[Senate Report 109-85]
[From the U.S. Government Printing Office]
Calendar No. 132
109th Congress Report
SENATE
1st Session 109-85
======================================================================
TO PERMANENTLY AUTHORIZE CERTAIN PROVISIONS OF THE UNITING AND
STRENGTHENING AMERICA BY PROVIDING APPROPRIATE TOOLS REQUIRED TO
INTERCEPT AND OBSTRUCT TERRORISM (USA PATRIOT) ACT OF 2001, TO
REAUTHORIZE A PROVISION OF THE INTELLIGENCE REFORM AND TERRORISM
PREVENTION ACT OF 2004, TO CLARIFY CERTAIN DEFINITIONS IN THE FOREIGN
INTELLIGENCE SURVEILLANCE ACT OF 1978, TO PROVIDE ADDITIONAL
INVESTIGATIVE TOOLS NECESSARY TO PROTECT THE NATIONAL SECURITY
_______
June 16, 2005.--Ordered to be printed
_______
Mr. Roberts, from the Select Committee on Intelligence, submitted the
following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 1266]
The Select Committee on Intelligence (Committee), having
considered the original bill (S. 1266), to permanently
authorize certain provisions of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism (USA PATRIOT) Act of 2001, to
reauthorize a provision of the Intelligence Reform and
Terrorism Prevention Act of 2004, to clarify certain
definitions in the Foreign Intelligence Surveillance Act (FISA)
of 1978, to provide additional investigative tools necessary to
protect the national security, and for other purposes, reports
an original bill without amendment favorably thereon and
recommends that the bill do pass.
PURPOSE AND SCOPE OF COMMITTEE REVIEW
The attacks of September 11, 2001, highlighted the systemic
flaws and inaccurate interpretations of existing law under
which the nation's intelligence and law enforcement agencies
operated and which restricted common-sense sharing of
intelligence information among these agencies. In an effort to
enhance counterterrorism authorities and remove these
restrictions, the Congress passed, and the President signed
into law, the USA PATRIOT Act (Pub. L. No. 107-56) in October
2001.
The Act made modifications in several different areas of
law, each designed to limit the ability of terrorists to
conduct their operations and to secure the United States from
further terrorist attacks. For example, Title II of the Act
enhanced surveillance and information sharing authorities.
Title IX addressed restrictions on asset recruiting for
intelligence operations; required mandatory disclosure of
foreign intelligence information acquired during the course of
a criminal investigation to national security officials; and
required the Attorney General and Director of Central
Intelligence (DCI) to coordinate the training of law
enforcement and other officials to identify and use foreign
intelligence information in the course of their official
duties. Sixteen of the Act's important provisions--as well as
the recently enacted ``lone wolf'' amendment to the FISA
(Intelligence Reform and Terrorism Prevention Act of 2004,
Section 6001 (Pub. L. No. 108-458))--will expire on December
31, 2005.
Since enactment of the USA PATRIOT Act, the Committee has
exercised careful oversight of the use and administration of
the investigative tools authorized by the legislation. The
Committee has held a series of hearings and received numerous
briefings on the Intelligence Community's use of USA PATRIOT
Act authorities. The Committee also has received detailed
reports from the Department of Justice (DoJ) regarding FISA
collection and the use of other surveillance tools. Moreover,
the Committee is in the final stages of completing its second
audit of the procedures, practices, and use of the FISA. This
comprehensive, classified analysis will represent one of the
most thorough reviews of Executive branch activities under the
FISA since the USA PATRIOT Act was enacted.
The Committee notes that, in addition to its own oversight
activities, three other Congressional committees with oversight
responsibility have held at least 12 hearings this year
regarding the USA PATRIOT Act. Since January 2005, a total of
20 witnesses from the DoJ, including the Attorney General, the
Director of the Federal Bureau of Investigation (FBI), and the
Deputy Attorney General, have testified before either this
Committee, the House Permanent Select Committee on
Intelligence, or the House and Senate Judiciary Committees on
the reauthorization of the Act's expiring provisions and
related matters. In addition, during the 108th Congress (the
last period for which records were available at the time of
this writing), the DoJ answered more than 520 Questions for the
Record and responded to at least 100 letters from Members of
Congress specifically addressing the USA PATRIOT Act.
The Committee is aware that a number of the Act's
provisions have been characterized as being controversial.
However, the reports of the DoJ Inspector General, the hearings
of the Committee and its follow-up inquiries to the DoJ and the
FBI, and the Committee's general oversight activities have
revealed no instance in which a citizen's privacy rights or
civil liberties have been violated by the use of authorities
provided under the Act. Indeed, the record reflects that the
DoJ's and the FBI's use of those authorities has been judicious
and fully consistent with the law.
As a result of its extensive oversight activities, the
Committee is convinced that the tools and authorities provided
to the Intelligence Community through the USA PATRIOT Act
contribute significantly to international terrorism, espionage,
and other foreign intelligence investigations. Failure to
reauthorize those provisions that are set to expire will result
in a return to the failed, outdated, and illogical limits on
national security investigations that tied the hands of
Intelligence Community and law enforcement officials prior to
the terrorist attacks of September 11, 2001. Moreover, the
Committee recognizes that national security investigators
should have the same investigative tools provided to their
counterparts investigating ordinary crimes. These additional,
constitutional authorities are needed to effectively target
terrorists and spies, particularly in time-sensitive
investigations.
SECTION-BY-SECTION ANALYSIS AND EXPLANATION
The following is a section-by-section analysis and
explanation of the legislation, as reported herein. Following
the section-by-section analysis and explanation there are
additional and minority views offered by Committee Members
regarding this legislation and other matters.
TITLE I--REPEAL AND EXTENSION OF SUNSET ON CERTAIN AUTHORITIES
Section 101. Expansion of enhanced surveillance procedures not subject
to sunset under USA PATRIOT Act
During the course of USA PATRIOT Act hearings and the staff
audit of the FISA process, the Committee gathered information
that overwhelmingly supports the permanent authorization of the
intelligence and intelligence-related provisions in Title II of
the USA PATRIOT Act, which are due to sunset on December 31,
2005. The Committee's review of these matters also disclosed
the need for certain enhancements to existing authorities.
These modifications are addressed in Title II of this
legislation.
Section 101 permanently authorizes the intelligence and
intelligence-related sections of the USA PATRIOT Act subject to
the sunset deadline. Sixteen of the provisions in Title II of
the Act are subject to sunset. Section 101 permanently
authorizes the following nine provisions: 203(b) (authority to
share electronic, wire, and oral interception information);
203(d) (authority to share foreign intelligence information);
204 (clarification of intelligence exceptions to criminal
wiretap authorities); 206 (FISA ``roving'' authority); 207
(duration of FISA surveillance of non-U.S. persons who are
agents of a foreign power), 214 (FISA pen register and trap and
trace authority); 215 (FISA business records authority); 218
(``significant purpose''); and 225 (immunity for compliance
with FISA wiretap). Each of these provisions is discussed in
greater detail below. Because the remaining seven provisions
are not directly connected to the intelligence and
intelligence-related activities of the Government, the
Committee has taken no action, or position, with respect to the
remaining sections subject to the USA PATRIOT Act sunset
provision.
Information Access
The information access provisions of Section 203 of the USA
PATRIOT Act were lauded by the Executive branch during the
Committee's hearings on the Act, and their utility was
confirmed by the staff FISA audit. According to the witnesses,
Section 203 has reduced the statutory and cultural barriers to
information sharing that hindered national security
investigations before September 11, 2001. The DoJ and the FBI
informed the Committee that Section 203(b) has permitted
disclosures of vital information to the Intelligence Community
and national security officials on numerous occasions. They
provided two specific examples in which intercepted
communications in criminal cases contained foreign intelligence
information. First, an investigation of a scheme to defraud
donors and the Internal Revenue Service uncovered the illegal
transfer of monies to Iraq and the manner and means by which
those monies were transferred. Second, a sting operation in a
money laundering investigation uncovered foreign intelligence
information about an attempt to transport night-vision goggles,
infrared lights, and other sensitive military equipment to a
foreign terrorist organization.
The DoJ also provided a number of examples where
intelligence information from a criminal investigation was
appropriately shared with the Intelligence Community under
203(d). Some of these examples included ordinary domestic
criminal investigations that discovered foreign intelligence
information about violent terrorist training camps, plots to
bomb soft targets abroad, an assassination plot, use of false
travel documents, and logistical support networks for terrorist
groups.
The Director of the Central Intelligence Agency also spoke
approvingly of the information sharing procedures promulgated
under Section 203. He cited the National Counterterrorism
Center (NCTC) as one of the most positive illustrations of the
current collaborative environment created by Section 203. He
noted that NCTC receives foreign intelligence information
obtained by the FBI during its criminal investigations. Such
information is compiled with other foreign intelligence
information and is used to produce all-source terrorism
analysis that is disseminated throughout the Intelligence
Community and to national security officials throughout the
Government.
In a closed session, Intelligence Community officials
provided specific examples of how the USA PATRIOT Act
information sharing provisions were having a positive impact in
ongoing classified investigations and operations.
All of the Executive branch witnesses stated that allowing
Section 203(b) and (d) to expire would adversely impact
currently robust information sharing relationships, discourage
information access, and make it more difficult to detect and
disrupt terrorist plots.
Finally, the staff FISA audit confirmed that the
information sharing provisions in Section 203 have been
successful, by all accounts. FBI agents in several field
offices provided the audit staff with specific examples of
cases in which they were able to use the USA PATRIOT Act
information access provisions to neutralize targets in non-
traditional ways.
Intelligence Exception to Criminal Electronic Surveillance
Authorities
Section 204 provides an important exception for certain
foreign intelligence activities from the requirements governing
specified criminal electronic surveillance activities. The
Committee received no criticism regarding this provision, and
it is imperative that the provision be made permanent.
FISA Multipoint or Roving Authority
A ``multipoint'' or ``roving'' wiretap order attaches to a
particular surveillance target rather than to a particular
phone or other communications facility. Prior to the enactment
of Section 206 of the USA PATRIOT Act, such wiretaps, which
have long been available in the criminal investigative context,
were not available under the FISA.
Some commentators, though not opposed to the permanent
authorization of the FISA roving authority granted in Section
206, have asked Congress to conform the FISA roving wiretap
provision to the corresponding authority for roving wiretaps in
the criminal code. Those commentators have suggested the
addition of an ``ascertainment'' requirement that ensures law
enforcement agents listen only to the conversations to which
the target is a party. Others have proposed a requirement that
the Government add additional specificity in its application
for a FISA wiretap to more completely describe either the
identity of the person whose phone or computer would be
surveilled or the facility that would be tapped. In testimony
before the Committee, some witnesses noted that their
recommended changes are addressed in S. 737, the Security and
Freedom Enhancement (SAFE) Act.
The SAFE Act contains a broad ascertainment requirement
that would apply to any electronic surveillance where the
facility or place at which the surveillance will be directed is
not known at the time the order is issued. In such
circumstances, the person conducting the surveillance could
only initiate coverage when the presence of the target at a
particular facility or place is ascertained. This would apply
to all means of electronic surveillance. See Section 2, S. 737.
By comparison, the criminal roving authority only requires
ascertainment in the context of the interception of oral
communications (e.g., by a microphone). See 18 U.S.C. 2518(12).
The ascertainment requirements of the SAFE Act are not
necessary in the FISA context because the Foreign Intelligence
Surveillance Court (FISC) can fashion specialized minimization
procedures depending upon the means by which the electronic
surveillance is conducted. See 50 U.S.C. 1804(a)(11),
1805(c)(1)(F). When appropriate, the FISC has the authority to
approve an ascertainment requirement designed specifically to
collect primarily the target's communications and to limit the
amount of incidental collection. Thus, there is no need to
build the criminal ascertainment requirement for oral
communications into the FISA, much less the extremely broad
ascertainment requirement contained in the SAFE Act.
The SAFE Act also would require the FISC to specify either
the identity of the target, or a description of the target and
the nature and location of the facilities and places at which
the electronic surveillance will be directed. In the context of
roving electronic surveillance under the FISA, the Government
already must provide the identity of the target, if known, the
nature and location of each of the facilities or places at
which the electronic surveillance will be directed, if known,
and sufficient information so that the FISC may find that the
actions of the target of the application may have the effect of
thwarting the electronic surveillance. See 50 U.S.C.
105(c)(1)(A)-(B), (C)(2)(B). In addition, the Government must
establish probable cause that the target of the surveillance is
a foreign power or an agent of a foreign power. See 50 U.S.C.
1805(a)(3). These four requirements together require a
sufficiently adequate description of the target to ensure that
the FISA roving authority is not used to broadly collect and
retain the communications of innocent third parties.
In addition to these unclassified protections, the
Committee has received classified information from the DoJ
describing additional reasons an ascertainment requirement is
not necessary in the context of FISA roving surveillance. The
Committee will continue to closely examine the safeguards now
in place, whether in law or practice, designed to prevent
misuse of the FISA roving surveillance authority.
Duration of FISA Surveillance
Section 207 of the USA PATRIOT Act increased the maximum
duration of FISA electronic surveillance and physical search
orders under certain circumstances. Under Section 207 of the
Act, initial surveillance and physical search orders directed
against non-U.S. person members of international terrorist
groups or officers or employees of foreign powers can be
authorized up to 120 days (instead of 90 days) and renewed for
up to one year (instead of 90 days). Section 207 also extended
the duration of physical search orders directed against U.S.
persons to 90 days (instead of 45 days) to match the standard
duration period of an electronic surveillance order directed
against a U.S. person.
Some critics of Section 207 have noted that the time
periods for FISA orders are already much longer than for
criminal surveillance orders. These critics have expressed
concern that permitting surveillance to continue for a year
with no judicial review opens the door for potential abuse.
They have suggested that Congress should provide sufficient
funds to the DoJ and the FISC to provide the necessary
personnel and equipment to process FISA applications with
shorter periods of duration.
Both the Executive branch witnesses and the staff FISA
audit confirmed that Section 207 has been instrumental in
allowing the FBI and the DoJ Office of Intelligence Policy and
Review (OIPR) to conserve their limited resources to process
FISA applications. By making the time periods for physical
search and electronic surveillance equivalent, Section 207 has
allowed the DoJ to file streamlined, combined electronic
surveillance and physical search applications that, in the
past, were tried but abandoned as too cumbersome to be
effective. The DoJ further noted that if Section 207 were
allowed to sunset, DoJ personnel would be forced to spend more
time on routine extensions of current FISA orders and less time
on applications relating to new targets. Also, DoJ personnel
would have less time to oversee investigations involving the
authorized surveillance of U.S. persons.
The staff FISA audit found that Section 207 has enabled the
FBI and the OIPR to process more effectively certain non-U.S.
person FISA applications. The audit revealed that the FISA
process is still showing the strain from efforts to adjust to
the post-9/11 operational environment, as evidenced by a
significant number of initiation requests that were backlogged
in the system.Therefore, the Committee has recommended
permanent authorization of Section 207 of the USA PATRIOT Act, in
addition to modification of other FISA time limits in Section 216 of
this legislation.
FISA Pen Register and Trap and Trace Devices
Section 214 of the USA PATRIOT Act made the standard
contained in the FISA for obtaining an order for a pen register
or trap and trace device consistent with the standard for
obtaining an order for a criminal pen register or trap and
trace device (i.e., relevance to an ongoing investigation).
Compare 50 U.S.C. 1842 with 18 U.S.C. 3123. Section 214
accomplished this by eliminating the FISA application
requirement that the telephone line subject to the pen register
or trap and trace device has been, or is about to be, used in
communication with a foreign power or an agent of foreign
power. Section 214 also incorporated an additional safeguard
that such an investigation could not be conducted solely upon
the basis of activities protected by the First Amendment to the
Constitution.
Some critics of Section 214 have asserted that the FISA pen
register statute allows the FISC to act as little more than a
``rubber stamp.'' Those critics have testified that the statute
is silent on the need for a factual predicate in the underlying
application. The SAFE Act would amend the FISA pen register
statute to require a statement by the applicant of ``specific
and articulable facts'' showing there is reason to believe that
the information likely to be obtained is relevant to an ongoing
national security investigation.
The ``rubber stamp'' criticism undervalues the FISC's
authority to modify Government requests for FISA pen registers
(see 50 U.S.C. 1842(d)(1)) and does not adequately account for
current Government pleading practice before the FISC. The FISA
pen register provision requires a certification that the
information likely to be obtained is relevant to an ongoing
national security investigation. See 50 U.S.C 1842(c)(2). Thus,
the Government application must satisfy the FISC that the
requested records are relevant to a lawful investigation.
