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Senate Select Committee on Intelligence Hearing on USA Patriot Act of 2001

Federal News Service
Monday, July 9, 2007 2:10 PM

WITNESSES: ATTORNEY GENERAL ALBERTO GONZALES; FBI DIRECTOR ROBERT MUELLER; CIA DIRECTOR PORTER GOSS

SENATOR PAT ROBERTS (R-KS): The committee will come to order.

The Senate Select Committee on Intelligence today continues its ongoing oversight of the USA PATRIOT Act, this is the third in a series of three hearings designed to educate members and the public as the Senate considers the repeal of the sunset provision, and modification to other intelligence authorities.

Last week, the committee heard from a panel of outside experts with regard to the authorities contained in the PATRIOT Act. Later in the week, the committee held a very informative closed hearing on the use by the intelligence community field operatives of the tools provided by the PATRIOT Act, and today it is my opinion that I have heard nothing to substantiate the allegations that abuses of the tools that are provided by the USA PATRIOT Act have led to violations of the civil rights of American citizens. I have, however, heard testimony and received other information that clearly demonstrates how the PATRIOT Act has been instrumental in helping our intelligence community agents, in particular the FBI, identify and interdict terrorists and other national security threats.

The purpose of today's hearing is to receive testimony concerning the administration's position on the authorities provided in the PATRIOT Act, including those provisions subject to sunset. We have a distinguished panel. The Honorable Alberto Gonzales, Attorney General of the United States; the Honorable Robert Mueller, the Director of the Federal Bureau of Investigation; and the Honorable Porter Goss, the Director of the Central Intelligence Agency. The committee thanks all of our witnesses for being here today, and for we're taking time out of your very valuable schedule.

This series of hearings is not the committee's first review of the USA PATRIOT Act, or the Foreign Intelligence Surveillance Act, also known as FISA. The committee regularly holds hearings and conducts briefings and receives information in regard to activities of the intelligence community. The committee conducted a closed hearing on the PATRIOT Act during the last Congress. We received detailed reports form the Department of Justice every six months in regards to FISA collection, and annual reports on the use of other surveillance tools. The committee is also in the final stages of completing its second audit of the procedures and practices in the use of FISA. This comprehensive classified analysis will represent one of the most thorough reviews of the executive branch activities under FISA since the USA PATRIOT Act was enacted.

Now, before I recognize the vice chairman, I want to reiterate some fundamental principles that will inform our consideration of the USA PATRIOT Act reauthorization, and any other modifications to law or policy governing intelligence activities. First, our intelligence agencies need flexible authority to confront terrorists, spies, and proliferators and other national security threats. Second, as we seek to protect the national security, we must also ensure that civil liberties and privacy are not sacrificed in the process. This is not a zero sum game, however, as former Supreme Court Justice Arthur Goldberg noted, while the Constitution does protect against invasions of individual rights, it's not a suicide pact.

Third, these are not matters of first impression. During their interpretation of the Constitution and the president's responsibility to protect national security, federal courts have wrestled with many of these issues before. And the courts have recognized the authority of the president to warrant-less electronic surveillance of foreign powers and their agents, well established judicial precedents also make clear that certain records, even of the most private information, lose their constitutional protection when voluntarily exposed publicly, or to a business, or to a third party.

Finally, I will support reasonable modifications to the USA PATRIOT Act provisions or other authorities that clarify legal uncertainties, but I will oppose modifications that place unnecessary hurdles in the path of lawful intelligence investigations.

Now, the Senate's consideration of modifications to Section 215 of the US PATRIOT Act will serve as a good example of how I intend to apply these fundamental principles. I had previously expressed my support for the modifications made to FISA by Section 215 the "business records" that our investigators now have access to, following a review by a federal judge, are very important pieces of the intelligence puzzle. They form the basis for further investigation of national security threats.

Despite all of the talk that has been directed at Section 215, and obvious concern, I have heard of no substantial allegation of abuse or misuse. There may have been some mistakes, but it certainly didn't have anything to do with the PATRIOT Act. In fact, I believe the FBI's use of the authority may have been a little bit too judicious. While I recognize that some clarifying modifications to Section 215 may be necessary, I will oppose any modification that increased the standard for a business record order above relevance, or alterations that place unreasonably barriers between these records and the intelligence officials.

Those provisions of the USA PATRIOT Act, including Section 215, that will expire at the end of the year must be reauthorized. The alternative is a return to a failed, outdated, and illogical limit on national security investigations that tied our hands prior to the 9/11 attacks. The dangers are real, and we should give our people every constitutional tool available to fight and defeat terrorism.

I now recognize the distinguished vice chairman for any remarks he might wish to make.

SEN. JOHN ROCKEFELLER (D-WV): Thank you, Mr. Chairman.

I greet with all three of you distinguished leaders of your agencies, and express embarrassment that there are only four members of our committee here. If there are any that choose to listen to this on in-Senate television, we would welcome them coming in and participating in this committee meeting. This is not an impressive display of government oversight.

I do welcome you. Our principle focus has been on one title of the PATRIOT Act, which is Title II on enhanced surveillance procedures. That has, as we discussed before, 16 provisions that will cease to have effect, or sunset on December 31st of this year. In addition, the recently enacted Intelligence Reform Act authorizes the use of the FISA, the Foreign Intelligence Surveillance Act, in the case of so-called lone wolf terrorists. That authority is also subject to sunset at the end of this year.

So these hearings, and related hearing before the Senate Judiciary Committee, and in the House also, will help Congress to resolve two basic questions. First, on the basis of experience and further reflection since September 11th, 2001, should any of the expiring authorities be amended. And second, as originally enacted, or as amended, should the expiring provisions be made, in fact, permanent. From last week's hearings it appears that there is broad support for the proposition. Even a critic of parts of the PATRIOT Act conceded that, "we see not a single power in the act that needs to sunset or go away entirely." Rather, the issue is whether several acts, or several sections of the act should be amended to provide additional checks and balances. It's my hope that we can now begin to focus on the suggestions for improving several of the provisions that are now scheduled to expire at the end of this year.

In the Senate there is a bipartisan bill, S. 737, the Security and Freedom Enhancement Act, or SAFE Act introduced by Senator Craig. Senator Corzine of our committee is one of the 10 bipartisan cosponsors of this act. The SAFE Act would make permanent most of the PATRIOT Act's investigative tools without change, and amend several other PATRIOT Act tools to provide additional safeguards. I have reached no conclusions myself about the particulars of the SAFE Act, or I choose not to at this point, which has been referred to the Judiciary Committee, and also will be studied by our colleagues very carefully in that body.

I do believe on the basis of the breadth of sponsorship and the supporting testimony that we have heard that the legislation merits our serious consideration. I look forward to hearing from our witnesses today about the proposals in the SAFE Act, including any objections or alternative suggestions that you may have for ensuring both sufficient focus on suspected terrorists, and sufficient judicial and congressional oversight. We need effective investigative tools against terrorism. Nobody can argue that. We need to be mindful of our Constitution, and our values. And we need to build a broad public consensus that sustains our efforts against a war on terrorism, which I think will last for decades, in those years to come. This will require intensive effort by the executive and legislative branches, to give the American public additional confidence that powerful investigative tools will be used effectively, and that they will be used judiciously. I think this can be done, but the American public is not easily sold on such matters. On the other hand, fighting a war on terrorism has its own requirements by themselves.

Today's witnesses had the three organizations that are responsible, along with the Department of Defense, for developing, issuing and carrying out the legal and operational guidance at the heart of our interrogation program, and that is another matter for another day.

Mr. Chairman, I thank you, and again, I welcome the witnesses.

SEN. ROBERTS: We are pleased to have the Attorney General, and the Director of the FBI, and the Director of the CIA with us. And in the following order they will be recognized, the Attorney General, and the FBI Director, and the CIA Director. So General Gonzales, if you would like to proceed, sir, you are most welcome to do so at this time.

ATTY GEN. GONZALES: Thank you, Mr. Chairman.

Chairman Roberts, Vice Chairman Rockefeller, members of the committee, I am pleased to be here to talk about reauthorization of the PATRIOT Act. I really appreciate this opportunity to come before Congress, to discuss our successes in the war on terror, and to find new ways to fight for freedom more effectively, and consistent with the values that we all cherish as Americans. As the distinguished members of this committee know, the threat of terrorism remains very serious, and it is critical that Congress continues to provide tools that enable prosecutors and law enforcement to both confront terrorism, and investigate and prosecute other serious crimes.

I believe the authorities in the PATRIOT Act have enabled us to better protect America. But, the exercise of government authority is always worthy of respectful and accurate discussion. I'm open to suggestions for strengthening and clarifying the act, but I cannot support amendments that will weaken our ability to protect our nation. The PATRIOT Act, as we know, has helped dismantle the wall the used to separate law enforcement from intelligence officials. Prior law as interpreted and implemented sharply limited the ability of law enforcement and intelligence officers to share information and connect the dots in terrorism and espionage investigations.

As we know, Sections 203 and Section 218 of the PATRIOT Act, which are scheduled to sunset at the end of this year, brought down this wall. And together these provisions have reduced the statutory and cultural barriers to information sharing. And it is information sharing, as the 9/11 Commission, and the WMD Commission made clear, and as this committee knows well, that will make the difference in our ongoing efforts to prevent terrorism.

This committee is familiar with the successful use of Section 218, including investigation of the Portland Seven, and the GIA Jihad. Section 203 along with Section 218 was used extensively during the investigation of the Holy Land Foundation in 2004. Law enforcement professionals tell me that allowing Sections 203 and 218 to expire would discourage information sharing, making it more difficult for us to disrupt terrorist plots.

There are other similar commonsense PATRIOT Act provisions that also will expire if Congress does not take action. Section 206, which provides national security investigators with an authority long possessed by criminal investigators, authorizes the use of multi- point, roving wiretaps, tied to a specific target, rather than a specific communications facility. Before the PATRIOT Act these orders were not available for a national security investigation under FISA, a gap in the law that we believe sophisticated terrorists or spies could easily exploit. Although specific examples of the use of multi-point wiretaps under Section 206 remain classified, I can represent in this open hearing that this authority has been very valuable.

