Testimony
of Robert S. Mueller, III
Director, Federal Bureau of Investigation
Before the United States Senate
Committee on the Judiciary
Sunset Provisions of the USA Patriot Act
April
5, 2005
Good morning Mr. Chairman, Senator Leahy and
Members of the Committee. I am pleased to be
here today with the Attorney General to talk
with you about the ways in which the USA Patriot
Act has assisted the FBI with its efforts in
the war on terror. For almost three and a half
years, the USA Patriot Act has changed the way
the FBI operates. Many of our counterterrorism
successes are the direct result of the provisions
of the Act. As you know, several of these provisions
are scheduled to "sunset" at the end
of this year. I firmly believe that it is crucial
to our national security to renew these provisions.
Without them, the FBI might well be forced into
pre-September 11th practices, requiring us -
agents, analysts and our partners - to fight
the war on terror with one hand tied behind
our backs.
USA
Patriot Act SUNSET PROVISIONS
Section
201 & 202 - Expanded Title III predicates
These provisions expanded the predicate offenses
for Title III intercepts to include crimes relating
to chemical weapons (18 U.S.C. § 229),
terrorism (18 U.S.C. §§ 2332, 2332a,
2332b, 2332d, 2339A, and 2339B), and felony
violations of computer fraud and abuse (18 U.S.C.
§ 1030). Later amendments to this portion
of the statute expanded the Title III predicates
to also include 18 U.S.C. § 2232f (Bombings
of places of public use, Government facilities,
public transportation systems and infrastructure
facilities) and 2339C (terrorism financing).
Section 201 brought the federal wiretap statute
into the 21st century. Prior to its passage,
law enforcement was not authorized to conduct
electronic surveillance when investigating crimes
committed by terrorists, such as chemical weapons
offenses, killing U.S. nationals abroad, using
weapons of mass destruction, and providing material
support to terrorist organizations. Section
201 closed an existing gap in the Title III
statute. Now Agents are able to gather information
when looking into the full range of terrorism
related crimes.
Similarly, Section 202 brought the criminal
code up to date with modern technology by adding
felony offenses under the Computer Fraud and
Abuse Act, such as computer espionage, extortion
and intentionally damaging a federal government
computer, to the list of wiretap predicates
in 18 U.S.C. §2516(1). This provision eliminated
an anomaly in the law and now permits Agents
to obtain wiretap orders to monitor wire and
oral communications to investigate serious computer
crimes.
Section
203 (b) & (d) - Information sharing for
foreign intelligence obtained in a Title III
and criminal investigations.
Section 203(b) authorizes the sharing of foreign
intelligence information obtained in a Title
III electronic surveillance with other federal
officials, including intelligence officers,
DHS/DOD/ICE officials, and national security
officials. If Section 203(b) were allowed to
expire, FBI Agents would be allowed to share
certain foreign intelligence information collected
through criminal investigative wiretaps with
foreign intelligence services, such as MI-5,
but would arguably not be allowed to share that
same information with the CIA. This result would
be inconsistent with the spirit of the recently
enacted Intelligence Reform and Terrorism Prevention
Act of 2004, which included many provisions
designed to enhance information sharing within
the federal government. Section 203(d) authorizes
the sharing of foreign intelligence information
collected in a criminal investigation with intelligence
officials.
The information sharing provisions are overwhelmingly
heralded by FBI Field Offices as the most important
provisions in the USA Patriot Act. The ability
to share critical information has significantly
altered the entire manner in which terrorism
investigations are conducted, allowing for a
much more coordinated and effective approach
than prior to the USA Patriot Act. Specifically,
the Field Offices note that these provisions
enable case agents to involve other agencies
in investigations resulting in a style of teamwork
that enables more effective and responsive investigations;
improves the utilization of resources allowing
a better focus on the case; allows for follow-up
investigations by other agencies when the criminal
subject leaves the U.S.; and helps prevent the
compromise of foreign intelligence investigations.
