Home News Testimony USA Patriot Act Amendments to Foreign Intelligence Surveillance Act Authorities
  • Alberto R. Gonzales and Robert S. Mueller, III
  • Attorney General of the United States, Director
  • Federal Bureau of Investigation
  • Select Committee on Intelligence United States Senate
  • Washington, DC
  • April 27, 2005

Chairman Roberts, Vice Chairman Rockefeller, and Members of the Committee:

We are pleased to be here today to discuss the government’s use of authorities granted to

it by Congress under the Foreign Intelligence Surveillance Act of 1978 (FISA). In particular, we

appreciate the opportunity to have a candid discussion about the impact of the amendments to

FISA made by the USA PATRIOT Act and how critical they are to the government’s ability to

successfully prosecute the war on terrorism and prevent another attack like that of September 11

from ever happening again.

As we stated in our testimony to the Senate Judiciary Committee, we are open to

suggestions for strengthening and clarifying the USA PATRIOT Act, and we look forward to

meeting with people both inside and outside of Congress who have expressed views about the

Act. However, we will not support any proposal that would undermine our ability to combat

terrorism effectively.

I. FISA Statistics

First, we would like to talk with you about the use of FISA generally. Since September

11, the volume of applications to the Foreign Intelligence Surveillance Court (FISA court) has

dramatically increased.

• In 2000, 1,012 applications for surveillance or search were filed under FISA. As

the Department’s public annual FISA report sent to Congress on April 1, 2005

states, in 2004 we filed 1,758 applications, a 74% increase in four years.

• Of the 1,758 applications made in 2004, none were denied, although 94 were

modified by the FISA court in some substantive way.

II. Key Uses of FISA Authorities in the War on Terrorism

In enacting the USA PATRIOT Act, the Intelligence Authorization Act for Fiscal Year

2002, and the Intelligence Reform and Terrorism Prevention Act of 2004, Congress provided the

government with vital tools that it has used regularly and effectively in its war on terrorism. The

reforms contained in those measures affect every single application made by the Department for

electronic surveillance or physical search of suspected terrorists and have enabled the government

to become quicker and more flexible in gathering critical intelligence information on suspected

terrorists. It is because of the key importance of these tools to the war on terror that we ask you

to reauthorize the provisions of the USA PATRIOT Act scheduled to expire at the end of this

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year. Of particular concern is section 206's authorization of multipoint or “roving” wiretaps,

section 207's expansion of FISA’s authorization periods for certain cases, section 214's revision of

the legal standard for installing and using pen register / trap and trace devices, and section 215's

grant of the ability to obtain a Court order requesting the production of business records related

to national security investigations.

In addition, the Intelligence Reform and Terrorism Prevention Act of 2004 includes a

“lone wolf” provision that expands the definition of “agent of a foreign power” to include a non-

United States person, who acts alone or is believed to be acting alone and who engages in

international terrorism or in activities in preparation therefor. This provision is also scheduled to

sunset at the end of this year, and we ask that it be made permanent as well.

A. Roving Wiretaps

Section 206 of the USA PATRIOT Act extends to FISA the ability to “follow the target”

for purposes of surveillance rather than tie the surveillance to a particular facility and provider

when the target’s actions may have the effect of thwarting that surveillance. In the Attorney

General’s testimony at the beginning of this month before the Senate Judiciary Committee, he

declassified the fact that the FISA court issued 49 orders authorizing the use of roving

surveillance authority under section 206 as of March 30, 2005. Use of roving surveillance has

been available to law enforcement for many years and has been upheld as constitutional by several

federal courts, including the Second, Fifth, and Ninth Circuits. Some object that this provision

gives the FBI discretion to conduct surveillance of persons who are not approved targets of

court-authorized surveillance. This is wrong. Section 206 did not change the requirement that

before approving electronic surveillance, the FISA court 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 spy. Without section 206, investigators will once again have to struggle to

catch up to sophisticated terrorists trained to constantly change phones in order to avoid

surveillance.

Critics of section 206 also contend that it allows intelligence investigators to conduct

“John Doe” roving surveillance that permits the FBI to wiretap every single phone line, mobile

communications device, or Internet connection the suspect may use without having to identify the

suspect by name. As a result, they fear that the FBI may violate the communications privacy of

innocent Americans. Let me respond to this criticism in the following way. First, even when the

government is unsure of the name of a target of such a wiretap, FISA requires the government to

provide “the identity, if known, or a description of the target of the electronic surveillance” to the

FISA Court prior to obtaining the surveillance order. 50 U.S.C. §§ 1804(a)(3) and

1805(c)(1)(A). As a result, each roving wiretap order is tied to a particular target whom the

FISA Court must find probable cause to believe is a foreign power or an agent of a foreign power.