Otherwise, the FISC may deny the application or direct
modification of the requested order. Therefore, the Government
application must contain a sufficient explanation supporting
the assertion that information sought is relevant to an
ongoing, lawful investigation. Moreover, before an authorized
national security investigation can be initiated, the FBI must
meet the factual predicate required by the FISA, Executive
Order 12333, and Attorney General implementing guidelines. The
FBI is not authorized to investigate or maintain information on
United States persons solely for the purpose of monitoring
activities protected by the First Amendment or the lawful
exercise of other rights secured by the Constitution. These
statutory and regulatory safeguards prevent the FBI from
engaging in random ``fishing expeditions'' to collect
information on innocent U.S. persons. Thus, the additional
requirements proposed in the SAFE Act are unnecessary.
In addition to the protections afforded by current law and
practice, Section 217 of the legislation would require that a
FISA application for a pen register or trap and trace order (or
a FISA business records order) include ``an explanation . . .
that supports the assertion'' that the information sought is
relevant to a lawful investigation. This modification is
designed to codify current Government pleading practice.
The FISA audit staff was informed that when a federal court
issues an order for a criminal pen register or trap and trace
device, the court has the authority under 18 U.S.C. 2703(d) to
routinely require the service provider to supply subscriber
information in its possession for the numbers or e-mail
addresses captured by the devices. The FISA pen register/trap
and trace provision has no comparable authority. Section 215 of
this bill addresses this discrepancy.
FISA Business Record Orders
Section 215 of the USA PATRIOT Act made two important
changes to the FISA ``business records'' authority. First, it
broadened the scope of records that could be sought to ``any
tangible things,'' rather than the limited classes of records
allowed by the then-existing version of the statute. Second, it
allowed the FBI to make an application ``for an investigation''
to protect against international terrorism or clandestine
intelligence activities. The DoJ has interpreted the ``for an
investigation'' standard to be the practical equivalent of a
``relevance'' standard.
No witness before the Committee testified against permanent
authorization of Section 215. Rather, some witnesses supported
proposed SAFE Act amendments to the FISA business record
provision. The SAFE Act would make a number of modifications to
the FISA business records provision. First, it would raise the
FISA business records standard from ``for an investigation'' to
``specific and articulable facts giving reason to believe that
the person to whom the records pertain is a foreign power or an
agent of a foreign power.'' Second, it would modify the
permanent nondisclosure period currently embodied in the FISA
in favor of a nondisclosure period of 180 days that could be
extended in 180-day increments only by an order of the FISC.
Third, it would allow the recipient of a FISA order to consult
with an attorney and those persons necessary to comply with the
order. Fourth, it would permit the recipient to seek judicial
review to modify or set aside the order. Fifth, it would place
limitations on the dissemination and use of information
obtained with a FISA order. Sixth, it would require that notice
be provided to an ``aggrieved person'' when using the
information in a trial or proceeding. Finally, it would provide
procedures for making motions to suppress information obtained
with a FISA order.
The Attorney General has supported clarifying the FISA to
make the ``relevance'' standard explicit, to specifically
permit consultation with an attorney under the FISA
nondisclosure provision, and to allow a recipient to challenge
a business records order before the FISC. The Attorney General,
however, did not support the imposition of other limitations on
FISA nondisclosure requirements. The Attorney General also
testified that raising the FISA business record standard from
``relevance'' to ``specific and articulable facts'' would
``make the use of [Section] 215 sort of a dead letter.'' The
SAFE Act provisions which place limitations on dissemination
and use of information obtained with a FISA business records
order are verysimilar to the limitations in place for
information acquired during the course of an electronic surveillance or
physical search. Also, the notice requirements and suppression
procedures in the SAFE Act appear to be modeled on the procedures in
place for electronic surveillance and physical search. These
limitations, notice requirements, or suppression procedures, do not
seem appropriate, given that requests for third party records are not
nearly as invasive as the information obtained during a FISA electronic
surveillance or physical search.
The Committee does believe, however, that certain
modifications to the FISA business record authority are
warranted. These modifications (such as an explicit
``relevance'' standard, tailored nondisclosure exemptions,
judicial review procedures, and specific reporting requirements
for certain types of records) are contained in Section 211 of
this bill. In addition, Section 217 of the legislation codifies
current Government pleading practice by requiring that a FISA
business records application provide ``an explanation . . .
that supports the assertion'' that the information sought is
relevant to a lawful investigation.
FISA ``Significant Purpose''
Section 218 of the USA PATRIOT Act is often credited as the
provision that helped tear down the information sharing
``walls'' that had developed over the years prior to September
11, 2001, and separated intelligence agents from criminal
agents and prosecutors. The original statutory text of the FISA
required an official to certify that ``the purpose'' of the
surveillance (or search) was to obtain foreign intelligence
information. Section 218 amended that text to require a
certification that ``a significant purpose'' of the
surveillance (or search) is to obtain foreign intelligence
information. This seemingly minor textual change set off a
series of events that eventually led to the first, and only,
decision by the Foreign Intelligence Surveillance Court of
Review (Court of Review). See In re: Sealed Case, 310 F.3d 717
(U.S. FISCR 2002).
The reasoning of In re: Sealed Case provides a number of
important insights into the FISA statute and process. First,
the FISA, as passed by Congress in 1978, clearly did not
preclude or limit the Government's use, or proposed use, of
foreign intelligence information, which included evidence of
certain kinds of criminal activity, in a criminal prosecution.
See 310 F.3d at 727. The Court of Review reached this
conclusion after conducting an in-depth review of the statute,
legislative history, and relevant case law. See id. at 722-27.
The Court of Review was puzzled that the DoJ, at some point
during the 1980's, began to read the FISA as limiting its
ability to obtain FISA orders if it intended to prosecute the
targeted agents-even for foreign intelligence crimes. See id.
at 723.
Second, although the original FISA did not contemplate a
``false dichotomy'' between intelligence and criminal
investigations, the Court of Review opined that the USA PATRIOT
Act's ``significant purpose'' and ``consultation'' amendments
actually did--which had the ironic effect of making the ``false
dichotomy'' true. See 310 F.3d at 735. In other words, Section
218 tore down an imaginary ``wall'' that never actually
existed, and, in its place, created an actual distinction
between foreign intelligence and law enforcement that had never
existed in the FISA. This created an ``analytic conundrum'' for
the Court of Review: had Congress accepted the dichotomy
between intelligence and law enforcement by adopting the
``significant purpose'' test without also amending the
definition of the term ``foreign intelligence information,''
which clearly includes evidence of foreign intelligence crimes?
See id.
To resolve this ``analytic conundrum,'' the Court of Review
read the FISA statute to preclude the use of the FISA as a
collection tool if the sole objective of such collection was
criminal prosecution. In other words, so long as the Government
entertains a realistic option of dealing with the target other
than through criminal prosecution, it satisfies the
``significant purpose'' test. See 310 F.3d at 735. In its
consideration of this issue, the Court of Review stated that
the FISA process should not be used as a device to investigate
ordinary crimes wholly unrelated to foreign intelligence crimes
such as international terrorism, espionage, sabotage, and other
hostile acts that threaten national security. However, the
Court of Review recognized that sometimes even ordinary crimes
might be inextricably intertwined with foreign intelligence
crimes, such as when a terrorist engages in bank robberies to
finance the manufacture of a bomb. See id. at 736.
To resolve whether a required non-prosecutorial purpose
exists, the Court of Review clarified that the Government's
purpose as set forth in a FISA application certification is to
be judged by the national security official's articulation and
not by a FISC inquiry into the origins of the investigation or
an examination of the ``types'' of personnel involved. If the
FISC has reason to doubt that the Government has any real non-
prosecutorial purpose in seeking foreign intelligence
information with a FISA surveillance or search, it can demand
further inquiry into the certifying officer's purpose, or
perhaps even the Attorney General's or Deputy Attorney
General's reasons for approving the application. See 310 F.3d
at 736.
This reasoning led the Court of Review to find that the
FISC erred when it took portions of the Attorney General's
augmented 1995 procedures--modified to incorporate the
``significant purpose'' standard in Section 218 of the USA
PATRIOT Act--and imposed them generically as minimization
procedures. See 310 F.3d at 730. The FISC's decision and order
not only misinterpreted and misapplied minimization procedures
it was entitled to impose, but may well have exceeded the
constitutional bounds that restrict an Article III court when
the FISC attempted to place limits and restrictions on the
internal organization and investigative procedures of the DoJ.
See id. at 731. The Court of Review also found that the FISC's
refusal to consider the legal significance of the USA PATRIOT
Act's crucial amendments was erroneous. See id. at 732. The
practical impact of the Court of Review's decision was to
remove the ``walls'' that had developed over the years that
separated intelligence agents from criminal agents and
prosecutors. Unfortunately, the Court of Review opinion could
also be read to put in place a different kind of ``wall''--one
that actually exists.
As it relates to the historic discussion of the FISA
statute and the approval of the Attorney General's augmented
FISA procedures, the Committee explicitly endorses the Court of
Review's decision. The Committee, however, is very concerned
with one aspect of the opinion, and inSection 202 of this bill
takes action to explicitly correct the potential negative ramifications
of certain dicta in the Court of Review opinion. After finding that the
USA PATRIOT Act's ``significant purpose'' and ``consultation''
amendments had the ironic effect of creating a ``false dichotomy''
where none previously existed, the Court of Review stated:
Of course if the [FISC] concluded that the government's
sole objective was merely to gain evidence of past
criminal conduct--even foreign intelligence crimes--to
punish the agent rather than halt ongoing espionage or
terrorist activity, the application should be denied.
310 F.3d at 735. This reasoning has been cited in subsequent
decisions. See American Civil Liberties Union v. U.S. Dep't of
Justice, 265 F.Supp. 2d 20, 32 n.12 (D.D.C. 2003), United
States v. Sattar, 2003 WL 22137012, 12 (S.D.N.Y. 2003)
(unpublished opinion). If permanent authorization of the
``significant purpose'' amendment in Section 218 of the USA
PATRIOT Act would create a ``false dichotomy'' between foreign
intelligence and law enforcement, the Committee cannot accept
that outcome. Rather, the permanent authorization of Section
218 is intended to ensure that the ``walls'' are never rebuilt,
and that the FISA may be used to gain evidence to prosecute
targets for their past or future criminal conduct involving a
``foreign intelligence crime,'' as that term was defined by the
Court of Review in In re: Sealed Case. See 310 F.3d at 723.
Simply put, evidence of a crime related to sabotage,
international terrorism, clandestine intelligence activities,
or other foreign intelligence crimes (including evidence of an
ordinary crime ``inextricably intertwined'' with a foreign
intelligence crime), is a wholly-included subset of the term
``foreign intelligence information.''
It is perfectly permissible under the FISA to conduct
electronic surveillance or a physical search when the intent of
the collection is the protection of national security by
criminal prosecution of any foreign intelligence crime the
target may have committed or intends to commit. Thus, if the
Government intends to prosecute a suspected spy from the moment
it begins its espionage investigation of the target, the
Government may appropriately seek a FISA order. If a terrorist
is engaging in cigarette smuggling to raise funds for a
terrorist group, and the Government intends to prosecute the
target for cigarette smuggling, the Government may
appropriately seek a FISA order because such criminal activity
is inextricably intertwined with a foreign intelligence crime.
It would not be a permissible use of FISA surveillance or
search authority, however, if the Government's sole purpose was
the criminal prosecution of the target for an ordinary or non-
foreign intelligence crime. Under such circumstances, the
Government would have to seek a criminal search warrant or
electronic surveillance order. Regardless, if the certifying
official could certify that a significant purpose of the
surveillance or physical search is to obtain foreign
intelligence information about the target's international
terrorism or clandestine intelligence activities, then any
incidental collection of non-foreign intelligence criminal
activity would be proper.
To further ensure that the ``false dichotomy'' is
eliminated and the statutory question of purpose is resolved in
favor of keeping any ``walls'' that may have existed from being
rebuilt, Section 202 of this bill amends the FISA definition of
``foreign intelligence information'' to authorize the use of
law enforcement methods, including prosecution, when so doing
would protect against specified national security threats.
Civil Immunity
Section 225 of the USA PATRIOT Act may be one of the least
controversial of the provisions subject to sunset. The
provision provides immunity from civil liability to any
provider of a wire or electronic communication service,
landlord, custodian, or other person (including any officer,
employee, agent, or other specified person thereof) that
furnishes any information, facilities, or technical assistance
in accordance with a FISA court order or request for emergency
assistance under the FISA. The DoJ noted that this provision
was modeled on the immunity provision which protects those
persons or entities who assist the Government in carrying out
criminal investigative wiretaps. See 18 U.S.C. 2511(2)(a)(ii).
Section 225 is important because it helps secure the prompt
cooperation of private parties with the Intelligence Community
to ensure the effective implementation of FISA orders. The
Committee received no criticism of Section 225 during its
review of the FISA process and the USA PATRIOT Act provisions
subject to sunset.
Section 102. Extension of sunset of treatment of individual terrorists
as agents of foreign powers
Section 6001 of the Intelligence Reform and Terrorism
Prevention Act of 2004 amended the FISA by expanding the
definition of an ``agent of a foreign power'' to include any
person, other than a United States person, who ``engages in
international terrorism or activities in preparation
therefor.'' This authority is sometimes referred to as the FISA
``lone wolf '' provision. Section 6001 is scheduled to sunset
on December 31, 2005. The Attorney General and the Director of
the FBI have both requested that this provision be made
permanent. Section 102 of this bill extends the sunset on
Section 6001 until December 31, 2009.
Since the FISA's enactment in 1978, the targets of
intelligence collection and their means of communication have
changed dramatically. Intelligence Community collection efforts
are increasingly challenged by enhancements in communications
technology and by the changing nature of intelligence targets.
The FISA ``lone wolf'' provision permits the Government to
apply for a FISA warrant to monitor a foreign person--i.e., not
a citizen or lawful permanent resident of the United States--
who is engaged in or preparing to commit acts of international
terrorism, even if it is not known whether the foreign person
is connected to an international terrorist group engaged in or
preparing to commit similar acts. If the FISC grants a FISA
order, the Government will be able to monitor the activities of
the foreign person via electronic surveillance or physical
searches, as authorized by the FISA. The provision takes better
account of current operational realities without damaging
important privacy interests of U.S. persons.
The Attorney General is required to report semiannually on
the use of the FISA ``lone wolf '' provision. Since the
Committee expects that this provision will be used
infrequently, this reporting requirement will allow Congress to
closely monitor the implementation of this provision. As the
Committee has not yet received the initial report on this
matter, it is appropriate to extend the sunset so that regular
reporting can inform whether Congress should permanently
authorize the provision.
TITLE II--FOREIGN INTELLIGENCE SURVEILLANCE MATTERS
Subtitle A--Definitional Matters
Section 201. Clarification of contents of communications for purposes
of Foreign Intelligence Surveillance Act of 1978
Section 201 amends the definition of the term ``contents''
in the FISA to make it consistent with Supreme Court precedent
and the definition of the same term in ``Title III'' (governing
electronic surveillance in criminal investigations). Section
201 is based upon a finding and recommendation of the staff
FISA audit concerning the fact that the FISA uses two different
definitions for the term ``contents.'' In the context of a FISA
pen register or trap and trace device, the statute incorporates
the definitions of the terms ``pen register'' and ``trap and
trace device'' used in 18 U.S.C. 3127. In Section 3127, both
the terms ``pen register'' and ``trap and trace device''
contain the term ``contents'' within their definitions. Section
3127(1) incorporates the definition of ``contents'' from 18
U.S.C. 2510. Section 2510(8) defines ``contents'' as follows:
``when used with respect to any wire, oral, or electronic
communication, includes any information concerning the
substance, purport, or meaning of that communication.'' Thus,
the term ``contents'' in the context of FISA pen register and
trap and trace orders is identical to that used for criminal
pen registers and trap and trace devices, as that ``criminal''
definition is incorporated by reference.
In the context of FISA electronic surveillance, however,
the term ``contents'' differs from the Title III definition at
18 U.S.C. 2510(8). The FISA defines ``contents'' with respect
to electronic surveillance as follows: ``when used with respect
to a communication, includes any information concerning the
identity of the parties to such communications or the
existence, substance, purport, or meaning of that
communication.'' 50 U.S.C. 1801(n) (emphasis added). This
language makes the FISA definition of contents considerably
broader because it includes any information that would identify
the parties to a communication or the mere existence of such
communication. The Supreme Court has held that the installation
and use of a pen register is not a search within the meaning of
the Fourth Amendment, and hence no warrant is required. See
Smith v. Maryland, 442 U.S. 735, 739-46 (1979). Thus, the FISA
definition of contents is more restrictive than Smith v.
Maryland because it includes the mere existence of, or identity
of the parties to, a communication, even though the acquisition
of that information would not be subject to the warrant
requirement of the Fourth Amendment.
