    [Senate Hearing 108-915]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 108-915

    PREVENTING AND RESPONDING TO ACTS OF TERRORISM: A REVIEW OF CURRENT LAW

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

                                    HEARING

                                   before the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                          ONE HUNDRED EIGHTH CONGRESS

                                 SECOND SESSION

                                   __________

                                 APRIL 14, 2004

                                   __________

                              SALT LAKE CITY, UTAH

                                   __________

                              Serial No. J-108-68

                                   __________

             Printed for the use of the Committee on the Judiciary

                        U.S. GOVERNMENT PRINTING OFFICE
    33-418                      WASHINGTON : 2007
    _____________________________________________________________________________
    For Sale by the Superintendent of Documents, U.S. Government Printing Office
    Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800
    Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                           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

    Feinstein, Hon. Dianne, a U.S. Senator from the State of
      California, letter, statement and attachment...................   156
    Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
        prepared statement...........................................   172

                                   WITNESSES

    Benowitz, Nanette, President, League of Women Voters of Utah,
      Salt Lake City, Utah...........................................    26
    Bradley, Scott N., Utah Eagle Forum, Salt Lake City, Utah........    32
    Cohne, Bruce G., Chair, Utah Advisory Committee to the Commission
      on Civil Rights, Salt Lake City, Utah..........................    35
    Collins, Daniel P., Munger, Tolles & Olson, LLP, Los Angeles,
      California.....................................................    37
    Comey, James B., Jr., Deputy Attorney General, Department of
      Justice, Washington, D.C.......................................     4
    Eyer, Dani, Executive Director, American Civil Liberties Union of
      Utah, Salt Lake City, Utah.....................................    24
    Flowers, Robert, Commissioner, Utah Department of Public Safety,
      Salt Lake City, Utah...........................................    30
    Mylar, Frank D., Utah Grassroots, Salt Lake City, Utah...........    28
    Turpen, Aaron, Libertarian Party of Utah, Salt Lake City, Utah...    34
    Warner, Paul, U.S. Attorney, District of Utah, Salt Lake City,
      Utah...........................................................     7

                             QUESTIONS AND ANSWERS

    Responses of Nanette Benowitz to questions submitted by Senator
      Hatch..........................................................    50
    Responses of Bruce Cohne to questions submitted by Senator Hatch.    53
    Responses of Daniel Collins to questions submitted by Senator
      Hatch..........................................................    59
    Responses of James Comey to questions submitted by Senator Hatch.    63
    Responses of Dani Eyer to questions submitted by Senator Hatch...    81
    Responses of Frank Mylar to questions submitted by Senator Hatch.    88
    Responses of Aaron Turpen to questions submitted by Senator Hatch    92
    Responses of Paul Warner to questions submitted by Senator Hatch.    94

                           SUBMISSIONS FOR THE RECORD

    Benowitz, Nanette, President, League of Women Voters of Utah,
      Salt Lake City, Utah, prepared statement.......................    97
    Bradley, Scott N., Utah Eagle Forum, Salt Lake City, Utah,
      prepared statement.............................................   103
    Burrus, James H., Jr., Special Agent in Charge, Department of
      Justice, Federal Bureau of Investigation, Salt Lake City, Utah,
      prepared statement.............................................   110
    Cohne, Bruce G., Chair, Utah Advisory Committee to the Commission
      on Civil Rights, Salt Lake City, Utah, prepared statement and
      attachment.....................................................   113
    Collins, Daniel P., Munger, Tolles & Olson, LLP, Los Angeles,
      California, prepared statement.................................   120
    Comey, James B., Jr., Deputy Attorney General, Department of
      Justice, Washington, D.C., prepared statement and attachment...   130
    Edgar, Timothy H., American Civil Liberties Union, Legislative
      Counsel, Washington, D.C., , prepared statement................   142
    Eyer, Dani, Executive Director, American Civil Liberties Union of
      Utah, Salt Lake City, Utah, prepared statement.................   150
    Flowers, Robert, Commissioner, Utah Department of Public Safety,
      Salt Lake City, Utah, prepared statement.......................   164
    Green Party of Utah, Salt Lake City, Utah, prepared statement....   168
    Mylar, Frank D., Utah Grassroots, Salt Lake City, Utah, prepared
      statement......................................................   175
    Turpen, Aaron, Libertarian Party of Utah, Salt Lake City, Utah,
      prepared statement.............................................   180
    Warner, Paul, U.S. Attorney, District of Utah, Salt Lake City,
      Utah, prepared statement.......................................   184

    PREVENTING AND RESPONDING TO ACTS OF TERRORISM: A REVIEW OF CURRENT LAW

                                  ----------

                           WEDNESDAY, APRIL 14, 2004

                                  United States Senate,
                                    Committee on the Judiciary,
                                                        Washington, DC.
        The Committee met, pursuant to notice, at 10:00 a.m., at
    the S.J. Quinney College of Law, University of Utah, Salt Lake
    City, Utah, Hon. Orrin G. Hatch, Chairman of the Committee,
    presiding.
        Present: Senator Hatch.

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

        Chairman Hatch. If we can have attention. If everybody will
    give their attention, we are going to start this hearing. I
    want to welcome everyone here today to this special hearing in
    our great state of Utah.
        Today's hearing is another in a series of bipartisan
    hearings which the Senate Judiciary Committee has initiated
    under my direction to examine the adequacy of our Federal laws
    to protect the American public from, and of course respond to,
    acts of terrorism against the United States. I'm pleased to
    hold this hearing at home and I'm grateful for all the
    participants for taking the time to be with us today.
        I would especially like to welcome Deputy Attorney General
    James Comey who has made a special effort to join us here in
    Utah. I'm very grateful that he would take time from what I
    know is a tremendous schedule, and a very important schedule,
    to come out here. It shows to everybody concerned how important
    this hearing is.
        I would also like to acknowledge the many federal, state,
    and local leaders of our community, including Chief Judge Dee
    Benson of the United States District Court. We will also be
    privileged to hear from distinguished members of our community
    on both sides of these issues.
        I would also like to thank our U.S. Attorney, Paul Warner,
    who is one of the most respected U.S. attorneys in the country,
    for hosting a Project Safe Neighborhoods breakfast this
    morning. And of course Dean Scott Matheson, Jr., an old friend
    who has done such a great job here. And of course the
    University of Utah and its Quinney College of Law for providing
    a forum for this hearing.
        Let me note at the outset that, like our neighbors across
    America, we in Utah have much to learn from this cruel but real
    threat of terrorism. We can be proud, however, that Utah's
    experience with the Winter Olympics provided the nation with
    tangible evidence of the importance of federal, state, and
    local law enforcement officials joining together with an
    informed citizenry to establish a safe and secure environment.
        This took an immense amount of cooperation, and our state
    deserves a lot of credit. It took cooperation, it took
    coordination, and it took communication among many individuals
    and organizations. And I'm proud to recognize many of those
    responsible for that successful event and the security that we
    continue to enjoy here in Utah today.
        Today's hearing will focus on the issue of protecting our
    Nation while, at the same time, observing our traditional civil
    liberties in the aftermath of the horrific September 11
    attacks. Certainly September 11 and the war on terrorism are a
    reality and we are still addressing those today. The unprovoked
    and unjustified attacks on September 11 forced us to take
    appropriate steps to make sure that our citizens are safe, and
    that terrorists never strike again on American soil. We are
    doing our best to try to stop them from ever striking again.
        The first duty of the national government is to protect our
    citizens from threats abroad, and we are not going to shirk
    this responsibility. Senator Leahy, the ranking Democratic
    member of the Senate Judiciary Committee, and I have worked
    together for a long time to examine these important issues.
        In fact, when he was Chairman of the Committee we worked
    closely together to craft the PATRIOT Act in a bipartisan
    manner, which carefully balances the need to protect our
    country without sacrificing our civil liberties. Without the
    hearing leadership of Senator Leahy and the support of my
    fellow colleagues across the aisle in the Congress, we could
    not have acted so effectively after September 11 to have passed
    this measure in the United States Senate by a vote of 98-1.
        Passing the PATRIOT Act did not finish our job. Congress
    has the responsibility to oversee these laws that we passed,
    and that they are implemented properly and as we intended. I am
    confident that we will continue to work as Democrats and
    Republicans cooperatively in the future as we continue this
    series of hearings.
        There are some who say that the cost of protecting our
    country from future terrorist attacks is an infection upon our
    cherished freedoms. Some have suggested that our anti-terrorism
    laws are contrary to our Nation's historical commitment to
    safeguard civil liberties. I disagree. I believe that we must
    have both our civil liberties and national security or we will
    have neither.
        Thomas Jefferson said, ``The price of freedom is eternal
    vigilance.'' Congress and the nation must be vigilant. True
    individual freedom cannot exist without security, and our
    security cannot exist without the protection of our civil
    liberties. We must and we will have collective security and
    individual liberties.
        Unfortunately much of the rhetoric regarding our Nation's
    anti-terrorism laws appears to be based on misinformation and
    unjust speculation. Additionally, some critics have tried to
    divert attention to those leading the implementation and the
    review of these laws, including me, Attorney General Ashcroft,
    and President Bush, rather than making specific documented
    critiques of these laws and how they believe these laws have
    been enforced.
        Our nation has strived to make a major and reasonable
    response to the tragic events of September 11, including fixing
    some significant deficiencies in the pre-9/11 law that Deputy
    Attorney General James Comey will address in his testimony
    today. And Deputy Comey should know, since he was one of the
    key prosecutors in the Khobar Towers trial, and in so many
    other prosecutions that occurred in his U.S. Attorney's office
    at the time. One of the most powerful and important offices in
    the country.
        He will tell us why it was important to change the law to
    update our anti-terrorism provisions to include the same
    capabilities, methods, and technologies that are used against
    drug trafficking, pornography, and organized crime.
        Today we will focus on evaluating the tools that are in
    place to protect us from the clear and present threat of
    terrorism on our soil. I want to look forward and make sure the
    tools we have in the law are implemented effectively and are
    not being abused. While we all share a common commitment to
    security and freedom, the question we are examining today is
    how best to do so in an environment where terrorists like the
    9/11 attackers will continue to operate within our borders
    using the very freedoms that we so dearly cherish to carry out
    their deadly plots against our country and against us as
    individuals.
        Let me remind everyone that the 9/11 attackers were able to
    enter into our country within the strictures of our immigration
    laws. They were able to enjoy the freedoms, secure for
    themselves all the necessary traffics of law abiding members of
    our society, and then carry out their terrible terrorist
    attacks under the radar screen of law enforcement,
    intelligence, and immigration agencies.
        This hearing will examine the government's efforts to
    protect our freedoms; not just the freedom to live in a safe
    and secure society, but the freedoms that our country was
    founded on, the freedoms that we enjoy each and every day, and
    the freedoms that are the lifeblood of our society. I'm
    especially interested in hearing from today's witnesses about
    the details of any specific abuses that have occurred under our
    current laws.
        We have invited several representatives and groups critical
    of our Nation's counter-terrorism laws to express their
    concerns today, and we want to listen to them. But I hope their
    concerns will be substantive concerns. We must not let the
    debate fall into the hands of those who spread unsubstantiated
    and false allegations when it comes to these important issues.
    We are interested, of course, in hearing thoughtful criticism
    and ideas about how this current law or any current law should
    be modified to better protect the national security as a whole,
    while maintaining our civil liberties.
        If we need to refine the law, we will do that. It's going
    to come up for reauthorization next year. If we need to
    strengthen the law, we will. If the facts show that we have
    gone too far in one area or another we will make appropriate
    adjustments. But first we have to talk about the facts. We have
    to find out the facts. And that's what we are doing here today,
    and what we have done in the prior two hearings.
        Today we are discussing a very, very serious matter: Our
    nation's security. I know that we will carefully examine these
    issues today, and we have a lot of good people here to help us.
        I'm very pleased with the distinguished panel members that
    are joining us here today. On our first panel we have Deputy
    Attorney General Comey who will be followed by United States
    Attorney from the district of Utah, Paul Warner.
        As I mentioned, Deputy Attorney General Comey brings a
    depth of experience, not only as a deputy attorney general but
    as a former lead prosecutor in this country. And I just
    mentioned, I think, Khobar Towers as one of them. We sure look
    forward to hearing your testimony today and are very grateful
    that you took time out of what we know is an impossible
    schedule to be with us. It shows how important these issues are
    that you would take this kind of time.
        Also with us today is Paul Warner. The United States
    Attorney for the District of Utah and former head of the
    Attorney General's Advisory Committee for all attorneys general
    in the country. We have to be proud of Mr. Warner. Mr. Warner
    has worked closely with local, state, and Federal law
    enforcement agencies in a collaborative effort to combat
    terrorism. Mr. Warner, we are grateful that you took time out
    to be with us today.
        And so are we ready to proceed? Mr. Comey we will start
    with you.

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

        Mr. Comey. Thank you, Mr. Chairman. My written testimony I
    will submit to be part of the record.
        Chairman Hatch. We will make all full statements part of
    the record.
        Mr. Comey. Thank you, sir.
        First of all, thank you for inviting me here today. Thank
    you for holding this hearing, which is an opportunity for my
    first visit to this amazingly beautiful state and city. I am
    also honored to be sharing this table with my friend and
    colleague, Paul Warner, one of the real heroes of the Federal
    prosecutor ranks in this country.
        I thank you for holding this hearing because I believe
    there has been no real informed public debate about 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, including in my former home of New York City, 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. Those folks are good folks, those people in
    town councils and dinner parties across this country. But I
    don't believe they know what is in the PATRIOT Act. I don't
    believe that they could, and vote to repeal the PATRIOT Act.
        The Act, as you know well, Mr. Chairman, includes such
    things as additional monies for the widows and children left
    behind by public safety professionals killed in responding to
    terrorism. It expresses the sense of the Congress that backlash
    crimes against Arab Americans and Sikh Americans are evil and
    we should work to prevent hate crimes against Arab Americans
    and Sikh Americans. If people knew those things were in the
    PATRIOT Act, they wouldn't be voting to repeal the PATRIOT Act.
    So there has been no real debate.
        I thank you for providing a forum for that debate and I
    thank you for inviting people who care, both people who will be
    critical of the PATRIOT Act and supportive of it. I believe,
    from reading their statements, that they are all people who
    care passionately about government power and how it is used. I
    know you do. I know I do.
        This country was founded by people who cared about the
    limits on government power and who insisted upon a Bill of
    Rights for that very reason. Questions should be asked about
    government power and an informed debate should be had about
    government power. I believe if we actually have that, if people
    at dinner parties and at town councils and across this country
    demand the details, find the space in American life to have an
    actual informed understanding of the PATRIOT Act, they will
    realize that it is so smart, so ordinary, and so important,
    that they won't want to change it and that they wouldn't dare
    dream of repealing such an important piece of legislation.
        As you said, sir, I'm not aware of any documented abuses of
    the powers under the PATRIOT Act. I'm aware of only one court
    decision that struck down any portion of the PATRIOT Act, and
    that was a decision by a district judge in California on a very
    technical constitutional interpretation ground saying that some
    of the provisions of the material support for terrorism statute
    were too vague and needed to be tightened up. That's it as far
    as I'm aware.
        I want to touch on, though, a couple of specific areas that
    folks have gotten all excited about and concerned, that I
    believe folks don't know the details of that and that I know a
    great deal about from my experience as a career prosecutor; so-
    called ``sneak and peek'' search warrants. What we, in law
    enforcement, call ``delayed notification'' search warrants.
    It's something that has so much controversy in this country. It
    sounds awful, the ``sneak and peek'' search warrant. People
    conjure up visions of law enforcement sneaking into your
    bedroom and going into your drawers and closing them and
    sneaking back out of your house.
        How is it really used? That's what people want to know. I
    have used delayed notification search warrants a number of
    times in my career, always in the most important and dire of
    circumstances. When I was a Federal prosecutor in Richmond,
    Virginia there was a drug gang moving into Richmond from New
    York. As I used to say, where all bad things come from.
        And this drug gang was a violent group of crack dealers
    from Brooklyn, New York City who were trying to gain a foothold
    in the city of Richmond. And we couldn't get into them. We had
    one informant who had contact to them, and he explained that
    they were really bad guys and he didn't know exactly who they
    were. But he knew one thing: They had just delivered five kilos
    of cocaine to an apartment in the west end of Richmond.
        So we had a problem, we had a dilemma, a choice to make. Do
    we go get a search warrant and seize the drugs, exposing the
    informant, risking his life, blowing the investigation, and
    jeopardizing the chance to ever bring to justice these violent
    drug criminals? Or do we let five kilos of cocaine walk onto
    the streets and be distributed and used by people in Richmond?
        We didn't have to make that choice between those two
    options because we had a third option. And prosecutors in the
    country have had the third option for generations and have used
    it when necessary. We went to a Federal judge and explained
    what I just explained to you, in a sworn affidavit laid out our
    probable cause, and the judge authorized a search warrant and
    authorized the Drug Enforcement Administration to make the
    search look like a burglary.
        So the agents went in, they seized the five kilos, they
    took the TV, stereo, and they broke a window. They then left.
    Two leaders of the drug organization came to the apartment and
    called the police. A marked unit responded. The police officer
    had been briefed by the DEA, he knew who he was dealing with,
    and he asked, ``Who are you?'' And they identified themselves.
        ``And is this your apartment?''
        ``Yes, this is our apartment.''
        ``What was taken?''
        ``A stereo and the TV.''
        ``Anything else taken?''
        ``No.''
        ``But this is your apartment?''
        ``Yes.''
        ``And this is your address and this is your Social Security
    number?''
        ``Yes, yes, yes.''
        By that act, we protected the streets of Richmond from
    those drugs, we identified the leaders of the organization, we
    delayed for 60 days notification of the search, and during that
    60 days locked up all of them, protecting the informant's life.
    And then we arrested them. We turned over the search warrant,
    returned the TV, returned the stereo, paid to fix the window.
        When I explain that story to people, from whatever point on
    the political spectrum, they say, ``Gee, I wouldn't want you
    not to have that tool.'' All the PATRIOT Act did was take that
    tool, which was judge-created by Federal judges, Democrat and
    Republican, because it was necessary to have that tool to save
    lives in this country, and put it in the statute and laid out
    the standards and said when it could be used.
        That's what's in the PATRIOT Act. If we lose that, we will
    lose it for terrorists, for murderers, for Mafia dealers, and
    for drug lords. People in the United States do not want that.
    That's why they need to demand the details.
        I would just like to quickly touch on two other things Mr.
    Chairman. So-called roving wire taps. Drug dealers in the
    1980's started to use cell phones and they knew that we could
    get wire taps on cell phones so they started changing cell
    phones regularly, throwing out a phone and getting a new one.
        Congress then gave we drug prosecutors the authority, in
    1986, I believe, to get a wire tap that followed the bad guy,
    not the phone. We would go to a judge, establish probable
    cause, this drug dealer was using phones and changing phones to
    do his business, and we could then, when he swapped phones,
    continue to listen to his calls without having to run back to a
    judge and say, ``We think he is on a new phone.''
        All the PATRIOT Act did was give us that same authority
    with terrorists, so that terrorists, who are every bit as smart
    and, in my experience, smarter than drug dealers, who swap
    phones that they buy at 7-Eleven every day or week, we don't
    have to go back to a judge in a different jurisdiction or back
    to the same judge day after day after day. We can follow the
    terrorists without missing a beat. And if we have learned
    anything from the 9/11 hearings it is that we cannot afford to
    go dark for any period of time. We cannot miss a beat in
    battling these enemies.
        The PATRIOT Act also did something radical, something earth
    shattering, something breathtaking that nobody talks about. The
    PATRIOT Act broke down the wall that separated intelligence
    investigators tracking terrorists from criminal investigators
    tracking terrorists. Prior to the PATRIOT Act, those two groups
    could not talk to each other.
        My good friend, Patrick Fitzgerald, now the U.S. Attorney
    in Chicago, was one of the leaders of an effort to do a
    criminal investigation of Osama Bin Laden in the late 1990's.
    And he was building a criminal case, talking to informants,
    talking to witnesses, doing surveillances, trying to get wire
    taps. In the course of that effort, he and the agents working
    with him could talk to police officers, they could talk to
    foreign police officers, they could talk to foreign citizens,
    they could talk to Al Qaeda members who had come to our side,
    had defected.
        There was only one group of people they could not talk to
    because of that wall, and that was the FBI agents upstairs
    conducting an intelligence investigation of the very same
    targets. The two groups had to follow the same people without
    talking to each other, wire tap the same people without talking
    to each other. And as Pat Fitzgerald says, a world in which
    those two groups could not talk to each other, where he could
    talk to Al Qaeda but not to the FBI, is a world where we are
    not safe enough. He said, and I couldn't say it better, ``The
    PATRIOT Act was not rushed. It came 10 years too late.''
        So I welcome this debate. I believe that government power
    is so important that it should be laid out in the sunshine of
    public discussion, which is the best disinfectant. I will do
    anything I can to discuss and debate. That's why I'm so
    grateful and happy to come here to this beautiful place to talk
    and to listen and to hear how we are using these important
    tools. So I thank you for the forum.
        [The prepared statement of Mr. Comey appears as a
    submission for the record.]
        Chairman Hatch. Thank you, Mr. Comey. We appreciate you
    being here and appreciate your comments. I have some questions
    for you in just a minute. Mr. Warner?