In addition, the FISA Court must find “that the actions of the target of the application may have

the effect of thwarting” the surveillance, thereby requiring an analysis of the activities of a foreign

power or an agent of a foreign power that can be identified or described. 50 U.S.C.

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§ 1805(c)(2)(B). Finally, it is important to remember that FISA has always required that the

government conduct every surveillance pursuant to appropriate minimization procedures that limit

the government’s acquisition, retention, and dissemination of irrelevant communications of

innocent Americans. Both the Attorney General and the FISA Court must approve those

minimization procedures. Taken together, we believe that these provisions adequately protect

against unwarranted governmental intrusions into the privacy of Americans. Section 206 sunsets

at the end of this year.

the target of the application may have

the effect of thwarting” the surveillance, thereby requiring an analysis of the activities of a foreign

power or an agent of a foreign power that can be identified or described. 50 U.S.C.

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§ 1805(c)(2)(B). Finally, it is important to remember that FISA has always required that the

government conduct every surveillance pursuant to appropriate minimization procedures that limit

the government’s acquisition, retention, and dissemination of irrelevant communications of

innocent Americans. Both the Attorney General and the FISA Court must approve those

minimization procedures. Taken together, we believe that these provisions adequately protect

against unwarranted governmental intrusions into the privacy of Americans. Section 206 sunsets

at the end of this year.

B. Authorized Periods for FISA Collection

Section 207 of the USA PATRIOT Act has been essential to protecting the national

security of the United States and protecting the civil liberties of Americans. It changed the time

periods for which electronic surveillance and physical searches are authorized under FISA and, in

doing so, conserved limited OIPR and FBI resources. Instead of devoting time to the mechanics

of repeatedly renewing FISA applications in certain cases -- which are considerable -- those

resources can be devoted instead to other investigative activity as well as conducting appropriate

oversight of the use of intelligence collection authorities by the FBI and other intelligence

agencies. A few examples of how section 207 has helped are set forth below.

Since its inception, FISA has permitted electronic surveillance of an individual who is an

agent of foreign power based upon his status as a non-United States person who acts in the

United States as "an officer or employee of a foreign power, or as a member" of an international

terrorist group. As originally enacted, FISA permitted electronic surveillance of such targets for

initial periods of 90 days, with extensions for additional periods of up to 90 days based upon

subsequent applications by the government. In addition, FISA originally allowed the government

to conduct physical searches of any agent of a foreign power (including United States persons) for

initial periods of 45 days, with extensions for additional 45-day periods.

Section 207 of the USA PATRIOT Act changed the law as to permit the government to

conduct electronic surveillance and physical search of certain agents of foreign powers and nonresident

alien members of international groups for initial periods of 120 days, with extensions for

periods of up to one year. It also allows the government to obtain authorization to conduct a

physical search of any agent of a foreign power for periods of up to 90 days. Section 207 did not

change the time periods applicable for electronic surveillance of United States persons, which

remain at 90 days. By making these time periods equivalent, it has enabled the Department to file

streamlined combined electronic surveillance and physical search applications that, in the past,

were tried but abandoned as too cumbersome to do effectively.

As the Attorney General testified before the Senate Judiciary Committee, we estimate that

the amendments in section 207 have saved OIPR approximately 60,000 hours of attorney time in

the processing of applications. Because of section 207's success, we have proposed additional

amendments to increase the efficiency of the FISA process. Among these would be to allow

coverage of all non-U.S. person agents for foreign powers for 120 days initially with each renewal

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of such authority allowing continued coverage for one year. Had this and other proposals been

included in the USA PATRIOT Act, the Department estimates that an additional 25,000 attorney

hours would have been saved in the interim. Most of these ideas were specifically endorsed in the

recent report of the WMD Commission. The WMD Commission agreed that these changes

would allow the Department to focus its attention where it is most needed and to ensure adequate

attention is given to cases implicating the civil liberties of Americans. Section 207 is scheduled to

sunset at the end of this year.

C. Pen Registers and Trap and Trace Devices

Some of the most useful, and least intrusive, investigative tools available to both

intelligence and law enforcement investigators are pen registers and trap and trace devices.

These devices record data regarding incoming and outgoing communications, such as all of the

telephone numbers that call, or are called by, certain phone numbers associated with a suspected

terrorist or spy. These devices, however, do not record the substantive content of the

communications, such as the words spoken in a telephone conversation. For that reason, the

Supreme Court has held that there is no Fourth Amendment protected privacy interest in

information acquired from telephone calls by a pen register. Nevertheless, information obtained

by pen registers or trap and trace devices can be extremely useful in an investigation by revealing

the nature and extent of the contacts between a subject and his confederates. The data provides

important leads for investigators, and may assist them in building the facts necessary to obtain

probable cause to support a full content wiretap.

