[Senate Hearing 108-787]
[From the U.S. Government Printing Office]
S. Hrg. 108-787
PROTECTING OUR NATIONAL SECURITY FROM TERRORIST ATTACKS: A REVIEW OF
CRIMINAL TERRORISM INVESTIGATIONS AND PROSECUTIONS
====================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
__________
OCTOBER 21, 2003
__________
Serial No. J-108-46
__________
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
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STATEMENTS OF COMMITTEE MEMBERS
Page
Biden, Hon. Joseph R., Jr., a U.S. Senator from the State of
Delaware....................................................... 7
Chambliss, Hon. Saxby, a U.S. Senator from the State of Georgia.. 7
Cornyn, Hon. John, a U.S. Senator from the State of Texas........ 9
prepared statement and attachment............................ 117
Craig, Hon. Larry E., a U.S. Senator from the State of Idaho..... 14
DeWine, Hon. Mike, a U.S. Senator from the State of Ohio......... 5
prepared statement........................................... 121
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois....................................................... 16
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 13
prepared statement........................................... 122
Feinstein, Hon. Dianne, a U.S. Senator from the State of
California..................................................... 11
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah...... 1
prepared statement........................................... 132
Kennedy, Hon. Edward M., a U.S. Senator from the State of
Massachusetts.................................................. 5
prepared statement........................................... 134
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin... 10
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont. 3
prepared statement........................................... 136
Schumer, Hon. Charles E., a U.S. Senator from the State of New
York........................................................... 15
prepared statement and attachments........................... 150
WITNESSES
Fitzgerald, Patrick, U.S. Attorney, Northern District of
Illinois, Chicago, Illinois.................................... 23
McNulty, Paul, U.S. Attorney, Eastern District of Virginia,
Alexandria, Virginia........................................... 26
Wray, Christopher, Chief, Criminal Division, U.S. Department of
Justice, Washington, D.C....................................... 20
QUESTIONS AND ANSWERS
Responses of Christopher Wray to questions submitted by Senators
Biden, Kennedy, Feingold, and Schumer.......................... 62
Responses of Christopher Wray, Patrick Fitzgerald, Paul McNulty
to questions submitted by Senator Leahy........................ 83
SUBMISSIONS FOR THE RECORD
Fitzgerald, Patrick, U.S. Attorney, Northern District of
Illinois, Chicago, Illinois, prepared statement................ 124
McNulty, Paul, U.S. Attorney, Eastern District of Virginia,
Alexandria, Virginia, prepared statement....................... 140
The White House, Office of the Press Secretary, August 27, 2004,
news release................................................... 155
Wray, Christopher, Chief, Criminal Division, U.S. Department of
Justice, Washington, D.C., prepared statement.................. 159
PROTECTING OUR NATIONAL SECURITY FROM TERRORIST ATTACKS: A REVIEW OF
CRIMINAL TERRORISM INVESTIGATIONS AND PROSECUTIONS
----------
TUESDAY, OCTOBER 21, 2003
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:05 a.m., in
Room SD-226, Dirksen Senate Office Building, Hon. Orrin Hatch,
Chairman of the Committee, presiding.
Present: Senators Hatch, Kyl, DeWine, Craig, Chambliss,
Cornyn, Leahy, Kennedy, Biden, Kohl, Feinstein, Feingold,
Schumer, and Durbin.
OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH
Chairman Hatch. Good morning. I want to welcome everyone to
the first in a series of Judiciary Committee hearings that
Senator Leahy and I and others on this Committee are organizing
to examine the adequacy of the Federal laws designed to protect
the American public against acts of terrorism on U.S. soil.
The first responsibility of government is to protect its
citizens. The Judiciary Committee has a special responsibility
to see that our Nation's laws and law enforcement network is up
to the challenging task of thwarting terrorist attacks. I want
to thank my colleague, Senator Leahy, for his cooperation and
support in planning these important hearings. We are committed
to working together to ensure that the Committee examines a
number of important issues relating to our country's war on
terrorism.
