has gone to another location. By using the same "practical" standard for wiretaps in terrorism situations as presently exists for a court order authorizing the multipoint interception of oral communications, the government would be better able to address the terrorist who travels from site to site to plan and execute his actions. The availability of this technique at a crucial moment in an investigation could prove to be the difference between preventing a terrorist attack and watching the aftermath on the evening news.

Question. Would the Administration's proposal eliminate any of the other protections presently contained in the roving wiretap statute?

Answer. The Administration's proposals would not eliminate any protections contained in the current statute. They are designed merely to conform the standard applicable to multi-point wiretaps to the one that governs multi-point microphone surveillance.

RESPONSES OF JAMIE S. GORELICK TO QUESTIONS SUBMITTED BY
SENATOR PATRICK LEAHY

Question. At a prior hearing of this Committee on April 27, you indicated that the Justice Department is in the process of revising or clarifying the Attorney General's Guidelines for domestic security/terrorism investigations. (a) What is the status of that process? (b) When do you expect that the clarifications of the Guidelines will be available?

Answer. The Department does not propose to seek any revisions or changes to the Guidelines at this time. Prior to the Oklahoma City bombing, however, the Criminal Division and the FBI had begun to prepare written advice for FBI field offices to remind agents of the intent of the Guidelines and the type and scope of investigations the Guidelines permit. We expect to distribute that advice to FBI field offices soon following consultation with interested members of Congress.

Question. Are there any provisions in law to compensate or pay restitution to the victims of terrorist acts that take place abroad, such as the 1985 murder of an American tourist aboard the Achille Lauro cruise liner, or the 1986 bombing of the Pan Am flight that killed 270 people?

Answer. There is only one provision which addresses this issue. Title VIII of the Omnibus Diplomatic Security and Anti-terrorism Act of 1986 (5 U.S.C. § 569 et. seq.) provides compensation for disability or death of government employees or their family members which was caused by terrorist action and was in connection with the employees' work for the government. 5 U.S.C. §5570. Other compensation-related language in the law for individuals other than government employees refers to rewards for information leading to the apprehension and conviction of terrorists. We are not aware of any provisions to provide compensation and/or restitution for American citizens not employed by the government who are victims of terrorist acts. Question. Have any roving wiretap applications have been denied because of a failure to demonstrate the target's purpose to thwart surveillance, and if so, how many have been denied? Please provide further information concerning major investigations that may have been foiled because of a failure to meet the "purpose" requirement of a roving wiretap.

Answer. There are on-going investigations we are not at liberty to discuss in which the government's inability to demonstrate an intent to thwart interception has limited our ability to seek a multi-point wiretap. Increasingly the government is faced with targets who use cellular phones-often "cloned" (with the cost of phone service being charged to unwitting legitimate subscribers) and change phones frequently to avoid paying phone bills for thousands of calls rather than to thwart government interception. In these situations, it may not be possible to infer the statutorily required intent to thwart interception; the Department has not approved submission to the court of such requests for multi-point interception.

Question. Senator Leahy has described a scenario in which investigative agents observe an alleged terrorist moving from phone booth to phone booth numerous times, and ask whether such conduct would be sufficient to satisfy the purpose [to thwart interception] requirement for a roving/multi-point wiretap.

Answer. As we stated, ante, in our response to Senator Thurmond's third question, it is the Department's position that a target's intent to thwart interception can be shown by a totality of circumstances. In the terrorist/pay-phone scenario above, such roaming phone usage, along with probable cause that the subject is engaged in terrorist activities and uses telephones to communicate with his co-conspirators, would likely be sufficient to support the Department's approval of a request to the court for an order for a multi-point wiretap.

While the burden of proving a subject's intent circumstantially can usually be met when he is using pay phones, the task is much more difficult when the subject uses

various cellular or cloned phones in order to avoid paying legitimate phone bills rather than to thwart interception.

Question. What felony offenses not currently contained in 18 U.S.C. §2516 as predicate offenses for the court-authorized interception of oral and wire communications would be included as part of the proposed amendment to section 2516 that would allow any federal felony to serve as a predicate offense where the government is able to show that such offense "may involve domestic or international terrorism"? Answer. Deputy Attorney General Gorelick's statement of May 25, 1995 contains an example of 18 U.S.C. §641 (theft of government property) that might be used as one of the presently non-designated predicate offenses for a wiretap where a high-level Department official certified that the situation involved potential domestic or international terrorism.

It is one of the hallmarks of our experience in this area that terrorists can always find new ways to wreak havoc on our society. In our view, it is important that we permit federal law enforcement authorities the flexibility to identify any predicate offense as the basis for a wiretap if linked to terrorism.