    STATEMENT OF PAUL WARNER, U.S. ATTORNEY, DISTRICT OF UTAH, SALT
                            LAKE CITY, UTAH

        Mr. Warner. Thank you. Good morning, Mr. Chairman. Thank
    you for the kind introduction.
        I consider it an honor to be here today with Deputy
    Attorney General, James Comey, an outstanding former United
    States Attorney and a good friend.
        I appreciate the opportunity to testify today about the USA
    PATRIOT Act. I have served as the United States Attorney for
    the District of Utah almost 6 years. I have seen many changes
    in how our country has dealt with the threat of terrorism
    during that time.
        From 1998 to the end of 2000, I chaired the Subcommittee on
    Terrorism for the Attorney General's Advisory Committee of the
    United States Attorneys. I was frustrated at that time with the
    obvious lack of tools necessary for us to properly investigate
    threats of terrorism.
        As an example, the Attorney General's investigative
    guidelines, as they existed at that time, handcuffed and
    blindfolded the FBI. For instance, they were not allowed to
    attend meetings that were otherwise open to the public or to
    research materials on internet sites that virtually everyone
    else in the public was free to access.
        Further, because of then-existing provisions of law and
    policy regarding the Foreign Intelligence Surveillance Act, or
    FISA, information sharing between criminal investigations and
    intelligence investigations was virtually nonexistent.
    Likewise, the investigative tools that we did have available
    for terrorism were often outdated, insofar as technology was
    concerned.
        With the passage of the USA PATRIOT Act shortly after 9/11,
    Federal law enforcement and Federal prosecutors were given many
    new tools to deal with the reality of terrorism as we had come
    to know it. Some provisions of the USA PATRIOT Act gave
    investigators and prosecutors new tools for fighting terrorism.
    Other investigative tools, used for years in a wide range of
    other types of criminal investigations, are now explicitly
    permitted in terrorism cases under the provisions of the Act.
        Let me give two quick examples. First, Section 213 of the
    USA PATRIOT Act allows Federal agents, with court approval, to
    give delayed notice that a search warrant has been executed, in
    certain narrow circumstances. Critics have referred to this
    provision as ``sneak and peek,'' and claim that it has expanded
    the government's ability to search private property without
    notice to the owner.
        However, the truth is that delayed notification warrants
    are a long-existing crime- fighting tool upheld by courts
    nationwide for decades in organized crime, drug, and child
    pornography cases. Section 213 of the PATRIOT Act simply
    codified the authority allowing law enforcement to seek and
    execute delayed-notice search warrants, an authority that had
    already received judicial approval. Indeed, the U.S. Supreme
    Court has declared delaying notice of a search to be
    constitutional.
        Second, Section 215 of the Act allows Federal agents to
    obtain ex parte orders from the FISA court to require the
    production of any tangible items, including books, records,
    documents, and the like, in an investigation to protect against
    international terrorism or clandestine terrorism activities.
    Obtaining business records is a long- standing law enforcement
    investigative tool. Ordinary grand jury subpoenas, with no
    court approval necessary, have been used for years to obtain
    all kinds of business records including records of libraries
    and bookstores. And, of course, Section 215 contains a number
    of safeguards that protect civil liberties, including providing
    for Congressional oversight of the Department's use of this
    tool. The Department of Justice reports to Congress on a semi-
    annual basis regarding requests for ex parte orders made
    pursuant to this section.
        The USA PATRIOT Act also gave us tools allowing
    investigators and prosecutors to effectively deal with
    terrorists' use of modern technology in the planning and
    execution of their operations. For example, the so-called
    roving wiretap provisions in Section 206 now give us the
    authority in terrorism investigations to use the tools we had
    used in a wide range of criminal cases, including drug and
    racketeering cases, since 1986. At the same time, we can now
    use new technology to track wireless phone calls, reflecting
    the realities of our digital world.
        Likewise, the USA PATRIOT Act has greatly facilitated
    information sharing and cooperation among government agencies
    so they can now better connect the proverbial dots. The Act
    removed the legal impediments that kept the law enforcement and
    intelligence communities from sharing information and
    coordinating activities in the common effort to protect our
    National security.
        Here locally in Utah, we have enjoyed an unprecedented
    amount of information sharing among federal, state, and local
    law enforcement agencies. And, for the first time in our
    history, Assistant U.S. Attorneys from my office regularly sit
    down with local FBI agents to review intelligence
    investigations, and to coordinate matters where criminal and
    intelligence issues intersect. Our local FBI Special Agent in
    Charge, Chip Burris, is an enthusiastic partner with me in the
    sharing effort.
        I am aware that almost as soon as the USA PATRIOT Act was
    passed, many well-intentioned people raised concerns about the
    Act in terms of the potential denigration of civil liberties
    and rights of privacy. In communities throughout the nation,
    there has been much public debate about the Act. I have
    participated in a number of these discussions. The public
    debate of these issues is important, and consistent with our
    cherished freedom of speech. It is also in keeping with the
    great traditions of our country. All of us are concerned with
    the delicate balance of protecting our freedoms without
    destroying them in the process. However, terrorists must not be
    allowed to use our cherished liberties as a shield to escape
    prosecution for their acts. If so, they will thereby be
    afforded an unimpeded opportunity to destroy us and the
    freedoms we all hold so dear.
        The concerns about the USA PATRIOT Act have often focused
    on the potential abuse of the new investigative tools that have
    been provided to law enforcement. Yet, as with any set of
    tools, they can be used constructively to help build a solid
    defense against terrorists, or, they potentially can be abused
    in ways that infringe on the rights of law abiding citizens. To
    a certain extent, there is always a risk when you put a new
    tool in someone's hands. But this risk is minimized
    significantly when the tool is put in the hands of
    professionals who are closely monitored, not only by the
    Department of Justice, but also by the courts and by Congress.
    That is the case with the USA PATRIOT Act. I am personally much
    more fearful of unchecked terrorism in America, for a lack of
    tools to fight it, than I fear the potential for abuse of the
    law by the Federal agents and prosecutors we have entrusted
    with these tools.
        In the wake of 9/11, Attorney General Ashcroft clearly
    articulated the importance of preventing terrorist acts from
    happening in the first place, by disrupting terrorist plotting
    and planning. Accordingly, prevention and disruption have
    become our primary goal since 9/11.
        This paradigm shift meant there had to be a change in the
    means and methods of investigating if we were to prevent and
    disrupt terrorism. Prosecutors and investigators must make more
    effective use of tools already in place in order to prevent and
    disrupt terrorist activity, rather than merely react by
    prosecuting such activity after the fact. Likewise, the USA
    PATRIOT Act also provided new tools necessary to do the job.
    Hence, Sections 213 and 215, which I have referred to earlier,
    are vital parts of our strategy of prevention and disruption,
    detecting and incapacitating terrorists before they are able to
    strike.
        Unfortunately, I believe that to a certain extent we are
    victims of our own success. Because so far there have not been
    any successful attacks here in the United States since 9/11,
    many people have become complacent. Such complacency is a
    mistake, in my opinion. Some of those who criticize the USA
    PATRIOT Act focus unreasonably on the perceived potential
    abuses that could occur by way of the Act, rather than real
    success that has already been achieved and the absence of any
    actual abuses.
        Finally, I certainly respect those who disagree with my
    views, and likewise support and defend their right to express
    that disagreement. I must add, however, that it is easy to sit
    on the sidelines and criticize those who are actually in the
    arena, and who have the responsibility to keep us safe, and who
    are trying to do the job to the best of their abilities
    consistent with the rule of law and our Constitution. The good
    news is that two and a half years after 9/11, we are much safer
    and much better at what we do in fighting terrorism. But much
    still needs to be done. Let us not make the mistake of again
    putting the handcuffs and blindfolds on Federal law enforcement
    that existed prior to 9/11, and yet continue to ask them to
    protect us in our post-9/11 world. We must have the tools
    necessary to do this job. The USA PATRIOT Act gives us many of
    these tools and is critical to ensuring the safety of our
    country.
        Mr. Chairman, I thank you for the opportunity to appear
    before the Committee today. And I would be pleased to answer
    questions at this time.
        [The prepared statement of Mr. Warner appears as a
    submission for the record.]
        Chairman Hatch. Thank you, Mr. Warner and Mr. Comey. Let me
    ask some questions of you so that we can clarify some of these
    things.
        Mr. Comey, you have prosecuted a number of the major cases
    in this country and have had tremendous experience as a
    prosecutor and you have front line experience of bringing
    terrorists to justice as well. In your new capacity as Deputy
    Attorney General of the United States, you now help direct our
    Nation's efforts to identify, stop, and punish potential
    terrorists. From both a statutory and law enforcement priority,
    resource and coordination perspective, is the United States in
    a better position to prevent and respond to acts of terrorism
    than it was on 9/11?
        Mr. Comey. Yes, Mr. Chairman. In two dramatic ways. The
    first is that thanks to the heroic efforts of the men and women
    in the United States military and our intelligence services, we
    have, for the first time, taken the fight to the enemy. Taken
    it around the world to strike them where they are in their
    training camps and in their hideouts. That has been a huge,
    huge accomplishment. It has made the American people
    immeasurably safer that we have disrupted and destroyed the
    camps and arrested or killed so many of the significant Al
    Qaeda leaders.
        Here at home we are much safer than we were before
    September 11 for a number of reasons, some of which I touched
    on in my opening comments. By giving law enforcement some of
    the smarter tools we have used against drug dealers for
    decades, we have made the American people safer.
        But most importantly, by taking down that wall that was
    built in about 1995 that separated the bright, energetic people
    on the criminal side from the bright, energetic people on the
    intelligence side, both going after terrorists. By taking that
    wall down we are much, much safer. I don't say that we are
    safe. We are not safe. We are safer.
        Chairman Hatch. That's interesting. Could you please
    specifically comment on whether our law enforcement and the FBI
    are working more closely and sharing information with our
    National security apparatus or with our National intelligence
    agencies such as the CIA than they were before 9/11?
        Mr. Comey. Yes, dramatically so.
        Chairman Hatch. You are saying they really couldn't talk to
    each other before then because of the artificial bars that were
    put up.
        Mr. Comey. Yes. We had built a wall, both by law and
    culture and practice, that made FBI agents working on either
    side of the wall afraid that if they talked to somebody on the
    other side it would be, to use a phrase that was common in the
    FBI, a career ender. That you simply had to almost put up an
    antiseptic separation curtain between criminal investigators
    investigating the very real threat of crimes of terrorism from
    the intelligence investigators trying to gain information to
    prevent attacks.
        We are in a much better place today. We can always improve,
    but the stove pipes that separated people within the FBI and
    separated the CIA from the FBI, all those things have been
    addressed dramatically.
        Chairman Hatch. Had they had the PATRIOT Act before 9/11,
    they would have been able to cross-analyze the various findings
    that both of them were coming up with; but without a law cross,
    analyzation couldn't be put together effectively. Am I correct
    in that?
        Mr. Comey. Yes, you are Mr. Chairman. I think that's one of
    the things that the 9/11 commission, on a bipartisan basis, is
    going to conclude; that it was a huge mistake to have this wall
    and that we are very much safer by not having it. I know that
    that's across the board, Democrats and Republicans, all say
    that that was broken and the PATRIOT Act fixed it. And people
    who know the PATRIOT Act who understand the details, whether or
    not they are critical of other parts of it do not want that
    wall put back up. And that is going to be put back up if we
    allow this bill to sunset next year. That's why when the
    president said we have to focus on this; the legislation is
    going to sunset but the terrorist threat is not going to sunset
    by the beginning of the next year. So we have to focus it now.
        Chairman Hatch. So it is of great concern to you and other
    law enforcement officials that if this sunset comes through and
    we don't continue to re-authorize these law enforcement
    priorities, we will be back to where we were before 9/11 in
    some aspects.
        Mr. Comey. Yes. In very, very important respects we will.
    We will be set back technologically, we will be set back in
    terms of information sharing. Which is why, as I said, I'm so
    grateful to someone like you and your colleagues for trying to
    find the space in American life to have an informed discussion
    about this, to hear from people who have concerns, who are good
    folks. Some of them are here today. ``What do you think is
    broken about the PATRIOT Act and why,'' so that we don't find
    ourselves in 2005, not having the discussion and facing the
    bumper stickers of, ``Isn't it evil?'' It is not evil. And if
    people understood how it is being used by the men and women of
    the FBI, they would see that, as well.
        Chairman Hatch. Now, I have to say that many of these tools
    that we have given you in the PATRIOT Act--I'm one of the prime
    authors of it, and the Justice Department played a major role
    in it as well, and the Democrats and Republicans got together
    and passed it 98-1 in the Senate. It was over a long period of
    time. It wasn't just a sudden urge that we had. I have been
    arguing for some of these law enforcement provisions for years;
    decades, as a matter of fact.
        Is it fair to say that a number of these provisions that we
    have in the PATRIOT Act that bring domestic anti-terrorism law
    enforcement actions were already tools that law enforcement had
    to go against common criminals, organized crime, child
    molesters, and pornographers? Is that fair to say?
        Mr. Comey. Absolutely fair to say. And it's the--
        Chairman Hatch. So these aren't brand new ideas,
    necessarily?
        Mr. Comey. No.
        Chairman Hatch. These are tools that you had for these
    other crimes, but we just hadn't brought our anti-domestic-
    terrorism laws up to speed. Is that a fair comment?
        Mr. Comey. That's absolutely fair. People say, ``My gosh,
    you cooked up this PATRIOT Act in two or three weeks. It can't
    be the real deal.''
        As you pointed out, Senator, these were things that
    responsible people in government, Democrats and Republicans and
    in Congress, had been trying to get done for years. And the
    political will, your political will was there but the political
    will of a lot of people in Congress was simply not there to
    give these tools. Some of the tools were asked for by the
    Clinton administration. So this is prosecutors who worked
    terrorism and drugs noticed that they could get a roving
    wiretap on a drug dealer but you couldn't get it on a
    terrorist. You could do a ``sneek and peek'', a delayed
    notification search warrant in some circumstances, but you
    couldn't do it with a terrorist. We saw that for a long time.
        September 11 was a great tragedy. I would do anything to
    undo it. But I'm somebody who believes that we have an
    obligation, whether you are a religious person or not, to try
    to make some good come from evil. We will never justify the
    evil, but your obligation is not to let evil hold the field.
    Among the things that happened after September 11 that was
    good, was that the political will was found to give these tools
    that should have been there all along.
        Chairman Hatch. The so-called ``sneak and peek''
    provisions, are these really new? I mean, are these really new
    or have those been provisions used by law enforcement in other
    criminal matters for years?
        Mr. Comey. Federal judges created the doctrine of delayed
    notification searches.
        Chairman Hatch. Why did they do that? Why did they do such
    a lame-brained thing in the eyes of some people?
        Mr. Comey. Because they had encountered the same situation
    all over this country like I encountered in Richmond. We need
    to save lives and protect the community. The Fourth Amendment
    said searches shall be reasonable, and they concluded this was
    a reasonable thing to delay notification of a search warrant to
    save lives and protect critical investigations.
        Chairman Hatch. So the criminals wouldn't be notified in
    advance of what is going on, so you could literally follow
    through and get all the criminals, not just one or maybe
    insignificant ones?
        Mr. Comey. Absolutely. It was done here in the Ninth
    Circuit, which is considered judicially to be a liberal place.
    It was done in the Fourth Circuit, which is the southeast. It
    was done in the northeast in the Second Circuit. It was a tool
    that was necessary in the Supreme Court, as my colleague said,
    and it was constitutional. And it is smart.
        It was used in New York to retrieve a gun from under the
    floorboards of a Mafia safehouse, in a case I'm familiar with.
    In the middle of the night, we heard the mobsters talking in
    their house about how they had this weapon under the floor. The
    FBI went and got it under delayed notification search warrant,
    took it to the lab, tested it, fingerprinted it, took the
    firing pin out, and then put it back so the mobsters wouldn't
    know we were listening to their conversations.
        Then when they were all arrested, we pulled up the
    floorboards, grabbed the gun and told them, ``We've been
    listening to you. Not only that, we took your gun and we
    fingerprinted it, and now we can connect it to a murder.'' When
    people hear about that they say, ``That is smart.'' And that is
    not only smart, it's constitutional.
        All the Act did was lay out, in a statute now, Congress
    acted for the first time, what's been going on from the
    judicial supervision for generations in this country, and we
    really can't do without.
        Chairman Hatch. And it made it possible for us to, without
    warning terrorists in advance, to be able to conduct
    appropriate law enforcement activities against suspected
    terrorists.
        Mr. Comey. Yes, sir. The key to terrorist investigations is
    finding one guy, and then finding the rest. So you can imagine
    circumstances--simply, there's no margin for error. You can't
    get eight of nine cell members. You have to get all nine or the
    American people are in great peril from the last one blowing
    himself up and killing people.
        So you can imagine circumstances where you would need to be
    able to sneak into a place that the terrorists are using to mix
    chemicals, which we have seen in the past, or where their
    records are, get them and back out of there without letting
    them know we are on to them. Because the alternative is going
    in there with raid jackets on and knocking down the door and
    grabbing eight guys--
        Chairman Hatch. And missing all the rest.
        Mr. Comey. And the ninth, who has a suicide invest, God
    forbid, disappears. We cannot take that chance.
        Chairman Hatch. Sometimes it takes patience on the part of
    law enforcement and prosecutors to be able to follow through so
    they don't just get the initial up-front guys but the ring
    leaders besides.
        Mr. Comey. Yes.
        Chairman Hatch. And if you didn't have that delayed
    notification, which you have had in other criminal matters, you
    would be giving advance notice to the terrorists, and they
    simply abscond and continue their activities. Is that a fair
    comment?
        Mr. Comey. It's a fair comment. And also, the statute
    provides that it should be used only in extraordinary cases and
    lays out basically lives in danger, witness tampering,
    obstruction of evidence or obstruction of investigation. I
    think we have done it nationwide since the PATRIOT Act maybe 47
    times. Made 47 applications. Again to Federal judges--we don't
    do this on our own. You've got to go to a Federal judge, lay it
    all out in a sworn affidavit.
        Chairman Hatch. And assert probable cause.
        Mr. Comey. Exactly. We have applied 47 times, is my
    recollection, and we had 47 applications granted by Federal
    judges, who are no pushovers whether they are appointed by a
    Republican president or a Democratic president, in my
    experience. There's no such thing as a rubber stamp Federal
    judge.
        Chairman Hatch. I think it is important for people to
    understand that these aren't brand new tools that we have
    given. These are tools that have been used in the past that now
    can be used against terrorists.
        There are so many other questions that I have. But there's
    been a lot of criticism of the trap and trace provisions that
    we have put into this bill. The idea of getting or having the
    right, in law enforcement, to get the phone numbers out of a
    terrorist's phone and the numbers going into a terrorist's
    phone. Tell me why that is essential to law enforcement.
        Mr. Comey. We in law enforcement, for years, have connected
    the dots in drug organizations by going to a Federal judge and
    getting what's called a pen register, which is a device that
    doesn't give us the content of any calls but gives us the
    numbers calling into a phone or calling out from a phone. We
    have used that to find the spokes in a conspiracy; the players,
    the couriers, the leaders. To find who is involved. That is
    very, very important in drug conspiracies. You want to find who
    all the players are.
        It is lifesaving in terrorism cases. We need to find all
    the dots, all the members of that cell. All the PATRIOT Act did
    was allow us to use that tool in intelligence investigations
    against terrorists. Go to a Federal judge. Get an order.
        Chairman Hatch. You don't have a right to just unilaterally
    do this.
        Mr. Comey. Oh, no, sir.
        Chairman Hatch. You have to go to a Federal judge.
        Mr. Comey. Yes.
        Chairman Hatch. And you've got to show probable cause.
        Mr. Comey. That's a common misconception about the PATRIOT
    Act. The provisions of the PATRIOT Act that apply tools from
    regular criminal investigations to intelligence counter-
    terrorism investigations require us to go to Federal judges,
    make showings, to be supervised. This is not something that the
    government, meaning the executive branch, can do on its own.
        Chairman Hatch. Compare that to grand jury proceedings. Do
    they need to go to a Federal judge to do some of the things
    that law enforcement can do at grand jury proceedings?
        Mr. Comey. No. And this is, again, one of the many myths
    that we are hoping to find the space in our life to have people
    understand is a myth. To get records, business records, from a
    car rental agency or a library, in a criminal case a prosecutor
    can just cut a subpoena and give it to an agent. No judicial
    involvement, or showings, no writings. Subpoena gone. Records
    obtained.
        Chairman Hatch. That's without any judicial--
        Mr. Comey. No judicial involvement whatsoever. Just out
    goes the subpoena. In comes the records. 215 has the
    librarian--
        Chairman Hatch. Talking about Section 215 of the PATRIOT
    Act?
        Mr. Comey. Yes. Section 215 of the PATRIOT Act that has so
    many people concerned about libraries, and it has not been
    used--anyway, for a lot of reasons it is not a concern. It
    requires an agent doing a counter-terrorism investigation to go
    to a Federal judge, file an affidavit in writing, and get a
    court order that allows you to get the records from the car
    rental agency or the library. It is actually much more onerous.
        Chairman Hatch. Or any other record.
        Mr. Comey. Or any other record. It involves judges in a way
    that criminal investigations don't. What we've got is we have
    taken some of the power of the criminal investigator and made
    it harder, and put into the PATRIOT Act.
        Chairman Hatch. In other words, by grand jury you could do
    that without even consulting with a judge. The prosecutor
    could. But under this law, you have to have judicial approval
    to be able to do these investigations into whatever the
    recordkeeping outfit is.
        Mr. Comey. That's correct. We have to go to a Federal judge
    to get that approval.
        Chairman Hatch. As I understand it, wasn't the Unibomber
    case partially broken because of being able to go in--but this
    was grand jury, I believe. But being able to go into a library
    and see what he was reading and be able to connect the dots to
    capture him and put him away?
        Mr. Comey. Yes. In his obscure, bizarre writings, his
    manifesto, he referred to some fairly obscure texts. And the