Under chapter 206 of title 18, which has been in place since 1986, if an FBI agent and

prosecutor in a criminal investigation of a bank robber or an organized crime figure want to install

and use pen registers or trap and trace devices, the prosecutor must file an application to do so

with a federal court. The application they must file, however, is exceedingly simple: it need only

specify the identity of the applicant and the law enforcement agency conducting the investigation,

as well as “a certification by the applicant that the information likely to be obtained is relevant to

an ongoing criminal investigation being conducted by that agency.” Such applications, of course,

include other information about the facility that will be targeted and details about the

implementation of the collection, as well as “a statement of the offense to which the information

likely to be obtained . . . relates,” but chapter 206 does not require an extended recitation of the

facts of the case.

In contrast, prior to the USA PATRIOT Act, in order for an FBI agent conducting an

intelligence investigation to obtain FISA authority to use the same pen register and trap and trace

device to investigate a spy or a terrorist, the government was required to file a complicated

application under title IV of FISA. Not only was the government’s application required to

include “a certification by the applicant that the information likely to be obtained is relevant to an

ongoing foreign intelligence or international terrorism investigation being conducted by the

Federal Bureau of Investigation under guidelines approved by the Attorney General,” it also had

to include the following:

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information which demonstrates that there is reason to believe that the telephone line to

which the pen register or trap and trace device is to be attached, or the communication

instrument or device to be covered by the pen register or trap and trace device, has been

or is about to be used in communication with––

(A) an individual who is engaging or has engaged in international terrorism or

clandestine intelligence activities that involve or may involve a violation of the

criminal laws of the United States; or

(B) a foreign power or agent of foreign power under circumstances giving reason

to believe that the communication concerns or concerned international terrorism or

clandestine intelligence activities that involve or may involve a violation of the

criminal laws of the United States.

Thus, the government had to make a much different showing in order obtain a pen register

or trap and trace authorization to find out information about a spy or a terrorist than is required to

obtain the very same information about a drug dealer or other ordinary criminal. Sensibly, section

214 of the USA PATRIOT Act simplified the standard that the government must meet in order to

obtain pen/trap data in national security cases. Now, in order to obtain a national security

pen/trap order, the applicant must certify “that the information likely to be obtained is foreign

intelligence information not concerning a United States person, or is relevant to an investigation

to protect against international terrorism or clandestine intelligence activities.” Importantly, the

law requires that such an investigation of a United States person may not be conducted solely

upon the basis of activities protected by the First Amendment to the Constitution.

Section 214 should not be permitted to expire and return us to the days when it was more

difficult to obtain pen/trap authority in important national security cases than in normal criminal

cases. This is especially true when the law already includes provisions that adequately protect the

civil liberties of Americans. I urge you to re-authorize section 214.

D. Access to Tangible Things

Section 215 of the USA PATRIOT Act allows the FBI to obtain an order from the FISA

Court requesting production of any tangible thing, such as business records, if the items are

relevant to an ongoing authorized national security investigation, which, in the case of a United

States person, cannot be based solely upon activities protected by the First Amendment to the

Constitution. The Attorney General also declassified earlier this month the fact that the FISA

Court has issued 35 orders requiring the production of tangible things under section 215 from the

date of the effective date of the Act through March 30th of this year. None of those orders was

issued to libraries and/or booksellers, and none was for medical or gun records. The provision to

date has been used only to order the production of driver’s license records, public accommodation

records, apartment leasing records, credit card records, and subscriber information, such as names

and addresses, for telephone numbers captured through court-authorized pen register devices.

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Similar to a prosecutor in a criminal case issuing a grand jury subpoena for an item

relevant to his investigation, so too may the FISA Court issue an order requiring the production

of records or items that are relevant to an investigation to protect against international terrorism

or clandestine intelligence activities. Section 215 orders, however, are subject to judicial

oversight before they are issued – unlike grand jury subpoenas. The FISA Court must explicitly

authorize the use of section 215 to obtain business records before the government may serve the

order on a recipient. In contrast, grand jury subpoenas are subject to judicial review only if they

are challenged by the recipient. Section 215 orders are also subject to the same standard as grand

jury subpoenas – a relevance standard.

Section 215 has been criticized because it does not exempt libraries and booksellers. The

absence of such an exemption is consistent with criminal investigative practice. Prosecutors have

always been able to obtain records from libraries and bookstores through grand jury subpoenas.

Libraries and booksellers should not become safe havens for terrorists and spies. Last year, a

member of a terrorist group closely affiliated with al Qaeda used Internet service provided by a

public library to communicate with his confederates. Furthermore, we know that spies have used

public library computers to do research to further their espionage and to communicate with their

co-conspirators. For example, Brian Regan, a former TRW employee working at the National

Reconnaissance Office, who was convicted of espionage, extensively used computers at five

public libraries in Northern Virginia and Maryland to access addresses for the embassies of certain

foreign governments.

