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[Senate Hearing 107-1013]
[From the U.S. Government Printing Office]

                                                       S. Hrg. 107-1013

                            SURVEILLANCE ACT



                               Before the


                                 OF THE

                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS


                             SECOND SESSION


                            SURVEILLANCE ACT


                             JULY 31, 2002

                            WASHINGTON : 2003
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                     BOB GRAHAM, Florida, Chairman
               RICHARD C. SHELBY, Alabama, Vice Chairman
CARL LEVIN, Michigan                 JON KYL, Arizona
    Virginia                         ORRIN G. HATCH, Utah
DIANNE FEINSTEIN, California         PAT ROBERTS, Kansas
RON WYDEN, Oregon                    MIKE DeWINE, Ohio
RICHARD J. DURBIN, Illinois          FRED THOMPSON, Tennessee
EVAN BAYH, Indiana                   RICHARD G. LUGAR, Indiana
JOHN EDWARDS, North Carolina
              THOMAS A. DASCHLE, South Dakota, Ex Officio
                  TRENT LOTT, Mississippi, Ex Officio
                     Alfred Cumming, Staff Director
                  Bill Duhnke, Minority Staff Director
                    Kathleen P. McGhee, Chief Clerk

                            C O N T E N T S

Hearing held in Washington, D.C., July 31, 2002
Statement of:
    Baker, James A., Counsel for Intelligence Policy, Department 
      of Justice.................................................    22
    Berman, Jerry, Executive Director, Center for Democracy and 
      Technology.................................................    41
    Bowman, Marion E., Deputy General Counsel, Federal Bureau of 
      Investigation..............................................    14
    Fishman, Charles S., Professor of Law, the Catholic 
      University of America......................................    47
    Manget, Frederic F., Deputy General Counsel, Central 
      Intelligence Agency........................................    28
    Schumer, The Hon. Charles E., United States Senator from the 
      State of New York..........................................     7
    Shelby, The Hon. Richard C., United States Senator from the 
      State of Alabama...........................................     4
Supplemental Materials:
    Letter dated August 1, 2002 from Philip Heymann..............    59
    Letter dated July 30, 2002 from National Association of 
      Police Organizations, Inc..................................    63

                            SURVEILLANCE ACT


                        WEDNESDAY, JULY 31, 2002

                                       U.S. Senate,
                          Select Committee on Intelligence,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 2:35 p.m., in 
Room SDG-50, Dirksen Senate Office Building, the Honorable Bob 
Graham (chairman of the committee), presiding.
    Committee members present: Senators Graham, Feinstein, Kyl, 
and DeWine.
    Chairman Graham. I call the meeting to order.
    Today we will discuss two important legislative proposals 
to amend the Foreign Intelligence Surveillance Act of 1978. We 
will hear in a few moments from the Senators who have co-
sponsored the bill, Senators Kyl and DeWine, who are members of 
our committee, and Senator Schumer, whom we are fortunate to 
have joining us today to discuss the bill which he has co-
sponsored with Senator Kyl.
    I note that some of the questions the Senators may ask the 
witnesses might require the witnesses to discuss classified 
information. We are prepared, if necessary, to have a closed 
session in Hart-219 at the conclusion of the open hearing, 
should the line of questioning require.
    The Foreign Intelligence Surveillance Act, or FISA, 
provides a statutory framework by which the United States 
government can secure court orders permitting an electronic 
surveillance or a physical search of a person inside the United 
States for purposes of collecting foreign intelligence. Last 
year, the USA Patriot Act made several changes to FISA to make 
it more efficient and effective as a tool in the fight against 
    These changes included: permitting an order to issue on a 
showing by the government that the collection of foreign 
intelligence is a significant purpose of the surveillance or 
search--the previous law had required foreign intelligence 
collection to be the primary purpose; second, permitting roving 
wiretaps under FISA as they have been available in criminal 
surveillance context--this change was designed to thwart the 
ability of a target to evade surveillance by changing hotel 
rooms or discarding a cellular phone; and finally, extending 
the duration of FISA orders against targets who are not U.S. 
    The two bills that we are here to discuss today will 
provide additional changes to FISA for the purpose of reducing 
both the nature and scope of the showing the government must 
make to obtain a surveillance order against suspected 
terrorists inside the United States who are neither citizens 
nor legal resident aliens. As we did with the changes made in 
FISA last year, the Congress must examine revisions of this 
nature to assure that they strike the proper balance between 
enhancing our ability to fight terrorism while protecting our 
privacy and liberties. That is the purpose of the hearing 
    S. 286 was introduced by Senators Schumer and Kyl to 
provide an additional modification to the FISA application 
process. Under current law the government has to show the court 
that the person suspected of engaging in international 
terrorism is a, quote, ``agent of a foreign power''--in other 
words, if the target is affiliated with a terrorist group which 
operates overseas. The Schumer-Kyl bill would eliminate the 
requirement of showing that nexus, but only for potential 
targets who are neither U.S. citizens or green card holders. 
Accordingly, under the Schumer-Kyl approach, the government 
would have to show that the target of the surveillance is, 
quote, ``engaged in international terrorism or activities in 
preparation therefore.''
    S. 2659, introduced by Senator DeWine, would change the 
level of proof that has to be made in a FISA application from 
the current probable cause to reasonable suspicion. Our 
witnesses today will explain the difference in the evidentiary 
standard required. As with the Schumer-Kyl provision, the 
DeWine amendment would retain the existing higher evidentiary 
standard of probable cause for U.S. citizens and legal 
permanent resident aliens. I understand that Senator DeWine has 
made some modifications to his language and will explain those 
    After the Vice Chairman, who will join us shortly, has made 
his remarks, I will ask Senators Kyl, DeWine and Schumer to 
speak about their provisions. After the Senators have completed 
their comments, I will turn to the first panel, which is 
comprised of two witnesses from the Department of Justice and 
the CIA. These will be Mr. Jim Baker who is Chief of the Office 
of Intelligence Policy and Review at the Department of Justice, 
and Mr. Marion Spike Bowman, Deputy General Counsel of the FBI. 
Representing the Director of Central Intelligence is Mr. Fred 
Manget, Deputy General Counsel of the CIA.
    The second panel will provide the perspective of experts 
from outside the United States government--Mr. Jerry Berman, 
the Executive Director of the Center for Democracy and 
Technology, and Professor Clifford Fishman, Professor of Law at 
the Catholic University Law School.
    Senator Shelby has indicated that he will be slightly 
detained in his arrival. Unless there are other opening 
statements from Members, I would suggest we turn to Senator 
Schumer and then Senator Kyl. After the completion of their 
comments on the legislation they have introduced, then Senator 
DeWine to comment on his legislation.
    Senator Schumer.
    [The prepared statements of Vice Chairman Shelby and 
Senator Schumer follow:]







