Testimony of Patrick Rowan, Acting Deputy
General Counsel, FBI
Before the House Permanent Select Committee on Intelligence
July 23, 2003
Mr. Chairman,
Ranking Member Harman, and members of the Committee, thank
you for inviting me to appear today to testify on behalf of
the Federal Bureau of Investigation concerning the Foreign
Intelligence Surveillance Act of 1978 (FISA). Significant
changes in FISA law arising from the passage of the USA PATRIOT
Act, Pub. L. 107-56 (2001), and the Intelligence Authorization
Act for Fiscal Year 2002, Pub. L. 107-108 (2001), as well
as the November, 2002 decision of the Foreign Intelligence
Court of Review, have broadened the opportunities to employ
FISA and FISA-generated intelligence information. I would
like to focus my remarks on some of the steps we have taken
to ensure that the FBI is fully and properly utilizing the
FISA statute. I will also briefly address the utility of S.
113, a bill that seeks to extend the coverage of FISA to non-United
States persons who engage in international terrorism or activities
in preparation for international terrorism, without a showing
that they are doing so on behalf of an international terrorist
group.
In order
to ensure that all FBI personnel have a clear idea of the
scope and application of FISA, with the assistance of the
Office of Intelligence Policy and Review (OIPR) and other
components of the Department of Justice, we have been engaged
in a great deal of training.
On December
24, 2002, the Deputy Attorney General issued a directive instructing
OIPR, the Criminal Division, and the FBI, in consultation
with the CIA, to establish and implement a comprehensive training
curriculum on FISA and related matters for all Department
lawyers and FBI agents who work on foreign intelligence and
counterintelligence investigations. In response, a comprehensive
training curriculum was established that is being presented
over the course of a four day National Security Conference.
The first conference was held beginning on May 6, 2003. Five
additional sessions have been held since and there are two
more scheduled. The curriculum includes instruction on the
mission and organization of the Intelligence Community, an
overview of FISA, information sharing, coordination between
law enforcement and intelligence components, the use of FISA
information in support of criminal litigation, and practical
and tactical decision-making.
The training
conferences, which are attended by FBI Division Counsels from
each field office as well as Special Agents and Assistant
United States Attorneys, are to be followed by training in
each field office around the country. The FBI's Office of
Training and Development has created a distance learning program
on FISA and information sharing for all agents and analysts
working on counterterrorism or counterintelligence investigations.
This on-line training will be followed up by face-to-face
training. Instructional teams composed of senior agents and
prosecutors who have already attended the National Security
Conference will present two days of instruction based on the
curriculum taught at the Conference. These training sessions
are expected to be completed by November 2003.
Attorneys in the FBI's National Security Law Branch within
the Office of the General Counsel (OGC) have also been engaged
in less formal training to the field on FISA. Since September
11, Branch attorneys have conducted approximately 70 training
sessions (to groups ranging from 20 to several hundred) on
FISA issues at Quantico, at Headquarters, and in the field.
In addition, to improve advice?giving in the field, in early
2003, OGC sponsored a four?day conference on counterterrorism
for all Chief Division Counsels that included lengthy sessions
on FISA and information sharing.
This
training should produce a greater understanding of and facility
with FISA among agents and prosecutors, which will undoubtedly
translate into increased use of this investigative tool. In
the meantime, we have taken steps to improve the process by
which FISA orders are secured and distributed.
Until
recently, the request for a FISA was sent from the field to
Headquarters in the form of an e-mailed Letter Head Memorandum
(LHM). There was no uniform format for the FISA LHMs, and
they ranged from single paragraphs lacking in facts to comprehensive
documents that could be easily converted into finished declarations.
Starting March 1, 2003, field offices are now required to
follow a standard format, distributed as an eight-page FISA
request form. The form, which was originally designed by OIPR,
elicits information about the target's status, the facts and
circumstances that establish probable cause to believe the
target is an agent of a foreign power, and particulars about
the facilities and places to be targeted and the minimization
procedures to be employed. The form also requires confirmation
that field offices have verified the accuracy of facts alleged
in the form. The request form is filled out by the case agent
in the field office, reviewed and approved by the field office's
Chief Division Counsel and the Special Agent-in-Charge, and
then sent via e-mail to an operational unit within the appropriate
Headquarters Division.
We expect
that the use of this standard form will aid agents in the
field by making clear what information is expected from them
in order to begin the FISA initiation process. It should result
in a more organized and complete request from the field.