Even though the law prior to the USA Patriot
Act provided for some exchange of information,
the law was complex and as a result, agents
often erred on the side of caution and refrained
from sharing the information. Clarification
of information sharing abilities, due in part
to Section 203, eliminated that hesitation and
allows agents to more openly work with other
government entities resulting in a much stronger
team approach. Such an approach is necessary
in order to effectively prevent and detect the
complex web of terrorist activity. As a result,
our Field Offices report enhanced FBI liaison
with State, Local and other Federal agencies,
resulting in better relationships. Even Legal
Attaches (Legats) notice improved relationships
with intelligence agencies. If even a portion
of the information sharing capabilities is allowed
to 'sunset' or terminate, then the element of
uncertainty could be re-introduced and agents
will again hesitate and take the time necessary
to seek clarification of complicated information
sharing restrictions prior to sharing information.
This hesitation will lead to less teamwork and
much less efficiency.
Experience has taught the FBI that there are
no neat dividing lines that distinguish criminal,
terrorist, and foreign intelligence activity.
Criminal, terrorist and foreign intelligence
organizations and activities are often interrelated
or interdependent. FBI files are full of examples
of investigations where information sharing
between counterterrorism, counterintelligence
and criminal intelligence efforts and investigations
was essential to the FBI's ability to protect
the United States from terrorists, foreign intelligence
activity and criminal activity. Some cases that
start out as criminal cases become counterterrorism
cases. Some cases that start out as counterintelligence
cases become criminal cases. Sometimes the FBI
must initiate parallel criminal and counterterrorism
or counterintelligence cases to maximize the
FBI's ability to adequately identify, investigate
and address a variety of threats to the United
States. The success of these cases is entirely
dependent on the free flow of information between
the respective investigations, investigators
and analysts.
Ongoing criminal investigations of transnational
criminal enterprises involved in counterfeiting
goods, drug/weapons trafficking, money laundering
and other criminal activity depend on close
coordination and information sharing with the
FBI's Counterterrorism and Counterintelligence
Programs, as well as the Intelligence Community,
when intelligence is developed which connects
these criminal enterprises to terrorism, the
material support of terrorism or state sponsored
intelligence activity. In one such case, information
from a criminal Title III and criminal investigation
was passed to Counterterrorism, as well as intelligence
community partners, because the subject of the
criminal case had previously been targeted by
other agencies. Information sharing permitted
each agency to pool their information and resources
to investigate the interplay of criminal and
foreign intelligence activity.
In one instance, a terrorism case initiated
in Minneapolis was subsequently transferred
to San Diego and converted to a criminal case.
The investigation focused on a group of Pakistan-based
individuals who were involved in arms trafficking,
the production and distribution of multi-ton
quantities of hashish and heroin, and the discussion
of an exchange of a large quantity of drugs
for four stinger anti-aircraft missiles to be
used by Al Qaeda in Afghanistan. The operation
resulted in the arrest, indictment and subsequent
deportation of the subjects, Syed Mustajab Shah,
Muhammed Afridi, and Iiyas Ali, from Hong Kong
to San Diego to face drug charges and charges
of providing material support to Al Qaeda.
Criminal enterprises are also frequently involved
in, allied with or otherwise rely on smuggling
operations. Alien smugglers frequently use the
same routes used by drug and contraband smugglers
and do not limit their smuggling to aliens,
smuggling anything or anyone for the right price.
Terrorists can take advantage of these smuggling
routes and smuggling enterprises to enter the
U.S. and are willing to pay top dollar to smugglers.
Intelligence developed in these cases also frequently
identifies corrupt U.S. and foreign officials
who facilitate smuggling activities. Current
intelligence, based on information sharing between
criminal, counterterrorism, and counterintelligence
efforts, has identified smugglers who provide
false travel documents to special interest aliens,
deal with corrupt foreign officials, and financially
support extremist organizations, as well as
illegitimate and quasi-legitimate business operators
in the United States, who not only use the services
of illegal aliens, but are also actively involved
in smuggling as well.
