[Senate Hearing 108-803]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-803

A REVIEW OF COUNTER-TERRORISM LEGISLATION AND PROPOSALS, INCLUDING THE 
                    USA PATRIOT ACT AND THE SAFE ACT

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 22, 2004

                               __________

                          Serial No. J-108-96

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman
CHARLES E. GRASSLEY, Iowa            PATRICK J. LEAHY, Vermont
ARLEN SPECTER, Pennsylvania          EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
LARRY E. CRAIG, Idaho                CHARLES E. SCHUMER, New York
SAXBY CHAMBLISS, Georgia             RICHARD J. DURBIN, Illinois
JOHN CORNYN, Texas                   JOHN EDWARDS, North Carolina
             Bruce Artim, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director




                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Feingold, Russell D., a U.S. Senator from the State of Wisconsin.    24
    prepared statement...........................................   181
Feinstein, Hon. Dianne, a U.S. Senator from the State of 
  California.....................................................   183
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   187
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona..........    33
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     9
    prepared statement...........................................   193
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York...........................................................    39
Session, Hon. Jeff, a U.S. Senator from the State of Alabama.....    42

                               WITNESSES

Barr, Hon. Bob, former Representative in Congress from the State 
  of Georgia.....................................................    48
Collins, Daniel P., Munger, Tolles and Olson, LLP, Los Angeles, 
  California.....................................................    50
Comey, James B., Deputy Attorney General, Department of Justice, 
  Washington, D.C................................................    14
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho.....     3
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     6

                         QUESTIONS AND ANSWERS

Responses of Bob Barr to questions submitted by Senator Hatch....    57
Responses of Daniel Collins to questions submitted by Senator 
  Hatch..........................................................    65
Responses of James Comey to questions submitted by Senators Hatch 
  and Leahy......................................................    71
Additional information in response to questions regarding section 
  213 of the USA PATRIOT Act.....................................   109

                       SUBMISSIONS FOR THE RECORD

Adams, Daniel, Film Director and Writer, West Barnstable, 
  Massachusetts..................................................   116
American Civil Liberties Union, Legislative Media Relations Unit, 
  Washington, D.C., article......................................   118
American Jewish Committee, Washington, D.C., statement...........   119
Ashley, Carol, Beverly Eckert, and Mary Fetchet, Members, Family 
  Steering Committee for the 9/11 Commission, letter.............   121
Barr, Hon. Bob, former Representative in Congress from the State 
  of Georgia, Atlanta, Georgia, prepared statement...............   122
Board of County Commissioners, Collier County, Florida, 
  resolution.....................................................   137
Center for Democracy & Technology, Washington, D.C., coalition 
  letter.........................................................   138
Collins, Daniel P., Munger, Tolles and Olson, LLP, Los Angeles, 
  California, prepared statement.................................   140
Comey, James B., Deputy Attorney General, Department of Justice, 
  Washington, D.C., prepared statement and letters...............   153
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho, and 
  Hon. Richard J. Durbin, a U.S. Senator from the State of 
  Illinois, joint letter.........................................   170
Drug Enforcement Administration, Office of National Drug Control 
  Policy, Karen Tandy, Administrator, and John Walters, Director, 
  Washington, D.C., letter.......................................   177
Fraternal Order of Police, Chuck Canterbury, National President, 
  Washington, D.C., letter.......................................   185
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, letter..........................................   190
League of Women Voters of the United States, Kay J. Maxwell, 
  President, Greenwich, Connecticut, letter......................   192
Moschella, William E., Assistant Attorney General, Department of 
  Justice, Office of Legislative Affairs, Washington, D.C., 
  letters and attachment.........................................   197
National Association of Police Organizations, resolution.........   209
National Sheriffs' Association, resolution.......................   210
National Troopers Coalition, Casey Perry, Chairman, Green Bay, 
  Wisconsin, resolution..........................................   212
Pennsylvania Chiefs of Police Association, Edward W. Carroll, 
  Jr., President, resolution.....................................   213
Perry, Patricia J., Mother of NYPD Officer John William Perry, 
  Esq., letter...................................................   214

 
A REVIEW OF COUNTER-TERRORISM LEGISLATION AND PROPOSALS, INCLUDING THE 
                    USA PATRIOT ACT AND THE SAFE ACT

                              ----------                              


                     WEDNESDAY, SEPTEMBER 22, 2004

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 9:35 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kyl, Sessions, Craig, Cornyn, 
Chambliss, Leahy, Kennedy, Feinstein, Feingold, Schumer and 
Durbin.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    Chairman Hatch. Good morning, and welcome to today's 
hearing. This Committee must be vigilant in overseeing the 
legal tools Congress gives to the Federal Government to protect 
the American people from acts of terrorism. Senator Leahy, the 
ranking Democratic member of the Committee, and I, along with 
all members of the Judiciary Committee, have worked together in 
a bipartisan fashion to review the adequacy of the legal tools 
available in the war on terrorism. During the 108th Congress, 
the Senate Judiciary Committee has remained active in its 
oversight and evaluation of terrorism issues. We have held over 
25 terrorism-related hearings in this Congress.
    We have just marked the third anniversary of the September 
11 attacks on our country. That somber anniversary and the 
recently released 9/11 Commission report remind us that the 
stakes in this war on terror are immense and that the enemy we 
face is ruthless and evil. We are also reminded that the 
terrorist threat to our country is as real today as it was back 
in September of 2001. Failure to grasp this reality would be a 
dangerous misunderstanding of our enemy's plans.
    Only weeks ago, we all witnessed the horror of parents in 
Beslan, Russia, who rushed to the school, only to learn that 
their children were being held hostage. Later, watching some of 
the children, clad only in their underwear, escape death, 
seeing the covered bodies of the many who could not escape and 
viewing the stunning videotape of the terrorists who flaunted 
explosives before their helpless victims, provided an 
unfiltered view of the inhumane enemy we are facing.
    While we cannot be ruled by our fears, events like these 
must never be far from our minds as we carry out our oversight 
of the war on terror. We must do all we can to make sure that 
we do not face another September 11 attack or Beslan-like 
tragedy in this country.
    The USA PATRIOT Act has been one of the key legislative 
tools in our fight against terrorism. As the 9/11 Commission 
report noted, quote, ``Many of the act's provisions are 
relatively non-controversial, updating America's surveillance 
laws to reflect technological developments in a digital age. 
Some executive actions that have been criticized are unrelated 
to the PATRIOT Act. The provisions in the act that facilitate 
the sharing of information among intelligence agencies and 
between law enforcement and intelligence appear, on balance, to 
be beneficial. Because of concerns regarding the shifting 
balance of power to the government, we think that a full and 
informed debate on the PATRIOT Act would be healthy,'' unquote.
    I hope today's hearing advances this debate in a 
constructive fashion. As we examine the PATRIOT Act and the 
proposals to alter it, I frequently look to see if the tools we 
seek in the war on terror are already available in the 
narcotics or organized crime context.
    For example, the criminal law has long permitted 
investigators to obtain business records by grand jury subpoena 
if the records may be relevant to a criminal investigation. The 
PATRIOT Act adopted a similar relevance standard for 
investigators who seek records via a FISA, or Foreign 
Intelligence Surveillance Act, court order in terrorism cases.
    One proposal we will hear about today, the SAFE Act, would 
require a higher standard in terrorism cases. To obtain 
business records, the SAFE Act would require the Government to 
show specific and articulable facts to believe that the person 
to whom the records pertain is a foreign power or agent of a 
foreign power, a much higher standard than showing the records 
may be relevant to an investigation.
    I am skeptical about efforts to impose a greater burden on 
the Government in terrorism cases than in less serious, but 
nevertheless significant criminal cases. It seems to me that we 
should not make it any harder to go after suspected terrorists 
than after suspected drug dealers.
    Another example that we will hear about today is delayed 
notification search warrants. Delayed notice warrants have been 
allowed in criminal cases for at least 15 years. The PATRIOT 
Act codified this authority, permitting delay if the Government 
satisfies an Article III judge that delay is necessary in 
enumerated instances; that is, a Federal district court judge, 
or it could be under certain circumstances a Federal circuit 
court judge.
    The SAFE Act would forbid delay in some circumstances 
previously allowed by the courts, including those instances 
where notice would result in the intimidation of witnesses or 
would seriously jeopardize an investigation. Again, I have to 
say I am highly skeptical about the need to limit the use of 
tools that have been available to criminal investigators for 
years. If delayed notification warrants are good enough for 
drug dealers, white-collar criminals and organized crime 
syndicates, I will have to be convinced that they should not 
apply to terrorism investigations.
    As we move forward, many issues must be weighed: how best 
to preserve our traditional civil rights while strengthening 
our ability to disrupt terrorist plots; whether we should 
reconcile our mass transportation laws to ensure that 
terrorists who may attack a train are treated the same as those 
who may attack a school bus; whether our laws adequately punish 
those who possess missile systems designed to destroy aircraft; 
and whether we should update a host of other anti-terrorism 
laws. In all these areas, we must remain innovative in 
examining our terrorism laws and stay a step ahead of the 
terrorists.
    Let me be clear. I certainly do not question the motives of 
anyone who wants to alter the PATRIOT Act. However, I do 
disagree with the facts cited to support many of the changes 
that have been advocated to date. I am especially skeptical 
about changes that would leave our counter-terrorism 
investigators less well equipped than their criminal 
investigator counterparts.
    I look forward to hearing from our witnesses on how we can 
continue to move forward to achieve our shared goal of making 
America safer while retaining our cherished civil liberties. We 
are pleased today to have two significant members of this 
Committee to present their views on some of the changes they 
would like to see in the PATRIOT Act. I respect, naturally, 
both of these fine gentlemen--Senator Craig, from Idaho, who 
has worked very, very diligently and in a very, very effective 
way on this Committee, and Senator Durbin, who is one of the 
leaders on the Committee on his side of the table, and 
certainly a very bright man who has a tremendous knowledge of 
law.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    So we are grateful to have both of you here. We will look 
forward to hearing your testimony. I guess we will start with 
you, Senator Craig.

STATEMENT OF HON. LARRY CRAIG, A U.S. SENATOR FROM THE STATE OF 
                             IDAHO

    Senator Craig. Well, Mr. Chairman, thank you very much. I 
am pleased to be at the table with my counsel today, Senator 
Dick Durbin, from the great State of Illinois. I want to thank 
you for convening this important hearing on--
    Chairman Hatch. That automatically gives me some real pause 
here that you are with your counsel.
    Senator Craig. I am here with my counsel, Mr. Chairman. 
This is the Judiciary Committee and I do want the arguments to 
be clear and to the point.
    I do want to thank you especially today for convening this 
hearing on the USA PATRIOT Act and the SAFE Act. I welcome the 
distinguished panelists who are coming after us. I appreciate 
their being here and look forward to their testimony.
    A recent news article described me as a ``rock-ribbed'' 
conservative Republican stalwart from Idaho. I liked that. 
Accordingly, I am a supporter of this President and the PATRIOT 
Act. However, that does not mean there is not room for 
legitimate debate about civil liberties in the war on terror 
and during an election year.
    It is not pandering to hysteria to respond to the 
legitimate concerns that I and my constituents and the 
cosponsors of the SAFE Act and their constituents have 
regarding certain PATRIOT provisions that pose recognized risks 
to American civil liberties. It is law-making, and my 
responsibility as a U.S. Senator is just that.
    Several provisions in the PATRIOT Act will sunset in 2005. 
The SAFE Act clarifies and amends in minor ways the PATRIOT 
Act's most troubling provisions. This bill is my bid to open 
debate on this important and very present issue so that we are 
better prepared to deal with the PATRIOT Act a second time 
around.
    But many have distorted this effort, Mr. Chairman. 
Initially, critics said that any attempt to amend the PATRIOT 
Act was based on misinformation. It simply is irresponsible to 
say that anyone who finds imperfections in a 350-page law does 
so only because they are misinformed.
    The Department of Justice itself, in a hearing on the 
PATRIOT Act's material support statute earlier this year, 
suggested ways in which the material support statute could be 
improved. That is the Department of Justice asking for change 
in the PATRIOT Act.
    The President, in a speech in Hershey, Pennsylvania, in 
April, recommended changes in the PATRIOT authorities in the 
form of administrative subpoenas and presumptive denial of bail 
in terrorist cases and allowing the death penalty for terrorist 
crimes that result in death.
    The Department of Justice followed suit with the Tools to 
Fight Terrorism Act of 2004 and other legislative proposals 
that would change or add to the law enforcement authorities 
provided for in the PATRIOT Act. It seems that the PATRIOT Act 
is not a perfect law, seen through the eyes of the Justice 
Department.
    Critics also said that any attempt to amend the PATRIOT Act 
are legislative proposals based on fear of potential abuses 
rather than actual abuses under current law. This is a 
Government of laws, Mr. Chairman, not men. While I trust the 
men and women of this administration--and I do trust them--I do 
not know who comes next or 10 years or 20 years from now.
    When I am told that in the case of several powerful 
provisions of the PATRIOT Act, law enforcement can, but will 
not use them in a particular way, I grow skeptical, and so do 
my constituents. When the Department of Justice states on its 
website that terrorism investigators have no interest in the 
library habits of ordinary Americans and that we must simply 
trust that they do not, that is not the way this Government 
works before, during or after a war on terrorism. I therefore 
see the need to proceed not with fear but with caution, not 
with hysteria but with reasonable and sound logic.
    More recently, I have heard some say that there has been no 
informed debate on the PATRIOT Act, no informed debate on the 
PATRIOT Act. Mr. Comey, a panelist before the Committee today, 
testified at the April 14 Judiciary hearing entitled 
``Preventing and Responding to Acts of Terrorism: A Review of 
the Current Law,'' that there has been ``no real informed 
public debate on the PATRIOT Act over the last 18 months to 2 
years. Instead, we have found ourselves in a situation where 
town councils across the country have voted to repeal the 
PATRIOT Act and where people stand around at dinner parties and 
nod when someone talks about how awful the PATRIOT Act is''. It 
was also reiterated that it is important that we have the 
discussion now, and for that I thank you, Mr. Chairman. I do 
believe this is the beginning of what needs to be a very 
thorough and open discussion.
    Since the passage of the PATRIOT Act in 2001, lawmakers, 
constituents, interest citizens groups and various associations 
and organizations on the local, State and national level have 
met, conducted public forums, attended conference events, 
written letters, issued statements and drafted legislation on 
the PATRIOT Act and related issues.
    They have said that now is the time to correct some of the 
provisions of the USA PATRIOT Act by passing the SAFE Act. The 
American Conservative Union has agreed. The Gun Owners of 
America have agreed. The Free Congress Foundation has agreed. 
The ACLU has agreed. The Center for Democracy and Technology 
has agreed. The League of Women Voters has agreed. The 
Electronic Frontier Foundation has agreed. The American 
Booksellers Foundation for Free Expression has agreed. The 
American Library Association has agreed.
    I assure you it has been discussed and continues to be 
discussed not here in Congress to any great degree, but all 
over this country. But the Department of Justice is not 
discussing it. As my colleague, Senator Feinstein, pointed out 
in last week's hearing, after 3 years we have received no 
reports on the sunsetted provisions. Instead, what we have 
received is a veto threat.
    Instead, the Department of Justice is requesting additional 
law enforcement authorities in the form of administrative 
subpoenas, FISA warrants for lone wolf terrorists, automatic 
provisions for confidential requests for Classified Information 
Procedures Act protection, and the list goes on.
    Instead, they have said that if people find the space in 
American life to have an actual informed understanding of the 
PATRIOT Act, they will realize that it is so smart, and I want 
to emphasize so ordinary. ``Ordinary'' with respect to roving 
wiretaps would be to extend the criminal wiretap authority to 
intelligence cases rather than creating a John Doe wiretap, 
which does not require law enforcement to specify the target of 
the wiretap or the place to be wiretapped.
    ``Ordinary'' with respect to sneak-and-peek warrants would 
be to reserve their use for a limited set of circumstances in 
which there is statutorily mandated judicial oversight. 
``Ordinary'' with respect to FISA orders for personal records 
would be to preserve the requirement that the FBI state 
specifically articulable facts showing reason to believe that 
the person to whom the records related was a terrorist or a 
spy, rather than reducing this to merely requiring the FBI to 
clarify that the records are sought for an international 
terrorism or intelligence investigation--a standard even lower 
than relevance.
    ``Ordinary'' with respect to the national security letters 
for personal records would be to clarify that a library is not 
a wire or communications service provider, while still allowing 
the FBI to obtain the same information regarding e-mails or 
other communications that took place at libraries by issuing an 
NSL to the library's wire or communications service provider.
    And, lastly, ``ordinary'' with respect to sunsetting 
Sections 213, 216, 219 and 505 of the PATRIOT Act would be to 
ensure that there is a future discussion about the nature and 
use of some of the most controversial provisions of the law.
    The SAFE Act would restore the ordinary and necessary tools 
to fight a successful war on terrorism and eliminate those 
extraordinary PATRIOT powers that pose a threat to American 
civil liberties.
    I want to show you something that is posted on the wall at 
the Boise, Idaho, library. The sign says, ``Notice: Under 
Section 215 of the Federal U.S. PATRIOT Act, records of your 
Internet computer use and/or records of the books and other 
materials you use or borrow from this library may be obtained 
by Federal agents. The Federal law prohibits library staff from 
informing you if records about you have been obtained by a 
Federal agent.''
    That is the sign of Big Brother, and, Mr. Chairman, that is 
the sign that should come down from all of America's library 
walls. That is why I am here today, that is why my colleague is 
here today, and that is why the SAFE Act is a part of what must 
become a new and reauthorized PATRIOT Act.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Senator Durbin, we will turn to you now.

 STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE 
                       STATE OF ILLINOIS

    Senator Durbin. Thanks, Mr. Chairman, and thank you for 
keeping your word. You promised us that you would have this 
hearing and the SAFE Act would be discussed, and we appreciate 
it very much, and the opportunity to testify.
    Chairman Hatch. Let me say I always try to keep my word, 
and I appreciate that.
    Senator Leahy is going to defer a statement until after you 
finish yours. So I just want people to realize that I am not 
being discourteous to my counterpart on the Committee.
    Senator Leahy. You never are.
    Chairman Hatch. Senator Durbin.
    Senator Durbin. Thank you.
    I am sure that anyone who follows C-SPAN is trying to 
figure out why Senator Durbin would be sitting next to Senator 
Craig at the same table cosponsoring a piece of legislation.
    Chairman Hatch. It is a puzzlement.
    Senator Durbin. This is truly an odd couple on Capitol 
Hill.
    Chairman Hatch. It may be the other way around. People are 
wondering why in the world is he sitting next to you.
    [Laughter.]
    Senator Durbin. Well, it could be.
    Senator Craig. I have already clarified that, Mr. Chairman.
    Chairman Hatch. Yes, I think you did.
    Senator Craig. He is my counsel.
    Senator Durbin. Senator Sununu, who is a cosponsor of this 
legislation, when he looked at the lead sponsors said it tells 
us one of two things, either that this is truly a bipartisan 
attempt or that one of these Senators hasn't read the bill.
    I would tell you that we have read the bill. We understand 
the SAFE Act and it is a bipartisan effort, and it is amazing 
what we have brought together in this effort. Whether you are 
on the left end of the political spectrum or the right end of 
the political spectrum, you are going to find support for the 
SAFE Act.
    There is one thing that binds us together in the U.S. 
Senate, only one, and that is our sworn allegiance to the 
Constitution. I think Senator Craig may view some portions of 
it a little differently than I do, but we understand the basic 
responsibility that we face here, and that is why we introduced 
this bill.
    We start with the same premise both from the Democratic and 
Republican side, and that is that we have basic rights and 
liberties to privacy, for example, in this country and the 
government has to make the case when it takes away your rights 
and liberties. If you start with that premise, as the 9/11 
Commission did, then I think you can understand the SAFE Act. 
It is what we are all about.
    I would like today to ask that we call a truce in the war 
over the PATRIOT Act. Almost since the day that it was passed, 
supporters and critics have been engaged in trench warfare. 
Some people have resorted to falsehoods and scare tactics. I 
know everyone on this Committee rejects those tactics, and I 
think we should move beyond them.
    There are some things that I think we can basically agree 
on. First, the PATRIOT Act is a deeply misunderstood law. It is 
a really complicated, highly technical statute, 130 pages long. 
Most Americans haven't read it; and many Members of Congress 
may not have had the time to read it.
    One critic said trying to read the PATRIOT Act and 
understand it is like standing outside a library in the middle 
of the night listening to the mice chewing on the books and 
trying to figure out what the contents of the books happens to 
be. That is not a misstatement or an over-statement, I think, 
when you consider some of the vague references and technical 
references in the PATRIOT Act.
    Many policies people attribute to the PATRIOT Act have 
nothing to do with it. Let me give you an example: the 
detention of U.S. citizens an enemy combatants. I have been 
critical of this policy, but let's be clear. That doesn't have 
a thing to do with the PATRIOT Act.
    Chairman Hatch. Right.
    Senator Durbin. Second, the fact that the PATRIOT Act is 
misunderstood does not mean that public concerns about civil 
liberties can be dismissed. As I said earlier, if you start 
with the premise that we have certain rights and liberties, 
God-given, and that the government has to justify taking away 
those rights, this is truly a legitimate inquiry as to whether 
the PATRIOT Act went too far.
    Third, the PATRIOT Act shouldn't be a political football. 
Let's be clear. The PATRIOT Act sunset clause applies to less 
than 10 percent of the law, only 15 of the 158 sections. These 
provisions are scheduled to expire on December 31, 2005, over 
15 months from now. We picked that date, which is not during an 
election year, for good reason. We wanted to keep the PATRIOT 
Act out of politics.
    Let me at this time salute you, Mr. Chairman, as well as 
Senator Leahy. I remember how the PATRIOT Act was born. It was 
a bipartisan effort at a very worrisome time in America's 
history, and I thought the two of you did your level best to 
come together and present something to us which was bipartisan, 
but to provide within the law sunset provisions so if we made a 
mistake in our fear or in our haste, we could correct it.
    Fourth, Congress should debate the PATRIOT Act thoroughly 
before reauthorizing it. I think that is something that goes 
without saying.
    Fifth, as I said earlier, the burden of proof for retaining 
the expanded powers of the Government under the PATRIOT Act is 
on the Government, not on the American people. The American 
people should not have to prove that they have a right to 
privacy. The American people should not have to prove that 
before their Government can search their homes or tap their 
phones, the American people have the responsibility of 
establishing why they shouldn't be tapped.
    Here is where we disagree, and our debate over the PATRIOT 
Act is really limited to a small number of controversial 
provisions. We understand the PATRIOT Act was passed at a time 
of national crisis. The White House came to Congress and asked 
us to pass it to give our Government more power to protect us 
from another 9/11. As I said earlier, members on both sides of 
the aisle worked to improve it.
    I want to at this point really salute one of my colleagues 
who is here today, and that is Senator Feingold. During the 
course of the debate on the PATRIOT Act, I thought he offered 
amendments on the floor of the Senate which were thoughtful 
amendments which really get to the heart of some of the issues 
that are addressed in the SAFE Act. It was not an easy time to 
offer those amendments and to suggest that the Government was 
going too far in the passage of the PATRIOT Act.
    Senator Feingold, thank you for your courage and your 
leadership. I think, frankly, more of us should have been more 
carefully attuned to some of your arguments during that 
particular moment. Mr. Chairman, there is no perfect law, with 
the possible exception of the Ten Commandments and several laws 
that you have authored.
    [Laughter.]
    Chairman Hatch. Well, it is nice to have recognition of 
that.
    Senator Durbin. Thank you.
    Now, with almost 3 years of hindsight, isn't it appropriate 
that we ask some important questions? I think Senator Craig has 
really gone to the specific issues and we can point to a broad 
coalition of groups that ask the very same questions.
    When the American Conservative Union and the American Civil 
Liberties Union are standing together asking these questions, I 
think it points to the legitimacy of what we are about with the 
SAFE Act.
    Unfortunately, the SAFE Act has been caught up in the war 
over the PATRIOT Act. I can't remember a time in over 20 years 
that I have been on Capitol Hill when any administration has 
announced in advance when a bill was introduced that they were 
going to veto it, but they did on the SAFE Act. Before there 
was a single hearing, before there was a single amendment 
offered, the administration announced the President will veto 
this bill. I think that is a singular distinction. I don't know 
if it is a singular honor, but I can't recall this ever having 
occurred.
    The administration said this bill would eliminate some 
PATRIOT Act powers and, quote, ``make it even more difficult to 
mount an effective anti-terror campaign than it was before the 
PATRIOT Act was passed.'' These objections from the 
administration are just not accurate.
    The SAFE Act does not repeal one provision in the PATRIOT 
Act. It doesn't amend pre-PATRIOT Act law. It retains the 
expanded powers created by the PATRIOT Act, but it places 
important limitations. Senator Craig has spelled them out.
    When it comes to roving wiretaps, it would eliminate the 
John Doe roving wiretap. It would say to the Government, 
specify the person or the phone that you are going to tap. That 
is all.
    On sneak-and-peek searches, it would say that after a 
period of time, 7 days, the Government would notify you that 
your home has been searched. And we put provisions in there for 
exceptions. For example, if someone's life is at stake; 
evidence is about to be destroyed. There are exceptions to that 
notification.
    When it comes to the library issue, if you had been home 
and met with librarians to discuss this issue, you understand 
why the Boise Public Library has put this notice up and why 
many libraries across America are warning Americans that what 
they do in a public library may be compromised by the PATRIOT 
Act. That is an indication to me that we need to sit and take a 
look at this.
    These are not wild-eyed people. These are folks in 
libraries who are committed to some of the most basic 
principles and freedoms of America--the right to privacy. When 
they are this concerned, as has been expressed by Senator Craig 
and many others, we owe it to them to step back and take 
notice.
    Mr. Chairman, I am not suggesting our SAFE Act is perfect. 
Senator Craig and I are open to suggestions. I hope this 
Committee will be willing to work with us in a good-faith, 
bipartisan effort to really come up with a modification of the 
PATRIOT Act which does not compromise national security, but 
preserves and protects the rights and liberties of the people 
of this country.
    Thank you, Mr. Chairman.
    Chairman Hatch. Well, thank you, and I am convinced that 
both of you are very sincere in this effort and we will 
certainly work with you to see if there is some way we can 
resolve the differences that we have over this.
    I would like to get to General Comey, so why don't you 
folks come up on our dais and we will turn to Senator Leahy, 
our Democrat leader on the Committee.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Thank you, Mr. Chairman, and I will try not 
to hold up the Deputy Attorney General.
    After all, he is one of the few people in Government who is 
taller than I am and I wouldn't want to do that.
    I want to just open by stating my respect and admiration 
for both Senator Durbin and Senator Craig. I remember different 
times I have worked with Senator Durbin. He has so carefully 
and consistently gone through each piece of legislation here 
and worked on it.
    Sometimes we have agreed, sometimes we have disagreed. I 
have always been influenced, though, by his reasoning and his 
work on that.
    Senator Craig and I worked together when I was the 
Democratic leader of the investigation that happened on Ruby 
Ridge. I couldn't help but think, in speaking with Senator 
Craig at that time and with many of his constituents, of some 
of the concerns that they expressed about the Government's 
involvement in their life, or even more specifically the 
Government's involvement in their privacy. It would be easily 
interchangeable with the people in Vermont, a State which 
greatly, greatly holds to its privacy.
    About the only article ever written about me that I 
actually saved and framed was a sidebar to a major New York 
newspaper that sent somebody up to do a profile of me. The 
sidebar talks about the little town I live in. I live on a dirt 
road, in an old farmhouse, with a farm family that has known me 
since I was a child next door. They hay the fields and what 
not.
    The article went almost exactly like this. On Saturday 
morning, a New York reporter pulls up in a New York-licensed 
car. An old farmer is sitting on the porch, and he says does 
Senator Leahy live up this road? The farmer looked up and said 
are you a relative of his? He said no. He said, well, are you a 
friend of his?
    Well, not really. Is he expecting you? No. The farmer looks 
him right in the eye and says never heard of him. That is our 
sense of privacy.
    Senators Durbin and Craig have been vocal proponents for a 
thoughtful change in the PATRIOT Act. They have identified 
sections in the law that deserve vigorous debate; specifically, 
with regard to Section 215 of the PATRIOT Act, the national 
security letters. I think that is important.
    I wish--and this is nothing against Mr. Comey, who is very 
well-respected, but I wish the Attorney General would be here, 
not least because of his oversight obligation to his former 
colleagues on this Committee. We see him appearing at press 
conferences, announcements of indictments. We read about his 
travel to Bellagio and Lake Como, near that beautiful portion 
of northern Italy from which my Italian grandparents emigrated. 
He seems to have time for everything but appearing before the 
oversight Committee. As members of the Committee know, this 
chronic scarcity touches also on the question of 9/11.
    So I do look forward to hearing Mr. Comey's views on the 
SAFE Act, but I am also interested to hear his response to 
rising public concern over the fact that the Bush 
administration continually calls for more Government power, 
while leaving many available authorities under-utilized. There 
is the matter of establishing a real civil liberties protection 
board to serve as a watchdog to the agencies of the executive 
branch. So today's hearing is an important.
    The Durbin-Craig SAFE Act is a substantive bill that merits 
our attention. But this hearing is also significant because it 
is the first hearing in this Committee on these matters since 
the release of the 9/11 Commission report, which wrote that the 
burden of proof for retaining a particular governmental power 
should be on the executive. It said that the executive must 
explain how the powers of the PATRIOT Act actually materially 
enhance security, whether there is adequate supervision of the 
executive's use of those powers to ensure protection of civil 
liberties, that there are adequate guidelines and oversight to 
confine its use. So there should be answers to questions on 
this topic.
    The hard truth is, even as we mark the third anniversary of 
the terrible, terrible September 11 attacks, we have not seen 
basic accountability for these tragic acts. Vice President 
Cheney recently spoke about a number of things, but he recently 
spoke of the likelihood that terrorist attacks would occur if a 
Democrat were elected President. That is outrageous. He told 
supporters that terrorists will strike again if we make the 
wrong choices on election day. I was a youngster during the 
McCarthy era, but I still remember some of the slurs that came 
out at that time. This remark is not only irresponsible and 
outrageous, but it shows fear-mongering.
    It is also incredibly ironic that it was given by the top 
administration official who was on watch on September 11 when 
the first attack happened, and we have yet to see any 
acceptance of responsibility for that attack or the missteps 
leading up to it or the failure to capture Osama bin Laden. We 
seem to think that the administration could squander the unity 
of the American people and our international allies by 
deviating from the fight against terrorism by choosing instead 
to topple the regime of Saddam Hussein, a horrible man. But I 
am far more interested in getting the people who struck at us.
    I really worry. I have seen the Republican Speaker of the 
House and the Republican candidate for the Senate in South 
Dakota follow these charges. After all, everybody here, 
Republican and Democrat, are patriotic. There is not a single 
one of us who wants to see us get attacked again, and these 
outrageous statements really do go back to a dark time in our 
history of Joseph McCarthy. I mention this because it was a 
Senator from my State, Ralph Flanders, who had the courage to 
stand up and submit the articles of censure against Mr. 
McCarthy.
    The facts are that the Bush administration resisted this 
Committee's efforts to examine what led to the tragedy. They 
resisted creation of the Department of Homeland Security. They 
resisted the formation of the 9/11 Commission. They resisted 
the efforts of the 9/11 Commission while carrying out its task, 
and they continue to resist important recommendations of the 9/
11 Commission.
    Regarding the topic of today's hearing, the administration 
has done little but resist oversight of the PATRIOT Act's 
implementation, despite bipartisan concerns. After all, I 
remember what Governor Kean said that there is probably no 
substitute for the oversight of the Congressional committees. 
He said vigorous oversight is needed to make sure the public 
can be assured the PATRIOT Act is being used properly. We have 
been trying to get updated information from the Department on 
implementation issues of the PATRIOT Act, including the use of 
national security letters.
    We recognize that some of the most controversial provisions 
of the PATRIOT Act will sunset at the end of 2005. Because of 
that, the 9/11 Commission said we should have a healthy debate 
over the extension of those provisions next year.
    In case anybody wonders how that sunset provision came 
about, then-Republican Leader Dick Armey and I put that in. 
Now, that is an interesting ideological line-up, but the two of 
us joined to put this in. We did it so that there would be 
oversight.
    The Attorney General has said that no one has challenged 
the Government's use of authority and no court had found the 
Government had overreached. Perhaps he chose not to be with us 
today because the list of reversal of the Government's policies 
and practices has become so extensive over the last couple 
months and years. From the Department's involvement in 
rewriting our country's adherence to the Geneva Convention and 
the Convention Against Torture which contributed to the 
breakdown at Abu Ghraib prison and elsewhere, to the Supreme 
Court's rejection of the administration's Guantanamo practices, 
there is a lot that needs attention.
    In fact, the Justice Department has accumulated one loss 
after another in terrorism cases. We have seen just recently 
the unraveling of the Department's first post-September 11 
prosecution of a terrorist sleeper cell in Detroit. That 
followed on the heels of a growing list of losses in 
questionable cases.
    The wrongful arrest of a Portland attorney based on a 
fingerprint mismatch--great fanfare announcing this arrest. 
Whoops, sorry, got the wrong guy. The acquittal of a Saudi 
college student who was charged with providing material support 
to terrorists. The release on bail of two defendants in Albany, 
New York, after the Government admitted having mis-translated a 
key piece of evidence. The evidence referred to one defendant 
as ``brother,'' not ``commander,'' as originally represented. 
The Supreme Court's repudiation of the administration's claim 
that it can hold citizens indefinitely as unlawful combatants 
without access to counsel or family.
    There have been really very few victories in cases that 
brought terrorism charges since September 11, and those seem to 
have been foreshadowed by seemingly half-hearted prosecutions. 
Justice Department officials say their record since the 2001 
attacks reflect a successful strategy of catching suspected 
terrorists, even if that involves charging them with lesser 
crimes.
    I am not going to contest that lesser crimes are being 
charged. I can't think of a greater crime than what happened to 
us on September 11. If we look at the TRAC record of the 
approximately 184 cases that we are told were international 
terrorism matters, 171 of them got sentences of less than a 
year. In my State, you can get sentences like that for drunk 
driving, not for terrorism.
    What happens to a suspected terrorist that spends 6 months 
in prison and then is deported to his country of origin in the 
midst of a war that has no end in sight?
    Does it really squelch deadly plots?
    The administration has yet to answer questions about the 
deportation of Nabil Al-Marabh to Syria, a nation that is a 
state sponsor of terrorism. He was at one time number 27 on the 
FBI's list of most wanted terrorists. Experienced prosecutors 
wanted to indict him, but instead he was released. He shared an 
address with defendants in the Detroit case. Now, what are they 
facing? Document fraud charges. The Twin Towers were hit, the 
Pentagon was hit; a plane came down in Pennsylvania. We are 
going to get somebody on document fraud charges and send number 
27 on our list of most wanted out of the country.
    I am waiting to see what the Government does with the Hamdi 
case. Will the Justice Department release and send to Saudi 
Arabia someone they said was so dangerous that he had to be 
held for years in a military stockade and couldn't be allowed 
to consult with a lawyer?
    I would like to have asked the Attorney General about the 
frightening announcement from Moscow that they arrested Jose 
Padilla, as if the Government had miraculously averted a 
nuclear device from being detonated in our heartland. The 
Attorney General had to go immediately on television in Moscow 
to tell us about this.
    Mr. Comey represented in the Federal courts a few months 
ago that the Government no longer even contends that Mr. 
Padilla was engaged in a dirty bomb plot.
    We have yet to see any criminal charges against him, but I 
do remember all the programs on television here being stopped 
immediately so we could hear about the nuclear attack that was 
diverted when the Attorney General announced it from Moscow. We 
see a lot of these press conferences. I would like to find out 
what happens when it turns out that the charges weren't backed 
up.
    The reason I mention all these things is that if we are 
going to give the Government more powers to add to the Federal 
arsenal, let's find out what has been happening so far, not 
just the press conferences announcing some spectacular arrest, 
but what happened later on when somebody got a charge that is 
similar to a drunk driving charge, or the charges are dropped 
or we say, whoops, forget those major headlines that went on 
for day after day after day; we made a mistake.
    I want to know what tools are actually being used and how 
they are working, and which are subject to abuse and which need 
to be modified. As I have said before, I am a former prosecutor 
and I want to give prosecutors a lot of tools, but I don't want 
them to go into the privacy and independence of Americans 
without knowing what we are getting in return.
    Thank you, Mr. Chairman. I will put my full statement in 
the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Senator. I am going to put you 
down as being against the Vice President and the Attorney 
General, and I will--
    Senator Leahy. No. I am against anybody who would go up and 
say one of the most outrageous statements, and every Republican 
should condemn what the Vice President said to say if we elect 
a Democrat, we are going to have a terrorism attack similar to 
what happened during this Republican administration.
    Chairman Hatch. I don't think he said that.
    Senator Kyl. Mr. Chairman?
    Chairman Hatch. You know he didn't say that, and I think 
that is a misrepresentation of what the Vice President said and 
I would direct you to read the record and read what he said. 
And what he said is true, and frankly I don't think there 
should be distortions like that.
    But be that as it may, we--
    Senator Kyl. Mr. Chairman.
    Chairman Hatch. Yes?
    Senator Kyl. I am sorry. Could I just ask unanimous consent 
that the Vice President's actual words be inserted in the 
record at this point?
    Chairman Hatch. Without objection.
    Senator Leahy. I am all in favor of that.
    Chairman Hatch. Well, so am I.
    Now, we are pleased to have Mr. Comey. Mr. Comey runs the 
Department on a day-to-day basis under the direction of the 
Attorney General.
    There is nobody who has better knowledge or better 
information or a better ability to understand the PATRIOT Act 
than Mr. Comey. So we welcome you as the Deputy Attorney 
General to this hearing. We are fortunate to have you.
    Mr. Comey has experience ranging from line prosecutor to 
terrorism prosecutor, U.S. Attorney for the Southern District 
of New York, one of the most prestigious positions in the whole 
Justice Department, to now the second highest ranking official 
in the Department of Justice and the person who runs the day-
to-day Department of Justice.
    So we are pleased to have you here. We are pleased to have 
your opening statement and we look forward to allowing both 
sides to ask any questions they desire of you, and we will go 
from there.

