intruded on first amendment rights. do you remember that case? >> with respect, unless we're discussing one of the declassifying opinions, that is not something i am not look -- not at liberty to discuss. . we're discussing it. i have had secret plans before you. >> i can appreciate that, but the fact that it has been published in the newspapers does not mean it has been declared the classified and it does not mean it is appropriate for discussion in an open hearing >> let me speak to the chief staff of the house today should merit committee. it is in the inspector general's file. >> would you say that the inspector general, who oversight

of intelligence, can refer to matters like this and have them published and made public? have them published and made public without violating secrecy requirements? >> when the inspector general from the department or another committee desires to make part of a report public, he works closely with the intelligence community to ensure the information is appropriately classified before it is publicly released. >> the inspector general has had it redacted. are you questioning the inspector general's knowledge of build -- of the law since january 21st, 2009? >> certainly not. proceeding out of abundance of caution in light of the fact inspectors general often issue both classified and unclassified

versions of reports and i don't have -- >> have you ever seen the unclassified version of the inspector general criticism of the fact that these orders were being a and you've never heard of this ever happening before? there were several cases, there were several instances in the same case which this has occurred. >> i'm familiar with the inspector general report on to 15 orders and familiar with the fact the business records provision like other parts of the fisa contain expressed protection for first amendment rights. >> okay now what about the fbi? how to you consider their ability to handle classified, unclassified and redacted information? pretty good? >> i think the fbi --

>> okay. the fbi went and issue a national security letter for the same information and the inspector general described it as an appropriate. and i consider it much worse than that. now, here is the problem. it's very simple. what the court, the intelligence court and what the inspector general were complaining about is you could get a around the court refusal to issue order and a terrorist investigation by nearly doubling to the fbi, getting around them and the reissue a national security letter for the very same information. problem. that means that the court and

the inspector general found that there was an abusive process and handling this terrorist investigation, and i am going to have my staff supply you or your staff with all of this information all of which is public. >> thank you, mr. chairman. now that i am clear which reports we are referring to a few give me a moment to respond. in 2007 the general published its first report on the national security letters, which found a great deal of, found some sloppy record-keeping and out administrative errors by the federal bureau of investigation in part because of the byzantine nature and interaction of the five governing statutes. in 2008 the inspector general issued a follow-up report that indicated many of those issues had been fixed and provide recommendations for the government to make further improvements. since that time, the federal bureau of investigation has put

into place a new data subsystem governing nsl that prevents many of these administrative errors and insurers much of the record keeping that the inspector general found was an error in the 2007 report. in addition, the national security division where i worked increased oversight efforts and as national security review of fbi field offices on an annual basis, and of course congress and the inspector general maintains its oversight authority. >> well, clad your memory has been refreshed. that's wonderful. what we have here are a whole series of problems. this is just one case we've been discussing all this time. there are a great privacy problems. have you ever examined in the course of your official duties

the american civil liberties union's comments about our discussion about privacy? >> i'm certainly familiar with many of their comments and testimony today, yes. >> and do you find any serious disagreements with any parts of it? >> i do find myself in disagreement with some parts of their testimony, yes, mr. chairman. >> some parts you find agreement? >> certainly. >> if i could indulge the chairman's generosity for sufficient time -- >> without objection. >> -- to just identify the parts you find yourself in agreement with and the parts that you may not be so enthusiastic about. >> with due respect, mr. chairman you have asked me about the aclu positions in general -- >> no, not in general. >> with respect to these provisions and the patriot act i would note the testimony on the

subject today is 35 single spaced pages. i would be happy to -- i simply don't think that the committee -- >> i wouldn't want to do that, but let's use numbers. indicate to me how many things you agree within the 35 singles close printing that you found agreement with and how many issues that you found some disagreement with. >> mr. chairman, i didn't investigate the testimony with a mind trying to determine what percentage of the agreed with and what i didn't -- >> i can understand that. >> i agree with some parts and disagree with others. >> how will we find out which parts you agreed with and which parts you didn't? >> hopefully mr. trump and through the dialogue the