    Senator Schumer. Thank you, Mr. Chairman. And before I 
begin, I just want to thank you and the entire Committee. Your 
Committee is so important to all of us and I think I don't 
speak only for myself but for the vast majority of the Senate. 
You, Mr. Chairman, have done an outstanding job in leading this 
Committee, as has the membership of the Committee. And I think 
we and the American people are thankful for that.
    Chairman Graham. Thank you very much.
    Senator Schumer. Now, to address the legislation. I'll be 
brief, and I would ask unanimous consent that my entire 
statement be placed in the record.
    Chairman Graham. Without objection, it is so ordered.
    Senator Schumer. Mr. Chairman, as we undergo a review of 
our intelligence failures leading up to September 11th, we 
should not, must not, and will not forget we're at war and that 
we have enemies who are intent on doing us harm. We have to 
remain ever vigilant in our efforts to protect America from 
future attacks.
    That means acting quickly, not just to ensure that the 
military has the means to fight the war on terrorism, but also 
to plug the holes in homeland security.
    We've learned from the disclosures regarding Zacarias 
Moussaoui, the so-called 20th hijacker, that even though the 
FBI had abundant reason to be suspicious of him before 9/11, it 
didn't act. It didn't seek a warrant to dig up the evidence 
that may--may--have been the thread which, if pulled, would 
have unraveled the terrorists' plans. And one reason the FBI 
didn't seek the warrant is that the bar for getting those 
warrants is simply set too high.
    That's why Senator Kyl and I introduced the legislation to 
amend the FISA Act. And I want to thank Senator Kyl for his 
leadership on this and so many other issues. In fact, a couple 
of the changes to FISA that you mentioned that were done in the 
Patriot Act were Kyl-Schumer endeavors. We've worked together 
on many law enforcement issues with at least some measure of 
success, and I thank him for his partnership on this one and on 
so many others.
    Now, Senator Kyl's and my goal, quite simply, is to make it 
easier for law enforcement to get warrants against non-U.S. 
citizens who are preparing to commit acts of terrorism. Right 
now the government is required to show three things before it 
can get a warrant for national security surveillance.
    First, it must show that the target of the surveillance is 
engaging in, or preparing to engage in, international 
terrorism. We keep that requirement in place. Second, it must 
show that a significant purpose of the surveillance is foreign 
intelligence-gathering. As you mentioned that was changed a bit 
by the Patriot Act, as it should have been. We don't change it 
any further. That one is working just fine.
    But, third, it must show that the target is an agent of a 
foreign power like Iraq, or a foreign terrorist group like 
Hamas or al-Qa'ida. And that's the hurdle we're removing.
    If that last requirement hadn't been in place, there would 
have been no question within the FBI about whether it could 
have gotten a warrant to do electronic surveillance on 
Moussaoui. It could have searched his computer files and 
perhaps--perhaps is underlined--come up with information needed 
to foil the hijackers' plans. And that may--underline may--have 
been enough to force someone to put two and two together to add 
the Moussaoui information with the Phoenix memo and realize 
that something truly horrible was afoot.
    I believe the Vice President, the FBI Director, and the 
Secretary of Defense when they say other attacks are planned. 
Right now there may well be terrorists plotting on American 
soil. We may have all kinds of reasons to believe that specific 
individuals in our communities are preparing to commit acts of 
terrorism, but we can't do the surveillance we need to do 
because we can't tie them to a foreign power.
    The simple fact is that in a world where the gravest 
threats to our freedom can come from a single person, or small 
group of people, our ability to tie a terrorism suspect to a 
foreign power cannot and should not be allowed to determine 
whether we can do surveillance. There may be known wolves out 
there acting without the support of Iraq or Hamas. There may be 
terrorists who we just can't link to a foreign power, and that 
shouldn't matter. If they are meeting the first two standards, 
if it's possible that they're about to engage in acts of 
terrorism, it shouldn't matter whether we can link them or not.
    In some cases they might not be linked, in some cases it 
may be a new group that we don't know of, in some cases they 
may be linked to the group but we can't prove it. But we don't 
believe that that should really matter. If you're not an 
American citizen and you don't have a green card, and we have 
reason to believe that you're plotting terrorism, the FBI 
should be able to do surveillance.
    It's important to note that if our bill becomes law it will 
immeasurably aid law enforcement without exposing American 
citizens and permanent legal resident aliens to the slightest 
additional surveillance. This law will only affect non-citizens 
and non-green card holders. And the language we're proposing is 
the same language the Administration sent up here during the 
debate over the Intelligence Authorization Bill. Attorney 
General Ashcroft has given his stamp of approval. And I look 
forward to working with Senator Kyl and perhaps Senator DeWine, 
if we end up collaborating a little further--Senator Kyl 
mentioned to me in the subway yesterday that we might be--to 
help this bill become law.
    I just want to reiterate one point, Mr. Chairman. We're 
still at war, and we're still at risk. We live in funny times 
where we are at risk but our lifestyle doesn't change a jot. 
And sometimes we forget the risk that we all face. So we must 
not only take a critical look at our intelligence failures, but 
we have to take a constructive approach immediately towards 
making this a safer America.
    And some of the proposals for expanding powers that I've 
heard floated give me some reason to pause. They may go too 
far. But in my judgment at least, Mr. Chairman, this one's a 
no-brainer. This is a fair, reasonable and smart fix to a 
serious problem. And I want to thank you, Vice Chairman Shelby, 
as well as my partner in this endeavor, Senator Kyl, for all 
their help.
    Chairman Graham. Thank you very much, Senator. Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    I am aware that Senator Schumer may have to leave here 
fairly quickly, but before he does I want to say thank you to 
him. We have worked together on a variety of issues that have 
helped us to deal with criminal elements and most recently with 
terrorists. And what we find as we gain experience with the 
terrorists and work through our legal process is that, here and 
there, there are some deficiencies. Things change. 
Circumstances change.
    And last century's FISA--it seems odd now to refer to a law 
in that context--FISA and other laws were developed in the 
circumstances in which there were known identifiable enemies. 
And it was fairly easy, therefore, to conceive of a statute in 
which you would tie the suspect to a foreign power, a specific 
country, or a terrorist organization by name.
    What we've learned, especially in this Committee, is that 
these terrorists, as Senator Schumer said, are very shadowy 
figures. They don't have a membership card in a terrorist 
organization and go to their meeting every Friday night. They 
are very shadowy folks who move in and out of the United 
States, who may or may not have affiliation with different 
terrorist groups who change those affiliations, or who may 
simply be working with people who would be considered members 
of those terrorist organizations. And as Senator Schumer said, 
there are even new organizations beginning.
    And so what seemed like a reasonable requirement in the 
past that you would tie one of these individuals to a specific 
foreign government--well, very few terrorists now work for a 
specific foreign government--or to an international terrorist 
group when they are so shadowy now and they are so 
compartmentalized in the way that they work and deal even with 
members of their own group, that we find that those kinds of 
requirements are now outmoded, don't serve the interests of 
justice, don't permit us to protect American people. And we can 
change the requirement very slightly and remain very easily 
within constitutional limits.
    And we have assurances from the Department of Justice, 
which we'll get later, to this effect, and which would--as both 
the FBI Director and, I would also note, Agent Colleen Rowley 
from Minnesota, testified before the Judiciary Committee--would 
be a very helpful way to amend the statute so that we could 
deal with this problem of the individual who we have reason to 
believe, have probable cause to believe, is engaged in some 
kind of international terrorist activity or planning, but who 
we can't at this moment connect up to a specific country or 
terrorist group.
    Maybe it's a new group, maybe they don't really have a 
connection, and they are acting or that individual is acting 
literally by himself or herself. Or maybe what we'll find is 
that there is a connection but we won't know it until we 
actually secure the warrant to do the search that leads us to 
that kind of evidence.
    So this is what we're trying to achieve here. It's very 
straightforward, very narrow. And I would hope that we could 
act on it quickly.
    We could work with our friends in the Judiciary Committee, 
of which both Senator Schumer and I are members, and we could 
get it in--and Senator DeWine, I might add--and that we can 
move quickly to get the support of our colleagues and put this 
important tool into the hands of law enforcement and 
intelligence agencies here in this country so that we can add 
one more element to the protection of the American people.
    Thank you, Mr. Chairman.
    Chairman Graham. Thank you, Senator.
    Senator DeWine.
    Senator Schumer. Mr. Chairman, might I excuse myself, if 
there are no questions?
    Chairman Graham. Thank you very much, Senator.
    Senator Schumer. I will apologize to Senator DeWine. When 
they moved the schedule back a little bit, it bumped into 
something. Thank you.
    Chairman Graham. Senator Schumer, thank you very much for 
your and Senator Kyl's efforts that brought us this legislation 
to consider this afternoon. And we will try to treat your young 
child with nurturing care.
    Senator Schumer. I've met your triplet young grandchildren. 
If you treat this legislation one-hundredth as well, we'll do 
just fine.
    Chairman Graham. Thank you. But you only have one piece of 
legislation here.
    Senator DeWine.
    Senator DeWine. Mr. Chairman, thank you very much. Let me 
first congratulate Senator Kyl, Senator Schumer for the 
legislation that they have introduced. As they indicated, this 
is really legislation that brings the law up to date to deal 
with the realities of the danger facing the United States, and 
the current law really does not do that. And so I congratulate 
them and I look forward to working with them on this bill.
    Let me take a moment, Mr. Chairman, if I could, to discuss 
a separate bill that I have introduced which is S. 2659. This 
is a bill to modify the standard of proof required for a FISA 
order for non-U.S. persons. As we all know, the FISA statute 
has come under increasing scrutiny in the months since 
September 11 as citizens and the general public have struggled 
to make sense out of the terrorist attacks. My FISA reform bill 
would offer us a chance to improve our intelligence gathering 
and a chance to improve our ability to prevent future attacks. 
It would make it more likely that we could use FISA 
surveillance more often to gather the data that we need to 
fight terrorism.
    And it would address one of the concerns voiced about the 
FISA problem, and that is that its use has sometimes been 
encumbered by an overly cautious culture that had grown over 
the years and that officials responsible for implementing it 
have been, in certain circumstances, too slow to request the 
FISA order from the court.
    We have talked about the Moussaoui case. Quite frankly, no 
one knows at this point whether or not the change in the law 
would have, as I have indicated, would have had any impact on 
Moussaoui, if that case ultimately would have been moved up the 
chain as it should have been, and all of the facts are not 
publicly known. But it is that type of case at least that it 
would be helpful, I believe, if we saw this change in the law.
    In order to enhance the usefulness of FISA and attempt to 
protect ourselves as much as possible from future attacks, we 
must take steps to limit the possibility of such future FISA 
disputes. S. 2659 would do just that. Specifically, this bill 
would change the burden of proof which must be met by the 
government from probable cause to reasonable suspicion, but 
only in very specific and limited circumstances. That change 
would only apply for terrorism investigations of non-U.S. 
persons. This change would be effective for both electronic 
surveillance and physical searches.
    From an operational point of view, this would aid in 
obtaining FISA orders earlier in the investigation than might 
be possible otherwise. And, in certain circumstances, it may 
allow the government to obtain orders they might not get at 
all. By lowering the standard we hope to avoid situations such 
as we found in Moussaoui and encourage the OIPR to request FISA 
orders earlier in the process. The Supreme Court has held that 
the underlying cause requirement to authorize searches is 
dictated by the balance of governmental and privacy interests 
and the governmental interest in protecting national security 
and preventing terrorist attacks. That is obviously compelling. 
It's obvious that this is a compelling need to protect United 
States citizens from this type of attack.
    Further, there is case law indicating that the privacy 
expectation and interest of a non-U.S. person is, in fact, less 
than of a U.S. person. Lowering the standard will, of course, 
not remove all disputes. It won't make every case an easy case. 
No matter what the standard, officials will have good faith 
disputes over when it is reached. There will always be a case 
that lands right on the line. However, this legislation 
decision, like most, requires a careful balancing of the gains 
from the new standard with the possible problems.
    While the new standard will no doubt result in speedier and 
increased surveillance of potential dangerous non-U.S. persons, 
we must be cautious not to endorse an overly permissive use of 
the surveillance powers of FISA. That's why we have been very 
careful in drafting this bill. The reasonable suspicion 
standard is, Mr. Chairman, a widely recognized legal threshold 
with a great deal of history and case law behind it and one 
that makes sense under the current circumstances. I believe 
that we have an opportunity to make a change in the law that 
will improve our odds of preventing future terrorist attacks. I 
hope the members of this Committee will join me in supporting 
    Thank you very much.
    Chairman Graham. Thank you, Senator.
    We can now turn to our first panel with representatives of 
the Department of Justice and the CIA--Mr. Jim Baker, Chief of 
the Office of Intelligence Policy and Review of the Department 
of Justice; Mr. Marion Bowman, Deputy General Counsel of the 
FBI. Representing the Director of CIA is Mr. Fred Manget, 
Deputy General Counsel.
    Gentlemen, do you have opening statements? Mr. Bowman.
    [The prepared statement of Mr. Bowman follows:]


    Mr. Bowman. I'm from the FBI, sir. I have a prepared 
statement which has been furnished to your staff. So in the 
interest of economy of time, I'd like to pick up on some brief 
comments that explain some of the operational problems that the 
FBI sees in terrorism investigations these days.
    Chairman Graham. Mr. Bowman, could you pull the 
microphone--yes, thank you.
    Mr. Bowman. I'd like to thank Senator Kyl because he's said 
a number of the things that I was planning to say. So I'll pick 
up briefly from some of the things where Senator Kyl left off. 
Senator Kyl is quite correct in saying that things have changed 
over the last couple of decades and the phenomenon that we see 
today in terrorism is not the same phenomenon that we saw 20-
some years ago. It's absolutely correct to say that we focused 
FISA and our investigations around individuals who belong to 
groups, identifiable groups. Usually they were larger ones that 
we could name.
    Through the years we started seeing smaller and smaller 
groups of individuals. But about three or four years ago we 
began to increasingly notice that we were focused on 
individuals who were doing suspicious things, who looked to us 
as if they had the makings of terrorists but who did not seem 
to have any particular allegiance to a group. And we sort of 
looked at this and traced it back and with your permission, 
Senator, I'd like to explain where we think some of this is 
coming from.
    We believe that a lot of the problem that we see today 
stems from the Afghan-Soviet war when anywhere from 10,000 to 
25,000 Muslims from 43 different countries went to Afghanistan 
to fight against a vastly superior--technologically superior--
force there. And the training that they received there was 
primarily guerilla training, terrorist type tactics. They also 
received a lot of religious instruction and terrorist training 
camps that we're familiar with today were begun at that time.
    The war, of course, did end and when those thousands of 
Muslims returned to their home countries they went back with a 
lot of training they hadn't had before and with a lot of 
understanding of a Muslim brotherhood--a community that went 
beyond the idea of nationalism--that they took back with them. 
They also took back with them some of the successes that they 
had in Afghanistan in fighting a vastly superior force and 
those successes came about through guerilla and terrorist 
tactics. It wasn't too hard to convince or to explain how 
successful those tactics were to a number of other dissatisfied 
persons in the countries they went back to, people who began to 
believe that that kind of tactic would be a better way for them 
to develop a better life, to avoid the Western sentiments and 
so forth that they thought were invading their countries.
    If I fast forward now to the year 2002 or actually back 
around 1999 or 2000, we began to see this spreading out at the 
edges and we began to see it spreading into the United States 
as well, to the point that what we had was very much a--I 
hesitate to say a ``movement''--probably a better description 
is a ``network'' of individuals who had learned to work 
together, who had learned terrorist tactics together, who had 
traveled together, some were educated together, and they began 
to spread their ideas throughout an extremist community.
    That extremist community eventually made its way into the 
United States and whereas not too many years ago virtually all 
of the terrorists that we looked at were affiliated with known 
organizations or smaller organizations that we could identify, 
that has begun to change, to the point that today we see 
essentially three categories of individual that we look at as a 
terrorist suspect.
    The first and still probably the largest is the individual 
who is associated with some kind of group that we can identify, 
that we can see. The second is the individual who seems to have 
connections to a number of groups that we understand, but who 
owes allegiance to none of them that we can see. And the third 
is the individual who does not seem to have any allegiance to 
anyone or at least none that we can spot.
    As to the first category of individual, FISA works very 
well. As to the second category, we have a great deal of 
trouble trying to understand if the person actually is 
affiliated with one of the groups that he seems to have contact 
with, or whether he is just one of the persons who is part of a 
network of dissatisfied extremists. And as to the third 
individual, we have no possibility at the moment under the 
current FISA statute of effectively targeting him because we 
don't have any kind of affiliation for a foreign power.
    That's the situation that the FBI sees today in 
investigating terrorists. I will leave the rest of my comments 
for you in the record, you have that now, and I would be happy 
to take any questions that anybody has. But I think first you 
probably want to hear from the Department of Justice.
    Chairman Graham. Mr. Baker.
    [The prepared statement of Mr. Baker follows:]