As we announced several weeks ago, the Committee's inquiry
will focus on the adequacy of Federal laws to help prevent and
respond to acts of terrorism against the United States; whether
additional tools, the reporting obligations, and oversight may
be needed and the implications to security, privacy and civil
liberties of current laws and any new proposals. We have
tentatively scheduled our next hearing for November 5. That
hearing will focus on how civil liberties have been affected by
counterterrorism activities, and while we must act decisively
to identify, stop and punish potential terrorists, we must be
vigilant to respect traditional American civil rights and
liberties.
Over the recess, Senator Leahy and I may conduct field
hearings to examine issues of local and national concern
relating to the war on terrorism. When we return next year, we
expect to schedule additional hearings. Senator Leahy and I
welcome any suggestions from other members on topics that
should be addressed and information that the Committee may need
to conduct its inquiry.
Let me also state that as part of this oversight inquiry,
Senator Leahy and I plan to invite relevant witnesses to appear
before the Committee to address important issues, including
Attorney General Ashcroft, FBI Director Mueller, Department of
Homeland Security Secretary Ridge and other appropriate
officials. The administration has told me that it welcomes
these hearings and will cooperate fully with the Committee's
inquiry.
At the outset, I want to emphasize that I am committed to
conducting a rigorous examination of these important issues.
These hearings, in my view, can best serve the public by fairly
and objectively assessing the key law enforcement issues
relating to curtailing acts of domestic terrorism.
We have all read or heard about claims being made by
various interest groups concerning how well or how poorly the
Federal Government has conducted its domestic counterterrorism
program. This Committee's inquiry will attempt to cut through
the rhetoric, confusion and distortion to get to the facts
necessary to find out if we are protecting our citizens' lives
and their liberties.
I am sure that everyone on this Committee shares the common
goal to protect our country from additional terrorist attacks.
We are all committed to this goal and must do so with regard
for fundamental freedoms and the security of our people.
Our Committee has a historical tradition of joining
together to examine, debate and resolve important national
issues. We are once again faced with an important task which
will have a profound impact on our country's security and
cherished freedoms. Two years ago, our country faced an
unprecedented challenge. We suffered a devastating attack on
our shores which resulted in the murder of over 3,000 of our
fellow Americans. The President, Congress and our Nation rose
to the challenge and worked together to ensure that we can
prevail in the war against terrorism. Here in Congress, we have
passed the PATRIOT Act and other laws in order to provide the
tools, information and resources necessary to defeat the
terrorist enemy, and while we have accomplished much, there is
much more to be done.
The threat of harm to our country remains. It is evolving
and committed fanatics who continue to threaten our way of
life. Today's hearing will focus on the existing legal
authorities used by the Government to investigate and prosecute
terrorists for criminal offenses, so I look forward to learning
how the existing authorities, some of which were enacted as
part of the PATRIOT Act, facilitate criminal investigators' and
prosecutors' ability to track down, arrest and prosecute
terrorists around the world.
[The prepared statement of Senator Hatch appears as a
submission for the record.]
At this time, I will turn it over to Senator Leahy for his
opening statement. After that, I will ask each member of the
Committee to make a short, two-minute opening statement if they
so desire.
Senator Leahy?
OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Leahy. Well, thank you very much, Mr. Chairman, and
as you said, the two of us do see these hearings as a
bipartisan effort to review the effectiveness of our
antiterrorism laws, and you and I have worked on similar things
for well over 20 years, and I am delighted to be working with
you on this.
As you have said, of course, the Attorney General is going
to have to participate in these hearings. I am disappointed
that he is not here today. I think we have some very fine
members of the staff of the Department of Justice and
appointees of the Department of Justice. I do not want to
denigrate their positions, but they are not the Attorney
General. And it seems most senior administration officials do
regularly participate in oversight hearings of the various
Committees I serve on, but the Attorney General has appeared
before this Committee only once this year and then for a very
short time, which surprises me, because he has recently sent me
a letter saying how important these kinds of oversight hearings
are and how it is absolutely important that the Congress do
oversight.