     STATEMENT OF JAMES B. COMEY, DEPUTY ATTORNEY GENERAL, 
            DEPARTMENT OF JUSTICE, WASHINGTON, D.C.

    Mr. Comey. Thank you, Mr. Chairman, Senator Leahy, members 
of this Committee. Mr. Chairman,
    I would ask that my full statement be made part of the 
record.
    Chairman Hatch. Without objection, we will put your full 
statement in the record.
    Mr. Comey. Thank you, Mr. Chairman for holding this 
hearing. I traveled to the beautiful State of Utah for the 
first time ever not long ago to attend another hearing of this 
Committee devoted to the PATRIOT Act, and I did that because I 
care so much about the discussion about the PATRIOT Act and 
about how the Government is using its powers.
    I was honored to follow Senator Craig and Senator Durbin 
and listen to their remarks. I respect them. I hear in their 
remarks what I otherwise know, which is their passion for the 
rule of law and for a close inspection of how we are using our 
Government powers.
    Senator Craig quoted me accurately at the Utah hearing. I 
think I did say there has been no informed discussion. I should 
have said there has been little informed discussion, because I 
have been part of some of that discussion about the PATRIOT Act 
over the last 18 months, as have my colleagues.
    This is hard stuff. As Senator Durbin said, the PATRIOT Act 
is long and complicated, and affects many, many provisions of 
the criminal law and many of our tools to fight terrorism and 
foreign intelligence efforts in the United States.
    There are folks, though, around this country who I believe 
don't know enough about the PATRIOT Act. I believe those are 
the folks who call for its repeal. No one who has read the 
PATRIOT Act and who understands what is in it calls for its 
repeal, because people who have read it know that it provides 
additional money for the families left behind by first 
responders killed responding to terrorism. It does something 
earth-shattering and ground-breaking, and that is it lowers the 
wall between intelligence and criminal investigations so that 
we can work together to attack terrorism.
    I believe very strongly that both sides in this debate need 
to engage in this debate in a careful, respectful manner that 
gets beyond bumper stickers. I think too often we have shouted 
past each other in this debate, and folks on both sides have 
questioned the motives of people who disagree with them.
    I am somebody who believes it is right to question 
government power. Our country was founded by people who had 
major concerns about how the government would use its power, 
and 200 years and more later it is filled with people who care 
about how the government exercises its power and I am one of 
them.
    I believe that the government should explain what it is 
doing to the extent it can in an open forum, and if it can't in 
an open forum, then in a closed forum that respects 
intelligence sources and methods, and defend ourselves and 
explain how we are using powers because sunshine is the 
greatest disinfectant in the world. I should not be doing 
something as Deputy Attorney General that I can't explain and I 
can't defend, and I pledge to you that I have not and I will 
not.
    As Senator Craig quoted me, I do believe that if we have an 
informed debate about the PATRIOT Act people will take the time 
at a cocktail party before they nod reflexively about how evil 
the Act is, if people take the time to say what do you mean 
specifically, what are the details there, or folks at 
conferences or folks in courtrooms or folks at hearings demand 
those details, they will see that the Act is, as I have said, 
smart, ordinary and constitutional, and that we need it.
    What I would like to do is just touch briefly on a couple 
of areas that have people very concerned and that people ask me 
about quite frequently.
    Sneak-and-peek search warrants. We in law enforcement--I 
spent my career as a prosecutor--we don't call them sneak-and-
peek search warrants. We call them delayed notification search 
warrants. Just the label ``sneak-and-peek,'' I think, connotes 
the government going through your sock drawer late at night and 
then sneaking off not to tell you about it, and obscures the 
fact that we never obtain a search warrant, whether it is a 
delayed notification search warrant or a regular search 
warrant, without a sworn showing of probable cause to a Federal 
judge, who then issues a warrant and has jurisdiction over that 
matter.
    Chairman Hatch. You never do?
    Mr. Comey. Never.
    Chairman Hatch. That is important.
    Mr. Comey. There are circumstances in which searches are 
done under exigent circumstances, emergency.
    Someone is rushing into a building and they are chased 
before they can flush drugs down the drain. But the warrant 
requirement of the Fourth Amendment is part of our being; it is 
part of the fabric of the Department of Justice and every 
prosecutor and investigator in the United States.
    Delayed notification search warrants aren't used a lot, but 
they have been used for decades and only when it matters most. 
I have used them myself as a practicing prosecutor before I 
became a bureaucrat. I was Assistant U.S. Attorney in Richmond, 
Virginia, and there was a drug gang moving into Richmond from 
New York, where before I was U.S. Attorney I used to say all 
bad things come.
    The drug gang moved into Richmond, dealing lots and lots of 
crack. We didn't know much about them, except they were big, 
they were bad, they were dangerous and they were new. We had a 
single informant who told us about them and told the DEA that 
they had just delivered five kilos of cocaine to an apartment 
in the west end of Richmond. We didn't know much more about it. 
We had a reliable informant. We could make out probable cause 
based on his track record and the specificity of what he said.
    So we had a choice to make. Do we get a search warrant and 
go in and seize those drugs, alert this organization that we 
are on to them, jeopardize the informant and blow the 
investigation, or do we let five kilos of cocaine walk onto the 
streets of Richmond? We didn't have to make that choice, 
though, because we had a judicially-created rule that has been 
in effect since before I was a lawyer and that has been upheld 
by the Supreme Court that allows a court to delay notice.
    So we went to a Federal judge. The DEA laid all that out 
that I just told you in a sworn affidavit, and the judge gave 
the Drug Enforcement Administration permission to search and to 
make it look like a burglary, to delay notice. So the DEA went 
in, they found the five kilos where the informant said it was. 
They took the TV, they took the stereo, they broke a window. 
And in a theatrical flourish, they took three beers and poured 
them down the sink and set them around, and then they waited.
    The two leaders of this organization came to the apartment 
and they called the cops, and we sent a black-and-white unit, a 
marked unit, with a briefed police officer and went there and 
answered the call for service and said what is the problem? And 
they said, well, there has been a burglary. Who are you? I am 
so-and-so, and can I see your driver's license? He got full 
identifiers on these two characters. Whose apartment is this? 
It is ours. What was taken? Stereo, TV, and these people even 
drank our beers; the nerve of these burglars. Anything else 
taken? No, sir, nothing else taken.
    Sixty days later, we had identified the full extent of this 
drug organization and we locked them all up. More than 30, as I 
recall, were locked up. That delayed notification search 
warrant allowed us to take the drugs off the street, to protect 
the informant's life and to identify all the bad guys.
    Now, my frustration is that that took me four minutes to 
explain. Finding the space in American life for folks at 
cocktail parties, at conferences and at hearings in court to 
listen to that to understand what that tool is and why it 
matters so much is our great challenge. That is a burden on me 
and other members of the Department of Justice and we are going 
to work very hard at it.
    Section 215 that Senator Craig mentioned, the document 
provision of the PATRIOT Act that allows foreign counter-
intelligence and foreign counter-terrorism investigators to 
obtain records by going to a Federal judge and getting an order 
for records or tangible things, has caused great controversy.
    It has become known as the library provision for reasons 
that I cannot figure out.
    I cannot figure out how 215 got associated with libraries. 
They are not mentioned in 215. It is not something we lie awake 
at night thinking about.
    When I look at 215, what I think of is what most trained 
investigators think of--our ability to get credit card records, 
our ability to get travel records, our ability to get rental 
car records, hotel records. But folks are absolutely right that 
under this provision, a Federal agent could, based on a sworn 
affidavit, get permission from a Federal judge to obtain 
tangible things, books and records, that might be at a library.
    The only thing I would say to folks is that we need to 
start from the premise that we don't want libraries to be a 
sanctuary in this country. Nobody does, if they think about it. 
But I think we have gotten to a point where somehow this debate 
has become so spun up that people whom I respect tremendously, 
librarians, which is why their concern causes me such pain, 
have found themselves in a position where they are calling for 
sanctuary in libraries.
    We recently had an al Qaeda associate that we were tracking 
in New York and very concerned about who had a computer at home 
that we were monitoring, and he kept going to a library to use 
the computer.
    We couldn't figure out what was going on. To make a long 
story short, we found out after we locked this guy up that he 
was going there because that library's hard drives were 
scrubbed after each user was done, and he was using that 
library to e-mail other al Qaeda associates around the world. 
He knew that that was a sanctuary. When I heard that, my 
reaction was what are we doing? How has it moved from a debate 
that should be rational to a place where we are creating a 
sanctuary?
    I am happy to engage with librarians and anyone else about 
Section 215. What that section simply does is give powers to 
counter-intelligence investigators and counter-terrorism 
investigators that criminal investigators have had for decades 
to obtain records with process, except it does one thing. It 
makes it harder for them to get the records than for a criminal 
investigator using a grand jury subpoena.
    Chairman Hatch. Would you repeat that again, because I 
think those are things that a lot of people just don't seem to 
understand?
    Mr. Comey. I have given grand jury subpoenas--hundreds, 
probably thousands in my career as a Federal prosecutor--to 
Federal agents to go and obtain records. I don't think I have 
ever done it with a library, but we would if the crime led us 
there. The showing required is the investigation is open and I 
think and the agent thinks this might be relevant to the 
investigation. We don't have to go to a judge; we don't have to 
involve the court at all.
    Section 215 requires that same agent who wants those same 
records, but for a foreign counter-terrorism or foreign 
counter-intelligence investigation, to go to a Federal judge 
who sits on the Foreign Intelligence Surveillance Court, write 
out an application as to what he wants and representing that it 
is for a foreign counter-intelligence investigation or a 
foreign counter-terrorism investigation, and then get a court 
order for it.
    It is a much, much bigger hassle to do that than it is for 
a grand jury investigator to get the same subpoena which is 
stroked by an Assistant U.S. Attorney. So I think folks don't 
realize those details that it allows people conducting, 
frankly, investigations that are more important than your 
garden-variety criminal cases access to the records--it simply 
makes it harder for them.
    The one thing it does that concerns a lot of good people is 
the court order mandates that whoever gets this and provides 
these books and records--and as I said, I think of rental car 
agencies, hotels, but let's say it was a library. There is a 
gag order, a non-disclosure order. I have tried to discuss this 
at great length with a lot of librarians. Anybody who cares 
about privacy, as all of us do, would not want an FBI agent 
going to a rental car place or a library and saying we are 
investigating Jim Comey and it is a foreign counter-terrorism 
thing and so we are going to need these records and that is 
what it is about. Nobody would want that to happen, so 
everybody would have to recognize that the librarian or the 
hotel operator is not going to have the facts.
    So why should, in our highest-stakes investigations, that 
person be in a position to make the call whether to tell Jim 
Comey that his records have been obtained? I mean, it is 
complicated to think about, but if folks follow the thread 
through, they will understand that a non-disclosure order is an 
important part of our foreign counter-intelligence and foreign 
counter-terrorism investigations.
    The SAFE Act does not, as the Senator said better than I 
ever could, talk about repealing the PATRIOT Act. It actually 
proposes modest changes to provisions of the PATRIOT Act. My 
concern about it is this: I approach all of the criminal tools 
that I use and ask, is something broken? If nothing is broken, 
then I don't see a reason to change it.
    I don't believe that the sneak-and-peek, the delayed 
notification search warrant provision is broken. I don't 
believe that the John Doe roving wiretap provision is broken. 
So many of these other provisions that the Senators have raised 
and raised, and explained in a very, very--
    Chairman Hatch. I don't mean to interrupt you, but what 
about Senator Craig's concern that he trusts you and this 
administration, but there might be a subsequent administration 
that might abuse it?
    Mr. Comey. Well, I guess you could trust me personally, but 
you should not trust me institutionally because we are a Nation 
of laws. I have devoted my life to that.
    Chairman Hatch. What he is saying is he doesn't trust the 
institution, or at least--
    Mr. Comey. And I think all of us should have a healthy 
maybe not distrust, but skepticism of government power. I 
believe it is addressed in the PATRIOT Act because the PATRIOT 
Act is chock full of judicial supervision, Congressional 
supervision and inspector general supervision. I have all three 
of those watchdogs in my life whenever I want to use the key 
tools of the PATRIOT Act.
    As I said, the document provision, 215, requires Federal 
agents to go to Federal judges. Grand jury subpoenas don't 
involve Federal judges. We make reports every 6 months to the 