In the aftermath of the September 11th attacks,
a reliable intelligence asset identified a naturalized
U.S. citizen as a leader among a group of Islamic
extremists residing in the U.S. The subject's
extremist views, affiliations with other terrorism
subjects, and his heavy involvement in the stock
market increased the potential that he was a
possible financier and material supporter of
terrorist activities. Early in the criminal
investigation it was confirmed that the subject
had developed a complex scheme to defraud multiple
brokerage firms of large amounts of money. The
subject was arrested and pled guilty to wire
fraud. The close interaction between the criminal
and intelligence cases was critical to the successful
arrest of the subject before he left the country
and the eventual outcome of the case.
Section
204 - Clarification of Intelligence Exceptions
from Limitations on Interception and Disclosure
of Wire, Oral and Electronic Communications
Section 204 is essentially a technical amendment.
It clarifies that the law which governs the
installation and use of pen registers and trap
and trace devices will not interfere with certain
foreign intelligence activities that fall outside
the definition of "electronic surveillance"
in the FISA statute. The provision also clarifies
that the exclusivity provisions in Title 18
section 2511(2)(f) apply not only to the interception
of wire and oral communications, but also to
the interception of electronic communications.
Section 206 - Roving FISA Surveillance
With this provision, when a FISA target's actions
have the effect of thwarting surveillance, such
as by rapidly switching cell phones or even
meeting venues, the Court can issue an order
directing an as yet unknown cell phone carrier
or other company to effect the authorized electronic
surveillance. This allows the FBI to go directly
to the new carrier and establish surveillance
on the authorized target without having to return
to the Court for a new secondary order.
Section 206 has been extremely helpful especially
with regard to international terrorism and foreign
counterintelligence investigations where targets
move quickly and often act evasively to avoid
detection. Field Offices have observed counterintelligence
targets change services for hard-line telephones
and cell phones numerous times. The roving authority
allows us to continuously monitor these targets
without interruption. By minimizing the need
to return to the court for additional authorizations,
it also has allowed agents to more expeditiously
conclude investigations.
In one case, a roving FISA on a subject's cellular
telephone was approved for the subject of a
counterintelligence investigation who, per the
usage of tradecraft, is directed to change his
cellular phone at regular intervals. The roving
FISA allows us to continue coverage on all cell
phones the subject obtains.
Section
207 - Extended Duration for Certain FISAs
Section 207 extends the standard duration for
several categories of FISA orders. Before the
enactment of the USA Patriot Act, FISA orders
for electronic surveillance targeted against
agents of a foreign power had a maximum duration
of ninety days and could be extended in 90-day
increments, and orders for a physical search
could be issued for no more than 45 days, unless
the target was a foreign power, in which case,
the order could be issued for one year. This
provision allows orders for physical searches
to be issued for certain agents of foreign powers,
including United States persons, for ninety
days, and authorizes longer periods of searches
and electronic surveillance for certain categories
of foreign powers and agents of foreign powers
that are not United States persons. Specifically,
initial orders authorizing searches and electronic
surveillance may apply or extend for periods
of 120 days, and renewal orders can be extended
for up to one year.
Section 207 has led to reduced paperwork in
certain categories of cases. In addition, it
has resulted in a more effective utilization
of available personnel resources and the collection
mechanisms authorized under FISA. It has allowed
agents to focus their efforts on more significant
and complicated terrorism-related cases and
to spend more time ensuring that appropriate
oversight is given to investigations involving
the surveillance of United States persons.
Section
209 - Seizure of Voice Mail with a Search Warrant
Section 209 clarified that voice mail could
be obtained with a search warrant under 18 U.S.C.
§ 2703 (similar to e-mail). Previously,
some courts had required a Title III order to
obtain stored voice mail.
Section 209 of the USA PATRIOT Act has modernized
federal law by enabling investigators to access
more quickly suspects' voice-mail by using a
search warrant. The speed with which voice-mail
is seized and searched can often be critical
to an investigation.
Section
212 - Emergency Disclosures of E-mail &
Records by ISPs
Section 212 created a provision that allows
a service provider (such as an Internet Service
Provider) to voluntarily provide the content
and records of communications related to a subscriber
if it involves an emergency related to death
or serious injury.