I know he is a very busy man, but he has been able to make
a lot of highly-publicized appearances all over the country in
a public relations campaign on the PATRIOT Act, so I would hope
that he would find some time to drop by here. There are a lot
of Senators on both sides of the aisle who have questions for
him, and, as I did when I was chairman, we accommodated his
schedule, and I know that Chairman Hatch will do the same
thing.
Now, one of the focal points, of course, of the hearings
will be the PATRIOT Act. We passed that 2 years ago this month
after the 9/11 attacks. Since its passage, the PATRIOT Act has
raised concerns with citizens around the country, actually
across the political spectrum, from the far right to the far
left. I think anti-PATRIOT resolutions, I have been told, have
been passed by more than 190 communities in 34 of our 50
States.
Now, the Justice Department, of course, as part of their PR
does take a very dismissive attitude. According to the Justice
Department, they said, quote, ``half of these resolutions, half
are either in cities in Vermont, very small population, or in
college towns in California, it is a lot of the usual
enclaves.'' I think when you are talking about this showing up
in 34 States, I think that is kind of an arrogant dismissal by
the Department of Justice. I think it is beneath the dignity of
the Department of Justice, and I cannot speak for the other 33
of those 34 States, but we see Vermont to be a very progressive
State, certainly one of the most international of States,
certainly the most law-abiding. I think we have the lowest
crime rate of any State in the country.
So we find it arrogant, dismissive, condescending, of the
Department of Justice. Now, is an opportunity to engage in
public discourse, one of the most essential rights of
Americans, and I think it is great that American people, the
public, raise these issues and talk about their liberties. The
administration should not dismiss them. Peoples' talk about
their First Amendment rights or Second Amendment rights or
Fifth Amendment rights or any others should not be dismissed in
a condescending way by the administration.
The communities represent actually millions of Americans,
not just a few liberty and privacy conscious Vermonters, as the
Justice Department insinuates. But I think if you impugn the
people of these 34 states who are dedicated libertarians or
United States Senators for asking questions or raising concerns
does not advance the debate or instill public confidence in the
Department of Justice or the vast power it wields. It achieves
just the opposite.
Now, having said that, I am a strong proponent of the First
Amendment, and I want to add, of course, the Department of
Justice and its spokespeople have an absolute right to say
anything they want, no matter how stupid it might be. Now, in a
democracy, there is always going to be an inherent tension
between government power and privacy rights. The threat of
terrorism--and this, I would say on behalf of everybody--the
threat of terrorism does heighten that tension, and that is
difficult for the Department of Justice, and I readily concede
that. And then, when you overlay that with excessive Government
secrecy and a lack of cooperation and accountability taken by
the administration in dealings with the Congress and the
public, you further compound the tension, the risk to our free
society.
I remember when the Republican Chairman of the House said
that he might have to subpoena the Attorney General to get
answers. Undue secrecy undermines the system's built-in checks
and balances. But it also corrodes people's faith that the
Government will protect their freedoms, and we have enormous
freedoms in this country, and that is one of the reasons why we
are the most powerful democracy ever known. I think the
reporter is probably picking up all of our conversations here.
I can move to a different microphone.
But if we are going to protect those freedoms, we have to
have confidence that the Government will respect them, and that
is what is necessary. Now, we have another 2 years before the
powers we granted in the PATRIOT Act expire, so it is not too
soon for us to take a look at these powers: what is working?
What is not? What can we do better? Obviously, the PATRIOT Act
has become the most visible target of public concerns, but the
next hearing in the series will address a broad array of civil
liberties issues, including issues relating to the 9/11
detentions that the DOJ Inspector General talked about in his
excellent report earlier.
So, I would hope that people take it seriously. The
witnesses here were selected by Senator Hatch more than two
weeks ago, but I understand some of the testimony did not
arrive until 5:30 last night. I would hope that you would
actually take things seriously. I mean, if I sounded somewhat
annoyed before about the condescending attitude toward Congress
by the Department of Justice and the condescending attitude
toward 270 million Americans, it is because of things like
that. We have been setting time aside; we have been preparing
for this. We let you know about this two weeks ago. And to have
testimony sort of slipped under the door at 5:30 at night does
not help.