As of March 30th this year we have used this ability 49 times. Importantly, 206 contains numerous safeguards to protect civil liberties. The FISA court can only issue a roving wiretap order upon a finding of probable cause, the order must always be connected to a particular target, and minimization procedures must be followed concerning the collection, the retention, and dissemination of information about U.S. persons.

Section 215 also filled a gap in the law. It granted national security investigators authority to seek a court order for the production of records relative to a foreign intelligence investigation, similar to prosecutor's authority to use grand jury subpoenas as the building blocks of criminal investigation. Use of this provision has been judicious. We have used this authority 35 times as of March 30th of this year. Moreover, we have not sought a Section 215 order to obtain library or bookstore records, medical records, or gun sale records. Let me be clear, the reading habits of ordinary Americans are of no interest to those investigating terrorists or spies.

Section 213, although not scheduled to sunset is another valuable provision of the PATRIOT Act. Section 213 codified one consistent process and standard for delayed notice search warrants, which can be used in limited circumstances, with judicial approval, to avoid tipping off criminals who otherwise might flee, destroy evidence, intimidate or kill witnesses, cut off contact with associates, or take other action to evade arrest. Now the portion of Section 213 that has received the most attention is the provision allowing a court to authorize delayed notice if immediate notice would, "seriously jeopardize," an investigation. I'd like to describe one actual case where immediate notice would have seriously jeopardized an investigation.

In this case the Justice Department obtained a delayed notice search warrant for a Federal Express package that contained counterfeit credit cards. At the time of the search it was very important not to disclose the existence of a federal investigation, as this would have exposed a related Title III wiretap that was ongoing for major drug trafficking activities. An organized crime drug enforcement task force, which included agents from the DEA, the IRS, the Pittsburgh police department and other state and local agencies was engaged in a multi-year investigation that resulted in the indictment of the largest drug trafficking organization ever prosecuted in the western district of Pennsylvania.

While the drug trafficking investigation was ongoing it became clear that several leaders of the drug trafficking conspiracy had ties to an ongoing credit card fraud operation. An investigation into the credit card fraud was undertaken, and a search was made of a Federal Express package that contained fraudulent credit cards. Had notice of the Federal Express search tied to the credit card fraud investigation been immediately given, it could have revealed the ongoing drug trafficking investigation prematurely, and the drug trafficking investigation might have been seriously jeopardized. Even modest delay would not have been available if this provision of Section 213 were deleted. It is critical that law enforcement continue to have this vital tool for those limited circumstances where a court finds good cause to permit the temporary delay of notification of the search.

Finally, I'd like to close by addressing a common question that must be answered by this committee and this Congress, the issue of whether we should continue to impose sunset provisions on critical sections of the PATRIOT Act. The PATRIOT Act was a swift and decisive response to the attacks of September 11th. In the weeks and months following the attacks in Washington, Pennsylvania, and New York, Democrats and Republicans came together to address the vulnerabilities of our nation's defenses. Both Congress and the administration worked with experienced law enforcement, intelligence, and national security personnel to design legislation to better protect the American people. Although there was extensive consideration in 2001, and although it is unusual to impose sunsets on statutory investigative tools, Congress included sunsets for certain provisions of the PATRIOT Act, because members wanted to ensure that we were not risking the very liberties we were setting out to defend. And I think today we can all be proud.

The track record established over the past three years has demonstrated the effectiveness of the safeguards of civil liberties put in place when the act was passed. There has not been one verified case of civil liberties abuse. Our nation is stronger and safer, our bipartisan work has been a success. The Department of Justice has exercised care and restraint in the use of these important authorities, because we are committed to the rule of law. We have followed the law, because it is the law, not because it is scheduled to sunset. With or without sunsets our dedication to the rule of law will continue. The Department will strive to continue to carry out its work lawfully and appropriately, and as a citizen I expect Congress will continue its active oversight over our use of the PATRIOT Act, not because it sunsets, but because oversight is a constitutional responsibility of Congress.

So given the Department's record in using these authorities, the obvious effectiveness of these tools in stopping violent crimes, and protecting our nation, and the authority of Congress to reexamine these provisions at any time to correct abuses, the sunset provisions are, in my judgment no longer necessary and should be repealed. The authorities in the PATRIOT Act are critical to our nation's efforts in the war against terrorism. The act has a proven record of success in protecting the security of the American people, while simultaneously respecting civil liberties. And I question how we can allow its most important provisions to sunset. The efforts of the terrorists to strike our country surely will not sunset.

I look forward to continuing to work with this committee in the period ahead, listening to, and responding to your concerns, and joining together again to protect the security of the American people.

Thank you, Mr. Chairman.

SEN. ROBERTS: Thank you, General.

We now recognize Director Mueller. Welcome back to the committee, Bob.

MR. MUELLER: Thank you, and good morning, Mr. Chairman, Senator Rockefeller, and other members of the committee. Good morning. I'm also pleased to be here today to talk about the PATRIOT Act, and how it has assisted us in the war on terror.

Indeed, the PATRIOT Act has changed the way the FBI operates, and I will say that many of our operational counter-terrorism successes since September 11th are the direct result of the changes incorporated in the PATRIOT Act. The formal statement that was submitted by the Attorney General and myself focuses on the key areas, and the key uses of the FISA authorities in the war on terrorism. And as is set forth in that statement, I share the attorney General's belief that these vital tools that have been used regularly and effectively in our efforts to prevent another attack should be renewed.

This morning I would like to emphasize the importance of a portion of the PATRIOT Act, that portion that relates to information sharing, and address the fundamental manner in which those provisions have changed the way we do business.

Last week I know this committee heard directly from our operational personnel, who provided, in a classified setting, specific examples of how the PATRIOT Act information sharing provisions have altered the landscape for conducting terrorism investigations. The committee heard not only from FBI headquarters and FBI field office personnel but also from our partners in the CIA and our partners at the NSA about the coordinated teamwork approach that has guided our operations over the past three years. Such interagency teamwork has successfully foiled terrorist-related operations and cells from Seattle to Detroit to Lackawanna, New York. And while the law prior to the PATRIOT Act provided for some exchange of information, that law was complex and, as a result, agents often erred on the side of caution and refrained from sharing information.

Our current integrated approach, which grew from the PATRIOT Act's information sharing provisions, eliminated that hesitation and now allows agents to more openly work with other governmental agencies, whether they be at the federal, the state or the local level. Prior to the PATRIOT Act, the federal law was interpreted to limit the ability of our criminal investigators to disclose criminal wiretap or grand jury information to counterparts working on intelligence investigations. Sections 203A and B of the PATRIOT Act have eliminated these barriers to information sharing, allowing for the routine sharing of information derived from these important criminal tools. And Section 203B ensures that information developed through law enforcement methods other than grand jury subpoenas or criminal wiretaps can also be shared with our intelligence partners at the federal, state and local levels, as well as our partners overseas.

Although information does not flow between agencies with a PATRIOT Act label on it, it is quite clear that information derived from FBI's investigations is now assisting other agencies in performing their missions, principally overseas. As an example, an FBI field office obtained information of intelligence value while conducting a criminal investigation and shared this information with the CIA and other intelligence entities. In this particular investigation, a Title 3 intercept showed that the subject of the investigation was in contact with an overseas number. Taking that number, investigation undertaken by the CIA and others determined links between this number and a number associated with a terrorism - a subject of a terrorism investigation who had been captured. This sharing of information permitted additional investigation by each of the intelligence community components, integrating information that had been found and put together in the United States with information that had been found and put together overseas.

This sharing of information is absolutely instrumental to the safety of the American public in the future. And while Section 203 removed barriers to sharing criminally derived information with our intelligence community partners, Section 218 of the PATRIOT Act was the first step in dismantling the wall between the criminal and our intelligence investigators. It eliminating the primary purpose requirement that arose from statutory interpretation by the FISA court and replaced it with a significant purpose test. As a result, FBI agents working on intelligence and counterintelligence matters now have greater latitude to consult criminal investigators or prosecutors without putting their investigations at risk.

The increased coordination and information sharing between intelligence and law enforcement agents facilitated by the PATRIOT Act has allowed us, the FBI, to approach our cases as a single integrated investigation using all of its tools, both criminal and intelligence, as long as the requirements for each of those tools are properly met. The successes of these cases are entirely dependent on the free flow of information between respective investigations - investigators and analysts.

Mr. Chairman, I would like to close with making one point that I do think has been not fully amplified in the debate, in the public debate, on the PATRIOT Act and its tools, and that is the role of the federal judiciary. For example, the FBI must seek authority from a federal judge to utilize a roving wiretap and that judge must find that there is probable cause to believe that the target of the surveillance is either a foreign power or an agent of a foreign power, such as a terrorist or a spy. If the name of the individual on whom we are seeking roving surveillance is not known to us, we must provide a description of the individual and that person's activities to satisfy a federal judge that, again, there is probable cause to believe that this person is a terrorist or a spy and that his actions may have the effect of thwarting surveillance. Similarly, under 215, the FBI does not write a warrant authorizing access to business records; rather it is a federal judge that issues the order upon a certification by the government that the items requested are relevant to an ongoing national security investigation. And finally a judge authorizes the government to conduct a search, and only the federal judge can then authorize the government to delay notification - upon making (it a ?) showing - delay notification to the subject of that search.

Mr. Chairman, the role of the federal judiciary is vital to protecting the rights of individuals, particularly where more intrusive means of investigation are utilized. In addition to the oversight of - or by federal judges, the activities of the FBI and DOJ prosecutors are always tethered to the Constitution, and we take our responsibility exceptionally seriously. As the attorney general has already noted, I as well am unaware of any substantiated allegation that the government has abused its authority under the PATRIOT Act. This is a tribute to the men and women in federal law enforcement and the men and women in the intelligence community as well as the federal prosecutors, all of whom are committed to responsibly using the statutes provided by Congress. In renewing these provisions scheduled to sunset at the end of this year, Congress will ensure that the FBI will continue to have the tools we need to combat the very real threat to America posed by terrorists and their supporters.