                     DEPARTMENT OF JUSTICE

    Mr. Baker. Thank you, Senator. I also have submitted a 
written statement for the record and I would just like to 
briefly summarize a few of the points that are set forth in the 
written statement that I have submitted.
    I am the counsel for intelligence policy at the Department 
of Justice and head of the Office of Intelligence Policy and 
Review, which is the office that prepares and presents to the 
Foreign Intelligence Surveillance Court, the FISA Court, all 
the applications under the FISA Act for electronic surveillance 
and physical search of foreign powers and their agents. We are 
operating under a statute and in a system created and modified 
by Congress and we execute the laws as they have been set forth 
by Congress.
    Let me just make a comment generally with respect to the 
changes that Congress made in the Patriot Act and the 
Intelligence Authorization Act for 2002. The administration has 
made full and effective use, I believe, of those changes and 
the changes set forth in those statutes have affected every 
application that has gone to the FISA Court since the Act 
became effective.
    In my view, the changes have allowed us to move more 
quickly and more effectively and to also be more focused in our 
approach in dealing with the kinds of threats that Mr. Bowman 
made reference to. So we at the Department are grateful for the 
changes that Congress made in the statute, because I believe 
they've been important and have been employed effectively.
    I'd now like to turn briefly to the two proposals that are 
before the Committee, S. 2586 and S. 2659. Those have been 
summarized already by others and I won't seek to repeat that, 
Senator. My statement makes more extensive comments on that, 
but let me just make a few comments, at least starting with 
respect to S. 2586, the Kyl-Schumer bill that amends the 
definition of a foreign power to include foreign individuals, 
non-U.S. persons who are engaged in international terrorism or 
activities in preparation therefor.
    In our view, this a change that is warranted by the facts 
that Mr. Bowman set forth and it is a relatively modest change 
that affects who would be subject to electronic surveillance 
under FISA, the Patroit Act and the Intelligence Authorization 
Act, affect how we go about obtaining FISA orders and the 
procedures for that. And this is really the first change in who 
is covered under FISA.
    As Mr. Bowman discussed and I think is fairly self-evident 
in these times, a single terrorist can present a huge threat to 
the United States' national security and can do things such as 
attack an airplane with a bomb or put anthrax in the mail, both 
of which represent great threats to the national security of 
the United States.
    The Department has reviewed the proposed bill and has 
concluded that it is constitutional, that the extension of FISA 
to include individual non-U.S. person targets is within the 
Constitution and is a relatively modest extension of the 
already existing provisions of the Act which could cover and 
were initially intended to cover groups as small as two or 
three people, so this is an extension from two or three people 
to one person and for the reasons Mr. Bowman set forth we think 
it is a legitimate and important and useful reform of FISA.
    With respect to the provisions in S. 2659, this is the 
provision that would change the standard with respect to non-
U.S. persons from probable cause to reasonable suspicion and 
the Department has been studying Senator DeWine's proposal. But 
because the proposed change raises both significant legal and 
practical issues, the Administration is still in the process of 
evaluating the legislation.
    In the meantime, I'd like to thank the Committee for the 
opportunity to be here today and to do whatever I can to 
support your efforts in the nation's war against terrorism. And 
I would be pleased to answer any questions to the extent I can 
in an open session or, if necessary, in a closed session. Thank 
you, Senator.
    Chairman Graham. Thank you very much, Mr. Baker.
    Mr. Manget.
    [The prepared statement of Mr. Manget follows:]