I recall what happened: Chairman Sensenbrenner canceled a
hearing when this happened, so I am looking forward to hearing;
I want to hear how the administration feels about some of the
bills that other Senators and I have introduced like the
Grassley-Leahy-Specter Domestic Surveillance Act, the Grassley-
Leahy FBI Reform Act, the First Responders Act, the PATRIOT
Oversight Restoration Act that Senators Craig and Sununu,
Durbin, Reed and myself put in. I think these are important
things.
But, Mr. Chairman, I commend you for doing this, and I
think your idea of the possibility of field hearings is an
excellent one and, of course, as always, I will work closely
with you on that.
[The prepared statement of Senator Leahy appears as a
submission for the record.]
Chairman Hatch. Well, thank you.
We will turn to Senator DeWine and then Senator Kennedy.
STATEMENT OF HON. MIKE DEWINE, A U.S. SENATOR FROM THE STATE OF
OHIO
Senator DeWine. Mr. Chairman, I just want to thank you very
much for holding this hearing. I am looking forward to hearing
the testimony from the witnesses, and I think that one of the
things that we want to look at today and keep in mind is how
much of the complaints that we hear has to do with the PATRIOT
Act and how much has to do with other things. And I think that
is one of the things that we need to talk about today and focus
on.
I also am anxious to hear, frankly, from people who are in
the field: Mr. McNulty has been in the field now for a few
years now and has had the opportunity to deal directly with the
PATRIOT Act. I have had the opportunity to talk with two U.S.
Attorneys in Ohio, and they have had the opportunity to
implement the PATRIOT Act as well as Mr. McNulty.
And so, I think people like the U.S. Attorneys who have to
deal with this on a daily basis have a lot to tell us about how
this actually has worked. We were involved in writing this
PATRIOT Act with suggestions from the administration, but to
get the reports back about how it actually works; where it has
been helpful; maybe where it has not worked as well as we had
hoped it was going to work is the type of testimony that this
Committee needs and will help inform our opinion as we try to
make a determination about where this law needs to be changed
in the future.
So again, Mr. Chairman, I thank you for holding this
hearing today, and we look forward to the testimony.
[The prepared statement of Senator DeWine appears as a
submission for the record.]
Chairman Hatch. Senator Kennedy?
STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE
STATE OF MASSACHUSETTS
Senator Kennedy. Thank you, Mr. Chairman. Thank you and
Senator Leahy for having this hearing.
Rarely in recent years have the activities of the Justice
Department been so often at the forefront of public discussion,
so controversial and so much need of close scrutiny by
Congress, particularly in times of threats to national
security. Congress, as you pointed out, Mr. Chairman, and as
Senator Leahy pointed out, we have a special obligation to
prevent excessive restrictions on the individual freedoms that
are the essence of democracy and that symbolize our country in
the world.
Two years ago, in the attacks on September 11, we learned
the oceans can no longer protect us from terrorism that has
plagued other nations. We learned that our law enforcement
agencies and our intelligence agencies were not adequately
organized, trained or prepared to identify terrorists and
prevent them from striking. We learned, especially from the
report of the Senate and House Intelligence Committees of the
serious problems in analyzing information, sharing it between
agencies at the Federal, State and local levels and even
between Federal agencies.
As the FBI Director told the Committee, no one can say
whether the tragedy of 9/11 could have been prevented if those
problems had been corrected before 9/11. But 9/11 was certainly
a wake-up call to these agencies. They were on notice that,
whatever the reasons for their failures to connect the many
dots which their separate activities had uncovered before the
terrorist attacks, they needed to change their ways.
We still do not know whether the basic nuts and bolts
improvements that might have prevented 9/11 have been made. We
do know that by the end of the first year after 9/11, there had
not been enough improvements to prevent the sniper attacks here
in the Capital area, even though there were many dots that
could have been connected. The witnesses today have little to
say on that key issue. Instead, like the Attorney General, they
insist that defending extreme measures which may well threaten
basic freedoms more than they prevent acts of terrorism.