Thank you for the opportunity to appear here today. I'm happy to answer any questions.

SEN. ROBERTS: Mr. Director, we thank you very much for a comprehensive statement.

We now recognize Director Goss.

MR. GOSS: Thank you, Mr. Chairman. Good morning.

Good morning, Mr. Vice Chairman, members of the committee.

I would propose that I ask for you, in the interest of time and not to repeat some things that I would like to say that have already been said, that you would accept my full statement and allow me to abbreviate it.

SEN. ROBERTS: Without object it is so ordered, and your request is gladly approved.

MR. GOSS: I thank you.

I do associate myself very much with the statements made by the attorney general and the director of the FBI. There are a couple points I would like to make as the director of the Central Intelligence Agency, although I would also be very happy to answer questions as the DCI, which I was when some of this material was going on, and I have had the responsibility of signing FISA requests and a somewhat different role in that position, which now Ambassador Negroponte, of course, has assumed.

I would simply say that it is extremely important for us not to underemphasize the information sharing, the coordination, cooperation, change of cultures, breaking down of walls, breaking of stovepipes, if you will. Remember how much time was spent by members of Congress and various committees, oversight boards, especially-set-up commissions, independent commissions, and so forth, after 9/11 that said we must work better together. And there is no question that the manifestation of that has been made possible by the PATRIOT Act in enterprises such as TTIC, the Terrorist Threat Integration Center, which is now graduated into the National Counterterrorism Center, which is probably a showcase of where we can point out how we bring information together and how it works well for the safety of our country in dealing with the terrorist threat.

Obviously I am here today representing the national foreign intelligence program as seen through the CIA's eyes. And there is a lot I will not be able to say in open session but I am very happy to talk about in closed session.

Certainly, sources and methods are involved in the PATRIOT Act, in our programs, but authorities are appropriate for us to discuss. These authorities are particularly essential for the intelligence community - in particular 203D and 214. These represent areas in sharing, breaking down the, quote, "wall" that has been referred to already - and talk a little bit about modernization, of being able to keep up with the advantages we have to deal with terrorists using technology as it exists today, which, of course, the terrorists are taking advantage of. We need to be able to deal with that, counter that, and get ahead of it for our own purposes.

I think those two provisions, from our perspective, are critically important, although I would suggest that the PATRIOT Act has served this country extremely well across the board. And I also am not aware of any serious problems with it in terms of invasion of rights or liberties.

I do admire the safeguards that Director Mueller has referred to. I have spent some time coming in and signing FISA requests as the DCI. There is a clear need to prioritize and understand each request, understand what is going on. I think that process works well. I'm not sure what other testimony has been on that, but my testimony on it is is that it works timely; it works well. It deals with the crush of business, as it were, on a prioritization basis, which is very important. And it does provide fresh eyes. My case, I must have looked at a couple of dozen things that I hadn't seen before because somebody else had signed them or they had come in under a different channel, and I was very satisfied that this process was working exactly the way any American would want it, which would be to stay out of their business but to be applied to people who are trying to infringe our liberties and damage our people, innocent people, from far shores - people we call terrorists.

So I think this is a very good use of time, Mr. Chairman, to be reviewing this matter and being suggestive of a position that we've got a success here; perhaps we could make it a little better. But I certainly don't want to give away of the tools that, I can assure you, the intelligence community is using well.

Thank you, sir.

SEN. ROBERTS: Senators will be recognized for five minutes in the order of their arrival, and there will be a second round, if needed.

I have a question in regards to administrative subpoenas. In the past, the president and Director Mueller have asked Congress to authorize the FBI to issue what's called an administrative subpoena in international terrorism investigations. If the government can use administrative subpoenas in health care fraud investigations and in drug cases, then the obvious question is: Why can't we use them in the international terrorism investigations? It seems to me that the administrative subpoena tool should be available for all authorized national security investigations that are conducted in accordance with the attorney general guidelines, not just terrorism cases. I was surprised, however, that the prepared statement by the Department of Justice and the FBI does not echo these earlier requests for administrative subpoenas. Has the president changed his mind on this issue? That's my first question.

Attorney General Gonzales, are you in favor of Congress authorizing the administrative subpoena in national security investigations? And I would also pose the same question to Director Mueller.

General?

ATTY GEN. GONZALES: Mr. Chairman, the president has not changed his position. We believe administrative subpoenas would be an additional valuable tool to deal with the terrorist threat. And so I want to reassure the committee that we continue to believe that that is a necessary tool and would respectfully request a serious consideration of that request.

SEN. ROBERTS: Director Mueller?

MR. MUELLER: Similarly, yes, we believe that it would be an exceptionally helpful tool in filling the gaps in getting us the information we need in our national security investigations. I will say that I spent a substantial amount of time on that in our prepared statement before the Judiciary Committee. It was in looking at a sense of brevity that I did not mention it in my opening remarks. But yes, we continue to press for administrative subpoenas. We think it is a very useful tool. As you have pointed out, Mr. Chairman, if it is available in health care fraud cases, child pornography cases, narcotics cases, in over - I think there are approximately 300 separate statutes to provide for the utility or use of administrative subpoenas. It makes very good sense for us to have that tool available when it comes to national security investigations.

SEN. ROBERTS: I thank you both for your responses.

We're in the process of finishing up our (audit ?) report on the FISA process. One of the things that we have found out was that the Department of Justice and the FBI - I don't know what grade I would give it, but it's not a 92; it doesn't rate that high; maybe 70, passing, I'm not quite sure - of implementing the FISA business records provisions, Section 215 of the PATRIOT Act - taking more than two and a half years to issue the first application. Regardless, your joint statement indicates that approximately 35 FISA business records - I think maybe you said 39 - or business record court orders have been issued since then, and most of these were issued for telephone numbers captured through the court authorized pen registers. My question to you is: Why isn't this technique being used more?

MR. MUELLER: Well, we have the possibility in some areas of using national security letters, as you're well aware -

SEN. ROBERTS: Yes.

MR. MUELLER: We have, in those cases where it's being handled jointly as an intelligence as well as perhaps a grand jury investigation, it may well be that we're using grand jury subpoenas. But in those areas where the 215 fills the void, we have gone through the 215 process. It is a - if you're comparing on the one hand the use of the 215 process and the administrative subpoena process, they're night and day. The fact of the matter is, the 215 process is somewhat burdensome. Nonetheless, that is the way the PATRIOT Act established it - does go before a judge. So we have had, particularly in the last couple of years, occasions where we have utilized that tool.

ATTY GEN. GONZALES: Mr. Chairman, I think one message that we would like to leave with the committee today is that we take all these authorities very seriously, and we try to act responsibly, judiciously in exercising these authorities. If we need to exercise a 215 authority, it will be exercised. If we don't need to exercise it, because there are other ways of getting information, we'll pursue other avenues.

SEN. ROBERTS: I have the yellow light here, but I'm going to try to sneak the last question in, with apologies to my colleagues.

Mr. Attorney General and Director Mueller, at a hearing we held last week, the FBI's investigation of Brandon Mayfield was cited as an abuse of the PATRIOT Act. I know that your answer may be circumscribed somewhat by the fact there's a pending lawsuit over this case. But could you please respond to that allegation?

ATTY GEN. GONZALES: I'd be happy to, Mr. Chairman.

You're right; I am limited in what I can say. We have done an exhaustive review of the allegations made by communication from the ACLU to Senator Feinstein specifically about Brandon Mayfield. I am told there was not an abuse of the PATRIOT Act. There are misimpressions about what authorities were in fact used in connection with that investigation. People have the mistaken belief that the Section 213 authority, delayed notification search warrant, was used there, but that's not the case. It was a straightforward FISA application in connection with that case. And I think we all need to understand, though, when people ask the question, was the PATRIOT Act implicated or used at all in connection with that investigation - sure it was, to the extent that FISA was amended by the PATRIOT Act in areas of information sharing like 218. And so to the extent that the PATRIOT Act (caused ?) changes in FISA, then clearly it was implicated. But from what we can tell, there was no abuse or misuse of the PATRIOT Act in connection with that investigation.

SEN. ROBERTS: So if somebody makes a mistake on a fingerprint, that isn't the fault of the PATRIOT Act?

ATTY GEN. GONZALES: That was not the fault of the PATRIOT Act, that's correct, sir.

SEN. ROBERTS: Senator Rockefeller.

SEN. ROCKEFELLER: Thank you, Mr. Chairman.

In Section 206 - I've addressed this to both of you in the joint testimony - Section 206 of the PATRIOT Act authorizes roving wiretaps under the Foreign Intelligence Surveillance Act. As it has been explained to us, the SAFE Act would retain roving wiretaps allowing surveillance where the target, for example, uses multiple cell phones in order to evade detection. And the SAFE Act would retain John Doe wiretaps where the target cannot be named. But the SAFE Act would eliminate the combination of the two, John Doe, roving wiretaps, where neither the location of the surveillance nor the identity of the target is known.

So my question is: What would be the impact of this provision on the activities of the bureau? And secondly, would the elimination of the John Doe roving wiretap increase the protection of innocent Americans from unnecessary surveillance? And thirdly, what protection against unnecessary surveillance exists in the statute as written?

ATTY GEN. GONZALES: Senator, one thing that we need - let me begin by emphasizing that we have to go before a federal judge in order to get a search warrant under 206. There has to be probable cause that the target is in fact a foreign power or an agent of a foreign power. In addition, 206 does include extensive minimization procedures so that we do ensure that steps are taken to protect the rights of innocent Americans.