    FBI, in an effort to find out who it was, went to libraries to
    find out who had checked out these particular very obscure and
    unusual books to see if we can connect them.
        Now, that is something else that goes on. Librarians,
    themselves, do not want libraries, I don't believe, to be a
    sanctuary for criminal behavior; that if someone is in there
    checking out books about bomb making or radiological dispersion
    devices I have to believe, I do believe, that librarians want
    us to be able to find that out and track that down. And so it's
    a question of how are we using these tools and what is
    reasonable?
        Chairman Hatch. Grand Jurys can use that power against
    common criminals. Why wouldn't we be able to use that power,
    under judicial supervision and approval, with regard to
    suspected terrorists?
        Mr. Comey. I agree completely. The other thing that folks
    don't realize is under the PATRIOT Act, if the government uses
    that power to get records from a library--as Paul Warner said,
    libraries aren't mentioned in the PATRIOT Act but they become a
    focus of concern. If we use that provision to obtain records
    from a library or credit card agency or car rental agency,
    every 6 months we have to report to Congress on how we used it,
    how many times we used it. And that is much more onerous--
        Chairman Hatch. We put that in there as a protection of
    civil liberties.
        Mr. Comey. It is much more oversight than in grand jury
    context.
        I am a big fan of librarians and I'm not just saying that
    because the president is married to a librarian, but I believe
    that they are some of our best, most public-spirited citizens,
    and some of the best readers, frankly. I would hope that they
    will read and demand the details to know about what these tools
    are, how they are being used.
        Nobody wants a sanctuary in a library for a pedophile or a
    terrorist. That would be crazy to allow people to use
    computers--and we have a lot of internet access in libraries--
    to allow terrorists or pedophiles to go into a library, use the
    computers to either lure children or communicate with
    terrorists, knowing that we couldn't follow them there; that it
    was a sanctuary for criminal behavior. That would be crazy. And
    I have seen some of that happening.
        I have seen software in major libraries in this country
    that scrubs the hard drive after each user. When I first saw
    that, I saw it in the context of a terrorist investigation,
    because someone went there to use it, my reaction was, ``What
    are we doing? What are we doing as people who care about saving
    lives?'' I don't care what your political background. That is
    something that has to concern you. We need to strike the
    balance in an appropriate way.
        Chairman Hatch. You have been really helpful here. I have a
    lot more questions but let me turn to Mr. Warner for a minute
    or two.
        People cast their eyes towards Washington, D.C. when
    engaging in debate over laws dealing with national security.
    However, many of those laws require action by those in the
    field across the country. People just like you.
        I was wondering from both the national perspective, serving
    as the head of the Attorney General's Advisory Committee of all
    U.S. Attorneys in this country, as well as the local
    perspective having served as a state and Federal prosecutor
    here in Utah, and your leadership role in helping plan security
    for the Olympics, would you share with us your perspectives on
    what steps have been taken and remain to be taken by law
    enforcement in Utah and other states to combat terrorism?
        Mr. Warner. Thank you, Mr. Chairman. I will try and be
    brief. But there's a lot of really great things that are
    happening here in Utah in regard to the question.
        I think that the Olympics were a real blessing to this
    state from the standpoint of your question, because long before
    some of these issues came to the forefront with 9/11, we were
    looking at addressing these issues in preparation for possible
    terrorism events at the 2002 Winter Olympics. That brought
    federal, state, and local law enforcement together in Utah many
    years ago in a way that really was not being done elsewhere in
    the country as a result of our preparation for the Olympics.
        We have developed some real expertise here in Utah and I
    think that one of your other witnesses, Mr. Flowers, our State
    Public Safety Commissioner, will talk a little bit about some
    of the things that are going on. But we have this great
    intelligence network between our Joint Terrorism Task Force
    here in Utah and the Homeland Security Folks in the state of
    Utah, who are working hand in glove. We built an intelligence
    architecture that allows sharing in unprecedented ways in the
    state.
        We have taken specific steps in at least two examples I
    will quickly mention towards this prevention and disruption
    paradigm that I talked about in terms of sharing information
    and using that.
        Shortly after 9/11, in December of 2001, we were the first
    district in the country to do an Operation Tarmac type approach
    to safeguard our airports. In this case we did so in order to
    hopefully provide security before the Olympic games were to
    begin in February. That operation has been repeated in
    virtually all the major airports around the country. We used
    that from the standpoint of not only closing a gap but also
    obtaining intelligence and using that intelligence to protect
    ourselves.
        Recently, a few months ago, in another joint federal,
    state, and local effort, we went after some real weaknesses in
    the issuance of commercial driver's licenses with the
    assistance and cooperation of Commissioner Flowers and his good
    people. That has been a great operation from the standpoint of
    not only closing the gap, but intelligence-sharing again. And
    also preventing and disrupting problems before they can occur.
        As an example, just quickly, if somebody were to get a
    commercial driver's license without really testing for it,
    being able to buy it, in essence, we don't know who they are,
    we don't know where they are from. They now have the ability to
    drive a tanker truck anywhere, use that as a mobile bomb, for
    all intents and purposes. We are closing these kinds of gaps
    and we are doing it because we are sharing, we're talking. The
    FBI and the state authorities and the local sheriffs and police
    chiefs are now talking and sharing information in ways we have
    never done before.
        Chairman Hatch. Thank you.
        Mr. Comey, if you would care to comment, there's been a lot
    of criticism of Section 215 of the PATRIOT Act, and we are
    going to hear some of that criticism, as I understand it, from
    the second panel. Let me read to you what one of my
    constituents wrote to me about Section 215, and I'd like you to
    respond to this. If you have that letter in front of you, the
    fifth paragraph here.
        It says, ``I have not read the entire USA PATRIOT Act, but
    because of its implications Section 215 has become a focus of
    my concern. In Section 215 the Act gives the Department of
    Homeland Security the right to secretly search homes and other
    aforementioned personal information without warrant and without
    notifying the subject of the investigation. It is pertinent to
    bookstores and libraries because the Act permits law
    enforcement to demand records of the books borrowed or bought
    without the subject being notified or charged with a particular
    crime.''
        ``It additionally states that booksellers and librarians
    are prohibited from notifying the person investigated or anyone
    else of the search, including legal counsel. This is a
    dangerous assault on civil liberties.''
        Would you care to respond to that? I'd like you to respond
    to that assertion or those assertions.
        Mr. Comey. Yes, Senator. This is fairly typical of concerns
    I have heard both in writing and in person. And I'm sure,
    obviously I don't know your constituent, but that he cares
    enough to write about this sort of thing, and this is the sort
    of citizen I think we want in this country. But he needs
    information.
        First of all, Section 215, as we have discussed, allows the
    FBI, not the Department of Homeland Security, to go to a
    Federal judge and get a court order allowing the FBI to obtain
    records from businesses. Doesn't mention libraries.
        Chairman Hatch. You have to go to a Federal judge.
        Mr. Comey. Right. You have to go to a Federal judge and get
    an order to do that. It doesn't permit searches. It is not
    about searches.
        It does, however, allow the Federal judge to order that the
    person who is providing the documents not tell the target. And
    that is something that I hope librarians will take a second to
    think about. Because people who care about privacy, as I do and
    I know you do, would not want the FBI telling anyone who they
    are investigating or why they are investigating. To go into a
    library and say, ``I'm investigating this guy, Paul Warner,
    down the street. Here is what we think it is about.'' Nobody
    would want us to do that.
        So the librarian or other recipient won't have all the
    facts about what we are investigating, and shouldn't. Because
    we care about privacy. So how is it, then, that a librarian or
    credit card agency or car rental place should be in a position
    to make the decision about whether to tell the target that they
    have obtained these records?
        Should a librarian have been able to call Ted Kaczynski and
    say, ``Hey, Mr. Kaczynski, the FBI is in here looking at your
    records''? No. And I don't think that is an unreasonable
    restriction. It is one imposed by a Federal judge, and frankly
    one that has not been used. But it is a reasonable balance
    between the need to obtain critical information and the need to
    protect privacy.
        Chairman Hatch. You don't know when or where you might have
    to use it in the fight against terrorism.
        Mr. Comey. No. And people say, in response to that, ``Well,
    if you have never used it, why don't we take it out of the
    PATRIOT Act?'' And my response is that many police officers go
    through their career, thank goodness, never drawing their gun
    from their holster but they need that gun and the gun should be
    there. Nobody wants to take guns away from them.
        This is a very important tool that might become critical if
    we are subject to another terrorist attack which, as my
    colleague, Mr. Warner said, people dismiss and don't focus on
    enough. We are in great peril in this country. There are people
    lying awake at night all over the world trying to think of ways
    to kill our citizens. Thank goodness we have men and women
    awake all night trying to stop them. But we are by no means
    safe. We are safer.
        Chairman Hatch. Thank you. So far, much of the debate has
    focused on the PATRIOT Act. Mr. Warner, you may want to comment
    on this, too--but isn't it true that many of the statutes that
    have been on the books for a long, long time such as the laws
    pertaining to mail fraud, subpoenas, wiretaps, forfeiture, and
    high-jacking, also come into play? Could you explain what
    provisions of law you use to go after potential terrorists
    beside the PATRIOT Act and explain how the PATRIOT Act
    complements existing laws, laws that have existed for decades.
        Mr. Comey. What I think the PATRIOT Act does, as I've said
    a couple times, most importantly is allow us to blend a
    criminal and an intelligence response to terrorism. We have to
    use every possible tool to disrupt terrorists. We need to lock
    them up for credit card fraud, for immigration fraud, for mail
    fraud, for money laundering. Whatever we can do.
        What the PATRIOT Act does is homogenize those tools. It
    allows us to move seamlessly from counter-intelligence response
    to terrorism, to a criminal response to terrorism, and back
    again; with judges involved, with standards involved, with
    sunshine all over the place. That's a very, very important
    thing.
        And again, I think one of the things that the 9/11
    commission will tell all of us is you had too many walls, too
    many stove pipes, too many hesitations before September 11. We
    need to be able to play the entire field, stay in bounds -and
    this is something I have devoted my life to--stay inside
    constitutional bounds, but cover the entire field in the effort
    to defeat this enemy.
        Chairman Hatch. Paul, do you care to comment on that?
        Mr. Warner. Just a comment. I think you hit it on the head
    in the sense that there are multiple tools out there, and as
    one who is using the tools I want all the tools available. I
    may not use every one of them every day but I don't want any of
    them taken away or locked in a box and I can't have them when I
    need it.
        You have mentioned grand jury subpoenas. We use them every
    day.
        Chairman Hatch. That's without judicial approval.
        Mr. Warner. Without judicial approval.
        Chairman Hatch. Other than that the law provides you can do
    that.
        Mr. Warner. Absolutely.
        Chairman Hatch. And has for as long as I can remember.
        Mr. Warner. Indeed it has. And we use them regularly and we
    use them effectively, in my opinion, and we try and use them in
    absolutely professional and ethical ways.
        I might add, though, that Section 215, as an example, is a
    good adjunct, a good corollary tool to be used when necessary
    with grand juries or instead of a grand jury subpoena.
        But my point is simply this: Any tool can be used or it can
    be abused. We have talked about this a little bit earlier but I
    emphasize it again. The fear that people have about particular
    sections of the PATRIOT Act really, in my opinion, are a fear
    of abuse, and I understand that. But I don't think we should
    allow our fear that tool will be abused to keep us from having
    the tool. If, in fact, these tools are abused, as Mr. Comey
    indicated, there's many types of oversight that are in place
    between the Department of Justice, between the Congress and the
    courts, that allow for review of the use of these tools. But I
    think in the post 9/11 world, we need the tools and it would be
    a real shame to say because they might be abused, you can't
    have them.
        Chairman Hatch. Well, I think you can say any criminal law
    might be abused. We have to make sure that we oversee and that
    we do things appropriately. That's what your job is in many
    respects, as well as a prosecutor. Yours, too. You have to
    oversee the people in the field and make sure they abide by the
    law and their civil liberties are protected and not endangered.
    And that's one of the major jobs you have in justice, and one
    of the major jobs that I have in the Senate, and the people in
    the Judiciary Committee have.
        I guess you could say any anti-crime law could be abused by
    rogue law enforcement people. Our key here is to not take away
    the tools that good law enforcement people need just because
    some rogue person could abuse them. And that's hopefully what
    the PATRIOT Act is doing.
        Now, let me just ask this question. Many of the witnesses
    on the second panel here today are supporting legislation that
    would impose a seven-day limit on delayed notification search
    warrants. And this seven-day period could be extended by a
    judge, I think someone would argue that that might be the case.
    Now, I'm not sure that a seven-day limit is practical in the
    case of terrorists.
        In my experience and knowledge of terrorism in this country
    and how long it takes to get them, and how carefully we have to
    be that they are not notified and be able to cover their
    tracks, it seems to me that 7 days may not be right. What do
    you think about that, and what about a 30- or 60-day limit or
    some other limit which would be expandable by the courts?
        Mr. Comey. I don't think it is an unreasonable thing for
    people to say we have a seven-day limit on delayed notification
    search warrants. My response though is why. Why not, because a
    Federal judge is supervising it, allow the Federal judge, as
    the PATRIOT Act does, a reasonable period because each case is
    different. And I don't see that anything is broken there so I
    don't know why we would try to fix it by imposing a seven-day
    window. Like I said, it's not a crazy thing to say and I don't
    react by saying, ``That person is out to lunch.'' But I don't
    know why we would do that when we have a standard laid out in
    the statute, a Federal judge supervising based on sworn
    affidavits that allows the Federal judge to react to the
    circumstances of each case.
        Every one is different. A Mafia safe house case, you may
    need to stay up on the bug in the Mafia safe house for months
    but you can't leave a murder weapon under the floorboards,
    because that might disappear, without going in and taking it.
    If you impose the seven day limit on yourself then every 7 days
    you have to go back to the judge. I don't know why that is more
    reasonable than saying a Federal judge shall supervise and
    determine what is reasonable given a particular investigation.
    In terrorist cases would be the most extreme example.
        Chairman Hatch. And one of the main considerations by the
    judge or by the prosecutor himself or herself is that in
    certain circumstances, if you don't have that delayed
    notification, then you may never get to the bottom of the
    crime. You may never get to the bottom of the terrorist act,
    you may never get to the bottom of the terrorist activity. And
    it has to be supervised by a judge. But it's for the purpose of
    not notifying the perpetrators so that they can escape or avoid
    or otherwise get away with what their criminal activity is. Am
    I correct in that?
        Mr. Comey. Absolutely, Senator. And people who understand
    the nature of our work, even those who are critical of many
    aspects of our work, I think, understand the importance of that
    tool. When you tell good folks, ``This is the way we use it to
    save lives,'' their response always is, ``Okay. That's
    reasonable. I didn't understand that.'' And that's part of the
    challenge we face in the PATRIOT Act debate.
        When people hear about ``sneak and peek,'' they think,
    ``'Sneaking' and `peeking' are both bad things. I'm against bad
    things.'' But this is a very good thing used cautiously but
    used when it really, really matters. And I think it's
    reasonable for people to discuss ways in which we use these
    tools. But reasonable people, I think, unite in the
    understanding that we have to have this basic tool.
        Chairman Hatch. I think that's right. If Congress does not
    take any action, several vital sections of the PATRIOT Act are
    going to expire in 2005. Could you explain to us here today
    what impact these provisions which are to sunset in 2005 have
    had on the Department's efforts to fight terrorism. And could
    you also explain how the Department's efforts to prevent
    terrorism will be affected by these provisions, or should I say
    will be affected if these provisions are not re-enacted by
    Congress.
        Mr. Comey. I'm not someone who is given to hyperbole. But
    the effect of the sunsetting, particularly of the information-
    sharing provisions that allow criminal people to share with
    Intel, and Intel back, lives will be lost. That will return us
    to the dangerous situation we were in before September 11. We
    cannot allow that to happen.
        Another example is if we lose the roving wiretap authority,
    I mean, either I or the Attorney General have to personally
    approve every Foreign Intelligence Surveillance Act search or
    surveillance in the United States. And they come to me around
    the clock and lay out these circumstances for me before they go
    to a judge and I have to approve them. We are up on roving
    wiretaps of people involved in international terrorism.
        Chairman Hatch. By being ``up on'' you mean you are
    following them.
        Mr. Comey. We are following, we are listening to their
    conversations. They are switching phones. If that sunsets and
    we go dark, we have put ourselves in a very dangerous
    situation. That can't be allowed to happen. And that's why the
    sunset date, when the president said, ``The legislation may
    sunset, but the terrorist threat does not sunset,'' that is not
    just some punchline from a speech. That is a very, very
    important day, that day in 2005 when the sunset is supposed to
    happen, which is why it is so important we have this discussion
    now. Because we would be failing the American people if, like
    kids not doing their term paper until the night before, we
    started trying to figure out whether we need these tools the
    day before they were to sunset that. Because that would put us
    in great peril.
        Chairman Hatch. It's been very helpful. I have read Dick
    Clark's book and found it interesting. It is a substantive
    guide. I'm also on the Joint Committee on investigating these
    matters on intelligence. And I heard his testimony when he came
    and testified in closed hearings before us. And that testimony
    was not the same as what his book has said. Of course, his book
    is much more detailed. But the testimony did not lay out some
    of these defects that he feels exist today.
        Plus, I have been watching whenever I can. I'm so busy I
    don't have enough time to follow the 9/11 Commission's
    hearings. But I have been reading what they were saying, I have
    been watching them when I can. And virtually everybody,
    Democrats, Republicans, including Dick Clark, have said that
    the PATRIOT Act is crucial in the fight against terrorism. Am I
    exaggerating that?
        Mr. Comey. No, sir. Janet Reno was asked that question
    yesterday and endorsed the PATRIOT Act very strongly. And
    because, as I said, if people know our business, Democrats or
    Republicans, if you know what we do for a living and how we use
    these tools, which is what we are trying to get everyone else
    to understand, you will say, ``You need to have that. You need
    to be able to follow drug dealers and terrorists in the same
    way.'' Frankly, you ought to be able to follow terrorists more
    easily than you follow drug dealers, but now we at least have a
    level playing field.
        So your understanding of the 9/11 Commission, it's a
    bipartisan commission and I believe it's going to end up with a
    bipartisan conclusion that we need this act.
        Chairman Hatch. That's certainly the experience that I've
    had. The people who really understand it and really know,
    especially law enforcement people, will tell you that without
    that act we are going to place our country and our people in
    jeopardy. There's no question about it. I have concluded from
    what you have said that that is true. Am I catching you
    correctly?
        Mr. Comey. Yes, sir.
        Chairman Hatch. I want to personally express my gratitude
    to both of you. I know the great work that you both have done.
    Unfortunately, in Utah, Paul, most people don't know what you
    do. But day in, day out, you and our state and local law
    enforcement people are protecting our state. And not just our
    state but the whole country because of what comes in and out of
    our state. And I really admire and appreciate what you are
    doing and all the law enforcement people in our state. Our
    state and local people are great, too. And we need to give them
    the tools that they need.
        Mr. Comey, I've watched your career for a long time. And
    there's no better prosecutor in the country than you. And I
    think you have exhibited that here today. And for you to take
    the time to come out here and be at this hearing, I know you
    consider it that important. And it is that important. I think
    it is very important that you be here.
        We hear your testimony because a lot of people misconstrue
    what is in the PATRIOT Act. It is a tough set of laws. But they
    are laws that are designed to protect us while, at the same
    time, balancing the civil liberty concerns that all of us have
    and all of us don't want to be infringed upon. So that delicate
    balance you have to maintain. I count on you, Paul, and others
    throughout this country in the Federal Government to make sure
    we do that. We want to thank you both for being here. I will
    end with that. Thanks so much.
        Mr. Warner. Thank you, Mr. Chairman.
        Mr. Comey. Thank you, Mr. Chairman.
        Chairman Hatch. Let me take a second and draw the second
    panel up.
        [Recess.]
        Chairman Hatch. It's an extremely interesting hearing and
    it's extremely important in regard to the PATRIOT Act. And I'll
    take from this all that I can. So if we could have order.
        I'm pleased to introduce our second panel of witnesses. We
    have a diverse selection of supporters and critics of the
    PATRIOT Act from all over the political spectrum. First we will
    hear from Dani Eyer, executive director of the ACLU here in
    Utah. Glad to have you with us.
        Nanette Benowitz, with the League of Women Voters of Utah.
    Welcome.
        And Robert Flowers, Security Commissioner who is a hero to
    me, having gone through all of the protections that we worked
    together on during the Olympics. He's Commissioner of the Utah
    Department of Public Safety and one of the great law
    enforcement people.
        Scott Bradley is here to represent the Eagle Forum of Utah.
    Glad to have you with us.
        Aaron Turpen is the secretary of the Libertarian Party of
    Utah. Aaron. Glad to have your point of view, as well.
        Bruce Cohne, an old friend of mine from a long time. I
    don't want to hurt your reputation by that, but he's a good
    guy, a smart lawyer. He's Chair of the Utah Advisory Committee
    for the United States Commission on Civil Rights, and Bruce we
    are glad you took time out of your schedule to be here with us.
        And finally, we would be pleased to hear from Dan Collins.
    Dan Collins is the Former Associate Deputy Attorney General and
    currently with Munger, Tolles & Olson, one of the great law
    firms of Los Angeles, California. So we think it is wonderful
    of you to take time to come to the University of Utah with us
    today and participate in this hearing.
        We are grateful to all of you because you are serving your
    country by letting us know what you feel, what your criticisms
    are, and your feelings of law enforcement and this particular
    bill. And we are grateful to have you here. I intend to listen.
    And we will start with you, Ms. Eyer, and go from there.