Question. The Administration bill would include the offense of "terrorism transcending national boundaries" as a new predicate offense supporting wiretap authority. Since this new terrorism offense encompasses both state and federal crimes, would this expand federal wiretap authority to investigate what are essentially state crimes?

Answer. This provision would not expand federal wiretap authority to investigate what are essentially state crimes. Federal authority would extend only to terrorist offenses involving violent acts or endangering human life, as defined, in violation of federal or state law. Because of terrorism's adverse impact both on federal government functions and responsibilities, as well as on interstate commerce, we believe there is a clear constitutional basis for federal jurisdiction and that such offenses are not "essentially state crimes."

Question. Would expanding the predicate offenses for the interception of wire and oral communications to any federal felony allow the FBI to intercept wire and/or oral communications as part of the investigation of the activities of a tax evader who is suspected of being a terrorist?

Answer. If the "terrorist" certification discussed above and in deputy Attorney General Gorelick's testimony of May 24, 1995 has been made, then the government could apply to the court for an order authorizing the interception of wire and/or oral communications of a terrorist who is a tax evader, although the use of the tax offenses as a "federal felony" predicate offense would require a nexus between the terrorist activities and the tax offenses. Should such a connection not exist, the government would have to establish some other federal felony tied to the terrorist activity that would warrant Title III interception.

Question. What additional technical defects in wiretap applications (an the execution of the court orders) would be excused under the Administration's proposal allowing use of Title III information where violations of Title III have been found not arising to bad faith, in contrast to current case law excusing defects where the government's good faith has been shown?

Answer. The Administration's proposed legislation would modify the statutory exclusionary rule of Title III to make it consistent with the ruling of the Supreme Court in United States v. Leon, 468 U.S. 897 (1984). Thus, the "bad faith" restriction would not differ from a Leon "good faith" exception; it would merely extend Leon to Title III. In Leon, the Court recognized that where an officer has acted in the objectively reasonable but erroneous belief that his conduct did not violate the law, suppression ordinarily will not further the deterrent purpose of the exclusionary rule. In such a case, the high cost of excluding probative, trustworthy evidence far outweighs the benefit of deterrence.

Question. The Administration is seeking authority to use pen registers and trap and trace devices in national security cases based on the same standard set forth in criminal law. Under current law, what does the FBI have to show to use such devices on the telephones of U.S. citizens in national security cases?

Answer. Electronic surveillance for foreign intelligence purposes, including investigations of international terrorist groups, is conducted under the Foreign Intelligence Surveillance Act (FISA). FISA's definition of electronic surveillance, unlike the analogous Title III definition for criminal investigations, includes pen registers and trap and trace devices. Thus, in order to use such devices against United States citizens in national security cases, there must be probable cause to believe that the target is an agent of a foreign power, as that term is defined in FISA (50 U.S.C. § 1801(b)(2)). The practical result is that pen registers can never be used to gather the facts necessary to meet the FISA predicate for electronic surveillance of the subject of an investigation.

On the other hand, the Electronic Communications Privacy Act recognizes that pen registers do not pose a threat to privacy of the same dimension as the interception of oral communications. As a result, that Act permits state and federal law enforcement agencies to use pen registers or trap and trace devices where they are relevant to on-going criminal investigations, a predicate well below that required for electronic surveillance.

Although the purposes and objectives of counterintelligence activities differ from those of law enforcement, national security investigations are equally vital to the nation's interest and security. The standard for use of this valuable investigative technique should not be more stringent than it is for criminal investigations.

Question. Under the Administration's proposal, the FBI will have its choice in national security cases of applying for pen register orders in regular district court or in the special FISA court set up to hear these classified matters. When will the FBI use the FISA court and when will the FBI use the district court?

Answer. The Administration's proposal does not contemplate applications being made to the FISA court. Accordingly, the FBI will always use a chief judge of a United States district court or judge or magistrate specifically designated by the chief judge.

Question. The FBI is granted broad authority under FISA to collect foreign intelligence information from foreign powers and foreign agents, with special protections for U.S. citizens so that citizens are not caught up in the sweep of the FBI's investigation.

For example, if the FBI conducts a counterintelligence investigation of a Russian diplomat visiting this country, and the diplomat meets with a U.S. citizen, the FBI would have to show the citizen was a foreign agent before a pen register could be authorized to be put on that citizen's phone. Under the Administration's proposal, all the FBI would have to show is that a pen register on that citizen's phone may be "relevant" to the on-going investigation of the diplomat to get authority for a pen register. Is this a much lower level of protection for U.S. citizens than that provided under current FISA law?