I believe that under 206 we have to have - we have to go to a federal judge and provide sufficient information to identify a specific target. There may be instances where we don't know the exact identity of someone we believe is a terrorist. Nonetheless, we have to provide sufficient information for the judge to identify that person. If we discover later on that we've made a mistake, that in fact we should be conducting surveillance on Person B as opposed to Person A because we were wrong in our identification, we'd have to go back to a federal judge and get a new court order. Additionally, I'd like to add that we also have to have probable cause that the facility that we want to target or place that we want to target is either using - that the terrorist is either using or about to use. And so we believe that 206 contains an abundant number of safeguards to ensure that we've got a limited search under the supervision of a federal judge and that there are adequate safeguards to protect the privacy interests of Americans.

MR. MUELLER: The recommended change does not make much sense to me. As was pointed out by the attorney general: If we have an individual whom we accurately can describe, to differentiate that individual from everybody else, and the person is an individual which would satisfy the requisite specificity so that a judge can issue the order, allowing us to intercept his conversations, and the person is roving - in other words, utilizing a number of cell phones over a period of days - what this statute would mean is that we would have to go back and - when we identify another device that he's using - and get another court order. If we satisfy the prerequisites of 206 as it is written now, in my mind that is an adequate - certainly an adequate safeguard to protect the innocent. Again, I'd emphasize, it goes before a judge; you have to be specific in terms of the individual, and you have to be specific in terms of the usage of that individual of various devices. And persuading a judge that you have probable cause to satisfy those prerequisites, in my mind it satisfies the need to protect the innocent.

SEN. ROCKEFELLER: Okay. I'll save my next questions for the next round.

Thank you very much.

SEN. ROBERTS: Senator Levin.

SEN. CARL LEVIN (D-MI): Thank you, Mr. Chairman.

Let me add my welcome to all three of you; my thanks for your service.

The morning paper tells us that the State Department has decided to drop from its annual report the number of serious international terrorist incidents that occurred during the previous year. It's a very disturbing report to us. This law requiring an annual report on terrorist incidents has been on the books for a long time, long before 9/11. But suddenly, we read the State Department has decided they're no longer going to tell the American people what the numbers of those incidents were in the previous year; they're going to drop that information. I'm wondering whether - and I'll ask each of you - whether or not you were consulted by the State Department prior to this important information being dropped, or at least the decision being made by them to drop it and to suppress information which is really significant in many people's eyes to understanding whether or not we are making progress.

So General, let me start with you. Were you consulted by the State Department on that issue?

ATTY GEN. GONZALES: Senator, I was not personally consulted; whether or not the department was consulted, I'd have to find out. But I was not personally consulted.

SEN. LEVIN: Fair enough.

Director Mueller.

MR. MUELLER: I was not. I was not involved in the issue. But I'm not certain I would agree with the predicate of the question.

SEN. LEVIN: I understand.

Director Goss?

MR. GOSS: I believe my role was pretty much limited to making sure that whatever the NCTC had was made available to the State Department.

SEN. LEVIN: Thank you.

Let me first thank you, General Gonzales, for your strong statement of support for oversight by Congress, calling it a constitutional responsibility. You disagree on whether or not sunset was needed. But nonetheless, in terms of the importance of oversight, you made a very ringing endorsement of that, and we appreciate that.

And Director Mueller, let me thank you for your endorsement of the role of the courts.

Both of those endorsements are significant. We appreciate them.

On Section 206, let me ask you, Mr. Attorney General, about the roving wiretaps issue. I understand that under existing criminal law that in addition to identifying the target and the location so that a court is satisfied to grant a roving wiretap, that before the wiretap is triggered that there must be an authentication that the person involved in the conversation is the subject of the authorized wiretap, but that that requirement of authentication is not present in the act that we're reviewing. Is that accurate? Am I -

ATTY GEN. GONZALES: If I understand your question as to whether or not there is an ascertainment requirement in the criminal context, my understanding, Senator, is that the ascertainment requirement in the criminal context only applies - or only is there with respect to oral communications, like bugging. It does not exist in a criminal context in connection with electronic surveillance. And so I think that in that respect 206 would be consistent with the current requirements in the criminal context.

SEN. LEVIN: In terms of bugging, is it consistent?

ATTY GEN. GONZALES: I do not - I believe - it's my understanding that with respect to oral communications there is an ascertainment requirement in the criminal code.

SEN. LEVIN: What about in the PATRIOT Act?

ATTY GEN. GONZALES: There is no ascertainment requirement per se. But again, let me emphasize that we do have to show probable cause as to two very important facts: one, that the target is a foreign power or agent of a foreign power, and two, probable cause that the facility or place which you're targeting, that the target is in fact using or about to use that facility.

SEN. LEVIN: No, I got that. But why should there not be the same ascertainment requirement in the PATRIOT Act that there is in criminal law, just the way there is for electronic communications?

ATTY GEN. GONZALES: I don't believe that there is such a similar requirement -

SEN. LEVIN: Should there not be -

ATTY GEN. GONZALES: I don't know if I can answer that question, Senator.

SEN. LEVIN: Let me ask Director Mueller.

Is there any reason why we shouldn't have that same ascertainment to protect privacy of American citizens to make sure that in fact the ascertainment occurs, to make sure that it's not somebody who should not be the subject who in fact is being bugged?

MR. MUELLER: I would have to go and check the statute more clearly on - more carefully on that particular proviso and look at the import. I will say generally, though, that the FISA statute relates to finding probable cause if we're dealing with a foreign power and we're dealing and looking at and undertaking investigative techniques of a foreign power or an agent of a foreign power. And that, in my mind, is a different set of concerns than one would have when we are investigating individuals for their possible breaking of the criminal laws. There are a number of areas that are different because of the different subjects we're looking at under the FISA statute than those subjects we're looking at under the Title 3 of the criminal statutes.

SEN. LEVIN: My time's up. So why don't you just expand for the record, after reviewing the law, as to whether we should not have that same ascertainment requirement for the bugging as we do in criminal law when it comes to the PATRIOT Act.

Thank you.

SEN. ROBERTS: Senator Wyden.

Senator Wyden - let's try Senator Mikulski.

SEN. BARBARA A. MIKULSKI (D-MD): Thank you very much, Mr. Chairman, and good morning to our panelists.

I think we all remember what it was like in October of 2001 after America had been attacked and we knew that 19 - or maybe even more - people had come into our own country and had planned the most despicable and dastardly deeds against us. And out of that came the PATRIOT Act, because we knew we needed to get more information and that we had old rules based on old thinking about old technology. So out of this came the PATRIOT Act, but yet, the great idea of sunset, because I think we were all concerned that in our zeal to protect the country we would not be overzealous and then create a set of rules we either found dysfunctional or not in keeping with our Constitution. So I think this is why this debate is important now.

Let me get to my questions.

There are a lot of concerns, as you know, among the American people about jealously guarding their right of privacy. There's a built-in tension between the right of privacy and our national security. This is what we're trying to resolve - how to protect both.

One of the questions that people have when they talk to me is they think anybody can - in the federal government - under the PATRIOT Act can now spy on them. So I'm going to ask a series of questions, and perhaps, Mr. Gonzales, you can answer this.

Number one: What agencies within the federal government can, quote, spy or place American citizens under surveillance - federal agencies?

ATTY GEN. GONZALES: I mean, the FBI. The Department of Justice is the agency that has -

SEN. MIKULSKI: So can the CIA spy on the American people?

ATTY GEN. GONZALES: The primary responsibility falls upon the Department of Justice, not the CIA.

SEN. MIKULSKI: Can the CIA spy on the American - I'll get to another question about the so-called wall.

ATTY GEN. GONZALES: No.

SEN. MIKULSKI: Can the National Security Agency, the great electronic snooper, spy on the American people?

ATTY GEN. GONZALES: There are limits upon the NSA in terms of what they can do in spying upon the American people.

SEN. MIKULSKI: And let me -

ATTY GEN. GONZALES: Let me just emphasize one additional thing, Senator, you know. Even with respect to the authorities that are granted, many of the authorities -

SEN. MIKULSKI: These are not hostile questions -

ATTY GEN. GONZALES: No. And I understand -

SEN. MIKULSKI: -- these are clarifying -

ATTY GEN. GONZALES: I just want to clarify -

SEN. MIKULSKI: Clarify after I ask my next question. Then let's go to the wall that Mr. Goss talked about in his written statement. That was the whole issue. And then it goes into the information sharing that Director Mueller talked about. Everybody's working together; let's say it's in the counterterrorism center. The NSA picks up something - say, a foreign agent.

They're a person of interest, even a person of suspicion. They're coming into the United States. They're mingling with United States -- people who are already in the United States. They're communicating. NSA has picked all of this up. They're following these people with their computer, their cell phone, whatever techno stuff they have.

Then when they're there, do they stop and hand it over to the FBI, and the FBI keeps on doing it? Or do they keep on following these persons of interest or suspicion? And what are they allowed to do under the law?

MR. GOSS: Well, they are always --

SEN. MIKULSKI: And clarify anything you want. But see, these are the questions, which is, who does what when?

MR. GOSS: There are minimization requirements under law on federal agencies that engage in surveillance to ensure that the privacy interests of all Americans are protected. In addition to requirements under the statute, there are additional guidelines within the Department of Justice to ensure that the privacy interests of Americans are protected.

SEN. MIKULSKI: Well, Mr. Mueller, how would this work from a practical standpoint? Do you see what I'm getting at? Because people really worry that everybody can spy on them, the DOD, et cetera, and that they can come in carte blanche. I know --

MR. MUELLER: Surveillance of American citizens for national security matters is in the hands generally of the FBI. The investigation or a development of intelligence overseas is in the hands of the CIA and NSA. And generally -- I would say generally they are not allowed to spy or to gather information on American citizens, but there are limited exceptions to that. Depending on the type of investigation, there would be, thanks to the PATRIOT Act, additional rules of the FISA court, we would now have the ability to share the information that may have been pursuant to its authorities obtained by the NSA, maybe overseas, maybe between somebody overseas and somebody in the United States, or obtained by the CIA overseas, and now be able to use it in the United States.

