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


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                       COMMITTEE ON THE JUDICIARY

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


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

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.]

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