Answer. Under the Administration's proposal, the standard for pen registers or trap and trace devices would be identical to that now used in criminal investigations, i.e., relevance to an on-going investigation. Existing Attorney General Guidelines governing FBI foreign counterintelligence investigations do not permit the FBI to target a U.S. person with a pen register or trap and trace device unless that person is the subject of a comprehensive FBI investigation that meets the predicate of those Guidelines. Thus, in your hypothetical, the FBI could not seek authorization for a pen register or trap and trace device on the phone of the U.S. person you describe.

The exact standards for opening a counterintelligence investigation of a U.S. person are classified, but we would be pleased to brief cleared committee staff on the Guidelines and our plans to further clarify them if this provision becomes law. The Office of Management and Budget has advised that there is no objection to submission of this report from the standpoint of the Administration's program.

RESPONSES OF JIM E. MOODY TO QUESTIONS SUBMITTED BY
SENATOR ORRIN G. HATCH

Question 1. It is my understanding that current law already provides for emergency interceptions for 48 hours without a court order. In other words, in emergencies, the government can already intercept calls without prior approval for a specific location. In light of this, please describe a hypothetical case where an expanded authority to use a multi-point wiretap would be useful, and specifically explain how current law would not address your needs.

FBI Response. The emergency wiretap provision addresses a separate and distinct set of circumstances from the multi-point wiretap. The emergency wiretap is limited to emergency situations involving national security interests, organized crime activities and situations posing an immediate danger of death or serious physical injury where no time exists to obtain an interception order utilizing routine channels. These emergency wiretap situations are extremely rare and require personal authorization at the FBI Director and Attorney General level.

The multi-point wiretap addresses the interception of communications from a subject where the specific facility or premises cannot be identified in advance. The multi-point wiretap is approved by an FBI Assistant Director and a Department of Justice Assistant Attorney General. The emergency wiretap is much more restrictive and used more judiciously that the multi-point wiretap.

With the ushering in of a new age in telecommunications technology, many criminal targets have become increasing aware of the electronic surveillance capabilities

of federal law enforcement. In an effort to conceal their criminal activity, criminal targets are now taking proactive measures to avoid using the same location, telephone or cellular telephone to discuss and conduct criminal activity. One of the methods utilized by criminal suspects is the use of multiple cellular telephones obtained in the names of other individuals and/or to use "cloned" cellular phones. It is not uncommon for some suspects to utilize as many as six cellular telephones, commingling the use of these cellular telephones with "cloned" cellular telephones. (See FBI response to Question #3 for description of cloning.)

The use of conventional electronic surveillance techniques to target individuals or criminal organizations who utilize cellular telephones in the manner described above, would involve the time consuming and continuous process of submitting new applications to the issuing judicial authority every time the targeted suspect changed cellular telephones. This process would inevitably cause gaps in the electronic surveillance and the probable loss of valuable information concerning ongoing criminal activity.

Question 2. Arguably, the proliferation of cellular communications devices make it more likely than 20 years ago that a criminal suspect will be using more than one phone to communicate. What is your view of the argument that expanded authority to conduct multi-point wiretaps, and emergency wiretaps, is needed because of changes in technology?

FBI Response. Since the criminal element's discovery of cellular telephones, they have been utilized extensively in an attempt to thwart interception effort by law enforcement. In today's cellular telephone technology, new telephone numbers can be obtained frequently (often every week), which would completely neutralize law enforcement attempts to intercept court-authorized conversations if the specific telephone number had to be identified in each wiretap affidavit.

Additionally, there have been tremendous changes in cellular telephone technology in the recent past which have been made available to the public, including the criminal element. These changes have greatly influenced the manner in which some criminal activity is carried out by criminal suspects. Just as advances in technology have made our lives and our ability to accomplish certain tasks easier, it has also afforded the criminal element with the same advantages. For example, the technology used to program cellular telephones with individual electronic serial numbers is now being used by criminals to identify the electronic serial numbers of legitimate cellular telephone users. By using a specially adapted scanner, criminals station themselves at interstate overpasses or busy interstate exchanges and identify the electronic serial numbers of unsuspecting, legitimate cellular telephone users. Once the serial numbers have been identified, the numbers are programmed into another cellular telephone and the criminal uses the reprogrammed telephone to conduct criminal activity free of charge until such item as the legitimate owner of the electronic serial number receives his bill. These types of cellular telephones are called "cloned" cellular telephones or "private" cellular telephones.

Changes in technology have enabled criminal suspects to utilize the types of cellular telephones described above in a variety of different criminal endeavors. Federal investigators must be able to change and/or adapt their investigative techniques to keep pace with increasing changes in technology and the use of this technology in criminal endeavors. Expanded authority to conduct multi-point wiretaps is essential given that many individuals criminals and organized criminal enterprises routinely change their cellular phone numbers to deter law enforcement interception.

