[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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WASHINGTON : 2005
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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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