's different. Okay.
Ms. Cook, one final thing. What opportunity have the
outside privacy national security groups had to offer any
comments? Do you anticipate any changes based on comments from
those groups or from Congress?
Ms. Cook. We have held a series of briefings over the last
six weeks. We've held three formal briefings to staff up on the
Hill. We then also had an extensive briefing session with
numerous outside organizations, both civil rights groups and
civil liberties and privacy organizations.
We have also made the guidelines available upon request to
Members and Committee staff. This has been a six-week process.
We do anticipate making changes in response to the comments
that we have received.
Vice Chairman Bond. Thank you very much, Ms. Caproni and
Ms. Cook.
Chairman Rockefeller. Thank you, Mr. Vice Chairman.
Senator Wyden.
Senator Wyden. Thank you, Mr. Chairman.
I thank our witnesses. And once again, our Committee is
back at the intersection where you're talking about how you
fight terrorism ferociously and at the same time be sensitive
to the rights of our citizens.
And my principal reason for concern here, not the two of
you, is the agency's troubled history in implementing new
investigative authorities, and particularly you see this most
recently with the national security letters, which is a very
clear example of where the agency was given new powers. There
wasn't adequate guidance. There wasn't adequate internal
oversight. And the problems have now been well-documented. So
what I'm interested in is getting at a couple more of these
concrete examples so I get a sense of exactly how this is going
to work.
And I'm going to start with you, Ms. Cook and your
colleague as well just to give me some insight into how this
will work.
If you have an FBI agent, for example, who's looking at
various intelligence matters and wants to know which employees
at a particular shoe company are traveling to which foreign
country, you've got a situation where there's no ongoing
investigation, no tips, no information, nothing whatsoever,
that the company or the employees are engaged in or tied to any
kind of dangerous, illegal activity. If the agent goes to the
company's headquarters to ask about employee travel habits,
under the proposed guidelines, can the agent who's making the
inquiry mislead in any way, in other words, say that they're
not with the government, something that involves false
pretenses?
Ms. Cook. What the consolidated guidelines do is harmonize
the two previous standards that you had. Under general crimes
guideline, in your scenario if the question was is the company
involved in drug trafficking, then an agent could go to the
company and ask questions without affirmatively revealing
themselves as an FBI agent or the precise purpose of the visit.
We have now harmonized that. And if the question instead is are
there employees who are related to a threat to the national
security, yes, the FBI agent would have the option of choosing
not to identify themselves as an FBI agent or, in the
alternative, not to identify the precise reason for the request
for information.
Senator Wyden. Okay. I understand fully your argument with
respect to convergence. And these are issues that reasonable
people can differ on. But what you have identified for me is
that in the intelligence gathering area, the agency would be
given new powers, A, and be given them in instances where there
was not the traditional predicate, where there wasn't the tips
and the information. And that really gets me to my last point
because you have basically clarified for me the new powers.
Exactly how is the process of putting in place the controls
on this going to go forward? You're going to continue the
discussions, I think you said, with the various public interest
groups. And that certainly is constructive. And then what will
happen after that?
You said you wanted to take into consideration what they
say and what we say. And again, kudos to you for that. But what
happens in terms of putting in place the kind of internal
controls so that four or five months after something like this
goes into effect, if it does, that you don't have the same
problems you had with the national security letters?
Ms. Cook. We are trying to wrap up the guidelines and
finalize the guidelines in the very near term. But the
guidelines provide a framework for the FBI. And what you have
on top of the guidelines are FBI policies that will implement
the guidelines' provisions themselves. And it's a one-way
ratchet.
The policies can only be more restrictive than the
guidelines themselves. They cannot be more permissive than the
guidelines. And the policies are binding upon the FBI agents.
We are continuing to develop those policies. There are
folks hard at work, I'm guessing right now, at the FBI working
on those policies. As the Director testified last week, we
would hope to make those policies, to the extent that we can,
public as well.
Senator Wyden. Thank you, Mr. Chairman.
Chairman Rockefeller. Thank you, Senator Wyden.
Senator Whitehouse.
Senator Whitehouse. You all have explained how the FBI
would connect the purpose of the investigations. Ms. Caproni, I
think you were the one who described how you would have to
establish that there is a purpose of the investigation that
falls within the jurisdictional guidelines that gives the FBI a
role. Correct?