Field
agents use the same form to request a renewal of FISA authority,
which in most cases must be secured within 90 days after initiation
of FISA surveillance. Starting March 1, 2003, however, field
agents have been instructed to send their renewal requests
directly to OIPR, with a copy to FBI Headquarters, to expedite
their time-sensitive processing.
In order to ensure that each FISA initiation request that
is passed from FBI Headquarters to OIPR is viable and complete,
we are implementing a new process in which the FBI's National
Security Law Branch attorneys will receive a copy of each
counterterrorism initiation request when it arrives in from
the field. The attorneys will work closely with Supervisory
Special Agents and analysts in counterterrorism to finalize
each request and submit it to OIPR in a timely fashion. The
goal of this change is to increase the level of legal review
given to FISA initiations at the front end, identifying at
an early stage any deficiencies in the factual basis for the
applications and thereby decreasing the amount of time and
effort that OIPR attorneys must invest in order to prepare
a court-ready package. In order to accomplish this task, the
National Security Law Branch has been re-organized and attorneys
from other branches of the General Counsel's Office have been
re-assigned to National Security Law. The end result will
be a doubling of the number of attorneys working on counterterrorism
FISA initiation requests.
In an
additional effort to improve the efficiency of the process,
the FBI established a FISA Unit within the National Security
Law Branch in November, 2002. The FISA Unit, which is currently
staffed with a Unit Chief and six staff members, performs
administrative support functions for the FISA process. The
FISA Unit is currently working with contractors to design,
install, and test a new FISA management system. The FISA management
system is an automated tracking system that will electronically
connect field offices, Headquarters, the National Security
Law Branch, and OIPR to one another. It will transmit FISA
documents between the participants in the FISA process and
allow them to track the progress of FISA packages during each
stage of the process.
The management system should speed up the process in several
ways. First, the FISA request form will be loaded onto the
system so that field agents can quickly insert their case-specific
information into a standardized form. In addition, by tracking
the progress of each package, the system will identify delays
in the process. If an agent is not making progress on an initiation
request, the system will show that delay and a monitoring
analyst in the FISA Unit can e-mail a reminder to that person
and others that the request is awaiting completion. Also,
it will allow OIPR to request additional information from
the field via the system, so that questions can be resolved
in a timely fashion. The FISA management system is expected
to be ready for testing in several field offices by end of
summer, and operational nationwide by October, 2003.
In addition to managing the development and operation of the
management system and ensuring that those involved in the
FISA process adhere to reasonable time-frames, the FISA Unit
is responsible for distributing the FISC's orders and warrants
to the appropriate field offices for their use and for service
upon communications carriers and other persons specified in
the orders and warrants. The FISA Unit, OIPR, and the Foreign
Intelligence Surveillance Court have all taken steps to improve
the distribution of orders and warrants after the court approves
them.
Since
September 11, 2001, the use of FISA has dramatically increased.
We expect this trend to continue, and we will continue our
efforts to improve the process so that we may gain the full
benefit of the statute.
There
is a bill pending that would bring about an additional change
in FISA. S. 113 would amend FISA's definition of "foreign
power" to include "any person, other than a United
States person, or group that is engaged in international terrorism
or activities in preparation therefor."
As you are aware, since the time that FISA was first enacted,
the face of terrorism has changed. Where we once saw terrorism
formed solely around organized, almost para-military groups,
we now have learned of individuals willing to commit indiscriminate
acts of terror. Some of these individuals will turn out to
be affiliated with groups we have not yet been able to identify,
but it may also be that they are so-called "lone wolf"
international terrorists, non-U.S. persons who seek to change
governmental policies for their own reasons or to bring about
destruction in what they view as retaliation for aspects of
U.S. foreign policy with which they do not agree.
Usama
bin Laden's organization, al Qaeda, is but one of a number
of terrorist organizations that are loosely networked together
that purport to be acting in the furtherance of their own
radical view of Islam. On occasion, these organizations and
their leaders issue public fatwas or religious rulings calling
for their followers to attack Americans and American interests.
Of course, one need not be a member of these organizations
to be moved to act upon such a call to violence.
There
are radical militants around the globe who share common ideas
and goals, but are not linked by organizational structure.
Under these circumstances, it is not at all surprising that
our investigations would occasionally identify individuals
who appear to be engaged in terrorist activities but for which
we have not identified a connection to terrorist groups, or
who have tenuous ties to multiple organizations. Some may
well be acting on behalf of groups but exercising operational
discipline that makes the connections exceedingly difficult
to uncover. The amendment proposed in S. 113 would aid our
investigation of such individuals.
On behalf
of the FBI, I want to again express my appreciation for the
opportunity to appear before you here today. I would be pleased
to answer any questions that you might have.
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