subcommittee is embarking upon -- >> how about sending an -- a minow in detail or as much or as little as you want since i will write you back if we need more. >> i would be happy to take that back to the department. >> i'm going to take it back to the department with you. thank you very much for your testimony. >> thank you for your questions. >> thank you. the gentleman from florida is recognized for five minutes. >> thank you, mr. chairman. mr. hinnen, i also started my current employment in january, so hopefully this question is fairly simple. last week, senator feingold introduced legislation that amongst other things repeals title late of fisa which provided civil liberty liability, excuse me, protections to telecommunication carriers who assisted the government following the 9/11

terrorist attacks, a provision president obama voted for. to your knowledge, does the administration supports this proposal? >> congressman roomy, the administration has taken no official position on this or any other position on senator feingold's bill as you noted in your question the president did vote for the fisa's amendment as a senator and doj defended the provision in litigation. without forecasting an offical opposition, as the president has suggested, it may be more productive to look forward to meet the challenge is still before us than to reopen debate resolved in the past. >> thank you mr. chairman. >> thank you. i now recognize the gentleman from georgia. >> thank you, mr. sherman. i think this issue -- >> using microphones, please. >> i think this issue is clearly

draws a distinction between the two basic philosophies that the supreme court would use in solving the case. would it be a strict construction kind of analysis, or would it be by chance the acknowledgment the constitution is a living and breathing document and has to be interpreted in accordance with the realities of the time? it will be interesting to see how the united states supreme court handles this whether or not it will be a strict construction or whether or not we will have supreme court justices legislating.

but at any rate, the issue on roving wiretaps enables the government to target persons rather than places, and places is the term used in the fourth amendment and, must, quote, particularly describe the place to be searched. are there any other impressions of the united states constitution or bill of rights upon which the administration would depend on for justified in the extension of the act with

respect to roving wiretaps? >> if i understand the question correctly, the administration fields roving surveillance authority is fully constitutional although the fourth amendment text speaks specifically of pleases the supreme court has recognized going back to the decision in which an individual using a telephone booth was found to be protected by the fourth amendment the fourth amendment protects persons as well as places. and so i think it is against that constitutional backdrop that consideration of the roving authority has to be undertaken having said that i think that the provision readily meets constitutional scrutiny. >> have there been any court decisions that have extended the definition if you will of place to be searched?

>> to be described in particularity? >> i think the fourth amendment jurisprudence has applied the amendment in a wide variety of places and contexts. >> has it ever extended that particular provision vision of the amendment? >> i am not sure why understand how -- >> in other words have there been any cases where the issue was whether or not an extension -- this is not a very artfully posed question but in other words, we have the fourth amendment that says search warrants must, quote, particularly describe the place to be searched.

have there been any court rulings that you know of which have extended the plain intent of the founders in that situation? >> i think my answers have been an artful. the fisa work in the past has recognized and given the specific needs of intelligence investigations a probable cause showing with respect to the fact the individual is an agent of a foreign power is sufficient regardless of the place to be searched or that kind of thing. in the roving authority it is important the government has to demonstrate to the court probable cause. but the identified or specific individual is an agent of a foreign power and i think it is

that provision together with probable cause requirement that the government shows the cell phone or facility will be used by that target that renders á@'d

>> the statutory definition that roving relies upon refers to both parts of the foreign power definition in the foreign intelligence surveillance act, so it can apply if the other conditions of the statute are meant to a united states person that has demonstrated to be acting on our behalf of a foreign power. it can also apply any circumstance where the target is eight mullen u.s. person but meets one of the other statutory definitions. >> who would determine whether or not there is probable cause that would be the standard that would apply of probable cause to believe that a united states citizen was cooperating or being a tool of a foreign power or terrorist organization? >> the fisa port under the 78 legislation congress passed the

fisa cord would exercise independent oversight of the government showing with respect whether there is probable cause that individual is an agent of a foreign power. >> vowed to place before or after the wiretap if you will. >> with respect to the fact the individual is an agent for and power that probable cause is made before the wiretap order is granted by the court. >> say that again. >> with respect to the probable cause to the individual target an agent of a foreign power that determination is made by the fisa cord before surveillance is authorized. >> is that just limited to u.s. citizens, or is it also to be shown by probable cause with respect to a non-u.s. citizen? >> that is with respect to any