Okay, so we have the purpose. And you've vet that against
the FBI's jurisdiction. That's a fairly simple legal
determination. And now let's say that it's a go, and you have
an investigation pursuant to that purpose.
Now, you have to take humans, subjects of that
investigation, and you have to connect them to that purpose.
Correct? It's not enough just that you have the purpose to
defend national security. If you're going to go out and surveil
somebody or take some investigative action, there has to be
some nexus between that individual and the purpose that you
seek to achieve. Correct?
Ms. Caproni. Correct. Although I think you've sort of
jumped several steps in terms of analytically how it would
happen. But yes, if we get down to the point that we're looking
at particular people, you have to have some connection between
the people and your purpose.
Senator Whitehouse. Well, take me through some of those
analytical steps that would connect a person to a purpose and
authorize an FBI agent to investigate some aspect of their
lives.
Ms. Caproni. Or assess, we would say, at this point
because--I'm interpreting your question as being----
Senator Whitehouse. It's not going to feel much different
to the person on the other end. So use the word you please.
Ms. Caproni. Okay. Let's say that the question is, that the
question that's been posed is, do you have an MS-13 presence in
your area of responsibility. So the question is, is MS-13 here
or not. So the agents and the analysts are going to need to do
a lot of work in order to answer that question.
Historically the answer to that question would be we have
two MS-13 cases or we have no MS-13 cases or we have 100 MS-13
cases. So if they have 100 MS-13 cases, big problem. No cases,
no problem. Two cases, small problems. But that's not true
because what all cases reflect is what we know, what's come in
the door.
Senator Whitehouse. So the first cut in the analysis is
organizational. Is an organization that is working against the
purpose that you seek to achieve and that you've identified
operating in this area?
Ms. Caproni. Correct. So then what we need to do is look at
MS-13 and say what does MS-13 look like. How would we know if
it's in our territory or not? So cutting through a lot----
Senator Whitehouse. Let's say you've established that.
Let's move on to the next step.
Ms. Caproni. Okay, but that's an important--if I could take
just a second. So let's say that what we know is is that MS-13
is associated with several things.
Senator Whitehouse. I have less than a minute and 53
seconds left, just so you know.
Ms. Caproni. Okay. First off, they're almost all Central
Americans, ex-pats. Second, there are certain graffiti tags
that are associated with an MS-13 presence. Third, there may be
certain tattoos that are associated with MS-13. They're very
specific to MS-13. Fourth, there may be certain criminal
conduct that MS-13 is particularly engaged in. So you start
looking at all that.
Senator Whitehouse. For a nexus between the individual and
the organization?
Ms. Caproni. Correct.
Senator Whitehouse. But you can't include racial----
Ms. Caproni. But first you're looking at people who are
potentially--that is, they bear the characteristics that MS-13
does.
Senator Whitehouse. Yes.
Ms. Caproni. So you've got graffiti that's associated with
them. You've got tattoos that are associated with them. You've
got criminal conduct that's associated with them. You've got
Central Americans who are engaged in this conduct. So you've
got a potential for MS-13 presence based on what you've heard.
Senator Whitehouse. Yes.
Ms. Caproni. You may at that point start talking to
informants. What do you know about these people? Are they MS-
13?
And so, then you start to narrow down and start to look at,
well, do you have an MS-13 presence or not. And that may lead
you to say between informant information and other information,
police information and the like, you've got some people here
that look like they may be MS-13.
Senator Whitehouse. And have you got language at this point
that describes the nexus that you would require between the
individual and the organization in the same way that, you know,
in a search warrant context one would use the phrase probable
cause or in an undercover investigation into public corruption
you'd look for predication? What would be the legal terminology
or the sort of overall description of what you would require in
order for that nexus to be signed off on by the supervisory
agent?
Ms. Caproni. Again, that is for us to take an
investigative--to take assessment activities relative to a
particular individual?
Senator Whitehouse. Yes. What would the benchmark be they'd
have to meet in the simplest possible terms?
Chairman Rockefeller. Senator Whitehouse, don't worry about
time. I'm yielding my time to you.
Senator Whitehouse. Well, thank you, sir.
Chairman Rockefeller. So go at it.