    Mr. Manget. Thank you, Mr. Chairman.
    For over 20 years, the Foreign Intelligence Surveillance 
Act has defined how the intelligence community conducts 
electronic surveillance and, for nearly a decade, physical 
searches that target spies, terrorists and other individuals of 
foreign intelligence interest operating within the United 
States. Since FISA enactment, however, these targets and their 
means of communication have changed. Intelligence community 
collection efforts are increasingly challenged by the shifting 
nature of intelligence targets. Sensible amendments to FISA 
will forward intelligence community efforts to collect crucial 
foreign intelligence against these nimble targets.
    Mr. Chairman, I would like to thank the Committee for a 
swift legislative action in the wake of the terrorist attacks 
of September 11th. Legislation introduced by the chairman, 
considered by this Committee and ultimately included in the USA 
Patriot Act, removes artificial statutory barriers to law 
enforcement information-sharing within the intelligence 
community and clarifies the authorities of the DCI with respect 
to FISA. The Patriot Act enhanced the ability of the 
intelligence community to coordinate with law enforcement and, 
consistent with the protection of civil liberties of U.S. 
persons, improved the ability to collect foreign intelligence 
under FISA.
    I appreciate the opportunity to represent the DCI as this 
Committee considers two pending bills that also propose 
sensible amendments to FISA. Both these bills would increase 
the ability of the U.S. government to collect information 
concerning foreign nationals of foreign intelligence interests 
within the United States. Through access to the intelligence 
collected under these proposed authorities, the intelligence 
community will be better able to inform the decisions of 
policymakers and warfighters. The DCI generally supports 
statutory changes that, consistent with the Constitution, would 
enhance our ability to use FISA as a collection tool and to 
prevent potential terrorist attacks.
    We have reviewed and support the changes proposed in 
S.2586. We understand the Administration is still studying 
S.2659 and is not prepared to take a final position on that 
bill. In addition, we would defer to our colleagues in the 
Department of Justice about the final constitutional analysis 
but, in general, we agree with the current review. Terrorists 
who would harm this nation should not be able to conduct their 
activities under the protective cloak of unnecessarily 
restrictive FISA requirements that have not kept pace with the 
change in the nature of our enemies.
    Balancing the civil liberties of U.S. persons against the 
President's constitutional authority to protect national 
security was the overriding concern of Congress when FISA was 
passed. These amendments would refine this delicate balance to 
better account for current operational realities without 
damaging important privacy equities of Americans. It's my 
understanding that the Department of Justice believes the 
amendment proposed by S.2586 conforms to constitutional 
principles and we certainly agree with that.
    Thank you again for the opportunity to testify regarding 
these proposals and we look forward to working with the 
Administration and the Committee and the Congress to discuss 
these and other needed improvements to intelligence 
capabilities, carefully balancing the interests of national 
security with the privacy rights guaranteed by the 
    Thank you, Mr. Chairman. I'll be glad to discuss any 
further questions or information.
    Chairman Graham. Thank you very much. I have a few 
questions. We will follow the five-minute question round using 
the first to question being the first to arrive and so that 
will be Senator Kyl, Senator DeWine and Senator Feinstein, in 
that order.
    With the foreign power requirement eliminated from the FISA 
legislation and with the two remaining requirements being 
engaged in international terrorism or preparing to engage in 
international terrorism, could a standard criminal wiretap be 
used to collect information against these persons without the 
use of FISA? I would ask that question of Mr. Baker and Mr. 
    Mr. Bowman. Well, what you are looking for, what you need 
as a predicate for FISA and for a Title III are two different 
things. In the Title III, you have to have a criminal act or a 
preparation for a criminal act.
    Chairman Graham. Is not international terrorism a criminal 
    Mr. Bowman. Yes, sir. It would be a criminal act if it's 
carried out. So if you have enough information to show that you 
have an individual who is preparing to engage in a criminal 
act, then a criminal wiretap would most likely be available to 
    Chairman Graham. What are the implications of proceeding 
against the same person on the same set of facts through FISA 
as opposed to Article III?
    Mr. Bowman. Well, that's a very interesting question, 
Senator. The purpose for Title III is to get a prosecution. The 
purpose for FISA is to gain information. And the implications 
are historically, from a case law perspective, are that you 
have to be careful that you are not using an intelligence 
technique in order to gain criminal information for 
prosecution. It's not necessarily the case, in my opinion--and 
this is my opinion, sir--that you really have to separate them 
because your purposes may be entirely different. You may have a 
purpose of foreign intelligence and a purpose of criminal law 
in looking at any particular individual or circumstance, and 
they can both stand, I think, on their own merits.
    Chairman Graham. Any other comments on that question?
    Mr. Baker. Senator, I guess would say in my experience when 
you're trying to prevent terrorist acts, that is really what 
FISA was intended to do and it was written with that in mind. 
The standards that are set forth in there and the practical 
realities of how you operate a FISA are better suited, in my 
view, to being able to understand the nature of a particular 
threat and then to be able to try to prevent it. FISA, in my 
experience, in practice is a highly flexible statute and has 
proven effective in this area. And so to my mind it is a better 
tool to use in these cases, it seems to me.
    Chairman Graham. Mr. Manget, I'd like to ask a general 
question which affects the context in which the two bills we're 
considering today will be evaluated. In the USA Patriot Act, 
section 901 strengthened the role of the DCI--not in his 
capacity as Director of the Central Intelligence Agency but, 
rather, in his community-wide responsibilities--giving him some 
additional authority in terms of prioritizing the uses of FISA 
and then disseminating the information which was gathered from 
a FISA wiretap. Could you describe what progress has been made 
by the DCI in terms of implementing these provisions?
    Mr. Manget. Yes, Mr. Chairman. In fact, I believe we have a 
classified staff briefing set up for tomorrow to go into 
further detail. But I can certainly say that the vigor with 
which the FISA tool is being used and coordinated most 
effectively, and most especially with the FBI, is 
unprecedented, higher than anyone can remember, driven 
certainly by the events of September 11th, but also by the new 
    The Director has, in effect, ordered the coordination 
through the centers which are organized at the agency with a 
DCI authority to bring in people from different parts of the 
agency and different parts of the community to, in effect, 
direct all resources and targeting decisions, and FISA is an 
important part of that.
    As you know, Mr. Chairman, we have extensive 
crossassignments of FBI special agents with agency officers in 
the two counterterrorist operations, and they communicate on a 
daily basis. We have received, I can say--and probably tomorrow 
you'll get the exact number--a great deal of disseminations 
already from the FBI from FISA operations. And certainly the 
consensus at the center, which is the action arm directed by 
the DCI to carry this out for terrorism purposes, they're very 
happy with the progress being made to coordinate FISA 
direction, collection and dissemination.
    Chairman Graham. Thank you.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. Just to follow up one 
more aspect of the question the Chairman asked, is it true that 
another reason or one of the main reasons to use FISA is the 
fact that you can protect classified information?
    Mr. Bowman. Yes sir.
    Senator Kyl. Much more easily than in a Title III 
    Mr. Bowman. Yes, sir. And a terrorism investigation 
historically leads to--it's fairly broad because normally it 
leads from one person to another, one organization to another. 
And so it's imperative that, first of all, what we are doing be 
kept confidential.
    Secondly, a lot of the information that we receive for this 
does come from other classified sources, so the ability to 
handle the classified aspects of information in FISA is 
absolutely critical to effective investigations of terrorism.
    Senator Kyl. And just to reiterate, it is still necessary--
instead of showing that there is a crime or the planning of a 
crime that justifies going to the court to get a warrant here, 
you're telling the court that you are looking at a situation of 
international terrorism and that is what opens the door in 
effect to ask the court for a FISA warrant . Is that correct?
    Mr. Bowman. That's correct, sir.
    Senator Kyl. And let me--and this is another question for 
Mr. Bowman--there has been a criticism that changing this FISA 
standard will exacerbate the FBI's analysis problem by flooding 
an overloaded system with lower quality information. How do you 
respond to that criticism?
    Mr. Bowman. Well, sir, the fact of the matter is that we 
have, as everybody knows, struggled with an analytical problem 
because our investigations are more or less crisis driven. We 
are looking at individuals in the United States and our efforts 
have gone primarily into the investigative part of the Bureau 
rather than the analytical part. Director Mueller is changing 
that very rapidly. We are beefing up substantially our ability 
to analyze what we are getting. We're getting substantial help 
from the DCI on that, not only with personnel but with training 
and they're lending their expertise on to how to analyze it. I 
guess my response to that, sir, is that I can't change the past 
but I think what we're doing now is the right way for the 
    Senator Kyl. Obviously my question was misunderstood or 
wasn't articulated accurately. What I was trying to say is, are 
we changing the law by this bill to an extent that it's going 
to all of a sudden open the floodgates to information flooding 
into the FBI, to the point that you're not going to be able to 
handle all of this new information----
    Mr. Bowman. My apologies.
    Senator Kyl [continuing]. Given the fact that there was 
deficiency in the analytical capability in the past?
    Mr. Bowman. My apologies for misunderstanding you, sir. No, 
I actually think the answer is no. At this point in time, we're 
talking about a discrete grouping of people. We're not looking 
at thousands of people out there. Right now I can't even tell 
you we're looking at hundreds that fit into the category. But 
certainly, whatever it is, it's not going to substantially 
overload the FBI.
    Senator Kyl. Okay. And a final question and I think, Mr. 
Baker, probably primarily directed to you, but all three of you 
certainly can respond. It's actually a two-part question. First 
of all, do you see any negative or any particular negative 
impact on civil liberties--and I don't limit it to American 
citizens, but also to non-Americans who are here in the United 
States--sufficient to justify a criticism of the bill that the 
benefits to intelligence interests are not sufficient to 
justify a negative impact on civil liberties? It's really two 
part: one, is there really a negative impact on civil 
liberties; and, second, on balance, is the change that we're 
making here warranted?
    Mr. Baker. As Mr. Bowman suggested, if we expect that there 
are cases out there that would fit within this new category, 
then you would invariably have surveillances of additional 
targets. So you would be, you know, connecting electronic 
surveillance and potentially physical search of those targets 
and that raises all the same kinds of civil liberties questions 
that FISA does to begin with.
    But nevertheless, you would have had--before you get to 
that point, you would have had a finding by a neutral and 
detached magistrate, and indeed in this case a sitting federal 
judge, district court judge, that all of the requirements of 
the statute are met and that there's probable cause to believe 
that this individual is engaged in international terrorism 
activities, or activities in preparation therefor. You also 
have certifications by the Director of the FBI that this is 
legitimate for an intelligence purpose and approval by the 
Attorney General that the application meets the requirements of 
the Act. So you would have more surveillances perhaps but they 
would be done in accordance with all the other provisions of 
FISA. And FISA, as you know, when it was enacted was designed 
to carefully balance national security versus individual 
    Senator Kyl. And--I'm sorry.
    Mr. Baker. I'm sorry. I was going to say the effect is 
probably not that much greater than already exists. And on 
balance, given the kinds of threats that we face, it would seem 
to me that the balance tilts in favor of going forward with the 
    Senator Kyl. And since Senator Feinstein was not here for 
the statement that you made with respect to constitutionality 
of the Schumer-Kyl legislation, would you reiterate what you 
said for her benefit?
    Mr. Baker. Just very briefly and right to the point, the 
Department's looked at this and it's our determination that the 
statute is fully constitutional and the Administration supports 
    Senator Kyl. Thank you.
    Chairman Graham. Thank you.
    Senator DeWine.
    Senator DeWine. Mr. Chairman, thank you very much.
    Gentlemen, I realize that the Administration is not yet 
prepared to take a position in regard to the constitutionality 
of the bill that I have introduced. But in that analysis, don't 
you start with the proposition that all presidents have in fact 
asserted that foreign intelligence searches do not actually 
require a warrant at all? Isn't that the underpinning basis of 
the law? All presidents have maintained that.
    Mr. Bowman. Yes, sir. That's accurate.
    Senator DeWine. And so when you analyze this issue, it 
seems to me, from the Administration's point of view, unless 
the Administration is going to change its mind on that 
position--and that's been a position held by Democrat and 
Republican administrations--a proper analysis of this, as you 
looked at the warrant requirement of the Fourth Amendment, that 
you would at least start with that, would you not?
    Mr. Bowman. We'd certainly start, I think, with the history 
of national security surveillance under the authority of the 
executive, yes, sir.
    Senator DeWine. Let me ask maybe a general question and 
then I can get into a specific question, because I think one of 
the things that this Committee needs to know and Congress needs 
to know is what practical effect the two bills would have on 
the activity that you gentlemen are engaged in every day for 
this country. Can you tell whether or not there have been cases 
that were close cases in regard to the probable cause 
    Mr. Bowman. Yes, sir, there have been.
    Senator DeWine. I assume some come down on one side and 
some come down on the other.
    Mr. Bowman. Yes, sir. Under the current statute, some of 
them are simply too hard. We can't get there. Some of them we 
have been able with investigation to push it over. Again, it's 
been one of those things where we take it to the Department of 
Justice. An Article III judge looks at it and the ones we've 
managed to push over, an Article III judge has determined 