surveillance under foreign intelligence surveillance act and i should drop a footnote to that and mentioned that there is emergency authority provided by the statute pursuant which the attorney general can begin surveillance and demonstrate probable cause within seven days afterwards but in the vast majority of cases and standard the government must always demonstrate probable cause to the fisa corporation for surveillance begins that the individual is an agent of foreign power. >> thank you. the gentleman's time is expired. recognizing the gentleman from wyoming. >> i am plenty happy with biden and given my friend mr. johnson because he doesn't have to speak as quickly as i have to in the environment i originate and, neither to be the case for the new yorkers who can get it out as well. >> nobody? speaks as quickly as the gentleman of massachusetts. >> i thank but as for the testimony and i just ask if you

are familiar with a case that is unfolded in new york applied against grand central terminal and the transfer of information and people from denver to new york the communications that are the background of that and the gentleman can advise the committee whether the patriot act was utilized in any of that investigation. >> thank you. i am familiar obviously with the case as we have discussed today and as the supreme court, the fisa court and congress repeatedly emphasized secrecy is critical to the success of national security investigations , and it is unfortunate when those investigations are jeopardized by the case has resulted in those articles i am afraid that because the authorities used to investigate that case or that may have been authorities before the fisa cord i am not at liberty to discuss in an open hearing. >> would you clear to reiterate?

nothing prevents me from speculating or speaking in terms of hypothetical scum and i will just ask you to go to wherever your limit is and we will accept that. as i read the news on this particular case, and i can only contemplate what might have happened if the case hadn't been broken, and we can imagine that there may have been an attack that took place already or one that was unfolding that we would have no knowledge of that could have detonated more devices at grand central terminal or around locations of new york city. i am very grateful that there have been a significant number that have been broken open and are part of the security personnel across the spectrum of law enforcement from top to bottom and sometimes we got lucky when we got regular

american citizens the weighed in on that little tip. we have been safe for a long time. but if one were to try to imagine a case that would have similarities to this one or maybe one that you can testify on can you paint a scenario by which we would not have been able to gather the data necessary to break a terrorist plot? without the patriot act? >> if i'd understand the question correctly, yes, i think there are circumstances that are not difficult to imagine some of which i refer to in my opening testimony which the absence of any of the three investigative authorities up for renewal this year would hamper the government's ability to effectively investigate a minute plot. >> let me pose the question this way as i listen to chairman conyers talked about it and ask you to go on the record as to the parts of the report you

agree with and the ones you disagree with, is it possible for you to present to this committee as a matter of request in a list of the plots that have been broken since the patriot act was passed? and the success of the patriot act and then point to the sections in the code that were utilized among those not currently under investigation so you could die for alleged that information in a public fashion as this committee we is the idea of free authorizing the patriot act i would think we should be able to weigh the success of the patriot act as well as be able to point to the calamities that might have taken place had we not had the patriot act. would that be possible? >> i think something along the line would be possible and i take the request back to the department. >> i respect that given their interest in the reauthorization there will be eager to provide the information and without belaboring the point but

watching the clock, i would point out that as i sit here and listen to the cross-examination and the discussion taking place i can't help but think what if this hearing were taking place in the middle of smoke and dust coming out of the ground at grand central terminal? what is there be an entirely different tone to this discussion today is the patriot act had saved at this point hypothetically, but uncountable american lives we have been able to avoid a domestic attack of any significant success in the united states since september september 11, 2001, so i just ask if you can contemplate if they had been successful how this discussion might have changed. >> i would hope, a congressman, the tone of the discussion would be careful and deliberate and designed to ensure the intelligence investigative authorities that resulted were ineffective and gave intelligence officers of the