Congress how we are using it, and as everyone knows, the last 
time we declassified that, we had never used Section 215. But 
we make detailed reports.
    Our inspector general, who is a very competent and very 
aggressive person, scrubs us from head to toe on how we are 
using the PATRIOT Act and entertains criticisms of how we have 
used it. To my knowledge, there has been no finding by a court 
or by our inspector general that there has been an abuse of the 
PATRIOT Act.
    We had one court strike down a provision of the material 
support statute that was in the PATRIOT Act as vague, and we 
are still pursuing that.
    Our inspector general continues to investigate the Mayfield 
matter that Senator Leahy referred to.
    I don't know exactly how the PATRIOT Act would figure 
there, but that is one he said he is looking at. But beyond 
that, there is level after level after level of review and 
safeguard that is not present in the thousands and thousands of 
criminal investigations that we conduct everyday.
    I don't want to appear rigid or like some sort of maniac, 
but my approach to it is if something is broken, I will look to 
fix it. If it is not broken, I don't think we should look to 
fix it.
    What I worry is really broken is people's understanding of 
delayed notification search warrants or Section 215. I would 
prefer that rather than change the statute to try to give them 
comfort that people like the Justice Department engage them and 
explain what these tools are and how we are using them rather 
than change the law.
    So I thank you so much, Senator, for having this debate. I 
look forward to it and I look forward to taking your questions.
    [The prepared statement of Mr. Comey appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you. These are legitimate 
questions that have been raised by our colleagues, but many 
people have expressed concern about Section 213 of the PATRIOT 
Act which permits courts to issue delayed notification search 
warrants in certain narrow circumstances. I have two questions 
about this provision.
    First, could law enforcement investigators obtain delayed 
notification search warrants before the passage of the PATRIOT 
Act?
    Mr. Comey. Yes, sir. For at least 40 years--
    Chairman Hatch. Used all the time?
    Mr. Comey. Yes, and it was 1979--
    Chairman Hatch. Used in all types of crimes?
    Mr. Comey. Yes, Senator.
    Chairman Hatch. Do you see any reason why it shouldn't be 
used, delayed notification, in the case of terrorism 
investigations?
    Mr. Comey. Oh, certainly not. It doesn't get used a lot, 
but it is used when it matters most.
    Chairman Hatch. Do you know of any abuses?
    Mr. Comey. No, sir, and again I would be hard-pressed to 
see how there could be abuses when each of them requires an 
application to a court and supervision by a court.
    Chairman Hatch. And the court does supervise?
    Mr. Comey. Yes, sir.
    Chairman Hatch. When you are talking about the court, you 
are talking about a Federal court?
    Mr. Comey. Yes, a Federal district court.
    Chairman Hatch. The second is could you explain why it is 
sometimes necessary for delaying notice of search warrants when 
there is a belief that witnesses may be intimidated or an 
investigation may be seriously jeopardized?
    Mr. Comey. Yes, Senator, and there are examples. I realize 
that is one of the areas that the SAFE Act proposes to address 
to limit it to lives in danger, destruction of evidence, and to 
eliminate intimidation of witnesses or serious jeopardy to an 
investigation. Again, that doesn't change the world, but it 
changes it at the margins where it matters most.
    We had a major drug investigation called Candy Box, a huge 
Ecstasy case. We were about to lock up about 170 drug dealers 
and one of them came across the Canadian border, I believe, 
into New Hampshire and our informant said he has a huge load of 
Ecstasy in a fake gas tank.
    We had a choice to make again, as I did in Richmond. If we 
grab that guy and serve him with notice of the search warrant, 
we will jeopardize the entire investigation because when we 
show up the next morning, a lot of these 170 are not going to 
be in their beds where we need them to be. So what we did was 
we got, again, a delayed notification search warrant and the 
agent stole the guy's car.
    He stopped at a rest area to go in and get a snack or 
something. He didn't steal it, but with court permission took 
the car and then sprinkled broken glass around the parking lot. 
And then the next day, we locked up all of these drug dealers 
and then made disclosure to this guy that your car wasn't 
stolen; the Government has it and you are welcome to make 
application to have it back.
    Chairman Hatch. Well, what I am hearing you say is that 
this delayed notification, very similar to what you are talking 
about in the PATRIOT Act, has been used for decades. It has 
been used in common criminal investigations, in drug 
investigations, in pornography investigations and in rape 
investigations, and so forth.
    I think if I understand you correctly, you are saying why 
would we, the Federal Government, be deprived of this same 
right to not notify the criminals that we are coming after them 
and thus ruin a whole investigation in the case of anti-
terrorism matters. Is that right?
    Mr. Comey. That is absolutely correct, and in counter-
terrorism cases you can imagine how it might be even more 
important than in others where we--
    Chairman Hatch. But what is wrong with the SAFE Act? They 
say that they will give you 7 days.
    Mr. Comey. Well, nothing is intrinsically wrong with that, 
except I don't know why we would do that. Federal judges now 
decide what is a reasonable period of time and that is their 
case.
    Chairman Hatch. You are saying why should we bind our hands 
if it takes 7 1/2 days or 10 days or 11 days?
    Mr. Comey. That is correct, Senator. As I said, I am not 
saying that is a crazy idea or there is something unreasonable 
or intrinsically bad about it.
    Chairman Hatch. It is not crazy at all.
    Mr. Comey. I don't see anything broken with having Federal 
judges decide, given each investigation being different, what 
is a reasonable period of non-disclosure.
    Chairman Hatch. Do we put a similar limitation on these 
other domestic criminal activities?
    Mr. Comey. A similar limitation, Senator?
    Chairman Hatch. A similar seven-day limitation.
    Mr. Comey. Not that I am aware of.
    Chairman Hatch. In other words, it is up to the courts.
    Mr. Comey. Yes, sir.
    Chairman Hatch. And we trust the courts to supervise this 
and to make sure that it is not abused?
    Mr. Comey. Yes, Senator.
    Chairman Hatch. Plus, you are telling me you don't know of 
one abuse with regard to the use of delayed notification under 
normal domestic criminal activity, or even under the anti-
terrorism investigations.
    Mr. Comey. That is correct, Senator, and something a lot of 
ordinary folks don't realize is the warrant requirement that 
requires us to show probable cause to a Federal judge is in the 
Constitution. The notice requirement is not in the 
Constitution. It is in a rule, Rule 41 of the Federal Rules of 
Criminal Procedure. So there is no constitutional issue 
implicated by the delay for a reasonable period of notice.
    These are all warrants that are obtained--again, I have to 
keep saying it because people don't seem to realize it who are 
not lawyers or engaged in these issues, that Federal judges 
issue these warrants based on a showing of probable cause to 
believe that a crime is being committed and the fruits of the 
crime will be found at the scene.
    Chairman Hatch. I, like you, wonder why would we want to 
restrict our Federal investigators and prosecutors with regard 
to anti-terrorism investigations when we don't restrict them, 
other than getting a court order and the court supervision, 
with regard to normal domestic anti-crime investigations.
    Isn't that a fair summary? Why would we want to do that?
    Mr. Comey. Well, it is a fair statement, Mr. Chairman, and 
the way we approach this is exactly as you said that the tools 
ought to be at least as strong on the foreign counter-terrorism 
and foreign counter-intelligence side as on the criminal side.
    Chairman Hatch. Without the
    PATRIOT Act, they wouldn't be as strong?
    Mr. Comey. No, sir.
    Chairman Hatch. And with the SAFE Act, they would not be as 
strong?
    Mr. Comey. That is correct. I mean, as I said, they would 
be modified at the margin, but modified in significant ways.
    Chairman Hatch. What you are saying is that the SAFE Act 
would make it even more difficult for Federal prosecutors and 
investigators to investigate terrorism matters than they 
currently have and the difficulties they have investigating 
normal domestic criminal activity.
    Mr. Comey. That is a fair statement. I don't want to 
overstate it, but I do believe that it would make it marginally 
more difficult. And as I said, I approach that by asking why, 
if I don't think it is broken, I would change it.
    Chairman Hatch. Critics of the PATRIOT Act, and 
specifically Section 215, have called the Foreign Intelligence 
Surveillance Court a rubber stamp. Do you agree with that 
characterization? Why or why not?
    Mr. Comey. Definitely not. The Foreign Intelligence 
Surveillance Court is made up of Federal judges who, whether 
they are sitting in district or an appellate court or in the 
Foreign Intelligence Surveillance Court, are never rubber 
stamps, no matter how long they have been on the bench or where 
they came from.
    I think we have publicly disclosed that last year they 
rejected four of our applications for Foreign Intelligence 
Surveillance Act tools, and they modified, substantively 
changed, 79 of them. So these folks are not just receiving it 
and saying, okay, Comey's signature is on it or Attorney 
General Ashcroft's signature is on it, so we are good to go. 
They are a very, very challenging audience, as they should be.
    Chairman Hatch. Now, just so we all understand it, with 
regard to libraries, before and after the PATRIOT Act--but 
before the PATRIOT Act, with regard to domestic criminal 
activities, there was absolutely nothing stopping you, as long 
as you showed probable cause and got a warrant, from going into 
a library and investigating domestic criminal activity. Is that 
right?
    Mr. Comey. It would not even require a warrant, Senator.
    Chairman Hatch. You could do it under grand jury subpoena?
    Mr. Comey. That is right, and we have done it in child 
pornography investigations, for many reasons. People who want 
to use a computer for illicit purposes are attracting to 
libraries. We did it in the case of this fellow named Regan, 
who was a spy for the Navy who was in a library using the 
computer to do research related to his spying activities. We 
have approached libraries to try and get records to try and 
verify that Ted Kaczynski was the Unabomber.
    Chairman Hatch. As a matter of fact, that was one of the 
methodologies you used to catch Ted Kaczynski, the Unabomber, 
right?
    Mr. Comey. That is my understanding, Senator. He referred 
in his so-called manifesto to some obscure texts, and after his 
brother said he thought he was the one, investigators confirmed 
that Ted Kaczynski had checked out some of these very, very 
obscure texts. Again, a library is not a sanctuary. Nobody 
would want it to be.
    Chairman Hatch. Did you have a warrant to go into the 
library to get that material on Ted Kaczynski?
    Mr. Comey. No, certainly not.
    Chairman Hatch. You had a grand jury subpoena, right?
    Mr. Comey. Yes, that is my understanding.
    Chairman Hatch. In other words, under our domestic anti-
crime laws, grand jury subpoenas are sufficient enough to go 
into a library and obtain information that might possibly 
convict or be used against a domestic criminal. But before the 
PATRIOT Act, you could not do the same for a terrorism 
investigation.
    Mr. Comey. The counter-terrorism investigator would have to 
try to get a criminal case opened and then try to get a grand 
jury subpoena because he didn't have the availability of 
process the other way.
    Chairman Hatch. So it was much more difficult, is what I am 
saying, to do the terrorism investigation than it was to do the 
normal domestic criminal investigation.
    Mr. Comey. That is fair, Senator.
    Chairman Hatch. And what we have done in the PATRIOT Act is 
require you to do even more than what has to be done in the 
domestic area, or what is usually done in the domestic anti-
crime area, because we require you to go to the Foreign 
Intelligence Surveillance Act and get a warrant before you can 
go in and investigate the possible terrorist use of library 
facilities.
    Mr. Comey. That is correct, Mr. Chairman and we don't 
require a showing of facts that the person is guilty of 
something before we can get the records with a grand jury 
subpoena, or else we would never get off the ground with 
criminal investigations. And that is one of our concerns with 
heightening a standard on the foreign counter-intelligence and 
foreign counter-terrorism side.
    Senator Feingold. Mr. Chairman how long are these rounds?
    Chairman Hatch. How has the PATRIOT Act worked, in your 
opinion, with regard to these two provisions, in particular?
    Senator Feingold. Twenty-minute rounds?
    Mr. Comey. I think it has worked very, very well.
    Senator Feingold. This is a little unreasonable.
    Chairman Hatch. I have never talked to you--
    Senator Feingold. I get similar time.
    Chairman Hatch. You take all the time you want. Go ahead. 
My gosh, I have never denied the minority one minute.
    Senator Feingold. I am just asking.
    Chairman Hatch. And I am getting chewed up because I am one 
minute and 30 seconds over.
    Senator Feingold. Mr. Chairman, all I asked you is how long 
the round was.
    Chairman Hatch. Well, that is fine. It is 5 minutes.
    Senator Feingold. That is all I said to you, Mr. Chairman, 
and that is a fact.
    Chairman Hatch. I apologize for taking longer, but I think 
this is a line of questioning that has to be done.
    Senator Feingold. I just wanted to know how long the round 
was. That is all I said, Mr. Chairman.
    Chairman Hatch. All right. I know what it was said for. Go 
ahead.
    Mr. Comey. I think that these tools, particularly the 
delayed notification search warrant and the Section 215, are 
very important tools that work very well.
    Chairman Hatch. Well, thank you.
    I have taken seven minutes, two minutes more than I should, 
as Chairman of the Committee. I am going to give you eight 
minutes. How is that?
    Senator Feingold. Mr. Chairman, I obviously had no problem 
with as much time as the Chairman would want.
    Chairman Hatch. Well, it obviously irritated me.
    Senator Feingold. I just wanted to know how long I would 
have.
    Chairman Hatch. Take whatever time you need.

STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE 
                       STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman.
    Where to begin on this? I respect your comments, Mr. Comey, 
about the way in which this law has been distorted on both 
sides across the country, but I would submit to you the reason 
it has gotten so bad with regard to the critics of the bill is 
the constant inability of this administration to talk about the 
actual issues within the provisions. And I regret that you just 
continued that practice, I am sure not intentionally, but let's 
take the examples of the provisions that were just discussed.
    Chairman Hatch walked you through a number of questions in 
order to try to determine under Section 213, the sneak-and-peek 
provisions, that, in fact, delayed notification is something we 
need. No one disputes that; no one has ever disputed that. This 
is a technique that is being used on this legislation over and 
over again in the Attorney General's appearances around the 
country to take a red herring. Whether it be the unanimity on 
taking the wall down between the CIA and the FBI or the need 
for delayed notifications or the need to be able to use roving 
wiretaps, they say, well, we need this. Well, everyone agrees. 
That is not the issue here.
    You said it took you four minutes to explain it. Well, you 
didn't get at the heart; you didn't get at the issue that 
Senator Craig and Senator Durbin carefully explained, which is 
the problem here is not that we don't believe there are many 
cases, many of which I support, where we need delayed 
notification. It is that the notification put in the statute is 
indefinitely delayed.
    There is no time limit. You guys don't have to come back to 
the judge in 7 days, as many of the circuits prior to this 
required, and say we need this renewed. There is no limit; a 
reasonable time, but there is no actual limit. That is the 
issue.
    So when the Chairman tries to raise the rhetoric here by 
suggesting that somehow there is somebody on this panel, or 
frankly anybody who believes we shouldn't have delayed 
notification in some cases, that is not the issue. You are 
going to continue to have this public relations problem, and 
you have got a big one unless you guys start talking about what 
the actual issue is here.
    Of course, the other issue with regard to Section 213 is 
how you get in that window. As I said, some of these 
exceptions--flight from prosecution, destruction or tampering 
with evidence--obviously, those are the kinds of provisions I 
support.
    But there is another exception: otherwise seriously 
jeopardizing an investigation or unduly delaying a trial. I 
would suggest that that is so broad--and my colleagues, 20 of 
us, agree on this, including many Republicans, as well as 
members of this panel, that that is so broad that it really 
does undercut what I think most Americans believe is their 
Fourth Amendment right not just to a search warrant, but to 
notice for that search warrant, except for in very limited 
circumstances. So that is the issue on Section 213 and it has 
not been addressed this morning.
    All we are trying to do here is to fix it. It is actually a 
very conservative position to try to fix that.
    The same thing with Section 215. I am intrigued by your 
wondering why this could become the library provision. I 
understand and have always understood that it has much broader 
implications. The library is a very special place on Main 
Street America. The sanctity of the library has always been 
something that all of us grew up to believe in. That is sort of 
the ultimate place where you feel that your right to privacy 
and your First Amendment rights exist. So it should come as no 
surprise to this administration, if they are listening to 
people, that this is scary to people.
    Again, when you talk about the provision and when the 
Chairman talks about the provision, you ignore the fundamental 
fact. No, the court is not a rubber stamp. The rubber stamp is 
written into the statute. There is no standard of proof or even 
relevance, as there is in a grand jury proceeding. All it 
requires is the FBI has to say that the information is sought 
in connection with a terrorism investigation, and the judge has 
no discretion, Mr. Chairman. The judge has no discretion. The 
judge must issue the order.
    Why is this different than a grand jury proceeding? The 
Chairman was walking through the whole grand jury issue and it 
made me wonder when I was going to get a chance to respond. You 
know much better than I do, but I know enough to know that in a 
grand jury proceeding the subject of the subpoena knows that 
the subpoena has come to him or is coming his way. He has a 
chance to challenge that before the judge; he has a chance to 
quash it. Under this law, the person isn't even told that this 
is happening. That is a world of difference between a grand 
jury proceeding and this secret court proceeding.
    So I want everybody to know that what we are trying to deal 
with here is not stopping the Government's ability to get at 
library records. I tell people at my town meetings, look, if 
any one of you had lunch with somebody from al-Qaeda last week, 
I want the Government to get everything you have got.
    But for the FBI to have the ability to walk in to a judge 
and say, look, you are giving this to me, and have no 
discretion, is a frightening intrusion, a frightening 
concession of power that goes against, in my view, the 
Constitution of this country.
    So, Mr. Chairman, I apologize for my eagerness, but this is 
terribly important stuff.
    And I respect every one of my colleagues. You all disagreed 
with me on whether to vote for the bill or not. I respect that. 
That was a tough call. We didn't have very much time. I took 
extra time, because I was Chairman of the Constitution 
Subcommittee and I thought, well, it is my job, and I didn't 
like what I saw.
    Well, I admire my colleagues here for their willingness to 
say, look, let's fix it. That is all I ever wanted to do. I 
thought I was going to be able to vote for the bill. When I saw 
the good work of the then-ranking member and Chairman Leahy at 
the time, I thought these problems would be resolved. 
Unfortunately, the process melted down.
    But, today, some very reasonable Senators are simply asking 
that you honestly engage in a discussion about how to fix these 
provisions in a way that does not in any way, shape or form 
harm your goals with regard to delayed notification or with 
regard to legitimate opportunities to get at people's business 
records or library records.
    So, Mr. Chairman, I appreciate the additional time and let 
me move to a question for Mr. Comey.
    Last month, in response to a question at the Judiciary 
Committee hearing on the 9/11 Commission report, Vice Chair Lee 
Hamilton was discussing the need for a civil liberties 
oversight board and he commented on powers that Congress had 
given the FBI, DHS and other agencies after 9/11 and how those 
powers have been used. He said, quote--and I don't know if 
people heard this comment by Mr. Hamilton, but I thought it was 
pretty amazing. He said, ``It is highly classified. I can't 
talk about it except to say it is an astounding intrusion into 
the lives of ordinary Americans that is routine today in 
government.''
    In your testimony for this hearing today, you said the 
PATRIOT Act provides for ample judicial, Congressional and 
public oversight to ensure that the civil rights and civil 
liberties of all Americans are protected. And then you go on to 
list the various efforts of the Department of Justice to 
provide oversight.
    Now, I am a Member of Congress and I am on this Committee 
and I don't know what Lee Hamilton was referring to. Almost all 
the steps you mentioned that are being taken to protect the 
privacy and civil liberties of Americans involve people already 
within the administration. It is as if we in Congress have been 
asked to trust the foxes to guard the hen house.
    What is the Department doing to ensure that Congress has 
the necessary information to make real assessments about 
whether or not privacy and civil liberties of the American 
people are protected, and what steps beyond those already 
required by law do you believe should be taken to ensure that 
the American people can trust that their rights are being 
protected?
    Mr. Comey. Thank you, Senator. We care, as the members of 
this Committee do, passionately about the civil liberties and 
the freedoms of our fellow Americans.
    We are addressing concerns about how we are using our 
authorities by complying with--one of the ways is by complying 
with our oversight obligations to make sure that Congress knows 
how we are using FISA in a classified setting, if necessary; 
how we are using the PATRIOT Act, how often we are using 215 
and things of that sort.
    We are cooperating with our inspector general, who is 
charged with, under Section 1001 of the PATRIOT Act, as I 
recall, with entertaining, receiving and investigating 
complaints of abuses under the PATRIOT Act. We are answering to 
Federal judges and seeking to use these tools the way they are 
designed, which is through Federal judges and through making 
showings in writing and under oath to obtain warrants and 
process and many of the things that you have mentioned.
    With respect to the Civil Liberties board, I Chair that 
board and I am somebody who takes very, very seriously my 
commitment to my oath to uphold the Constitution of the United 
States, and that board is not going to be some sort of Potemkin 
board. You are absolutely right. It is made up of people inside 
the Government, but, in my experience, people who care 
passionately about this and who are, many of them, career 
people like myself who care so much about the reputation of our 
great institution, the United States Department of Justice, and 
our Government as a whole.
    I know there have been proposals for a board created of 
outsiders, and frankly I don't that is necessary to create a 
board that is outside the structure of our Government, when the 
executive branch has an obligation and the legislative branch 
has an obligation to oversee our actions.
    Senator Feingold. Mr. Hamilton is not known as somebody 
that sort of exaggerates in his comments. What can you say in a 
public setting about his words that there are astounding 
intrusions on the people's personal liberties? Do you have any 
idea what that is?
    Mr. Comey. Maybe I missed it in clips, but the first time I 
have heard the statement was when you quoted it, Senator, and I 
don't know what he is referring to.
    Senator Feingold. Let me ask you quickly, and then again I 
will wait for another round. We talked about the reports and 
you were talking about how your agency is coming up with the 
information with regard to the PATRIOT Act. But the PATRIOT Act 
requires the Attorney General to provide Congress with semi-
annual reports on the use of Section 215, the so-called library 
or business records provision.
    The latest report covering the period July through December 
2003 has still not been received by the Committee. It was due 
at the end of June. The Department already told us last year 
that it had never used Section 215 as of mid-September 2003. 
That means we only have three-and-a-half months left in that 
reporting period.
    How could it be so hard to pull together this report and 
submit it to Congress? I would like to know what the hold-up 
is, especially in light of the fact that suddenly Mr. Goss, who 
will undoubtedly be confirmed today as our CIA Director, said 
the other day suddenly that the provision has been used. Why 
aren't we getting the reports required by Congress and when 
will we get them?
    Mr. Comey. Well, Senator, you are exactly right. The report 
has not come in yet and I have asked that same question myself. 
The Section 215 report--I am not permitted in this forum to say 
the number, but would not take long to assemble.
    I think what is happening is the Department has an 
obligation to report on FISA broadly, and so the preparation of 
the report about FISA searches and FISA electronic 
interceptions is very complicated. And so they are putting it 
all together in one package, as is their obligation. I have 
asked why don't we just sever off 215 and send it? I am told 
that I am never supposed to commit to any particular dates in a 
bureaucracy, but I believe by this Friday, that report will be 
to Congress.
    Senator Feingold. Thank you, Mr. Comey. Thank you, Mr. 
Chairman.
    Chairman Hatch. Thank you, Senator.
    Let me just clarify one thing that I think I didn't make 
clear in our interchange. The delayed notice was available in 
criminal cases before the PATRIOT Act. But now that the PATRIOT 
Act provision on delayed notice--that is, Section 213--governs, 
it governs both criminal and terrorism cases.
    I am right on that, aren't I?
    Mr. Comey. Yes, you are, Mr. Chairman.
    Chairman Hatch. So the SAFE Act would make it even more 
difficult to get delayed notice in criminal and terrorism 
cases, not just terrorism cases, but in criminal cases as well; 
in other words, harder than it was to get delayed notice before 
the PATRIOT Act.
    Mr. Comey. It covers both kinds of cases, yes, Mr. 
Chairman.
    Chairman Hatch. So in other words, it would be even more 
stringent even on domestic crime, and certainly more stringent 
than the PATRIOT Act on terrorist--
    Mr. Comey. Yes, Senator. As Senator Feingold noted, it 
would remove two provisions that allow delayed notice where 
there is a risk of serious jeopardy to an investigation or 
undue delay of a trial or intimidation of witnesses, both of 
which were part of, in different circuits, the judicially-
created delayed notification rule.
    Chairman Hatch. I just wanted to have that made clear.
    Senator Feingold. Mr. Chairman, can I clarify that point?
    Chairman Hatch. Sure.
    Senator Feingold. It is my understanding that Mr. Comey is 
right that we do eliminate the provision relating to 
jeopardizing an investigation or unduly delaying a trial. But 
intimidation of potential witnesses--all right, fine, all 
right. Strike that. I stand corrected.
    Chairman Hatch. Okay, thank you.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman. I have got four 
specific questions. I think I can get them all done.
    Chairman Hatch. Excuse me. I think Senator Craig was next.
    Senator Kyl. Oh, I am sorry.
    Chairman Hatch. So, Senator Craig, we will turn to you.
    Senator Kyl. Go ahead.
    Senator Craig. Well, I will be very brief because, first 
and foremost, Mr. Comey, I tremendously respect your experience 
and your talent. I feel handicapped when talking about these 
issues because I am not an attorney, and that says therefore I 
have never had need to study the law or to practice it in 
detail the way you have.
    But I do think I have some understanding of how it works, 
and on the issue of delayed notice or sneak-and-peek--and I can 
understand why you choose not to use the words ``sneak-and-
peek''--I was sitting here applying it to the circumstance that 
you were giving us of actual practice as it related to that 
drug crowd moving into Richmond. And I was saying is there 
anything in the SAFE Act and its provisions that would have 
stopped you from continuing to do exactly what you did with the 
way you did it and the successful way you accomplished it. I 
concluded there was not.
    Now, I would suggest this: Our provision does not tie your 
hands with a heavy cable. It ties your hands with a satin 
ribbon. There is a slight tug in 7 days. You have go to back to 
the judge and therefore gain an extension, and another and 
another. And in the circumstance that you so vividly painted, 
would you suggest that a judge would not have extended that?
    Now, let me add to that. We went to the Justice Department 
and asked what is the average time that a judge allows, and the 
word was 7 days. If it takes 8 or 10 days, if that is more 
practical, I am willing to amend or adjust or change. But to 
suggest that an uncontrolled extension of time or no time, and 
to suggest that a judge is going to be dutiful in saying, gee, 
I think it was about 7 days they came to me, I had better check 
in on that--that is not going to happen either.
    But the question is simply this: Would these provisions--
and I think you accurately said they are adjustments around the 
edge--would it have changed your ability to do what you did in 
Richmond?
    Mr. Comey. No, I don't believe that it would have, except 
as you said, Senator, we would have to go back to the judge. 
Rather than him saying--and I can't remember exactly whether 
you can extend it for 60 or 30. We would have to go back every 
seven.
    The case that I mentioned with the seizure of the Ecstasy--
I think that would be affected. In the Richmond case we could 
use the ``lives in danger.'' The one with the Ecstasy case 
where the interest was in making sure that we were able to 
arrest all the bad guys the next day, I think, although I could 
make arguments to try and shoe-horn it someplace else, that I 
would need that ``serious jeopardy to an ongoing 
investigation'' prong there.
    But you are exactly right. The 7 days is not the end of the 
world, and I explained in my opening why I approach it, though, 
from a presumption that it is not appropriate.
    Senator Craig. I look at it from a different perspective. I 
don't want your hands to be tied, but I want to make sure that 
you recognize the importance of the law and the right of a free 
citizen. So there has to be a little test, a stronger test, a 
slightly tougher test, not a trip wire, but a tether rope that 
tugs at you and causes you, the law, to do the right thing.
    I have never questioned you not doing the right thing. I am 
too respectful of you and the work you have done, and I say 
that both to you individually and collectively. But I know why 
you are good at what you do, because the law is specific. If it 
were not, you would do it differently in certain circumstances 
and certain cases, under certain conditions, because you are 
human, and so am I.
    We want the law to go beyond that and that is what we try 
to do in making slight adjustments.
    Senator Feinstein was right. We don't repeal. I am for the 
PATRIOT Act, but I am for some slight safeguards along the way.
    Now, let me ask this in relation to Section 215. Opponents 
of the SAFE Act are emphasizing the involvement of FISA judges. 
However, how much discretion does a judge really have when the 
threshold standard sought for an international terrorism or 
intelligence investigation is so low and the possible result of 
obtaining sweeping records is so severe? I think Senator 
Feinstein put it one way and I put it a slightly different way.
    Mr. Comey. I think that Senator Feingold stated it 
accurately that the judge is not required to make any finding 
other than that the application meets the requirements of 
section 215. That is true, though, in a host of provisions 
under which we obtain information, for example, pen registers 
to record the numbers dialed from a phone and the numbers 
received from a phone. All we have to do as criminal 
investigators is represent that it is relevant to our 
investigation and the judge has no discretion to deny a pen 
register.
    The reason that I don't think that should concern people is 
people need to focus on what is being obtained. We are 
obtaining preexisting records under 215 that can be obtained, 
frankly, with no showing under a grand jury subpoena. I think 
folks tend to mix together searches and things of that sort. 
This involves going to someone who has preexisting records, 
serving process on them and obtaining that.
    On the criminal side, as I said, that requires no 
involvement of a judge. In 215, it involves a judge reviewing a 
representation that it is sought in connection with the 
appropriate investigation.
    Senator Craig. So you see that the adjustments we have made 
to 215 in the proposed SAFE Act amendments as tremendously 
tying your hands, or just causing you a little tougher test?
    Mr. Comey. Well, the express insertion of a relevancy test 
would not significantly tie our hands, because it is implicit 
anyway. That is the way we read it already.
    What would tie our hands is if there is a requirement than 
an investigator make a showing of specific and articulable 
facts to believe that the person is a terrorist.
    We are often getting anonymous tips and going out secretly, 
because we don't want good people to be smeared, to get records 
in criminal cases and in counter-terrorism cases. If we ever 
have to make a showing before we can get the records to check 
out the tip, we have established a very serious hurdle.
    That is the part that concerns me most.
    Senator Craig. I don't dispute that that is a tough call.
    That is also what protects a lot of free citizens.
    Thank you.
    Chairman Hatch. Senator Durbin.
    Senator Durbin. Thank you very much.
    Mr. Comey, thank you for being here and thank you for 
serving our Nation. I have to tell you that though I have many 
differences with the Department of Justice, I have the highest 
respect for you. I think you have served our Nation well in 
many capacities and continue to do so to this day. Thank you 
for joining us.
    Let me also say that I am relieved to hear you say that the 
SAFE Act, in your words, would result in a modest change to the 
PATRIOT Act. That is a dramatic change in tone from the 
statement made by the Attorney General, who described the SAFE 
Act as, quote, ``unilaterally disarming American defenses,'' 
``risking American lives,'' ``eliminating some of the PATRIOT 
Act's most critical new tools.''
    I think you are right. I think our changes are modest and 
are specific, and we are prepared to discuss with you and with 
every member of the Committee the best way to deal with them.
    Let me say, as well, that I would like to go through three 
or four areas that we have talked about here and then leave it 
open if you would like to make a note or two at the end for 
your comments on each.
    Section 213, delayed notification. You said at one point, 
keep in mind that we are talking not about a constitutional 
right to notice, but a right created by Federal rule; I believe 
you said Rule 21. Yet, if you read one of the circuit decisions 
in Freitas, here is what they said: ``The absence of a notice 
requirement in the warrant presents a much more difficult 
issue. While it is clear that the Fourth Amendment does not 
prohibit all surreptitious entries, it is also clear that the 
absence of any notice requirement in the warrant casts strong 
doubt on its constitutional adequacy. We resolve these doubts 
by holding that in this case the warrant was constitutionally 
defective in failing to provide explicitly for notice within a 
reasonable, but short, time subsequent to the surreptitious 
entry. Such time should not exceed 7 days, except upon a strong 
showing of necessity.''
    So the court disagrees with you. They argue it is a Fourth 
Amendment issue, it is a constitutional issue. We all envision 
a person knocking on the door saying, I have a warrant to 
search your home. That is notice. Now, we are talking about a 
situation where agents search your home and you don't know it. 
You don't know they have been in your files, in your computers, 
in your closets, that they have looked at everything in your 
life. The court has said that really is in the area of 
unreasonable search and seizure, and I think that is important.
    Secondly, when it comes to this issue about libraries and 
whether they are overreacting, I think there is a clear 
difference, as Senator Feingold pointed out, between grand jury 
subpoenas. You are given notice of a grand jury subpoena that 
they are about to take your records. You can go to the court to 
quash that subpoena and say it should not issue.
    Secondly, you clearly aren't dealing with a gag order 
situation. Finally, the standard in the PATRIOT Act, I hope you 
will concede, is lower than the standard of relevance that is 
required when it comes to grand juries. In other words, the 
Government has to make less of a case to seize library records, 
a lower standard that they currently do under a grand jury 
subpoena, which at least requires relevance. As Senator 
Feingold has said, these records are being sought for a 
terrorism investigation.
    When we asked you how do we know that we can trust the 
Government, you said, and I think accurately, a lot of people 
are looking over your shoulder--judicial supervision, 
Congressional supervision, inspector general supervision. But 
the point made by Senator Feingold is a relevant point.
    The reports that you are supposed to give us so that 
Congress can look over your shoulder are long overdue. I am 
glad to hear that Friday they will be coming, and I think that 
that is important.
    There is also an argument made on your side that since we 
have really had no complaints about the PATRIOT Act, and there 
have been no lawsuits filed, why all the stir, why all the 
furor? Well, a lot of the people who are being investigated 
under the PATRIOT Act may not know it. They may not know that 
they are the targets of a roving wiretap or an undisclosed 
search of your home or an undisclosed search of records at a 
library or a business.
    So I don't know if you made your case very strongly by 
saying people who are not aware that their rights are being 
violated haven't filed lawsuits.
    The last point I would like to make to you relates to the 
Civil Liberties Board. I think that the 9/11 Commission got it 
right. They said, ``At this time of increased and consolidated 
government authority, there should be a board within the 
executive branch to oversee adherence to the guidelines we 
recommend and the commitment the government makes to defend our 
civil liberties.'' They went on to say, ``Our history has shown 
us that insecurity threatens liberty. Yet, if our liberties are 
curtailed, we lose the values we are struggling to defend.''
    The Civil Liberties Board which you have said you support 
by executive order is a dramatic contrast from the one that is 
being entertained by the Governmental Affairs Committee 
upstairs. The difference is this: The Civil Liberties Board 
that the President has created by Executive order to guard our 
liberties is a board that is made up of people already in the 
administration and in the Government. It is as if we are saying 
to a baseball player, call your own balls and strikes.
    Really, what we need is what Governor Kean said when I 
asked him directly this question, whether the executive order 
served the purpose stated in the 9/11 Commission report. He 
said that he believed--and I agree--we need ``a disinterested 
perspective;'' we need someone with objectivity, someone with 
knowledge when it comes to civil liberties to really look long 
and hard at what is being done by the Government to see if they 
have gone too far.
    I think the executive order creates an in-house operation, 
chaired by the Department of Justice, which will not bring this 
objectivity to the question. The Governmental Affairs Committee 
is going to change that, I hope.
    I invite your response to all or any part of that.
    Thank you.
    Mr. Comey. Thank you, Senator, and perhaps I could start 
with the Civil Liberties Board. I think the Department of 
Justice has earned over centuries a little bit more of a 
reasonable doubt on this, a little bit of presumption of 
regularity that we can call balls and strikes in-house, because 
we do it every single day.
    We prosecute political corruption. We investigate employee 
misconduct. We prosecute civil rights cases all over this 
country that involve Government officials. We clean our own 
house very aggressively; we clean the houses of other agencies 
very, very aggressively. This is what we do.
    The only thing I would ask with respect to the Civil 
Liberties Board is, given that track record, folks would give 
us a chance.
    We created these institutions of Government to be able to 
address issues about civil liberties and concerns about civil 
liberties, and I believe that we can and that we have a record 
that shows that.
    Senator Durbin. If I could just make one comment, I am old 
enough to remember the era of J. Edgar Hoover. Thank God, it is 
gone. Thank God, we don't have an FBI Director--instead, we 
have a wonderful man, a great public servant in Bob Mueller.
    But we have to be sensitive, as Senator Craig has said, to 
the fact that administrations change, directors change. And if 
we are going to guard basic liberties, don't we want someone on 
the outside looking in, as opposed to someone on the inside 
that may have the mind set of a darker era of the Hoover at the 
FBI?
    Mr. Comey. Senator, if I could just briefly address what I 
think is some confusion about how criminal investigators obtain 
documents compared to counter-intelligence investigators using 
215, when we issue a grand jury subpoena, we do not give notice 
to the person whose records we are seeking. In other words, if 
we go to a rental car agency and seek the records of Jim Comey, 
we don't tell Jim Comey we are seeking it. The rental car 
agency knows we have seized the records. We have no obligation 
to notify the citizen.
    Gag orders are major feature of criminal investigations. 
When we serve a bank with a subpoena for Jim Comey's bank 
records--and I hate to keep using me, but if they are seeking 
my records, that bank is required by statute not to tell me. It 
used to be we had to give them non-disclosure orders, and then 
it was written into the law they cannot tell me that they have 
sought my records. That happens literally thousands of times 
every year in the United States.
    The reason is important is that secrecy. We investigate a 
lot of innocent people and we don't want them smeared. We also 
investigate a lot of guilty people; we don't want them to know 
we are coming. I think what we have done with the PATRIOT Act 
is simply take that concept and put into the world of counter-
terrorism and counter-intelligence.
    Chairman Hatch. Senator Kyl.