SEN. MIKULSKI: Did you need the PATRIOT -- excuse me. Did you need the PATRIOT Act to be able to do that?

MR. MUELLER: The PATRIOT Act and changes to the FISA -- not changes to the FISA statute, but a reinterpretation of the FISA statute by the FISA appellate court in order to do that, yes.

SEN. MIKULSKI: And had those changes not occurred, would you have -- you or your agents have felt shackled in some way or discouraged from pursuing certain things?

MR. MUELLER: Absolutely. I think if you look at the -- go back and read the report of the 9/11 commission, it was well pointed out there, the constraints under which we were operating prior to September 11th that stymied, cut off the flow of information between the agencies whose responsibility is protecting the security within the United States and those agencies whose responsibility of protecting the security of the United States outside the United States. And the PATRIOT Act and the interpretation of the FISA statute has broken down that wall.

SEN. MIKULSKI: Mr. Gonzales, you wanted to clarify, and then I have another question I just want to put in, which is, has the PATRIOT Act had any constitutional challenges directed at it through the court system? And have any parts of the PATRIOT Act been struck down as unconstitutional?

ATTY. GEN. GONZALES: The only clarification I wanted to make, Senator, was to repeat one thing that Director Mueller said in his opening statement. And that is, of course, that many of the authorities exercised by the federal government in the area of surveillance are done oftentimes under the supervision of a federal judge, and also that there are strong minimization requirements imposed by statute and by regulation to protect the privacy interests of Americans.

There have been numerous challenges to the PATRIOT Act, and to my knowledge they have all withstood challenge -- successful challenges in the courts.

SEN. MIKULSKI: Mr. Chairman, I think I'll wait for my next round of questions to go to another set. Thank you.

SEN. ROBERTS: The questions you had were follow-on questions, which is why the chairman thought it would be perhaps a good thing to let you get the end of that chain of questions in regards to the understandability of the answers and the questions. But we will have a second round.

SEN. MIKULSKI: Well, and, Mr. Chairman, I think some of those questions, knowing the colleagues before us, have to almost go into a closed session to get more detail and get more of the mechanics of how it works and so on that -- again, we have privacy concerns here. (Chuckles.) So -- but I appreciate the answers.

SEN. ROBERTS: Senator Snowe will be now recognized.

Let me point out the committee did hold a closed hearing on the use by the intelligence community of field operatives in regards to the tools provided by the PATRIOT Act. These same questions were brought up at that particular time, and their responses were very helpful in regards to the questions that the senator has asked.

Senator Snowe.

SEN. OLYMPIA SNOWE (R-ME): Thank you, Mr. Chairman. And I thank all of you for being here today.

I think one of the fundamental issues surrounding the PATRIOT Act as we consider its reauthorization I think is a lack of public reporting with respect to the way in which it's applied. And I'd really like to hear from all of you, given your perspectives and the different positions that you represent, as to how we could do a better job, how you could do a better job in informing the public, you know, in which instances the PATRIOT Act is applied because I think so often now what I hear from my constituents is a concern that it's used for domestic investigations, that there is excessive secrecy with respect to how it's used.

And I think we need to have more public disclosure in examining and assessing its impact. I think it would enhance the public's confidence in the way in which this additional and broader authority is being used.

So could you give us some ideas as to how we could improve upon the public reporting dimensions without compromising, obviously, valuable investigations concerning terrorists and terrorism?

Mr. Gonzales, proceed.

ATTY. GEN. GONZALES: Well, I agree with you. I think that we have a responsibility to not only use these tools wisely, but to reassure the American people that we're using these tools wisely, and to provide as much information as we can without compromising our ability to effectively deal with this threat; to do the best we can to provide information not only to the Congress, but to the American people.

In the past few weeks we have tried to be more open about providing additional numbers about how many times these authorities have been used. As you know, some of these provisions do impose reporting requirements upon the executive branch as to how these authorities are being used.

I must tell you, Senator, based on my very short stint at the Department of Justice, there are a lot of folks at the department who spend a great deal of time gathering up information to provide to the Congress. And I understand that sometimes it takes a little longer than some senators like. We want to be very careful. We want to be very accurate in providing good information to the Congress.

And so there already is a lot of information that's being provided to the Congress. We provide reports twice a year regarding the use of FISA, and I'm sure beginning to learn that sometimes some members of Congress don't take advantage of the opportunity to review that report, and they don't understand what information is already being provided to the Congress.

So we're always happy to see what we can do more, but I would just emphasize that I think there is a lot of information that is currently being shared about how these authorities are being used.

SEN. SNOWE: Mm-hmm. You don't think we should do anything further than those additional reports? I mean, I think they -- you know, you provide them biannually?

ATTY. GEN. GONZALES: Senator, I'm happy to sit down with you and your staff and consider additional ways that we could better educate the Congress and the American people. I'm happy to do that.

I just want to -- I don't need to remind you, but there is in my judgment a lot of information that is currently being provided already by the executive branch.

SEN. SNOWE: Well, somehow I think that we really have to do a better job in conveying that to the American people so that it doesn't undermine the integrity of the process and how it's being applied, I think, in the final analysis, and its impact. I mean, we understand to what extent you -- you know, obviously, certain activities have to remain secret. We understand that. But on the other hand, I think we have to go the extra mile whenever we can to convey to the public that this is being used in the most appropriate way and we're not encroaching on people's civil liberties.

ATTY. GEN. GONZALES: I couldn't agree more, Senator.

SEN. SNOWE: Mr. Mueller.

MR. MUELLER: Following up on what the attorney general said, the information that's been provided I think should be helpful in allaying some of the concerns, particularly of individual groups about the abuse of the PATRIOT Act; for instance, the fact that we have not used the PATRIOT Act 215 to obtain records from a library should allay some of the concerns.

We have provided a great deal of information to Congress. I have here a letter of October 24th, 2003, to -- it was the Honorable Ted Stevens, who was -- it was to -- as chairman of the Committee on Appropriations. In it, it lists something like 15 instances where we've utilized the delayed notification in various of our cases indicating how important that particular provision is and how it has not been abused.

We also -- part of the problem that we have is the fact that to disclose our successes, we have to do it in closed session. A closed session I believe you had a couple of weeks ago I believe was informative in showing you exactly how we're using those provisions, but to disclose much of that material would educate the terrorists, would educate those whom we're investigating. But my hope is that through hearings such as this, continued scrutiny from Congress, that much of the concern will be allayed.

SEN. SNOWE: Mm-hmm.

MR. GOSS: Senator, I have a great deal of empathy for your question because I have participated from the situation you find yourself in as responsible to a constituency. And I think it's very important that we reassure the constituency that we have safeguards in place in our government.

I certainly think that the oversight committee role is very, very important in that. And I think, therefore, a frequent, very candid exchange on matters of concern needs to be undertaken just to make sure that we do assuage those concerns that might be out there, so that people who are respected in their communities can get up and say, I've examined this, I'm on top of this. And I can understand your concerns, but I think everything is working okay. And on balance, in fact, this is helping us catch terrorists or prevent terrorist acts from happening.

I think that is the system that we have embraced in our form of representative government for dealing with these kinds of problems, and it's one that I think does work pretty darn well, but I certainly am aware of the balance problem.

I know right now that there are people who have terrorist concerns, terrorist plots maybe associated with terrorists, actually people maybe in terrorist organizations, who are probably watching this discussion. I am very concerned that we understand that in the audience these days, because of technology, we have not only the people we're trying to reassure and we want to go out there and tell them how wisely we're employing these tools; it would be not helpful to tell the terrorists that.

There is a huge amount of denial and deception and cleverness going on in the terrorist community, as loosely as it is organized. But it is good. They are smart, clever people. They take benign things like aircraft that we use to fly around for our commerce and our comfort in this country, and they turn them into weapons of doom and tragedy. They can do that with other simple things that we count on everyday, like going to the store and buying aspirin, or things like that. It doesn't take much imagination.

So I am very concerned that we draw a line with all the American people to understand. We may have to be looking into things from time to time that terrorists are trying to take advantage of and use against us, things that we consider benign in our daily life. And those explanations have to be credible, and they have to be accurate. And we need all the partners in our great enterprise to do that, both legislative, executive, and I would add the media would help too, if we could have accuracy in what's actually going on.

I do think we have the things in place. The last thing any of us want in the intelligence community -- and again, we are overseas, so I speak from that point of view, but -- is a feeding frenzy over a poster child because we abused the authority. This authority is too important. We don't want to lose it. We are very careful not to abuse it.

SEN. SNOWE: Thank you. Thank you, Mr. Chairman.

Thank you all.

SEN. ROBERTS: Senator Rockefeller. I'm sorry, Senator Wyden is next, and he has returned.

SEN. RON WYDEN (D-OR): Thank you very much, Mr. Chairman, and thank all of you for your cooperation.

I want to begin with you, Director Mueller, and also express my thanks to you. You've always been responsive whenever I've called and whenever I've had concerns, and I'm very appreciative of that.

I want to start with the library provision of the PATRIOT Act and the debate about 215. You all constantly say there has never been a case where you forced a library to turn over records. I've heard that again and again and again. But my understanding is that you get cooperation from libraries by using what you call -- these are your words, not mine -- a "discreet inquiry" by a member of the bureau. And I'd like to know, one, what a discreet inquiry of a library is, and two, how many of them have there been since the PATRIOT Act? Because I constantly hear from the my libraries, you know, about this.

I think Porter Goss is absolutely right. We need to strike a balance here. We ought to be fighting terrorism ferociously without gutting civil liberties. And I really want to get on top of this library issue. So tell me what you mean when you say you get cooperation from libraries through discreet inquiries.

MR. MUELLER: Let me start off by saying that I have not, I don't believe, ever said that we have never forced libraries to give records. We have never used 215 as a vehicle to get records from libraries. In the past in criminal investigations we have used grand jury subpoenas. But I want to make certain that we're clear that I was talking about 215 we have not used to ask libraries to provide records to us.