Only the Attorney General can supply adequate answers to
our questions, and I, like others, regret that he is not here
to do so. He has not reported to the Committee since early
March, yet, he has had time to barnstorm the country in an
exercise that is far more a public relations, not a law
enforcement, exercise. We need better answers to a few basic
questions.
Why should we sacrifice liberty in hopes of greater safety
until the Department has addressed the nuts-and-bolts problems
with law enforcement and intelligence identified by the Joint
Intelligence Committees? How can the Department ask for
intrusive new Federal antiterror powers when basic law
enforcement procedures are not up to date? For example, 2 years
ago, after 9/11, we know that 15 states still lack the readily
available modern fingerprint technology which could quickly
have connected the dots and helped prevent the fatal shootings
of the D.C. snipers. We did not know the D.C. snipers, whether
they were deranged individuals or potentially even terrorists
trying to terrorize the community.
What will the Department and the administration do in
response to the impressive report of the Department's own
Inspector General and the unprecedented complaints by the
International Red Cross about the continued detention without
any due process of so many hundreds of citizens and noncitizens
alike? Was the attempted intimidation of a dissenting diplomat
by linking his wife's covert CIA role a careless act by a
freelancing White House aide or a shameful symptom of the
administration's bent on punishing its domestic enemies?
Finally, how can the Department of Justice say with a
straight face that it is necessary to ride roughshod over the
basic Constitutional principles of the First, Fourth, Fifth and
Sixth Amendments in order to meet the needs of law enforcement
and then insist that a Second Amendment right to bear arms
prevails over the obvious need of law enforcement to keep guns
out of the hands of criminals and terrorists? In the meantime,
we intend to do our best to obtain answers to these questions
in this and future hearings and begin with the answers of our
witnesses today.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
I thank the chair.
Chairman Hatch. Thanks.
Senator Chambliss?
STATEMENT OF HON. SAXBY CHAMBLISS, A U.S. SENATOR FROM THE
STATE OF GEORGIA
Senator Chambliss. Thank you, Mr. Chairman. I, too,
appreciate you and Senator Leahy convening this hearing.
Senator Kennedy and I, in our Subcommittee on Immigration,
Border Security and Citizenship have held a series of hearings
regarding the operation, particularly, of our visa system and
some other integral parts of the war on terrorism, and we are
seeing some significant improvements made in the way that
business is being conducted between the Department of Homeland
Security, the Justice Department, the State Department and all
of our other Federal agencies who are integrally involved in
this particular issue of fighting terrorism.
Today, we have an opportunity to again conduct some
oversight into an area that we knew was going to be
controversial when we enacted it, because we did move into an
area of the post-9/11 world that none of us had ever been
involved in before. And I think it is going to be interesting,
particularly, to hear from folks who have been out there on the
front lines as to whether or not what we did is working the way
we anticipated it would work but most significantly the way
they need for it to work and whether or not we need to expand,
retract or whatever; that is what we are here to find out, and
we have got the right people here to tell us how it is
operating on a day-to-day basis, and I look forward to hearing
from all of these gentlemen.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, sir.
Senator Biden?
STATEMENT OF HON. JOSEPH R. BIDEN, JR., A U.S. SENATOR FROM THE
STATE OF DELAWARE
Senator Biden. Thank you very much.
Let me begin by commending you, Mr. Chairman, for holding
this hearing. To state the obvious, it is somewhat repetitious,
it is critically important that we be vigilant about the new
power that we have granted the Department in our function as an
oversight function. The fact is we all know the threat--I
apologize for my cold--the threat that we face now is
different, and it is real. And by all accounts, the Justice
Department and the Criminal Division, the U.S. Attorneys'
offices in particular have done a pretty good job in terms of
implementing that law. The Department has obtained 152
convictions for defendants like the would-be shoe bomber and
the American Taliban John Walker Lindh as well as disrupted
terrorist cells in everyday American cities of Buffalo,
Seattle, Portland and Detroit. And for that effort, I think the
Department should be commended.