   STATEME OF HON. JON KYL, A U.S. SENATOR FROM THE STATE OF 
                            ARIZONA

    Senator Kyl. Thank you, Mr. Chairman, and I want to thank 
Senator Cornyn for allowing me to go before him.
    Just two quick comments, and then I have four specific 
questions and I think they can all be answered fairly quickly. 
I now notice that to one degree or another, I think you have 
addressed all of them in some way.
    Let me just make two preliminary comments. Those who served 
with then-Senator, now Attorney General John Ashcroft know that 
he is a person very strongly personally committed to privacy 
rights and civil rights. I know because I had some 
disagreements with him when we were dealing with the Internet, 
and he is a tiger when it comes to protecting privacy rights. 
He worked, I know, with Senator Feingold on racial profiling 
and the like. I just want to make it clear that I know he has 
instilled that same strong support for privacy rights in his 
Department and that nobody can suggest that he is not committed 
to that.
    Secondly, the reason I wanted to put Vice President 
Cheney's comments in the record is that when the Ranking Member 
used words like ``outrageous'' and ``dark side,'' and even 
invoked the name of Joe McCarthy to smear the Vice President, I 
didn't think that he was being accurately quoted.
    Chairman Hatch. You mean the Vice President.
    Senator Kyl. Did I say the Vice President?
    Chairman Hatch. No. You didn't think the Vice President--
    Senator Kyl. The Vice President was accurately quoted. So I 
think his comments need to be put in the record and I will see 
that that is done.
    Let me just ask four specific questions, since I am not 
going to be able to be here for Congressman Barr's testimony. 
But in his written testimony, he says that the PATRIOT Act, and 
I am quoting now, ``is the only criminal statute Congress has 
ever passed that authorizes law enforcement agents to get a 
warrant to secretly search a person's home for evidence of a 
crime.''
    Now, it is my understanding that it was 36 years ago that 
the Crime Control and Safe Streets Act was enacted, and in this 
Congress enacted delayed notice authority when it authorized 
the use of wiretaps in criminal investigations.
    Am I correct or is Congressman Barr correct?
    Mr. Comey. You are correct, Senator, with respect to 
wiretaps and notice about whether someone was intercepted on a 
wiretap. He is correct in that the rule about delaying 
notification of search warrants was judicially created by 
judges from all political parties because it was needed.
    Senator Kyl. So it is not a criminal statute, but it has 
been judicially created. Got it.
    Second, at page 8 of his written testimony, he states that 
the PATRIOT Act's codification of judicial common law allowing 
delayed notice searches--I guess this is now what he would be 
referring to there--``is so overly broad that it cannot help 
but be over-used.'' Those are his words.
    You have noted that it requires periodic reports by the 
inspector general, the current one, by the way, having been 
appointed by President Clinton. The PATRIOT Act also allows 
that any aggrieved individual can bring a civil action in the 
event of abuses of the PATRIOT Act.
    Are you aware of any evidence that the PATRIOT Act's 
delayed notice provisions have been abused?
    Mr. Comey. No, Senator.
    Chairman Hatch. All right. At page 10 of his written 
testimony, former Congressman Barr states that the PATRIOT 
Act's extension of roving wiretap authority to terrorism 
investigations, quote, ``allows FBI agents to engage in 
investigative fishing expeditions against anyone who meets the 
general physical description in the surveillance order.''
    It is my understanding that even though the Government may 
not know the actual name of a target of a PATRIOT Act wiretap 
that the wiretap can still only apply to a specific person, 
even if the Government only knows his alias.
    Is that correct or is Congressman Barr correct?
    Mr. Comey. That is correct, and we have to provide--as we 
do when we indict John Does, for example, we have to provide a 
description, everything we know about the person, because we 
are focused on an individual terrorist. I read Congressman 
Barr's testimony and I don't think he fairly characterized it.
    This is a tool that would be very rarely used, but when you 
need it, you really, really need it because you have got a 
terrorist. You know who he is, you know his physical 
description.
    You don't know his name and you know he is jumping from 
phone to phone, and that is the kind of thing that keeps me up 
at night.
    Senator Sessions. Senator, people are indicted under the 
name John Doe. You indicated that. Is that correct?
    Mr. Comey. Yes, Senator. In the Khobar Towers bombing case, 
I indicted the Lebanese bomb-maker who I know has a tattoo in a 
particular place. And I can describe him; I know his eye color. 
I don't know his name, so I indicted him as John Doe and then 
described him in the indictment.
    Senator Kyl. Good, thank you. And a final question: at page 
11 of former Congressman Barr's testimony, he states that the 
PATRIOT Act would allow, and I am quoting him again, ``randomly 
wiretapping apartments in an apartment complex because they 
have a hunch that a single suspect fitting their general 
description might be in one of them.''
    Is there any circumstance that you know of under which that 
could be true?
    Mr. Comey. That is what I meant when I said I don't think 
he accurately described it. I can't imagine how we would be 
able to do that using the authorities of the PATRIOT Act.
    Senator Kyl. Well, I want to thank you for your clear 
testimony. I know it may take four minutes to describe some of 
this, but it is very, very important that people with direct 
experience like you relate that experience to compare what 
authority you have under existing criminal laws and how that 
has been used with the in many cases more restrictive authority 
granted to try to go after terrorists, but which authority is 
nevertheless very, very important. And it may be rarely used, 
but when it does need to be used, as you have pointed out, it 
is critical that that authority exists. I also appreciate your 
reference in your written testimony to the numerous safeguards 
that we have embedded in the PATRIOT Act as well.
    So thank you for your service, and thank you, Mr. Chairman 
and Senator Cornyn.
    Chairman Hatch. Thank you, Senator Kyl.
    Senator Feinstein.
    Senator Feinstein. Thanks very much, and thank you, Mr. 
Comey, for being very straight in your answers. I appreciate it 
very much. It is also my understanding that DOJ will send a 
report this Friday that will inform Congress how often Section 
215 has been used.
    Is that correct?
    Mr. Comey. That is correct, Senator.
    Senator Feinstein. I appreciate that.
    Mr. Comey. I said that I have been told you don't ever want 
to give exact dates, but I have pressed the troops and I am 
confident we are going to get it up here on Friday.
    Senator Feinstein. All right, fine. Section 1001 of the 
PATRIOT Act requires DOJ to collect and investigate allegations 
of civil rights and civil liberties abuses by DOJ employees 
through the office of the IG. The OIG reports many of the 
allegations and the resolutions on its website for the public 
to view.
    My question is can you tell us how many civil rights 
complaints under the PATRIOT Act have been referred to OIG, to 
the Civil Rights Division of DOJ, for criminal prosecution?
    Mr. Comey. I am not aware of any, Senator. I believe that 
the inspector general has reviewed all of them and found either 
they are patently ridiculous or relate to something not on the 
PATRIOT Act. But I am not aware of any that he has found of 
sufficient credibility to refer for criminal investigation.
    Senator Feinstein. That is one of the problems that I have 
had for a long time, is when you really look into complaints, 
you find that they are really not related to the PATRIOT Act.
    Now, the second question is can you tell us, of the cases 
referred to the Civil Rights Division, how many cases resulted 
in criminal prosecution for violation of civil rights under the 
PATRIOT Act?
    Mr. Comey. Well, there have been none, Senator, as we have 
discussed, because I am not aware of any referrals to the Civil 
Rights Division.
    Senator Feinstein. Now, Section 412 states that if an alien 
has been detained solely under that section because he is a 
threat to national security, but his removal from the United 
States is unlikely in the foreseeable future, the Attorney 
General may continue to detain him for an additional period of 
up to 6 months.
    According to a booklet prepared by your Department called 
``The US PATRIOT Act: Myth Versus Reality,'' to date the AG has 
not used Section 412, but believes that this authority should 
be retained for its use in appropriate situations.
    Is that true? What would the appropriate situations be? And 
since it has not been used thus far, should we keep it?
    Mr. Comey. Senator, I am aware of the report where it 
hasn't been used. I think that is true as of today that it 
hasn't been used. I think it is one of these tools, as I 
mentioned with respect to the John Doe roving wiretap, that you 
are not going to need much. But when you need it, you really 
need it.
    The situation I envision is where you have a person whose 
deportation would lead to him harming people overseas or 
reentry into the United States and you can't use the normal 
tools of the immigration system to continue to detain him. That 
would be an extraordinarily unusual situation, as evidenced by 
the fact that the AG has never had to do it. But to me, that 
doesn't counsel in favor of taking it off the books.
    Senator Feinstein. Now, I want to ask you a question about 
the SAFE Act. As you know, we had a hearing last week on the 
SAFE Act, which has been introduced by my friend and colleague, 
Senator Kyl. We got on the subject of administrative subpoenas, 
which I know the FBI feels is a need.
    The question I would have is, as a kind of check measure, 
would there be a problem in the case of an administrative 
subpoena if the law required the sign-off of a United States 
Attorney? In the event that a grand jury is not meeting, a call 
would be to a U.S. Attorney and that U.S. Attorney would be 
required, day or night, to sign off on an administrative 
subpoena?
    Mr. Comey. I think it is in the Tools for Fighting 
Terrorism Act that Senator Kyl has introduced. I don't know 
that that would be the end of the world, but I think the reason 
that the FBI--and they articulated it, I think, quite well--
believes that they need this administrative subpoena ability is 
to be agile when they are not able to hook up with an Assistant 
United States Attorney or a grand jury is not in session.
    I think they can make a strong case that we need it for 
those circumstances where we are in the middle of nowhere and 
we have to give somebody process to be able to obtain a record 
that is critical.
    Senator Feinstein. Thank you. Let me correct something I 
said. It wasn't the SAFE Act. It was Tools for Terrorism, which 
is kind of a compendium of additional measures. At least in my 
view, it is a bit premature to take those additional measures 
right now, until we have, I think, our oversight hearing on the 
PATRIOT Act and make a decision on the 16 sections that expire, 
with the one possible exception of this administrative 
subpoena.
    I would have a hard time giving the administrative subpoena 
right without some kind of check. In talking with people about 
it in law enforcement, they say, well, it is given in other 
areas such as health care law, and the real need for it is as 
an aid to, say, a hotelier who may be reluctant to provide a 
certain record of hotel use without subpoena power.
    Yet, if you really think about that subpoena power, it 
could be used incorrectly, as well. Therefore, I think the 
sign-off by a U.S. Attorney, particularly because most grand 
juries are not in session all the time, is warranted.
    Senator Schumer. You can always reach a U.S. Attorney.
    Senator Feinstein. Yes, you can always reach a United 
States Attorney.
    You are raising your eyebrows. You don't think so?
    Mr. Comey. No. I obviously have a bias toward U.S. 
Attorneys. That is what I do for a living, and I like the FBI 
to be involved in my life, but there are times--and I don't 
mean that in a personal way.
    Senator Sessions. Trust me, there is history here.
    Mr. Comey. Yes, but I think I articulated the argument in 
favor of it and it is the situation that you alluded to, 
Senator, that you have got a hotel desk clerk; it is the middle 
of the night. You need to see that registration book and he is 
not going to give it to you, and he says I need some sort of 
process.
    Well, the argument for the administrative subpoena is I 
need to be able to cut that, give it to him, and the risk of 
over-use would be addressed by a reporting requirement that a 
list of every time that we have done it be provided to the 
oversight committees, the circumstances and when.
    Senator Feinstein. Thank you. My time is up. Thanks, Mr. 
Chairman. Thank you, Mr. Comey.
    Chairman Hatch. Thank you, Senator.
    I forgot to put Senator Durbin's remarks into the record 
immediately following his question period.
    Senator Cornyn.
    Senator Cornyn. Mr. Comey, if that hotel desk clerk doesn't 
give you the registry, what happens next in response to an 
administrative subpoena? You have to go to a judge, right?
    Mr. Comey. And seek enforcement of it, yes.
    Senator Cornyn. So there is judicial review both under this 
delayed notification search warrant that we have heard called 
sneak-and-peek, and under the administrative subpoena. We have 
always got a judge in the picture providing judicial review. 
Would you agree?
    Mr. Comey. Yes, Senator. Judges are all over my life, and 
that is also a good thing.
    Senator Cornyn. Mr. Comey, if I truly believed that the USA 
PATRIOT Act had deprived Americans of their civil liberties, I 
would be outraged, and I and my colleagues here would be all 
over you and everybody else whom we thought perhaps was aiding 
and abetting the abuse of the civil liberties of the American 
people. But I don't believe it based on what the evidence is.
    But I do think it is good for us to have a debate, a 
discussion of the SAFE Act, even though I am not for it, and a 
discussion of the USA PATRIOT Act, for the very reason that you 
said earlier, because people just flat are misinformed about 
what the PATRIOT Act contains and what it has done and how it 
is responsible for making the American people safer. So I think 
responsible debate is good, and discussion, to help educate 
everybody, including us.
    But I think irresponsible suggestions--you know, I don't 
know why we got into, when the Ranking Member started speaking, 
talking about enemy combatants and the Vice President's 
statement. I am not asking you to comment on any of that, but 
let me just ask you this. The 9/11 Commission 3 years after 9/
11 said America is safer but not yet safe.
    Do you recall that phrase?
    Mr. Comey. Yes, Senator.
    Senator Cornyn. And I would submit to you, Mr. Comey, the 
reason why America is safer is because Congress and the 
administration did not wait 3 years to begin to respond to the 
deficiencies we saw that allowed 9/11 to occur; for example, 
creation of the Department of Homeland Security, creation of 
the Terrorism Threat Integration Center, passage of the PATRIOT 
Act, which, as we heard during some rather famous bits of 
testimony before the 9/11 Commission, tore down the wall that 
prevented the sharing of information between intelligence 
agencies and law enforcement.
    Indeed, the one thing that sunk in the most to me was we no 
longer regard terrorism as strictly a criminal act. We are out 
to stop the bad guys before they hit us. Indeed, I believe that 
the 9/11 Commission said it quite eloquently, and indeed we are 
safer as a result of these actions. That doesn't mean there is 
not more that we can do, but indeed I think the SAFE Act, with 
all due respect--and I certainly do respect the suggestions, 
but I just disagree with them.
    I don't think that the SAFE Act would make us any safer.
    Indeed, I think it is a solution in search of a problem in 
many respects because I am reminded of something that Senator 
Feinstein said during a previous hearing. She said she had 
gotten tens of thousands of complaints from constituents and 
others about the PATRIOT Act. But being the diligent Senator 
that she is, she did an investigation to see whether there had 
been any actual abuses of the PATRIOT Act, and indeed came up 
with a big goose egg, that there had been no demonstrated 
abuses of the civil liberties or the rights of the American 
people as a result of the USA PATRIOT Act.
    So I worry in this area that what we are not left with is 
rational debate and discussion which helps elevate the level of 
understanding of the American people and the U.S. Congress, but 
unfortunately some despicable tactics used by groups, frankly, 
to raise money and to engage in ideological attacks.
    Indeed, I have received at my residence at least two 
mailings from the
    American Civil Liberties Union demonizing the PATRIOT Act 
and the Attorney General of the United States. So I am struck 
by what a wide gulf there appears to be between the facts and 
rational discussion, as we should have, and the kind of 
hysteria and accusations without foundation that we see in this 
area.
    So I do applaud you and the Department of Justice for the 
work you are doing. I think the work you are doing and have 
done has helped to prevent another attack on our own soil, and 
for that I applaud you and everyone who is working so 
diligently throughout the U.S. Government to make us safe.
    I think what we ought to do is look at issues. There was 
some reference to the Tools to Fight Terrorism Act, which would 
enhance the criminal penalties for possession and trafficking 
in weapons of mass destruction, the use and trafficking of man-
held surface-to-air missiles that could endanger civil 
aviation.
    I know we are not talking necessarily about the Tools to 
Fight Terrorism Act here, but I know you are familiar with it. 
Could you just comment generally, please, on how you believe, 
if you do, that that Act would help make us even safer today?
    Mr. Comey. I think in a number of smart and fairly ordinary 
ways, such as creating a presumption against release for 
someone charged with a terrorism offense. As I explained 
earlier, the administrative subpoena tool is one that wouldn't 
be used a lot, but that might matter very, very much in an 
important investigation. So I see those as important 
supplements to the work that we are doing.
    Senator Cornyn. Thank you. I see my time has expired.
    Senator Sessions [presiding.] Senator Schumer.

 STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE 
                       STATE OF NEW YORK

