- Patrick Rowan
- Acting Deputy General Counsel
- Federal Bureau of Investigation
- Before the House Permanent Select Committee on Intelligence
- Washington DC
- July 23, 2003
Mr. Chairman, Ranking Member Harman, and members of the Committee, thank you for inviting me to appear today to testify on behalf of the Federal Bureau of Investigation concerning the Foreign Intelligence Surveillance Act of 1978 (FISA). Significant changes in FISA law arising from the passage of the USA PATRIOT Act, Pub. L. 107-56 (2001), and the Intelligence Authorization Act for Fiscal Year 2002, Pub. L. 107-108 (2001), as well as the November, 2002 decision of the Foreign Intelligence Court of Review, have broadened the opportunities to employ FISA and FISA-generated intelligence information. I would like to focus my remarks on some of the steps we have taken to ensure that the FBI is fully and properly utilizing the FISA statute. I will also briefly address the utility of S. 113, a bill that seeks to extend the coverage of FISA to non-United States persons who engage in international terrorism or activities in preparation for international terrorism, without a showing that they are doing so on behalf of an international terrorist group.
In order to ensure that all FBI personnel have a clear idea of the scope and application of FISA, with the assistance of the Office of Intelligence Policy and Review (OIPR) and other components of the Department of Justice, we have been engaged in a great deal of training.
On December 24, 2002, the Deputy Attorney General issued a directive instructing OIPR, the Criminal Division, and the FBI, in consultation with the CIA, to establish and implement a comprehensive training curriculum on FISA and related matters for all Department lawyers and FBI agents who work on foreign intelligence and counterintelligence investigations. In response, a comprehensive training curriculum was established that is being presented over the course of a four day National Security Conference. The first conference was held beginning on May 6, 2003. Five additional sessions have been held since and there are two more scheduled. The curriculum includes instruction on the mission and organization of the Intelligence Community, an overview of FISA, information sharing, coordination between law enforcement and intelligence components, the use of FISA information in support of criminal litigation, and practical and tactical decision-making.
The training conferences, which are attended by FBI Division Counsels from each field office as well as Special Agents and Assistant United States Attorneys, are to be followed by training in each field office around the country. The FBI's Office of Training and Development has created a distance learning program on FISA and information sharing for all agents and analysts working on counterterrorism or counterintelligence investigations. This on-line training will be followed up by face-to-face training. Instructional teams composed of senior agents and prosecutors who have already attended the National Security Conference will present two days of instruction based on the curriculum taught at the Conference. These training sessions are expected to be completed by November 2003.
Attorneys in the FBI's National Security Law Branch within the Office of the General Counsel (OGC) have also been engaged in less formal training to the field on FISA. Since September 11, Branch attorneys have conducted approximately 70 training sessions (to groups ranging from 20 to several hundred) on FISA issues at Quantico, at Headquarters, and in the field. In addition, to improve advice?giving in the field, in early 2003, OGC sponsored a four?day conference on counterterrorism for all Chief Division Counsels that included lengthy sessions on FISA and information sharing.
This training should produce a greater understanding of and facility with FISA among agents and prosecutors, which will undoubtedly translate into increased use of this investigative tool. In the meantime, we have taken steps to improve the process by which FISA orders are secured and distributed.
Until recently, the request for a FISA was sent from the field to Headquarters in the form of an e-mailed Letter Head Memorandum (LHM). There was no uniform format for the FISA LHMs, and they ranged from single paragraphs lacking in facts to comprehensive documents that could be easily converted into finished declarations. Starting March 1, 2003, field offices are now required to follow a standard format, distributed as an eight-page FISA request form. The form, which was originally designed by OIPR, elicits information about the target's status, the facts and circumstances that establish probable cause to believe the target is an agent of a foreign power, and particulars about the facilities and places to be targeted and the minimization procedures to be employed. The form also requires confirmation that field offices have verified the accuracy of facts alleged in the form. The request form is filled out by the case agent in the field office, reviewed and approved by the field office's Chief Division Counsel and the Special Agent-in-Charge, and then sent via e-mail to an operational unit within the appropriate Headquarters Division.
We expect that the use of this standard form will aid agents in the field by making clear what information is expected from them in order to begin the FISA initiation process. It should result in a more organized and complete request from the field.