    STATEMENT OF DANI EYER, EXECUTIVE DIRECTOR, ACLU OF UTAH, SALT
                            LAKE CITY, UTAH

        Ms. Eyer. I'm told we are supposed to hold this down while
    we speak?
        Chairman Hatch. No. I think once you push it--
        Ms. Eyer. I think we have to hold it down.
        Chairman Hatch. That's a little difficult.
        Ms. Eyer. Chairman Hatch, on behalf of the ACLU of Utah, I
    am pleased to be here to explain our concern with four sections
    of the USA PATRIOT Act. As a former high school civics teacher
    in Utah and a political science major and graduate of BYU's law
    school, I have deep respect for our system of limited
    government that balances power by giving each branch,
    executive, legislative, and judicial, a role in protecting our
    liberty and security. And I have heard from many Utah citizens
    from the right, left, and center who are interested in more
    open government, judicial review and accountability.
        The PATRIOT Act has become a symbol for excessive executive
    branch power. The Act was the product of an extraordinary time
    just after September 11 in which Congress and the
    administration were working quickly, under pressure, to give
    law enforcement and intelligence agencies new surveillance
    powers.
        Given that context, it is not surprising that some of the
    provisions need adjustment. An excellent bipartisan first step
    would be to pass the Security and Freedom Enhanced, or SAFE Act
    of 2003, sponsored by Republican Senator Craig from Idaho and
    Senator Durbin from Illinois. I have read that some senators
    are hesitant about passing the SAFE Act because it ``repeals''
    parts of the PATRIOT Act. I do not think that is accurate. The
    SAFE Act does not repeal any portion of the PATRIOT Act;
    rather, it modifies three surveillance sections and broadens
    the sunset clause, essentially amending four out of 158
    provisions of the Act in order to restore checks and balances
    while specifically preserving those powers for use in
    terrorism.
        I have submitted an attached memorandum which explains in
    detail how passage of the SAFE Act would still leave government
    with substantially more power than it had before the PATRIOT
    Act was passed. But, in sum, the four sections the SAFE Act
    would affect, one, to restore judicial safeguards for search
    warrants; two, to require articulable suspicion of connection
    to a terrorist before a court may approve demands for personal
    records from a third party. This is a standard far lower than
    ``probable cause'' but more than nothing. Third, require--and I
    was misquoted in The Tribune today--require that roving
    wiretaps in intelligence cases--
        Chairman Hatch. Join the crowd, okay?
        Ms. Eyer. Require that roving wiretap in intelligence cases
    have the same standards as in criminal cases in order to guard
    against interception of innocent conversation. And fourth,
    expand the sunset clause to require Congressional review of
    three new surveillance provisions.
        These safeguards would not prevent the government from
    using ``sneak and peek'' searches, secret court orders for
    records, or roving wiretaps even in nonterrorism cases. They
    simply require more meaningful judicial scrutiny.
        For better or worse, in the public mind the issue of the
    PATRIOT Act has also grown to include the entire array of new
    government policies adopted after 9/11. Utahns have a strong
    tradition of skepticism for government power, particularly
    surveillance power.
        As an example, Utah has recently rejected the MATRIX
    system, a surveillance plan that combines billions of records
    about individuals from government and private databases,
    creating an entity that could track every private life without
    safeguards and court oversight. These notions of intrusive
    surveillance offended Utahns across the board, and the MATRIX
    plan was quickly ushered out.
        Utahns are equally leery about provisions of the PATRIOT
    Act involving the secret surveillance, where and to what extent
    those provisions have been used remain a mystery.
        This law, the law imposes a gag rule on those who receive
    surveillance orders. Utahns are fearful that private aspects of
    their lives can be searched more easily without their knowledge
    and without any ability to challenge.
        As for Section 215 and the power to obtain records held in
    the hands of third parties, I offer a local perspective. I once
    owned and ran an independent bookstore in Utah County. I know
    many booksellers and librarians in Utah and I want to convey
    why it is that Section 215 carries with it a message of alarm.
        An extremely sensitive relationship exists between
    booksellers, librarians, and customers. People who walk into
    bookstores carry with them a burden of insecurity. They worry
    about their intellect, they worry about their choice of reading
    material, and that someone might be watching or judging them.
    It's the duty of librarians and booksellers to calm those fears
    and create an atmosphere of inclusion and trust.
        This is the living, breathing manifestation of our concept
    of freedom of press, freedom of expression, and freedom from
    government intrusion and personal information gathering, or
    privacy. In America we must be able to obtain written material
    without worries about surveillance.
        If, in fact, the government has not utilized Section 215 to
    obtain personal records, then it makes no sense to further
    alienate people with threats of intrusion into areas that are
    so instinctively protected. This should prompt further review
    of Section 215 to find the balance between its efficacy and the
    problems of perception that it creates, which could at least be
    mitigated by a restriction of its use to those for whom there
    is individualized suspicion.
        At the end of next year, 17 sections of the act will expire
    and Congress should review those provisions and ask tough
    questions. Congress plays a crucial role in assuring the public
    that its liberties are protected. A public that is afraid that
    the government wants unchecked power will become suspicious
    even of legitimate anti-terrorism efforts. Congress must
    preserve that real oversight.
        Last, I appreciate the fact that you, Senator Hatch, have
    noted that your constituency is worried. And I agree it is
    noteworthy in a state known for its patriotism that its two
    leading newspapers, The Tribune and The Deseret News have
    published several editorials expressing concern about the
    PATRIOT Act. It is also remarkable that the ACLU of Utah joins
    not only the League of Women Voters but the Eagle Forum, Grass
    Roots--the Conservative Caucus, and the Libertarian Party in
    expressing concern related to the PATRIOT Act. This is a
    combination we do not often see here in Utah.
        Chairman Hatch. It's once in a lifetime.
        Ms. Eyer. Thank you for the opportunity.
        [The prepared statement of Ms. Eyer appears as a submission
    for the record.]
        Chairman Hatch. Thank you. We appreciate you coming and
    appreciate your suggestions and kind remarks.
        We will turn to you, Ms. Benowitz?