    Senator Schumer. Thank you, Mr. Chairman.
    I want to thank you, Deputy Attorney General, for doing the 
excellent job that you are doing. Many of us have some 
disagreements with your boss, not so much within the confines 
of the PATRIOT Act. I think most of the complaints are outside 
the confines of the PATRIOT Act and they get lumped together.
    I think the argument that we heard from my good friend, 
whom I don't agree with on this issue all the time, is--and I 
hear it all the time--how can they subpoena your records and 
not let you know? Well, that has been done in criminal justice 
forever. In fact, if you are a potential criminal and they let 
you know, you are going to cover your tracks. So why should it 
be different for terrorists than for anybody else?
    There are all these hues and cries that are way beyond what 
has actually happened.
    That is not to say the PATRIOT Act probably doesn't need 
some changes. I think you can find an Assistant U.S. Attorney 
any time, anywhere. Your experience with criminal justice is 
much greater than mine, but I know enough that at three in the 
morning when a police officer or a detective needs something, 
they find somebody.
    We ought to try to have procedural safeguards, not change 
the way we criminally investigate, but procedural safeguards to 
make sure that things aren't abused. I think we can find a 
happy-medium common ground here that keeps the basis of the 
PATRIOT Act and modifies it where there are some excesses.
    But I do have to say as somebody on the left side, some of 
the hues and cries on the left remind me of some of the hues 
and cries on the right from the NRA and others; you know, nose 
under the camel's tent; well, doing this isn't bad, but it 
might lead to something way down the road. That is not the way 
we should govern. That is not the way we should legislate.
    I was against when our Chairman wanted to renew the PATRIOT 
Act. We said let it sunset because there is a very delicate 
balance between liberty and security in this terrorist age. We 
should go over it, but we should go over it carefully with the 
facts. I find myself in some agreement with my colleague from 
California here. So I am not going to get into the SAFE Act 
now. I think we should do a comprehensive review when the time 
comes, although I appreciate the hearing.
    I would just like to do two things. One, at the request of 
Senator Leahy, I would like to verify that this transcript of 
Vice President Cheney's remarks he has referred to earlier be 
put in the record, because there was some dispute as to what he 
said.
    Senator Sessions. I believe Senator Kyl indicated he will 
offer it and we will put it in the record.
    Senator Schumer. Well, I am offering it right now. I ask 
unanimous consent that it be put in the record.
    Senator Sessions. So ordered.
    Senator Schumer. I am going to read the operative clause 
because Senator Leahy was right in what he said. Here is what 
the Vice President said, not that it is relevant to this 
hearing: ``We're now at that point where we're making the kind 
of decision for the next 30 or 40 years, and it's absolutely 
essential that 8 weeks from today, on November 2nd, we make the 
right choice, because if we make the wrong choice, then the 
danger is that we'll get hit again, that we'll be hit in a way 
that will be devastating from the standpoint of the United 
States, and that we'll fall back into the pre-9/11 mind set, if 
you will, that, in fact, these terrorist attacks are just 
criminal acts and we're not really at war. I think that would 
be a terrible mistake for us.''
    Senator Sessions. Do you want to make that a part of the 
record?
    Senator Schumer. Yes.
    Senator Sessions. I think how we handle the war on 
terrorism could well increase the risk to the people of the 
United States.
    Senator Schumer. Well, no one would dispute that. That is 
not what was the point of contention about what the Vice 
President said, as we all know. I have a few other questions.
    Since we get you here so infrequently and your boss even 
less frequently, I am going to go a little bit afield and ask 
you. As you know, I have been really concerned about our 
relationship with Saudi Arabia, and I think there were are 
close to not tough enough. We are talking about the PATRIOT Act 
here, but I think we let a lot of things just go undone.
    One of the areas that has troubled me greatly is the way we 
handle the investigation of possible Saudis who are in this 
country. Last month, the GAO reported that U.S. law enforcement 
and intelligence agencies failed to review thousands of Saudi 
visa applications submitted and approved during the 2 years 
prior to the 9/11 attacks for possible connection to terrorism. 
In other words, there still may be Saudi terrorists in the 
U.S., but there is no way we would know because we have made no 
effort to track them down. That, to me, is unconscionable, 
unacceptable, and frankly unbelievable.
    Three years after these families lost their loved ones, 3 
years after the PATRIOT Act, 3 years after we structured law 
enforcement's counter-terrorism unit to be more proactive, 
thousands of Saudi visa applications remain unexamined for any 
possible connection to terrorism.
    I wanted to ask you how did this happen and what is being 
done to fix it.
    Mr. Comey. Senator, I do know something about that. I don't 
believe I can discuss it in this forum, but I would be happy to 
find a way.
    Senator Schumer. Okay. If we could, if we have to meet up 
in 407, you know, the cone of silence room or whatever, I would 
like a commitment from you to come and give me an explanation 
of that, if that is okay.
    Senator Feinstein. I would like to hear it, too.
    Senator Schumer. And invite any of my colleagues who wish 
to come. The Senator from California indicates that she would 
like to be part of that.
    Let me give you another one. Last month, the GAO reported 
that nine of the ten officers who have staffed or are staffing 
the U.S. visa security office in Saudi Arabia don't speak or 
read
    Arabic. The GAO commented that this illiteracy in Arabic 
limits their effectiveness and reduces their contribution to 
the security of the visa process. That seems like an 
understatement to me, so I want to know why are we sending 
Americans who can't speak or read Arabic to run the Saudi visa 
office.
    Mr. Comey. That one I don't know anything about, Senator. I 
assume from the visa office it is a State Department function. 
I can make inquiry and--
    Senator Schumer. But it relates to the Justice Department 
and who comes into this country and who doesn't. If you could 
get me an answer to that, I would appreciate it.
    Mr. Comey. I will follow up on that, Senator.
    Senator Schumer. Thank you, Mr. Chairman. My time is up.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. I believe it is my time, and then I 
believe Senator Kennedy is next.
    Mr. Comey, I want to first say to you I think you are one 
of the finest witnesses that has appeared before this panel in 
many years. You understand law enforcement, you understand the 
history of it. You understand the PATRIOT Act. You understand 
its practical implications. If people would just listen to what 
you have said, their blood pressure is going down.
    This is, as I have always said, mainly an incremental act, 
mainly giving to FBI investigators and terrorist investigations 
powers that already existed throughout the Government by all 
kinds of investigators, but not available in terrorist cases. 
If we had to have enhanced law enforcement powers for any one 
single case, it would be terrorism cases, I think all of us 
would agree.
    But we haven't gone beyond, as I can see, any principle of 
law in terrorism cases. We just have made sure that those 
judicially approved, historically approved, Supreme Court-
approved procedures are available in terrorism cases. Is that 
basically the case?
    Mr. Comey. Yes, Senator.
    Senator Sessions. Now, on delayed notice, you talked about 
in this Candy Box example how there were Ecstasy tablets of 
large numbers and you didn't want them to go on and be put on 
the streets, but you weren't prepared to break the 
investigation wide open. Everybody that was involved would 
scatter and you would never find them. I have been a 
prosecutor. I know exactly what that means.
    In fact, one of the key decisions, is it not, in any major 
investigation is when to make the arrest, when to have the 
take-down? And don't you always want to do it at a time when 
the leaders are most available for arrest?
    Mr. Comey. Absolutely, Senator.
    Senator Sessions. Now, let me just say this. Based on your 
experience, could there not be absolutely critical points in an 
investigation in which 3,000 or more American lives are at 
stake and you would need to be able to delay notification in a 
terrorist case, a delayed notification procedure that is 
available right now in drug cases?
    Mr. Comey. You are absolutely right, Senator. It is a tool 
that is not used much, but when it is used, it very much 
matters. And I described the changes proposed by the SAFE Act I 
think as modest change, and that is fair, except that it would 
have a potentially devastating effect in some very, very 
important cases. But as I said to Senator Craig, not a huge 
number of cases, but in a number of cases it would have a very 
significant effect if it had not that catch-all for serious 
jeopardy to an investigation, for example.
    Senator Sessions. Well, I think you have been perfectly 
honest with this panel, and if you had a 7-day limit of time or 
14 days or whatever, this could be a burden and a complexity in 
the investigation. But maybe you could live with that.
    But let me ask you this. The other parts of the SAFE Act to 
me appear to be even more critical, far more dangerous. It 
eliminates the basis for a delayed notification search warrant 
based on the question of whether or not it would jeopardize an 
ongoing investigation. So that can be a very critical matter, 
could it not, for an investigator that you would like to do 
this--first of all, you have to have probable cause to do the 
search warrant. Is that correct?
    Mr. Comey. Yes.
    Senator Sessions. You cannot do the search until you have 
probable cause and a judge certifies that.
    Mr. Comey. That is correct.
    Senator Sessions. Now, if you do a search, you can go in 
and seize all the records in a person's house under normal 
circumstances.
    Mr. Comey. That are within the scope of the warrant.
    Senator Sessions. Within the scope of the warrant that is 
relevant to the crime involved. And so to me, it is no big 
deal, no huge alteration of that procedure to say you are able 
to enter the residence, to examine the residence, to see if 
there are weapons of mass destruction, bomb parts, or other 
things, and not seize them at that moment because it could, in 
fact, upset the investigation and allow the terrorist to 
escape. Is that the issue we are dealing with?
    Mr. Comey. It is one of the issues.
    Senator Sessions. One of the issues we are dealing with.
    Mr. Comey. That is why that authority is so important.
    Senator Sessions. And it also changes the standard to 
requiring that it will endanger life or physical safety of an 
individual, will result in flight, will result in destruction 
of or tampering with evidence; whereas, the standard under the 
PATRIOT Act is it may result in that. Could that be very 
critical in whether or not a warrant is obtained?
    Mr. Comey. Yes, and because it might be interpreted by a 
judge to require a quantum of proof well beyond even probable 
cause to believe these things, which, as you know from your 
experience, Senator, early in an investigation it is often very 
difficult to demonstrate it.
    Senator Sessions. And, in fact, an approved search warrant 
can find evidence that would strengthen your ability to gain 
other information.
    Let me ask this. On administrative subpoenas, is it not 
true that probably 50 times this day--I may not be 
exaggerating--a DEA agent has issued an administrative subpoena 
to get bank records, motel records, and telephone records on 
suspected drug dealers?
    Mr. Comey. Absolutely.
    Senator Sessions. Without approval of a court of grand 
jury?
    Mr. Comey. That is correct.
    Senator Sessions. And that IRS agents can seize bank 
records and that health care investigators can seize health 
care records by administrative subpoena?
    Mr. Comey. That is correct.
    Senator Sessions. And these have been appealed to the 
Supreme Court for many, many years and have been sustained, and 
it is a part of accepted law in America today.
    Mr. Comey. Yes, Senator.
    Senator Sessions. But an FBI agent cannot issue an 
administrative subpoena to get a motel record in the middle of 
the night that might involve the death of thousands of American 
citizens.
    Mr. Comey. That is correct, Senator.
    Senator Sessions. Well, I do not think it is any threat to 
liberty that they be given that power in a case involving 
terrorism. If there is any case that power ought to be 
available, it should be in terrorism cases. And I believe next 
is Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman. I join 
with those that pay tribute to our witness. It is a unique 
position that you are in in terms of all the accolades you have 
received, but I think you have done a very professional job and 
we welcome your responses to these questions. We have respect 
for you.
    We have limited time, and there are a number of areas I 
would like to cover if I could.
    One is on hate crimes. We have passed now in July on the 
defense authorization by a 2:1 majority hate crimes 
legislation, 18 Republicans. It has been out here since 1997, 
legislation that was introduced, myself and Senator Specter, 
the support of 175 law enforcement officials. The 
administration has yet to have a position, and it is in the 
conference at this particular time. A majority, Republicans and 
Democrats, of the House support it. More than two-thirds of the 
Members of the Senate supported it.
    I did not indicate prior to this meeting that I would ask 
you this question, but can you give us what your position is, 
what the administration's position is on the hate crimes 
legislation that is now in the conference on the defense 
authorization?
    Mr. Comey. Senator, I do not know the answer to that, but I 
will look into it and follow up on it.
    Senator Kennedy. All right. Second, on the voting rights, 
there were two recent reports, in the New Yorker magazine, also 
the Washington Post, that the current Justice Department is 
undermining, perverting the function of the voting rights for 
partisan political purposes. There is the 1995 regulations, 
Federal prosecution of election offenses, and this sets out the 
guidelines for the Justice Department. And on page 60 and 61, 
it says, ``Non-interference with the elections.
    Except for matters involving racial discrimination, the 
Justice Department does not have statutory authority to 
prevent''--underlined--``suspected election crime.'' It 
continues: ``Federal prosecutors shall be extremely careful to 
not conduct overt investigations during a pre-election period 
or while the election is underway.''
    Can you give us the assurances that the Justice Department, 
and particularly the Civil Rights Division, will not in any way 
be involved in any political pressure on individuals in terms 
of their voting rights, but will meet its historical and 
traditional and rightful position in terms of protecting the 
voting rights of citizens, access to voting rights for our 
citizens?
    Mr. Comey. Yes, Senator, and I believe that is what we are 
trying to do, which is fill two roles that the Department, as 
you said, has filled historically; that is, to protect people's 
access to the polls and, where we come across it, to 
investigate and prosecute fraud. And we are as prosecutors very 
eager not to have any effect on an election or put ourselves in 
a position where even a credible allegation can be made that we 
were doing something for political reasons.
    So, yes, I pledge that to you.
    Senator Kennedy. These articles, both in the New Yorker 
Magazine and the Washington Post, at least suggest--and I would 
like you to have a chance to read through them and draw your 
own fair conclusion--that in many instances the integrity 
issues have meant harassment to many in these--has been sort of 
a code word to use it. I am not suggesting that you would 
support such a matter, but at least they mention the various 
steps that have been taken. At least they draw some 
conclusions.
    I believe that these guidelines are still in effect, 
January 1995, in terms of guidance on the Voting Rights Act. 
Would you be just good enough to read through both those 
articles--and I will give you the references--both in the New 
Yorker and the Washington Post and just having read those, 
still give us the reassurance? I would appreciate it if you 
would do that.
    Mr. Comey. Certainly, Senator. I have actually, I think, in 
my briefcase copies of them. I have not had a chance to read 
them yet.
    Senator Kennedy. I understand. You were instrumental in 
getting the special prosecutor with real independence 
investigating the White House, Valerie Plame, CIA role, and we 
commend you for that, and I know that you have disclaimed any 
supervisory role in that case. But can you tell us whether 
there has been any interim report that Mr. Fitzgerald has made 
that permits you to tell us when we can expect the action in 
that case?
    Mr. Comey. I do not think it would be appropriate for me to 
comment, even if I knew. But as you said, Senator, Mr. 
Fitzgerald has all the powers of the Attorney General, and so 
he is truly independent of--certainly of me, and I guess I 
ought to leave it there.
    Senator Kennedy. All right. But can you give us assurance 
that the timing of the investigation report will not be 
influenced by any political campaigns?
    Mr. Comey. What I can assure you is that Mr. Fitzgerald is 
the finest prosecutor I have ever met and will conduct himself 
in accordance with the highest standards of the Department of 
Justice.
    Senator Kennedy. Well, he has been highly regarded and 
respected, and so we would expect him to follow that line.
    On assault weapons, the ban now has lapsed. The 
distinguished Attorney General of New York, Bob Morgenthau, 
stated in a letter to the New York Times, ``Assault weapons 
kill dozens in the blink of an eye. Terrorists know this, know 
our laws, recovered training manuals, urged them to obtain 
assault weapons in the United States, where we really make 
their mission easier 3 years after 9/11.''
    Is the Justice Department taking any steps to respond now 
to the availability and accessibility of these assault weapons 
to potential terrorists in terms of protecting the American 
homeland?
    Mr. Comey. With respect to the particular weapons, Senator, 
I do not know of anything with respect particularly to those. 
But as you know we are very, very aggressive on investigating 
and prosecuting guns in the hands of bad guys, obviously 
terrorists, but also drug dealers, drug addicts. We have a zero 
tolerance policy when it comes to that.
    Senator Kennedy. Has the administration given up on trying 
to get the assault weapons ban renewed?
    Mr. Comey. I am not in a position to know, Senator.
    Senator Kennedy. My time is up, Mr. Chairman.
    Senator Sessions. Thank you, Senator Kennedy.
    You know, Senator Leahy--I wish he had not made the 
comments he did about the Vice President. I do not think it was 
the right forum for that. But this is the quote from the Vice 
President: ``If we make the wrong choice, then the danger is we 
will get hit again, that we will be hit in a way that will be 
devastating from the standpoint of the United States, and we 
will fall back into the pre-9/11 mind-set, if you will, that 
these terrorist attacks are just criminal acts and we are not 
really at war.'' And then he issued a clarification. Some said 
it was a retraction. But whatever, he issued a clarification to 
make sure that he did not mean to offend anyone by those 
comments, and we will make this a part of the record, and 
people can make their own judgment about it.
    Senator Feingold, I think you wanted to follow up.
    Senator Feingold. Thank you, Mr. Chairman, I have many 
other questions, but I am just going to make a couple comments 
and ask you one more question, Mr. Comey. And I do thank you--
    Senator Sessions. I just recognize you as our Ranking 
Member to ask these extra questions, because we do need to go 
the next panel.
    Senator Feingold. I understand, and I thank the Chairman.
    I do appreciate this, and I think even though we have some 
strong disagreements, I see at least the germ of some 
possibility that some of the changes suggested in the SAFE Act 
could perhaps be something we could come together on. And I 
hope that happens.
    But I am also very concerned about misstatements and 
mischaracterizations that have been made in defense of the USA 
PATRIOT Act. Some people accept these factual lapses as part of 
our political process, but I cannot.
    Earlier this month, in my own State, the U.S. Attorney for 
the Western District of Wisconsin, J.B. Van Hollen, reportedly 
told the Hudson, Wisconsin, Rotary Club that, ``In fact, 
September 11th would not have happened if the delayed search 
notice, a part of the PATRIOT Act, had existed at that time.'' 
I think that is an outrageous claim, particularly when it is 
made by one of the chief law enforcement officers in Wisconsin.
    No one, not even other administration officials, the 9/11 
Commission, has claimed that the September 11th attacks would 
not have occurred if the delayed notice provision, also known 
as ``sneak-and-peek,'' in the PATRIOT Act had been in place. 
More importantly, the delayed notice provision was a well-
established legal tool available to law enforcement prior to 9/
11, something we have been discussing this morning. That was 
one of the major arguments made by the administration for 
including that provision in the PATRIOT Act. In addition, the 
FISA law that applied to intelligence investigations also 
allowed for secret searches prior to 9/11.
    Mr. Comey, do you agree that delayed notice searches were 
allowed under the law before 9/11?
    Mr. Comey. Yes, Senator. As I said earlier, it was a 
judicially created doctrine that existed across the country.
    Senator Feingold. Sir, what action will you take to address 
Mr. Van Hollen's misstatement? And what steps will you take to 
accurately inform the people of Wisconsin of what the law and 
the facts were before 9/11?
    Mr. Comey. Senator, I am not familiar, obviously, with what 
J.B. might have said at that event, whether he is quoted 
accurately, so I am really not in a position to say. I know 
him. I know he is a very fine prosecutor and U.S. Attorney. 
Beyond that, I do not feel I am equipped to comment.
    Senator Feingold. The words that I quoted from him, though, 
you would not agree that the delayed notification provisions 
would have prevented 9/11, would you?
    Mr. Comey. I do not know what that means, Senator. I am not 
aware of an issue with respect to delayed notification and 9/
11.
    Senator Feingold. You have no reason to believe that would 
be true.
    Mr. Comey. I have no reason to believe there is a 
connection there.
    Senator Feingold. Thank you, Mr. Chairman.
    Senator Sessions. Thank you.
    Senator Craig. Mr. Chairman?
    Senator Sessions. Senator Craig?
    Senator Craig. No questions. Very briefly I want to thank 
the Deputy Attorney General again for his presence here and for 
a level of objectivity that is refreshing on this issue, 
because I am a strong supporter of the Attorney General and the 
work the Justice Department is doing that, in my mind, is not 
in question.
    Let me say one final thing, Mr. Chairman. This report, the 
9/11 Commission report, is not the Bible. It may be as thick as 
the Bible, but it has some very valuable statements in it, and 
I think some valuable findings that all of us are poring over 
in an attempt to make this country a safer country. Here is one 
of its recommendations: ``The burden of proof for retaining a 
particular governmental power should be on the executive to 
explain (a) that the power actually materially enhances 
security, and (b) that there is an adequate supervision of the 
executive's use of the powers to ensure protection of civil 
liberties. If the power is granted, there must be adequate 
guidelines and oversight to properly confirm its use.''
    That is something that none of us disagree with, whether it 
be oversight or guidelines, and sometimes those guidelines are 
necessary within the law. I would like to characterize the SAFE 
Act as some of that. You and I may disagree on that.
    The current Chairman may disagree. But one of our jobs 
without question is to make sure that you do it right, and the 
other job is to make sure the law is instructive, controlling, 
and shaping.
    And that is the attempt of what we are doing here, and I 
thank you very much for being with us.
    Mr. Comey. Thank you, Senator.
    Senator Sessions. Thank you very much. We will have the 
next panel, and, again, thank you for extraordinary testimony. 
You are a professional and you know the law. You understand how 
it works, and I think you have helped us all understand it far 
better than we did before. Thank you.
    I do have a commitment and will have to leave in a few 
minutes, and I expect Senator Hatch will be back in a few 
minutes. But I think we would want to go on and get started, 
and I would like to welcome former Congressman Bob Barr to our 
hearing today.
    Prior to serving in the House, he was United States 
Attorney for the Northern District of Georgia, in Atlanta, and 
we worked together when I was the United States Attorney in 
Alabama at that time, and I got to know you, Bob, at that time 
and respect you very much. You are now an attorney in private 
practice, and you occupy the 21st Century Liberties Chair for 
Privacy and Freedom at the American Conservative Union and 
consult on privacy matters for the American Civil Liberties 
Union.
    I also want to welcome former Associate Deputy Attorney 
General Daniel Collins to the Committee today. While in the 
Office of the Deputy Attorney General he served as the 
department's chief privacy officer and coordinated the 
Department's policies on privacy issues. Mr. Collins is now a 
partner with Munger, Tolles and Olson in Los Angeles, 
California.
    So we would like to thank you both for appearing here 
today, for caring about the issues that are important to 
America. We do have threats to our country. We have criminals 
out there and we have terrorists out there. Some of them go 
beyond being criminals.
    They are unlawful combatants, for whatever that means.
    Bob Barr, thank you, and we would be glad to hear your 
statement at this time.