Field agents use the same form to request a renewal of FISA authority, which in most cases must be secured within 90 days after initiation of FISA surveillance. Starting March 1, 2003, however, field agents have been instructed to send their renewal requests directly to OIPR, with a copy to FBI Headquarters, to expedite their time-sensitive processing.
In order to ensure that each FISA initiation request that is passed from FBI Headquarters to OIPR is viable and complete, we are implementing a new process in which the FBI's National Security Law Branch attorneys will receive a copy of each counterterrorism initiation request when it arrives in from the field. The attorneys will work closely with Supervisory Special Agents and analysts in counterterrorism to finalize each request and submit it to OIPR in a timely fashion. The goal of this change is to increase the level of legal review given to FISA initiations at the front end, identifying at an early stage any deficiencies in the factual basis for the applications and thereby decreasing the amount of time and effort that OIPR attorneys must invest in order to prepare a court-ready package. In order to accomplish this task, the National Security Law Branch has been re-organized and attorneys from other branches of the General Counsel's Office have been re-assigned to National Security Law. The end result will be a doubling of the number of attorneys working on counterterrorism FISA initiation requests.
In an additional effort to improve the efficiency of the process, the FBI established a FISA Unit within the National Security Law Branch in November, 2002. The FISA Unit, which is currently staffed with a Unit Chief and six staff members, performs administrative support functions for the FISA process. The FISA Unit is currently working with contractors to design, install, and test a new FISA management system. The FISA management system is an automated tracking system that will electronically connect field offices, Headquarters, the National Security Law Branch, and OIPR to one another. It will transmit FISA documents between the participants in the FISA process and allow them to track the progress of FISA packages during each stage of the process.
The management system should speed up the process in several ways. First, the FISA request form will be loaded onto the system so that field agents can quickly insert their case-specific information into a standardized form. In addition, by tracking the progress of each package, the system will identify delays in the process. If an agent is not making progress on an initiation request, the system will show that delay and a monitoring analyst in the FISA Unit can e-mail a reminder to that person and others that the request is awaiting completion. Also, it will allow OIPR to request additional information from the field via the system, so that questions can be resolved in a timely fashion. The FISA management system is expected to be ready for testing in several field offices by end of summer, and operational nationwide by October, 2003.
In addition to managing the development and operation of the management system and ensuring that those involved in the FISA process adhere to reasonable time-frames, the FISA Unit is responsible for distributing the FISC's orders and warrants to the appropriate field offices for their use and for service upon communications carriers and other persons specified in the orders and warrants. The FISA Unit, OIPR, and the Foreign Intelligence Surveillance Court have all taken steps to improve the distribution of orders and warrants after the court approves them.
Since September 11, 2001, the use of FISA has dramatically increased. We expect this trend to continue, and we will continue our efforts to improve the process so that we may gain the full benefit of the statute.
There is a bill pending that would bring about an additional change in FISA. S. 113 would amend FISA's definition of "foreign power" to include "any person, other than a United States person, or group that is engaged in international terrorism or activities in preparation therefor."
As you are aware, since the time that FISA was first enacted, the face of terrorism has changed. Where we once saw terrorism formed solely around organized, almost para-military groups, we now have learned of individuals willing to commit indiscriminate acts of terror. Some of these individuals will turn out to be affiliated with groups we have not yet been able to identify, but it may also be that they are so-called "lone wolf" international terrorists, non-U.S. persons who seek to change governmental policies for their own reasons or to bring about destruction in what they view as retaliation for aspects of U.S. foreign policy with which they do not agree.
Usama bin Laden's organization, al Qaeda, is but one of a number of terrorist organizations that are loosely networked together that purport to be acting in the furtherance of their own radical view of Islam. On occasion, these organizations and their leaders issue public fatwas or religious rulings calling for their followers to attack Americans and American interests. Of course, one need not be a member of these organizations to be moved to act upon such a call to violence.
There are radical militants around the globe who share common ideas and goals, but are not linked by organizational structure. Under these circumstances, it is not at all surprising that our investigations would occasionally identify individuals who appear to be engaged in terrorist activities but for which we have not identified a connection to terrorist groups, or who have tenuous ties to multiple organizations. Some may well be acting on behalf of groups but exercising operational discipline that makes the connections exceedingly difficult to uncover. The amendment proposed in S. 113 would aid our investigation of such individuals.
On behalf of the FBI, I want to again express my appreciation for the opportunity to appear before you here today. I would be pleased to answer any questions that you might have.