tools they need to do their jobs while at the same time protecting americans privacy and civil liberties. so i hope that although we would have reason to grieve or more of that for the case the tone of the debate and substantive of the debate would be similar to the one that we are having right now and i expect the other witnesses will have been they have an opportunity to testify as well. >> in conclusion i thank the witness and point out because we don't have a calamity to discuss this, we need to make sure that we eat dog debate within the light of what might have happened. i urge that consideration to the panel and i would thank the witness stand yield back the balance of my time. >> the gentleman's time is expired. i thank the gentleman and to we have anybody else? ai thank the witness. we look forward to you providing us with the information that you said you would and

currently what principal consulting group of counsel to where she advises clients and issues related to national security. ms. spaulding is democratic staff director for u.s. house of representatives select committee on intelligence and started working on the security issues 20 years earlier 1983 as senior counsel of legislative director for arlen specter. after six years at central intelligence agency, where she was assistant general counsel and legal adviser to the central intelligence nonproliferation center she returned to the general counsel for select committee of intelligence. she served as executive director to congressional mandate commissions on terrorism chaired by ambassador the third and to assess the organization government to combat proliferation of weapons of mass destruction. chaired by deputy secretary

defense and cia director john deutch. i think i am -- [inaudible] she advised for terrorism involving weapons of mass destruction, the gillmor commission and president george w. bush's commission on intelligence of the united states regarding weapons of mass destruction, the world silver and commission. she is a member of the csis commission on cybersecurity for the 44 presidency. in 2002 appointed by then virginia governor mark warner to the secure commonwealth panelist after the attacks of september 11 to advise the legislature regarding preparedness and response issues to the commonwealth of virginia. she received undergraduate from the university of virginia.

tom evans representative of delaware from 1977 to 1983 served as co-chairman operating at the republican national committee. deputy chairman of the finance committee and republican national committeeman from delaware. also chairman of congressional steering committee ranking for president committee served on the executive committee of the reagan-bush campaign and was the vice-chairman of the congressional campaign committee with responsibility for white house liaison. tom evans also served as an informal group of the kitchen cabinet that directly regularly advise the president on a broad range of issues in congress he was a member of the banking committee and more submarines committee. he has a be a and llp from the university of virginia. tenet weinstein and i hope i pronounced correctly, is a part of washington, d.c. office of the white collar defense corporate investigations practice. he focuses on civil and criminal trials and corporate internal investigations. he spent 19 years and the

department of justice from 1989 to 2001. he served as assistant u.s. attorney both southern district of new york and district of columbia. 2001 he was appointed director of executive office for attorneys to read the next year he joined the federal bureau of investigation served as general counsel and later chief of staff to the director robert s. mueller. two years later appointed and later confirmed as u.s. attorney for the district of columbia. in 2006 he became the first assistant attorney general financial security of the justice department. in 2008 mr. wainstein was named security advisor in the portfolio covering coordination of the counterterrorism homeland security infrastructure protection and disaster response and recovery efforts. he has a b.a. from the denver city of virginia and from the university of california berkeley. mike german is a policy council for the civil liberties union washington legislative office prior to joining the aclu he served 16 years as a special agent with fbi we specialize in domestic terrorism and covert

operations. he served as an adjunct professor for law enforcement in terrorism at the national defense university and as a senior fellow. he has a b.a. in philosophy from wake forest university and jd from northwestern university law school. i'm pleased to welcome all of you. you're written statements will be part of the record and it's in their entirety i would ask you to summarize your testimony to five minutes or less to help you stay within the time there's a tiny light at the table when one minute remains the light will switch from green to yellow and then when the five minutes are up. before we begin it is customary for the committee to swear in its witnesses if you would stand and raise your right hand to take the oath. >> do you swear or affirm under penalty of perjury the testimony you're about to give is true and correct to the best of your knowledge and information you believe? thank you. let the record reflect the witness answered in the affirmative. you may be seated. our first witness is suzanne spaulding was recognized for

five minutes. >> full committee chairman conyers and members of the kennedy, thank you for inviting me to participate in today's hearing on the u.s. a patriot hearing on the u.s. a patriot act and related@@@@@@@ @ s'@ rr domestic intelligence framework including a comprehensive review