I must pause, however, to take a page from what I thought
that my friend, Senator DeWine was going to say. I think that
some of the criticism of the PATRIOT Act is not so much about
the words written--and now my words--but how they are enforced
and how you guys and women use it.
Back in 1995, some 8 years ago, so I have a clean--I am
straight with you all--I stood in the well of the United States
Senate imploring my colleagues to adopt a series of
antiterrorism tools designed to deter and apprehend terrorists
before they engaged in their acts. And at that time, I stated
unequivocally that it simply did not make any sense to me that
many of our law enforcement tools were not available to fight
terrorism.
Perversely, the FBI could get a wiretap to investigate the
Mafia, but it could not get one to investigate a terrorist
cell. And I stand by my 1995 position that that sort of outcome
was absurd.
Today, I stand by my support of the USA PATRIOT Act. It
contained many of the provisions that I argued for back in
1995. Parenthetically, I should add that in 1995, it was my
Republican colleagues, led in part by the now-Attorney General
of the United States, who argued against those provisions that
I opposed in 1995. But because of the tragic events of 9/11, we
took another look, a fresh look, at those proposals and some
others.
That said, I am fully aware of the tide of criticism that
has been directed at some of the PATRIOT Act's provisions.
However, as the Washington Post editorialized back in August, I
believe that some measure of the criticism is both misinformed
and overblown. While portions of the act are indeed sweeping
and imperfect, it represents a good faith effort to find some
compromise to date what we all agree to be a foremost threat
facing the United States of America, and that is a more
radical, a more radicalized enemy intent on inflicting harm on
American citizens.
That is not to say, however, that the Justice Department
should be absolved of the responsibility for its missteps and,
I believe, poor judgment. Frankly, what I imagine is most
alarming to the American public is not only the possibility
that government can gather more information in cases on
national security, which does disturb a lot of Americans, but
also the administration's designation of U.S. citizens as enemy
combatants. What is alarming is that we are denying them
meaningful access to lawyers. What is alarming is the
administration's liberal use of the detention of immigrants
after 9/11, a practice condemned by the Inspector General of
the Justice Department.
And by the way, I am personally troubled by the
Department's lack of candor regarding the implementation of the
PATRIOT Act's provisions. At a time when government has
increased authority to find out more information about
individual citizens, the Department has been less and less
willing to share basic information about its activities. The
Department operates in a shroud of secrecy, refusing to
cooperate with Congress' basic request for information. At this
rate, the administration, in my view, stands to squander the
new tools that this body reluctantly granted it 2 years ago.
The Department's implementation of the act, if not improved,
will surely doom this legislation's continued life.
That is not a threat. I think it is simply a word of
advice. And I predict to you that the act will be repealed if
you guys do not get your act together. The Department's
apparent strategy of conceal and ignore will be to the
Department and this Nation's detriment. And the idea that the
Attorney General of the United States has to be in Philadelphia
meeting about a Mayer Street or whatever the hell, the heck, he
is doing and not being willing to be here before this Committee
is outrageous. It is absolutely outrageous that he would not be
here, and I just want the record to reflect that that is my
view, and I thank you.
Chairman Hatch. Senator Cornyn?
STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM THE STATE OF
TEXAS
Senator Cornyn. Thank you, Mr. Chairman, and I want to
thank, as the other members of the panel have, the Chairman and
the Ranking Member for convening this important hearing. I was
not a member of this body on September 11 when the terrorist
attacks occurred on our own soil, nor was I here when
bipartisan majorities of the U.S. Congress overwhelmingly
passed the USA PATRIOT Act several weeks later by a vote of 98-
1 in the United States Senate and 357-66 in the House.
I have, of course, reviewed the record, and I have taken
note of the numerous Senators on both sides of the aisle who
praised that act for strengthening our law enforcement and
intelligence tools to fight terrorism while respecting and
preserving the civil liberties of American citizens, and Mr.
