Statement of U.S. Senator Russ Feingold at the
Senate Judiciary
Committee Hearing
"Oversight of the Federal Bureau of Investigation"
July 27, 2005
Thank you, Mr. Chairman.
Thank you, Director, for not only being here today -- yes -- not only
being here today but for the time you spent with me in my office recently,
which was very helpful.
And I'm pleased that there was a good exchange, before I got here,
with Senator Feinstein about these administrative subpoenas. We talked
about it at some length. And I do hope that you'll continue to consider
alternative ways that we can get at these problems, which you explained
very well to me in my office. But I really hope we don't have to have
such broad powers used in order to get at these emergency situations.
I'd like to talk to you about the bill that the Senate Judiciary Committee
unanimously reported out of committee last week, reauthorizing the USA
Patriot Act and making some changes to some of its most controversial
provisions. As I stated last week, the compromise bill made some meaningful
improvements but did not address everything that I believe needs to
be revised.
And one provision that I would have liked to have seen in the bill
is an ascertainment requirement for roving taps under the Foreign Intelligence
Surveillance Act, just as there is now an ascertainment requirement
in the criminal law for roving taps. It's a simple concept. It ensures,
when the order itself doesn't designate the phone or the computer to
be tapped, that the investigator actually has a sufficient basis for
turning on a wiretap of a particular phone or a computer. It just ensures
that innocent people's phone and computer conversations aren't intercepted.
Would you have an objection to including an ascertainment requirement
for FISA roving taps?
MR. MUELLER: I'd have to look at that, Senator. I will tell you, one
of the things that is a challenge in this day and age is the swiftness
with which some discard communications devices and replace them. And
I would certainly look at and consider any language that you would propose,
but I would expect to balance it against our need to move efficiently
from communications device to communications device without always having
to go back to the FISA court on a daily or hourly basis. So I'd have
to look at it.
SEN. FEINGOLD: And I understand the need for that kind of balancing.
I guess I'd just like you to speculate on how this works; you know,
how an agent makes the decision which phone or computer to tap. If you
don't somehow ascertain that the target is using the phone or the computer,
how do you decide which phone or computer to tap?
MR. MUELLER: Well, I think you do. First of all, there has to be the
belief that the person is an agent of a foreign power or a terrorist.
So there has to be some initial threshold finding before you get to
the device that is being used. And then the application would have some
description of the device or types of devices, or where they're being
used or how they're being used, in order for the court to be able to
articulate an appropriate order to the facility that was providing the
service. And so inherent in that process is some degree of specification.
SEN. FEINGOLD: This is the whole point of ascertainment. You're talking
about you do have a target out there, you have somebody you're concerned
about. But how do you connect that person to the particular phone or
computer without an ascertainment requirement?
MR. MUELLER: It depends on the circumstances. I'd have to look at the
-- your language --
SEN. FEINGOLD: Well, fair enough. You've indicated a willingness to
look at it. I think this is a gap that we need to change something about
this in order to protect innocent people. And I hope we can work together
on that.
I'd like to get your response to some testimony we heard at a Patriot
Act hearing a few months ago. One of the witnesses at that hearing was
Suzanne Spalding, who has spent a good portion of her career working
on intelligence issues at the CIA; on two different commissions examining
issues relating to terrorism and weapons of mass destruction; and in
Congress, where she had the privilege of working for our chairman, and
on the Intelligence Committees. She explained why we have to be particularly
careful in the oversight of intelligence investigations. And I want
to read what she said.
She said, "Intelligence operations by necessity are often wide-
ranging rather than specifically focused, creating a greater likelihood
that they include information about ordinary law-abiding citizens. They
are conducted in secret, which means abuses and mistakes may never be
uncovered. And they lack safeguards against abuses that are present
in the criminal context where inappropriate behavior by the government
could jeopardize a prosecution."
She continued, "Because the safeguards against overreaching or
abuse are weaker in intelligence operations than they are in criminal
investigation, powers granted for intelligence investigations should
be no broader or more inclusive than is absolutely necessary to meet
the national security imperative, and should be accomplished by rigorous
oversight by Congress and, where appropriate, by the courts."
Do you agree with the statement and sentiments that I just read?
MR. MUELLER: Well, she said an awful lot in that statement. There are
certain aspects that I would agree with. I do believe that one has to
be careful in establishing an -- for instance, an Intelligence Directorate
or a National Security Service, that one has an objective for the collection
of intelligence.
I do believe that one of the reasons both the 9/11 commission as well
as the WMD commission believe that the growth of a domestic intelligence
capability in the United States should be in the FBI is because we have
a lengthy, detailed training with regard to the controls on our activity,
whether it come from the Constitution, whether it come from statutes,
whether it come from the AG guidelines.
And I do believe that they're -- one of the reasons that it's important
for the FBI to undertake this capability is that, I think, we have a
way of looking at things that looks -- a way of looking at sets of circumstances
that is fact-driven and is consistent with the Constitution and this
applicable statutes, and the AG guidelines. By the same token, I do
believe that in order to address the threats of today and tomorrow --
terrorism, weapons of mass destruction -- there has to be a growth in
some capabilities along the lines of administrative subpoenas to allow
us to have access to the information that will alert us to the threats
against the United States -- with appropriate congressional oversight.
One of the things that I do believe is important for us and others
is to see what you have done, but not put impediment to action. In other
words, in my mind, adding a test for issuing administrative subpoenas
are impediments to swift action, where you can look after the fact and
see if it was appropriate. And, in my mind, as you build an intelligence
capability, as you look at oversight -- there needs to be oversight
in the institution, in the Department of Justice -- but the oversight
should not inhibit the swift reaction to a set of circumstances that
you just don't know where it's going to go, and you have to act quickly.
SEN. FEINGOLD: Thank you, Mr. Director.
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