The FISA legislative history explains that the reason for
the broad phrasing of the ``contents'' definition was to ensure
that the scope of the FISA was sufficient to protect legitimate
privacy interests and so that pen register and trap and trace
devices would be included within the definition of ``electronic
surveillance.'' See H.R. Rep. No. 95-1283, at 67-68 (1978). In
1998, when Congress added a separate subtitle within the FISA
to authorize the use of pen registers and trap and trace
devices consistent with Smith v. Maryland, it chose to
incorporate the Title III definition of ``contents'' into that
subtitle rather than modify the existing FISA definition. The
legislative history is silent on why Congress took this
approach. See H.R. Rep. No. 105-780, at 32 (1998). Section 201
corrects this longstanding inconsistency by conforming the FISA
definition of ``contents'' to that used in Title III.
Section 202. Clarification of foreign intelligence information for
purposes of Foreign Intelligence Surveillance Act of 1978
Section 202 amends the FISA definition of ``foreign
intelligence information'' to clarify that the term includes
information that relates to the ability of the United States to
protect against certain threats to the national security,
including protection through the use of law enforcement methods
such as criminal prosecution. The intent of this amendment is
to ensure that the information sharing ``walls'' cannot be
rebuilt and to clarify that Congress does not accept or intend
to create the ``false dichotomy'' discussed in dicta by the
Court of Review in In re: Sealed Case, 310 F.3d at 735.
The misinterpretation and misapplication of the ``primary
purpose'' test by the DoJ and the FISC in the decades preceding
the Court of Review's decision had a very real and negative
impact on the Intelligence Community's investigations,
analyses, and operations. The Committee received testimony in
all of its hearings that the bifurcation of national security
investigations into their criminal and intelligence components
prevented cooperation between intelligence and law enforcement
officials engaged in investigations--even investigations of the
same target and even though both groups were working to protect
national security. The Committee also received testimony that
the USA PATRIOT Act's removal of these information sharing
``walls'' subsequent to the Court of Review opinion has allowed
the Intelligence Community to better coordinate its
investigations, analyses, and operations.
The combined effect of Section 202's clarification of the
definition of ``foreign intelligence information'' with the
``significant purpose'' and ``consultation'' amendments of the
USA PATRIOT Act should leave no doubt that national security
investigations are hybrid investigations with fully integrated
intelligence and law enforcement components. See 50 U.S.C.
1804(a)(7)(B), 1806(k), and 1825(k). The FISA was designed, in
part, to allow the Government to protect against the ``foreign
intelligence crimes'' discussed by the Court of Review. See In
re: Sealed Case, 310 F.3d at 723. The goal of Section 202 of
this bill and Sections 218 and 504 of the USA PATRIOT Act is to
ensure that the President is able to use all lawful means,
including criminal prosecution, to prevent and neutralize
threats to the national security. Simply put, Section 202 makes
clear that collection of evidence via the FISA to protect
national securitythrough the prosecution of a crime related to
sabotage, international terrorism, clandestine intelligence activities,
or other foreign intelligence crimes (including evidence of an ordinary
crime ``inextricably intertwined'' with a foreign intelligence crime),
is an appropriate use of the FISA electronic surveillance and physical
search authorities.
Subtitle B--Other Matters
Section 211. Access to business records for investigations under
Foreign Intelligence Surveillance Act of 1978
Section 215 of the USA PATRIOT Act (the FISA ``business
records'' amendment) has been one of the most maligned
provisions of that Act. This Committee received testimony
during each of its three open hearings on the USA PATRIOT Act
regarding the exercise/use of Section 215. All of the witnesses
agreed that Section 215 should be reauthorized, but they
differed as to the modifications that should be made to
``improve'' the provision. Section 211 of this bill
incorporates six modifications to the FISA business records
provision that the Committee has found reasonable to address
concerns that have been raised. Section 217 of the legislation
makes an additional modification to codify existing Government
pleading practice before the FISC.
First, the Committee has clarified that ``relevance'' to an
authorized investigation is the correct standard for issuing a
FISA business records order, as opposed to the current,
equivalent standard of ``for an investigation.''
Second, FISA Section 501(a) (50 U.S.C. 1861(a)) contains
the following redundant provision: ``provided that such
investigation of a United States person is not conducted solely
upon the basis of activities protected by the first amendment
to the Constitution.'' Nearly identical text follows in the
very next subsection that defines ``an investigation'' to mean
that it cannot ``be conducted of a United States person solely
upon the basis of activities protected by the first amendment
to the Constitution of the United States.'' Compare 50 U.S.C.
1861(a)(1) with 50 U.S.C. 1861(a)(2)(B). Section 211 corrects
this redundancy by deleting the first provision. The
elimination of this redundancy does not affect the existing
(and continuing) prohibition against the initiation or conduct
of an investigation (or the application for a FISA business
records order) solely based on activities of a U.S. person that
are protected by the First Amendment. See 50 U.S.C.
1861(a)(2)(B).
Third, Section 211 provides additional categories of
individuals to whom the existence of a given FISA business
record order may be disclosed. The current statutory limitation
prohibits the recipient of a FISA business records order from
disclosing to any other person that the FBI has sought or
obtained such an order. The statute provides one exception to
this prohibition--disclosure may be made only to those persons
necessary to comply with the order. Section 211 provides two
additional exceptions to this general rule. Under Section 211,
the recipient may disclose the existence of the order to: (1)
those persons to whom such disclosure is necessary to comply
with the order; (2) an attorney for purposes of seeking legal
advice (including legal assistance necessary to initiate and
litigate judicial review of the order); or (3) other persons
designated by the Director of the FBI or the designee of the
Director. Should it become necessary for the recipient to
disclose the matter beyond the one attorney permitted, the
recipient, or the initial attorney, may seek approval from the
Director of the FBI or the Director's designee to expand
disclosure to other attorneys, paralegals, or staff necessary
to respond to the order.
Fourth, Section 211 requires the Attorney General to adopt
minimization procedures governing the retention and
dissemination of information acquired by the FBI through the
FISA business records order process. These procedures will
provide an additional safeguard to ensure that FISA business
record orders, and the information obtained therefrom, are used
appropriately.
Fifth, Section 211 provides an explicit process for
challenging a FISA business records order before the FISC.
Following receipt of a FISA business records order, but before
the return date specified, the person charged with production
under the order may seek to modify or set aside the order.
During this period, the recipient may also seek to modify or
set aside the nondisclosure requirements normally applicable to
such an order. Although proceedings before the FISC will be
closed to the public (subject to the right of an open hearing
in a criminal proceeding), the Government must request that the
FISC review classified or other sensitive information ex parte
and in camera--such review is not automatic. In addition,
applying a standard similar to that found in Section 106(f) of
the FISA (governing the disclosure of information to an
aggrieved person), the FISC may disclose information reviewed
ex parte and in camera to the person challenging the FISA
business record order, under appropriate security procedures
and protective orders, only when such disclosure is necessary
for the FISC to make an accurate determination to modify or set
aside the order. Under Section 211, the FISC may modify or set
aside a FISA business record order if compliance would be
unreasonable or oppressive, the same standard applicable to a
grand jury subpoena under Federal Rule of Criminal Procedure
17(c)(2). Section 211 also requires the FISC to adopt and
publish procedures governing such challenges.
Sixth, Section 211 amends the FISA business record
authority by adding new reporting requirements. In addition to
the total number of FISA business record orders and the total
number of such orders either granted, modified, or denied,
Section 211 also requires that the semiannual report include
specific details about business record orders that involve the
production of any tangible things related to: libraries or
bookstores; the purchase of a firearm; health information; or
certain tax information. The Committee believes that this
oversight mechanism is preferable to other legislative
approaches that would create ``safe havens'' or ``carve outs''
for certain classes of records, particularly when the
Constitution does not require disparate treatment for those
classes of records.
Section 212. National security mail covers
The process by which national security investigators have
obtained mail cover information has been governed by U.S.
postal regulations for nearly 30 years. See 39 C.F.R. 233.3.
The authority to use of mail covers for law enforcement
purposes first appeared in the 1879 postal regulations. Section
212 statutorily authorizes the continued use of mail covers in
national security investigations. A ``mail cover'' is the
process by which the U.S. Postal Service furnishes to the FBI
the information appearing on the face of an envelope addressed
to a particular address: i.e., addressee, postmark, name and
address of sender (if it appears), and class of mail. The
actual mail is delivered to the addressee and only the letter-
carrier's notation reaches the FBI. A mail cover does not
include the contents of any ``sealed mail,'' as defined in
existing U.S. postal regulations (see 39 C.F.R. 233.3(c)(3))
and incorporated in Section 212. Although the Supreme Court has
not directly addressed the constitutionality of mail covers
(the Court has denied certiorari in cases involving the issue),
lower courts have uniformly upheld mail covers as consistent
with the requirements of the Fourth Amendment. See Vreeken v.
Davis, 718 F.2d 343 (10th Cir. 1983); United States v. DePoli,
628 F.2d 779 (2d Cir. 1980); United States v. Huie, 593 F.2d 14
(5th Cir. 1979); United States v. Choate, 576 F.2d 165 (9th
Cir.), cert. denied, 439 U.S. 953 (1978).
In a letter dated November 19, 2004, the Attorney General
formally requested that the Postmaster General make certain
modifications to those portions of the U.S. postal regulation
governing national security mail covers. Those modifications
were not made. The Committee addresses the concerns raised by
the Attorney General in the November 19 letter with Section
212.
First, the standard for obtaining a national security mail
cover is too vague. For a national security mail cover, the
requesting authority must specify the reasonable grounds to
demonstrate the mail cover is ``necessary to protect the
national security.'' See 39 C.F.R. 233.3(e)(2)(i). This
standard injects subjectivity where none is needed. Section 212
resolves this problem by making the standard for obtaining a
national security mail cover one of ``relevance'' to an
authorized investigation to obtain foreign intelligence
information not concerning a United States person or to protect
against international terrorism or clandestine intelligence
activities. This is the same relevance standard already in use
for FISA pen register/trap and trace orders, FISA business
record orders, ``national security letters,'' and (under
Section 213 of this legislation) FISA administrative subpoenas.
Second, the current approval level necessary to request a
national security mail cover is too high. Under current
regulation, requests for national security mail covers must be
approved personally by the head of the law enforcement agency
requesting the coverage or one designee at the agency's
headquarters level. See 39 C.F.R. 233.3(g)(8). Conversely,
requests for criminal mail covers need only be in writing and
from any law enforcement agency. See 39 C.F.R. 233.3(e)(2).
Section 212 resolves this problem by permitting mail cover
requests to be made by the Director of the FBI, or a designee
of the Director in a position not lower than Deputy Assistant
Director at Bureau headquarters or Special Agent in Charge
(including an ``acting'' Special Agent in Charge) in a Bureau
field office. This delegation authority is consistent with the
approval levels permitted in the context of ``national security
letters.'' See, e.g., 18 U.S.C. 2709(b).
Committee oversight has also revealed some longstanding
issues with the manner in which national security mail covers
are processed. Current regulations leave the decision on
whether a mail cover should be issued or renewed to the
discretion of the U.S. Postal Service. Over the years and on a
number of occasions, the U.S. Postal Inspection Service has
unilaterally decided to discontinue the use of the mail cover
technique in certain FBI national security investigations. On
some occasions, the FBI was asked to provide additional
information justifying the continuance of the mail cover
technique in these investigations. Section 212 resolves this
issue by making U.S. Postal Service compliance with a properly
formatted national security mail cover request compulsory. The
Committee does not believe that it is appropriate for the U.S.
Postal Service to substitute its judgment for that of the FBI
in the context of national security investigations.
In addition to these investigative concerns, the Committee
has included in Section 212 safeguards for privacy and civil
liberties that do not exist in current regulations. These
safeguards include regulating information collection, requiring
minimization procedures, protecting against unauthorized
disclosure of the requests, and ensuring Congressional
oversight of the investigative technique. A new Section 702(e)
of the FISA directs the Attorney General to adopt minimization
procedures governing the retention and dissemination of any
records received by the FBI in response to a mail cover
request. A new Section 702(f) of the FISA permits the U.S.
Postal Service to make reasonable disclosures of FBI national
security mail cover requests to U.S. Postal Service personnel
when necessary to ensure compliance with the FBI requests.
Finally, a new Section 703 of the FISA requires the Attorney
General to provide semiannual reports that keep Congress fully
and currently informed of the quantity and uses of national
security mail covers.
Section 212, in a technical modification, also removes from
the FISA an ``effective date'' title (currently Title VII of
the FISA). All matters addressed by the ``effective date''
provision have come to fruition, and this amendment will have
no substantive effect on any current FISA operations or
proceedings.
Section 213. Administrative subpoenas in national security
investigations
Section 213 authorizes the FBI to issue administrative
subpoenas to provide timely access to records that are relevant
to authorized investigations to protect against international
terrorism and espionage or to obtain foreign intelligence
information not concerning United States persons.
Administrative Subpoenas: In General
To gain access to records that are relevant to law
enforcement investigations of criminal activity, the DoJ and
the FBI have long utilized grand jury subpoenas (Fed. R. Crim.
P. 17) and more recently, with respect to particular crimes,
administrative subpoenas (see, e.g., 18 U.S.C. 3486
(authorizing administrative subpoenas for, inter alia, criminal
investigations of health care fraud and sexual exploitation or
abuse of children); 21 U.S.C. 876 (authorizing administrative
subpoenas in controlled substance investigations); 31 U.S.C.
3733 (authorizing administrative subpoenas to investigate false
claims against the Government)). See Graham Hughes,
``Administrative Subpoenas and the Grand Jury: Converging
Streams of Criminal and Civil Compulsory Process,'' 47 Vand. L.
Rev. 573 (1994). The grand jury subpoena and administrative
subpoena are similar investigative tools, permitting access to
information or testimony relevant to an investigation without
the prior approval of a judge. A grand jury subpoena is issued
by a federal prosecutor. See Doe v. DiGenova, 779 F.2d 74, 80
n.11 (D.C. Cir. 1985) (``[A] grand jury subpoena gets its name
from the intended use of the . . . evidence, not from the
source of its issuance.''). Administrative subpoenas are issued
by an authorized official of the investigating agency. Judicial
review of both grand jury and administrative subpoenas occur
after-the-fact, and only if the recipient challenges the
subpoena in court.
The use of administrative subpoenas has been upheld by the
Supreme Court. Federal courts have enforced administrative
subpoenas so long as the documents requested are relevant to an
authorized investigation and the issuance of the subpoena meets
the ``reasonableness'' requirements of the Fourth Amendment.
See, e.g., United States v. LaSalle Nat'l Bank, 437 U.S. 298,
313 (1978) (requiring that information sought be relevant to a
lawfully authorized inquiry); Oklahoma Press Publishing Co. v.
Walling, 327 U.S. 186, 209 (1946) (holding that the
requirements of the Fourth Amendment are satisfied if an
administrative subpoena seeks information relevant to an
investigation authorized by Congress and is ``reasonable'' in
scope); see also, e.g., United States v. Powell, 379 U.S. 48
(1964). A finding of ``probable cause'' is not necessary to
support the issuance of an administrative subpoena because
Executive branch agencies may utilize the subpoenas only when
authorized by Congress to support a lawful investigation and
only to procure information relevant to that authorized
investigation. See Oklahoma Press Publishing Co., 327 U.S. at
209; see also Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984).
Administrative subpoenas have been utilized by many
departments and agencies of the Executive branch to implement
and enforce regulatory policies. According to the DoJ Report to
Congress on the Use of Administrative Subpoena Authorities by
Executive Branch Agencies and Entities (May 13, 2002)
(hereinafter, ``Administrative Subpoena Report''), there are
``approximately 335 existing administrative subpoena
authorities held by various executive branch entities under
current law.'' See Administrative Subpoena Report at 5. For
example, the Inspector General Act of 1978 (5 U.S.C. App.
6(a)(4)) authorizes agency Inspectors General to issue
judicially enforceable administrative subpoenas for certain
information necessary for the performance of their functions
(including investigations of possible criminal violations).
Section 104(e) of the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) (42 U.S.C. 9604(e))
authorizes administrative subpoenas to aid in the enforcement
of environmental laws. The Secretary of Labor can issue an
administrative subpoena to investigate, among other things, a
violation, or potential violation, of the Employee Retirement
and Income Security Act (ERISA) of 1974. See 29 U.S.C. 1134.
The Federal Maritime Commission may issue administrative
subpoenas to enforce the provisions of the Foreign Shipping
Practices Act. See 46 U.S.C. App. 1710a. These are only a few
of the administrative subpoenas authorized for ``regulatory''
investigations.
National security investigators have several different
tools to obtain information relevant to terrorism, espionage,
and other national security investigations; each of these tools
suffers from inherent limitations, however. The primary tool
utilized by the FBI to obtain information relevant to national
security investigations is a ``national security letter.''
Using ``national security letters,'' the FBI may request
certain communication service provider records (18 U.S.C.