Chairman, I would like to ask that a list of some of those
statements, representative statements, be made part of the
record.
Chairman Hatch. Without objection
Senator Cornyn. I am also aware that there have been voices
of consent, critical of both the act and of Congress for
approving legislation that, in their view, deprives individuals
of their civil liberties. Thank goodness we live in a country
where dissent and free speech are matters of constitutional
right, and as an advocate of open government, I firmly believe
that only through free speech and open government can we be
sure that our liberties are secure even during a time of war.
There have indeed been wartime deprivations of civil
liberties in this country in the past: the internment of
Japanese-Americans during World War II, censorship of the press
during World War I; these things happen. But we should remember
that this has been an issue since the earliest days of our
history, when the Alien and Sedition Acts of 1794, four laws
enacted in the wake of hostile actions of the French
Revolutionary Government on the seas and in the councils of
diplomacy, including the infamous XYZ Affair.
So I strongly believe it is important for us to monitor our
government to ensure that civil liberties are always adequately
protected, even as we take the steps necessary to secure
ourselves against terrorism and to stop our enemies who would
do us great harm. Mr. Chairman, I do think that, so we put this
in proper context, we do take due note that the Congress and
the administration, including the Department of Justice and all
of those who are allied in the war on terror must be doing
something right, since, thank goodness, this country has been
spared from further terrorist attacks on our own soil since
September 11, and I think we should always remember and put all
of this discussion in that context.
It is because I worry about civil liberties that I worry
about hysterical claims about civil liberties abuses. Every
false claim of a civil rights violation discredits every true
claim of a civil rights violation, and I believe that that
hurts us all. I look forward to hearing today's testimony and
to learning whether the USA PATRIOT Act actually has served the
purpose that Congress intended, and that is to save lives and
to protect Americans from terrorist attacks without harming
civil liberties, as I believe and as a bipartisan majority of
the 107th Congress believed that it would and that I believe
the act does.
Thank you, Mr. Chairman.
[The prepared statement of Senator Cornyn appears as a
submission for the record.]
Chairman Hatch. Thank you.
Senator Kohl, we will turn to you.
STATEMENT OF HON. HERBERT KOHL, A U.S. SENATOR FROM THE STATE
OF WISCONSIN
Senator Kohl. Thank you, Mr. Chairman. We are here this
morning to review the Justice Department's efforts to
investigate and prosecute suspected terrorists under the
PATRIOT Act. Many of us are uneasy with the perception
generated by the PATRIOT Act, namely, that Federal law
enforcement is more powerful, more intrusive and less concerned
with Constitutional rights than ever before.
This concern is shared by many Americans. In fact, a recent
poll showed that 52 percent of Americans feel that the PATRIOT
Act has gone too far in compromising Constitutional rights.
With the increased power of the PATRIOT Act comes increased
responsibility not to chill or infringe upon the civil
liberties of law abiding citizens. We are concerned that the
administration, perhaps, does not get this balance right.
Although fighting terrorism was the rationale for enacting
the PATRIOT Act, we are troubled with the aggressive
application of this statute to non-terrorism cases. Critics
contend that the administration is using terrorism to pursue a
wider law enforcement agenda. Indeed, a Justice Department
report confirmed that hundreds of non-terrorism cases were
pursued under the PATRIOT Act. For example, the New York Times
reported that one provision of the PATRIOT Act, specifically, a
new section criminalizing threats to mass transportation
systems was used by authorities to sentence a 20-year-old
lovesick woman to 2 years in Federal prison for leaving
threatening notes on a cruise ship simply because she wanted
the boat to return to port so that she could see her boyfriend.
Though such hoaxes should be taken seriously, we must ask
if the PATRIOT Act was really intended to send such individuals
to Federal prison. Arguably, the PATRIOT Act has made Federal
law enforcement more invasive in the lives of Americans than at
any other time in our history. For example, the PATRIOT Act
allows the Treasury Secretary to require banks to keep even
closer tabs over their customers. This mandate has rankled many
banks and citizens alike, forcing them to question the need for
these provisions in the war on terrorism.