of fisa, national security letters attorney general guidelines and applicable criminal investigative authorities. i would encourage the administration to do the same. this morning however i will focus on the sun setting provisions that are the focus of this hearing. section 215 and 206 have corollaries in criminal code. unfortunately import and safeguards were lost in the translation as these moved into the intelligence context. section 206 for example was intended to make available an intelligence surveillance the roving wiretap authority criminal investigators have. this was an essential update. however there are specific safeguards in the criminal title three provisions that were not carried over to fisa. requirements to provide safeguards designed to protect fourth amendment rights of innocent people. their absence and section 206 increases the likelihood of mistakes and possibilities of

misuse. in addition in the criminal context where the focus is on successful prosecution the exclusionary rule's serbs deterrent against abuse one that is largely out since and intelligence investigations where it prosecution may not be the primary goal. this highlights the care that must be taken when important criminal authorities into the intelligence context and why it may be necessary to include more rigorous standards were safeguards and i have suggested some in my written testimony. similarly section 215 governing orders for tangible things attempted to mimic the use of grand jury administrative subpoenas in the context however criminal subpoenas require some criminal nexus fisa section 215 does not. moreover the patriot act amendments brought this authority beyond business records to allow these orders to be used to obtain any tangible things from any person. this could include order

compelling you to handle fer door personal notes, your daughter's diary or your computer. things which the fourth amendment clearly applies. again in my written testimony i tried to suggest ways to tighten the safeguards for section 215 without impairing the national security value of this provision. and in the interest of time i will move to the low will provision for years ago wire urged congress to let the provisions on set and reiterated that today. the ad and a station that it's the lone wolf of 40 has never been used pleads for continuation just in case. the problem is this on necessary provision comes at a significant cost, the cost of undermining the policy of constitutional justification for the entire fisa statute. a statute that is extremely important tool for intelligence investigations. the legislative history court cases before and after the enactment of fisa and toole including two cases from the fisa court make clear this

departure from the normal fourth amendment warrant standards is justified only by the unique complications inherent in investigating the foreign powers and their agents. unfortunately instead of repealing or fixing the lone wolf provision congress expanded by adding a person engaged in the international proliferation of weapons of mass destruction. there is no requirement this person even know they are contributing to proliferation. and on u.s. person working for american company involved in completely legal sales of dual-use goods that unbeknownst to her are being sold to a front company for use in the development of chemical weapons for example could be considered to be engaged at the proliferation of wmd thereby have all of her communications intercepted and homes secretly searched by the u.s. government. as former legal adviser for the intelligence community non-proliferation center and exit of director of congressional and mandated wmd commission on a fully understand the imperative to stop the spread of these dangerous

technologies however there are many tools available to investigate without permitting the most intrusive techniques to be used against people unwittingly involved and was activities are perfectly legal. let me close by commending the committee for the commitment to ensure the government has all appropriate necessary tools at its disposal in this vitally important effort to counter today's threats and that these authorities are crafted and implemented in a way that meet our strategic goals as well last tactical needs. with a new administration that provokes less fear of the misuse authority it may be attempting to be less insistent upon statutory safeguards. on the contrary this is precisely the time to seize the opportunity to work with of the administration to institutionalize appropriate safeguards in ways that will mitigate the prospect of abuse by future administrations or this administration in the aftermath of an event. thank you very much.

>> thank you, congressman evans. you are recognized for five minutes. >> thank you, mr. chairman inviting me today. it is a pleasure to be here. it's always good to be back and it's good to see my friend the chairman of the judiciary committee the gentleman from michigan, mr. conyers, and ladies and gentlemen of the kennedy it is a privilege -- >> would you pull the microphone closer? pull the microphone a little closer, please. it's not on. you have to press something. >> i still have five minutes?