2709), financial institution customer records (12 U.S.C. 3414);
financial information, financial records, and consumer reports
(50 U.S.C. 436); credit agency consumer records for
counterterrorism investigations (15 U.S.C. 1681v); and certain
financial information and consumer reports (15 U.S.C. 1681u).
The records requested through ``national security letters'' do
not cover all categories of information that may be relevant to
an international terrorism, espionage, or other national
security investigation. Moreover, while compliance with these
``national security letters'' is mandatory, the letters lack an
explicit enforcement mechanism. If a recipient chooses not to
comply, the FBI has little, if any, recourse to enforce
compliance. Although useful investigative tools, the
effectiveness of ``national security letters'' is hindered by
their limited reach and lack of an explicit judicial
enforcement mechanism.
The FBI may also utilize a FISA business records order to
access ``any tangible things'' relevant to an investigation to
obtain foreign intelligence information not concerning a U.S.
person or to protect against international terrorism or
clandestine intelligence activities. See 50 U.S.C. 1861.
Although the FISA business records order may be used to access
``any tangible thing'' and does not have the scope limitations
associated with ``national security letters,'' the FBI can
obtain information with a FISA business records order only
after an extensive application and approval process through the
FBI, the DoJ, and the FISC. On the other hand, a federal
prosecutor need only sign and issue a grand jury subpoena to
obtain similar documents in criminal investigations, yet
national security investigators have no similar investigative
tool. In addition to bureaucratic inefficiencies that delayed
for over two years the implementation of the amendments made to
the FISA by Section 215 of the USA PATRIOT Act, the Committee
has noted that the inability to quickly access records has
limited the usefulness of the FISA business records order.
In a speech before the FBI Academy in Quantico, Virginia,
on September 10, 2003--two years after the terrorist attacks of
September 11, 2001--the President called on Congress to grant
the FBI the authority to issue administrative subpoenas for
terrorism investigations:
Under current federal law, there are unreasonable
obstacles to investigating and prosecuting terrorism,
obstacles that don't exist when law enforcement
officials are going after embezzlers or drug
traffickers. For the sake of the American people,
Congress should change the law, and give law
enforcement officials the same tools they have to fight
terror that they have to fight other crime.
Here's some examples. Administrative subpoenas, which
enable law enforcement officials to obtain certain
records quickly, are critical to many investigations.
They're used in a wide range of criminal and civil
matters, including health care fraud and child abuse
cases. Yet, incredibly enough, in terrorism cases,
where speed is often of the essence, officials lack the
authority to use administrative subpoenas. If we can
use these subpoenas to catch crooked doctors, the
Congress should allow law enforcement officials to use
them in catching terrorists.
In an April 27, 2005, hearing before this Committee, both the
Attorney General and the Director of the FBI reiterated the
Administration's support for administrative subpoena authority
to fight national security threats such as terrorism. DoJ
officials have testified on several occasions before the Senate
on the need for administrative subpoenas to support terrorism
and other national security investigations. See A Review of the
Tools to Fight Terrorism Act, 108th Cong., 2d Sess. (Sept. 13,
2004) (Joint Testimony of Daniel J. Bryant, Assistant Attorney
General, Office of Legal Policy, U.S. Department of Justice,
and Barry Sabin, Chief, Counterterrorism Section, Criminal
Division, U.S. Department of Justice); Tools to Fight
Terrorism: Subpoena Authority and Pretrial Detention of
Terrorists, 108th Cong., 2d Sess. (June 22, 2004) (statement of
Rachel Brand, Principal Deputy Assistant Attorney General, U.S.
Department of Justice).
Authorized National Security Investigations
Section 213 provides the Attorney General with the
administrative subpoena authority necessary to provide timely
access to records or other materials that are relevant to
authorized investigations to obtain foreign intelligence
information not concerning U.S. persons or to protect against
international terrorism and clandestine intelligence
activities. The Attorney General may delegate the authority
only to certain senior national security officials (a DoJ
official with responsibilities for national security
investigations not lower than an Assistant Attorney General, a
United States Attorney, an Assistant United States Attorney
with responsibility for national security investigations, the
Director of the FBI, an FBI official not lower than a Deputy
Assistant Director at Bureau headquarters, or a Special Agent
in Charge (including an ``acting'' Special Agent in Charge) of
an FBI field office). The administrative subpoena--a tool
equivalent to the grand jury subpoena--may be used to further
intelligence investigations of terrorists, spies, and other
national security threats. The subpoena may be used only during
the course of a lawful investigation authorized under the
Attorney General's Guidelines for FBI National Security
Investigations and Foreign Intelligence Collection (including
the Executive Order 12333 limitation that foreign intelligence
collection may not be undertaken for the purpose of acquiring
information concerning the domestic activities of United States
persons). Section 213 also expressly prohibits use of the
administrative subpoena authority if an investigation of a
United States person is based solely upon activities protected
by the First Amendment. The administrative subpoena may not be
used during the course of criminal investigations unrelated to
international terrorism, clandestine intelligence activities,
or the collection of foreign intelligence concerning non-United
States persons. Any documentary evidence sought by the
administrative subpoena will not be subject to disclosure if
the information would be considered ``privileged'' if demanded
by a subpoena duces tecum issued by a Federal court in aid of a
grand jury investigation of espionage or international
terrorism. A recipient that complies in good faith with an
administrative subpoena under Section 213 is granted immunity
from civil liability.
Nondisclosure Requirements
Although Section 213 provides authority to prohibit the
disclosure of information concerning the issuance of the
administrative subpoena, the nondisclosure requirements are not
mandatory or automatic. To subject the administrative subpoena
to limitations on disclosure, the Attorney General or the
issuing designee must certify that a danger to the national
security may result from the public disclosure of the fact that
a person has received a subpoena or that records were provided
pursuant to such subpoena. If the nondisclosure requirements
are applicable, a recipient may still disclose information
concerning the subpoena to those persons to whom disclosure is
necessary to comply with the subpoena, to an attorney for
purposes of seeking legal advice (including legal assistance
necessary to initiate and litigate judicial review of the
subpoena), or to other persons designated by the Attorney
General or the issuing designee. Should it become necessary for
the recipient to disclose the matter beyond the one attorney
permitted, the recipient, or the initial attorney, may seek
approval from the Attorney General, or from the Attorney
General's designee who issued the original administrative
subpoena, to expand disclosure to other attorneys, paralegals,
or staff necessary to resolve the matter.
If the Attorney General or the issuing designee determines
that nondisclosure is no longer justified by a danger to
national security, the recipient must be so notified. The
requirement to examine the applicability of nondisclosure
requirements under the statute is continuing. Issuing officials
should monitor closely the status of the underlying
investigation to ensure that disclosure would still result in a
danger to national security. Nondisclosure requirements should
not go stale because the need for such requirements has not
been consistently and regularly examined. A formal review of
the continuing applicability of nondisclosure requirements to
issued subpoenas should occur at least every five years and be
conducted by a senior official at the DoJ or the FBI.
During the course of a judicial review to modify or set
aside an administrative subpoena, recipients may also challenge
the applicability of nondisclosure requirements. If a recipient
challenges the nondisclosure requirements, the Attorney General
or the Director of the FBI mustcertify to the reviewing court
that disclosure may still result in a danger to national security. The
judicial review certification by the Attorney General or the Director
of the FBI is not delegable.
Enforcement and Judicial Review
Section 213 is consistent with judicial precedent regarding
the issuance of administrative subpoenas and provides
protections for privacy and civil liberties through enforcement
and judicial review procedures, mandated Attorney General
guidelines governing use, and required Attorney General-
approved minimization procedures.
Under Section 213, the Attorney General, or his designees,
may issue an administrative subpoena only to obtain information
relevant to a lawful, authorized investigation of specified
matters. See Oklahoma Press Publishing Co., 327 U.S. at 209.
While the administrative subpoena may require the production of
any records or materials and may require a certification by the
custodian concerning the production of the records or other
materials sought, the administrative subpoena cannot mandate
testimony by any individual.
If a recipient refuses to comply with an administrative
subpoena, the Attorney General may enforce the subpoena only
through proceedings before a Federal district court or the
FISC. A decision by the DoJ to seek judicial enforcement of an
administrative subpoena should not be made lightly. As the DoJ
explained in the Administrative Subpoena Report:
Where an agency requests the assistance of the Attorney
General through the United States Attorney's office to
seek enforcement of an administrative subpoena in
federal district court, the United States Attorney's
office plays a role that is more than ministerial,
exercising discretion in determining whether to seek
enforcement by a court. In evaluating such requests,
the United States Attorney's office evaluates the
subpoena issued by the agency to determine whether the
scope of the request is in keeping with the agency's
statutory authority and the agency has followed proper
procedures in issuing the subpoena.
Administrative Subpoena Report at 10 (citing United States
Attorneys Manual, 4-6.210 C). The Committee expects that this
review, done in a timely fashion, will continue to play a
crucial role in the proper and judicious use of administrative
subpoenas under Section 213.
The judicial review provisions in Section 213 also provide
an important check on the authority of the Executive branch.
Under Section 213, any recipient of an administrative subpoena
may challenge the issuance in a local Federal district court or
before the FISC. As the Third Circuit noted in Wearly v. FTC,
``the district court's role [in reviewing an administrative
subpoena] is not that of a mere rubber stamp, but of an
independent reviewing authority called upon to insure the
integrity of the proceeding.'' Wearly, 616 F.2d 662, 665 (3rd
Cir., 1980); see also United States v. Security State Bank and
Trust, 473 F.2d 638, 641-42 (5th Cir. 1973) (noting that a
statutory ``system of judicial enforcement [provides] a
meaningful day in court for one resisting an administrative
subpoena''). Under Section 213, a court may modify or set aside
an administrative subpoena if compliance would be unreasonable
or oppressive, the same standard applicable to a grand jury
subpoena under Federal Rule of Criminal Procedure 17(c)(2).
Before setting an administrative subpoena aside and, thereby,
depriving the Government of information needed to protect
national security, the overriding role of the court should be
modification of that subpoena to address any unreasonable or
oppressive elements of the request.
Congressional Oversight and Reporting Obligations
The Committee will vigorously oversee and closely monitor
the use of the administrative subpoena authority provided by
Section 213. To support this oversight, Section 213 contains an
extensive and detailed semiannual reporting requirement. The
DoJ will be required to notify the Committee every six months
regarding the number of administrative subpoenas issued, the
total number of times a nondisclosure certification has been
made, the number of judicial review proceedings initiated by
recipients, the total number of administrative subpoenas
modified or set aside by courts, and the total number of
administrative subpoenas used to gain access to sensitive
information from libraries or booksellers, information
regarding the purchase of a firearm, health information, or
certain tax information. The Committee will also closely
monitor the implementing guidelines issued by the Attorney
General, in consultation with the Director of the FBI, and the
minimization procedures approved by the Attorney General.
``National Security Letters'' and FISA Business Records
Orders
The Attorney General, in consultation with the Director of
the FBI, is required to issue guidelines to implement the
authority provided in Section 213 within six months of
enactment of this legislation. Within six months of the
issuance of such guidelines, the FBI must stop using certain
specified investigative techniques--specifically, five
``national security letter'' authorities--in recognition of the
similar authority provided in Section 213--and based on the
additional protections for privacy and civil liberties
expressly provided in Section 213. In addition, within one year
of enactment, the Attorney General and the Director of National
Intelligence must report to Congress regarding the continuing
need for ``national security letters'' and FISA business
records orders as investigative tools given the administrative
subpoena authority provided by Section 213.
Sunset Provision
The administrative subpoena provision in Section 213 is
subject to a sunset provision. On December 31, 2009, without
further legislative action, the authority will expire. The
sunset provision will give Congress the opportunity to revisit
the manner in which the DoJ and the FBI have used the
administrative subpoena authority established by Section 213,
before Congress must act to authorize the investigative tool
again.
Section 214. Modification of semiannual report requirement on
activities under Foreign Intelligence Surveillance Act of 1978
Section 214 removes from Section 108(a)(2)(A) of the FISA
(50 U.S.C. 1808(a)(2)(A)) a reporting requirement that is
virtually impossible for the Attorney General to administer,
because the FBI has significantly increased dissemination of
foreign intelligence information to national security
officials, including those in law enforcement positions. When
the USA PATRIOT Act tore down the ``walls'' that prevented the
sharing of FISA-derived foreign intelligence information with
law enforcement officials (see discussion, supra, of Section
101 and 202), the Attorney General issued new procedures
governing the minimization and dissemination of such
information. These procedures, issued on March 6, 2002, ``were
designed to permit the complete exchange of information and
advice between intelligence and law enforcement officials.''
See In re: Sealed Case, 310 F.3d at 729. These procedures were
approved by the Court of Review on November 18, 2002. See id.
at 746. Given Congressional intent to support increased
information access and the judicially-approved Attorney General
mandate to share FISA-derived foreign intelligence information,
it is unreasonable to expect the Attorney General to continue
attempts to comply with this reporting requirement. The
Committee, however, maintains an existing FISA semiannual
report that requires a description of ``each criminal case in
which information acquired under [FISA] has been authorized for
use at trial during such reporting period.'' See 50 U.S.C.
1808(a)(2)(B). The Committee appreciates the specificity of
current DoJ reporting of ``each criminal case'' in which FISA
information has been authorized for use. The Committee expects
that the current level of specific reporting will continue.
Section 215. Authority for disclosure of additional information in
connection with orders for pen registers or trap and trace
devices under Foreign Intelligence Surveillance Act of 1978
Section 215 authorizes the FISC to issue FISA pen register/
trap and trace orders that also provide the Government
subscriber information on the service targeted for surveillance
and certain limited subscriber information associated with
routing information captured by the surveillance devices.
During the staff FISA audit, the Committee found that FISA
pen register/trap and trace orders were being underutilized for
two reasons. First, FBI and DoJ bureaucratic delays in
processing FISA pen register/trap and trace applications
depress demand for the investigative tool. The FBI reported
that it often takes as long to get a FISA pen register/trap and
trace order as it does to get a ``full content'' FISA
electronic surveillance order. By comparison, a criminal pen
register/trap and trace order can usually be obtained on the
same day it is requested. Second, FISA pen register/trap and
trace orders are a less effective tool than the criminal law
equivalent because--at least until fairly recently--
investigators could obtain more information from the criminal
pen register/trap and trace order. When a federal court issues
a criminal pen register/trap and trace order, the court also
has the authority under 18 U.S.C. 2703(d) to routinely require
that the service provider furnish subscriber information for
the captured numbers or e-mail addresses that are in its
possession. The FISA pen register/trap and trace provision does
not contain language that would permit the FISC to issue
similar orders. Thus, the FBI is forced to use ``national
security letter'' authority under 18 U.S.C. 2709 to obtain the
same information. Unfortunately, the ``national security
letter'' does not permit access to this customer/subscriber
information in a timely fashion. The OIPR has found an
intermediate solution to this problem by coupling a FISA
business record order for subscriber records with a FISA pen
register/trap and trace order.
Section 215 resolves this issue by authorizing the FISC to
issue pen register/trap and trace orders that require a service
provider to furnish certain subscriber information on the
service targeted for surveillance and, if available, specified
information concerning the subscriber accounts making incoming
and outgoing communications on the targeted line. This
provision is modeled on 18 U.S.C. 2703(c)(2) and (d).
Section 216. Surveillance of certain non-United States persons under
Foreign Intelligence Surveillance Act of 1978.
Section 216 increases the maximum duration of a FISA
electronic surveillance or physical search of a non-U.S. person
agent of a foreign power who knowingly aids, abets, or
conspires with any member of a group engaged in international
terrorism. Under present law, such targets must be pled under
the FISA ``any person'' standard and the duration of the
initial search or surveillance cannot exceed 90 days and may
only be renewed in 90-day increments. See 50 U.S.C. 1805(e) and
1824(d). This amendment would permit the Government to obtain
initial electronic surveillance or physical search authority
for 120 days on such non-U.S. persons, which then could be
renewed for periods up to one year. This provision is a modest
expansion of the improvements made by Section 207 of the USA
PATRIOT Act, which increased the maximum duration of FISA
electronic surveillance and physical search orders directed
against non-U.S. person members of international terrorist
groups or officers or employees of foreign powers.
Section 216 also increases the maximum duration of FISA
orders for pen registers and trap and trace devices. Under
present law, pen register/trap and trace orders can be
initiated for a 90-day period and renewed only for an
additional 90 days. Section 216 makes the order durations for a
pen register/trap and trace device consistent with those for
electronic surveillance and physical search. Thus, when an
applicant certifies that the pen register/trap and trace device
will likely obtain foreign intelligence information concerning
a foreign power (as defined in paragraph (1), (2), or (3) of
section 101(a)), the FISC may issue the first order for a
period up to one year and authorize renewal periods of up to
one year. When an applicant certifies that the pen register/
trap and trace device will likely obtain foreign intelligence
information concerning an agent of a foreign power (as defined
in section 101(b)(1)(A)), the order may be initiated for up to
120 days and renewed for periods up to one year. All other FISA
pen register/trap and trace orders may be initiated for up to
90 days and must still be renewed in 90-day increments.