they're okay.
    Senator DeWine. And you'd also agree that reasonable 
suspicion is a standard that is a somewhat lower standard 
although it's a standard that has been defined by law. Do you 
agree with that?
    Mr. Bowman. Yes, sir.
    Senator DeWine. Let me give you a couple of hypotheticals, 
if I could and we'll see if you want to tackle these in regard 
to the Kyl-Schumer amendment and in regard to the DeWine 
    Let me start with this one. A philosophy student from Japan 
comes to the United States and begins purchasing quantities of 
ammonium nitrate and fuel oil and he also belongs to an obscure 
religious cult not known to have been involved in terrorist 
activities before. I think it's pretty clear that Kyl's 
amendment would change how you approach it. Any comment about 
how our amendment would? Or maybe those are not enough facts, 
Mr. Baker, I don't know.
    Mr. Baker. I was going to say, Senator, I think I would be 
generally reluctant in an open session to discuss 
hypotheticals, just for concern of what it might reveal. So 
that would be my sort of gut reaction to dealing with 
hypotheticals in general, sir.
    Senator DeWine. You and I have had these discussions in 
closed sessions and we will continue that discussion.
    Thank you, Mr. Chairman.
    Senator Feinstein [presiding]. I think it's my turn next. 
I'm inclined to support the Kyl-Schumer bill but as I 
understand it, gentlemen, in some cases the government can show 
probable cause that an individual is in fact engaged in 
international terrorism or preparation for acts of terrorism. 
But the government may be unable to show that the individual is 
affiliated with a particular foreign power. And as I understand 
the bill, the need to show this is reduced. Now, the question 
is, this solution may well eliminate a fundamental 
justification for the original FISA legislation that the United 
States government as a sovereign state should be able to probe 
the secrets of nations, groups and organizations who are 
dangerous to its security.
    Can we accomplish the same end without impacting the 
philosophy behind FISA by building into the law the same 
presumption that we adopt in everyday life for ourselves--that 
individuals who are planning or engaged in acts of terrorism 
are almost certainly working with or on behalf of a group, an 
organization or a nation, no matter how small that group might 
be. If you have two or three, it is a group. That presumption 
is in accord with all the open source and classified 
intelligence I'm familiar with. What would your views be of 
such a compromise solution?
    Mr. Baker. One thing that leaps to mind, Senator, is I 
think I would be concerned that still the FBI might be faced 
with cases where all the evidence seems to indicate in fact 
that the person was not connected. We might have affirmative 
evidence indicating that the person was not connected to any 
group and was a true, quote/unquote, ``lone wolf.'' And even 
with the presumption in those cases--and they would probably 
few in number but they would still exist--we would still have 
the same problem and still perhaps be stymied from being able 
to go forward on those kinds of cases.
    Senator Feinstein. Let me put it a little differently. 
We're taking two steps here. One, we're eliminating the need to 
establish the link with a foreign government and, second, we're 
reducing the burden of proof for the warrant. I wonder, do you 
all believe that both of those are necessary, or that just the 
first might work?
    Mr. Baker. Well, the Administration, as I mentioned 
earlier, has determined that it supports the first bill, the 
Kyl-Schumer amendment to decouple or delink the requirement 
that the person be engaged in or be connected to an 
international terrorist group. But we are still evaluating the 
second provision in terms of lowering the standard with respect 
to a non-U.S. person. So for right now we are only prepared to 
support the first part.
    Senator Feinstein. Mr. Chairman, the question that I had 
was it might be well to do the first and hold up on the second 
and see how the first functions, and that is the first being 
the Kyl-Schumer bill, and wait before we lower the burden of 
proof for the warrant. I don't know if you have a view on that.
    But how soon will the Administration have a position on the 
    Mr. Baker. I'm not sure, Senator. We're moving forward with 
it. We believe it requires a thorough analysis of all the legal 
and practical implications of the amendment. So I would hope it 
would be as soon as possible, Senator.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman.
    Chairman Graham [presiding]. Senator Kyl.
    Senator Kyl. Mr. Chairman, since Senator Feinstein still 
has a green light, would it be appropriate for me to ask the 
witnesses a follow-up question to Senator Feinstein's question? 
I might have misunderstood. But Senator Feinstein may have 
implied in the question that even the Kyl-Schumer bill was 
moving away from the underlying philosophy of FISA of a 
connection to a foreign situation. You do have to have the 
foreign situation. It is the Foreign Intelligence Surveillance 
Act. Is it not true that we still retain--in fact, you have to 
have by probable cause the elements of non-U.S. or foreign 
persons, number one, and, two, international terrorism, even 
with the Kyl-Schumer legislation? So that the underlying 
philosophy of foreign intelligence is still maintained with our 
amendment; is that not correct?
    Mr. Baker. I think that's right, Senator. If you go back 
and look at some of the considerations that went into the 
enactment of FISA in the first place, trying to deal with 
foreign threats from outside the United States, where the 
ability of the government to investigate things that are 
happening outside are more difficult. The types of information 
that you want to obtain with a foreign intelligence 
surveillance are different from, say, law enforcement. You are 
going to be longer range in your scope to try and obtain 
information to really understand what's going on here and 
understand the nature of the threat, the focus on prevention, 
as I mentioned earlier, and the need to protect the sources and 
methods as you mentioned. All those still exist with respect to 
your bill and I think those were the same kinds of 
considerations that were in play when FISA was first enacted.
    Chairman Graham. Thank you. I'd like to ask just a couple 
of concluding questions. In reference to particularly Senator 
DeWine's bill, it's been my understanding that a very high 
percentage of the applications for FISA warrants are in fact 
granted by the FISA court. Is that correct, and can one of you 
provide me with what is the statistical level of approval of 
FISA applications by the court?
    Mr. Baker. Senator, the FISA court has approved all of the 
applications that the government has submitted to it. There was 
one exception for sort of a technical reason many years ago but 
they've all been approved.
    Chairman Graham. I don't want to nag about perfection, but 
one of the concerns is that whenever you are hitting a 
thousand, that may mean that you're only coming to bat when you 
have a relatively inept pitcher. And I'm concerned as to 
whether we're being aggressive enough under the current law in 
pushing for FISA applications--and the Moussaoui case may be a 
good example of that--where we might lose one occasionally but 
we are pushing what we think are the legal limits of what is 
available under FISA. A, is that a legitimate criticism? Are we 
being risk-averse. in the requests that are being made? Is 
Moussaoui an example of that risk averseness, and how would the 
two pieces of legislation that are being considered today 
affect that?
    Mr. Baker. Senator, if I could comment on some part of that 
and then defer to my colleagues, first of all, I see all the 
FISA applications before they go to the Attorney General and I 
would submit to you that we are being appropriately aggressive 
in our use of FISA. I can't say any more in an open session 
with respect to that but I submit that that is the case.
    Secondly, I believe Judge Lamberth, the former presiding 
judge of the FISA court, has spoken on a couple of occasions in 
public with respect to the interaction between the court and 
the Department and I believe, as he said, that they ask 
questions, they probe, they try to get the nitty gritty of 
what's going on with the case and ask us for additional 
information. So there is an interchange between the court and 
the Department during the process of which additional 
information is provided to the court to satisfy the court that 
we are, you know, justified in seeking the coverage that we 
    With respect to the Moussaoui case, I'll defer on that 
because the Moussaoui matter never made it across the street to 
my office. So I'd leave my comments at that then, Senator.
    Mr. Bowman. Senator, I think that one of the things that we 
have to keep in mind is--well, two things really.
    One is when FISA was passed the Congress told us that we 
should be scrubbing these things very carefully before it ever 
gets to the Article III judge. And I think that between the 
intelligence agencies and the Office of Intelligence Policy and 
Review we have done that. It is not always easy to get an 
application up to a standard for the court, but we work at 
them. And we don't just walk away from something because we 
think we might have a problem. Frankly, it would not bother me 
a bit to lose a case in front of the FISA court.
    But we do work them extremely hard and sometimes, working 
with Mr. Baker's office and mine, it takes us a fair amount of 
time to put together a FISA that meets the standard. We are, 
after all, dealing with persons who are trying to hide their 
activities and hide their associations and so forth and 
sometimes it just takes a little extra gumshoe work on the part 
of special agents to dig up the information that's necessary. 
But I don't think it would be fair to say we are risk averse.
    Senator DeWine. Mr. Chairman.
    Chairman Graham. Are there any other questions?
    Senator DeWine.
    Senator DeWine. Mr. Chairman, I would just like to follow 
up on that, not with a question but maybe just an additional 
comment. First of all let me just say, gentlemen, that I 
appreciate the work that all of you do. This is very, very 
difficult work. I can't think of anything more important in 
government that is being done than the work that you are doing, 
and all of us I know on this Committee appreciate it very much.
    The subject of this hearing, though, really is whether or 
not the law that we have been operating now for better than two 
decades does in fact need to be changed. Congress on several 
occasions has made some changes, generally at the request of 
the Administration, at the request of the Justice Department.
    For Congress to exercise its obligation to determine 
whether or not the law should be changed presents in the case 
of FISA a unique problem. The problem is that we have, as a 
country and Congress, created a court that is by definition a 
secret court. And it's a situation where what you do every day 
is not done in public. What you do every day is in private. It 
is unique in our jurisprudence, this ex parte relationship, a 
relationship that you and the court are going back and forth, 
you are supplying them information, they are supplying you with 
    I share Senator Graham's questioning at least about whether 
or not if you bat 100 percent you are taking enough cases 
there. I appreciate your answer that you were getting guidance 
from the court. That does not though answer the question that 
we have to answer to the American people, and that is whether 
or not the current law, as it is being interpreted by the 
court, is protecting the American people. Is it doing what it 
should be doing? I have no doubt you are following the 
direction of the court and I have no doubt the court is trying 
to follow the direction of Congress as they think Congress laid 
down the law over 20 years ago. But the question that I have is 
whether or not the court has strayed from that, whether the 
court is interpreting it differently than we presently today 
think it should be interpreted, because we have the obligation 
under our system of justice and our checks and balances to 
write the law.
    So that's the only reason that we are looking very closely 
at this. It's the reason that I am looking at it and I'm going 
to continue to do that and continue to try within the confines 
that we have, where it is difficult to get answers, 
understandably, in open session, but where it's even difficult 
to get answers in closed session to find out exactly what is 
going on inside that court.
    And I think it is a matter of national security. And this 
is one member of this Committee and one Member of Congress that 
is going to continue to try to get answers because I don't 
think we can ask our colleagues to vote on any proposed 
changes, to determine whether any changes are needed at all, 
unless we have really the opportunity to know what is going on, 
better than we do today, inside that court.
    Thank you, Mr. Chairman.
    Chairman Graham. Are there any other questions of this 
    Yes, Senator Kyl.
    Senator Kyl. Mr. Chairman, just not a question but if I 
think I take one thing from this hearing it kind of started 
with what Mr. Bowman testified. We have a statute that talks 
about foreign power and foreign intelligence organizations. And 
that just isn't the way the world operates any more. We now 
have a sort of amorphous cause, a philosophical/religious cause 
out there in the world today with a lot of people of different 
affiliations supporting to one degree or another that cause and 
acting in furtherance of that cause. Some of them are tied to 
each other in different ways, some are not.
    But because that's the new circumstance, at a minimum we 
need to make the change that Senator Schumer and I have 
suggested to recognize that reality. They no longer get their 
membership card in an organization and pay their dues, so 
that's an exaggeration, of course. But they're really not 
acting, necessarily, on behalf of an organization to which 
they've ever affiliated or a country but rather on behalf of an 
idea. And they're probably dealing with some people in 
connection with that.
    But to try to tie all of that up into an organization in 
some cases simply isn't--not only is it difficult and not 
possible but it may not be actually the fact, it may not be the 
case. And that, I think, more than anything, is what really 
justifies the change that Senator Schumer and I are seeking to 
make here. And since it clearly, I believe, does fall within 
the constitutional parameters here, as I said, I hope we can 
move our legislation quickly.
    And I, by the way, am very intrigued by the question that 
Senator DeWine asked here as well, and I think we need to 
pursue that as well.
    Chairman Graham. Thank you very much, gentlemen. We 
appreciate your information, your experience and your insights 
and sharing those with us this afternoon. Thank you.
    Panel number two will be Mr. Jerry Berman and Professor 
Clifford Fishman of Catholic University.
    Mr. Berman is currently the Director for the Center for 
Democracy and Technology. He formerly was chief legislative 
counsel for the ACLU and helped draft the FISA legislation. He 
currently serves as the chair of the Advisory Committee to the 
Internet Caucus.
    Professor Fishman is Professor of Law at the Catholic 
University's Columbus School of Law, where he teaches criminal 
law, criminal procedure and evidence. A graduate of Columbia 
University Law School, his professional career includes service 
as an assistant district attorney in New York, and as chief 
investigating assistant district attorney in the Special 
Narcotics Prosecutor's Office of the city of New York. He has 
extensive trial experience and is a published author on issues 
of evidence and wire-tapping.
    Mr. Berman.
    [The prepared statement of Mr. Berman follows:]