Concerns that section 215 allows the government to target Americans because of the

books they read or websites they visit are misplaced. The provision explicitly prohibits the

government from conducting an investigation of a U.S. person based solely upon protected First

Amendment activity. 50 U.S.C. § 1861(a)(2)(B). However, some criticisms of section 215 have

apparently been based on possible ambiguity in the law. The Department has already stated in

litigation that the recipient of a section 215 order may consult with his attorney and may challenge

that order in court. The Department has also stated that the government may seek, and a court

may require, only the production of records that are relevant to a national security investigation, a

standard similar to the relevance standard that applies to grand jury subpoenas in criminal cases.

The text of section 215, however, is not as clear as it could be in these respects. The Department,

therefore, is willing to support amendments to Section 215 to clarify these points. Section 215

also is scheduled to sunset at the end of this year.

E. The “Wall”

Before the USA PATRIOT Act, applications for orders authorizing electronic surveillance

or physical searches under FISA had to include a certification from a high-ranking Executive

Branch official that “the purpose” of the surveillance or search was to gather foreign intelligence

information. As interpreted by the courts and the Justice Department, this requirement meant that

the “primary purpose” of the collection had to be to obtain foreign intelligence information rather

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than evidence of a crime. Over the years, the prevailing interpretation and implementation of the

“primary purpose” standard had the effect of sharply limiting coordination and information sharing

between intelligence and law enforcement personnel. Because the courts evaluated the

government’s purpose for using FISA at least in part by examining the nature and extent of such

coordination, the more coordination that occurred, the more likely courts would find that law

enforcement, rather than foreign intelligence collection, had become the primary purpose of the

surveillance or search.

During the 1980s, the Department operated under a set of largely unwritten rules that

limited to some degree information sharing between intelligence and law enforcement officials. In

1995, however, the Department established formal procedures that more clearly separated law

enforcement and intelligence investigations and limited the sharing of information between

intelligence and law enforcement personnel even more than the law required. The promulgation

of these procedures was motivated in part by the concern that the use of FISA authorities would

not be allowed to continue in particular investigations if criminal prosecution began to overcome

intelligence gathering as an investigation’s primary purpose. The procedures were intended to

permit a degree of interaction and information sharing between prosecutors and intelligence

officers while at the same time ensuring that the FBI would be able to obtain or continue FISA

coverage and later use the fruits of that coverage in a criminal prosecution. Over time, however,

coordination and information sharing between intelligence and law enforcement personnel became

more limited in practice than was allowed in reality. A perception arose that improper

information sharing could end a career, and a culture developed within the Department sharply

limiting the exchange of information between intelligence and law enforcement officials.

Sections 218 and 504 of the USA PATRIOT Act helped to bring down this “wall”

separating intelligence and law enforcement officials. They erased the perceived statutory

impediment to more robust information sharing between intelligence and law enforcement

personnel. They also provided the necessary impetus for the removal of the formal administrative

restrictions as well as the informal cultural restrictions on information sharing.

Section 218 of the USA PATRIOT Act eliminated the “primary purpose” requirement.

Under section 218, the government may conduct FISA surveillance or searches if foreign

intelligence gathering is a “significant” purpose of the surveillance or search. This eliminated the

need for courts to compare the relative weight of the “foreign intelligence” and “law enforcement”

purposes of the surveillance or search, and allows increased coordination and sharing of

information between intelligence and law enforcement personnel. Section 218 was upheld as

constitutional in 2002 by the FISA court of Review. This change, significantly, did not affect the

government’s obligation to demonstrate that there is probable cause to believe that the target is a

foreign power or an agent of a foreign power. Section 504 – which is not subject to sunset –

buttressed section 218 by specifically amending FISA to allow intelligence officials conducting

FISA surveillances or searches to “consult” with federal law enforcement officials to “coordinate”

efforts to investigate or protect against international terrorism, espionage, and other foreign

threats to national security, and to clarify that such coordination “shall not” preclude the

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certification of a “significant” foreign intelligence purpose or the issuance of an authorization

order by the FISA court.

The Department moved aggressively to implement sections 218 and 504. Following

passage of the Act, the Attorney General adopted new procedures designed to increase

information sharing between intelligence and law enforcement officials, which were affirmed by

the FISA court of Review on November 18, 2002. The Attorney General has also issued other

directives to further enhance information sharing and coordination between intelligence and law

enforcement officials. In practical terms, a prosecutor may now consult freely with the FBI about

what, if any, investigative tools should be used to best prevent terrorist attacks and protect the

national security. Unlike section 504, section 218 is scheduled to sunset at the end of this year.