Ms. Caproni. The way we describe it is in terms of fit. So
we talk about what is the fit between the intelligence that you
have and the persons that you are looking at. The closer to
fit, the more likely and more logical it is to approve
activity. But even with that, you always need to look at what's
the intrusion level of the activity.
So to go back to Senator Wyden's question--I realize he's
not here, but hopefully someone will pass it along--on the
questions of whether you can use a pretext interview to go talk
to a particular manufacturer, I would have added to the answer.
It would depend. Because the question is, is that the least
intrusive means of getting to the information that you need.
You're dealing here with an American company. You're dealing
with Americans.
To the extent possible, you should be, if you're looking
for purely foreign intelligence--it wasn't clear from the
hypothetical what we were looking for--you need to operate
openly and consensually. Even if you're looking for
counterterrorism, counterintelligence or criminal information,
you've still got to be bound by what's the least intrusive
alternative.
Going to a public company that we have no reason to believe
is engaged in any wrongdoing and engaging in a pretext
interview is a very intrusive step. Why does the FBI need to
engage in pretext there?
Senator Whitehouse. I think what I'm hearing is that
there's kind of a sliding scale between the fit that is
required of the subject of the assessment to the investigation
and the technique that you are authorized to use against the
person. Is that correct?
Ms. Caproni. That's one of the factors that's looked at
when analyzing under least intrusive alternatives.
Senator Whitehouse. So when you said that you could--in the
answer to the Chairman's question--that you could use any
technique up to and anything short of what would require a
warrant, that would also presumably include a pen register?
Ms. Caproni. No, no, no, no, that's not what I said. The
Chairman's question had to do with whether we could follow
someone.
Senator Whitehouse. Yes.
Ms. Caproni. And what's the limit of surveillance----
Senator Whitehouse. You said you could follow them wherever
you didn't need a search warrant to follow them.
Ms. Caproni. We were talking about physical surveillance,
just watching someone. A pen register is not physical
surveillance. That requires a court order, and it requires at
least a preliminary investigation to be opened before you can
do that.
Senator Whitehouse. I understand that.
Ms. Caproni. Because you need--there's a required showing
to a court there. But just for physical surveillance, the limit
to physical surveillance is I can sit and watch anything or I
can follow anything so long as I'm not intruding into a Fourth
Amendment area. But whether that's proper still has to
evaluated under the least intrusive alternative. So following
someone around all the time can be intrusive. It depends on
what--again, it all comes back to what are you looking for.
Senator Whitehouse. Yes. Well, let me--again, even though
the Chairman's been generous with my time, I really need to try
to focus on my questions if I'm going to get through this. So
let's talk just for a moment about the pen register and the
trap and trace, which obviously prosecutors need an order, but
they don't need probable cause.
Ms. Caproni. Correct.
Senator Whitehouse. It's a very, very low threshold,
basically relevant to an investigation there.
Ms. Caproni. Correct.
Senator Whitehouse. It's not uncommon to see them referred
to basically as a wiretap subpoena just because you get the
paperwork and you go to the phone company, you get the stuff.
If you've got an individual--let's put it this way. How much
fit is required for you to get up on a pen register, trap and
trace on an individual?
Ms. Caproni. Well, you need at least a preliminary
investigation opened. So you've got to at least have
information or allegations.
Senator Whitehouse. Let me cut to that, then, because
that's another way of cutting at this. You've got a criminal
case going on, you know. When you know the crime, you open the
case, and then you can investigate under the authority of that
open case.
Ms. Caproni. Right. Correct.
Senator Whitehouse. In this matter, it strikes me that the
open case is essentially the organization. You don't open a
case for terrorism in this district. You open a case for----
Ms. Caproni. We've got a misunderstanding here.
Senator Whitehouse [continuing]. MS-13?
Ms. Caproni. The area where these guidelines are changing
things is in the assessment area. You cannot use a pen register
during an assessment.
Senator Whitehouse. Period.
Ms. Caproni. Period, end.
Senator Whitehouse. Okay.
Ms. Caproni. Not available.
Senator Whitehouse. So you can't use it.
Ms. Caproni. No way, no how.
Senator Whitehouse. When do you open a case in this area?
Ms. Caproni. Well, if you have information or allegation
that the person is or may be one of those things, either
criminal or a terrorist----
Senator Whitehouse. You have organization, fit and purpose.