Question 3a. Can you describe a hypothetical case, say a major drug ring, where a ringleader acquires a new batch of cellular telephones. Assume the DEA or the FBI already has a valid Title III order against the organization.

b. How difficult is it for that law enforcement agency to get a wiretap order on those phones, considering that they already have a valid wiretap order on the organization's other phones?

FBI Response. It is easy to conceive of a large scale Colombian drug distribution organization equipping members of its various cells with a number of cellular telephones in an effort to achieve a reasonable level of communications security. In the drug trade there exist so-called "facilitators" who provide cellular telephones services as well as other services such as beepers, mail drops, and apartment rentals to facilitate large scale drug distribution. Where the DEA or the FBI already has implemented Title III coverage on one set of telephone facilities it frequently occurs that the targets resort to the use of cellular telephones. This is frequently associated with the targets detecting indications, such as arrests, seizures, or observation of surveillance activity, that their communications security has been compromised.

Obtaining authority to tap the new cellular telephones would be analogous to obtaining so-called "spin off" authority for conventional telephone facilities. Investiga

tion would have to be conducted to develop probable cause to believe that target subjects are utilizing the cellular telephones to commit predicate violations. As a practical matter this probable cause is frequently provided by the pre-existing Title III coverage. It is, however, still necessary to produce new affidavits, applications, and orders for the new cellular telephones and then obtain Department of Justice and agency authority to pursue judicial authorization. This causes a period of time without electronic surveillance coverage.

Question 4. Please explain what standard would be applied before the FBI or some other agency would have to have that a particular phone is actually being used by the target of the interception.

a. Is it the Department's position that the target would have to be under visual surveillance to confirm that the government is intercepting the right person?

FBI Response. The FBI's position is that visual identification is required until such time as monitors and/or technical methods can identify the targeted interceptees. For example, in the case of a public telephone booth that is being used by the subject of a multi-point wiretap, the most direct confirmation that the subject is currently using the phone is through visual surveillance. However, other methods of confirmations are available such as pen registers, toll records, informant information, and pager interceptions. Additionally, technological methods are available to identify cellular facilities without visual identification.

b. If visual surveillance is required, could you please comment on the concerns of some that such a strict so-called "eyeball" standard would render your proposal worthless in cases where informant information is available that a criminal has switched to a new phone, but where there is no "eyeball" on the target?

FBI Response. In the case where a target is utilizing several different fixed locations, such as, multiple public telephones, the "eyeball" standard would raise the difficulty level of obtaining and conducting a multi-point electronic surveillance, but would not make it insurmountable. However, in the case where a target is using "cloned" cellular phones, where the subject could be using the same phone and just changing the number every few weeks, or is using multiple cellular phones the "eyeball" standard would render the use of electronic surveillance almost impossible. This is due to the fact that it would be impossible to surveil a target everywhere he could use a cellular phone. In these instances, the standard used is to include the subject's use of multiple phones in the affidavit and then use a lesser standard than an "eyeball" contact.

RESPONSES OF JAMES X. DEMPSEY TO QUESTIONS SUBMITTED BY

SENATOR JOSEPH R. BIDEN, JR.

EXCLUSIONARY RULE MODIFICATION

Question. Do you believe that the Title III statutory exclusionary rule needs to be changed?

Answer. No. the rule was carefully crafted by Congress in 1968 as part of a balanced regime intended to both serve law enforcement interests and protect privacy, and it has fulfilled those goals in the ensuing years. The courts have not applied the suppression rules in Title III in a mechanical or technical way. To the contrary, the courts already excuse good faith or technical defects in a warrant. The Supreme Court has held that, under §2518(10)(a), suppression is required only for "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 Ú.S. 505, 527 (1974). In determining whether suppression is warranted, courts must examine whether the violated statutory requirement occupies "a central, or even functional, role in guarding against unwarranted use of wiretapping." United States v. Chavez, 416 U.S. 562, 578 (1974). The courts have consistently refused to suppress wiretap evidence for technical defects in orders. United States v. Moore, 41 F.3d 370, 374–75 (8th Cir. 1994). In Moore, the court expressly relied on Leon. 41 F.3d at 376.

Question. If yes, would you prefer to see a Leon “good faith” or a “bad faith” standard?

Answer. Neither approach needs to be written into the statute.

Question. What difference, if any, do you see between a "good faith” and “bad faith" standard?

Answer. A "bad faith" standard would render ineffective the carefully balanced protections in the federal wiretap law. A “bad faith" standard as proposed by the Administration would apparently require the citizen to show bad faith by the law enforcement officers, a usually impossible undertaking. It might require proof of the