The DoJ estimates that Section 207 of the USA PATRIOT Act
has saved nearly 60,000 attorney hours. Put another way,
Section 207 of that Act saved 30 lawyers a year's worth of
work--and this estimate does not account for time saved by FBI
agents, administrative staff, and the judiciary.
Section 216 would allow the DoJ and the FISC to focus more
oversight scrutiny on applications for surveillance and
physical search of U.S. persons. The section would also allow
intelligence officials to spend more time investigating
potential terrorist or espionage activity by non-U.S. persons,
rather than wasting valuable time returning to the FISC to
extend surveillance of foreign powers and agents of foreign
powers that had already been authorized by the court.
Section 217. Additional information in applications for orders for pen
registers and trap and trace devices and business records under
Foreign Intelligence Surveillance Act of 1978
Section 217 codifies existing Government pleading practice
before the FISC in applications for FISA pen register/trap and
trace and business record orders. Some commentators have argued
that Section 214 (pen register/trap and trace) and Section 215
(business records) of the USA PATRIOT Act deprive the FISC of
discretion to deny a Government application for a FISA pen
register/trap and trace or business record order. These
commentators have expressed particular concern that the
application requirements for FISA pen register/trap and trace
and business record orders contain no required factual showing
demonstrating how the information sought under such orders is
relevant to a lawful investigation. Based on the staff FISA
audit and a review of FISA applications for pen register/trap
and trace and business record orders, it is apparent that the
Government currently provides in its applications a factual
predicate for the FISC to make a determination of relevance. In
order to codify existing practice, Section 217 amends the FISA
to require that applications for both pen register/trap and
trace and business record orders provide ``an explanation . . .
that supports the assertion of relevance'' required by the
FISA. The Committee does not expect this amendment to change
current practice. The ``explanation'' requirement should not
require additional information to support an application beyond
the short and concise description already provided by the
Government in such applications.
Section 218. Form of semiannual reports on access to business records
under Foreign Intelligence Surveillance Act of 1978
Section 218 amends the reporting requirement in Section
502(b) of the FISA to encourage the submission of the report in
unclassified form. The report may include a classified annex.
The Committee encourages the Attorney General to include as
much information as possible in the unclassified portions of
this report, but recognizes that some information may provide
information to terrorists, spies, and others that might
threaten national security. The classified annex to this report
should include any information the disclosure of which might
threaten national security by providing information to the
nation's enemies that would allow them to modify their
activities to avoid detection.
Section 219. Report on voluntary disclosure of business records for
Foreign Intelligence Purposes
Section 219 requires a one-time report from the Attorney
General describing the policies and procedures applicable to
the FBI's ability to request the voluntary disclosure of
``tangible things'' that are relevant to investigations to
protect against international terrorism and espionage or to
obtain foreign intelligence information not concerning United
States persons. The FBI has a number of formal investigative
tools to obtain information relevant to lawful national
security investigations (e.g., ``national security letters,''
FISA business records orders, grand jury subpoenas, and (under
Section 213) administrative subpoenas). Often, however, a mere
request for assistance is sufficient to gain access to
information. Indeed, the assistance and awareness of the public
has been termed the ``first line of defense'' against terrorism
and other national security threats. Some have expressed
concerns, however, that these ``requests'' might intimidate or
coerce access to information that an individual otherwise may
not have provided. The report required by this section is
intended to provide a general overview of the FBI's practices
and procedures relating to these ``requests,'' including the
``general frequency'' of the requests and the ``general
frequency'' that such requests are ``denied.'' The Committee
does not expect specific numbers of occasions if that
information is not readily available, but instead hopes to gain
a better understanding of this process. The report should be
submitted in unclassified form, but may include a classified
annex.
COMMITTEE ACTION
Motion to close
On May 26, 2005, on the motion of Chairman Roberts, by a
vote of 9 ayes to 6 noes, the Committee voted to close the
markup. The votes in person or by proxy were as follows:
Chairman Roberts--aye; Senator Hatch--aye; Senator DeWine--aye;
Senator Bond--aye; Senator Lott--aye; Senator Snowe--aye;
Senator Hagel--aye; Senator Chambliss--aye; Vice Chairman
Rockefeller--no; Senator Levin--no; Senator Feinstein--aye;
Senator Wyden--no; Senator Bayh--no; Senator Mikulski--no;
Senator Corzine--no.
Motion to report committee draft bill favorably subject to amendments
On May 26, 2005, on the motion of Chairman Roberts and by a
vote of 8 ayes and 7 noes, the Committee voted to report the
bill favorably, subject to amendment. The votes in person or by
proxy were as follows: Chairman Roberts--aye; Senator Hatch--
aye; Senator DeWine--aye; Senator Bond--aye; Senator Lott--aye;
Senator Snowe--aye; Senator Hagel--aye; Senator Chambliss--aye;
Vice Chairman Rockefeller--no; Senator Levin--no; Senator
Feinstein--no; Senator Wyden--no; Senator Bayh--no; Senator
Mikulski--no; Senator Corzine--no.
Amendments to committee draft bill
On May 26, 2005, by a vote of 8 noes and 7 ayes, the
Committee rejected an amendment by Senator Feinstein to add in
the section of the bill on administrative subpoenas a
requirement and procedures to limit their use to emergency
circumstances and to require Department of Justice review and
approval before their issuance. The votes in person or by proxy
were as follows: Chairman Roberts--no; Senator Hatch--no;
Senator DeWine--no; Senator Bond--no; Senator Lott--no; Senator
Snowe--no; Senator Hagel--no; Senator Chambliss--no; Vice
Chairman Rockefeller--aye; Senator Levin--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Corzine--aye.
On May 26, 2005, by a unanimous vote of 15 ayes, the
Committee agreed to an amendment by Chairman Roberts to add in
the section of the bill on administrative subpoenas a
modification to provide the authority to the Attorney General
instead of the Director of the Federal Bureau of Investigation,
to permit certain delegations of the authority, to make certain
technical modifications regarding compliance with an
administrative subpoena, to modify the procedures for
consideration of classified information during the course of
judicial review of an administrative subpoena, to require the
Attorney General instead of the Director of the Federal Bureau
of Investigation to issue implementing guidelines, to limit the
ability of the Federal Bureau of Investigation to utilize
``national security letters'' six months after issuance of
implementing guidelines, to require a report by the Attorney
General and Director of National Intelligence on the continuing
need for ``national security letters'' and for the authority
provided by Title V of the Foreign Intelligence Surveillance
Act of 1978 based on the authority to issue administrative
subpoenas, and to subject the administrative subpoena authority
to a ``sunset'' date of December 31, 2009, unless renewed. The
votes in person or by proxy were as follows: Chairman Roberts--
aye; Senator Hatch--aye; Senator DeWine--aye; Senator Bond--
aye; Senator Lott--aye; Senator Snowe--aye; Senator Hagel--aye;
Senator Chambliss--aye; Vice Chairman Rockefeller--aye; Senator
Levin--aye; Senator Feinstein--aye; Senator Wyden--aye; Senator
Bayh--aye; Senator Mikulski--aye; Senator Corzine--aye.
On June 7, 2005, by a vote of 8 noes and 7 ayes, the
Committee rejected an amendment by Senator Feinstein to delete
Section 203 (now Section 202) of the bill. The votes in person
or by proxy were as follows: Chairman Roberts--no; Senator
Hatch--no; Senator DeWine--no; Senator Bond--no; Senator Lott--
no; Senator Snowe--no; Senator Hagel--no; Senator Chambliss--
no; Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Corzine--aye.
On June 7, 2005, by a vote of 8 noes and 7 ayes, the
Committee rejected an amendment by Vice Chairman Rockefeller to
modify Title V of the Foreign Intelligence Surveillance Act of
1978 to permit the Attorney General to require the production
of business records under certain emergency situations without
the approval of the Foreign Intelligence Surveillance Court,
with a requirement that the request be presented to and
approved by the Foreign Intelligence Surveillance Court as soon
as practicable thereafter. The votes in person or by proxy were
as follows: Chairman Roberts--no; Senator Hatch--no; Senator
DeWine--no; Senator Bond--no; Senator Lott--no; Senator Snowe--
no; Senator Hagel--no; Senator Chambliss--no; Vice Chairman
Rockefeller--aye; Senator Levin--aye; Senator Feinstein--aye;
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye;
Senator Corzine--aye.
On June 7, 2005, by unanimous consent, the Committee
adopted, on motion by Chairman Roberts, an amendment offered by
Senator Levin to modify the standard of review applicable to
the section of the bill concerning judicial review of
administrative subpoenas. No Senator objected to this motion.
On June 7, 2005, by unanimous consent, the Committee
adopted, on motion by Chairman Roberts, an amendment offered by
Senator Levin to modify the records subject to disclosure
pursuant to an administrative subpoena. No Senator objected to
this motion.
On June 7, 2005, by a vote of 8 noes and 7 ayes, the
Committee rejected an amendment by Senator Levin to modify the
section of the bill on administrative subpoenas to require
judicial review every 90 days of the decision to invoke the
nondisclosure requirements applicable to administrative
subpoenas. The votes in person or by proxy were as follows:
Chairman Roberts--no; Senator Hatch--no; Senator DeWine--no;
Senator Bond--no; Senator Lott--no; Senator Snowe--no; Senator
Hagel--no; Senator Chambliss--no; Vice Chairman Rockefeller--
aye; Senator Levin--aye; Senator Feinstein--aye; Senator
Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye; Senator
Corzine--aye.
On June 7, 2005, by a vote of 8 noes and 7 ayes, the
Committee rejected an amendment by Senator Levin to modify a
portion of Title I of the Foreign Intelligence Surveillance Act
of 1978 governing electronic surveillance orders of the Foreign
Intelligence Surveillance Court to require that, under certain
circumstances, such orders describe with sufficient specificity
the target of the electronic surveillance. The votes in person
or by proxy were as follows: Chairman Roberts--no; Senator
Hatch--no; Senator DeWine--no; Senator Bond--no; Senator Lott--
no; Senator Snowe--no; Senator Hagel--no; Senator Chambliss--
no; Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Corzine--aye.
On June 7, 2005, by a unanimous vote of 15 ayes, the
Committee agreed to an amendment by Chairman Roberts, for
himself and Vice Chairman Rockefeller, to modify Section 102 of
the bill to extend for four years the ``sunset'' provision
applicable to Section 6001 of the Intelligence Reform and
Terrorism Prevention Act of 2004, to strike Section 201 of the
bill in lieu of a modification to Section 216 of the bill, to
add express procedures for judicial review before the Foreign
Intelligence Surveillance Court of orders issued under Title V
of the Foreign Intelligence Surveillance Act of 1978, to make
certain technical modifications to Section 212 of the bill, to
modify Section 216 of the bill to add a new category of
``agents of foreign power'' to the Foreign Intelligence
Surveillance Act and to modify the time periods associated with
pen register or trap and trace orders issued under Title IV of
the Foreign Intelligence Surveillance Act, to add a new Section
217 to the bill modifying the application requirements for
orders under Title IV and Title V of the Foreign Intelligence
Surveillance Act, to add a new Section 218 to the bill relating
to the form of semiannual reports under Title V of the Foreign
Intelligence Surveillance Act, and to add a new Section 219 to
the bill mandating a one-time report on voluntary disclosure of
business records to the Federal Bureau of Investigation for
foreign intelligence investigations. The votes in person or by
proxy were as follows: Chairman Roberts--aye; Senator Hatch--
aye; Senator DeWine--aye; Senator Bond--aye; Senator Lott--aye;
Senator Snowe--aye; Senator Hagel--aye; Senator Chambliss--aye;
Vice Chairman Rockefeller--aye; Senator Levin--aye; Senator
Feinstein--aye; Senator Wyden--aye; Senator Bayh--aye; Senator
Mikulski--aye; Senator Corzine--aye.
Motion to report bill favorably
On June 7, 2005, after disposition of all offered
amendments, the Members of the Committee in person or by proxy
recorded their final votes on reporting the bill favorably, 11
ayes and 4 noes, as follows: Chairman Roberts--aye; Senator
Hatch--aye; Senator DeWine--aye; Senator Bond--aye; Senator
Lott--aye; Senator Snowe--aye; Senator Hagel--aye; Senator
Chambliss--aye; Vice Chairman Rockefeller--aye; Senator Levin--
no; Senator Feinstein--no; Senator Wyden--no; Senator Bayh--
aye; Senator Mikulski--aye; Senator Corzine--no.
ESTIMATE OF COSTS
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to the legislation. On June 16,
2005, the Committee will transmit this bill to the
Congressional Budget Office and request that it conduct, to the
extent practicable, an estimate of the costs incurred in
carrying out the provisions of this bill.
EVALUATION OF REGULATORY IMPACT
In accordance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee finds that no
substantial regulatory impact will be incurred by implementing
the provisions of this legislation.
CHANGES IN EXISTING LAWS
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF SENATORS ROBERTS, HATCH, DeWINE, BOND, LOTT, AND
CHAMBLISS
Congress enacted the USA PATRIOT Act to correct the flaws
in, and the interpretations of, U.S. law that prevented
cooperation and information sharing between our intelligence
and law enforcement agencies prior to the September 11 attacks.
Because of the Act, we have seen significant progress in some
areas. For that reason alone, the intelligence provisions of
the Act, set to expire at the end of this year, should be
permanently authorized. The Intelligence Committee's oversight
activities have revealed, however, the need for additional
legislation to ensure national security investigators have the
tools they need to combat international terrorism and
espionage. With this bill, the Committee would not only
reauthorize the expiring provisions, but also provide the
additional tools these investigators need.
We recognize that the USA PATRIOT Act has been the source
of considerable controversy, and, as a result, some have
questioned the need for permanently authorizing the
legislation. But, the threats to our nation from terrorists and
spies are not going to expire at the end of the year. The
stakes are simply too high to return to the failed policies and
procedures that tied the hands of our law enforcement and
intelligence agencies before September 11.
Additionally, we now have had nearly four years of
congressional oversight of the use of the tools provided by the
USA PATRIOT Act. Despite rhetoric to the contrary, our
oversight has revealed not a single substantiated incident of
abuse of the authorities provided by the Act.
Our experience with the Foreign Intelligence Surveillance
Act (FISA) business record provision highlights this point.
This provision is often characterized as giving federal agents
the authority to investigate the reading habits of innocent
citizens through the seizure of library records. First of all,
we should all remember that several of the 9-11 hijackers used
library internet access to purchase and track the airline
reservations they used to board the flights that they would
soon hijack. The Federal Bureau of Investigation (FBI) should
be able to access these library records using every
constitutional tool available so--should the need arise--they
might be able to prevent a future attack. Beyond that, we know
through Congressional oversight that the FBI has used this
authority only 35 times and never to access library records.
Given the FBI's careful and judicious use of the USA
PATRIOT Act authorities provided after the September 11
attacks, Americans can be confident that any further grants of
legitimate, constitutional investigative tools to national
security investigators will be used only to protect Americans--
not to deprive them of their privacy or civil liberties.
The bill reported by this Committee reflects a balanced
approach to providing investigative tools to national security
investigators while maintaining the checks and balances
necessary to preserve civil liberties. First, the legislation
permanently authorizes the nine intelligence-related provisions
set to expire at the end of the year. Second, it extends to
national security investigators tools already used in federal
criminal cases. Third, it addresses concerns expressed by the
critics of the USA PATRIOT Act by expressly establishing
standards for the use of certain tools and increasing
Congress's ability to oversee the use of every investigative
tool it authorizes.
As with the USA PATRIOT Act, portions of the Committee's
bill have been (and no doubt will continue to be) significantly
mischaracterized. As discussed in greater detail below, many of
the mischaracterizations of the bill's provisions are based on
a misreading of the plain language of the bill and its
accompanying report; a lack of understanding of--or a refusal
to recognize--the safeguards and limitations imposed by
statute, executive order, and agency regulations; and a flawed
understanding of the role of the FBI in national security
investigations.
Administrative Subpoenas
Administrative subpoenas are well-established and
constitutional investigative tools that Executive branch
agencies have long utilized in criminal and regulatory
investigations. In fact, Congress has legislatively authorized
335 different types of administrative subpoenas. The Attorney
General currently uses administrative subpoenas to investigate
drug trafficking, child pornography, health care fraud, and
other crimes. Under current law, however, the Attorney General
cannot use administrative subpoenas to investigate
international terrorism or espionage. Section 213 remedies this
deficiency by authorizing the Attorney General to issue
administrative subpoenas to access records relevant to
authorized investigations to protect against international
terrorism and espionage or to obtain foreign intelligence
information concerning non-U.S. persons.