Ms. Caproni. No, no, no, no, it's a specific. To get to a
preliminary investigation, you have to have a specific factual
predicate. It's the same factual predicate you've always had to
have. So information or allegation of criminality or a threat
to the national security.
Senator Whitehouse. All right.
Ms. Caproni. The assessment, though, is the one step before
that. And you can't use a pen register then.
Senator Whitehouse. Okay. That's helpful to know.
Thank you, Mr. Chairman. I appreciate the indulgence of the
extra time.
Chairman Rockefeller. I think the Vice Chairman was about
to yield his time to you also, which he could do in that he's
about to leave. And that would give you----
Vice Chairman Bond. Would you like another half-hour?
Chairman Rockefeller. No, come on, Sheldon. You're on.
Senator Whitehouse. How about billing records and payment
information?
Ms. Caproni. You can't get that in an assessment. You can
only get that in a preliminary investigation.
Senator Whitehouse. Okay.
Ms. Caproni. Well, let me clarify that slightly. Are you
talking about billing records and payment records for
telephones?
Senator Whitehouse. For telephone calls.
Ms. Caproni. Yes, you need at least a preliminary
investigation open.
Senator Whitehouse. Okay. That was it. Those are my
questions.
Chairman Rockefeller. All of that breach of protocol and
that's all I get for it?
Senator Whitehouse. Yes, I know. Sorry.
Chairman Rockefeller. Okay, Ms. Caproni, pretext interview.
There are some questions in pretext interviews designed to
obtain information potentially by instilling fear in a person
or false grounds in a person interviewed. Can that happen? And,
if so, do you know of an example?
Ms. Caproni. Is your question, can that happen during an
assessment or can that happen during a pretext interview?
Chairman Rockefeller. Pretext interview.
Ms. Caproni. Yes, it could happen during a pretext
interview.
Chairman Rockefeller. And you would use that specifically
motivated by what desire?
Ms. Caproni. Okay, now the question comes what is FBI
policy. And FBI policy is--though it's not entirely set--is
looking very carefully at the circumstances under which the
pretext is something that, to use your words, instills fear or
for whatever reason motivates someone to talk to the agent who
might not otherwise, who might say go away and leave me alone.
So we're looking as a matter of policy at how to define that.
There have never been any restrictions on the criminal side
in terms of what sort of pretext can be used to get someone to
talk, including a pretext that is entirely designed to strike
fear in the heart of the person that the agent approaches. But
we're looking very carefully at that because, depending on how
it's used, again, it's not a least intrusive alternative. It is
a fairly intrusive alternatively, in fact. And so, we're trying
to set policy around pretext, something that we, frankly,
again, have never done.
Chairman Rockefeller. So it's something that you really get
to a point that it's something which can have value, but also
causes concern?
Ms. Caproni. Correct.
Chairman Rockefeller. And how, therefore, do you surround
it with some envelope of protection and propriety?
Ms. Caproni. Correct.
Chairman Rockefeller. And what you can say is you're
working on it?
Ms. Caproni. I'll say I'm working on it. And I'll also say,
as the Director indicated during the course of testimony and I
think we've told your staff as well, once we get the policy
further along so that some of these things that we're debating
internally have at least somewhat come to rest, we are happy to
come up and brief your staff and would love the opportunity to
talk to them about where we've drawn those lines.
Ms. Cook. If I could add very quickly?
Chairman Rockefeller. Please.
Ms. Cook. One effect, we think, of the change in our
approach to oversight would also be to add additional main
Justice oversight to precisely these types of questions.
Historically on the national security side oversight was
accomplished through notices. So if a preliminary investigation
was opened or a preliminary investigation was renewed, there
would be a notice that was given to attorneys in the now
national security division.
Or, if agents wanted to avail themselves of FISA tools,
they would have to go through main Justice attorneys to do so.
That would not cover assessments. So you have this area where
the FBI had a fair amount of latitude, and we did not have a
structured or routinized approach to oversight.
With the on-site audits that we have instituted and are
reflected in the guidelines, those will encompass exactly these
types of decisions and the assessment category. So the
assessment level, we think, at the end of the day is going to
be subject to more main Justice oversight than it historically
has been.
Chairman Rockefeller. Different subject. Right after 9/11
we had to pass this ridiculous but crucial law saying that the
CIA and the FBI could talk to each other. And that was, in
fact, a national embarrassment, but thank heavens, we did it.