The increased information sharing facilitated by the USA PATRIOT Act has led to

tangible results in the war against terrorism: plots have been disrupted; terrorists have been

apprehended; and convictions have been obtained in terrorism cases. Information sharing

between intelligence and law enforcement personnel, for example, was critical in successfully

dismantling a terror cell in Portland, Oregon, popularly known as the “Portland Seven,” as well as

a terror cell in Lackawanna, New York. Such information sharing has also been used in the

prosecution of: several persons involved in al Qaeda drugs-for-weapons plot in San Diego, two of

whom have pleaded guilty; nine associates in Northern Virginia of a violent extremist group

known as Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and sentenced to prison

terms ranging from four years to life imprisonment; two Yemeni citizens, Mohammed Ali Hasan

Al-Moayad and Mohshen Yahya Zayed, who were charged and convicted for conspiring to

provide material support to al Qaeda and HAMAS; Khaled Abdel Latif Dumeisi, who was

convicted by a jury in January 2004 of illegally acting as an agent of the former government of

Iraq as well as two counts of perjury; and Enaam Arnaout, the Executive Director of the Illinoisbased

Benevolence International Foundation, who had a long-standing relationship with Osama

Bin Laden and pleaded guilty to a racketeering charge, admitting that he diverted thousands of

dollars from his charity organization to support Islamic militant groups in Bosnia and Chechnya.

Information sharing between intelligence and law enforcement personnel has also been extremely

valuable in a number of other ongoing or otherwise sensitive investigations that we are not at

liberty to discuss today.

While the “wall” primarily hindered the flow of information from intelligence investigators

to law enforcement investigators, another set of barriers, before the passage of the USA

PATRIOT Act, often hampered law enforcement officials from sharing information with

intelligence personnel and others in the government responsible for protecting the national

security. Federal law, for example, was interpreted generally to prohibit federal prosecutors from

disclosing information from grand jury testimony and criminal investigative wiretaps to

intelligence and national defense officials even if that information indicated that terrorists were

planning a future attack, unless such officials were actually assisting with the criminal

investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however, eliminated these

obstacles to information sharing by allowing for the dissemination of that information to assist

Federal law enforcement, intelligence, protective, immigration, national defense, and national

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security officials in the performance of their official duties, even if their duties are unrelated to the

criminal investigation. (Section 203(a) covers grand jury information, and section 203(b) covers

wiretap information.) Section 203(d), likewise, ensures that important information that is

obtained by law enforcement means may be shared with intelligence and other national security

officials. This provision does so by creating a generic exception to any other law purporting to

bar Federal law enforcement, intelligence, immigration, national defense, or national security

officials from receiving, for official use, information regarding foreign intelligence or

counterintelligence obtained as part of a criminal investigation. Indeed, section 905 of the USA

PATRIOT Act requires the Attorney General to expeditiously disclose to the Director of Central

Intelligence foreign intelligence acquired by the Department of Justice in the course of a criminal

investigation unless disclosure of such information would jeopardize an ongoing investigation or

impair other significant law enforcement interests.

The Department has relied on section 203 in disclosing vital information to the intelligence

community and other federal officials on many occasions. Such disclosures, for instance, have

been used to assist in the dismantling of terror cells in Portland, Oregon and Lackawanna, New

York and to support the revocation of suspected terrorists’ visas.

Because two provisions in section 203: sections 203(b) and 203(d) are scheduled to sunset

at the end of the year, we provide below specific examples of the utility of those provisions.

Examples of cases where intelligence information from a criminal investigation was appropriately

shared with the Intelligence Community under Section 203(d) include:

• Information about the organization of a violent jihad training camp including training in

basic military skills, explosives, weapons and plane hijackings, as well as a plot to bomb

soft targets abroad, resulted from the investigation and criminal prosecution of a

naturalized United States citizen who was associated with an al-Qaeda related group;

• Travel information and the manner that monies were channeled to members of a seditious

conspiracy who traveled from the United States to fight alongside the Taliban against U.S.

and allied forces;

• Information about an assassination plot, including the use of false travel documents and

transporting monies to a designated state sponsor of terrorism resulted from the

investigation and prosecution of a naturalized United States citizen who had been the

founder of a well-known United States organization;

• Information about the use of fraudulent travel documents by a high-ranking member of a

designated foreign terrorist organization emanating from his criminal investigation and

prosecution revealed intelligence information about the manner and means of the terrorist

group’s logistical support network which was shared in order to assist in protecting the

lives of U.S. citizens;

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• The criminal prosecution of individuals who traveled to, and participated in, a militarystyle

training camp abroad yielded intelligence information in a number of areas including

details regarding the application forms which permitted attendance at the training camp;

after being convicted, one defendant has testified in a recent separate federal criminal trial

about this application practice, which assisted in the admissibility of the form and

conviction of the defendants; and

• The criminal prosecution of a naturalized U.S. citizen who had traveled to an Al-Qaeda

training camp in Afghanistan revealed information about the group’s practices, logistical

support and targeting information.