Opponents of the administrative subpoena authority provided
in Section 213 charge that the authority will allow federal
agents unfettered discretion to conduct ``fishing
expeditions.'' The plain language of the provision and existing
safeguards will prevent such abuse. The statute clearly
restricts usage of administrative subpoenas to international
terrorism, espionage, and certain other national security
investigations. Thus, the authority under Section 213 may not
be used for ordinary criminal investigations. Additionally,
these investigations must be authorized under Executive Order
12333 (which places express limitations on the collection of
information concerning the domestic activities of U.S. persons)
and be consistent with guidelines issued by the Attorney
General.
We are not granting this authority to the FBI of the
1960's, which was nearly devoid of congressional oversight. In
contrast to its overreaching in the past, today's FBI honors
the rule of law, is bound by executive order and Attorney
General guidelines, and is subject to the vigorous oversight of
Senate and House Intelligence Committees. Congress will monitor
closely the FBI's use of administrative subpoenas and other USA
PATRIOT Act authorities and will ensure that those authorities
are not used for ``fishing expeditions.''
Opponents of the administrative subpoena provision also
argue that, if administrative subpoena authority is granted to
the Attorney General, its use should be restricted to instances
in which there is an ``emergency need'' for the records or
materials sought. Such a restrictionwould impose limits on
national security investigators that Congress has not imposed on other
regulatory or criminal investigators. In fact, of the 335
administrative subpoenas enacted by Congress, only one contains
anything like an emergency circumstances requirement--the Secret
Service administrative subpoena--and the requirements of the Secret
Service provision are light compared to those proposed in an amendment
offered by opponents of the Committee's administrative subpoena
authority.
Other administrative subpoenas, like those authorized for
criminal health care fraud, child pornography, and narcotics
trafficking, contain no ``emergency circumstances''
requirement. If the Attorney General, or his designee, can
issue an administrative subpoena without a finding of emergency
circumstances to investigate a ``dirty doctor,'' we see no
reason to impose that burden on the investigation of a ``dirty
bomber.''
Some opponents argue that the FBI's need for timely access
to records and materials can be met simply by amending the FISA
business records provision to allow the Attorney General to
issue, without FISA court approval, an ``emergency'' order for
production of business records or other tangible things. Like
the proposals to limit administrative subpoenas to emergency
situations, the proposals for emergency FISA business record
orders contain burdensome administrative hurdles that are not
required by the Constitution and will make the ``emergency''
business record order virtually useless.
Requiring national security investigators to get an
Attorney General certification or to provide pre-issuance
notification to the Foreign Intelligence Surveillance Court
(FISC) places hurdles in front of these investigators that
their counterparts in regulatory and criminal investigations do
not face. These hurdles would essentially deprive any utility
that the emergency order process might have granted.
Additionally, early in an investigation the FBI might not have
the information necessary to request emergency certification
for a FISA business record order, not to mention the ability to
quickly work that request through the internal FBI and
Department of Justice (DoJ) review process all the way up to
the Attorney General for approval.
Moreover, based on what we already know about the FBI's use
of FISA business record orders, we question whether Attorney
General ``emergency certification'' would ever be sought. As
mentioned above, the FBI is using the FISA business records
order in only a very small number of cases--35 times in nearly
four years. This limited usage tells me that the bureaucracy
already limits the effectiveness of the FISA business records
tool. There is no reason to think a tool permitting Attorney
General emergency authorization would be any more effective.
The bottom line is that in the two years of public debate
on administrative subpoenas, we have not heard a compelling
argument why Congress should not give national security
investigators the same kind of tool we give criminal and
regulatory investigators. We cannot hold the FBI responsible
for failures to preempt terrorism and espionage if we fail to
give them every available tool permitted by our Constitution.
National security investigators should not be hamstrung by
``emergency circumstances'' requirements or be forced to use an
inadequate substitute such as an emergency FISA business
records order.
Section 202
Section 202 seems complex and difficult to understand.
Don't be fooled. It simply amends the definition of ``foreign
intelligence information'' under the FISA to clarify that the
definition includes information that is necessary to the use of
law enforcement methods, such as criminal prosecution, to
protect against certain, specified crimes--international
terrorism, sabotage, clandestine intelligence activities, and
other ``grave hostile acts''--when committed by foreign powers
and agents of foreign powers. The Committee included this
provision to ensure that the Foreign Intelligence Surveillance
Court of Review (Court of Review) opinion (In re: Sealed Case,
310 F.3d 717 (U.S. FISCR 2002)) does not prevent the use of the
FISA to collect evidence for the arrest and prosecution of an
individual when his crimes are inextricably intertwined with
foreign intelligence crimes. Even so, such law enforcement-type
use of the FISA would only be appropriate when the prosecution
of the target would protect against international terrorism,
sabotage, espionage, and ``grave hostile'' threats.
Opponents of Section 202 claim that the provision will
allow the FBI to use the FISA to collect intelligence solely
for use as evidence in the prosecution of ordinary criminal
acts. This argument is based on a misreading of the statute and
accompanying report. First, even with the adoption of Section
202, the FISA could only be used against foreign powers or
their agents engaged in foreign intelligence crimes or
activities in preparation for such crimes. Second, Section 202
has been carefully drafted--along with its accompanying
legislative history--to ensure that FISA ``foreign intelligence
information'' only includes foreign intelligence crimes and
other crimes ``inextricably intertwined'' with those foreign
intelligence crimes. For criminal prosecutions in cases
involving ordinary crimes, the Government would still have to
seek a criminal search warrant or a criminal electronic
surveillance order. These limitations prevent the Government
from using the FISA solely for the purpose of criminal
prosecution of ordinary crimes.
Opponents also claim that Section 202 ``undermin[es] the
distinction between intelligence and law enforcement''
activities allegedly contained in the FISA. This argument,
however, ignores the history of the FISA. Congress never
intended that the FISA should contain a distinction between
intelligence and law enforcement activities with regard to
foreign intelligence crimes. When the FISA was passed in 1978,
Congress made clear in the statutory language that the
Government could use foreign intelligence information in
criminal prosecutions. The distinction between intelligence and
law enforcement activities grew out of improper interpretation
and application of the FISA by the DoJ and the FISC.
The USA PATRIOT Act's ``significant purpose'' amendment to
the FISA certification requirement was meant to tear down the
``wall'' between foreign intelligence and criminal law
enforcement activities. It was an important amendment that
rejected the old DoJ and FISCinterpretations that created the
``wall'' and started the cultural change necessary to encourage
cooperation between intelligence and law enforcement. That amendment,
however, did not restore the balance Congress had originally set in
1978. The Court of Review interpreted the ``significant purpose''
amendment as potentially preventing the use of FISA information to
prosecute international terrorists or spies for those and related
crimes. In other words, the Court of Review interpreted the amendment
as another potential ``wall.'' Section 202 removes this possibility by
clearly stating that the FISA can be used when the information
collected is intended to be used for law enforcement measures that will
protect the United States from international terrorism, sabotage,
clandestine intelligence activities, and other grave hostile acts.
Thus, rather than fundamentally changing the law governing FISA
investigations, Section 202 actually restores Congress's original
intent in adopting the FISA and the ``significant purpose'' amendment.
Finally, opponents claim that Section 202 threatens ``to
create uncertainty in the currently well-established
relationship between intelligence and criminal proceedings''
and argue that the provision should be deleted from the
Committee's bill because the DoJ has not asked for the
provision. This argument simply ignores the fact that the Court
of Review itself pointed out that the ``significant purpose''
language creates a ``false dichotomy'' between intelligence and
criminal investigations. Moreover, two district courts have
already cited the Court of Review's reasoning on this issue.
When a problem like this arises, Congress doesn't have to wait
for the DoJ to request legislation before it acts. As Professor
Richard Seamon pointed out to the Committee in his letter on
this provision, ``The Department [of Justice] has been wrong
about this sort of thing before (having participated in
building the wall).'' Based on the fact that the courts are
already relying on the reasoning of the Court of Review and
given the DoJ role in erecting the original ``wall'' between
intelligence and law enforcement investigators, Congress should
act now to eliminate the risk that interpretations of the FISA
will work to the benefit of international terrorists, spies,
and others who would threaten our security.
Sunsets
During markup of this legislation, the Committee voted to
``sunset'' two of the authorities provided in the bill.
Specifically, the FISA ``lone wolf'' and administrative
subpoena authority would cease to have effect on December 31,
2009, unless reauthorized. We are generally opposed to sunsets
and do not believe that such restrictions are necessary in
these cases. ``Sunset'' provisions discount or ignore
Congress's role in overseeing the use of Executive branch
authorities. Through normal oversight activities, the Congress
is able to monitor the use of these authorities and, when
required, make any necessary changes or modifications. By
imposing sunsets, Congress also implies that these authorities
are somehow unique and, thus, require special protections. This
is not the case. As discussed above, the administrative
subpoena provision simply extends to the national security
arena a tool commonly used in criminal and regulatory
investigations. The ``lone wolf'' provision merely allows the
use of FISA physical search and electronic surveillance tools
in cases in which the Government knows the target of the search
or surveillance is a non-U.S. person engaged in international
terrorism activities, but is doing so on his own or in cases
where the Government is unable to identify for whom the
individual is working. These provisions provide common-sense
authorities that help protect Americans. We fully expect to be
reauthorizing these important authorities in four years.
Conclusion
When considering the Committee's bill, it is imperative to
keep in mind that we are dealing with the Federal Government's
ability to fulfill its primary obligation--protecting our
nation from attack and preserving our way of life. Failure to
reauthorize the expiring intelligence-related provisions of the
USA PATRIOT Act will likely result in a return to the failed
practices in place prior to the September 11 attacks.
Hopefully, Congress will do its duty and permanently authorize
these critical provisions. In going beyond reauthorization,
however, the Committee has presented the Congress with a
reasonable approach that further ensures our security by
extending to national security investigators the constitutional
tools currently available to their criminal counterparts while
also preserving the checks and balances necessary for the
protection of privacy and civil liberties.
Pat Roberts.
Orrin G. Hatch.
Mike DeWine.
Christopher S. Bond.
Trent Lott.
Saxby Chambliss.
ADDITIONAL AND MINORITY VIEWS OF SENATORS ROCKEFELLER, LEVIN,
FEINSTEIN, WYDEN, BAYH, MIKULSKI, AND CORZINE
The primary task of the Congress this year, with respect to
investigatory powers in national security investigations, is
action on renewal of sixteen USA PATRIOT Act authorities that
are scheduled to sunset, or expire, at the end of this year.
The accompanying task is to correct any defects in or otherwise
improve these provisions.
Sections 101 and 102 of the Committee bill would make
permanent nine PATRIOT Act authorities (the others are within
the sole jurisdiction of the Committee on the Judiciary), while
also extending a sunset in the recently enacted Intelligence
Reform Act for so-called ``lone wolf'' surveillance authority.
In extending that sunset, the Committee accepted a proposal
advocated by Senator Corzine that the Department of Justice
should gain further experience under this new authority before
Congress determines whether to make it permanent.
Section 211 of the Committee bill--by remedying some of the
problems with Section 215 of the PATRIOT Act pertaining to
orders by the Foreign Intelligence Surveillance Court for
business records--is a step in the right direction toward
accomplishing the second task. Also, Section 216 of the
Committee bill, by increasing the maximum duration of certain
Foreign Intelligence Surveillance Court orders, improves the
FISA process by enabling Department of Justice personnel and
the FISA Court to devote attention to new applications and
other urgent matters.
However, the Committee bill goes beyond these core tasks.
Notably, it adds a wide-ranging ``administrative subpoena'' to
the Attorney General's and the FBI's broad powers in national
security investigations. This significant new investigative
authority and other proposed additions or changes to present
law, as these additional views explain, are problematic and may
even be damaging to our national security protections.
1. Administrative Subpoenas
The bill proposes to add a new title to FISA to authorize
the issuance of administrative subpoenas for production of
records. The expressed justification for administrative
subpoenas--which would not be reviewed by a court unless
challenged by the recipient of the subpoena or if there is an
enforcement action--is that they may be needed in emergency
circumstances when alternative means for obtaining information
might result in unacceptable delay.
Congress has granted subpoena authority to many agencies
that exercise economic or other regulatory powers. Several
enactments, in recent years, have provided subpoena authority
to the Attorney General in controlled substances, health fraud,
and child pornography cases, and to the Secretary of the
Treasury in matters involving imminent threats to persons
protected by the Secret Service. Three of these measures,
collected in 18 U.S.C. Sec. 3486, contain important checks on
the Government's use of that authority. None is as potentially
vast in scope as the proposal to make this power available in
national security investigations. Moreover, in none of these
other matters had Congress already provided for an array of
other powers, as it has done for intelligence investigations,
including for a special court--the Foreign Intelligence
Surveillance Court--whose sole mission concerns the grant of
investigative powers.
When testifying before the Committee, the FBI could not
document significant past or current instances when national
security investigations faltered or were hindered due to lack
of an administrative subpoena authority. The FBI argued that
such a circumstance could exist in the future when immediacy
might dictate moving quickly with a subpoena for records
without prior judicial review. This may be true, but based on
both demonstrated and anticipated need, the use of any such
authority without prior review should be the exception, not the
rule.
Notwithstanding the desire of the Administration for
additional authority, the responsibility of Congress is to
determine if there is a convincing need that justifies
departure from the careful methodology of the Foreign
Intelligence Surveillance Act. As part of that assessment,
Congress should consider whether any such need is not met by
the array of other authorities now available for obtaining
business records in national security investigations, including
through National Security Letters and grand jury subpoenas. If
there is such a need, particularly a need that goes beyond
emergencies, it has not been demonstrated in the legislative
record presented to the Committee by the Department of Justice
or established by the Committee's own factual inquiry. On the
present record, all that Congress has is the Administration's
wish for more.
By one vote, the Committee rejected an amendment by Senator
Feinstein (set forth in the appendix to these views) to limit
administrative subpoena authority to emergency use. It would
have authorized administrative subpoenas upon the certification
of the Attorney General or FBI Director, or their designees,
that (1) it is impracticable to obtain in a timely fashion, by
an order of the FISA Court or other means, the records or
materials required and (2) there is a reasonable belief that
there is an emergency need for the records or materials in
order to protect against terrorism. The amendment would also
have required approval from a U.S. Attorney or an Assistant
Attorney General prior to issuance of an administrative
subpoena, rather than at the sole discretion of an FBI Special
Agent in Charge. To facilitate rapid action, approval could be
oral as long as it is reduced to writing as soon as possible.
The Feinstein amendment would tailor administrative subpoena
authority to the need presented by the Administration: the
occasional emergency when it is impractical to obtain a FISA
Court order or other enforceable demand such as a grand jury
subpoena.
In our view, absent an emergency, maintaining pre-issuance
judicial review of requests for orders to produce business
records is an important check against potential abuse in the
investigative process. The Administration acknowledges that the
FISA Court has worked well and efficiently in reviewing
subpoena requests. Unless changed, the bill effectively puts
the court out of business with respect to business records, and
puts the current subpoena authority of the court in the hands
of the investigators. This is not necessary, justified, or
wise.
The Committee also rejected by a one-vote margin an
amendment by Senator Levin (also set forth in the appendix to
these views) to establish a procedure to assess the continuing
need, in individual cases, for nondisclosure requirements. The
Committee's bill provides that disclosure of the receipt of an
administrative subpoena--other than to persons necessary to
carry out production of records, an attorney, or other persons
as permitted by the FBI--is prohibited if the Attorney General
or a designee certifies that a danger to national security may
result. The bill also provides for criminal penalties for
knowing violation of this prohibition. The length of the ban is
not limited. It could prevent the recipient of a subpoena from
exercising First Amendment rights to protest government action,
including by bringing abuses to the attention of members of
Congress or Inspectors General.
We recognize the importance of requiring nondisclosure in
some cases, but any such requirement should be subject to
judicial review. Senator Levin's amendment would have provided
for periodic review of the nondisclosure requirement, enabling
the FBI to extend the nondisclosure ban for repeated 90 day
periods upon a showing to a court that a danger to national
security may result. A similar provision exists in current law
on criminal administrative subpoenas, 18 U.S.C. Sec. 3486,
which provides that nondisclosure orders issued by district
courts last for ninety days subject to renewal.
While the appropriate length of time between the review of
orders is open to discussion, the essential point of the
amendment, which we strongly support, is that the combination
of factors in the Committee's bill--a limitation on speech that
is potentially for life and enforced by criminal penalties--
makes it imperative that there at least be periodic court
review of the requirement that a citizen or company remain
silent about the receipt of a governmental subpoena.
2. Section 215 of the PATRIOT Act
The ability of intelligence as well as law enforcement
investigators to obtain relevant records expeditiously is
critical. They may provide information that enables
investigators to pinpoint more exactly what additional
investigatory tools are necessary. Legally enforceable demands
for records--whether they be called orders or subpoenas--also
allow investigators to obtain information in a manner that is
less intrusive than electronic surveillance or physical
searches.