There was then a period of time where there really wasn't
much movement on either side. And I don't necessarily mean that
Bob Mueller and whoever the director was at that time of the
CIA weren't willing to go back and forth. But as you went down
the ranks a little bit, the resistance built in.
Now, I'm not a lawyer, unlike my friend, the Supreme Court
judge over here. But the thing I always keep in my mind is the
long, yellow pad. And the FBI agent, law school graduate is
trained on that. And there are slurs, tons, thousands of agents
across this country.
And then, incidentally, you have agents which are their own
fiefdoms--I mean, you know, agencies which are their own
fiefdoms. They don't necessarily report everything in. Coleen
Crowley could tell you something about that.
But they're trained to do what they do. People in their
30s, maybe even late 20s, 40s who have been charged with the
idea of arresting somebody, as they did Moussaoui--great
mistake--tend to continue to do that so that you can have
intellectually and willfully in the very top echelons of the
FBI a determination to combine, as indeed you are here, as you
combine five things into one, even more so you're taking a
bifurcated FBI agent and making him into a single source of
success on both intelligence and criminal arrests.
There's a great part of me--and I then go to my next
favorite agency, which used to be called HCFA, where they have
more people working than the United States government has and
they have piles and piles and piles and piles of paper, no
windows. And they're accustomed to doing things in certain
ways. A pile comes off the top, you know, the first piece comes
off the top. They do it, and on they go, and on they go. And it
builds in habits. It's true. It's human nature. It's true in
all of us.
Now, I want both of you to give me comfort that this making
one, not just of the guidelines or other guidelines, which is
symbolic, in a sense, of making one of the agent, to both do
when appropriate the criminal and to do the intelligence. It
takes eight years to make a good intelligence agent. I don't
know if that's true internally as much as it is external to
this country, but let's just say that.
Talk to me about that. And give me some comfort on that. I
worry about that--that the idea is great, that the intention is
great, that the leadership is great, but that down the line
five or six or seven rungs, you know, getting it to the UBL
unit or whatever it is just doesn't happen.
Ms. Caproni. I completely understand your question. And
I'll say that if the only thing we had on this was the new
agent guidelines my answer would be it's not going to happen.
The guidelines alone is not the answer.
The guidelines are part of the answer. The other part of
the answer is what are you measuring, what are you grading,
what are you counting. And a lot of what's happened--and I'm
pretty sure this Committee has been briefed on what we are
calling the SET process, which is very much a process that is
designed around continuing the transformation into us being an
intelligence-driven agency so that there's a constant FIG
structure so that the people who are running the field
intelligence groups are able to ask questions and the questions
they ask, again, are intelligence-driven questions.
So the hypothetical that I posed is do you have an MS-13
presence. That's a real question. That's a real question that
our SACs have been asked. Do you have an MS-13 presence? And
when they come in to the meetings to discuss this and they say,
well, we have two cases, what they're told is, that's not an
answer.
What we want to know is what have you looked at. You know,
who's in your community? What are they doing in your community?
How have you answered the question, no, I don't have an MS-13
problem?
And ideally what we want to hear is, I don't have an MS-13
problem, but I've got a big Bloods and Crips problem that I've
got to deal with, or I don't have either of these sorts of
problems. What I have is sort of random street crime, and I
really need to get on to the task forces with my local police
because that's what's affecting the community here--street
crime that's not federal but that we can provide assistance to.
All of those are really intelligence-driven questions and
answers that, I think, frankly, the FBI--and they're my client,
I love them--but they tended to answer questions in terms of
cases. And cases are a very bad way of answering questions
because that's simply a reflection of what's come to us as
opposed to what we've looked hard and analytically at.
I think people think we do a lot more analytic work to say,
yes, we have in this community a problem with
counterintelligence. We've got the right sort of institutions
in our area so that we've got a financial fraud problem. But I
think the reality is, if you've got a go-get-'em squad for
financial fraud, you've got a bunch of financial fraud cases.
If you've got a go-get-'em Chinese squad, you've got a bunch of
Chinese counterintelligence cases. And if you don't, you won't.
What we want to say is that's not the right way to allocate
resources. We want to know what are your threats, what are your
vulnerabilities. And in order to get to those, this is really
being driven from the top, from the Director, and it's being
driven through the Directorate of Intelligence where people
have to answer these questions.