Service providers have voluntarily provided
information under this provision. Such disclosures
often included both e-mail content and associated
records. This provision has also been utilized
to quickly locate kidnaping victims, protect
children in child exploitation cases, and to
quickly respond to bomb and death threats. Legats
have also utilized this provision to assist
foreign law enforcement officials with similar
emergencies, such as death threats on prosecutors
and other foreign officials. Where time is of
the essence, giving service providers the option
of revealing this information without a court
order or grand jury subpoena is crucial to receiving
the information quickly and preventing death
or serious injury.
In one instance, an FBI Field Division received
a bomb threat after hours. After clarifying
that the bomb threat was to the local airport
and that the FBI had until noon to meet the
caller's demands, the FBI JTTF Agents began
working with various communications providers
to locate the caller. The caller was identified
as a result of an emergency disclosure pursuant
to this provision. An interview of the subject
was conducted and the threat was determined
to be non-credible by 11:00 a.m.
In a kidnaping case, a 14- year-old girl was
abducted. As a result of the FBI's use of this
provision, the suspect was quickly identified
and interviewed. He admitted to picking up the
girl and took agents to the truck stop where
he had left her. Because of this provision,
additional harm to the girl was prevented and
she was returned to her family in a matter of
hours. This is but one example of how essential
this provision is for child abduction cases.
Section
214 - FISA Pen/Trap Authority
The FBI may now obtain a FISA pen/trap and trace
order from the court if "the information
likely to be obtained is foreign intelligence
information not concerning a United States person,
or is relevant to an ongoing investigation to
protect against international terrorism or clandestine
intelligence activities, provided that such
investigation of a United States person is not
conducted solely upon the basis of activities
protected by the first amendment to the Constitution."
This provision eliminated the previous requirement
that the application also contain specific and
articulable facts giving reason to believe that
the targeted line was being used by an agent
of a foreign power, or was in communications
with such an agent, under specified circumstances.
This provision now more closely tracks the requirements
to obtain a pen/trap order under the criminal
provisions set forth in 18 U.S.C. § 3123.
The provision also expands the FISA pen/trap
to include electronic communications, comparable
to the criminal pen/trap provision.
The results from these pen/trap orders often
help agents to determine links between the subjects
of different terrorism investigations, identify
other unknown associates of the subject, discover
contacts for potential assets, and develop the
subject's personal profile. When pen/trap orders
are quickly obtained, they allow agents to more
quickly identify the associates tied to the
subject of international terrorism investigations
than if the agents were required to wait for
service providers to respond to subpoenas for
toll records, which can take several months.
The old standard required more fact gathering
to meet the threshold to obtain the pen/trap
order, making this technique less effective
and sometimes even preventing the use of this
technique altogether if the window of opportunity
was missed. The FISA pen/trap orders that have
been obtained have been used on both terrorism
and counterintelligence cases.
In one terrorism case, the only phone that the
Field Office could prove was used by the subject
was his associate's phone. Additionally, the
Field Office had insufficient information that
this associate was an agent of a foreign power.
Thus, under the previous standard for a FISA
pen/trap, the office may not have succeeded
in obtaining the FISA pen/trap order. The standard
established by Section 214 allowed the agents
to obtain the pen/trap order by demonstrating
that the information to be collected was relevant
to an ongoing terrorism investigation. The information
obtained by the pen/trap was valuable because
it demonstrated the extent that the subject
and his associate were communicating with subjects
of other terrorism investigations.
In another example, use of this section allowed
FISA pen/trap authority based on the fact that
information was likely to result in foreign
intelligence information. This provision allowed
the Field Office to collect data on target lines
even when the subject was out of the country
and provided valuable intelligence information
regarding the subject, the organization and
terrorism- related matters.
Section
215 - Access to Business Records under FISA
Section 215 changed the standard to compel production
of business records under FISA to simple relevance
(just as in the FISA pen register standard described
above) and expands this authority from a limited
enumerated list of certain types of business
records (i.e. hotels, motels, car and truck
rentals) to include "any tangible things
(including books, records, papers, documents,
and other items) for an investigation to protect
against international terrorism or clandestine
intelligence activities, provided that such
investigation of a United States person is not
conducted solely upon the basis of activities
protected by the first amendment to the Constitution."