Section 215 of the PATRIOT Act (which amended Title V of
the Foreign Intelligence Surveillance Act) significantly
expanded the Government's ability to obtain ``tangible
things,'' including records, in international terrorism and
other national security investigations. In doing so, the broad
reach of Section 215 has prompted a great deal of concern about
the potential overreaching of Government demands.
The amendments reported by the Committee address some key
concerns about Title V, as amended by Section 215. First, the
amendments make explicit that the Government's application to
the Foreign Intelligence Surveillance Court, for an order to
obtain business records or other tangible things, must be for
items that are ``relevant'' to a foreign intelligence
investigation. Bolstering that requirement, the Committee's
bill also provides, as advocated by Senator Wyden, that the
application to the court ``shall include an explanation by the
applicant that supports the assertion of relevance.''
The Committee's bill addresses one aspect of the
nondisclosure regime established by Title V of FISA. As amended
in 2001 by Section 215 of the PATRIOT Act, Title V provides
that no person shall disclose to any other person, other than
persons necessary to produce the things required by an order,
that the FBI has sought or obtained things under the section.
The Attorney General told the Committee that he supports a
clarification in Title V that permits disclosure to an
attorney. The bill, accordingly, makes clear that the recipient
of an order for production of records may disclose the order to
an attorney to obtain legal advice or assistance.
While no amendment was offered in Committee to address
other aspects of Title V's nondisclosure requirement, the
reasons warranting periodic review of the related nondisclosure
requirement for administrative subpoenas also apply to Title V
and merit the attention of Congress as it considers amendments
to that title.
In accord with the Attorney General's further
representation to the Committee, the bill also provides
explicitly for judicial review. Following receipt of an order
to produce, but before production, the recipient of the order
may petition the Foreign Intelligence Surveillance Court to
modify or set it aside. In recognition that the Government's
response may include classified information, the bill provides
that the court shall first review the Government's submission
ex parte and in camera. Of course, those parts of the
Government's submission that are neither classified nor
otherwise law enforcement sensitive should then be provided to
the applicant without restriction. The bill also provides that
protected information, if necessary to make an accurate
determination about the reasonableness or oppressiveness of the
order, could be provided to the applicant under appropriate
security procedures and protective orders.
By a margin of one vote, the Committee rejected an
amendment (also set forth in the appendix to these views) that
would have conformed Title V to a key aspect of other major
titles of the Foreign Intelligence Surveillance Act. Every
other title establishing a method of obtaining foreign
intelligence information--Title I on electronic surveillance,
Title III on physical searches, and Title IV on pen registers
and traps and traces--provides for exercise of emergency power
by the Attorney General. These provisions permit the Attorney
General to act when an emergency requires immediate action.
The amendment, offered by Vice Chairman Rockefeller,
adhered closely to the emergency provisions in FISA's other
titles. If an emergency requires production before a FISA Court
order can be obtained, the amendment would authorize the
Attorney General to issue an order for production that has the
same effect as an order issued by the FISA Court. The safety
check on the Attorney General's power is that at the time of
issuing that order the AttorneyGeneral would be required to
notify the FISA Court (as the Attorney General must do for emergency
use of other FISA powers) and then apply ``as soon as practicable'' for
a judicial order requiring production. If the application is granted,
the Attorney General may continue to use the information obtained under
his emergency order. If the application is denied, then the information
obtained under the order may not be used.
In sum, under the Rockefeller amendment the Attorney
General would be able to act rapidly in an emergency as long as
the court is notified and a process, leading to an
authoritative ruling of the court, is begun as soon as
practicable. In that way, FISA would protect--as it does for
electronic surveillance, physical searches, and pen registers--
the ability of the Attorney General to act with dispatch while
ensuring prompt judicial review. The amendment merits adoption
in the course of the Senate's consideration of this bill.
One argument offered in Committee against adding emergency
authority to Title V of FISA is that this authority is
unnecessary in light of the administrative subpoena power that
the bill would grant to the Attorney General. Whether Congress
will create a new administrative subpoena authority is, at the
present time, only speculative. Title V of FISA is not
speculative. It exists. It can and should be improved.
But even if Congress does establish a new administrative
subpoena authority, the Department of Justice may conclude, in
particular cases, that it advances the Government's interest in
the efficient investigation of national security matters to
proceed under Title V, including by means of emergency record
production orders. For example, emergency orders under Title V
may relate closely to other orders in an investigation, such as
for electronic surveillance or pen registers. Under the
administrative subpoena section of the Committee's bill, legal
challenges to those subpoenas may occur in district courts
around the country rather than in the Foreign Intelligence
Surveillance Court, depending on who goes to court first. By
proceeding under Title V, the Government can ensure that all
matters about a particular investigation are handled by one
court. The Rockefeller amendment would enable the Government to
have both an emergency record authority and the ability to
consolidate judicial proceedings in one court.
3. Change in Definition of ``Foreign Intelligence Information''
Section 202 of the bill amends the definition of ``foreign
intelligence information'' in Title I of the Foreign
Intelligence Surveillance Act (FISA). As the definition in
Title I of ``foreign intelligence information'' is also the
definition used in other titles of FISA--on physical searches,
pen registers and traps and traces, and orders for the
production of business records and other tangible things--the
amendment to the definition will have an impact on all the
investigative methods authorized by FISA.
Section 202 alters the definition of ``foreign intelligence
information'' by providing that the term includes ``protection
[of the United States] by use of law enforcement methods such
as criminal prosecution.'' Law enforcement methods such as
criminal prosecution are key methods of protecting the United
States. The question, however, is whether this change in
definition would muddy or even jeopardize a salient achievement
of the PATRIOT Act, namely, the ``significant purpose'' test in
Section 218.
Section 218 eliminated the prior test, known as the
``primary purpose'' test, that had been applied by courts and
the Department of Justice before the PATRIOT Act. That test had
required that the ``primary purpose'' of FISA collection had to
be obtaining foreign intelligence information rather than
evidence of a crime. As described by the Department of Justice
in a report to the Committee on April 1, 2005, Section 218
eliminated the primary purpose test by allowing FISA electronic
surveillance or physical searches to be authorized if foreign-
intelligence gathering is a ``significant'' purpose, thereby
eliminating the need for the courts to compare the relative
weight of the ``foreign intelligence'' or ``law enforcement''
purpose of the search.
But while a foreign intelligence purpose need not be
dominant, the ``significant purpose'' test requires that there
be at least ``some'' such purpose. The Foreign Intelligence
Surveillance Court of Review recognized this when it declared:
``Of course, if the court concluded that the government's sole
objective was merely to gain evidence of past criminal
conduct--even foreign intelligence crimes--to punish the agent
rather than halt ongoing espionage or terrorist activity, the
application should be denied.'' In re: Sealed Case, 310 F.3d
717, 735 (U.S. FISCR 2002).
The provision of the bill, which was retained at markup by
only one vote, would negate that holding of the Foreign
Intelligence Surveillance Court of Review and gut the
``significant purpose'' test in Section 218 by allowing the use
of foreign intelligence powers when the sole purpose is to gain
evidence of past crimes. By doing so, this provision of the
Committee bill could invite a challenge to the
constitutionality of FISA based on the argument that if the
sole purpose of a FISA order is to obtain evidence of a past
crime then the courts must decide whether FISA satisfies the
warrant clause of the Fourth Amendment.
The Administration has not requested that Congress change
the definition of ``foreign intelligence information.'' Neither
the Attorney General nor the FBI Director, in their appearance
before the Committee, suggested a desire to change the
definition of foreign intelligence information. There has been
no showing, in any open or closed setting, that the present and
longstanding definition of foreign intelligence information has
impeded a single foreign intelligence investigation or criminal
prosecution. Nor did the FBI inform Senator Feinstein, in her
discussions with the Bureau about her amendment, that it
opposed her amendment to strike the provision.
A former Department of Justice official whose service
included the current Bush Administration and who was called by
the Committee in anticipation that he would address this
matter, cautioned:
First, Section 203 of the Committee's bill would
further expand governmental power at a time when the
Department of Justice itself has not asked for
broaderauthority. Second, a related point, I fear that any operational
benefit from the amendment would not justify the resulting cost in
uncertainty about the state of the law. (Testimony of David S. Kris,
former Deputy Associate Attorney General, May 24, 2005.)
The Section 203 referred to in Mr. Kris's testimony is Section
202 of the bill as reported.
Not only has the change in the definition of foreign
intelligence information not been requested by the
Administration, but the Administration has not brought to the
Congress's attention any problem with information sharing
created by either the PATRIOT Act or the Foreign Intelligence
Court of Review decision. To the contrary, as is well known,
the Attorney General and the FBI Director credit the PATRIOT
Act and the Foreign Intelligence Surveillance Court of Review
decision with helping to bring down the ``walls'' that blocked
coordination and cooperation among intelligence and law
enforcement officials in the past.
At best, Section 202 of the bill is intended to correct a
hypothetical problem. Moreover, the hypothetical is unlikely to
arise. It would require a situation in which the Government had
sufficient information to demonstrate probable cause that an
individual is an agent of a foreign power but has no present
interest in the foreign intelligence information that would be
collected by a FISA surveillance or physical search of that
individual.
Thus, Section 202, which will bring uncertainty to a
critical area of the law, addresses neither a realistic nor a
demonstrated need. It should be deleted.
4. Roving Wiretaps
Senator Levin offered an amendment that would have required
roving electronic surveillance orders under FISA to include a
description of the target of the surveillance ``sufficiently
specific to give some confidence'' that the person surveilled
is actually the same target for whom the court found probable
cause to believe is an agent of a foreign power. The amendment
sought only to establish in law what we understand to be
current Justice Department practice. Adoption of the amendment
would have helped improve public confidence that the government
will not be listening in on the private conversations of
innocent Americans using roving FISA wiretap orders.
Unfortunately that amendment was defeated, by a margin of one
vote.
Roving wiretaps permit electronic surveillance of people
who may be taking steps, such as switching cell phones or using
multiple pay phones or computer terminals, to evade electronic
surveillance at a particular location. Under criminal law, an
application for a roving wiretap must identify the person
against whom the wiretap is sought and make a showing that
there is probable cause to believe that the actions of that
person could have the effect of thwarting interception from a
specific facility. Under criminal law, a judge may issue a
roving electronic surveillance order if he or she determines
that such a showing has been adequately made. Under FISA, the
FISA Court judge must issue an order if he or she finds
probable cause, based on the application, that, in addition to
other requirements, the target of the electronic surveillance
is a foreign power or an agent of a foreign power. The judge's
order authorizing the surveillance must specify the identity of
the target only if that identity is known. If it is not known,
the order need only contain a description of the target.
In an unclassified portion of a May 24, 2005 letter from
the Department of Justice to the Chairman, the Department
stated that under FISA:
the target of roving surveillance must be identified or
described in the order of the FISA Court, and if the
target of the surveillance is only described, such
description must be sufficiently specific to allow the
FISA Court to find probable cause to believe that the
specified target is a foreign power or an agent of a
foreign power. As a result, section 206 is always
connected to a particular target of surveillance.
(Emphasis added.)
Requiring in law, as the Levin amendment sought to do, that
FISA electronic surveillance orders be sufficiently specific
would be entirely consistent with the Department's statement.
5. Mail Cover
In the 1970's, both a presidential commission (chaired by
Vice President Nelson Rockefeller) and a Senate select
committee (chaired by Senator Frank Church) brought to light
significant abuses by government agencies concerning intrusive
examination of the mail. To meet the twin goals of ending
abuses while providing federal and state investigators with
access to information that can be gleaned from examining
envelopes, but not reading the content of sealed letters
without appropriate judicial warrants, the Postal Service
promulgated regulations. These regulations have been in place
for thirty years.
While the Committee has not held a hearing on mail cover
issues, its report identifies a few shortcomings with the
regulations. In response, the Committee's bill proposes an
entire new title of FISA to govern the examination of mail
covers. It is not at all clear why legislation is needed. The
several issues identified in the Committee report concerning
the regulations can be addressed expeditiously by two agencies
of the federal government--the Department of Justice and the
Postal Service--working together cooperatively to amend the
regulations or improve practices to the extent required. It is
our hope that those efforts will begin promptly. If successful,
they may obviate the need for legislation.
------
For some of us, problems in the Committee bill, several of
which would have been remedied by the amendments described
above, were sufficient to warrant a ``no'' vote on the bill.
For others of us, a ``yes'' vote was warranted by the
importance of proceeding further in the legislative process
with a bill that includes the renewal of PATRIOT Act
authorities and modifications that correct some of the present
defects in the law. All of us are united in the conviction that
improvements in the bill are essential before final passage.
Adoption of the amendments described above would be an
important step toward achieving a bill that provides a long-
term basis for effective national security investigation
authority within the boundaries of our Constitution and values.
John D. Rockefeller IV.
Carl Levin.
Dianne Feinstein.
Ron Wyden.
Evan Bayh.
Barbara A. Mikulski.
Jon S. Corzine.
APPENDIX--TEXT OF AMENDMENTS
----------
ADDITIONAL AND MINORITY VIEWS OF SENATORS ROCKEFELLER, LEVIN,
FEINSTEIN, WYDEN, BAYH, MIKULSKI, AND CORZINE
1. Amendment Proposed by Senator Feinstein on Emergency Use of
Administrative Subpoenas
[To be inserted in Committee bill, as reported, as a new
Section 802(d)]
(d) Requirement for Emergency Use.--A subpoena may be
issued under this title only after the Attorney General, or a
designee of the Attorney General, or the Director of the
Federal Bureau of Investigation, or a designee of the Director
in accordance with subsection (a), certifies, whether in
writing or orally (and if certified orally, then reduced to
writing as soon thereafter as possible), that--
(1) it is impracticable to obtain in a timely fashion
the records or materials to be required to be produced
by such subpoena pursuant to a subpoena or order issued
by the Foreign Intelligence Surveillance Court under
other provisions of this Act or pursuant to other
means; and
(2) there is a reasonable belief that there is an
emergency need for such records or materials in order
to protect United States persons against terrorism.
(b) Review and Approval.--A subpoena may be issued under
this title only after the review and approval, whether orally
or in writing, of the subpoena by any of the following:
(1) The Attorney General.
(2) The Deputy Attorney General.
(3) The Associate Attorney General.
(4) An Assistant Attorney General, including an
acting Assistant Attorney General.
(5) A United States Attorney.
2. Amendment Proposed by Vice Chairman Rockefeller on Emergency FISA
Record Authority
[To be inserted in the Committee bill, as a new Section
211(b), with present subsections (b)-(e) renumbered
accordingly]
(b) Emergency Access.--
(1) Notwithstanding any other provision of this
section, when the Attorney General reasonably
determines that--
(A) an emergency situation exists with
respect to the production of tangible things
for an investigation described in subsection
(a) before an order authorizing production of
such tangible things can with due diligence be
obtained; and
(B) the factual basis for the issuance of an
order under this section to approve production
of such tangible things exists,
the Attorney General may issue an order requiring production of
such tangible things, which order shall have the same effect as
an order issued by the court established by section 103(a), if
a judge having jurisdiction under section 103 is informed by
the Attorney General, or a designee of the Attorney, at the
time of the issuance of such order that the decision has been
made to require production of such tangible things under this
subsection and an application in accordance with this section
is made to that judge as soon as practicable thereafter.
(2) In the event that an application under paragraph
(1) is denied, or in any other case where no order is
issued by the court established by section 103(a)
approving access to tangible things, no information
obtained or evidence derived from the production of
tangible things under paragraph (1) shall be received
in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court,
grand jury, department, office, agency, regulatory
body, legislative committee, or other authority of the
United States, a State, or political subdivision
thereof, and no information concerning any United
States person acquired from the production of tangible
things under paragraph (1) shall subsequently be used
or disclosed in any other manner by any officer or
employee of the Federal Government without the consent
of such person, except with the approval of the
Attorney General if the information indicates a threat
of death or serious bodily harm to any person.
(3) The denial of an application under paragraph (1)
may be reviewed as provided in section 103.
3. Amendment Proposed by Senator Levin on Administrative Subpoena
Nondisclosure Requirements
[To be inserted in the Committee bill, as reported, as new
paragraphs (3) and (4) of Section 802(b)]
(3) Limitation on duration of nondisclosure
requirements.--Except as provided in paragraph (4), the
prohibition on disclosure under subsection (a) with
respect to a subpoena under section 802 shall expire 90
days after the date of the issuance of the subpoena.