And if they don't answer them, they're not doing well on
their performance evaluations. They're not doing well on their
bonuses, all of which affect the willingness for change in the
bureaucracy that you're talking about among people who came up
through the criminal system.
What they want to do and, by God, what they were trained to
do, is put handcuffs on. Those people have been driven to if I
want to perform and I want to do well in this organization, I
have to think from an intelligence-driven perspective. I have
to be willing to answer those questions, not just solve my
case.
And so, I think the answer is the guidelines alone aren't
enough. But the guidelines are the way with this other activity
that's going on through the SET process that the FBI will get
to where we need to get.
Chairman Rockefeller. I won't go on much more. But is the
fiefdom nature--and that's the pejorative and I understand that
and apologize. But the CIA operates as one. Everybody reports
one way or another up to the top. That's not true in the FBI.
And if you were trying to de-bifurcate somebody, to make them
two different entities at the same time, I can't make a direct
comparison between that and individual jurisdiction and I don't
have to report to anybody, you know, I'm my own--I'm in charge
of my own little fiefdom.
There's something there which is troubling. And if it
should not be troubling to me, I want you to tell me why. Is
there any consideration of taking a very old system of that
sort, given a new responsibility that is intelligence in a
variety of ways and adjusting that system?
Ms. Caproni. I think that actually there has been a lot of
adjustment. And somebody who was an SAC in 2000 would not
recognize the job of an SAC now, so that the autonomy that the
SAC used to have--I mean, my example is they were the princes
and princesses of their territory. They were in charge of the
territory, and they were in charge of their office.
That really isn't the case anymore. A lot of stuff is
headquarters-driven; the entire counterterrorism program is
directed really from headquarters. The counterintelligence
program has always really been headquarters-directed anyway.
The final piece is really this intelligence-driven piece.
So the intelligence program is very much a headquarters to
the field. So requirements start at headquarters and they go to
the field.
The SAC may not be interested in the particular
requirement. Whether he or she is interested or not, that
requirement has to be answered. And so, the direction from the
headquarters down into the field, while it's not the same model
as CIA, but what it's achieving is very much a national program
which goes down through the field offices. So that SAC, they
have some autonomy, but they don't have the same level of
autonomy they had 10 years ago. And they've got to respond to
these intelligence requirements from headquarters.
And so, I think that the concern that you're articulating
was--you know, three years ago, four years ago I'm not sure I
could have said we were there. I think now we're getting
closer.
And I would really--I mean, I think it sounds to me like--I
don't know when you all were last briefed on SET, but it seems
to me that that would be a valuable thing for the people who
are running this program and can really explain much better
than I can exactly how it works to come up and talk to you.
Because I think they've done a remarkable job of really
breaking down that wall that you're talking about, the internal
wall of people and saying to the SACs, you are part of a
national system and you've got responsibilities nationwide.
You've got information within your area that we need
elsewhere. And you can't just hold onto it in your little
office thinking that you've done your job. If that's all you've
done, if you've collected the information and it's sitting in
your files in Kansas or Paducah or Louisville, you have not
achieved your mission. You haven't done your job. You've got to
report it out so that other people who need this information
can use it.
Chairman Rockefeller. In the CIA obviously there are some
things which go to the top right away simply because there are
different forms of collecting it and they come in quickly. But
for the most part, it's some agent out somewhere in some
country who is either by himself or with a small team and they
come up with connections or facts or whatever that are
interesting. And the CIA leadership knows nothing about them.
They're told about them. They're told about them.
To me that's sort of the essence of intelligence. Now, that
may already be becoming old fashioned the better our listening
and all the rest of it gets. But I don't think so. So I want
you to help me understand that with respect to the FBI. The CIA
tends to be from the ground up. Yours sounds like it's from the
top down.
Ms. Caproni. The requirements are from the top down. But
the requirements can also go from the bottom up. So if an agent
sees in a case that there are links being made, they're seeing
connections--and the classic example would be the Phoenix memo.
So an agent just happens to notice that there are Middle-
Easterners taking flight lessons and it seems odd. What that
would now do is, rather than him writing a memo and it going to
headquarters and people kind of shrugging their shoulders and
saying I don't know what we're going to do about that, instead
the agent can propose a requirement.