       STATEMENT OF NANETTE BENOWITZ, PRESIDENT, LEAGUE OF WOMEN
                  VOTERS OF UTAH, SALT LAKE CITY, UTAH

        Ms. Benowitz. Benowitz.
        Senator Hatch, and members of the Committee, I would like
    to thank you for the opportunity, also, to testify at this
    hearing.
        I share the views of many Americans that we need new
    measures to protect against terrorism while maintaining
    fundamental protections of democratic society. As a member and
    president of League of Women Voters of Utah I welcome the
    opportunity to share our organization's thoughts with you.
        Our membership expressed concern about the USA PATRIOT Act
    at our state convention last May. Since then, many have chosen
    to study this issue, either through public meetings or at
    smaller, more intimate gatherings. I have included individual
    comments from our members in our written testimony. The most
    telling, I believe, was from Bonnie Fernandez who said, ``There
    is no valid reason to abrogate the constitutional protections
    of civil liberties, even in the name of national security. When
    national security supersedes the Constitution, we are in
    greater danger than any danger the terrorists might present.''
        In fact, we members all over the United States have been
    steadfast in our convictions that we must balance the need to
    protect against threats to America with the need to preserve
    liberties that are the very foundation of this country. A
    government open to citizen scrutiny with checks and balances
    among the legislative, executive, and judiciary branches,
    including independent judicial review of law enforcement and
    limits on secret, indiscriminate searches are essential to
    guarding our liberty.
        Let me start by saying that we support the overall intent
    of the USA PATRIOT Act. We recognize that law enforcement must
    be able to address new forms of terrorism. However, we urge
    Congress to perform review and oversight that they did not have
    the luxury of performing in September and October of 2001. We
    urge you to review exactly what the PATRIOT Act has
    accomplished and to revise the provisions that we believe have
    unnecessarily infringed upon our civil liberties.
        I have three concerns I would like to express today. Issue
    number one, citizens fear that by supporting laws designated to
    protect them, they have given up many of their basic liberties.
        Our country has survived the Cold War and other serious
    dangers to our National security. Throughout these difficult
    times, all three branches of our government have examined and
    refined the protections afforded to all under the Fourth
    Amendment. This careful constitutional balance should not be
    set aside without concrete evidence that new powers have
    prevented or would have prevented attacks.
        Revelations about abuses of surveillance and potential
    powers have created a climate of distrust between the citizenry
    and law enforcement that we simply cannot afford at this time.
    We have heard a wide variety of commentary on secret searches
    with delayed notification and even gag orders on third parties
    who hold information that should, by right, remain private.
        Issue number two. We support the Security and Freedom
    Enhancement Act because it addresses some of the problematic
    provisions of the PATRIOT Act. The League supports provisions
    in the SAFE Act to limit ``sneak and peek'' searches first
    authorized by the PATRIOT Act. The SAFE Act would allow serving
    a search warrant only to be delayed when the government can
    show secrecy is truly a need to prevent flight, destruction of
    evidence, or danger to life or physical safety, and only for
    renewable seven-day periods. This would allow judges to
    exercise oversight using meaningful standards that uphold our
    Fourth Amendment protection against unreasonable search and
    seizures.
        We also support SAFE Act limits on law enforcement's
    request for business records. In contrast to the PATRIOT Act,
    evidence would be required to show that requested records
    actually relate to a spy, terrorist, or other foreign agent.
    Businesses such as banks, doctors, universities, libraries hold
    sensitive information about our private lives, and most
    importantly our private thoughts, including political thoughts.
    This information should not be available to the government
    without suspicion of wrongdoing.
        Finally, we support the SAFE Act proposals to require
    ``sneak and peek'' warrants and national security letters,
    which allow access to personal records without a court order.
    They should be included in the PATRIOT sunset provisions.
        And the last issue we have, as the League has studied this
    issue, it seems clear that what is needed is not additional
    powers but the better use of existing powers. The PATRIOT Act
    and subsequent bills have called for revisions to the Foreign
    Intelligence Surveillance Act. We are concerned that FISA
    warrants no longer limited to foreign intelligence gathering
    will become the warrant of choice because they are easier to
    secure than traditional warrants.
        FISA was enacted specifically to restrict the use of these
    powers for domestic criminal investigations and prosecutions
    because of government abuses targeting individuals, political
    and religious groups in the 1950's and the 1960's. The
    potentially chilling effect of extensive surveillance and
    detention powers on both healthy political debate and effective
    cooperation between citizens and law enforcement is simply too
    great.
        The case of alleged hijackers, Zacarias Moussaoui,
    indicates it was not FISA restrictions that kept law
    enforcement from learning more about 9/11 hijackers, but the
    failure of the officials to seek a warrant at all, to lack of
    cooperation between FBI, CIA, and French intelligence.
        We ask that you give law enforcement resources the need to
    communicate with each other and do their job better, not
    undermine laws that hold these officers to higher standards.
    Simply put, relaxed warrant requirements make it easier to add
    hay to the pile but not any easier to find the needle.
        In conclusion, I would ask this Committee to address all of
    the provisions of the PATRIOT Act, not just the sunset
    provisions. We feel strongly that this Act is too important not
    to be given the attention it deserves. We ask you to support
    the SAFE Act and to add oversight and review to the PATRIOT Act
    that would provide appropriate protection for innocent
    Americans from unrestricted government surveillance.
        And finally, we encourage law enforcement to more
    effectively coordinate, implement, the use of the information
    they already have. I would like to thank you, Senator Hatch,
    and the Committee for holding these hearings and giving all of
    us the opportunity to express our thoughts on this Act. The
    League was eager to participate in the diverse coalition that
    was formed to encourage open dialogue on the PATRIOT Act.
    Sitting at a table in Utah with Utahns from many cultures,
    including from the Middle East, empowered me and renewed my
    respect for the diversity of this country. This hearing has
    been an important process for educating Utahns about the steps
    our government is taking to review the PATRIOT Act. Thank you.
        [The prepared statement of Ms. Benowitz appears as a
    submission for the record.]
        Chairman Hatch. Thank you for your time and efforts you put
    forward.
        Mr. Mylar.

    STATEMENT OF FRANK MYLAR, UTAH GRASSROOTS, SALT LAKE CITY, UTAH

        Mr. Mylar. Chairman Hatch, and honorable members of this
    Committee, I am pleased to be able to present information
    today.
        Chairman I know that you cherish the Constitution and you
    would have a desire to see if there's any problems by holding
    this hearing so we can correct those. I very much appreciate
    that.
        My name is Frank Mylar. I'm a private attorney in private
    practice emphasizing law enforcement and civil rights issues
    and I also previously served as Utah Special Assistant Attorney
    General for over twelve years ago. I'm very cognizant of the
    challenges facing law enforcement in the 21st century.
        I'm not here as a paid lobbyist. I'm here because of
    personal convictions and I was asked by Utah Grass Roots caucus
    to address these issues that they also are in agreement with.
        I unequivocally support President Bush in his
    administration and his reelection campaign. However, our
    President and Congress, in our zeal to try and stamp out
    terrorism can sometimes have tunnel vision especially during
    difficult times like we have gone through since September 11. I
    also am very disturbed at many of the things going on with that
    commission because I think that everyone can have better vision
    with 20/20 hindsight and I think that they are missing the
    boat; however, that there still are important issues that are
    raised by this hearing and with this Act that need to be looked
    at.
        Even if Congress passed the most restrictive laws
    imaginable, we will not prevent future acts of terrorism. But
    if we did so, we would forever change who we are as a people
    and a nation beyond recognition. And it's for this reason that
    we must proceed with caution and courage in how we draw those
    lines as to what the Federal Government can and cannot do,
    because indeed it is not questioned that they certainly can do
    a lot more things than they used to be able to do to intrude
    into the citizens' lives.
        We really haven't even significantly debated this whole
    concept of the facts that the CIA and the FBI can work as a
    team now. There may be some benefits from that, but I think we
    need a lot more debate and caution on that particular area for
    several reasons.
        One of the things that I think is very significant here is
    that with Section 215, and when you look at also Section 213,
    which I won't particularly talk about, you don't have to be a
    target of someone that has committed a crime, actually, before
    they take those records. In fact, you don't have, under FISA,
    of course, the question is whether you actually are a terrorist
    or not or involved in terrorist activities.
        I'm particularly concerned, and I think the Committee needs
    to be concerned, not whether the two gentlemen who spoke here
    are going to abuse this act, but who could reasonably use this
    act to abuse power in the future. So it isn't just sufficient
    for us to come forward--especially when this has only been an
    act for two and a half years, and only one administration--to
    be able to find actual horror stories of how this has been
    abused. But we need to think in the future, the implications
    that this act might have on other administrations, which brings
    particular concern to me.
        The Fourth Amendment should not be easily set aside, and I
    know you don't want to do so. It strikes an important balance
    between the Biblical concept that it is equally detestable to
    acquit-the guilty as it is to condemn the innocent. I think the
    PATRIOT Act, in several areas, improperly tips this balance and
    it needs to be reevaluated.
        The fact that health records, employment records, financial
    records, and firearms even themselves could be seized without
    any individual suspicion that that person who it is seized from
    has committed any crime at all, that is certainly of a concern.
    It is also of a concern that under Section 213 you may never
    know that your items have been looked into, computer files and
    so on.
        And it is not sufficient just to say that a judge reviews
    it. We both know Federal judges are busy. They don't have time
    to review all the different investigative files. But under
    traditional criminal law enforcement, there was a criminal
    investigation file that would have to be filed showing that
    these people were alleged to be involved in criminal activity.
    I don't believe we have that same or similar individualized
    suspicion under the PATRIOT Act, and I think that that also
    needs to be dealt with.
        There's also, of course, the catch-all provision regarding
    the delay that prosecutors may use. My concern is that, again,
    prosecutors are busy. Judges are busy. This can be used I think
    far too frequently. There needs to be safeguards put in place
    on that.
        I have no doubt that ``sneak and peek'' searches authorized
    under the PATRIOT Act are efficient tools. However, I would
    rather be hampered by the burdens of freedom than shackled by
    the efficiency of tyranny, and I think we need to look at that
    carefully to see how these could be applied.
        Of crucial importance to conservatives regarding the
    PATRIOT Act is how it might be co-opted in future
    administrations. I'm not concerned particularly on how
    President Bush might use this. I know he has a heart and soul
    that wants to fight terrorism. However, it was suggested, and
    there may have been some evidence that Attorney General Janet
    Reno may have used even the RICO laws to inappropriately target
    pro-life organizations, even though they weren't involved in
    criminal activity. But they were using the racketeering laws as
    justification to do that.
        This Act broadens that even more. We need to look at what
    potentially could happen under future administrations to target
    pro-life, pro-defensive marriage organizations, and pro-Second
    amendment organizations because they could be politically
    thought of to be somehow involved in terrorism inappropriately.
        I, for one, would not trade my liberty today even if you
    could tell the American people that we could stop all and avoid
    all future terrorist acts. And I know we can't. The most
    dangerous and formidable foe to tyrants throughout the ages has
    always been those who are truly free, because they have
    something to live for. It's such courage that caused Patrick
    Henry to say, ``Give me liberty or give me death.''
        We, as a nation, have been entrusted by those before us to
    preserve liberty. Let us not forget the words and actions of
    our Founding Fathers by setting aside these principles for
    which they paid the ultimate price. For our country and our
    childrens' sake, let us boldly wage the war against terrorism
    as free people and with our liberty intact.
        Thank you, Mr. Chairman.
        [The prepared statement of Mr. Mylar appears as a
    submission for the record.]
        Chairman Hatch. Thank you.
        We turn to Commissioner Flowers now.

     STATEMENT OF ROBERT FLOWERS, COMMISSIONER, UTAH DEPARTMENT OF
                  PUBLIC SAFETY, SALT LAKE CITY, UTAH

        Mr. Flowers. Thank you, Mr. Chairman.
        It is an honor to be here and sit at the table with such
    diversity of opinion. Ms. Eyer and I will be debating much on
    the MATRIX program because we have different takes on it. I'm
    eagerly awaiting the debate, almost.
        I would like to take a moment and express my appreciation
    to you about the Olympic games. Most people don't understand
    what we went through during that time, and we were able to use
    you to get into doors we weren't able to get into otherwise.
    People just don't know what unraveling times they were for me
    and my staff. And your leadership, the private meetings I was
    able to hold with you, and I knew you were extremely busy, and
    I just want to acknowledge that publicly because I haven't had
    a chance to do that in a meaningful forum.
        Chairman Hatch. Appreciate that.
        Mr. Flowers. I'd like to read a portion of my statement for
    time's sake.
        Chairman Hatch. When this goes red, you are supposed to
    stop.
        Mr. Flowers. I don't have a problem with that. As a public
    safety official, I have become increasingly concerned with the
    continual attacks on an effective and much-needed law
    enforcement tool. It seems to me the critics of the Act may not
    have an understanding of the challenges law enforcement faces
    on a daily basis.
        The Utah Department of Public Safety is tasked with the
    responsibility of addressing issues of prevention, response,
    and mitigation in fighting the war on terrorism locally. These
    three terms when spoken in bureaucratic sentences seem to lose
    power. I translate those terms into protect, protect, and
    protect. This becomes a very powerful charge from the citizens
    I serve.
        I have been charged with the responsibility to protect the
    citizens of the state of Utah, a role that I accept. However,
    with that responsibility must come the ability to do that. The
    PATRIOT Act takes a major step towards giving law enforcement
    the tools it needs to protect the public. The ability to
    gather, analyze, and share information so critical to our
    charge is essential. Our success of prevention, response, and
    mitigation will largely depend on our ability to gather,
    analyze, and share information. Which, at every hearing you
    watch, information sharing and the ability to gather, it seems
    to be the center of a lot of that.
        Our enemies have moved among us, even here in Utah, using
    our very laws to hide, gather resources, and then turn those
    resources upon us in an effort to destroy us. They use
    asymmetrical tactics that will require extraordinary efforts
    previously unknown inside the United States. While some merely
    want to debate the efficacy of the PATRIOT Act, law enforcement
    doesn't have the luxury to sit and wait while discussions rage
    on. The tools provided in the PATRIOT Act today to enable us to
    address the critical issues of public safety are of most
    importance.
        There's a couple things I would like to talk about from
    personal experiences I have had with this with the breakdown.
    Several years ago when I was the police chief in St. George, we
    were dealing with the White Supremists. And I met with two
    groups of individuals from the FBI. And one was the
    intelligence aspect of it and one was the criminal
    investigation. I did not know at that time that the two did not
    speak.
        And I remember we had quite a bit of information. It was
    quite an ugly investigation we had going on. Personal threats
    to members of our community. I had my lawn killed and a number
    of things by these individuals.
        When I went to gather information, try to get information
    from agencies, the FBI agents, whose hearts are of gold and
    wanted to, said, ``We simply can't give you that information
    because of the criminal investigation.'' A concept that I did
    not understand at that point.
        Another time I was, as part of the same investigation, I
    asked an individual a question, I had received information from
    this group. And he was surprised that I was talking to the
    intelligence group because he was in another part of this
    particular organization and there was not a lot of contact
    going on between us. So I found that disturbing, but I found
    out later that was by design. That's the wall that we talked
    about.
        During the Olympic Games we had our intelligence
    infrastructure and we had our criminal investigation, and they
    had to be kept separate. We couldn't even go in the same rooms,
    and I thought that was not a good way to run a security
    operation.
        Since the PATRIOT Act, we are doing things we have never
    done before. We are sharing information, sitting around the
    room. I talk almost weekly with our Assistant Attorney General
    and Chip Burris of the FBI. And it has worked extremely well.
        My point is this: I understand the debate. It's a good one
    and needs to be had. And we need to come to some conclusion on
    this. But if the PATRIOT Act is not reinstituted, I can't
    imagine the environment we will be in if we have to go blind in
    the new environment that we are in. So anything that I can do,
    any place that I need to go, I will be willing to do that.
    Thank you.
        [The prepared statement of Mr. Flowers appears as a
    submission for the record.]
        Chairman Hatch. Thank you, so much.
        Mr. Bradley. Turn to you.