In terms of discreet inquiries, and I'm not certain of the context in which I may have --

SEN. WYDEN: You said it to the Judiciary Committee.

MR. MUELLER: -- said that. But I think what was in my mind is we've had a couple of occasions at least in which we have been contacted by persons who believe that they have information that needs to come in the hands of the FBI, and these are librarians. And in colloquy with these individuals, they've decided to provide us records. Now, it may have been with some paper. But when I'm talking about discreet inquiries, it has been triggered -- in my mind it's been triggered in those occasions by librarians themselves that have come forward to us and said this is something you ought to look into.

SEN. WYDEN: So since the PATRIOT Act was enacted, there has not been an increase in discreet inquiries that the department has initiated with libraries?

MR. MUELLER: Not to my knowledge, no.

SEN. WYDEN: All right. Would you --

MR. MUELLER: Now let me just make one -- one --

SEN. WYDEN: Would you check on that and give me the numbers with respect to times when the department initiated what you all call this discreet inquiry?

MR. MUELLER: Well, I wouldn't put a tag on discreet inquiries. I may have used the word "discreet inquiries" to describe what I believe were two situations in which librarians had come to us and we had a colloquy with librarians. It never got to the point of 215s because the librarians believed we needed the information.

I would be happy to try to go back and look at the number of occasions where we have utilized -- we have not used 215 -- the number of occasions that we have utilized process on libraries. But it would be very difficult for me to go back and say, okay, when has one of our agents talked to a librarian?

SEN. WYDEN: I understand. I think you get my point as well. These librarians are very fearful. They're patriotic Americans. They want to assist their government, and at the same time, like the rest of us, they're concerned about fishing expeditions. And I want to make sure I understand what these issues are all about. And why don't we say I intend to go into this more in the closed session as well to make sure I'm on top of that.

MR. MUELLER: Can I make one last point in this regard?

SEN. WYDEN: Of course.

MR. MUELLER: I am quite certain that had we engaged in fishing expeditions with libraries that it would have come -- attention would have been brought to that fishing expedition by either the librarian society or the ACLU. And we have not had brought to our attention an abuse of our role in interacting with libraries.

SEN. WYDEN: Director, what I'm concerned about is that it may not be getting to that point because essentially people show up from the bureau, ask these kinds of questions, and these librarians say, look, we don't want to be seen as disloyal; we're just going to cooperate. I want to know more about this. I'm not making any allegations here. All I know is I saw you say the words "discreet inquiry," and I'm hearing from these librarians. I want to get on top of this.

Question for you if I might ask, General Gonzales. You said that there had not been an instance where a court has found any abuses under the PATRIOT Act. Are you aware of Doe v. Ashcroft? That was the case where the federal judge struck down the authority for national security letters for customer records of communication service providers which had been expanded by the PATRIOT Act. Now the court held that the government had failed to provide any explicit right for a recipient to challenge the letter, a search order, and that violated the Fourth Amendment, and that the automatic secrecy rule violated the First Amendment, and the department has appealed the decision to the 2nd Circuit. Are you aware of that, or --

ATTY. GEN. GONZALES: I am generally aware of that case. You are correct; the court had indicated that there were problems under the First and Fourth Amendment, even though the Department of Justice conceded that this request by the government could be disclosed, and could in fact be challenged in the courts. Nonetheless, the court chose to disregard our concession and issue its ruling.

My understanding of that case, Senator, is that the court specifically focused on a provision that predated the PATRIOT Act, and that was the provision that was in fact struck down. And it did not reflect a decision by a federal judge to strike down a particular provision created by the PATRIOT Act. But I will confirm that and get back to you.

SEN. WYDEN: Why not require a judge to approve these national security letters? I mean, that could be done electronically, it could be done quickly. My concern about these national security letters is that there would be a way to strike the balance that Porter Goss has talked about, a view that I share, relatively simply; that, you know, you could have judges approve the national security letters electronically and quickly. I'm concerned that a lot of these recipients aren't given notice of their right to challenge search orders. And it would seem to me that this would be something consistent with this balance that we've been talking about that we could do.

Do you have any concern about what I've just described?

ATTY. GEN. GONZALES: My understanding, Senator, with respect to the use of national security letters, I mean, one of the benefits of it is speed. And there may be instances where you need to get them so quickly that you might lose valuable information if, in fact, you have to track down a federal judge.

I would also emphasize that the use of national security letters is limited to certain types of entities that you can gather information from, and it's limited as to certain types of information you can try to get under national security letters.

SEN. WYDEN: Well, again, what is hard for us to address here is that we're to some extent doing oversight in the dark. We are trying to figure out how to strike this balance. Director Mueller and I are going to talk a bit more in closed session about the library provision.

The Department of Justice is required to report to this committee on the use of national security letters by the FBI. We haven't gotten the report for 2004. We haven't gotten it. So that makes it hard for us to do oversight, which is why members of this committee show up and ask these questions.

So I hope that all of you will work with us on this because in an area like this, national security letter, I sort of operate under the Ronald Reagan theory, "trust but verify." And what I do know is that we've haven't gotten the report that was supposed to be filed on these national security letters, so we come here and ask these questions.

And if we have a second round, Mr. Chairman, I'll ask some more. Thank you.

SEN. ROBERTS: Senator Rockefeller. I'm sorry; Senator Rockefeller.

SEN. ROCKEFELLER: Thank you, Mr. Chairman.

This is a specific question about FISA orders for business records, quote, "any tangible things" close quote.

In 215 in the PATRIOT Act it authorizes FISA orders issued by the FISA court for, quote, "any tangible things," close quote, from any entity. Under Section 215 the government only needs to make, with respect to terrorism investigations, a showing that the records in question are for, quote, "an authorized international terrorism investigation." In your joint statement you indicated that the department would support an amendment that requires that the records be, quote, "relevant," end quote, to a national security investigation.

Section 215 also provides that no person shall disclose to any other person that the FBI has sought or obtained records except for persons necessary to producing, obviously, the records. In your statement you indicated that the department would support an amendment that the recipient of a Section 215 order may consult with an attorney and may challenge the order in court.

The questions I have are twofold.

Would you support limiting the scope of Section 215 to those records for which there was at least some specific information for believing that the records related to a suspected terrorist or other agent of a foreign power, number one, yes/no?

Secondly, your statement indicates that you support modification of Section 215 to give the recipient of the FISA order the right to consult and attorney and to challenge the order in court. Do you support the provisions of the SAFE Act that would require the government to show why nondisclosure is necessary and place a time limit on a nondisclosure requirement? Why or why not?

ATTY. GEN. GONZALES: I think that the standard -- I think the relevant standard is the appropriate standard with respect to 215 business order requests. We have indicated that we believe that it is a relevant standard. The words are not used in the statute, but we believe it is implicit. But nonetheless, we would support making it clear that the appropriate standard is a relevant standard.

I think to go above that to require a higher standard I think would make the use of 215 sort of a dead letter. I don't think investigators would use 215.

We look at 215 orders as a search for -- not a search, but a request for information, much like a grand jury subpoena, where the standard there is also relevant. It's part of the building block of the case in order to get information to see whether or not there is sufficient information to develop probable cause that would support a search. And my own judgment is that if the standard were changed, that 215 would no longer continue to be useful.

And I'm sorry, sir, I don't remember the second part of your question.

SEN. ROCKEFELLER: That was the SAFE Act would require government to show why nondisclosure is necessary and place a time limit on nondisclosure requirements.

ATTY. GEN. GONZALES: Well, I think in this case we'd be talking about information that is classified. And it just sort of turns the presumption on its head that classified information -- the presumption is is that it would -- you know, you would have to -- that it would become public unless you showed certain things. I mean, it is classified information, and I think there's a reason it is classified information and should remain classified information.

SEN. ROCKEFELLER: Well, then help me understand. You would say, then, that a nondisclosure requirement is not desirable?

ATTY. GEN. GONZALES: I would not support it. I mean, I think we all understand that these investigations involve very sensitive matters. Talking about in the FISA context, these are the most sensitive information. And that to disclose information to a target or someone who's not a target of an investigation but someone who then shares the information unknowingly to the target may jeopardize a very important, serious investigation. And so we would have concerns about such a requirement.

SEN. ROCKEFELLER: Okay. One more. This is significant purpose, about those requirements.

Section 218 of the PATRIOT Act amended the certification requirement of FISA as such that the collection of foreign intelligence must be, quote, "a significant purpose" of the surveillance or the search. Prior to the PATRIOT Act, the certification requirement had to be interpreted to require that foreign intelligence collection be, quote, "the primary purpose," close quote, of a surveillance or search. Section 218 has been credited with, quote, "helping to bring down the wall separating intelligence agencies from law enforcement agencies," close quote. Other provisions of the PATRIOT Act, such as Section 203, allow information to flow from law enforcement officials to national security officials and to members of the intelligence community, as we know.

The question is, in terms of protecting the United States from another attack, what difference have these information-sharing acts made, in your judgment? Secondly, can you describe the relative use and importance of, one, a provision allowing the sharing of criminal investigative information with intelligence officials, the importance of that; and secondly, in the other direction, provisions allowing the sharing of intelligence information with law enforcement agencies at a lower level?

ATTY. GEN. GONZALES: Well, I think it is probably one of the most important aspects of the PATRIOT Act, provisions like Sections 218 and 203, which have made it clear that it is okay -- it's made it clear for law enforcement and the intelligence community that it is okay to share information. And as the 9/11 commission and the WMD commission, the reports from those commissions, both indicated, part of the reasons for the attack on September 11th and the problems we've had is the fact that the government has been unwilling because of a perception that they're unable to share information.

So, it's very, very important. I think sharing of information could be successful in that it is so important in winning the war on terror. And, so --

SEN. ROCKEFELLER: General, I'm in agreement with that, but the question was, has it made a difference?

ATTY GEN. GONZALES: It has made a difference. Yes, sir.