Title III information has similarly been shared with the Intelligence Community through section

203(b). The potential utility of such information to the intelligence and national security

communities is obvious: suspects whose conversations are being monitored without their

knowledge may reveal all sorts of information about terrorists, terrorist plots, or other activities

with national security implications. Furthermore, the utility of this provision is not theoretical: the

Department has made disclosures of vital information to the intelligence community and other

federal officials under section 203(b) on many occasions, such as:

• Wiretap interceptions involving a scheme to defraud donors and the Internal Revenue

Service and illegally transfer monies to Iraq generated not only criminal charges but

information concerning the manner and means by which monies were funneled to Iraq; and

• Intercepted communications, in conjunction with a sting operation, led to criminal charges

and intelligence information relating to money laundering, receiving and attempting to

transport night-vision goggles, infrared army lights and other sensitive military equipment

relating to a foreign terrorist organization.

Section 203 is also critical to the operation of the National Counterterrorism Center. The

FBI relies upon section 203(d) to provide information obtained in criminal investigations to

analysts in the new National Counterterrorism Center, thus assisting the Center in carrying out its

vital counterterrorism missions. The National Counterterrorism Center represents a strong

example of section 203 information sharing, as the Center uses information provided by law

enforcement agencies to produce comprehensive terrorism analysis; to add to the list of suspected

terrorists on the TIPOFF watchlist; and to distribute terrorism-related information across the

federal government.

In addition, last year, during a series of high-profile events – the G-8 Summit in Georgia,

the Democratic Convention in Boston and the Republican Convention in New York, the

November 2004 presidential election, and other events – a task force used the information sharing

provisions under Section 203(d) as part and parcel of performing its critical duties. The 2004

Threat Task Force was a successful inter-agency effort where there was a robust sharing of

information at all levels of government.

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the purpose” of the surveillance or search was to gather foreign intelligence

information. As interpreted by the courts and the Justice Department, this requirement meant that

the “primary purpose” of the collection had to be to obtain foreign intelligence information rather

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than evidence of a crime. Over the years, the prevailing interpretation and implementation of the

“primary purpose” standard had the effect of sharply limiting coordination and information sharing

between intelligence and law enforcement personnel. Because the courts evaluated the

government’s purpose for using FISA at least in part by examining the nature and extent of such

coordination, the more coordination that occurred, the more likely courts would find that law

enforcement, rather than foreign intelligence collection, had become the primary purpose of the

surveillance or search.

During the 1980s, the Department operated under a set of largely unwritten rules that

limited to some degree information sharing between intelligence and law enforcement officials. In

1995, however, the Department established formal procedures that more clearly separated law

enforcement and intelligence investigations and limited the sharing of information between

intelligence and law enforcement personnel even more than the law required. The promulgation

of these procedures was motivated in part by the concern that the use of FISA authorities would

not be allowed to continue in particular investigations if criminal prosecution began to overcome

intelligence gathering as an investigation’s primary purpose. The procedures were intended to

permit a degree of interaction and information sharing between prosecutors and intelligence

officers while at the same time ensuring that the FBI would be able to obtain or continue FISA

coverage and later use the fruits of that coverage in a criminal prosecution. Over time, however,

coordination and information sharing between intelligence and law enforcement personnel became

more limited in practice than was allowed in reality. A perception arose that improper

information sharing could end a career, and a culture developed within the Department sharply

limiting the exchange of information between intelligence and law enforcement officials.

Sections 218 and 504 of the USA PATRIOT Act helped to bring down this “wall”

separating intelligence and law enforcement officials. They erased the perceived statutory

impediment to more robust information sharing between intelligence and law enforcement

personnel. They also provided the necessary impetus for the removal of the formal administrative

restrictions as well as the informal cultural restrictions on information sharing.

Section 218 of the USA PATRIOT Act eliminated the “primary purpose” requirement.

Under section 218, the government may conduct FISA surveillance or searches if foreign

intelligence gathering is a “significant” purpose of the surveillance or search. This eliminated the

need for courts to compare the relative weight of the “foreign intelligence” and “law enforcement”

purposes of the surveillance or search, and allows increased coordination and sharing of

information between intelligence and law enforcement personnel. Section 218 was upheld as

constitutional in 2002 by the FISA court of Review. This change, significantly, did not affect the

government’s obligation to demonstrate that there is probable cause to believe that the target is a

foreign power or an agent of a foreign power. Section 504 – which is not subject to sunset –

buttressed section 218 by specifically amending FISA to allow intelligence officials conducting

FISA surveillances or searches to “consult” with federal law enforcement officials to “coordinate”

efforts to investigate or protect against international terrorism, espionage, and other foreign

threats to national security, and to clarify that such coordination “shall not” preclude the

-8-

certification of a “significant” foreign intelligence purpose or the issuance of an authorization

order by the FISA court.