They can propose that what the agent in Phoenix thinks is
odd would then be considered to be a requirement. So it would
go out as an intelligence report that this is what I'm seeing.
If headquarters says yes, we agree, that is sufficiently odd,
we want to know if that's going on elsewhere, they can push
that requirement down.
So instead of just having one agent in one office thinking,
gosh, this is odd, instead we're going to say to all agents, we
want you to go talk to your flight schools. Are you seeing
people taking flight lessons that seem odd, that something's
wrong here? And, you know, you can change the facts in a lot of
different ways, crop dusting or whatever.
But there's something odd going on here. So we expect, just
as we expect from the top to be able to say we need to know
this information from a nationwide perspective, we also expect
agents to have the initiative to say I'm seeing something
unusual in my area either because I am on the FIG and I'm
collecting intelligence and I've got a lot of human assets out
there who are telling me these things or because I'm working a
criminal case and I see through my criminal case an odd
connection that I've never noticed before that, you know, these
durable medical equipment sellers are dealing with organized
crime. I've never seen that before. Are you seeing it
elsewhere?
And then that would get pushed out, and it would become a
requirement. So I think our model is not unlike the CIA, where
there are both things from the top that go down and there are
things from the bottom that go up.
Chairman Rockefeller. Okay. Good.
Senator Feingold?
Senator Feingold. Mr. Chairman, first let me apologize. I
certainly was not playing hooky. We were voting on the India
nuclear deal. So I do apologize for just getting here now.
Ms. Cook, you said the guidelines are not final, but you
hope they will be in the near term. Do you still plan to
implement them by October 1st, as was indicated in the DOJ
letter last month to Senators Leahy and Specter? And are FBI
agents already being trained on the new guidelines? And if so,
how does that work when the guidelines are not yet final?
Ms. Cook. The October 1 deadline is obviously a deadline
we're going to have to reevaluate in terms of implementation,
given the fact that we are making changes based on the
discussions that we've had over the last six weeks with
Committee and outside groups. Ms. Caproni can go into more
detail as to the level of training that has already been under
way.
There has been some training and extensive development of
policies. But you're correct. It cannot be completed, and the
policies cannot be completed until the guidelines are
finalized.
Senator Feingold. So it's not likely to be implemented by
October 1st?
Ms. Cook. I think we're going to have to reevaluate the
October 1 deadline.
Senator Feingold. Okay.
Ms. Caproni, you testified in March 2007 that in contrast
to criminal cases, which are transparent and where agents'
activities are subject to the scrutiny of a judge, the national
security side occurs largely without that level of
transparency. You described this as a concern and testified
that that imposes upon us a higher obligation to make sure that
we have a vigorous compliance system, that we have in place the
training that is necessary, that we'll retrain the agents, so
that when agents are working in this area we'll make sure they
know. Do you agree that there is a greater possibility for
abuse in the national security area?
Ms. Caproni. I'm not sure that I would say there's a
greater possibility of abuse. I would say there's not the same
level--there's not the same public oversight as there is in
criminal cases. But I think since then there have been several
changes, specifically the level of oversight that's coming from
the oversight section of the national security division now
that it's stood up.
After that, we, the FBI, instituted what is, as far as I
know, the first government compliance office. Their purpose is
to look at our policies, look at what's going on and make sure
that cooked into our polices are appropriate procedures to
self-regulate and that there are procedures in place to come
back around the other side to say, well, are they working. It's
nice to have a great policy that seems to work, but you need
some sort of an audit function so that you come back around and
make sure that it actually is working.
So we're working with the Department. And I think from the
national security side what we've tried to substitute for the
kind of oversight that comes with an AUSA in a criminal case
are the national security reviews and other oversight that the
national security division is giving to activities that take
place at the FBI on the national security side.
Senator Feingold. I appreciate those efforts, but I just
want to highlight the inherent difference between national
security cases and criminal cases. You've alluded to the lack
of transparency and judicial oversight not being available.
Ms. Caproni, in January 2007, at an open Intelligence
Committee hearing I asked FBI Director Pistole about the FBI's
domain management program, which he described as including the
collection of information about various community
``constituencies'' across the country. In fact, he specifically
mentioned Dearborn, Michigan, which, of course, has a large
Arab-American and Muslim community.
Deputy Director Pistole assured me, however, that ``we
would not be collecting any information in the first place
unless there was some predication for doing that.'' Under the
new guidelines is that still accurate?