 STATEMENT OF HON. BOB BARR, FORMER REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF GEORGIA

    Mr. Barr. Thank you very much, Mr. Chairman. I would like 
to thank you and certainly Chairman Hatch, who is now joining 
us, for the courtesies always extended to me whenever I have 
the honor of appearing before this body as a witness. And I 
appreciate very much the opportunity to appear today to talk 
about the PATRIOT Act, the SAFE Act, and related issues, and to 
hear the outstanding testimony that I have been listening to in 
the office next door earlier today from the witnesses and from 
the Senators on this panel.
    I would like, Mr. Chairman if I could, to request that my 
entire testimony as submitted to the Committee be included in 
the record.
    Chairman Hatch. Without objection, and I am certainly happy 
to see you again. Sorry I could not be here right at the 
beginning.
    Mr. Barr. Well, I appreciate the Chairman rushing back just 
to listen to me. I appreciate that honor.
    Chairman Hatch. Well, I did, as a matter of fact.
    Mr. Barr. But I know that the Chairman, as the other 
members of the Committee, having served in the other body 
myself, are extremely busy, and I certainly appreciate the 
opportunity to be here to submit my statement for the record, 
which I will not read in its entirety, but just refer to a few 
things, and then answer either today or any subsequent 
questions posed to me by yourself, Mr. Chairman, or any other 
members of the Committee.
    I think it is important to emphasize, for the American 
people primarily, a fact certainly known to this Committee, but 
which I think bears repeating, and that is that the American 
people are not left with any impression that prior to enactment 
of the PATRIOT Act, this Government had no tools with which to 
fight terrorism or to prosecute crimes involving terrorism. The 
full range of powers, both procedural as well as substantive, 
with which acts of terrorism could be investigated and 
prosecuted were available to the Government prior to the 
enactment of the PATRIOT Act in 2001. Those tools all remain 
available today. The PATRIOT Act, of course, supplemented that 
very broad range of powers that the Government already had. And 
I and many others, including Senators Craig and Durbin, as they 
have testified to today, do not in any way seek to dismantle 
that very carefully crafted range of substantive and procedural 
powers that have been and are available to the Government to 
fight terrorism. We are not talking about dismantling the 
additional powers that were made available to the Government 
under the PATRIOT Act, simply consistent, I think, with the 
views of this Committee and the Senate and the House, to take a 
continuing look at those powers. That is the reason why, of 
course, the Congress in its wisdom included sunset provisions 
for many of these--not all, but many of the powers in the 
PATRIOT Act, and we are simply in support of the SAFE Act, for 
example, doing, I think, precisely what Congress recommended 
and codified that we do, and that is to take a regular and 
constant and continuing look at these powers.
    When, for example, one looks, Mr. Chairman at sort of the 
three stages of what brings us here today--and that is the pre-
PATRIOT Act powers the Government has, the powers currently 
exercised by the Government pursuant to the PATRIOT Act, and 
other provisions of law, and the SAFE Act--I think it is 
important to keep in mind just a few things, and that is that 
before 9/11, that is, before the PATRIOT Act, the Government 
had roving wiretap power which it could exercise in cases 
involving terrorism, as well as other criminal cases. It was a 
carefully circumscribed power, but it was a power that was 
available in terrorism cases.
    Similarly, Mr. Chairman, regarding sneak-and-peek powers, 
so-called delayed notification search warrants, I think it is 
important to emphasize that prior to the PATRIOT Act, the 
Government did have limited sneak-and-peek powers, that is, the 
ability to execute a search warrant, to search premises and 
seize evidence pursuant to that warrant. Chairman Hatch. But in 
both cases, Bob, much more limited than the PATRIOT Act.
    Mr. Barr. Yes, sir, absolutely.
    Chairman Hatch. I just want to make that clear.
    Mr. Barr. With regard to the securing of library and other 
records, such as Section 215 of the PATRIOT Act provides, prior 
to 9/11 the Government did have, again, more limited powers but 
certainly had powers in any instance in which it had credible 
evidence, reasonable suspicion that an individual or group of 
individuals were committing or were conspiring to commit acts 
of terrorism or other criminal acts, it could get those 
records.
    And, finally, with regard to so-called national security 
letters or administrative subpoenas, prior to the PATRIOT Act 
the Government, the FBI, had the power to secure those.
    Currently, as the Chairman correctly has noted, in all of 
these different areas--roving wiretaps, sneak-and-peek or 
delayed notification search warrants, library and other 
personal records, and national security letters--the Government 
continues to have those powers, but much broader, in a much 
broader range of circumstances. And under the SAFE Act, I think 
it is important also to emphasize, as the Chairman certainly 
knows but to emphasize for purposes of the record here, that in 
none of these areas of Government power--roving wiretaps, 
sneak-and-peek, access to personal records such as library 
records, and national security or administrative subpoenas--the 
SAFE Act would not curtail in any significant way, I do not 
believe, any of these powers. All of them would remain 
available to the Government. The Government would simply have 
to do something that I would think we would all agree on if we 
really stop and think about it, and that is simply to have a 
reasonable linkage between the records on an individual being 
sought and some credible suspicion, reasonable suspicion that 
that individual or those individuals have committed a violent--
not a violent act but a criminal act, including acts of 
terrorism.
    My written testimony indicates, provides additional detail 
of the circumstances in which this would be the case, and I 
would be most happy to answer any questions by the Chairman or 
other members today, or anything submitted in writing 
hereafter.
    [The prepared statement of Mr. Barr appears as a submission 
for the record.]
    Chairman Hatch. Well, thank you. I think we will submit 
questions in writing. I know that you have another appointment, 
so I am going to accommodate you, and if you would care to, you 
can leave anytime you--
    Mr. Barr. I appreciate that, Mr. Chairman. I am okay time-
wise right now. I do have a flight back down to Atlanta to 
catch. I appreciate the Chairman keeping that in mind.
    Chairman Hatch. All right. Thank you.
    Mr. Collins, we will take your testimony.

STATEMENT OF DANIEL P. COLLINS, MUNGER, TOLLES AND OLSON, LLP, 
                    LOS ANGELES, CALIFORNIA

    Mr. Collins. Thank you, Mr. Chairman I appreciate the 
opportunity to testify here today. There are few subjects more 
important than the prevention of terrorist attacks, and the 
question whether or not we have the appropriate tools to 
prevent terrorist attacks in a way that respects and enhances 
liberty and security is a very important topic.
    In my written testimony, I have identified a number of 
principles that I think should guide that inquiry. I would like 
to just point to three of them and then discuss some of the 
specific provisions of the SAFE Act in light of those 
principles.
    First, of course, is unwavering fidelity to the 
Constitution, and I have not heard--I have listened to all of 
the comments today. I have not heard anyone contend that any of 
the provisions of the PATRIOT Act that would be changed by the 
SAFE Act are in any way constitutionally infirm. There was some 
discussion of whether or not the elimination of notice 
altogether in the search warrant context might violate the 
Fourth Amendment. But that is not something that the PATRIOT 
Act does, and so that really is not the question before this 
Committee.
    Second--and I think this is a very important principle--if 
a tool exists in existing law to fight other types of crime, 
then the burden, I believe, is on those who deny it to fighting 
terrorism. If it is good enough for fighting the Mob, if it is 
good enough for fighting health care fraud, it is good enough 
to fight terrorism. If the balance is thought to be sufficient 
in existing law in those contexts, it is sufficient with 
respect to terrorism.
    And third is the principle of technological neutrality. 
There should not be in the law disparities between the legal 
regimes that govern one type of communications in one medium 
and those that govern in another, because that just creates 
incentives to shift from one medium to the other.
    Now I would like to talk about some of the specific 
provisions.
    Section 215 of the PATRIOT Act provides much needed 
authority on the FISA side, the Foreign Intelligence 
Surveillance Act side, to obtain business records, and it is 
comparable to an authority that exists for a very long time on 
the ordinary criminal side in terms of the grand jury subpoena 
authority. It is different in certain respects because a court 
order is required. The court is not merely a rubber stamp 
because the statute specifically states that the court has the 
authority to modify the application and the order before it is 
issued. It has a narrow scope, cannot be used to investigate 
domestic terrorism, and explicitly provides for protection of 
First Amendment rights. It has nothing to do on its face with 
library records as a particular focus of interest.
    Section 4 of the SAFE Act would amend the FISA so that the 
authority conferred by Section 215 could only be exercised if 
there are ``specific and articulable facts giving reason to 
believe that the person to whom the records pertain is a 
foreign power or an agent of a foreign power.'' This is much 
too narrow a standard. It simply cannot be said in advance that 
the only important business records that might be needed in an 
intelligence investigation are records pertaining to the FISA 
target. That is not at all how business records subpoenas work 
in the grand jury context. The standard, when it is articulated 
in other contexts, whether it be relevance or in some statutes 
there is a heightened standard for particular types of records, 
is always in terms of the importance to the investigation. 
Sometimes records about other persons, third parties or related 
persons other than the target themselves, may be needed for the 
investigation. To limit on the face of the statute to only 
records that pertain to the target seems much too strict. Even 
if one were to believe that some additional reticulation of the 
standards here were appropriate, that standard is clearly much 
too strict.
    Second, 213 of the PATRIOT Act codifies longstanding 
authority for delayed notification of search warrants and 
codifies that with a number of important safeguards: The court 
must independently find reasonable cause to justify the delay, 
and the court must set forth in the warrant the reasonable 
period for such delayed notice, and the deadline can be 
extended only by a showing of good cause.
    The SAFE Act would change this by requiring--first, 
eliminating some of the grounds that are specified in the 
PATRIOT Act for obtaining a delayed notification authorization 
from the court and would limit it to 7 days.
    Now, some of the comments I heard during the hearing this 
morning reflected, I think, a misunderstanding of the PATRIOT 
Act. There was an assumption that the court can grant a delayed 
notification without specifying any period in the warrant. It 
will just specify a reasonable period. I do not think that that 
is what the statute actually says.
    Chairman Hatch. That is right. That is right.
    Mr. Collins. The court will determine a period, a period 
certain that it believes is reasonable in the circumstances of 
the case and put that in the warrant. Otherwise, the existing 
provision on extension would make no sense if the court were 
leaving it indeterminate.
    Chairman Hatch. Where the SAFE Act would set a 7-day 
period, and then you would have to keep going back to get 
additional time.
    Mr. Collins. Every 7 days.
    Chairman Hatch. And you would have to find a U.S. Attorney, 
you would have to go to court, you would have to interrupt your 
investigation. That is one of the things I find to be a flaw in 
the SAFE Act, and I think almost everybody in law enforcement 
thinks that is a flaw as well. But be that as it may, you are 
pointing out--
    Mr. Collins. I believe it is too inflexible. I would expect 
based on the existing case law that predates the PATRIOT Act 
that 7 days will likely be the presumptive standard.
    Chairman Hatch. And probably in most cases they will get it 
done within 7 days, but that is not always the case.
    Mr. Collins. That is right, and it leaves it up to the 
discretion of the Federal judge to determine what under those 
circumstances is the reasonable period.
    Chairman Hatch. Let's say the 7 days expire, and they have 
got to find a U.S. Attorney, they have got to find a judge, 
they have got to do all the things that require going back in 
to get additional time, which they may or may not get.
    That may be time enough for the terrorists to escape or to 
commit terrorist attacks.
    Mr. Collins. That is correct. There is a need for 
flexibility here. I think the courts will be strict.
    Chairman Hatch. One of the things--I do not mean to keep 
interrupting you. I guess I do, but one of the things that 
bothers me is that some who have been proponents of the SAFE 
Act are consistently saying, well, civil liberties might be 
violated. Well, I do not know of many criminal laws where civil 
liberties, you know, could not be violated if you have rogue 
police officers or you have rogue prosecutors or you have 
people who are not willing to abide by the law. You could say 
that about almost every criminal provision.
    Mr. Collins. I believe, Mr. Chairman you are correct that 
it reflects a sort of zero-sum thinking. Every tool that you 
give to the Government can potentially be abused, and so 
every--
    Chairman Hatch. They almost come across like, well, with 
this Act this is going to be misused because these powers are 
given to the fight against terrorism, even though basically 
most of the powers have been in existence for domestic anti-
crime purposes for a long time.
    Mr. Collins. And there are mechanisms in existing law in 
terms of judicial review and oversight of the Congress.
    Chairman Hatch. Sure.
    Mr. Collins. I would like to make, if I can--I see my time 
has expired--one further comment.
    Chairman Hatch. I have interrupt you. Go ahead.
    Mr. Collins. It is about Section 2 of the SAFE Act on 
roving wiretaps, because I think the theory of that provision 
is to incorporate the specification requirements that are 
existing in Title III into FISA. But I do not think that the 
translation works, and the reason why is a little bit 
technical, and I have alluded to it in my testimony. But I 
wanted to call attention specifically to it.
    There is a requirement in the FISA--it is Section 
105(a)(3)(B)--the court must find before issuing an order that 
there is probable cause that ``each of the facilities or places 
at which the electronic surveillance is directed is being used, 
or is about to be used'' by the target. So even though you 
cannot specify in advance every particular one, because that is 
only required under FISA ``if known,'' there still is this 
general requirement that there be some sufficient understanding 
on the part of the court as to where the interceptions will be 
made so that the court can find probable cause that the target 
will be using those and give the authorization.
    There is no comparable language in Title III to that. 
Indeed, the comparable provision of Title III, which is in 
Section 2518(3)(D), is waived in the case of a roving wiretap. 
There is a specific clause that waives it for roving wiretaps. 
It is not waived in FISA. It is instead this general 
requirement, and I think that that difference is an important 
one and justifies allowing a John Doe warrant, with a detailed 
description--and perhaps there can be discussion about whether 
or not there might be some additional specification of how good 
the description must be. But you could have a John Doe warrant 
with a roving wiretap situation where you have this probable 
cause requirement. I think that that is a different balance 
from Title III, but I think it is an adequate balance.
    [The prepared statement of Mr. Collins appears as a 
submission for the record.]
    Chairman Hatch. Well, I appreciate both of you taking time 
to be with us. I am going to have to recess now, but we will 
keep the record open for written questions and any additional 
statements you would care to make.
    Mr. Barr. Could I mention, begging the Chairman's 
indulgence, just one or two very, very quick points for the 
record? And I will be glad to supplement those in writing.
    In taking up Mr. Collins' challenge, I do wish to go on 
record that I do believe that some of the provisions in the 
PATRIOT Act are constitutionally infirm. I think where you 
have, for example, as in Section 215, the Government now having 
the ability to secure evidence against individuals who would 
otherwise be covered by the Fourth Amendment reasonableness 
provision without showing any link whatsoever between that 
person and suspected criminal activity, I do believe that that 
is violative of the letter if not the spirit of the Fourth 
Amendment.
    With regard to roving wiretaps, I do believe, Mr. Chairman, 
under the present situation regarding use of the PATRIOT Act 
for roving wiretaps that it does sweep broadly, so that a 
person who might simply be in the facility--I think Senator Kyl 
in his earlier questioning referred to whether or not a person 
in an apartment complex could have their phone tapped if the 
Government simply believed that a target might be in that 
complex. I believe that clearly the roving wiretap provisions 
in the PATRIOT Act would allow for that scenario, and very 
clearly, a person against whom the Government has no suspicion 
whatsoever under the Fourth Amendment standard, or any 
standard, simply happens to have a phone that might be in 
proximity to a target known only by general description to the 
Government or a facility only known by general description to 
the Government could have their conversations listened in on. 
And I believe that that, too, would be violative of the Fourth 
Amendment.
    I believe the provision that has been talked a great deal 
about today, Mr. Chairman, regarding a court's ability to 
modify a Section 215 application, while certainly provides the 
court to have some input into how the order is going to be 
executed, there still under Section 215 is absolutely no 
provision in the law for the judge to look behind the 
application. The judge, so long as the Government makes the 
general assertion to the library or to the pawnshop, the gun 
shop, or the medical office, whatever it is, that it is part of 
an ongoing terrorism investigation, no link to the particular 
person on whom the evidence is being sought, the judge cannot 
look behind that. And that is the problem with the so-called 
rubber stamping, that the judge cannot refuse to issue the 
order. The judge can modify it in some degree.
    And, finally, Mr. Chairman, just to reiterate, all of these 
provisions under FISA, I think it is important to recognize, 
are in addition to the whole range of powers that are and would 
remain under the SAFE Act fully available to the Government to 
go after terrorists, that were available to the Government to 
go after terrorists pre-PATRIOT Act, and simply because the 
Government might not have executed or used those powers 
consistently or made some bad policy decisions, as in the case 
of not seeking the access to Moussaoui's computer, does not 
mean, I do not think, that we should not continually take a 
look at these powers and make sure that they fit properly 
within the bounds of the Constitution, as I believe that the 
SAFE Act would help ensure.
    Chairman Hatch. Thank you, Mr. Barr.
    Mr. Collins, you will have the last word.
    Mr. Collins. Okay. The Supreme Court has held that there is 
no Fourth Amendment right to privacy of a person in business 
records held by a third party. That is why business records in 
ordinary criminal investigations are obtained by grand jury 
subpoenas and not by warrants. Given that 215 is aimed at 
getting business records, the argument that it is 
constitutionally infirm is, I think, insubstantial. And the 
concern that roving wiretaps could be placed on a very vaguely 
defined set of instruments without any control or supervision 
of the FISA court as to how the items are placed or the 
surveillance is actually conducted is inconsistent with the 
language that I read from Section 105 of FISA, which, as I 
said, differs from Title III in a material respect and does, I 
think, limit the ability to place items and conduct 
surveillance other than in conformity with what it says.
    Chairman Hatch. Okay.
    Thank you.
    Let me just close with these remarks. I am simply not 
prepared to heighten the requirements for obtaining documents 
in terrorism cases beyond that which applies in ordinary 
criminal cases. If criminal investigators can get them in 
ordinary criminal investigations, we should not add to the 
requirements in terrorism investigations. I believe that is one 
of your major points.
    I am also not prepared to prohibit Federal judges from 
having the authority to decide that providing immediate 
notification of a search would result in the intimidation of 
witnesses or seriously jeopardize an investigation. I do not 
think we should strip that authority from Article III judges.
    I also do not believe that we should hinder our terrorism 
investigators with extra constitutional obligations beyond 
those regulations applicable in ordinary criminal 
investigations.
    In the crucial area of terrorism investigations, I do not 
think we should raise the hurdles once the Government has 
probable cause to believe a suspect is an agent of a foreign 
power.
    Now, there are so many other things I would like to say, 
and I will put my further remarks in the record.
    Let me just also put in the record a letter from ONDCP, the 
Office of National Drug Control Policy, and the DEA, the Drug 
Enforcement Administration, supporting Section 213 on delayed 
notifications--in other words, supporting the PATRIOT Act; a 
letter from the FOP, the Fraternal Order of Police, supporting 
Section 213; a letter from the Department of Justice regarding 
al Qaeda using Internet services at public libraries; a letter 
from DOJ, the Department of Justice, supporting Section 215; a 
letter from DOJ supporting Section 213 with a delayed notice 
search warrant report.
    I will put in a resolution from the National Associations 
of Police Organizations representing 236,000 rank-and-file 
officers and 2,000 police unions throughout the United States; 
a resolution from the Board of County Commissioners of Collier 
County, Florida, supporting the PATRIOT Act and its renewal; a 
resolution of the Pennsylvania Chiefs of Police Association 
supporting the PATRIOT Act; a resolution of the National 
Troopers Coalition supporting the PATRIOT Act and its renewal; 
and a resolution of the National Sheriffs Association 
supporting the PATRIOT Act.
    We have others, but I think I will let it go at that for 
today.
    This has been an interesting hearing to me, and I just want 
to personally express my gratitude to both of you for being 
here, for Deputy Attorney General Comey for being here, and, of 
course, the sincerity on the part of those who believe that 
there ought to be what I consider to be major changes in the 
PATRIOT Act. I understand the sincerity, but I think the 
overwhelming weight of evidence is that the PATRIOT Act is 
working very well. Now, that does not mean we cannot continue 
to look for ways of strengthening it or ways of carefully 
changing some terms. We are certainly in the process of trying 
to do that. And to that degree, both of you have been very 
helpful. I just want you to both know that and I appreciate 
both of you being here.
    We will keep the record open for one week for people to 
submit any questions in writing and, of course, any 
resubmissions of statements that you would care to make.
    So, with that, we will recess until further notice.
    [Whereupon, at 12:30 p.m., the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
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