     STATEMENT OF SCOTT BRADLEY, EAGLE FORUM, SALT LAKE CITY, UTAH

        Mr. Bradley. Thank you. Appreciate the opportunity to
    present thoughts on this critically important issue. My name is
    Scott Bradley. I'm speaking on behalf of the Eagle Forum. And I
    have previously submitted, as you are aware, an expanded
    version.
        Chairman Hatch. We will put all the expanded versions, as
    written, into the record.
        Mr. Bradley. Thank you.
        It is from a historical perspective and that of the
    foundation principles that the nation was originally founded
    upon that I express concerns about the USA PATRIOT Act. Due to
    their personal experiences, the founders of this Nation sought
    to forestall the tendency of government to overreach its proper
    role. They carefully crafted a government which had a clearly
    defined scope and balance.
        For example, the Fourth Amendment was a direct outgrowth of
    search and seizure abuses experienced under the British rule in
    the colonial era. During that period of time, Writs of
    Assistance were general warrants carried by officials of the
    British government which allowed them to enter a premise,
    search for anything they felt might be against the law, to
    seize any unlawful material they discovered, and arrest anyone
    they suspected might have some connection to the matter.
        To counter and protect against this form of tyranny, the
    Fourth Amendment was ratified. By it, the founders wished to
    prevent any future similar violations, so they required extreme
    specificity in the warrants which might be issued by government
    officials.
        Unfortunately, it may seem that there are parallels between
    the writs of the 1700's and the powers inherent in the PATRIOT
    Act of today. In both spirit and letter, it may be argued that
    the PATRIOT Act has stepped away from the exact requirements
    and specificity called for in the Fourth Amendment, and seems
    to open a path which could lead America to a circumstance in
    which modern day Writs of Assistance become common instruments
    of investigation and potentially destroy God-given rights.
        A full review of concerns of the PATRIOT Act would require
    a document exceeding the size of the Act itself. Perhaps a few
    general examples may suffice today.
        One, the Act dramatically expands Federal Government powers
    of surveillance, search and arrest, and sets potentially
    harmful precedence for future encroachments on personal
    liberties. Some of these expanded powers may be
    unconstitutional and would likely have been found so in another
    day and time.
        Two, the Act greatly expands the legal use of ``black bag''
    searches in that there are broad powers granted to police
    agencies to conduct secret searches without notifying the
    subject of the search until after the search was conducted, if
    at all. This power appears to extend to all suspected criminal
    circumstances, not only to potential acts of terrorism or war.
        Three, roving wiretaps, which allow investigators to tap
    multiple telephones used by a suspect, may now be carried out
    nationally on a single court order. Previously such wiretap
    orders were generally allowed only in a jurisdiction of a judge
    issuing the order and were subject to constraints which reduced
    the potential that abuses would occur.
        And four, the Act also allows the CIA to access foreign
    intelligence information obtained by domestic grand jurys, as
    well as other information obtained through investigations and
    by law enforcement agencies, effectively creating an
    environment in which the CIA could spy on American citizens in
    violation of long-standing U.S. policy.
        Overall, the PATRIOT Act limits and reduces judicial
    oversight in the gathering of evidence, diminishing the
    distinction between the gathering of foreign intelligence and
    domestic law enforcement and allows many of these provisions to
    be allowed not just against foreign agents of foreign
    governments or against terrorists, but in many cases against
    citizens of the nation who may, under some construction of law,
    be deemed a threat.
        It would seem that other better ways are available to the
    nation to deal with threats as they face us in this dangerous
    world. Those ways would include more diligent protection of our
    borders from potential threats and those who would enter or who
    have entered illegally. It is tragic that the nation's lax
    immigration and visa policies gave the terrorists who attacked
    the nation on September free access to target our citizens. It
    appears that at least 15 of the 19 hijackers should never have
    been issued visas to the United States if consular officials
    had diligently followed the law.
        It is incomprehensible that a nation which is at war with
    terrorism and has been victim to a vicious attack has not taken
    the most simple and logical steps to protect our borders from
    future potential attacks. And the argument could be made that
    we are taking steps to create even less secure borders, making
    overtures which will likely encourage that type of illegal
    entry into the nation.
        The solution to terror, as it has been thrust upon us, is
    not to destroy the liberty of loyal Americans but to interdict
    those who would bring that threat upon us. Perhaps this issue
    may be reviewed in greater detail in a future hearing. Please
    consider these concerns as the PATRIOT Act is reconsidered.
        Thank you very much.
        [The prepared statement of Mr. Bradley appears as a
    submission for the record.]
        Chairman Hatch. Thank you, Mr. Bradley.
        Mr. Turpen. We will take your remarks.

    STATEMENT OF AARON TURPEN, LIBERTARIAN PARTY OF UTAH, SALT LAKE
                               CITY, UTAH

        Mr. Turpen. Thank you for having me here today. My name is
    Aaron Turpen. I'm the Secretary of the Libertarian Party of
    Utah. I've submitted a written statement and I'll let that
    stand on its own. Instead, I want to speak to you, and through
    you, the Committee, personally just as a concerned American
    citizen. I will be very frank. I will be very forthright. I
    won't mix a lot of words. That doesn't mean I'm going to swear
    at you, though.
        Chairman Hatch. You wouldn't be the first one to do that.
        Mr. Turpen. I noticed today, once again, the group that we
    have here and the wide breadth of people that we have
    represented today. I find myself sitting next to Mr. Bradley--
    Gail Ruzika is someone I have argued with more than once on
    several issues.
        Chairman Hatch. How did you make out? Maybe I shouldn't use
    the words ``make out'', but how did you get along?
        Mr. Turpen. I think the trick is the louder voice.
        I did want to note a few things. I listened to the
    testimony of the two attorneys at the beginning, and I applaud
    what they are doing. But I believe that part of the problem
    around the PATRIOT Act and part of the problem in general that
    we are having is that, as Henry Thoreau said, we are striking
    at branches instead of the root. I believe that what we need to
    really be looking at is what the root of the problem is, not
    what can we do to fix all these symptoms that are happening.
        In doing that, I would say that we have to look at
    ourselves as a nation. We have to look at our government as
    what it is and the power that it has. And we have to wonder did
    something happen, did something go awry? Do we need to fix
    something there? Is our reaction to create more laws really the
    proper reaction? Should, instead, we be looking at the
    fundamentals of what we are doing and reconsidering what we
    have done to fix the basic problem that is happening, rather
    than just adding more to it?
        In thinking about that, I carry this around with me, the
    little ``Citizens Rule Book''. In this book is a copy of the
    Constitution and the Declaration of Independence and several
    other things which are very useful. I would recommend that they
    hand these out in school because, in reading this, I started to
    understand that the government, according to our Constitution,
    has very specific and limited powers. And I believe that part
    of the problem is that possibly the government has overstepped
    those powers or has used them in a way that maybe it shouldn't
    have.
        I have read a lot of things in my thirty years on this
    planet, and one of the things I read, the book The People's
    Pottage, by Garet Garrett, I walked around and I talked to
    several people. I happen to live in a neighborhood that has two
    or three old folks' homes. I went and talked to these people.
    People who are old enough to remember the 1930s and even the
    1920s. And in talking with them, it was reinforced what I read
    in this book--that in the 1930s it was common to refer to it as
    ``our government''. And sometime between then and now it has
    changed. We refer to it as ``the government'', as if it is
    separate and an entity to its own that is going to--or that
    exists whether we like it or not.
        And in looking through the PATRIOT Act and looking through
    several of the provisions again in my written statement, I
    found that I was appalled, as a libertarian, at some of the
    powers that the government has. You quoted earlier Thomas
    Jefferson, and it's a very astute quote. I'm very glad that you
    brought it up because as you know--the Libertarian Party would
    be called the Jefferson Party if we were to rename it right
    now.
        Thomas Jefferson was one of the most instrumental people in
    this Nation. And something that he said, and I will paraphrase
    it a little bit but, something that he said is, ``I do not add
    within the limits of the law.'' He is talking about liberty and
    the--I'll just do the whole thing: ``Of liberty I would state
    that, on the whole plenitude of its extent, it is unobstructed
    action according to our will. But rightful liberty is
    unobstructed action according to our will within limits drawn
    by the equal rights of others. I do not add `within the limits
    of the law,' because law is often but the tyrant's will, and
    always so when it violates the rights of an individual.''
        So all I ask the Committee, and you specifically, Mr.
    Chairman, all I ask that you do is that you look at the PATRIOT
    Act and you consider it from your personal perspective as a
    citizen of the United States--not as a Senator, not as a
    chairman, just as a regular Joe. Consider it and think, ``Is
    this going to violate me? Is it going to hurt my individual
    sovereignty?'' If anything in the PATRIOT Act is going to do
    that, then I would ask that you throw it out. That's all I ask.
    Thank you, sir.
        [The prepared statement of Mr. Turpen appears as a
    submission for the record.]
        Chairman Hatch. Thank you, Mr. Turpen. Appreciate you being
    here.
        Mr. Cohne, your testimony.

    STATEMENT OF BRUCE COHNE, CHAIR, UTAH ADVISORY COMMITTEE TO THE
     UNITED STATES COMMISSION ON CIVIL RIGHTS, SALT LAKE CITY, UTAH

        Mr. Cohne. Thank you. It's a pleasure to be with you here
    this morning.
        I have learned much since I got the invitation to speak
    here today, but one thing I have learned is that I have to make
    another disclaimer in addition to all the disclaimers in my
    written statement. I have to affirmatively disclaim that I am
    not speaking on behalf of the United States Commission on Civil
    Rights.
        Chairman Hatch. Make sure your mike is on.
        Mr. Cohne. Is that okay? I'll start over.
        One disclaimer I have to make is that I'm not here on
    behalf of the United States Commission on Civil Rights. I am
    only speaking as Chairman of the Utah Advisory Committee to the
    United States Commission on Civil Rights.
        There is much good in this legislation as was pointed out
    earlier. Part of what is good is the inter-agency cooperation
    and the ability to share information has come out from the 9/11
    Commission hearings. This was a fatal gap in our intelligence.
        However, like any piece of legislation, there is much to
    look at in this legislation. This legislation was carefully
    drafted and is impossible for the average citizen to read, you
    cannot read this piece of legislation as a single act. As a
    matter of fact, it is not a single act. It is two acts in one.
    And one is Section 3.
        Section 3 of this Act is the International Money Laundering
    Abatement and Anti-Terrorist Financing Act of 2001. This
    portion of the Act imposes tremendous costs on our commercial
    estimate. If you talk to people in banking and in the finance
    industry, trying to comply with these provisions are extremely
    expensive and onerous. And it should be looked at in terms of
    the cost to commerce that these provisions create.
        Secondly, the Act itself needs a little bit of tweaking.
    And because of what was said earlier, I have proposed two
    amendments to the Act, to be specific. First of all, Section
    215 in the Act is actually an amendment of 501 FISA of 1978. I
    would suggest that in light of what you were stating earlier,
    the issue of probable cause, I would suggest that the Act be
    amended in section C1 of 501 FISA to read as follows: ``Upon an
    application made pursuant to this section, the judge, upon a
    showing of probable cause, shall enter an ex parte order as
    requested or as modified, approving release of records if the
    judge finds that the application meets the other requirements
    of this section.''
        What this does is eliminates certain language and opens us
    up to the probable cause standard, which currently does not
    exist. The section reads, ``Upon application made pursuant to
    this section, the judge shall enter an ex parte order.'' There
    is no discretion on the judge. And if I'm right, and I'm not a
    criminal lawyer, and if you don't do your first criminal case
    you can't do your second, so I'm somewhat at a disadvantage
    here. But if I'm right, this is not an order issued by any
    ordinary court. It is issued by a court under the FISA. And
    therefore, the probable cause standard being applied here would
    apply across the board, and I think that's appropriate.
        Your statements to the two gentlemen earlier indicated that
    you felt it was a probable cause standard. They were both very
    careful not to use the term ``probable cause'' but ``upon an
    order by affidavit''. And there's a world of difference, as we
    both know. So that would be my amendment to Section 215. And
    Section 501 of FISA.
        The other section, which has not been discussed at all
    today, and I'm glad there's something left to discuss that
    nobody else has, and that's Section 802. 802 currently reads as
    follows. In defining domestic terrorism it says, ``Engaging in
    that activity,'' excuse me, ``activity that involves acts
    dangerous to human lives that violates the laws of the United
    States or any state and appear to be intended,'' and then goes
    on to modify.
        I would suggest that three words be added, and one word
    deleted. I would suggest that the section be amended to read,
    ``Activity that involves acts inherently dangerous to human
    life that violate the criminal laws of the United States or any
    state and are calculated to,'' deleting the word ``appear''.
    This would tighten up the statute.
        As it currently reads, it is a violation of any criminal
    law. This would mean that those people who would be terrorists
    by this definition could easily have been the Kent State
    University students. And they did engage in an activity that
    was dangerous to life, particularly theirs. This would involve
    those picketing outside of abortion clinics. This would make
    them potentially terrorists, because by their very nature they
    are interfering with actions that may be dangerous to human
    life, by their own definition.
        So I suggest that these two sections be amended, and in
    reviewing the sunset provisions to this Act that we look at the
    report from the 9/11 Commission and then act with the light of
    day shining upon this Act. Thank you.
        [The prepared statement of Mr. Cohne appears as a
    submission for the record.]
        Chairman Hatch. Appreciate your statements. Mr. Collins,
    you are going to wrap up. You may want to talk about your
    viewpoints of all of the suggestions and criticisms that have
    been made. And we would be happy to hear whatever you want to
    say.