MR. GOSS: If I could speak to that just for a second. It has made a tremendous difference in our ability to conduct what has been called by the 9/11 commission as transnational intelligence investigations. Terrorists operate, as we saw on September 11th -- they developed their plans in Afghanistan; they habituate Hamburg, Germany; and launched their plans in the United States.

We've had a number of occasions since September 11th in which we have discovered information in the course of criminal proceedings here that has been passed on to the CIA and enabled the CIA to wrap up persons overseas with the help of their counterparts. That would not be possible without the provisions of the PATRIOT Act. We had convicted yesterday, in Northern Virginia, an individual by name of Tamimi, who in the wake of September 11th had encouraged a number of individuals to go to Pakistan to obtain training in order to fight against the troops in Afghanistan. He was convicted as a result of the ability to share information that may have come from the intelligence side of the house, but can be used in the criminal side of the house.

Last year, in the spring of last year, I believe it was, there was an individual by the name of al-Hindi, who was arrested by the British authorities. He is the individual who had undertaken surveillance of The Prudential and a number of financial institutions in the United States. If we had not been able to look at some of his co-conspirators, both criminally as well as from the intelligence perspective, we would not have been successful in obtaining the plea of a principal member here in the United States, nor would we have been half as successful in coordinating and cooperating with our counterparts overseas in terms of exchanging information with them that enabled them to wrap up and prosecute al-Hindi.

One can talk about the successes due to the breaking down the walls for a good several hours. I'm sure you heard in the closed session last week a number of instances where the breaking down the wall by the PATRIOT Act and the rulings of the FISA court has made a tremendous difference in our ability to protect the American public.

SEN. ROCKEFELLER: I happen to agree with that, and I think it's important that the public hear that clearly.

SEN. ROBERTS: Senator Levin.

SEN. CARL LEVIN (D-MI): Thank you, Mr. Chairman.

Director Goss, I welcome -- I think all of us do -- your strong support for congressional oversight which you have made in your testimony. I think we've fallen short in Congress of carrying out those responsibilities, and I very much welcome your statement of support. And more importantly, I welcome your following through with documents which you have supplied to me, which I have been waiting for from former CIA director for a year. You came to office, said you would be cooperative. You have come through, followed through with the actual documents I've been waiting for. I can only say I wish the Department of Defense were as forthcoming with documents as you have, but I don't expect you to comment on that. (Laughter.) Thank you.

Money-laundering provisions in the PATRIOT Act. Title 3 contains provisions that Congress enacted to strengthen our laws against money laundering and terrorist financing. They're not subject to sunset, but nonetheless, we should be reviewing these provisions, whether they're sunsetted or not, as you said, General. I agree with that. Have they been useful to you, the money laundering -- anti-money laundering provisions in the PATRIOT Act?

DIR. GOSS: I'm told that they've been very useful to the department. I don't know -- I don't have specific examples. Perhaps Direct Mueller does. But money laundering and those kind of schemes to finance terrorist activities is so very important in our ability to deal with this threat. Without financing, it's very difficult for terrorists to attack this country. But -- so to respond, yes, it's been very important.

SEN. LEVIN: And, Director Mueller, have the provisions of the PATRIOT Act, relative to anti-money laundering in general been useful to you, without getting into too many specifics because of the time limit on our questions?

DIR. MUELLER: Yes. Let me just mention a couple of provisions that were incorporated in the PATRIOT Act that were tremendously important.

Money transmitting businesses, which have become a mechanism for exchanging funds around the world, the PATRIOT Act gave us provisions helping us to address those. The provisions relating to treasuries, the rules and regulations with regard to banks, so that banks, not only in the United States, but around the world; adopt know-your- customer rules are tremendously important.

So just to mention two of those provisions -- I'm sure we have other examples in which -- from Treasury in which the ability to forfeit funds in interbank accounts has been useful, but I'd have to get you details on that.

SEN. LEVIN: That's fine. That's very helpful, thank you.

General, Section 214 is the subject of the next question. You've made reference to the fact that there's got to be a certification of the information that you seek authority to obtain being relevant to an ongoing investigation. And my question is, do you think it is appropriate in that request for that judicial authority that the way in which the information is expected to be relevant should be set forth?

ATTY GEN. GONZALES: Senator, I'm not sure I understand your question.

SEN. LEVIN: Well, you said that there's a requirement that -- in Section 214 that when agencies install and registers tap and trace devices through FISA procedures, that there's a requirement that you allege. You certify that the -- what you are seeking authority to do is relevant to an ongoing counterterrorism or counterespionage investigation.

My question to you is, do you think it would unreasonable to require that you state in that request how it is relevant to your investigation? Not just the conclusion that it is relevant, but how it is relevant. If you could just give me a yes or no, or expand for the record, I'd appreciate it.

ATTY GEN. GONZALES: Senator, I must -- it's hard for me to plead ignorance, but it may the fact that we do have to explain how it's --

SEN. LEVIN: Oh.

ATTY GEN. GONZALES: I don't know that.

SEN. LEVIN: Oh. If not, I would hope you would consider supporting an amendment to the statute which would require that you state how it's relevant, if it's not already required. Could you give us that for the record?

ATTY GEN. GONZALES: I would look at that.

SEN. LEVIN: Now in Section 215, we've got a situation where the application -- this is on the records we've been talking about talking about, including library records. The application to the court goes, as I understand it, to the institution, the business, or whatever. Is that correct? Is that your --

ATTY GEN. GONZALES: No, it's the order, the order. The application goes to the court and then an order is issued, and then we seek the records pursuant to that order.

SEN. LEVIN: To an institution or an entity?

ATTY GEN. GONZALES: The entity holding the record --

SEN. LEVIN: Right.

ATTY GEN. GONZALES: -- that is being pursued.

SEN. LEVIN: My question is, do you think it's reasonable that when the entity is ordered to provide records, that the specific target of the investigation be the subject of the records being sought rather than a general "we want all your records" relating to some subject? Is there any reason why the law should not require you, if you're not already required, to identify whose records it is that you seek and that it is not an American's record, and that the records are not connected to First Amendment rights?

ATTY GEN. GONZALES: Well, there is, of course, a requirement under 215 that the information sought is relevant to an intelligence investigation.

SEN. LEVIN: Right.

ATTY GEN. GONZALES: I worry about the additional requirement that you have suggested. I'd have to look at it, but I'd worry about going beyond what's already within 215.

SEN. LEVIN: All right. And --

MR. MUELLER: Can I add something on that? I would be opposed to that.

SEN. LEVIN: All right. If you could --

MR. MUELLER: I think the court should review the application. The court issues the order. If it's overly broad, the court can make a finding and require additional information. There will be occasions where to, as you say, specify in the order the individual who is the target of the investigation where that would be akin to alerting the person and risk the investigation as a whole.

SEN. LEVIN: How would that be alerting the person if the person --

MR. MUELLER: Well, if it goes to an institution, the institution can well turn around and alert the person if they know a particular target. There may be circumstances where we look for discreet groups of records. In those records may be records we want a particular target or targets. And I believe we ought to have the ability and capability to present to the judge the circumstances where we want a broader order for those records from a particular institution.

SEN. LEVIN: Thank you. Thank you, Mr. Chairman.

SEN. ROBERTS: Senator Wyden.

SEN. RON WYDEN (D-OR): Thank you, Mr. Chairman.

I want to follow up on an area that Senator Levin was touching on and see if I can go at it a different way, and I'll do this with you, Director Mueller.

The PATRIOT Act, of course, eliminated, with respect to the national security letters and the FISA warrants, the requirement that you meet what was called the specific articulable fact test. And what was put in place was a requirement that when you want records, it has to be relevant to an open investigation. That's, I think, where we are in terms of the law.

What I am interested in knowing is, what is necessary at this point, Director Mueller, to initiate an investigation within the FBI?

MR. MUELLER: Well, it can be an allegation. It could be information provided to us by another agency, and we well generally open on a -- what's called a preliminary investigation. And the preliminary investigation enables us to do some limited work in terms of verifying the information, following up on the information, before we can go to a full investigation. And the full investigation enables us to use a variety of additional tools.

So it is a staged development of information that -- where we have to make a showing in our files of what is warranting the use of additional investigative techniques. It is based on predication. In other words, an initial predication for opening an investigation can come anywhere from an e-mail from an anonymous source saying that somebody's going to commit an attack in New York tomorrow, and then we'll do whatever is necessary to either corroborate that information or disprove that information.

SEN. WYDEN: Is it fair to say then, Director, that this staged development of information, as you describe it, is in fact the new standard of proof for issuing a FISA warrant and a national security letter?

MR. MUELLER: No.

SEN. WYDEN: All right, then tell me why not because you just said that to initiate an investigation within the FBI, you can do it, essentially, with an allegation. Then you said that there is this -- I guess you call it the process of proof, sort of a latter kind of arrangement. And that, based on an absence of any other information, strikes me as something pretty close to the new standard of proof, and I'm just trying to find out what the standard of proof is.

MR. MUELLER: It's not a standard of proof. It's a -- the evaluation of information has a number of purposes. One, is to -- is it worth opening a file? Is it worth documenting the allegation that's come in? We have a number of allegations that come in we don't open a case on because it may be an anonymous e-mail message that comes in to our website. But if for us, for our practical purposes in terms of what we need to do to further the investigation, we are limited at the preliminary stage to documenting and furthering --

SEN. WYDEN: But what is the standard of proof, then?

MR. MUELLER: There is no particular standard of proof. We don't have to prove to anybody -- it's not probable cause. It's is there information that leads us to believe, if you want to say leads us to believe, that further investigation is warranted in a particular case?

SEN. WYDEN: I think that's a pretty sweeping comment that there really isn't any standard of proof, that there isn't any, to your terminology, no particular standard of proof.

And I'm going to want to follow up with you on this, Director, because I think we used to have one. It was, you know, the specific, articulable fact requirement. Then we said that it's got to be relevant to an open investigation. Then you told me you can do an investigation on the basis of an allegation. I'd like now to know what the standard of proof is for these warrants and national security letters, and you said there really isn't any particular standard.

