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.
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