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

        Mr. Collins. Sure.
        Chairman Hatch, I thank you for the opportunity to testify
    here today. The Congress has few responsibilities that are more
    weighty than ensuring that the men and women who work day in
    and day out to detect and prevent terrorism have the tools that
    they need to get the job done and to get it done in a way that
    enhances both security and liberty.
        My perspective on these matters has been formed by my prior
    service in the Department of Justice. Though this isn't my
    first time to Salt Lake City, I am not from Utah, but I'm glad
    to be back here again today.
        Most recently I served as an Associate Deputy Attorney
    General in the office of Deputy Attorney General Larry Thompson
    and I also, during my time there, served as the Chief Privacy
    Officer of the Justice Department responsible for coordinating
    issues concerning privacy policy. I have also served as a
    Federal prosecutor in Los Angeles and also in the Department's
    Office of Legal Counsel. I caution that the views that I offer
    today are solely my own.
        The PATRIOT Act was passed in October, 2001, by an
    overwhelming bipartisan majority and yet since that point, it
    has become the subject of, what is to me, somewhat surprising
    controversy. One of the speakers said that it has become a
    symbol. I think it may be a little bit more accurate to say it
    has become a cartoon. A lot of comments that are made either
    attribute things to the Act that are not there, misdescribe
    provisions that are in there, or misunderstand the provisions
    and the protections that are in there.
        In my view, the criticisms that have been made of the Act
    do not withstand analysis. On the contrary, I think that the
    Act represents a measured, responsible, and constitutional
    approach to the threat of terrorist activities conducted in the
    United States and against American citizens.
        Before I turn to specific provisions, I'd like to make a
    couple of points about general issues, policy principles that,
    in my experience in the Department, were important in looking
    at issues of privacy policy. First is absolute unwavering
    fidelity to the Constitution. The challenge of terrorism today,
    as many have said, requires us to think outside the box, but
    not outside the Constitution. We all start with that
    assumption. No one is questioning that.
        Second, I think it is important to keep in mind that we are
    not talking about a zero sum game. I think too many of the
    comments that are made reflect the view that anything, any
    enhanced authority or any enhanced power that is given to law
    enforcement is necessarily a reduction in civil liberties.
        I think it is plain that things needed to be done
    differently. Things needed to be changed after 9/11. And the
    question is how to change those in a way that allows the job
    that needs to be done to get done in a way that is respectful
    of civil liberties.
        Third, I think it's important we keep in mind that not all
    privacy interests are of the same magnitude and weight. You
    need to consider the context and the nature of what is at
    stake.
        Fourth, privacy is an important value but it's not the only
    value, and that's part of the challenge of the task here.
        Fifth--and I think this is a core point, and it's a core
    point that underlies a lot of the provisions of the PATRIOT
    Act--if it is good enough for fighting the mob, it's good
    enough for fighting terrorism. For me is that a categorical
    principle. It is irresponsible to allow a law enforcement or
    intelligence tool to be used for other purposes and not allow
    it to be used for fighting terrorism. There is no
    justification, I think, for such disparities. And much of the
    provisions of the PATRIOT Act can be explained by that simple
    principle.
        And then six is the importance of technological neutrality.
    We live in an age of emerging technology and those who are
    seeking to do harm to us take advantage of it and try and use
    it to their benefit. We need to try and ensure that the law
    keeps up with technology so that there isn't a technological
    gap, so that the criminals will have a leg up, or the
    terrorists will have a leg up. And that, I think, explains a
    lot of the provisions in the PATRIOT Act.
        I'd like to focus specifically, and I know a lot has been
    said on it, on Section 215, because I think it illustrates an
    important point about the PATRIOT Act. We have two primary sets
    of laws that give us tools for fighting terrorism. One is the
    traditional criminal law regime. Most terrorist acts are
    crimes, and therefore that whole regime is there. But there's
    also intelligence tools that are available, and those are
    critical. And one of the key lessons that has come out of 9/11
    is that those worlds need to speak to one another.
        But there also needs to be parallelism. Tools that exist on
    the law enforcement side should have analogs on the
    intelligence side, so that when a law enforcement predicate may
    not be available, the tool can nonetheless be used. That's why
    there are provisions about searches in both of those regimes.
    There's search provisions under FISA and there are on the
    criminal side. There are provisions for electronic surveillance
    on both sides.
        Where there was a real gap was in access to business
    records. On the criminal side there is fairly broad access to
    criminal records, but there was not on the intelligence side.
    And Section 215 simply adds, in a much more restricted fashion
    than exists on the criminal side, an ability to get records,
    business records that may be necessary in the course of
    conducting an intelligence investigation.
        So in summary, I think that the PATRIOT Act reflects, as I
    said, a measured and constitutional approach to try and improve
    the tools so that we can fight terrorism, and I wholeheartedly
    endorse that all of the provisions be made permanent. Thank
    you.
        [The prepared statement of Mr. Collins appears as a
    submission for the record.]
        Chairman Hatch. Thank you. I personally appreciate each and
    every one of you for the efforts you have put forward in
    appearing here today, and expressing your particular points of
    view. We have had a lot of hearings on this and we have had a
    lot of discussions. We have had a lot of various people come
    in. And we have analyzed an awful lot of differences among
    various groups in trying to come up with what the PATRIOT Act
    ought ultimately to become.
        Mr. Collins, let me start with you. You mention, in your
    written testimony, the importance of laws that are, if I recall
    your testimony correctly, quote technologically neutral,
    unquote. Could you elaborate for us what you mean by the
    concept of what the PATRIOT Act does to implement that.
        Mr. Collins. I think, let me talk about a provision that--
        Chairman Hatch. One of the questions, I want to get it off
    my chest while I'm thinking about it, could you address the
    concerns we hear from many that the PATRIOT Act lowers the
    standard of the supervision of the courts in granting various
    search warrants that are permitted.
        Mr. Collins. Yes, Senator.
        Chairman Hatch. If you could answer those two questions,
    that would be helpful.
        Mr. Collins. With respect to technological neutrality, I
    think it's best addressed by discussing a section which has not
    been mentioned today, which is Section 216. 216 is what amended
    the pen register provisions that exist in current law, so that
    they more clearly apply to other technologies.
        A pen register is a device that records the numbers dialed
    on a telephone. The Supreme Court has made clear that there is
    not the same expectation of privacy in who you are calling or
    the number you are calling on a telephone as there is in the
    contents of the communication, in the same way that an address
    on an envelope is not protected by privacy in the way that the
    contents of the envelope are.
        Well now so many people communicate by e-mail or other
    forms of electronic communication, and there's a need to have
    an ability to make the same kind of connection--again
    technological neutrality--do exactly what you can in terms of
    postal letters and in terms of telephones with e-mail, so you
    can follow address information without looking at content. And
    that's what 216 does.
        Several courts, prior to the enactment of Section 216, had
    granted pen register orders in the context of electronic
    communications, reasoning that the statute or authorities that
    were already available applied to that. But Section 216 removes
    any question or legal cloud that may have existed there and
    makes clear that the pen register provisions apply to all of
    the technologies. And again, it strengthens, actually, 216
    actually has pro-privacy provisions in it, making very clear
    that content may not be collected. And I worked on a directive
    that was issued by Deputy Attorney General Thompson to provide
    concrete guidance enforcing that specific directive.
        It also puts in special provisions to deal with the use of
    government installed technology, the so-called Carnivore
    debate. There were specific provisions drafted by
    Representative Armey who was concerned about that issue that
    imposed very stringent court supervision on those types of
    methods.
        I was disheartened to see that that is one of the
    provisions that would be sunsetted in the SAFE Act. And I am
    incredulous at that suggestion. The Internet has shown no
    danger of going away. There will be a need to be able to do on
    the Internet what is done with telephones and letters. And that
    is what I mean by technological neutrality.
        Chairman Hatch. We live in a technological world and we
    can't ignore it. These are important provisions. But what about
    the concern I mentioned that many believe the PATRIOT Act
    lowers the standards in the supervision of the courts in
    granting various search warrants that are permitted?
        Mr. Collins. The PATRIOT Act does not alter the standards
    for search warrants or for electronic surveillance under the
    wiretap statute at all. It adds certain predicates to the
    wiretap statute. Those are subject to sunset. I think there
    should be no question that they should be made permanent.
        I also had the privilege, while I was in the Department, of
    working on the Protect Act where quite a few statutes were
    added permanently to the wiretap list on child pornography. And
    again, this principle of equivalence; if it is good enough to
    fight child pornographers, it is good enough to fight
    terrorism. There should be no question that that should be
    permanent. But the substantive standards are unaffected.
        Chairman Hatch. As you know, I'm one of the authors of the
    Protect Act, and that has been called by some the most
    important criminal law in the last year. It gives us the modern
    tools that we need to go after these people.
        Well, let me ask everybody here, I will start with you, Ms.
    Eyer, and go across the board a minute. Current President Bush
    last night emphasized the importance of removing the pre-9/11
    legal barrier that effectively prevented sharing of criminal
    investigation between the FBI and CIA. I think Attorney General
    Comey made that same point here today.
        Now, does anyone in this panel believe that the provision--
    and I would just kind of like to have yes and no and if you
    want to extend we will give you some time. Does anybody on this
    panel believe that the provision of the PATRIOT Act Section
    203, that removes the wall that exists, is an unjustified
    threat to civil liberties and should be repealed?
        Ms. Eyer. The ``yes'' and ``no'' part is problematic.
    Listening to the hearings, as well, I believe that there is a
    reason for that wall to be a little less substantial between
    intelligence and criminal investigations.
        Chairman Hatch. That's the problem. How less substantial?
        Ms. Eyer. The devil is in the details. I did hear as
    recently as this morning the staff report from the CIA
    testimony did mention that they thought the barriers that were
    even larger were the cultural and bureaucratic barriers, rather
    than the smaller legal barriers.
        Chairman Hatch. They are both barriers, though.
        Ms. Benowitz.
        Ms. Benowitz. I don't have the legal mind that most members
    of this panel do.
        Chairman Hatch. You're doing all right.
        Ms. Benowitz. But as a layman, I would wish that
    communication would always be open and there would be no
    barrier between the investigation of the CIA and the FBI. I did
    hear, I thought yesterday, that the law had been misinterpreted
    for twenty years. I don't know whether that is relevant or not.
    But I would hope that there would not be a wall.
        Chairman Hatch. Thank you. Frank?
        Mr. Mylar. Again, I feel a little bit of a yes/no, I agree
    that that had a huge impact on our ability to try and counter
    what happened on 9/11. There's no question about it.
        Chairman Hatch. As a member of the Intelligence Committee,
    I see all the time certain very restricted materials. And I
    have to say had we been able to match them between the
    agencies, we would have had a better chance to deal with these
    people. I tell you. So that's what is behind this.
        Mr. Mylar. And I completely agree with that. My concern is
    there's been a traditional aversion to the concept of having
    the CIA investigate U.S. citizens on U.S. soil. I think that we
    do need to be careful and look at what kind of protections we
    can have to prevent also what I alluded to a minute ago, and
    Mr. Cohne did a good job of specifying that a little bit more,
    as to how this can be misapplied by future administrations in
    targeting groups that are not politically in line with the
    current administration.
        There has to be something to be able to very much define
    what is a terrorist act and what is an appearance of a
    terrorist act and these types of situations. I think we need to
    be very careful and may need to keep scrutinizing that to see
    where those potential pitfalls are.
        Chairman Hatch. Well, you are talking about scrutinization,
    we all have to do our duty to oversee whatever criminal laws
    there are. And that's a good point. No question. And this law
    has to be overseen, as well. One of the reasons why we are all
    in these hearings, we had some suggestions here today. We will
    look at all of them and consider it.
        Mr. Flowers.
        Mr. Flowers. As a user of the information and as a state
    representative, everything we do, every plan we make is based
    on the accuracy of information that we receive. I'm disturbed
    by the wall that was put up. I keep asking myself why? Why a
    wall? Is it to protect abuses? What is that all about? But when
    it is all said and done at the end of the day, it is about the
    citizens we are trying to protect.
        Chairman Hatch. The wall was put up because some people in
    administrations didn't trust law enforcement.
        Mr. Flowers. The term ``trust'' is an interesting one on
    me. You have to break it down into what trust is. I have been
    doing research about the cultural barriers in Utah that have
    been keeping us from that sharing today. I'm finding that the
    cultural issues should be receiving as much attention as the
    laws because I think you can bring two people together who want
    to work together, but you can throw a million dollars at
    something and if the groups are not willing to come together
    you are wasting your resources. So it is an interesting thing
    for me.
        But I have seen the improvement firsthand. I am one of the
    ones that are actually on the ground floor doing this sort of
    thing. And I can't tell you the benefit of being able to have
    this kind of marriage of law enforcement and intelligence
    information. And I think it's the way we must go. I'm not sure
    we have much choice in the matter.
        Chairman Hatch. Thank you.
        Mr. Bradley.
        Mr. Bradley. I have grave concerns about the reduction of
    that barrier. And much of it goes back to the historical
    perspective of--I usually try and take it in regards to the
    American perspective. Free societies don't build dossiers on
    their citizens. And historically Americans have been loath to
    consider the fact that their government may not leave them
    alone to perform what freedom allows them to perform.
        I'm concerned that as we blur the lines between the
    international intelligence gathering community and law
    enforcement, that the potential exists for future abuses. It
    would be very difficult to document those abuses at this point
    because the act itself precludes the making public of those
    kinds of things that have occurred, or may have occurred.
        Chairman Hatch. The Act actually makes law enforcement have
    to report every year on various aspects of the Act at certain
    times.
        Mr. Bradley. The Congress is supposed to get reports. I'm
    not sure if they have. I'm not present there. But what I'm
    referring to is the fact that--
        Chairman Hatch. I have been informed by counsel that so far
    we have received all the reports that the PATRIOT Act says we
    should receive.
        Mr. Bradley. Okay. That is positive.
        Chairman Hatch. I don't mean to keep interrupting you, but
    I want to clarify. I agree with you: Our government should not
    be making dossiers on the American citizens. And that is not
    what the PATRIOT Act does. Nor does it permit that.
        Mr. Bradley. But it does encourage a diminishment, in spite
    of what the attorney at the end was saying, is it Mr. Collins,
    would have us believe. In particular, when he turned to Section
    216, he indicated that there was the same protections on search
    warrants and so forth. But having read 216, and of course I
    have read the whole document from end to end, in all of its
    glory, there are numerous locations where it says, ``Shall
    issue upon certification by the law enforcement officers before
    a judge.'' It is a ``shall issue'' circumstance, wherein the
    judge shall issue if they certify to him that it is part of an
    ongoing investigation. There's no probable cause required in so
    many instances. There are in some, I admit. I admit.
        But those instances where the circumstance of allowing
    police agencies to have access to things based on a rubber
    stamp, for lack of a better term. I know that's been thoroughly
    debunked by the individuals that spoke previously, that they
    thought all judges were pretty hard to get things through. But
    when they have a law before them wherein the Congress has
    mandated that they shall issue authorization upon
    certification, that this act that they are going to do is
    necessary for an ongoing investigation, that has some concerns.
        And I have strayed far from what you said. This section
    203, I do have concerns about. I am concerned that it may at
    some point be abused. I don't know if that has ever been abused
    at this point and I guess we need to be careful with how we go
    forward with that.
        Chairman Hatch. We have to make sure the provisions aren't
    abused, and that is the job of government and people like
    myself, and we take it seriously. But that is true of every
    criminal aspect.
        Mr. Turpen?
        Mr. Turpen. I would agree with Mr. Bradley. I believe he
    summed it up pretty well. What I would add to that is, I have a
    pretty healthy suspicion of government on the whole, and in my
    view I believe that there should be more people in government
    watching government than there are watching anything else.
        Chairman Hatch. Don't worry, there are a lot. I'll tell
    you. And I'm one of them.
        Mr. Turpen. My biggest problem with the idea of lowering
    the barrier as was covered by Mr. Bradley; that eventually CIA
    operatives or NSA or any intelligence group may begin to watch
    United States people. And that, to me, it's Orwellian and it
    shouldn't happen.
        But I do trust that we have elected people to office and
    their job, or part of their job, is to watch what these
    agencies are doing. And I believe that as long as that is
    continuing to happen, and as long as it is done honestly and
    fairly, that our butts are covered.
        I do want to ask, though, if I may, I have read some of the
    reports that were given from the Department of Justice--those
    that were publicized. Specifically under the PATRIOT Act, and I
    couldn't tell you the title of it right off the top of my head,
    but it was a report I believe on warrants issued from the FISA
    court. And the report itself was less than half a page. In
    fact, as I recall, the letterhead took up more space than the
    actual report.
        According to that report, the FISA corporation had issued
    one hundred percent of the requested warrants of the court. And
    I just wonder if we have heard several times today that it is
    not a rubber stamp. And that tells me different. And I wonder
    if you have a perspective on that.
        Chairman Hatch. The reason that is so is because it goes
    through a series of layers by the time it gets there. And keep
    in mind the Moussaoui case. A terrible mistake was made because
    law enforcement people just were afraid it was a borderline
    case that they couldn't really make the case and they would get
    chewed up for it. And I have seen cases where some of our
    people have been banned from the FISA court because they made
    over-representations.
        It is a tough process. By the time you get to the FISA
    court, you have gone through a lot of hoops. And you have gone
    through a lot of explanation. That doesn't mean they can't
    reject it. But it does mean that in most cases they are going
    to accept it. And frankly in the one case and in almost every
    case, they accepted it. But you go through a lot of hoops to
    get there.
        Mr. Cohne.
        Mr. Cohne. I would say there's no absolutes. Conceptually,
    the exchange of information is healthy as it goes to fighting
    terrorism. As the Israelis have learned, you can't stop
    terrorists who are determined to strike.
        Chairman Hatch. That's right.
        Mr. Cohne. And this law is not going to stop terrorists who
    are determined to strike. It will help, but it will not stop
    anybody who is really determined to come forward.
        Chairman Hatch. It's not a full guarantee.
        Mr. Cohne. But what it can do in the sharing, it will
    permit information to go across a jurisdictional line that was
    not available before.
        Chairman Hatch. Right.
        Mr. Cohne. I would feel more comfortable if it was up to
    the United States District Court judges and not a FISA court.
    The FISA court, in all due deference to the people enforcing
    it, smacks of Star Chamber proceedings in many of its
    proceedings.
        Chairman Hatch. Thank you.
        Mr. Collins, to sum up?
        Mr. Collins. I believe that it was critical. The most
    important feature of the PATRIOT Act was the removal of the
    ``wall.'' You cannot connect the dots when some of the dots are
    on one side of the wall and some of them are on the other.
        Some of the people who have spoken I think have confused
    the issue of information sharing and operational
    responsibility. Operational responsibility for gathering
    intelligence under FISA and other authorities within the United
    States continues to reside with the FBI. There's been a debate
    over whether or not that should be moved, but that's where it
    stays. The PATRIOT Act doesn't change that.
        The FISA process, as Senator Hatch, you described, involves
    a tremendous amount of internal screening. It goes to a very
    high level within the Bureau itself, often to the Director
    personally. It then goes through a review from the Office of
    Intelligence and Policy Review in the Department of Justice.
    Ultimately, it must be personally reviewed and approved by
    either the Deputy Attorney General or the Attorney General
    before it goes to the FISA court.
        Chairman Hatch. And they take that seriously because they
    know they are going to get chewed up like you can't believe if
    they make a mistake.
        Mr. Collins. That's the process for physical searches and
    electronic surveillances. It's a little different under the 215
    process. But I did want to clarify that.
        I'd also like to respond to--and I should also note that
    the FISA court is composed of sitting Article III district
    judges who are chosen by the Chief Justice. So they are
    ordinary district judges who are tough as ordinary district
    judges are.
        I would like to also respond to one comment that
    misunderstood my prior response to you. It confused my answers
    to the two questions. I did not say that Section 216 had the
    same standards as search warrants. Pen registers have never
    been subject to the probable cause requirements of search
    warrants. The Supreme Court made that clear in the 1970s. I
    think it would be remarkable to say that for terrorism we will
    have a higher standard than the Supreme Court has stated for
    thirty years shall apply to this investigatory tool. I don't
    fathom that.
        Chairman Hatch. In the case of pen register and trap and
    trace.
        Mr. Collins. Exactly.
        Chairman Hatch. This has really been good. I have to say I
    have enjoyed this whole panel.
        Let me just ask one other question. We have heard from the
    Department of Justice on the first panel, you have heard them
    describe the delayed notification, why the delayed
    notification, what some call ``sneak and peek'' search
    warrants, and the roving wiretap are important in preventing
    terrorists. Does anybody on this panel think that we should
    allow these provisions to expire with regard to terrorism?
        Mr. Bradley.
        Mr. Bradley. I appreciate the necessity--
        Chairman Hatch. Let me just finish the question so I can
    get all my thoughts out. If you can specifically comment on Mr.
    Comey's comments on the inadvisability, I heard him say, about
    the seven day limit on delayed notification warrants. Why not
    simply leave that as a matter for the judge's discretion, as
    Mr. Comey suggested?
        Okay. Mr. Bradley.
        Mr. Bradley. I'm sensitive to the rationale behind ``sneak
    and peeks'' that have been expounded upon here today. I must
    return, however, to a couple of basic principles, one of which
    is found in the Fourth Amendment. And if I may just simply
    quote the Amendment. And I'm not certain that this is always
    completely adhered to in the approach that's been suggested
    within this document, the PATRIOT Act.
        ``The right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable searches and
    seizures, shall not be violated, and no warrants shall issue,
    but upon probable cause, supported by oath or affirmation, and
    particularly describing the place to be searched, and the
    persons or things to be seized.''
        I mentioned, in my opening remarks, the concerns about the
    Writs of Assistance and how this Fourth Amendment was an
    outgrowth of that.
        Chairman Hatch. Keep in mind the key word there is
    ``unreasonable''.
        Mr. Bradley. I agree. Unreasonable. Sometimes that is in a
    perspective, too.
        Chairman Hatch. Not so much in law enforcement.
        Mr. Bradley. We have an experience that the Founding
    Fathers lived through where the British government felt it was
    very reasonable to be able to enter and basically go on fishing
    trips whenever they thought they may have something to catch.
    The Founding Fathers were very, very careful in saying that
    they must be very specific, oath or affirmation describing the
    place to be searched, persons or things to be seized. And it is
    very difficult to have all of those things perhaps met. And if
    they are, I think that ``sneak and peek'' is not nearly as
    dangerous as other people may think.
        However, there is one thing that can't be done away with
    and that is that there are errors oftentimes where police
    agencies, there's record of them going to the wrong address and
    going to the wrong location. And if there were those kinds of
    things occurring, I'm just wondering would the person be
    available to defend themselves in terms of how their privacy
    was violated, how their home was searched, how things may have
    been destroyed. There's a whole bunch of things. But the fact
    of the matter is I think it's important for individuals to be
    able to recognize that they have the right to face those who
    accuse them, and to correct if there's wrong address.
        Chairman Hatch. They will. Anybody would.
        Ms. Eyer. Senator Hatch, if I may?
        Chairman Hatch. Yes, Ms. Eyer.
        Ms. Eyer. On the ``sneak and peek'' warrants, it's my
    understanding that there's a criteria that deviates from the
    original criteria of ``flight from prosecution,'' ``destruction
    of evidence,'' and ``physical safety'' of a person in danger;
    that there's another provision in the PATRIOT Act that says we
    can get these sort of indefinite warrants, not indefinite, but
    delayed notification warrants, also if it may ``jeopardize
    prosecution.'' It's that terminology that we are a little
    concerned about. Because--
        Chairman Hatch. But you're not for doing away with it.
        Ms. Eyer. Well, it does seem like a more lenient standard--
        Chairman Hatch. Like I say, that's one thing I appreciate
    about the ACLU; that they are not doing away with it. They want
    to make sure it works right.
        Ms. Eyer. In fact, it's that provision of ``jeopardizing
    the prosecution.'' And our suggestion of renewable seven day
    warrants, I think, is based upon the concept that a
    ``reasonable amount of time'' is such a squishy term that, for
    example, in the recent detainee matters, you can hold for the
    INS originally 24 hours and then 48 hours and then 7 days.
        Chairman Hatch. That has nothing to do with ``sneak and
    peek.''
        Ms. Eyer. I understand. But the terminology ``a reasonable
    amount of time'' was used there and it ended up being a year.
    So that's my only response to that.
        And then I have a response to the roving wiretaps, as well.
    We are not in favor of doing away with those, which I was
    misquoted today in the paper.
        Chairman Hatch. Right.
        Ms. Eyer. But have some specific suggestions to safeguards,
    that the target is specified and they ascertain that the target
    is using the facility which was previously used for criminal
    investigations. Thank you.
        Chairman Hatch. Appreciate that. Let's make it clear, and
    you haven't, but some people have interpreted the detainees at
    Guantanamo as being detained because of the PATRIOT Act. It has
    nothing to do with the PATRIOT Act. It does have a lot to do
    with ``enemy combatants'' and how that is interpreted, and
    that's going to have to be sifted through. And we will have to
    figure that out. I'm going to go down there within the next
    while and personally review the whole matter and really look it
    over.
        But that's the request of the Justice Department and the
    Department of Defense. But a lot of people have misconstrued
    the PATRIOT Act thinking that the people are being detained
    because of the PATRIOT Act, and it's just not so. You didn't
    indicate that, but I wanted to clarify that.
        The PATRIOT Act has been condemned by some people who have
    no idea what's in it and who have made very unjust and
    irresponsible accusations. As you can see, this has been a
    substantive hearing where we are trying to figure out if there
    are things that need to be changed and need to be modified or
    need to be strengthened or need, you know, need to be deleted.
    And frankly, through most of my hearings I haven't heard one
    abuse other than the court in this one provision, that it was
    vague. And that wasn't an abuse. But it's a criticism that may
    be valid. We will see about that and see what we can do.
        Anybody else care to comment?
        Mr. Mylar. Mr. Chairman?
        Chairman Hatch. Frank.
        Mr. Mylar. When I look at the wording of this Section 213,
    it doesn't give any time periods whatsoever. What might be
    reasonable to one judge could be totally unreasonable to
    another judge. It says it can be extended for good cause, but
    again there's no definite time period. Of particular concern is
    that this idea that the judge is going to be exercising
    supervision or oversight. I think that is a little bit
    illusory, especially given the heavy schedules of judges. They
    don't necessarily look through all the investigative files.
        Chairman Hatch. They take it pretty seriously, and by the
    time it gets there it has been really scrutinized forwards and
    backwards.
        Mr. Mylar. But it may never came back to that judge's
    attention unless something else is done on that case. For
    instance, if a criminal case is--
        Chairman Hatch. I don't think your argument is that we
    shouldn't give them a reasonable period of time--
        Mr. Mylar. No.
        Chairman Hatch. --so that the enemy or criminal is informed
    on the thing and then can flee or trigger some terrorist act.
    So that's basically what I'm asking about.
        Mr. Mylar. But there should be some kind of uniform period
    of time where they have to make that second application so that
    we know that the judge actually will see it.
        Chairman Hatch. I think Mr. Collins would agree there
    hasn't been an extensive period of time in any of these cases.
        Mr. Collins. In pre-existing case law, there was not a
    statutory provision prior to the PATRIOT Act that specifically
    provided for this, but the courts had allowed it. And the case
    law, there were a number--
        Chairman Hatch. Allowed it with regard to general criminal
    activities, organized crime, and a whole raft of other related
    criminal activities before we ever put it in the PATRIOT Act.
        Mr. Collins. That's correct, Senator. And many had adopted
    sort of--
        Chairman Hatch. And they didn't have that right with regard
    to terrorists. That's why we put it in there.
        Mr. Collins. The provision is an across-the-board
    codification and that makes sense because it's a general issue.
    Some of the courts had used a seven day benchmark. But even
    those that did so by case law acknowledged that in some cases 7
    days might not be adequate. There shouldn't be a one-size-fits-
    all. It leaves it to the discretion of an independent Article
    III district judge to say, ``I think what is reasonable in this
    circumstance is 7 days,'' or, ``I think it may be 20 days based
    upon the showing that you made.''
        Chairman Hatch. And an Article III district judge, of
    course, is a trial judge in the courts.
        Well, let me just end this hearing on this comment--
        Mr. Turpen. Could I make a quick comment?
        Chairman Hatch. I'm sorry. You did want to comment.
        Mr. Turpen. I believe as far as ``sneak and peek''
    warrants, as they are called, I believe that Mr. Bradley did
    the right thing. He went straight to the core. He jumped right
    to the Fourth Amendment. And what I would like to point out,
    and I don't mean to apologize for criminals or justify what
    they are doing, but in the example that was used by the Deputy
    Attorney General, I believe that that judge was incorrect in
    giving that warrant. And specifically the reason I believe that
    is because the Fourth Amendment says specifically, ``Upon oath
    or affirmation, and particularly describing the place to be
    searched, and the persons or things to be seized.'' And I don't
    disagree that there should be or that this is not a great tool
    for law enforcement. But I think it is something that should be
    very, very, very carefully scrutinized. And I think that it
    should be scrutinized according to the supreme law of the land.
        Chairman Hatch. I understand. You and I do disagree. And I
    agree with Mr. Comey on that, that that was a reasonable and
    frankly a very important and necessary approach to resolve that
    crime.
        But we have appreciated your honest impressions, your
    honest suggestions here. We listened carefully and will
    continue to analyze and think about what you had to say.
        I'd like to thank U.S. Attorney Paul Warner for sitting
    through the whole hearing and remaining to hear all of your
    concerns.
        I want to thank Dean Matheson for making this facility
    availability to us. And actually I hope he remains the dean
    here for a long time.
        We will allow for those who have witnessed or those who
    have appeared and made comments, we will allow a seven day
    period in which the record can be supplemented, because you
    have all sat through and listened to each other and the two law
    enforcement people, and you may have some additional thoughts
    that may be helpful to us. So we will be happy to keep this
    record open for 7 days and take your written suggestions.
        With that, I just want to express my gratitude for
    everybody who has participated in this hearing. It's been a
    very good hearing. And I appreciate the extra time and all.
        And I particularly appreciate Mr. Comey coming all the way
    from Washington, as busy as he is, and right in the middle of
    the 9/11 Commission and everything else to come here. But it
    shows the importance that they put on this particular Act and
    how important it is.
        I have had something to do with almost every law
    enforcement, every anti-crime matter in the last 28 years. You
    mentioned the Protect Act. You mentioned that. That's
    protecting our children like never before. And let me tell you,
    we had all kinds of opposition to provisions in that Act. But
    we have also had people on both sides say that that's one of
    the most important crime bills for children ever. It's the most
    important crime bill for children ever enacted.
        And I will just say this to you: Listen carefully to what
    Mr. Comey was saying, and Paul Warner. Without the PATRIOT Act,
    we would not have apprehended--and I will just give a ballpark
    figure, and it's actually probably more--but at least 200
    terrorists in this country since 9/11. Without the PATRIOT Act,
    we would not have had the tools to have been able to protect
    you as much as we have. And I, for one, don't want to see those
    provisions sunsetted. I'm not against trying to perfect them
    even more or improve them even more. I think it would be crazy
    to sunset provisions that are helping us to apprehend
    terrorists in this country that we wouldn't be able to do
    without them.
        So this is an important hearing and I personally am very
    appreciative of everybody who has participated. And with that,
    we will just recess it until further notice. Thank you.
        [Whereupon, at 12:15 p.m., the Committee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