Ms. Caproni. I would say that perhaps a better way of
phrasing that answer now under the new guidelines is they would
only be collecting information if there is an authorized
purpose. So within an assessment you could collect information
on various constituencies. But it's got to be linked back to
what's the purpose of the assessment. It's got to be
legitimately within the parameters of an assessment.
Senator Feingold. Well, it strikes me that a purpose and a
predicate are different, very different. A predicate means to
me there's some reason to think we ought to be looking at these
people as opposed to simply we'd like to do it.
Ms. Caproni. I don't want to quibble over words. When we
use the word ``predication,'' we typically are talking about a
predicated investigation which has historically since the time
of the Levy guidelines had a very specific meaning. We wouldn't
be collecting information on anyone unless there is a purpose,
unless there is a predicate, small p, predicate.
Senator Feingold. Well, what is the meaning of predicate?
What is the traditional meaning of predicate then?
Ms. Caproni. Typically that you have some reason to believe
a particular person has engaged in either criminal conduct or a
national security threat.
Senator Feingold. But you're telling me that a purpose can
be sufficient without a predicate apparently.
Ms. Caproni. Again, I'm concerned about the semantics, and
I don't want to get into that because, again, if we're trying
to be intelligence-driven and the question is, do you have a
particular threat in your environment, the threat is to some
extent the predication. That is, we know that certain foreign
governments are trying to steal our secrets. The question is
where.
So where within the United States is the foreign government
actually focusing on our secrets? So we've got a predicate
because we've got a threat. The threat is that our secrets are
being stolen. Do we have a particular person----
Senator Feingold. I've got to say that doesn't satisfy my
understanding what a predicate should be in a situation like
this. Under that rationale, that purpose can become a
justification for rooting around into the personal lives of
everybody in Dearborn, Michigan who might be of that
background.
Ms. Caproni. I disagree.
Senator Feingold. Well, that's my concern. And I do want to
get into semantics because to me there's a world of difference
between those words.
Ms. Caproni. I don't think it gives you the right to root
around in everyone in Dearborn, Michigan, because, in fact, if
our intelligence brings us no better than expatriate Saudis,
then we've got nothing. There's no basis to proceed because the
fit--we talked a little bit about that with Senator
Whitehouse--the fit between what you're looking for, the
threat, and who you're looking at is too loose.
Because while some people within that community may pose a
threat, mostly they don't. So you don't have a good fit. You've
got to do more work to get your universe down closer to the
threat.
But all we're saying, Senator, is if you want us to be able
to answer the question, do you have this threat or do you have
this problem in your environment, if you limit us to starting
with someone that we know poses the threat, we are missing the
threat. We know the threat exists, but we don't know who within
the environment poses the threat. So we've got to have some way
to close that gap.
What we think is these guidelines, with appropriate policy,
permit us to close that gap but always being respectful that
you have to use the least intrusive alternative, and you can't
investigate someone or focus on someone solely because of First
Amendment activities, race or ethnicity. There has to be
something more.
And, again, from a policy level what we're going to be
training on is--and you need a good fit. It doesn't necessarily
have to be a perfect fit because it's not always going to be
perfect. We're not always going to be that good. But if it's no
better than all your ex-pat Saudis in Dearborn, you've got
nothing.
Senator Feingold. I'm trying not to take away too much
time, but this is a very important discussion about, you know,
the difference between all the ex-pat Saudis and then somebody
that you have a very specific information on. That in-between
area is terribly important, not only in terms of posing the
threat, but also in terms of the rights of people that aren't
doing anything wrong. But I appreciate the conversation.
Thank you, Mr. Chairman.
Chairman Rockefeller. Do you want to continue?
Senator Feingold. No, I'm fine.
Chairman Rockefeller. Okay. We're going to close. First I
have an exciting announcement. I ask unanimous consent that the
Chairman in consultation with the Vice Chairman be authorized
to make a part of the record statements and letters received in
connection with this hearing.
If you've gotten over that excitement, I want to tell you
both that you were absolutely superb. There's sort of a very
direct way of answering questions, which sometimes people at
higher levels don't do. So I feel very happy. And we will all
be working on this together.
The hearing is adjourned.
[Whereupon, at 3:58 p.m., the Committee adjourned.]