>> we are resetting the ploch. >> it is a privilege to be here and i am delighted to be invited and i am delighted to see my friend the chairman of the committee the gentleman from michigan, mr. conyers, and on and on our to represent the security and liberty and security committee of the constitution project today. you have my previously prepared statement and attached is the liberty and security committee statement on reforming the peach react. one word about the makeup of our committee, it is a truly bipartisan. bipartisan in nature we address issues not as republicans or democrats but we need more of that i think in this country and here in washington. our membership is broadbased and includes a number of former u.s. attorneys, some distinguished judges, former judges, professors of law, deans of law school, even a publisher, mr. conyers, who is a publisher

of the detroit free press, mr. lawrence, and i might add foundation chairman and senior members of the administration, and i also want you to know that there are a number of conservative republicans. i am a moderate republican but there's a number of republicans on this committee, including several who were members of this body, constitutional scholars both. in the wake of the terrible tragedy that's been pointed out of the september 112001 our nation clearly needed to mobilize in order to respond with a new and powerful counterterrorism strategy. however, our bipartisan committee believes there was an overreaction in the superheated fear surrounding washington and our country at that time, and we should strive never to let your

lead us to over reaction and whenever we grant powers to the executive branch of government, we must incorporate proper safeguards to protect individual rights and ensure proper oversight. that's why i am especially heartened to see this committee exercising its oversight responsibilities which is such a critically important element in our system of checks and balances. the members of the liberty and security committee of the constitution project have all joined together in the statement on reforming the patriot act which is attached to my statement for the record. broadly speaking, we are urging the congress to initiate some important changes if you proceed with the reauthorization of three provisions that are sunset in the patriot act. briefly we believe the business records were library records provision provided largely

unchecked powers. we believe they should be tightened and the inclusion of a gag order should be limited to 30 days. the lone wolf provision allows foreign intelligence surveillance act for the surveillance of a normal u.s. person with no ties to any group or entity and it's important to remember. suspects would still be subject to surveillance and search under traditional and well-established standards of criminal conduct. the roving the wiretap provision concerns us because innocent civilians may become an effort and targets of surveillance. two provisions not scheduled to be sunset did or the ideological exclusion provision and national security letter provision.

section 505 of the patriot act. let me focus for a minute on the nsl. that provision doesn't require a court order and creates even greater potential for serious abuse. section 505 enable agents to seek information without any demonstrated factual basis and vastly expanded the types of financial institutions that can receive demands through an nsl letter to include such businesses as travel agencies, real estate firms, insurance companies, automobile dealers. unfortunately and sadly, these overly broad powers did not just create the potential for abuse. you pointed those out, mr. chairman. audits by the inspector general released in 2007 and in 2008 had

revealed numerous actual abuses in the issuance of nsl. let me be clear. the liberty and security committee believes the fbi should have the tools necessary to protect our citizens. and let me say from a personal standpoint i strongly believe that. my son could have died. my oldest son could have died in the attack on 9/11. but we strongly believe we need to protect the liberties of americans. the integrity of the constitution is critically important. we believe we have struck the proper balance in our recommendations and i sincerely hope he will consider them carefully as you move forward. thank you again for asking me to be here. >> and thank the gentleman. mr. wainstein, you're recognized for five minutes. >> chairman nadler, chairman conyers, members of the subcommittee thank you for holding this hearing and for listening to do is about a patriot act. my name is kenneth wainstein at

rall firm prior to leaving government in general this year serve a variety of positions and had the honor to work alongside the five men and women who defend the country day in and day out and i had the honor to participate along with michael panelists in what has been a very constructive national discussion over the past eight years over the limits of government investigative powers in this country's fight against international terrorism. today i want to discuss the three provisions of a foreign and intelligence act scheduled to expire at the end of this year and explain my position all three of these are important to the national security and should be free authorized. the patriot act was passed within 45 days after line 11 in response to the attacks of the day. in 2005 congress to its enduring credit undertook a lengthy process of carefully scrutinizing each and every provision of the statute process the resulted in the reauthorization act to provide new safeguards for many of the

original provisions. the authorities in the patriot act are now woven into the fabric of the counterterrorism operations and have become a part of at our defense would president obama has described as al qaeda, quote, for reaching network of violence and hatred. this is particularly true of the three provisions subject to reauthorization this year. the first i would like to address is the roving wiretap authority in section 206. which allows agents to maintain continuous surveillance of a target as the target moves one communication device to another which is standard tradecraft from any surveillance conscious terrorists and spice. this is absolutely critical investigative tool especially given proliferation of inexpensive salles phones, calling cards and other innovations that make it easy to dodge surveillance by rotating communication devices. law enforcement personnel investigating regular crime have had this authority since 1986 national security agents