                    DEMOCRACY AND TECHNOLOGY

    Mr. Berman. Thank you. I appreciate again the opportunity 
to testify before the Senate Select Committee on Intelligence. 
After many, many hearings 20 years ago or so, I did not expect 
to be back reviewing and revising and thinking about FISA. But 
I think it's necessary given our new circumstances and our new 
war on terrorism and the threats that confront us.
    But it is important that we understand the context of how 
FISA came about and that when we consider changes to it that 
they be carefully thought about and deliberated and be done 
with great care. I believe that the two statutes, both the 
statute proposed by Senator DeWine and the statute proposed by 
Senator Schumer and Mr. Kyl, we've worked together on many 
issues, and however well meaning I believe that both statutes 
raise significant constitutional questions and significant 
questions about whether they will improve or hinder or make any 
difference in our intelligence mission as we go forward.
    We must understand that even if the courts upheld these 
proposals that FISA was a major departure from our traditional 
probable cause law. It was a special court. It's a secret 
    The nine judges are not picked by the 9th Circuit in a 
lottery; they're picked by the chief justice of the United 
States Supreme Court. I considered him a conservative jurist, 
and concerned about national security. So when that court, and 
how it works, it's very important that we look at it. It's a 
departure already from probable cause. It's probable cause that 
you're an agent or a foreign power and you may be engaged in 
criminal activities, so it's already a reasonable suspicion 
    I understand that it only covers aliens, and an attempt to 
limit it to aliens. But there are many aliens in this country, 
and most of us began as aliens in this country. And it's 
important that that is a community, that you want to make sure 
that you're both wanting to make sure to catch the terrorists 
within it, but you're also asking for a great deal of 
cooperation from it. And you want to make sure that they don't 
feel they're under a great and unjustified intelligence net.
    The changes are being proposed to deal with--I think we are 
talking about all across America, and all across the Congress, 
with the creation of a new Department of Homeland Security, 
that we need better intelligence analysis. The FBI Director sat 
up here and said we're three years behind in our information 
technology, and that we need better analysis, better means and 
smarter intelligence.
    The question is whether the FISA standards, as enacted 25 
years ago, are in our way. And my argument is I have--of 
course, I'm not privileged to the investigation that you're 
conducting, and I would very much hope that we wait to pass 
legislation to get the results of that investigation. But there 
are several factors which would argue that the current, the 
FISA as existed prior to 9/11 may have been sufficient, but 
that there are problems elsewhere.
    Inspector Rowley came, said they had a guy trying to fly an 
airplane, you know the facts, without trying to land it. But no 
one put it together with the facts in Phoenix where 12 Arab 
foreigners were trying to learn to fly, or with the President's 
briefing in August that they were going to use airplanes for 
sabotage or hijacking purposes, or a memo that was out there 
from Mr. Kenneth Williams from the radical fundamentalist unit 
that airplanes and hijackings might be used.
    And there was also information from the French, how 
reliable I do not know, but that Moussaoui was a part of a 
terrorist organization. If that information existed and had 
been brought together, why wasn't an application tried? And I 
have talked to people who say that the problem wasn't the 
standards, the problem was the failure to bring that 
information together. And that there was a second problem which 
is a committee factor running around within the Justice 
Department, partly brought on by filing false affidavits in a 
prior case, wanting to have a 1,000 batting average, not liking 
terrorist cases. Nothing that you change in terms of standards 
is going to do anything about that.
    Let's come back quickly, and I know time is limited, to the 
standard changes. Creating a lone wolf or individual foreign 
power turns FISA upside down. It was to study foreign 
governments, foreign threats, major threats, and it added 
terrorist organizations because they were a new kind of threat. 
But they're in there and if you're an agent or connected to 
them, you're covered.
    But to say that an individual is a foreign power turns 
intelligence upside down, which is trying to connect the dots 
between organizations and within organizations. I think that if 
you have information on Moussaoui that doesn't meet a FISA 
court warrant, you might have met a Title III warrant. But to 
try and change FISA and lower it by changing that standard I 
don't think may help you. You still have to prove, as Mr. Kyl 
pointed out, that the person is engaged in international 
terrorism activities. And I believe that in 99 percent of the 
circumstances you are going to have to say that he's a member 
of a group. So the court is, in looking at an order under the 
Kyl-Schumer bill, I think, is back in the same place with the 
Justice Department saying we ain't got the evidence, not 
without the connections.
    And the second point that I would make is that if we put 
the two together and lowered the standard to reasonable 
suspicion, as Mr. DeWine proposes, I believe that is clearly 
unconstitutional. One: the Abel case says the Constitution 
applies to aliens. The Keith case, which ruled that 
intelligence--that wiretaps--can be applied to domestic cases 
said lower standards can be used. But we are talking about a 
new mixed statute, which is not only intelligence but criminal 
and can be used for criminal prosecution purposes.
    And if the court finds that you're using FISA to get 
criminal prosecutions, there will be great questioning of the 
basis on which you gather that information and the 
Constitution, Fourth Amendment, says ``probable cause'' and I 
agree, in final, with the Attorney General said it is the 
Constitution is getting in our way and that's the point. And 
that's the point--the Constitution here--and it is in your way.
    Thank you very much.
    Chairman Graham. Thank you very much, Mr. Berman.
    Professor Fishman.
    [The prepared statement of Mr. Fishman follows:]