MR. MUELLER: Well, there's a standard -- there is a standard for issuance of a grand jury subpoena, for instance: it's relevance. There's a standard for issuance of a national security letter. In order to get a particular process there is a standard. But for us to conduct investigations internally, we don't have to meet any particular standard of proof. What I'm saying is, this is the process we have adopted over the years to assure that we have predication for each step of an investigation.

SEN. WYDEN: With all due respect, Mr. Director, as I've said, you've worked very well with me. This is not what we've done over the years. Over the years, we had this specific articulable fact standard. We don't have it anymore, and that's why I'm pursuing this, and --

MR. MUELLER: Happy to pursue with it you, Senator.

SEN. WYDEN: Good. I want to ask this. Could I ask an additional question? Are we on the third round?

SEN. ROBERTS: Well, of course.

SEN. WYDEN: Third round, or do you want me to proceed now, Mr. --

SEN. ROBERTS: No, right now.

SEN. WYDEN: Thank you.

I want to ask this of General Gonzales, and it involves the privacy and the Civil Liberties Oversight Board with respect to domestic intelligence.

The Senate had a different view with respect to how the board would work then ended up in the final law. And the board, by the Senate version, would be in a position to issue subpoenas. That's not how the law came out.

I'm curious whether you would be supportive of a request, General Gonzales, from the board, to issue a subpoena? It seems to be that if they, right from the get go, don't have that kind of authority, the kind of authority that was envisioned by the Senate, that you limit some of their powers. And I'm just interested in how you would view a request from --

ATTY GEN. GONZALES: Well, if we got such a request, then obviously we would seriously consider it. But there are certain standards that the department would feel would have to be met in connection with the issuance of any subpoena. And simply because this privacy board requested a subpoena, no one should walk away from this hearing --

SEN. WYDEN: The privacy board met the constitutional standards. What you're telling me is you would not rule out giving them a subpoena.

ATTY GEN. GONZALES: If we believe that a subpoena should be issued --

SEN. WYDEN: Very good.

ATTY GEN. GONZALES: -- we would issue a subpoena.

SEN. WYDEN: One last question, if I might, for you, Director Goss, on an area I think that involves a matter we both have a great interest in.

When you were here the last time, I asked about information sharing between the counterterrorism center and various intelligence agencies. It was based on my understanding that while information can be shared among the analysts assigned to the terrorism center, analysts have to seek special approval to share this information with their home agencies. And this approval is required, despite the fact that there is this finite number of people working on terrorism in the intelligence community. All of them have a need to know, all are trained to handle sensitive data on persons and foreign nationals. How do you think this ought to be addressed? And since we talked about it a bit the last time, I though it made sense to follow it up.

I still think something along the lines of a special terrorism analyst, you know, program, so as to allow all the analysts access to the same data would make sense. But since we talked about it the last time, I just wanted to follow up and get your sense of where we were.

MR. GOSS: My sense of where we are is that we are beginning to work better as a team. I don't think it's what I would call a finished product yet. I think it's still a work in progress. Obviously, as you know, I want to be very circumspect in what I respond because Ambassador Negroponte has been given the responsibility for that in his role as DNI, and I no longer have those responsibilities. But when I left the ship, the direction was for more sharing and more compatibility in systems, so that the goals that we both have ascribed to about getting information where you need it, when you need it, to the right analyst, would be available.

I cannot assure you that's going to be accomplished immediately. There are still a lot of different systems involved, different procedures, a lot of concerns about a need to know because need to know still is a principle that comes into the business.

The trick is sharing with the people who need to know and not having a gratuitous release of information that could be harmful otherwise.

A lot of that is going to have to be worked out in a sort of experiential basis as we go along building the NCTC. We're still a little bit in the dark about what strategic planning actually will entail in the NCTC. As I say, I've left those matters in very good hands with Ambassador Negroponte and we've already had some conversations about some of the efforts that'll be necessary out there and that's within the scope of what we've talked about.

SEN. WYDEN: My concern is, and I'll wrap up with this Mr. Chairman, that the pre-911 set of walls have been replaced with a new set of walls preventing information sharing. And, for the life of me, when we have this limited number of people, all with the need to know, all who are trained to handle sensitive data, it just seems putting them through this kind of water torture exercise to share information is pointless and doesn't serve any of the interest that you three have talked about.

I thank you very much, Mr. Chairman, for the extra time.

SEN. ROBERTS: Senator Levin.

SEN. LEVIN: Thank you, Mr. Chairman. I just have one additional question.

Sections 214 and 215 protect American citizens from being investigated, having their phone calls traced, who they're calling, who's calling them, as well as having their records obtained, quote, "solely on the basis of activities that are protected by the first amendment."

So, you cannot be investigated as an American citizen under either 214 or 215 solely on that basis. That's a word which is deeply troubling to me because say part of the motivation is your first amendment activities for being investigated. And I know this isn't your intent. I'm not -- I'm talking about what the law permits. I'm not talking about what you in your practice do.

Why should we suggest in the law, in any way, that if an investigation of an American citizen is based significantly or partly on their first amendment activities, that that would be okay? Or should we?

MR. GONZALES: Well, I think that provision was included by Congress to provide additional protection for the lawful activities of American citizens. But if American citizens are involved or have information, or are in any way affiliated with terrorist activities, we should have the right to gather additional information through 214 and 215.

SEN. LEVIN: Sure. But then the motivation is that participation. The motivation is not, even in part, their first amendment activities.

MR. GONZALES: That would be correct, as far as I'm concerned.

SEN. LEVIN: Yeah. Director.

MR. MUELLER: Well, I mean, you can take Eric Rudolph who may claim first amendment protection for his acts against abortion clinics. It may have some first amendment motive -- protected beliefs. But the fact that he engaged in -- we ought to be able to investigate an Eric Rudolph.

SEN. LEVIN: Of course, who has first amendment --

MR. MUELLER: -- during the investigation, he can complain -- he can sit there and say, look, I'm against abortion clinics, but that doesn't mean he has a right to bomb them.

SEN. LEVIN: Of course.

MR. MUELLER: And so, I think it makes some sense. It's solely -- we cannot investigate someone solely on -- but if they're engaged in someway in exercising their first amendment rights but there is the possibility or the actuality of violence, it makes some sense to me, quite obviously, that we should.

SEN. LEVIN: Of course. But the purpose of the investigation is not to investigate his exercise of first amendments rights, is it?

MR. MUELLER: No.

SEN. LEVIN: That's what I'm driving at. And, I think, Americans are concerned about their rights. And we ought to be sensitive to that and you indicate you want to be sensitive to that. We ought to go after any acts of terrorism or supported acts of terrorism with all of our might. But, we have to be very clear, as you were in your testimony, I think, that we're not after people for exercise of their constitutional rights. We're after them if they participate, encourage, in any way contribute to terrorist acts in some knowing way. Then we're going to go after them with the full weight of the law.

But the word solely in there has been troubling to a lot of people. It is to me and I think you ought to give some thought to eliminating that suggestion that we're not -- our motivation is not to go after people's exercise of their rights, period. That's not the motivation. It's to go after any illegal activity.

Would you agree with that?

MR. GONZALES: I agree with that sir.

MR. MUELLER: Yes.

SEN. LEVIN: Thanks. Thank you, Mr. Chairman.

SEN. ROBERTS: Thank you, Senator. I don't have -- no I have one question but I have -- I'm going to opine. I don't know if that's a verb or not but I'll use it.

Attorney General Gonzales, we're going to call you Jericho in terms of these walls. And I noted the discussion of walls in your written testimony. The views of your lawyers, including the lawyers in the Office of Intelligence Policy and Review, basically laid the foundation for, and ultimately constructed the walls between law enforcement an intelligence officials, which were then adopted by the foreign intelligence surveillance court.

Some would say that these views were overly cautious and I'm being generous. However, as the foreign intelligence surveillance court, their view made clear, these "walls" were not mandated by the Constitution case law or the plain language of the FISA statute. Now that's an opinion upon which I do agree.

Nonetheless, my concern is, with the current implementation of FISA, General Hayden testified before this committee. He indicated the problem was not really preventing NSA employees from stepping over the line. It was getting NSA employees to even come close to the line. It took the FBI and the DOJ more than two and one-half years after the passage of the Patriot Act to obtain the first FISA business record court order. We've gone over that.

And so, the question that I was going to ask, but I'm just going to make it as a statement. Hopefully your attorneys are not still shying away from the line or doing -- and hopefully they are doing what it takes to fully use the tools we gave you in the Patriot Act.

Now the FISA has become one of the nation's most important tools in protecting national security and the Department of Justice, as you know, plays a key role in supporting the intelligence community's use of the Act. The OIPR is at the forefront of this support, whether submitting applications to the foreign intelligence surveillance court or reviewing the attorney general approved implementing guidelines. The attorneys at OIPR should be fully cognizant of the important role they play in the intelligence activities of the United States.

I think it's extremely important that the OIPR be considered and that they consider themselves to be a full partner with the intelligence community.

The question I had was to you sir, and for Director Mueller and for Director Goss, do you agree with that statement? I'll let the record show that you all three said yes. (Laughter.)

While we recognize the role that the OIPR plays in ensuring the integrity of the process, too many times in this committee's oversight, OIPR has shown itself, this is my words, about six months ago during hearing, a rusty gate, if you will, that prevents the full use of intelligence authorities. I think OIPR should focus on enabling, collection and ensuring compliance with the applicable law.

Now, Senator Wyden's pointed out that we have not received your required semi-annual reports. I'm talking to the attorney general, on the usage of national security letters for 2004 were here at the last of April. Mr. Gonzales, could you please look into why we haven't received those reports in a timely fashion. And I know you will do so, Sir.

Finally, I have a copy of the letter from the attorney general, which responds to a number of allegations from the ACLU about the Patriot Act abuses. Without objection, I want to enter this letter in the record.

That concludes the hearing, and we thank you for your time.

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