The Department moved aggressively to implement sections 218 and 504. Following

passage of the Act, the Attorney General adopted new procedures designed to increase

information sharing between intelligence and law enforcement officials, which were affirmed by

the FISA court of Review on November 18, 2002. The Attorney General has also issued other

directives to further enhance information sharing and coordination between intelligence and law

enforcement officials. In practical terms, a prosecutor may now consult freely with the FBI about

what, if any, investigative tools should be used to best prevent terrorist attacks and protect the

national security. Unlike section 504, section 218 is scheduled to sunset at the end of this year.

The increased information sharing facilitated by the USA PATRIOT Act has led to

tangible results in the war against terrorism: plots have been disrupted; terrorists have been

apprehended; and convictions have been obtained in terrorism cases. Information sharing

between intelligence and law enforcement personnel, for example, was critical in successfully

dismantling a terror cell in Portland, Oregon, popularly known as the “Portland Seven,” as well as

a terror cell in Lackawanna, New York. Such information sharing has also been used in the

prosecution of: several persons involved in al Qaeda drugs-for-weapons plot in San Diego, two of

whom have pleaded guilty; nine associates in Northern Virginia of a violent extremist group

known as Lashkar-e-Taiba that has ties to al Qaeda, who were convicted and sentenced to prison

terms ranging from four years to life imprisonment; two Yemeni citizens, Mohammed Ali Hasan

Al-Moayad and Mohshen Yahya Zayed, who were charged and convicted for conspiring to

provide material support to al Qaeda and HAMAS; Khaled Abdel Latif Dumeisi, who was

convicted by a jury in January 2004 of illegally acting as an agent of the former government of

Iraq as well as two counts of perjury; and Enaam Arnaout, the Executive Director of the Illinoisbased

Benevolence International Foundation, who had a long-standing relationship with Osama

Bin Laden and pleaded guilty to a racketeering charge, admitting that he diverted thousands of

dollars from his charity organization to support Islamic militant groups in Bosnia and Chechnya.

Information sharing between intelligence and law enforcement personnel has also been extremely

valuable in a number of other ongoing or otherwise sensitive investigations that we are not at

liberty to discuss today.

While the “wall” primarily hindered the flow of information from intelligence investigators

to law enforcement investigators, another set of barriers, before the passage of the USA

PATRIOT Act, often hampered law enforcement officials from sharing information with

intelligence personnel and others in the government responsible for protecting the national

security. Federal law, for example, was interpreted generally to prohibit federal prosecutors from

disclosing information from grand jury testimony and criminal investigative wiretaps to

intelligence and national defense officials even if that information indicated that terrorists were

planning a future attack, unless such officials were actually assisting with the criminal

investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however, eliminated these

obstacles to information sharing by allowing for the dissemination of that information to assist

Federal law enforcement, intelligence, protective, immigration, national defense, and national

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security officials in the performance of their official duties, even if their duties are unrelated to the

criminal investigation. (Section 203(a) covers grand jury information, and section 203(b) covers

wiretap information.) Section 203(d), likewise, ensures that important information that is

obtained by law enforcement means may be shared with intelligence and other national security

officials. This provision does so by creating a generic exception to any other law purporting to

bar Federal law enforcement, intelligence, immigration, national defense, or national security

officials from receiving, for official use, information regarding foreign intelligence or

counterintelligence obtained as part of a criminal investigation. Indeed, section 905 of the USA

PATRIOT Act requires the Attorney General to expeditiously disclose to the Director of Central

Intelligence foreign intelligence acquired by the Department of Justice in the course of a criminal

investigation unless disclosure of such information would jeopardize an ongoing investigation or

impair other significant law enforcement interests.

The Department has relied on section 203 in disclosing vital information to the intelligence

community and other federal officials on many occasions. Such disclosures, for instance, have

been used to assist in the dismantling of terror cells in Portland, Oregon and Lackawanna, New

York and to support the revocation of suspected terrorists’ visas.

Because two provisions in section 203: sections 203(b) and 203(d) are scheduled to sunset

at the end of the year, we provide below specific examples of the utility of those provisions.

Examples of cases where intelligence information from a criminal investigation was appropriately

shared with the Intelligence Community under Section 203(d) include:

• Information about the organization of a violent jihad training camp including training in

basic military skills, explosives, weapons and plane hijackings, as well as a plot to bomb

soft targets abroad, resulted from the investigation and criminal prosecution of a

naturalized United States citizen who was associated with an al-Qaeda related group;

• Travel information and the manner that monies were channeled to members of a seditious

conspiracy who traveled from the United States to fight alongside the Taliban against U.S.

and allied forces;

• Information about an assassination plot, including the use of false travel documents and

transporting monies to a designated state sponsor of terrorism resulted from the

investigation and prosecution of a naturalized United States citizen who had been the

founder of a well-known United States organization;