    Mr. Fishman. Thank you, Mr. Chairman.
    I thank the committee for giving me the opportunity to 
testify today about these two bills. S. 2586 is a useful 
proposal which closes a gap in FISA by permitting surveillance 
of an individual whom the government can show came to this 
country to commit an act of terrorism even if it lacks evidence 
connecting him to a foreign country, terrorist organization or 
other group. Even a lone wolf might use his computer or 
telephone, for example, to obtain from innocent people the 
information or materials he needs to be able to kill, destroy 
or disrupt. S. 2586 would make it easier for the government to 
find out whether the suspect is in fact a terrorist and, if so, 
to stop him and to identify his accomplices, if any.
    As to its constitutionality, I can think of no theory why 
surveillance that would be lawful where two or more people are 
suspected should be unlawful when an evil man is acting alone. 
And if the committee wishes later, I could spell out the 
differences in a situation like that between FISA and Title III 
and why FISA might be necessary even though Title III is 
    S. 2659 is a bit more problematic. Currently FISA 
surveillance is permissible only if the government has probable 
cause--the same quality of information required for a search 
warrant or to make an arrest--that the target is an agent of a 
foreign power or international terrorist organization or group. 
U.S. persons would continue to be protected by the probable 
cause requirement but only reasonable suspicion, the same 
quality of information needed to stop someone temporarily, 
question and frisk him for weapons, would be needed to tap or 
bug or search a non-U.S. person.
    The bill appears to address the Zacarias Moussaoui case. As 
we now know, FBI agents in the field believed they had what was 
necessary for a FISA warrant. They were turned down by FBI 
headquarters. If the legal standard had been reasonable 
suspicion, perhaps the FBI would have gotten the order and the 
outrage of September 11 might have been prevented. And that is 
the first and main reason why, despite my qualms, I am in favor 
of S. 2569 because it could significantly help the government 
interdict terrorism. Still, I acknowledge the potential for 
substantial intrusion into privacy that bill presents and that 
some doubts exist about its constitutionality.
    It is a well established principle that people who are in 
the United States illegally or only temporarily enjoy somewhat 
less legal protection than citizens and green card holders. 
This supports the constitutionality of requiring less 
information--that is, only reasonable suspicion--to authorize 
surveillance of such people than is required to surveil U.S. 
persons. But I would want to study the question further. I've 
been studying and practicing and writing about the Fourth 
Amendment for 30 years. My gut reaction is that S. 2659 would 
be constitutional but I'd be much more comfortable if I could 
study it more extensively before expressing a final opinion.
    We must remember moreover that such electronic surveillance 
and physical searches inevitably would intrude into the privacy 
not only of the non-U.S. person who was the target but of many 
U.S. persons as well--anyone the target talks to on his 
telephone or shares space with or communicates with by 
computer, depending upon the type of surveillance. Until now 
the law has not permitted that degree of intrusion into anyone 
without a search warrant or interception order based on 
probable cause. Thus, this proposal boldly goes where no law 
has gone before.
    I support S. 2659 for a second reason. It reduces the 
likelihood that courts will be tempted to define probable cause 
down to help fight terrorism. Theoretically, probable cause 
means the same thing--a ``fair probability'' that evidence of 
wrongdoing will be uncovered--regardless of what the 
authorities are looking for--a single marijuana cigarette, a 
videocassette shoplifted from a local store or evidence of a 
conspiracy to blow up buildings or poison an entire city.
    But it is simple common sense that a judge will view the 
government's showing more liberally in the latter situation. If 
there is anyone here in the room who volunteers to be the judge 
who turns down a warrant that could prevent the next September 
11, please raise your hand. But if judges take a more liberal 
approach to finding probable cause in terrorism investigations, 
this could spill over into probable cause determinations in the 
normal law enforcement context, which might have a more serious 
impact on privacy than the creation of the narrow, tightly 
tailored exception to probable cause requirements proposed in 
S. 2659.
    I support S. 2659 for a third reason. I am confident that 
existing legal protections and practical pragmatic 
considerations provide sufficient guarantees against excessive 
wide-ranging invasions of privacy. The primary legal protection 
is FISA's minimization provision. Investigators are required to 
minimize the interception, retention or distribution of 
evidence that does not reveal foreign intelligence information 
or evidence of crime. And from a pragmatic and practical 
perspective, the government lacks the resources or the desire 
to engage in broad wholesale surveillance of non-U.S. persons.
    In sum, despite my reservations, I believe S. 2659 is a 
sound proposal and will ultimately be upheld as constitutional 
because it is narrowly tailored to fill a compelling need and 
because it passes the ultimate constitutional test: the 
surveillance authorized by the proposal is reasonable under the 
    Thank you.
    Chairman Graham. Thank you, Professor.
    Mr. Berman, if it could be shown to the FISA's court 
satisfaction under either the current standard or the standard 
suggested by Senator DeWine that a non-U.S. person is engaging 
in international terrorist activities or is preparing to do so, 
what, in your opinion, does the additional requirement in the 
current FISA law that the person must also be an agent of a 
foreign tourist group add to the protection of the civil 
liberties of the potential target?
    Mr. Berman. What it adds to is, first of all, there is a 
limitation on whether preparation can be merely First Amendment 
activity. There is--the question I think is whether we are 
going to change our intelligence investigative authority away 
from surveillance of organizations and into surveillance of 
individuals. And I think that is a major change and it is 
actually the beginnings of creating a domestic intelligence 
agency. We've never had one. It is the potential use of the 
lower standards for criminal investigative purposes that I am 
concerned about.
    Chairman Graham. Professor Fishman, could you give us your 
opinion on that question?
    Mr. Fishman. I don't see any significant deterioration of 
civil liberties by allowing security officials to go after a 
lone wolf the way they are now allowed to go after a group of 
two people.
    Mr. Berman. Excuse me. Under our----
    Chairman Graham. Excuse me.
    Mr. Berman. I'm sorry.
    Chairman Graham. Professor, did you have any further 
    Mr. Fishman. No.
    Chairman Graham. Mr. Berman.
    Mr. Berman. If there's a lone wolf and he's engaged in 
terrorist activities in the United States, he should be a Title 
III warrant and he should be investigated by a criminal 
investigative authority so he can be brought to justice and 
arrested and stopped from doing a terrorist act. That is what 
should happen when it's an individual. That is well within the 
authority of the FBI. It's well within their 
counterintelligence mission and it's what I think the American 
public wants to see happen. Why are we changing this into an 
intelligence focus? What is wrong with the authority of our 
criminal laws to bring someone to justice and get them off the 
streets and prosecute them? If you have probable cause of a 
crime, arrest them.
    Chairman Graham. Yes. Mr. Fishman.
    Mr. Fishman. Quite often, I think Title III would be the 
way to go in this case. But there are many circumstances in 
which Title III might not be appropriate. Title III 
applications and orders are processed in the normal court 
system. In matters concerning foreign intelligence and 
antiterrorism, greater security is called for. The FISA court 
provides that.
    FISA and Title III have very different minimization 
procedures. Under FISA, it is lawful to capture everything and 
then weed out what is to be retained. Title III, by contrast, 
generally requires minimizing at the time the communication 
occurs. If we're talking about national security, the more 
inclusive approach authorized by FISA is appropriate.
    Finally, Title III requires eventual disclosure of the 
suspect of the fact that an order was obtained and that 
surveillance was conducted, whether or not any criminal charges 
are filed against him. Normally, that is as it should be.
    Under FISA, by contrast, unless the surveillance results in 
criminal charges, the target does not have to be notified about 
the surveillance; and even if charges are brought, the target 
is entitled to much less information under FISA than under 
Title III. S. 2586 gives national security officials the option 
of avoiding any disclosure to the target where national 
security interests outweigh the importance of bringing criminal 
    Now, wholesale wiretapping without ever disclosing what's 
going on clearly does impinge or threaten civil liberties. But 
I don't think there's any record of that being done regularly 
under FISA now, nor do I think that is likely to occur if the 
Kyl-Schumer bill is enacted.
    Mr. Berman. May I respond for just one moment? I think it's 
interesting that you propose this in extraordinary 
circumstances, there may be cases where might what proceed 
under Title III is of such importance to national security that 
we ought to track it under FISA when an individual is 
concerned. That might be an--that's not part of legislation 
that's pending. It's interesting.
    What is also interesting is you don't want to--I think you 
said, you do not want a routine use of FISA where the normal 
due process rules of disclosure to an attorney in a case if a 
prosecution is brought, rules of evidence that apply, 
minimization is--doesn't apply under FISA--those are 
extraordinary circumstances and they ought to apply. And 
particularly if you're beginning to use FISA as a criminal 
investigative standard, which has happened under the Patriot 
Act. It now has a dual purpose. And we civil libertarians and I 
think many of you and the Congress are worried about are we 
helping our intelligence agencies but also creating a back door 
around our due process requirements in our criminal justice 
    Chairman Graham. Thank you, Mr. Berman.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    This is a good discussion; I appreciate both of you being 
here. I especially appreciate Professor Fishman's response to 
your concern, Mr. Berman, about--I mean, it seemed to me you 
were kind of attacking the fundamental premise of FISA 
altogether, that you prefer we just not even have it, if you 
had your druthers.
    Mr. Berman. I honestly didn't say that. I helped to draft 
it and I was very much in support of it.
    Senator Kyl. So you still think FISA is a good idea then?
    Mr. Berman. FISA?
    Senator Kyl. Yes.
    Mr. Berman. Absolutely.
    Senator Kyl. Okay. I was beginning to wonder.
    Mr. Berman. Go back, I got a pen.
    Senator Kyl. I accept what you say. [Laughter.]
    But out by saying that we need better intelligence analysis 
and that the problem, as Agent Rowley pointed out was a problem 
of follow-up and so on and the change in statute won't help 
that, and that's all true. There are many problems, one of 
which is a substantial change in circumstances about how 
terrorists operate. So all of the other red herrings, I would 
assert, are not really relevant to our inquiry here. We have to 
solve those problems too. But this is another problem we have 
to solve.
    Mr. Berman. Let me--may I make----
    Senator Kyl. Let me just finish because I have a question 
for you here. You said that the lone wolf aspect of Kyl-Schumer 
turns FISA upside down, and it changes from a look at an 
organization to an individual and that's why it changes it 
upside down. You know, if we said we have to look at the KKK or 
organizations and we could never look at a Timothy McVeigh, for 
example, then I think we'd have the analogy in the Title III 
    But taking it right back to FISA situation, you've got this 
shoe bomber, Richard Reed. I don't know all the circumstances, 
we can't discuss them in this situation. But here's a guy who 
appeared--he was a non-U.S. person coming from a foreign 
country, he was obviously intending to blow up an international 
flight--in other words conducting terrorism, internationally--
but I'm not sure that we can connect him up to an organization, 
a terrorist organization. He attended a mosque in London with a 
bunch of other shady characters; doesn't necessarily mean that 
he's connected to a specific organization. Should we be 
precluded because of those facts from looking at him, where, if 
we could prove that he was talking to one other guy, then we 
could look at him? You see, it didn't seem to me that that 
rationale is a valid one.
    Mr. Berman. I'm sorry. It doesn't mean when you can't open 
a FISA investigation or an intelligence investigation that you 
don't open an investigation. Presumably, our criminal law 
enforcement people are following around, collecting 
    Senator Kyl. Let me be more precise about my question, 
then. If we are warranted, where there are two or more.
    Mr. Berman. Yes.
    Senator Kyl. Under FISA, which you helped to write and 
    Mr. Berman. Yes.
    Senator Kyl. Then why wouldn't we be warranted as long as 
there has to be probable cause of the international terrorism 
connection with an individual, not using the FISA process to 
further investigate him?
    Mr. Berman. I just think again, it was meant to--the 
purpose of giving broad search and secret search and very broad 
authority was to allow intelligence agents to make very serious 
connections between the members, the purposes of organizations, 
so it's like organized crime. And it's a very different, far 
more intrusive investigation and that's why it applies to 
    And I'm just going to insist on that line, that maybe two 
or more people, and I might want it to be 10 or more people, 
but it has a justification in that--because of the leeway that 
we give to that--those investigations. And I don't think that 
we're talking about not investigating. We're talking about----
    Senator Kyl. Using the FISA process.
    Mr. Berman. We're also talking about the lower you make 
that process, I think the more you rely on wiretapping.
    Senator Kyl. What's the rationale for distinguishing 
between the individual who is doing something just as heinous 
as the individual talking to a buddy of his about doing that 
same act?
    Mr. Berman. I'm making no distinction except in which 
investigative bucket do you put that.
    Senator Kyl. I don't think you can make--in other words, if 
FISA is warranted in the first, I don't understand why FISA is 
not warranted in the second. Professor Fishman, what's your 
view on that?
    Mr. Fishman. As I've said, I think that what the law says 
is lawful for two or more people ought to be lawful in 
investigating one person.
    Mr. Berman. Well, then, we shouldn't have a criminal 
investigative rule at all. I mean, we just ought to have just a 
large intelligence investigative operation operating under less 
than probable cause or evidentiary rules.
    Senator Kyl. In matters other than in international 
    Mr. Berman. The discussion about----
    Senator Kyl. You don't really believe that, do you? I mean, 
you are being facetious.
    Mr. Berman. Excuse me?
    Senator Kyl. Are you being facetious? Or do you really 
believe that?
    Mr. Berman. Believe what?
    Senator Kyl. That we shouldn't have a Title III situation 
    Mr. Berman. No, I believe we should have a Title III 
situation. But I do believe that the intelligence authority and 
the intelligence investigations should belong to group 
organizations. And you can't--I think when people hear that 
you've defined an individual, that Moussaoui is now a foreign 
government or a foreign power, that there will be a lot of head 
scratching by many people who try to think about intelligence 
investigations and what they're about.
    Senator Kyl. Professor Fishman.
    Mr. Fishman. In a safer world I would agree with Mr. 
Berman. Unfortunately, that's not the world we live in now. We 
have to take reasonable measures to protect ourselves and our 
institutions. I think this is a reasonable measure.
    Senator Kyl. Thank you.
    Chairman Graham. Thank you, Senator.
    Senator Kyl.
    Senator DeWine. Thank you, Mr. Chairman.
    Chairman Graham. I'm sorry, Senator DeWine, I apologize.
    Senator DeWine. Thank you, Mr. Chairman.
    Mr. Chairman, I think we've had a very enlightening and 
very good discussion with two scholars. I'm not sure that I can 
add a lot. I think that their willingness to engage each other, 
which always livens things up a little bit and makes our job a 
lot easier, was very good.
    Let me just say that I have been in touch, Mr. Chairman, 
with Professor Phillip Heymann, a former Deputy Attorney 
General, who would like to submit testimony for the record in 
support of S. 2659. That testimony is forthcoming. I would now 
ask the Chairman to keep the record for a few days so we can 
accept that testimony.
    Chairman Graham. Without objection, so ordered.
    [The statement for the record of Mr. Heymann follows:]