preventing attacks only received in 2001. while some have raised prices to concerns about this authority a fair review of section 206 shows congress incorporated a number of safeguards to ensure its of safeguards to ensure its traditional@@@@@@@ @ @ @ @ @ @ there's a strong case for realizing this authority. section 215 authorized the court

to issue orders for production of records that law enforcement prosecutors have historically been able to acquire through grand jury subpoenas. prior to the section to 15 on the national security personnel we are hamstrung and the eckert opting business records because the opera the statute at the time required higher showing of proof and limited to only certain types of businesses. section 215 addressed these witnesses by adopting for the issuance of the order and expanding to the authority to any entity or business. like the roving wiretap authority congress built into this provision in number of safeguards that made section 215 order significantly more protective of civil liberties than grand jury subpoenas issued every day around the country by federal and state prosecutors. unlike a grand jury subpoenas the prosecutor can issue on his or her own a 250 order must be approved by court. unlike subpoenas, to 15, section 215 specifically bars issuance in the order if the

investigation is focused only on someone's first amendment activities and on like grand jury subpoenas section 215 requires reporting to compass and imposes higher standard for particularly sensitive records like library records. with these safeguards in place, there's absolutely no reason to return to the days it is easier for prosecutors to secure records and a simple assault prosecution the national security investigators to obtain records to defend the country against terrorist attacks. last the lone wolf provision that allows government to conduct surveillance on and on u.s. person who engages in international terrorism without demonstrating his affiliation to a particular international terrorist organization. as ranking member sensenbrenner indicated that back in 1978 when the statute was passed the contemplated target was a member of an organization like the red brigades. today the terrorist adversaries the main adversary is al qaeda which is a network of like-minded terrorists around the world whose membership shifts and fluctuates with changing alliances. given this increase in fleet in the organization of membership

of adversaries, there is a great likelihood today we will encounter a foreign terrorist and not be able to identify that person's terrorist organization. to ensure the government canceled a of a person the lone wolf provisions absolutely critical to make sure that we can keep an eye on that person and prevent that person from undertaking a terrorist attack. although as was reported the lone wolf provision has not been used given the threat posed by foreign terrorists regardless of affiliation and obvious need to keep them under surveillance there is ample case for maintaining this authority for the day the government may need to use it. thank you again for the opportunity to discuss the sun setting provisions and for the reasons for my believe they should be free authorized. >> thank you. i now recognize mr. jarman for five minutes. >> chairman at work, ranking member sensenbrenner, thank you for the opportunity to testify on behalf of the american civil liberties union as congress revisits the patriot act.

the patriot act vastly and unconstitutional the expanded the authority typically into people's private lives with little or no evidence of wrongdoing violating the for the men back protections against reasonable searches and seizures, first amendment protections against free speech and associations. worse it allows expanded supply and to take place in secret with few protections to ensure powers are not abused and little opportunity for congress to determine whether these authorities are doing anything to make america the three expiring provisions give congress the opportunity as the department of justice september 14 letter suggested to carefully examine how these expired authorities expanded authorities in pact americans privacy. we urge congress to broaden its review to include all post 9/11 domestic intelligence programs including foreign intelligence surveillance act amendments and a new attorney general guidelines for fpi domestic operations.

and recent, repeal or modify any provisions that are on joost, ineffective or prone to abuse. when several patriot act provisions came up for renewal in 2005 there was little in the public record for congress to evaluate. today congress is not completely in the dark. inspector general of its ordered in the patriot act reauthorization revealed significant abuse of national security letter said courts have found several patriot act provisions and constitutional including nsl doud orders, certain material support provisions, had a logical exclusion provisions and the fisa significant purpose task. there is also evidence the government abuse even broadly expand wiretapping authority congress approved under the fisa amendment act. congress needs to address all these provisions and this work is beginning. the aclu supports the national security letter reform act of 2009, sponsored by german at work and the justice act. country inns of reform introduced by senators russ feingold and richard durbin

