Hearing of the House Judiciary Committee: The Reauthorization of the USA Patriot Act

HEADLINE: HEARING OF THE HOUSE JUDICIARY COMMITTEE

SUBJECT: THE REAUTHORIZATION OF THE USA PATRIOT ACT

CHAIRED BY: REPRESENTATIVE JAMES SENSENBRENNER (R-WI)

WITNESS: DEPUTY ATTORNEY GENERAL JAMES COMEY

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Mr. SCOTT. Thank you. Mr. Comey, it's good to see you again.

Mr. COMEY. You, too.

Mr. SCOTT. You mentioned in your opening remarks that there is certain language that is not helpful in promoting an honest dialogue about this legislation. Would that include language such as, ''To those who scare peace-loving people with phantoms of lost liberty, my message is this: Your tactics only aid terrorists; for they erode our national unity and diminish our resolve''?

Mr. COMEY. I may be a short-timer, Mr. Scott, but I would prefer not to focus on anybody's words in particular. Any words that chill aggressive questioning of Government authority I think are not helpful. As I said in my opening, I think people should demand to know-all points of the political spectrum. I think Republicans should have as big a problem with Government power as Democrats.

Mr. SCOTT. You recognize the words?

Mr. COMEY. I've heard them before, yes, sir.

Mr. SCOTT. You mentioned-you explained how in section 215, what we're calling the ''library provision,'' you went to great lengths to explain how the judge was involved. Is that an important part of 215?

Mr. COMEY. I believe it is, yes.

Mr. SCOTT. On roving wiretaps, when you have gotten probable cause, not that a crime has been committed, but the probable cause that the target is an agent of a foreign government-which means you can get the wiretap without probable cause of any crime, just that you're trying to get intelligence information which may not be criminal, just, you know, information on a trade deal, something, no crime as a predicate-and then you expand this as a roving wiretap, is it important that you ascertain before you start listening in that the target is actually in the location where you've placed the bug?

Mr. COMEY. It may be important as a practical matter, because we don't want to waste time. But in intelligence investigations, given the nature of the people we're following and surveilling, both with spies and terrorists who are trained to look for us and to be very careful, I'm troubled by an ascertainment requirement; which would require us, as you said, Mr. Scott, as we do in the criminal context, to know that the target is the one on the phone or the target is the one near the bug.

Mr. SCOTT. Well, I say this because we've heard from witnesses before, like the Attorney General, that some of these-you know, we reduced the standard from the purpose of the wiretap being foreign intelligence to a significant purpose, which invites the question: If it wasn't the purpose, what was the purpose? And the answer, of course, is you're running a criminal investigation without probable cause.

Now, since you're running a criminal investigation, isn't it important that the people you're listening in are actually targets of the wiretap? I mean, you could put these all over town where the target may be using the phone. If he leaves, shouldn't you stop listening?

Mr. COMEY. Well, you'd like to, because you don't want to waste the time, but the way--

Mr. SCOTT. Well, no, no. No, you're not wasting time. You're listening in to people you wanted to listen in to. I mean, because you're running the criminal investigation under the auspices of this less strict standard of foreign intelligence. Should you be able to take advantage of the criminal investigation with the lower standard by listening in, when the target isn't even there?

Mr. COMEY. Well, first of all, you'd better not, if you work for me, be conducting an investigation to obtain criminal information using FISA unless the following is true: Significant purpose, as you said, Mr. Scott, is to obtain foreign intelligence. And if there is an additional purpose to obtain criminal information, it's only criminal information related to foreign intelligence crimes, terrorism crimes or espionage crimes. That's what the FISA court of review has told us is the law, and so we'd better-we are following the law.

Mr. SCOTT. Well, we changed the law under the PATRIOT Act.

Mr. COMEY. Well, I've heard that said, but the court of appeals that governs this has said you may only collect information of foreign intelligence crimes if that's an additional purpose to the collection of foreign intelligence.

But the ascertainment-the way we collect intelligence information, we strike a balance. Because of the nature of the target, we stand off a little bit more. We collect, and don't necessarily review real-time what's being collected. And we account for that with the rules that govern the storage and dissemination of that information. And that's a balance that's been struck to recognize that criminal investigations are different, and I think it's a reasonable one.

When you drill down and look at the way we follow spies and follow terrorists, it would make it much more difficult to operate intelligence investigations if the agents were required to ascertain in every circumstance that the target is there at the bug or there on this particular phone.

Mr. SCOTT. Could you--

Mr. COMEY. Rather than collecting and minimizing it later, and strictly controlling what you do with U.S. person information. I'm sorry, sir.

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http://commdocs.house.gov/committees/judiciary/hju21654.000/hju21654_0f.htm