(b) Extension.--The Foreign Intelligence Surveillance
Court, or the United States district court in which a person or
entity subject to a prohibition on disclosure under subsection
(a) resides or does business, may, upon application by a person
authorized to issue a subpoena under section 802, extend a
prohibition on disclosure under subsection (a) with respect to
a subpoena issued under section 802 for one or more additional
periods of not more than 90 days upon a showing by the
applicant that a danger to the national security of the United
States may result from disclosure that such subpoena was
received or records were provided pursuant to this title. Each
extension for a period under this paragraph shall require a new
application under this paragraph.
ADDITIONAL VIEWS OF SENATOR MIKULSKI
Introduction
Following the tragedy of September 11th, it was critical to
provide law enforcement in the United States with the tools it
needed to effectively fight the war on terror. Our
intelligence, counterterrorism and counterintelligence experts
needed new authorities to protect our country, our people and
our treasured allies.
It is our goal to stop terrorists in their tracks and to
keep our citizens safe. But we must do so while providing
appropriate checks and balances which protect the fundamental
constitutional rights on which this nation was founded.
We struck that balance in the PATRIOT Act by providing law
enforcement with greatly expanded powers while also creating
sunsets for the most controversial powers. We realized the
potential for abuse in creating these broad new provisions and
it was our constitutional responsibility to make sure that
these new authorities were not abused or misused. That's why
sunset provisions are so important.
This reauthorization is using the opportunity of the
sunsets to review how the PATRIOT Act has been used and how it
can be improved. There are features of the bill being reported
out by the Intelligence Committee that I agree with. However, I
have several serious concerns about some of the provisions,
including most importantly the failure to include sunsets which
would allow us to conduct future periodic reviews. We must have
sunsets and we must review how these new powers are being used
or misused.
I'm also concerned with the dramatic expansion of power to
conduct intelligence gathering solely for criminal
prosecutions. The administration did not even ask for such
sweeping new authority. The bill also grants administrative
subpoena power without appropriate limitations. These
provisions greatly expand current authorities and how
intelligence investigations are conducted. I believe that
changes to this bill are necessary and that any unlimited
extension of controversial provisions should be fully debated
in the sunshine and decided by the full Senate.
Sunsets Are Essential
This bill makes permanent the original provisions that were
set to sunset at the end of this year. Law enforcement agencies
say that these tools are needed to gather intelligence to fight
the war on terror. I take very seriously the needs of law
enforcement and the need to fight terrorism. But, I am
concerned that some of these provisions are too broad and that
we need to add appropriate checks on the powers. We need to
know the specifics about how and when they are being used and
whether they are impacting the constitutional rights of
Americans.
I believe that we do not need to make these provisions
permanent--extending the sunsets of these provisions for
another four years does no harm. It provides law enforcement
with the ability to use all the same tools that they now have
under the PATRIOT Act. At the same time, it provides for
oversight and requires the Congress to periodically review how
the powers are being used. We need to know how often they are
being used, in what context, and who is impacted.
Extending the sunsets for four more years allows this
expansion of power to be checked to ensure that it is not
undermining fundamental constitutional protections.
Keep the Significant Purpose Test for Investigations
The PATRIOT Act provided law enforcement with broad
authority to conduct surveillance and searches where collecting
foreign intelligence was the ``significant purpose'' of the
investigation. This broad authority has worked well.
Both Attorney General Gonzales and FBI Director Mueller
have praised the ``significant purpose'' standard and the
administration has not requested any change to the standard.
Yet, this bill would change the PATRIOT Act to allow the
collection of intelligence solely for the use as evidence in a
criminal prosecution.
This unrequested change is unnecessary and unwise. Indeed,
Senator Feinstein has indicated that the FBI did not object to
her amendment to strike this provision, which I supported. This
change will create uncertainty between the criminal law and
intelligence gathering fields where guideposts are already well
established and working well.
Administrative Subpoenas Should be for Emergencies
The Administration has argued that it needs the authority
to issue administrative subpoenas because of emergency
situations. But, this legislation adds far-reaching
administrative subpoena powers that are not limited. There is
no need for such broad authority and the potential for abuse of
constitutional rights is too great. I cannot support such
unrequested and unlimited power.
I understand that we need to make sure there are no
obstacles when immediate action is needed to prevent a
terrorist attack or the loss of life. Therefore, if the power
to issue administrative subpoenas is included in this bill, it
must be limited to exigent or emergency circumstances only.
Conclusion
I believe that the Senate has a lot of work to do as this
bill moves forward. This bill adds some provisions for checks
and balances and judicial review--but more are needed. Law
enforcement must have the tools they need to fight the war on
terror. But, we must also protect the role of our federal
courts to make sure that there is no abuse of power.
We need to strike the appropriate balance--protecting
national security while protecting constitutional rights.
Barbara A. Mikulski.
ADDITIONAL AND MINORITY VIEWS OF SENATORS CORZINE, LEVIN, WYDEN, AND
MIKULSKI
The current legislation, by permanently repealing the
sunset on Section 215 of the USA PATRIOT Act, unnecessarily
preempts a critical review of and debate on the impact of this
controversial and far-reaching provision. We believe that the
sunset should be extended for another four years, through
December 31, 2009.
Simply repealing the sunsets included in the USA PATRIOT
Act deprives Congress and the American people the opportunity
to fully explore the implications of the law. The sunset on
Section 215, which provides broad authority to seek business
records, including from libraries, booksellers and medical
practitioners, through FISA, is particularly important. Of all
the new authorities provided in the USA PATRIOT Act, Section
215 has generated the most public concern. The FISA court
operates in secrecy and the targets of Section 215 warrants are
unlikely to ever learn that their records have been sought. The
sensitivity of the information subject to a Section 215 warrant
and the lack of public information about how the provision has
been used have prompted calls for a public debate about how
both to combat terrorism and protect civil liberties.
On April 5, 2005, in apparent response to these concerns,
the Attorney General publicly announced that Section 215 had
been used 35 times, and never for libraries or booksellers, or
to obtain medical or gun records. While we welcome this
disclosure, we note that this one-time, discretionary
declassification came only as Congress was considering the
reauthorization of Section 215. An extension of the sunset will
encourage further disclosures, which serve to reassure the
American public that one of the most controversial and far-
reaching provisions of the USA PATRIOT Act have not been
abused.
Over the next four years, Congress will be reviewing
critical information related to the use of Section 215. New
reporting requirements in the current legislation cover the use
of Section 215 to obtain records on the sale, rental or
delivery of books and other reading material, firearms, health
information, and tax returns. The legislation also requires a
report on ``discreet inquiries,'' a method through which the
FBI has sought certain business records, including from
libraries, without a FISA warrant. While we do not discourage
informal information-gathering efforts, the frequency with
which such inquiries are made, the kind of information sought,
and the targets involved are relevant to whether Congress
should permanently enact Section 215.
While the information released by the Attorney General on
April 5 suggests a judicious use of Section 215 to date, it
does not provide any check on how this power will be employed
in the future. The Intelligence Community is currently in flux,
with the recent confirmation of the Director and Deputy
Director of National Intelligence and the creation of the
National Counterterrorism Center (NCTC). The FBI faces a myriad
of challenges as it redirects its resources toward preventing
terrorism, from information technology to a much-needed
cultural shift within the Bureau. Under these circumstances, it
is far too early to project how the broad authorities conferred
by the USA PATRIOT Act may be used in the future.
Perhaps most importantly, the very institution mandated by
Congress to oversee these new authorities has yet to be
established. The Privacy and Civil Liberties Board, established
in the Intelligence Reform and Terrorism Prevention Act of
2004, is responsible for overseeing the implementation of laws
related to protecting the nation against terrorism. Before
Section 215 becomes a permanent authority, without the
Congressional and public scrutiny that comes with a sunset, it
is critical that the Board be in place to monitor its use.
Finally, we note that the current legislation modifies
Section 215. These modifications, which include a ``relevance''
standard and new provisions related to disclosure, represent an
ongoing Congressional debate about the extent and limits of the
authorities provided by Section 215. If they are passed into
law, it will be critical that Congress review how they are
used, how they effect the overall implementation of Section
215, and whether further modifications are necessary. In this
context, the permanent repeal of the sunset is unwarranted.
Congress as well as the American people should continue the
public dialogue over the expansive powers given to the FBI
under the USA PATRIOT Act and how to combat terrorism while
protecting the basic rights of all Americans. By seeking to
extend the sunset on Section 215, we encourage that dialogue.
Jon S. Corzine.
Carl Levin.
Ron Wyden.
Barbara A. Mikulski.
MINORITY VIEWS OF SENATOR FEINSTEIN
Although I support the reauthorization of the sunsetting
provisions of the PATRIOT Act, I cannot support the legislation
in its present form. This legislation contains two provisions
that vastly expand current authorities and greatly expand the
power of the Federal Bureau of Investigation in conducting
intelligence investigations and prosecuting criminal activity.
It is disappointing that the majority has refused to accept
amendments to place reasonable limits on these new authorities.
Section 202 of the Committee's legislation presents a
fundamental change to the laws governing investigations
conducted under the Foreign Intelligence Surveillance Act
(FISA). The addition of criminal prosecutions to the definition
of ``foreign intelligence information'' allows, for the first
time ever, the FBI to use FISA to collect intelligence solely
for the use as evidence in a criminal prosecution. This change
would undermine current law, passed as part of the PATRIOT Act
in 2001 that requires the FBI to articulate a significant
intelligence purpose in conducting any FISA investigation. This
standard has been praised by Attorneys General Ashcroft and
Gonzales and by FBI Director Mueller as a key component to
their ability to fight the war on terror.
There has been no request by the Administration for this
change to the law, and the FBI did not object to my amendment
to strike this language. Section 202 of this legislation
undermines the significant purpose test, removes the
distinction between intelligence and law enforcement operations
within the FBI, and threatens to create uncertainty in the
currently well established relationship between intelligence
and criminal proceedings.
Section 213 of this legislation authorizes the FBI to issue
administrative subpoenas to compel information on anything that
can be claimed relevant to an ongoing investigation. This
authority can be delegated to an FBI field office without check
of a Department of Justice attorney or prior court approval, as
is currently required for FISA Business Records requests. As
approved by the Committee, this provision would amount to a
fishing license of unprecedented proportions.
My amendment to Section 213 would have made two modest but
critical changes to this provision: it would have limited the
use of administrative subpoenas to emergency situations where
life was on the line--which was the only case where the
Administration has claimed a need for this authority; and the
need for approval (even if done over the phone) by a U.S.
Attorney or Department of Justice official.
Proponents of the intelligence administrative subpoena
point out that there are already 335 different cases where the
federal government has subpoena authority. Very few of these
cases involve the Department of Justice, and none pertain to
intelligence. More importantly, in those cases, a crime has
taken place and a subpoena has to hold up to scrutiny in court.
In the intelligence regime, a record just has to relate to
something that might happen in the future. There will almost
never be any court review, and when there is, the government
can argue its case in secret. In fact, the party being issued
with the subpoena will almost never be able to disclose the
very existence of the subpoena. In these cases, when the
government is exercising its authorities behind closed doors,
we should be requiring extra safeguards to protect civil
liberties, not fewer.
Finally, I supported and regret the defeat of Vice Chairman
Rockefeller's amendment to provide the Attorney General with
emergency powers under FISA to demand access to business
records. This would not have replaced the administrative
subpoena authority in the legislation, and would simply have
provided emergency use authority as is already on the books for
electronic surveillance and physical searches under FISA.
It appears that if administrative subpoena authority is
enacted, the FBI will find it an easier mechanism for obtaining
records than the FISA Business Records authority provided under
the PATRIOT Act. It is thus irrelevant that the Committee has
included good legislation to improve these FISA statutes as the
authority will not be used. I find it alarming that the
Committee has chosen to replace, in effect, the most
controversial element of the PATRIOT Act with a far broader
subpoena authority subject to fewer checks on abuse.
In short, the Committee's legislation strays from the well-
crafted and working balance struck in the PATRIOT Act. The
provisions in Sections 202 and 213, neither of which had strong
Administration support or justification, make fundamental
changes to the way intelligence investigations are authorized
and conducted. Both raise serious questions that need to be
answered before this legislation is passed by the Senate.
Dianne Feinstein.
MINORITY VIEWS OF SENATORS WYDEN AND CORZINE
There are a number of provisions in this legislation that
give cause for concern. Perhaps the most troubling, however, is
section 213, which gives the FBI unprecedented, excessively
broad authority to write its own administrative subpoenas.
We are opposed to giving the FBI authority to write
administrative subpoenas for foreign intelligence
investigations. The Bureau failed to make the case for such new
power and giving the FBI the authority to demand just about
anything from anybody, with no independent check, simply by
claiming that it is ``relevant'' to a national security
investigation would lead us down a very dangerous path.
Citizens have a right to feel secure that their government is
not spying on them or soliciting information secretly without,
at a minimum, authorization from a grand jury, federal judge,
or the Foreign Intelligence Surveillance Court.
The FBI already has access to the waterfront of personal
information through the Foreign Intelligence Surveillance Act,
or FISA warrant process. All it has to do is go before a judge
and explain why the information is relevant. By giving the FBI
the authority to write its own administrative subpoenas, we
would be removing even this last, modest safeguard.
Administrative subpoenas are currently used by many federal
agencies in many different contexts--from investigating labor
and environmental violations to criminal investigations.
However, administrative subpoenas are extremely limited in
application and use. Congress has explicitly limited the
authority of the FBI to issue administrative subpoenas and set
specific limits on what type of information the FBI could
obtain and from whom. And the FBI is held firmly accountable,
under all of the administrative subpoena powers presently held
by the Bureau, to grand juries and federal courts of law, which
ultimately review the issuance of such subpoenas.
Except in a few very limited cases, administrative
subpoenas are not used for national security investigations.
That is because national security investigations are different
from criminal investigations. They are conducted in secret, and
do not require evidence of a crime. This is why there are
different rules for the two types of investigations. Ignoring
the distinction between the two is both inappropriate and
unwise.
As proposed, these subpoenas would be incredibly broad in
scope. They could be used to gain access to citizens' credit
records, video rentals, medical records, gun purchases--
effectively, they could be used to obtain just about anything.
And they would be used to obtain this information without the
knowledge, perhaps ever, of the individuals whose records are
seized.
These subpoenas would only be seen by a judge if the
recipient of the subpoena decided to challenge it. Even if the
recipient was properly notified of his or her right to
challenge, they might not have the time or resources to do so.
For example, there are 56 FBI Field Offices--one in almost
every major American city. The head of the local field office
could issue an administrative subpoena to a hospital director
and ask for all the hospital's medical records, simply by
claiming that the records were relevant to an investigation. It
will be difficult, if not impossible, for a third party such as
a hospital to know whether the subpoena was issued reasonably.
And it is extremely unlikely that third party record holders
would challenge the issuance of national security
administrative subpoenas. Consequently, patients would not even
know their records had been seized. They would be totally in
the dark.
Even the FBI acknowledges that it can get all the
information it could possibly need with the investigative
powers it currently has. The only reason the FBI has suggested
for supporting administrative subpoenas is speed. It says that
the FISA warrant process is sometimes too slow for time-
sensitive emergency situations.
There were several amendments filed by the minority side
that would have addressed the FBI's concern for speed without
jeopardizing the privacy of law-abiding Americans. The simplest
way to do this would be to modify the FISA statute to provide
for emergency circumstances.
Creating an emergency provision under FISA would give the
FBI adequate authority to respond to emergency situations,
which the FBI concedes would be very rare, without giving the
Bureau unnecessarily broad powers that could be used for
fishing expeditions, or without any showing of law-enforcement
need.
The emergency provision would give the Attorney General the
authority to declare that particular business records are
needed immediately to respond to an emergency situation. Under
these circumstances, the FBI could notify a judge that it is
serving an emergency warrant, and then make a more detailed
application after responding to the emergency. For example, if
the FBI learned that a group of terrorists was preparing for an
attack and had rented a car at a particular location, the
Attorney General could declare that this was a time-sensitive
emergency. Then the FBI could notify a judge that it is serving
an emergency warrant on the rental car agency, and demand that
the agency give the Bureau descriptions and license numbers of
all the cars the terrorists rented that morning. After the FBI
had responded to the emergency, it would have to go back to the
judge and formally apply for the warrant. If there was a case
where the judge decided that the FBI had acted inappropriately,
and refused to grant the warrant, then the agents would be
prohibited from using or divulging the information that they
had taken.
It is essential for the FBI to have this sort of emergency
power; however, it is equally essential that we provide
automatic review by a judge to safeguard against abuse. We must
never forget our ultimate goal: to make the United States safer
while protecting the rights of all Americans. It cannot be an
either/or question. We must expand the powers of the FBI to
combat terrorism while ensuring that real safeguards exist to
preserve our civil liberties.
This is why administrative subpoena authority should be
struck entirely from this legislation.
We encourage our colleagues outside the committee to
consider this legislation very carefully, and we look forward
to continuing this debate on the Senate floor.
Ron Wyden.
Jon S. Corzine.