regarding expiring provisions the government's arguments for extending these authorities without amend that are simply a persuasive. unlike criminal counterparts the john doe roving wiretap provision of the patriot act authorizes government to obtain secret vice a court order to intercept communications without naming the target or making sure the wiretap bids intercept only the target's communications. the government offers no explanation why the roving wiretaps authorities and fbi has used successfully in criminal cases since 1986 which better protect the rights of innocent persons or insufficient for national security cases. this provision should be narrowed to bring it in line with criminal wiretap authorities or be allowed to expire. as for the lone wolf provision which authorizes government agencies to obtain secret surveillance orders against individuals of connected to any international terrorist group or for a nation we now know it has never been used. the government justified this provision by imagining a hypothetical international terrorists to operate

independently of any foreign power, terrorist organization but there is little evidence to suggest this imaginary figure exists. this provision is over broad and on necessary and should be allowed to expire. the third exciting provision, section 250 or the library records provision is also rarely used. only 13 section 215 applications were made in 2008. but that doesn't mean there isn't abuse. the ig reported in 2006 the fbi twice asked the fisa court for section 215 order seeking tangible things as part of the counterterrorism case. the court denied the request both times because, quote compacts were too thin and the request implicated the target's first amendment rights, and of quote. rather than every evaluating the underlying investigation based on the court's first amendment concerns the fbi circumvented the oversight and pursued investigation using national security letter is predicated on the same information contained in this section 215 application. ..

>> mr. wainstein why should and section 206 contained the requirement in a criminal version? >> the authorization to issue the order based on a description as opposed to the identity. that is a recognition of the reality what we're dealing with that with foreign spies and terrorists we often do not know their name. >> you don't have the same situation in a criminal context? >> less frequently a problem because sometimes we do have

people that come in and outside of the context of foreign terrorism and espionage looking at drug trafficking sometimes there are people there are names we don't know but in the foreign intelligence context people who come our spies and go to great lengths to hide their identities we often will not know but no darn sure they are. >> you know, his appearance but not his name? >> we will have watched him and see him with a physical surveillance see he has contacts better known operatives. keep in mind we can only get the fisa court order if we show specific sisyphus day specificity to satisfy the court. >> why day you disagree? >> i don't think there's a sufficient showing of love the government to show how this authority has been used in making have a debate based on the fact.

>> you alluded to the same thing in your testimony can you comment? >> yes. i am sympathetic with the challenges the government may face to know the name of the target of the surveillance. is very important that the statute explicitly require that this target be identified with sufficient specificity to eliminate or significantly reduce the risk that the wrong person is targeted that this change greatly with the instruments you are tapping to have greater specificity and also show that there are reasonable grounds that that particular individual will be approximately two inducing them instrument. >> they should be the same as sorg similar to the criminal code? >> similar but again, i am

comfortable having the government not knowing the name of the target was sufficient specificity. >> you know, in your written statement congress should consider the initial application the grounds upon which section 215 order would be harmful. why do believe this has support and also talk about the other similar question. >> can you ask the question again? >> ms. spaulding is said it is important to require the a government to set forth the initial application with the disclosure of a 215 or if it is harmful wide to renew the gag order? why do believe this consideration is important? when you answer comment in this section 215 context.

>> it is important for a number of reasons and it is a particular do regular it -- relevant section 215 of there delivered to the third-party record holders or to a business asking for the records of a third party or another individual because they really have very little incentive to challenge the keg order and the underlying order itself or to challenge the gag order preferred is not in their best interest they are handing over to the government information so putting the burden on the recipient of the order to challenge that requirement is not to disclose would dramatically reduce the likelihood it will be challenged in this regard to a challenging underlying orders the justice department acknowledges no business recipient of a 215 request has ever challenged the order which is pretty

compelling evidence. >> so the whole debate for the reauthorization might be irrelevant? >> and recently ruling in the context of national security letters in fact, putting the burden on the recipient come on good government raised serious constitutional issues. >> fed 2,008 report on section two and 15 noted a be -- alluded to the question of 215 to get the same information on the first amendment concerns comments day happen their opinion to believe they're using them to evade the requirements of section 215 given the relatively low numbers a