Obtaining business records is a longstanding
law enforcement tool. Ordinary grand juries
for years have issued subpoenas to all manner
of businesses for records relevant to criminal
investigations. Section 215 authorized the FISA
Court to issue similar orders in national security
investigations. It contains a number of safeguards
that protect civil liberties. Section 215 requires
FBI Agents to get a court order. Agents cannot
use this authority unilaterally to compel any
entity to turn over its records. In addition
Section 215 has a narrow scope. It can only
be used to obtain foreign intelligence information
not concerning a United States person or to
protect against international terrorism or clandestine
intelligence activities. It cannot be used to
investigate ordinary crimes, or even domestic
terrorism.
Section 217 - Interception of Computer Trespasser
Communications
The wiretap statute was amended to explicitly
provide victims of computer attacks the ability
to invite law enforcement into a protected computer
to monitor the computer trespasser's communications.
In the past, the law was ambiguous on this point
and left open the possibility that a court could
hold that a victim of computer hacking could
not invite law enforcement in to monitor the
intruder in an effort to prosecute and stop
the intruder. The USA Patriot Act also established
specific requirements and limitations that must
be met before the use of this provision.
Under this provision, the FBI was able to monitor
the communications of an international group
of "carders" (individuals that use
and trade stolen credit card information). The
group utilized a variety of methods to conceal
their identities. The owner of the hacked computer
was not aware of the misuse, and considered
all individuals misusing its computers to be
trespassers. The monitoring provided leads that
resulted in the discovery of the true identity
of the subject. The subject was indicted in
September of 2003. Without the ability to monitor
these communications, it would have been unlikely
that the FBI could have identified the trespassers.
Section
218 - Change in the "Primary Purpose"
Standard of FISA
Section 218 amended FISA to require a certification
to the FISA Court that obtaining foreign intelligence
gathering is "a significant purpose"
of the FISA surveillance or search, rather than
a "primary purpose" of such surveillance.
Section 504 amended FISA to clarify that personnel
involved in a foreign intelligence investigation
can consult with law enforcement officials in
order to coordinate efforts to investigate or
protect against attacks, terrorism, sabotage,
or clandestine intelligence activities, and
that such consultation does not, in itself,
undermine the required certification of "significant
purpose." These changes were intended to
eliminate "the wall" between criminal
and intelligence investigations. They now allow
FBI agents greater latitude to consult criminal
investigators or prosecutors without putting
their investigations at risk.
As stated above, FBI Field Offices overwhelmingly
herald the information sharing provisions as
the most important provisions in the USA Patriot
Act. Section 218 is an essential component to
these changes. This provision makes it clear
that prosecutors can be involved in the earliest
phases of an international terrorism investigation.
AUSAs are often co-located with the JTTFs and
are able to provide immediate input regarding
the use of criminal charges to stop terrorist
activity, including the prevention of terrorist
attacks.
The ability to have criminal prosecutors involved
in the earliest investigative phases of terrorism
cases allows counterterrorism investigators
to utilize the full selection of both intelligence
and criminal investigative tools, enabling them
to select and interchange these tools to meet
the investigative demands of each particular
case. Field Offices use criminal prosecution,
or the threat thereof, in furtherance of the
intelligence objective to disrupt and dismantle
terrorism, towards the ultimate goal of preventing
terrorist acts. One Field Office notes that
if 218 were allowed to "sunset," its
aggressive and effective investigative approach
toward terrorism would be "severely crippled."
Section 220 - Search Warrants for Electronic
Evidence
Section 220 of the USA Patriot Act enabled courts
with jurisdiction over an investigation to issue
a search warrant to compel the production of
information held by a service provider located
outside the district, such as unopened e-mail.
Previously, the search warrant had to be issued
by a court in the district where the service
provider was located. See 18 U.S.C. § 2703.