• Information about the use of fraudulent travel documents by a high-ranking member of a

designated foreign terrorist organization emanating from his criminal investigation and

prosecution revealed intelligence information about the manner and means of the terrorist

group’s logistical support network which was shared in order to assist in protecting the

lives of U.S. citizens;

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• The criminal prosecution of individuals who traveled to, and participated in, a militarystyle

training camp abroad yielded intelligence information in a number of areas including

details regarding the application forms which permitted attendance at the training camp;

after being convicted, one defendant has testified in a recent separate federal criminal trial

about this application practice, which assisted in the admissibility of the form and

conviction of the defendants; and

• The criminal prosecution of a naturalized U.S. citizen who had traveled to an Al-Qaeda

training camp in Afghanistan revealed information about the group’s practices, logistical

support and targeting information.

Title III information has similarly been shared with the Intelligence Community through section

203(b). The potential utility of such information to the intelligence and national security

communities is obvious: suspects whose conversations are being monitored without their

knowledge may reveal all sorts of information about terrorists, terrorist plots, or other activities

with national security implications. Furthermore, the utility of this provision is not theoretical: the

Department has made disclosures of vital information to the intelligence community and other

federal officials under section 203(b) on many occasions, such as:

• Wiretap interceptions involving a scheme to defraud donors and the Internal Revenue

Service and illegally transfer monies to Iraq generated not only criminal charges but

information concerning the manner and means by which monies were funneled to Iraq; and

• Intercepted communications, in conjunction with a sting operation, led to criminal charges

and intelligence information relating to money laundering, receiving and attempting to

transport night-vision goggles, infrared army lights and other sensitive military equipment

relating to a foreign terrorist organization.

Section 203 is also critical to the operation of the National Counterterrorism Center. The

FBI relies upon section 203(d) to provide information obtained in criminal investigations to

analysts in the new National Counterterrorism Center, thus assisting the Center in carrying out its

vital counterterrorism missions. The National Counterterrorism Center represents a strong

example of section 203 information sharing, as the Center uses information provided by law

enforcement agencies to produce comprehensive terrorism analysis; to add to the list of suspected

terrorists on the TIPOFF watchlist; and to distribute terrorism-related information across the

federal government.

In addition, last year, during a series of high-profile events – the G-8 Summit in Georgia,

the Democratic Convention in Boston and the Republican Convention in New York, the

November 2004 presidential election, and other events – a task force used the information sharing

provisions under Section 203(d) as part and parcel of performing its critical duties. The 2004

Threat Task Force was a successful inter-agency effort where there was a robust sharing of

information at all levels of government.

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Recent Testimonies
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09.18.14
TSC's Role in the Interagency Watchlisting and Screening Process Christopher M. Piehota, Director, Terrorist Screening Center, Federal Bureau of Investigation, Statement Before the House Homeland Security Committee, Subcommittee on Transportation Security, Washington, D.C.
09.17.14
Worldwide Threats to the Homeland James B. Comey, Director, Federal Bureau of Investigation, Statement Before the House Homeland Security Committee, Washington, D.C.
09.10.14
Cyber Security, Terrorism, and Beyond: Addressing Evolving Threats to the Robert Anderson, Jr., Executive Assistant Director, Criminal, Cyber, Response, and Services Branch, Federal Bureau of Investigation, Statement Before the Senate Committee on Homeland Security and Governmental Affairs, Washington, D.C.
07.16.14
FBI Efforts to Combat Elder Fraud Joseph S. Campbell, Deputy Assistant Director, Criminal Investigative Division, Federal Bureau of Investigation, Statement Before the Senate Special Committee on Aging, Washington, D.C.
07.15.14
Taking Down Botnets Joseph Demarest, Assistant Director, Cyber Division, Federal Bureau of Investigation, Statement Before the Senate Judiciary Committee, Subcommittee on Crime and Terrorism, Washington, D.C.
06.11.14
Oversight of the Federal Bureau of Investigation James B. Comey, Director, Federal Bureau of Investigation, Statement Before the House Judiciary Committee, Washington, D.C.
05.21.14
Oversight of the Federal Bureau of Investigation James B. Comey, Director, Federal Bureau of Investigation, Statement Before the Senate Judiciary Committee, Washington, D.C.
05.13.14
Combating Economic Espionage and Trade Secret Theft Randall C. Coleman, Assistant Director, Counterintelligence Division, Federal Bureau of Investigation, Statement Before the Senate Judiciary Committee, Subcommittee on Crime and Terrorism, Washington, D.C.
04.16.14
The FBI’s Role in Cyber Security Richard P. Quinn, National Security Assistant Special Agent in Charge, Philadelphia Field Office, Federal Bureau of Investigation, Statement Before the House Homeland Security Committee, Subcommittee on Cyber Security, Infrastructure Protection, and Security Technologies, Washington, D.C.
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