    Senator DeWine. In addition, Mr. Chairman, I would like to 
submit at this time a letter of support from the National 
Association of Police Organizations for S. 2659.
    Chairman Graham. Without objection, so ordered.
    [The statement for the record of the National Association 
of Police Organizations follows:]


    Senator DeWine. Thank you very much, Mr. Chairman.
    Chairman Graham. Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    I agree this has been very interesting. Let me just kind of 
informally talk with you for a couple of minutes because it 
seems to me that when FISA was written the world was very 
different. The Berlin Wall wasn't down. We were talking about 
Soviet spies. We were talking about KGB. And the entire 
intelligence apparatus was extraordinarily different because 
there there was a direct connection to a government. Senator 
Kyl, I think, spoke correctly. The world is very different now.
    Let me ask you this question, Mr. Berman. Right now--and 
this is hypothetical--right now in flight schools we learn that 
there are people who fit the definition of foreign, that one or 
two of them have visited al-Qa'ida facilities, another might 
have been a product of a radical madrassa in Peshawar. Should 
the United States government be able to get a FISA warrant?
    Mr. Berman. I have a proposal, which is----
    Senator Feinstein. No, no, answer my question.
    Mr. Berman. It's too--give me your example again.
    Senator Feinstein. I just gave you the example.
    Mr. Berman. It's two are at a flight school--I'm sorry, I--
    Senator Feinstein. All right, you have a couple of 
foreigners at a flight school today, and we learn or the 
government learns about them that one or two of them have 
visited or been part of an al-Qa'ida training camp.
    Mr. Berman. Yes.
    Senator Feinstein. Should the government be able to get a 
FISA warrant?
    Mr. Berman. They should be able to get a FISA warrant.
    Senator Feinstein. Supposing you have an individual that's 
been schooled in a radical fundamentalist madrassa who is in 
this country trying to buy a precursor chemical, should you be 
able to get a FISA warrant?
    Mr. Berman. You may not have enough probable cause because 
you can't connect him to a group. You may--but you can 
investigate them. But I don't know whether you'd have enough 
for probable cause.
    Senator Feinstein. See, that's where I think the world has 
changed, because these are the very threats. You can't prevent 
it from happening if you can't get enough ahead of it. And 
that's what the FISA warrant allows you to do that the civil 
side does not.
    Mr. Berman. But if we bring the standard down to reasonable 
suspicion so that we can take care of cases like this----
    Senator Feinstein. I'm not talking about that. I'm just 
talking about the one bill. I'm just talking about the Kyl-
Schumer bill, which takes out foreign power, because none of 
these people are connected to a foreign power.
    Mr. Berman. But if you look at the definition, this is one 
of the things that I've been trying to talk over with your 
experts on your Committee. The definition of a foreign power in 
this section is someone engaged in international terrorism. And 
since it falls under the probable cause that someone is a 
foreign power do you have to show probable cause that they are 
engaged in terrorist activity.
    Senator Feinstein. Well, of course, isn't that probable 
cause right then and there? I mean, I think, it's interesting 
to me that with Moussaoui the Department did not pursue a FISA 
    Mr. Berman. I'm just saying that----
    Senator Feinstein. So they didn't take this step----
    Mr. Berman [continuing]. If it's probable cause----
    Senator Feinstein [continuing]. Because they didn't believe 
they could satisfy it. It's also very interesting to me that 
their batting average is so high. I'm amazed at that, which 
indicates to me they haven't brought all that many warrants, 
frankly. And I mean if you believe there's a problem out there, 
and I happen to believe there is a problem out there, I happen 
to believe there are people that want to----
    Mr. Berman. Let me just----
    Senator Feinstein [continuing]. Wreak terrible damage on 
American citizens.
    Mr. Berman. I'm now going to play on the lone wolf side for 
a second. But what I want to understand is why that changes the 
analysis that the Justice Department applied to it, which is 
they needed probable cause that Moussaoui was engaged in 
international terrorist activities. They said, we didn't have--
there's two different stories. And you have the facts. We had 
probable cause to believe that he was engaged in terrorist 
activity, but we couldn't tie him to a specific foreign power 
on our list. There's another side which is that, hey, we just 
didn't have probable cause, but he was engaged in terrorist 
activity. All we knew is that he was at a flying school, and we 
didn't have more.
    Why would, if they had to have the evidence of a crime and 
not just that they could name the group, what evidence--the 
Schumer-Kyl bill is still requiring evidence that the Justice 
Department may not have granted--may have said, we don't have 
the evidence to grant this warrant, even with their change. So 
would the change change the situation? That's my question to 
    Senator Feinstein. Appreciate that. Mr. Fishman, do you 
have a comment?
    Mr. Fishman. I think in a limited number of cases the Kyl-
Schumer bill would, in fact, give the government the 
opportunity to do what it otherwise could not. Take for example 
the situation of a foreigner who looks like he's trying to put 
together the same materials as Terry McNichols used to blow up 
the building in Oklahoma City. He's a foreigner. He's from, 
let's say, the Mideast. But no evidence connects him to any 
organization. In that situation one currently now could not use 
FISA to obtain a surveillance order against him.
    And there may be reasons why Title III simply would not be 
the way to go for the reasons I discussed earlier. So I think 
that's the sort of rare situation that Kyl-Schumer would, in 
fact, give the government the opportunity to do what needs to 
be done that under current law it could not.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman.
    Mr. Berman. May I ask one more question for your Committee 
to ask the powers that be?
    Senator Feinstein. Sure.
    Mr. Berman. The standard is agent of a foreign, which is 
where changing the law in this area--so an agent is now an 
individual or a foreign power is now an individual is engaged 
in international terrorism or activities in preparation 
thereof. In the U.S. section, it says, provided solely that 
none of that should involve simply First Amendment activities.
    The question is, does this pick up a visitor who makes a 
speech, you know, I hate the United States, in London or in 
Palestine. They come to the United States. Are they now engaged 
in international terrorism or activities in preparation thereof 
and therefore every American that may talk to them on the 
telephone is now under surveillance or potentially on a watch 
    Senator Feinstein. I don't know if in preparation--I don't 
think so but I don't know that ``in preparation of'' means 
raising money for. If it does, my answer would be, I think, 
yes. If you're doing that to raise money to commit a terrorist 
act, I think that's a bona fide issue.
    Mr. Berman. One thing that was, when FISA was enacted, 
however it was done, there was--it's a very complicated statute 
and there was a complicated legislative history to support it. 
One of the things I found most troubling, not about the changes 
that have been made in Patriot and so on, although I've got 
some problems, but the unwillingness where there are hard 
questions of this Justice Department to be willing to state in 
legislative history what they mean about certain things so that 
courts and reviewers can look at it. This opposition to 
legislative history leaves you with a plain text definition, 
which is very unsatisfying in very complicated policy areas 
like this.
    I would urge a legislative history accompanying any 
legislation that you mark.
    Senator Feinstein. Thank you. Thank you, Mr. Chairman.
    Chairman Graham. I'd like to ask another question relative 
to Senator DeWine's bill. What is the practical difference in 
what the requesting agency, the FBI for instance, would have to 
show in order to be able to meet the current standard of 
probable cause or the standard that's being suggested, which is 
reasonable suspicion?
    Mr. Fishman. We're talking about shades of gray, Senator. 
It's difficult to define other than if you've studied the cases 
enough, you develop an instinct for what satisfies which 
standard and which does not. That's not a satisfactory answer, 
I realize. Probable cause is a darker shade of gray than 
reasonable suspicion. That's the best answer I can give. It's 
not a good answer at all.
    Chairman Graham. Let's say if this were a 100-yard track 
and probable cause to get to the end would require you to get 
to 80, where would reasonable suspicion--how close is 
reasonable suspicion? Is it a 60 or is it a 78?
    Mr. Fishman. I'd say it's probably closer to 30 or 35.
    Chairman Graham. It's that far below probable cause?
    Mr. Fishman. We're talking abstractions but all that 
reasonable suspicion requires is the officer has to be able to 
say, this is what I've seen, this is what I've learned. 
Applying my experience and expertise, this is why I suspect 
this person might be about to do something wrong. Probable 
cause requires a fair probability that something illegal is 
being done or incriminating evidence will be found. ``Fair 
probability'' sounds like it means ``more probable than not.'' 
But it does not mean that. It means less than preponderance of 
the evidence. That's the difficulty.
    It's fascinating. Probable cause, that phrase, is in the 
Constitution. Several Supreme Court decisions and tens of 
thousands of lower court decisions have focused on probable 
cause since the Fourth Amendment was ratified. Yet we still 
don't know for sure what it means. The best the Supreme Court 
has come up with is, based on all the circumstances, is there a 
fair probability of criminality or that incriminating evidence 
will be found. That's the best the courts have come up with.
    Mr. Berman. It has a kind of Stevens talking about 
pornography quality to it. We know it when we see it, but I 
think it's--Terry or reasonable suspicion has been we have 
enough to make a Fourth Amendment intrusion, which means we 
stop, frisk, look around. But that's based a lot on appearances 
and informant information and so on. In order to conduct a more 
intrusive search--home, telephone--we want something more 
concrete and articulable than just the facts and circumstances 
which say, I think a crime is happening. We think that it has 
to be facts which say, we are reasonably not certain, but we 
have reasonable grounds to believe that if we keep pursuing, we 
are going to find the crime is real.
    Mr. Fishman. The reason the Supreme Court more or less 
invented the reasonable suspicion test in Terry is because the 
police procedure involved in Terry, ``stop and frisk,'' is much 
less intrusive than the types of procedures normally requiring 
probable cause. A stop or a frisk, a brief questioning, a 
patdown, however upsetting it is to the individual, is nowhere 
as intrusive as a search of the home or an arrest, or a search 
of a person's pockets and so on.
    What's unusual, perhaps even radical, about Senator 
DeWine's proposal is that it would take the reasonable 
suspicion standard and apply it to an extremely intrusive form 
of surveillance. There's nothing more intrusive than 
surreptitious electronic surveillance of communications. It 
would be a radical change from the current state of the law. I 
think it would nonetheless be upheld as constitutional because 
it is very tightly drawn and because of necessity in which we 
find ourselves, given the sick and dangerous world that we 
exist in. But it clearly is a significant departure from the 
entire range of reasonable suspicion jurisprudence the Supreme 
Court has given us to date.
    Mr. Berman. And my last comment, if it's the last comment, 
is that I don't think a case has been made how this standard if 
applied, would put us in any real different factual 
circumstances than we were in the cases that we're looking at. 
And if you can't show a major pay-off, why risk the 
constitutional uncertainty and increase the pool of people that 
may end up on a watch list, and we don't know where we're going 
with all of this, how far the intrusion is going to be, whether 
you're going to be stopped, whether you're going to be 
searched, whether you're going to be followed. I understand our 
country is under a serious threat but the pressure on civil 
liberties is also going to be serious and we want to maintain 
that balance.
    Chairman Graham. Senator Kyl.
    Senator DeWine.
    Senator DeWine. Just a follow-up, if I could. Mr. Fishman, 
you have pointed out in your testimony that under our bill we 
are talking about non-U.S. persons. We're not talking about 
U.S. citizens. We're not talking about resident aliens, legal 
resident aliens. We are talking about non-U.S. persons. And 
you've also in your testimony--Mr. Berman disagrees with you in 
his written testimony--have said that the courts have made some 
distinction between the way non-U.S. persons and U.S. persons 
can be treated. Is that correct?
    Mr. Fishman. Particularly non-U.S. persons who are here 
unlawfully. Yes.
    Senator DeWine. Unlawfully. Let me, if I could, quote from 
Terry and ask you if this is--not if it's a correct quote, I'm 
reading directly from the Supreme Court, but is this the 
essence of it. If it's not, then you can add something to it.
    Mr. Chairman, I think when we look at reasonable suspicion, 
it is helpful to look at this part of Terry. The court says, 
``In justifying the particular intrusion, the police officer 
must be able to point to specific and articulable facts which, 
taken together with rational inferences from those facts, 
reasonably warrant intrusion.''
    Is that basically the essence of it?
    Mr. Fishman. Yes, Senator. That's the standard that the 
Court enunciated in Terry and has stuck to ever since. It's not 
enough to have a hunch. It's not enough to have an 
inarticulable feeling. There has to be some evidence put 
together with other circumstances and experience which justify 
the reasonable suspicion. That's correct.
    Senator DeWine. Then it goes on to say, ``It is imperative 
that the facts be judged against an objective standard. Would 
the facts available to the officer at the moment of the seizure 
or the search warrant a man of reasonable caution to believe 
the action taken was appropriate?''
    Mr. Fishman. Precisely, Senator.
    Senator DeWine. That it is in fact an objective standard as 
    Mr. Fishman. Yes, it is. The Court has insisted on that 
throughout, yes.
    Senator DeWine. We've finally found, Mr. Chairman, 
something that both our witnesses can agree on as far as what 
the law is.
    Mr. Fishman. Absolutely.
    Mr. Berman. We agree on that.
    Senator Kyl. Mr. Chairman, could I just ask one more 
    Chairman Graham. Okay.
    Senator Kyl. One of the ideas that I originally had--and 
I'm not proposing this right now because it would require 
Senator DeWine's concurrence and we haven't had a chance to 
visit about it--but one possibility here is to take the Kyl-
Schumer as one change to reduce the requirement of the 
organizational connection but maintaining the probable cause 
requirement to international terrorism. And then flip the coin 
over and say, however, if you have reasonable suspicion--if you 
can prove--if there is probable cause to believe that the 
individual is acting in concert with known terrorists as part 
of an international terrorist organization or is an agent of a 
foreign power--in other words, you've got a probable cause 
requirement to establish that, which is the existing law--then 
you could reduce the evidence of the planning to commit or is 
in the process of committing an act of terrorism to the 
reasonable standard test that Senator DeWine has suggested.
    The idea behind that being that, if you can demonstrate the 
connection to an agent of a foreign power or to a terrorist 
organization, then it would warrant a lower standard to get in 
and find out what's on this person's computer or what's in his 
home. But if you can't establish by probable cause the 
connection to the foreign government or terrorist organization, 
then you're going to have to have the existing probable cause 
    Mr. Fishman. In other words, probable cause of the 
connection to the group would be enough, plus reasonable 
suspicion that this particular individual is engaged in 
terrorist activities?
    Senator Kyl. Correct.
    Mr. Berman. There's another formulation of that which if 
you want to drop the--if you lower the probable cause prong of 
whether someone is an agent of a foreign power. In other words, 
we're not sure, rather than playing with the individual versus 
is a foreign power, then you might raise the evidentiary prong 
of the second part which is if we don't know, that we don't 
have probable cause that it's a terrorist group, we have to 
have something more like probable cause of a crime as a second 
prong of the test.
    Senator Kyl. Well, that's exactly what I was saying though. 
I mean that's the Kyle-Schumer provision. You still have to 
have the probable cause of the crime or the terrorism, you 
know, but you don't have to have the probable cause with the 
connection of the foreign country because maybe there isn't 
one. But there is still--and I understand the confusion because 
of the way we're doing this. We're changing a definition and I 
would agree with you, Mr. Berman, about one thing. It's not 
done in the most clearcut way. You know, you're your own agent, 
but you're a foreign person and therefore you could be 
connected to an act of international terrorism if we can prove 
that you're engaged in a terrorist activity.
    Mr. Berman. Right.
    Senator Kyl. So you get there but you have to connect the 
dots to get there and I understand that that does make it a 
little bit more confusing. But, if there is no probable cause 
nexus to foreign government or terrorist organization, then it 
seems to me that our bill is warranted, that you can focus on 
the individual but would have to have probable cause of the act 
of terrorism. Whereas, if you can make that connection to the 
foreign country or terrorist organization, then that would 
warrant you in applying a lesser standard--the DeWine 
standard--with respect to the terrorist activity that you're 
focused on. Wouldn't that be a possible way to approach this?
    Mr. Berman. I'd like to meet and talk about what we mean 
here because I've always read the second prong of the statute 
as a quasi-reasonable suspicion standard already. It is 
probable cause to believe that you are an agent of a foreign 
power and then it is who may be engaging in terrorism or 
activities. It's not who is--where we have probable cause to 
believe that he is engaged.
    Senator Kyl. See, I think you're correct and that's why I 
don't think that Senator DeWine's change really does that much 
damage to the intent of FISA to begin with. Do you have any 
comment on that, Mr. Fishman?
    Mr. Berman. You don't want to say it that--you want to make 
sure that it does some--if it doesn't affect the statute then--
    Senator Kyl. Then why proceed, is what you're saying, yes?
    Mr. Fishman. I hate to come on like a law professor but 
what can I do? That's what I am. I'd feel much more comfortable 
looking at the language rather than giving an off-the-cuff 
reaction, although it's an intriguing idea.
    Senator Kyl. That's fair. Thank you, Mr. Chairman.
    Chairman Graham. Are there any further questions?
    Again, I want to thank both of you. I share the opinion 
that's been expressed by the Members of the value of having two 
thoughtful, knowledgeable individuals give us the benefit of 
their evaluation of the other's comments. That helps to sharpen 
the issue, for which we are both appreciative and the 
    If there's no further discussion or questions, this hearing 
is closed.
    [Whereupon, at 4:33 p.m., the hearing was adjourned.]