The FBI routinely relies upon this provision
when a search warrant is used to obtain the
content of e-mail messages and other related
information from Internet service providers
(ISPs) in accordance with 18 U.S.C. § 2703.
Prior to the USA Patriot Act, if an investigator
sought a search warrant to obtain the content
of unopened e-mail from a service provider,
the investigator was required to obtain this
search warrant from a court in the jurisdiction
where the service provider was located. To accomplish
this, the case agent would brief an agent and
prosecutor located in the ISP's jurisdiction
on the facts of the case so that they might
appear before the court and obtain the search
warrant. This was a time and labor consuming
process. Furthermore, because several of the
largest ISPs are located in a few districts
such as, the Northern District of California
and the Eastern District of Virginia, these
offices were faced with a substantial workload
just to obtain search warrants for other offices.
While the USA Patriot Act maintained the legal
standard of probable cause that must be met
before the search warrant could be issued, it
eliminated the additional bureaucratic paperwork
necessary to obtain that warrant in a different
jurisdiction than the investigation itself.
This eliminated the need to involve additional
agents and prosecutors located in the same jurisdiction
as the ISP. Therefore, this provision expedites
the process and minimizes the labor involved
without altering the privacy protection afforded
the e-mail and other associated records.
Field Offices repeatedly stated that this was
very beneficial to quickly obtain information
required in their investigations. The information
obtained from these search warrants often leads
to additional electronic evidence that is otherwise
easily and quickly lost. Minimizing the time
required to obtain the initial information from
the ISPs is a significant asset to the investigations.
In the "Virginia Jihad" case, six
subjects pled guilty and three were convicted
of charges including conspiracy to levy war
against the United States and conspiracy to
provide material support to the Taliban. They
received sentences ranging from a prison term
of four years to life imprisonment. As a part
of this case, court orders were issued to Internet
Service Providers throughout the country to
obtain information that resulted in valuable
intelligence and criminal evidence used in the
successful prosecution. Due to Section 220,
all the court orders were issued by the district
court where the prosecution occurred making
the process much faster and more efficient.
This provision is regularly used in child pornography
cases as agents obtain information from ISPs
regarding those trading sexually exploitive
images of children. This expedites the investigative
process and minimizes the number of FBI, U.S.
Attorney, and judicial personnel involved in
the process, freeing them to more aggressively
pursue investigative matters.
Section
223 - Civil Liability for Certain Unauthorized
Disclosures
Prior to the passage of the USA Patriot Act,
individuals were permitted only in limited circumstances
to file a cause of action and collect money
damages against the United States if government
officials unlawfully disclosed sensitive information
collected through wiretaps and electronic surveillance.
Thus, while those engaging in illegal wiretapping
or electronic surveillance were subject to civil
liability, those illegally disclosing communications
lawfully intercepted pursuant to a court order
generally could not be sued. This section remedied
this inequitable situation by creating an important
mechanism for deterring the improper disclosure
of sensitive information and providing redress
for individuals whose privacy might be violated
by such disclosures.
Section
225 - Immunity for Compliance with FISA Wiretap
Pursuant to FISA, the United States may obtain
wiretap or electronic surveillance orders from
the FISA Court to monitor the communications
of an entity or individual as to whom the court,
among other things, finds probable cause to
believe is a foreign power or the agent of a
foreign power, such as an international terrorist
or spy. Generally, however, as in the case of
criminal wiretaps and electronic surveillance,
the United States requires the assistance of
private communications providers, such as telephone
companies, to carry out such court orders. Prior
to the passage of the USA Patriot Act, while
those assisting in the implementation of criminal
wiretaps were provided with immunity, no similar
immunity protected those companies and individuals
assisting the government in carrying out wiretap
and surveillance orders issued by the FISA Court
under FISA. This section ended this anomaly
in the law by immunizing from civil liability
communications service providers and others
who assist the United States in the execution
of such FISA surveillance orders, thus helping
to ensure that such entities and individuals
will comply with orders issued by the FISC without
delay.
