国会记录：2002年9月24日（参议院）第S9109-S9110 U.S.A.爱国者法案HATCH先生。主席先生，我要求一致同意该代表对于司法委员会所列出的参议员，我自己的一份联合声明中，参议员瑟蒙德，参议员凯尔参议员DeWine，参议员会议和参议员麦康奈尔的，在记录上打印。There being no objection, the material was ordered to be printed in the Record, as follows: The U.S.A. Patriot Act in Practice: Shedding Light on the FISA Process Prior to the U.S.A. PATRIOT Act of 2001, the Foreign Intelligence Surveillance Act of 1978 authorized the government to gather intelligence on agents of foreign powers with less stringent requirements than those required for surveillance of domestic criminals. The courts interpreted FISA as requiring that gathering foreign intelligence be the "primary purpose" of the surveillance of the foreign agent. See United States v. Duggan, 743 F.2d 59, 77 (2nd Cir. 1984); United States v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980), cert. denied, 454 U.S. 1154 (1982). This statutory regime worked well during the cold war for conducting surveillance on spies who were either foreign nationals employed by foreign government working under diplomatic cover at foreign embassies in the United States, or United States persons in this country who had been recruited to spy by foreign intelligence agencies. Both were clearly "agents of a foreign power," and gathering foreign intelligence on the activities of these targets was generally the "primary purpose," if not the only purpose, of the surveillance. The statutory regime did not work as well with respect to terrorists, who did not work for a foreign government, who often financed their operations with criminal activities, such as drug dealing, and who began to target American interests. It was more difficult to determine if such terrorists were "agents of a foreign power" and it was difficult for the government to keep the appropriate types of investigators, intelligence or criminal, involved in the operation. To determine what the "primary purpose" of a surveillance was, courts looked to what type of federal investigators were managing and directing the surveillance operation. If intelligence investigators managed and directed the surveillance, courts interpreted the primary purpose of the surveillance to be gathering foreign intelligence, thus requiring the government to comply with the less stringent FISA surveillance procedures. On the other hand, if criminal investigators managed and directed the surveillance, courts interpreted the primary purpose of the surveillance to be gathering criminal evidence, thus requiring the government to comply with the more stringent Title III wiretap procedures or to exclude the evidence from court. In short, the courts held that there could be only one primary purpose, and it was either gathering foreign intelligence or gathering criminal evidence. See, e.g., Truong, 629 F.2d at 912-13. The attacks on September 11, 2001, appeared to be orchestrated by the Al Qaeda, an international terrorist organization, with no embassies or diplomats, and whose operatives were loosely associated small groups who often engaged in criminal activities. The intelligence agencies and criminal investigators were unable to analyze and disseminate information needed to detect and prevent the September 11th attacks partly because of restrictions on their ability to share information and coordinate tactical strategies in order to disrupt foreign terrorist activities. It was apparent that the existing court interpretation of the FISA requirement of "primary purpose" impeded the sharing and coordination of information between criminal and intelligence investigators on foreign terrorists. Accordingly, Congress enacted the USA Patriot Act, in part, to replace the "primary purpose" requirement with a less stringent requirement, and to increase consultation and coordination efforts between intelligence and federal law enforcement officers to investigate and protect against foreign terrorist threats. See Sections 218 and 504. Three replacement standards were discussed for determining how large a purpose gathering foreign intelligence must be in order for a FISA warrant to issue: (1) a substantial purpose; (2) a significant purpose; and (3) a purpose. With multiple purposes in an investigation of an international terrorist, there could be only one "primary" purpose, but more than one "substantial", "significant," or "a" purposes. A "substantial" purpose of gathering foreign intelligence was viewed to be less than primary, but more than a de [[Page S9110]] minimis purpose. A "significant" purpose of gathering foreign intelligence was deemed to be less than "significant," but more than a de minimis purpose. And "a purpose" of gathering foreign intelligence was deemed to include a de minimis purpose. Congress chose the word "significant" purpose to replace the existing FISA requirement of a "primary" purpose. By this we intended that the purpose to gather intelligence could be less than the main or dominant purpose, but nonetheless important and not de minimis. Because a significant purpose of gathering foreign intelligence was not the primary or dominant purpose, it was clear to us that in a FISA search or surveillance involving multiple purposes, gathering criminal evidence could be the primary purpose as long as gathering foreign intelligence was a significant purpose in the investigation. See generally, e.g., United States v. Soto-Silva, 129 F.3d 340, 347 (5th Cir. 1997) (holding that a defendant who maintained a house for the "primary purpose" of taking care of a family member also maintained the house for a "significant purpose" of distributing marijuana). The Department of Justice confirmed the meaning of the change from primary purpose to significant purpose in a letter supporting the amendment sent on October 1, 2001, to the Chairmen and Ranking Members of the House and Senate Judiciary and Intelligence Committees. The Department stated that the amendment would recognize that "the courts should not deny [the President] the authority to conduct intelligence searches even when the national security purpose is secondary to criminal prosecution." The understanding of increased cooperation between intelligence and law enforcement was confirmed by voices in the House and the Senate in the days and weeks immediately following the new FISA standard. "This legislation authorizes the sharing of information between criminal investigators and those engaged in foreign intelligence- gathering. It provides for enhanced wiretap and surveillance authority. It brings the basis building blocks of a criminal investigation, pen registers and trap and trace provisions, into the 21st century to deal with e-mails and Internet communications." 147 Cong. Rec. H7196 (daily ed. Oct. 23, 2001) (statement of Rep. Sensenbrenner). "The core provisions of the legislation we passed in the Senate 2 weeks ago remain firmly in place. For instance, in the future, our law enforcement and intelligence communities will be able to share information and cooperate fully in protecting our Nation against terrorist attacks." 147 Cong. Rec. S11016 (daily ed. Oct. 25, 2001) (statement of Sen. Hatch). In addition, a news publication confirmed the general understanding on Capitol Hill during the consideration of the U.S.A. PATRIOT Act. The Congressional Quarterly reported separately on October 8, 9, and 23, 2001: "Under the measure, for example, law enforcement could carry out a FISA operation even of the primary purpose was a criminal investigation." Congr. Q., House Action Reports, Fact Sheet No. 107-33, at p. 3 (Oct. 9, 2001); see Cong. Q., House Action Reports, Legislative Week, at p. 3 (Oct. 23, 2001); Cong. Q., House Action Reports, Legislative Week, a p. 13 (Oct. 8, 2001). FISA may not be used "even if the primary purpose is a criminal investigation." Cong. Q. Billwatch Brief, H.R. 3162 (Oct. 23, 2001). It was our intent when we included the plain language of Section 218 of the U.S.A. PATRIOT Act and when we voted for the Act as a whole to change FISA to allow a foreign intelligence surveillance warrant to be obtained when "a significant" purpose of the surveillance was to gather foreign intelligence, even when the primary purpose of the surveillance was the gathering of criminal evidence. ____________________