    [GRAPHIC] [TIFF OMITTED] T3418.001

    [GRAPHIC] [TIFF OMITTED] T3418.002

    [GRAPHIC] [TIFF OMITTED] T3418.003

    [GRAPHIC] [TIFF OMITTED] T3418.004

    [GRAPHIC] [TIFF OMITTED] T3418.005

    [GRAPHIC] [TIFF OMITTED] T3418.006

    [GRAPHIC] [TIFF OMITTED] T3418.007

    [GRAPHIC] [TIFF OMITTED] T3418.008

    [GRAPHIC] [TIFF OMITTED] T3418.009

    [GRAPHIC] [TIFF OMITTED] T3418.010

    [GRAPHIC] [TIFF OMITTED] T3418.011

    [GRAPHIC] [TIFF OMITTED] T3418.012

    [GRAPHIC] [TIFF OMITTED] T3418.013

    [GRAPHIC] [TIFF OMITTED] T3418.014

    [GRAPHIC] [TIFF OMITTED] T3418.015

    [GRAPHIC] [TIFF OMITTED] T3418.016

    [GRAPHIC] [TIFF OMITTED] T3418.017

    [GRAPHIC] [TIFF OMITTED] T3418.018

    [GRAPHIC] [TIFF OMITTED] T3418.019

    [GRAPHIC] [TIFF OMITTED] T3418.020

    [GRAPHIC] [TIFF OMITTED] T3418.021

    [GRAPHIC] [TIFF OMITTED] T3418.022

    [GRAPHIC] [TIFF OMITTED] T3418.023

    [GRAPHIC] [TIFF OMITTED] T3418.024

    [GRAPHIC] [TIFF OMITTED] T3418.025

    [GRAPHIC] [TIFF OMITTED] T3418.026

    [GRAPHIC] [TIFF OMITTED] T3418.027

    [GRAPHIC] [TIFF OMITTED] T3418.028

    [GRAPHIC] [TIFF OMITTED] T3418.029

    [GRAPHIC] [TIFF OMITTED] T3418.030

    [GRAPHIC] [TIFF OMITTED] T3418.031

    [GRAPHIC] [TIFF OMITTED] T3418.032

    [GRAPHIC] [TIFF OMITTED] T3418.033

    [GRAPHIC] [TIFF OMITTED] T3418.034

    [GRAPHIC] [TIFF OMITTED] T3418.035

    [GRAPHIC] [TIFF OMITTED] T3418.036

    [GRAPHIC] [TIFF OMITTED] T3418.037

    [GRAPHIC] [TIFF OMITTED] T3418.038

    [GRAPHIC] [TIFF OMITTED] T3418.039

    [GRAPHIC] [TIFF OMITTED] T3418.040

    [GRAPHIC] [TIFF OMITTED] T3418.041

    [GRAPHIC] [TIFF OMITTED] T3418.042

    [GRAPHIC] [TIFF OMITTED] T3418.043

    [GRAPHIC] [TIFF OMITTED] T3418.044

    [GRAPHIC] [TIFF OMITTED] T3418.045

    [GRAPHIC] [TIFF OMITTED] T3418.046

    [GRAPHIC] [TIFF OMITTED] T3418.047

    [GRAPHIC] [TIFF OMITTED] T3418.048

    [GRAPHIC] [TIFF OMITTED] T3418.049

    [GRAPHIC] [TIFF OMITTED] T3418.050

    [GRAPHIC] [TIFF OMITTED] T3418.051

    [GRAPHIC] [TIFF OMITTED] T3418.052

    [GRAPHIC] [TIFF OMITTED] T3418.053

    [GRAPHIC] [TIFF OMITTED] T3418.054

    [GRAPHIC] [TIFF OMITTED] T3418.055

    [GRAPHIC] [TIFF OMITTED] T3418.056

    [GRAPHIC] [TIFF OMITTED] T3418.057

    [GRAPHIC] [TIFF OMITTED] T3418.058

    [GRAPHIC] [TIFF OMITTED] T3418.059

    [GRAPHIC] [TIFF OMITTED] T3418.060

    [GRAPHIC] [TIFF OMITTED] T3418.061

    [GRAPHIC] [TIFF OMITTED] T3418.062

    [GRAPHIC] [TIFF OMITTED] T3418.063

    [GRAPHIC] [TIFF OMITTED] T3418.064

    [GRAPHIC] [TIFF OMITTED] T3418.065

    [GRAPHIC] [TIFF OMITTED] T3418.066

    [GRAPHIC] [TIFF OMITTED] T3418.067

    [GRAPHIC] [TIFF OMITTED] T3418.068

    [GRAPHIC] [TIFF OMITTED] T3418.074

    [GRAPHIC] [TIFF OMITTED] T3418.075

    [GRAPHIC] [TIFF OMITTED] T3418.076

    [GRAPHIC] [TIFF OMITTED] T3418.077

    [GRAPHIC] [TIFF OMITTED] T3418.078

    [GRAPHIC] [TIFF OMITTED] T3418.079

    [GRAPHIC] [TIFF OMITTED] T3418.080

    [GRAPHIC] [TIFF OMITTED] T3418.081

    [GRAPHIC] [TIFF OMITTED] T3418.082

    [GRAPHIC] [TIFF OMITTED] T3418.083

    [GRAPHIC] [TIFF OMITTED] T3418.084

    [GRAPHIC] [TIFF OMITTED] T3418.085

    [GRAPHIC] [TIFF OMITTED] T3418.086

    [GRAPHIC] [TIFF OMITTED] T3418.087

    [GRAPHIC] [TIFF OMITTED] T3418.088

    [GRAPHIC] [TIFF OMITTED] T3418.089

    [GRAPHIC] [TIFF OMITTED] T3418.090

    [GRAPHIC] [TIFF OMITTED] T3418.091

    [GRAPHIC] [TIFF OMITTED] T3418.092

    [GRAPHIC] [TIFF OMITTED] T3418.093

    [GRAPHIC] [TIFF OMITTED] T3418.094

    [GRAPHIC] [TIFF OMITTED] T3418.095

    [GRAPHIC] [TIFF OMITTED] T3418.096

    [GRAPHIC] [TIFF OMITTED] T3418.097

    [GRAPHIC] [TIFF OMITTED] T3418.098

    [GRAPHIC] [TIFF OMITTED] T3418.099

    [GRAPHIC] [TIFF OMITTED] T3418.100

    [GRAPHIC] [TIFF OMITTED] T3418.101

    [GRAPHIC] [TIFF OMITTED] T3418.102

    [GRAPHIC] [TIFF OMITTED] T3418.103

    [GRAPHIC] [TIFF OMITTED] T3418.104

    [GRAPHIC] [TIFF OMITTED] T3418.105

    [GRAPHIC] [TIFF OMITTED] T3418.106

    [GRAPHIC] [TIFF OMITTED] T3418.107

    [GRAPHIC] [TIFF OMITTED] T3418.108

    [GRAPHIC] [TIFF OMITTED] T3418.109

    [GRAPHIC] [TIFF OMITTED] T3418.110

    [GRAPHIC] [TIFF OMITTED] T3418.111

    [GRAPHIC] [TIFF OMITTED] T3418.122

    [GRAPHIC] [TIFF OMITTED] T3418.123

    [GRAPHIC] [TIFF OMITTED] T3418.124

    [GRAPHIC] [TIFF OMITTED] T3418.125

    [GRAPHIC] [TIFF OMITTED] T3418.126

    [GRAPHIC] [TIFF OMITTED] T3418.127

    [GRAPHIC] [TIFF OMITTED] T3418.128

    [GRAPHIC] [TIFF OMITTED] T3418.129

    [GRAPHIC] [TIFF OMITTED] T3418.114

    [GRAPHIC] [TIFF OMITTED] T3418.115

    [GRAPHIC] [TIFF OMITTED] T3418.116

    [GRAPHIC] [TIFF OMITTED] T3418.117

    [GRAPHIC] [TIFF OMITTED] T3418.118

    [GRAPHIC] [TIFF OMITTED] T3418.119

    [GRAPHIC] [TIFF OMITTED] T3418.120

    [GRAPHIC] [TIFF OMITTED] T3418.121

    [GRAPHIC] [TIFF OMITTED] T3418.130

    [GRAPHIC] [TIFF OMITTED] T3418.131

    [GRAPHIC] [TIFF OMITTED] T3418.132

    [GRAPHIC] [TIFF OMITTED] T3418.133

    [GRAPHIC] [TIFF OMITTED] T3418.134

    [GRAPHIC] [TIFF OMITTED] T3418.135

    [GRAPHIC] [TIFF OMITTED] T3418.136

    [GRAPHIC] [TIFF OMITTED] T3418.137

    [GRAPHIC] [TIFF OMITTED] T3418.138

    [GRAPHIC] [TIFF OMITTED] T3418.139

    [GRAPHIC] [TIFF OMITTED] T3418.140

    [GRAPHIC] [TIFF OMITTED] T3418.141

    [GRAPHIC] [TIFF OMITTED] T3418.142

    [GRAPHIC] [TIFF OMITTED] T3418.143

    [GRAPHIC] [TIFF OMITTED] T3418.144

    [GRAPHIC] [TIFF OMITTED] T3418.145

    [GRAPHIC] [TIFF OMITTED] T3418.146

    [GRAPHIC] [TIFF OMITTED] T3418.147