In an FBI Field Office, a case agent was able
to convince a company to assist in the installation
of technical equipment pursuant to a FISA order
by providing a letter outlining the immunity
from civil liability associated with complying
with the FISA order. The target was an espionage
subject.
Section
213 - Delayed Notice Search Warrants
While not scheduled to sunset, the USA Patriot
Act's delayed notice provision, Section 213,
has been the subject of criticism and various
legislative proposals. The FBI believes that
Section 213 is an invaluable tool in the war
on terror and our efforts to combat serious
criminal conduct. It is important to note that
delayed notice warrants were not created by
the USA Patriot Act. Rather, the Act simply
codified a common law practice recognized by
courts across the country and created a uniform
nationwide standard for the issuance of those
warrants. The USA Patriot Act ensures that delayed
notice search warrants are evaluated under the
same criteria across the nation. Like any other
search warrant, a delayed notice search warrant
is issued by a federal judge only upon a showing
that there is probable cause to believe that
the property to be searched for or seized constitutes
evidence of a criminal offense. A delayed notice
warrant differs from an ordinary search warrant
only in that the judge specifically authorizes
the law enforcement officers executing the warrant
to wait for a limited period of time before
notifying the subject of the search that a search
had been executed.
Delayed notice search warrants provide a crucial
option to law enforcement and can only be issued
if a federal judge finds that one of five tailored
circumstances exists. The FBI has requested
this authority in several cases. In most instances,
the FBI seeks delayed notice when contemporaneous
notice would reasonably be expected to cause
serious jeopardy to an ongoing investigation.
ADDITIONAL
TOOLS TO FIGHT TERRORISM
As I have described above, the USA Patriot Act
has been invaluable in providing the FBI with
tools that it needs to fight terrorism in the
21st Century. This committee has been one of
our strongest supporters in this effort and
for this the men and women of the FBI are grateful.
Having said that, I would like to address another
area in which the FBI needs the committee's
support in order to continue to fulfill its
primary mission of protecting America from further
terrorist attacks.
Administrative
Subpoenas
Planning, funding, supporting and committing
acts of terrorism all are federal crimes. For
many years, the FBI has had administrative subpoena
authority for investigations of crimes ranging
from drug trafficking to health care fraud to
child exploitation. Yet, when it comes to terrorism
investigations, the FBI has no such authority.
Instead, we rely on two tools National
Security Letters (NSLs) and orders for FISA
business records. Although both are useful and
important tools in our national security investigations,
administrative subpoena power would greatly
enhance our abilities to obtain information.
Information that may be obtained through an
NSL is limited in scope and enforcement is difficult.
FISA business record requests require the submission
of an application for an order to the FISA Court.
In investigations where there is a need to obtain
information expeditiously, Section 215, which
does not contain an emergency provision, may
not be the most effective process to undertake.
The administrative subpoena power would be a
valuable complement to these tools and provide
added efficiency to the FBI's ability to investigate
and disrupt terrorism operations and our intelligence
gathering efforts. It would provide the government
with an enforcement mechanism which currently
does not exist with NSLs. Moreover, it would
bring the authorities of agents and analysts
investigating terrorism into line with the authorities
the FBI already has to combat other serious
crimes. I would like to stress that the administrative
subpoena power proposal should provide the recipient
the ability to quash the subpoena on the same
grounds as a grand jury subpoena.
CONCLUSION
Mr. Chairman and Members of the Committee, the
importance of the provisions of the USA Patriot
Act I have discussed today in the war against
terrorism cannot be overstated. They are crucial
to our present and future successes. By responsibly
using the statutes provided by Congress, the
FBI has made substantial progress in its ability
to proactively investigate and prevent terrorism
and protect lives, while at the same time protecting
civil liberties. In renewing those provisions
scheduled to "sunset" at then end
of this year, Congress will ensure that the
FBI will continue to have the tools it needs
to combat the very real threat to America posed
by terrorists and their supporters. In addition,
by giving the FBI administrative subpoena authority,
Congress will enable the FBI to be more efficient
in its Counterterrorism efforts. Thank you for
your time today. I am happy to answer any of
your questions.