We need to be reassured that the good that the PATRIOT Act
has brought outweighs the bad and whether there has been
overuse or abuse of the new powers granted by this law. We
should examine whether or not the PATRIOT Act needs to be
reigned in. So we look forward to having these questions
addressed by our witnesses here today and at future hearings,
which will address the administration's efforts to combat
terrorism.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you, Senator.
Senator Feinstein?
STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Thank you very much, Mr. Chairman, for
holding these hearings. Senator Kyl and I held an oversight
hearing in the Terrorism and Technology Subcommittee on the
full PATRIOT Act about a year ago in October, but this is the
first hearing this Committee has held. And I think it is really
very important to hold these hearings. I happen to agree with
what Senator Biden said: the Attorney General really should be
here. He sets the policy.
I have tried to see what has happened in the complaints
that have come in about the PATRIOT Act, and I have received to
date 21,434 complaints. Conversely, I have received six calls
in favor of the act. When we took a look at the letters, post
cards, and emails that came in, it was very revealing. This
correspondence breaks down into three sets. The first set was
really against PATRIOT II, draft legislation that would have
expanded the PATRIOT Act. That bill was never formally sent to
the Hill. My hope is that it is dead in the water. While a
great bulk of complaints are against PATRIOT II, we have never
seen a final version of PATRIOT II.
Now, the rest of my mail is evenly divided regarding civil
liberties in general and the National Security Entry-Exit
Registration System in particular. That is the system which
requires males from certain countries to be photographed,
fingerprinted and interviewed. It has nothing to do with the
PATRIOT Act. Now, of the 194 communities across this country in
34 states that have passed resolutions or ordinances against
the PATRIOT Act, 45 of them are in California. There are three
types of these resolutions or ordinances. For the most part,
though, they generally complain that the Act violates civil
liberties, leads to profiling, and is reminiscent of past
instances of civil rights violations.
In fact, I have never had a single specific abuse of the
PATRIOT Act reported to me. My staff emailed the ACLU and asked
them for instances of actual abuses. They emailed back and said
they had none. Additionally, there are complaints about
specific sections of the PATRIOT Act. These do not assert any
specific abuses, but they target individual sections. As you
know, 16 sections of this bill were sunsetted after 5 years,
and we sunsetted them largely because we were concerned that
there might be abuses, and we wanted to watch these sections
and at the end of 5 years have the ability to take a look at
those 16 sections and see if they were abused.
Well, the targeted sections include Section 213--that is
sneak and peek. Now, this section allows the court to delay a
notice of a search warrant if the court finds reasonable cause
to believe that providing immediate notification of the
execution of the warrant would have adverse effect.
Interestingly enough, according to the Director of the FBI, the
sneak and peek authority provided in this bill has never been
used against a library, I believe. In spite of this,
Congressman Otter offered an amendment in the house to an
appropriations bill that would block law enforcement from using
this authority.
But I think many miss the fact that section 213 is, for the
most part, as I understand it, a codification of authority that
was created by case law in the United States Court of Appeals
for the Ninth Circuit in 1996 and the U.S. Court of Appeals for
the Second Circuit in 1990. If I understand what we did in
section 213, it was in some respects narrower than the
authority that existed before the PATRIOT Act in the Ninth
Circuit and the Second Circuit. In addition, we provided in the
PATRIOT Act certain additional safeguards in the area of sneak
and peek so that civil liberties are actually better protected
now in California, Idaho, New York and in other states that
fell under those jurisdictions than before the PATRIOT Act.
Section 215, FISA business records. This is the provision
about which the libraries are worried. A number of letters
commented on it. And that section removes the agent of a
foreign power standard for court-ordered access to certain
business records under FISA and expands the scope of court
orders to include access to other records and tangible items.
I would like to hear from the witnesses today about that
section and how it has been used.
Another section mentioned in letters was 218. This section,
together with section 504(a), allows coordination between
intelligence and law enforcement, and it was the one that
changed the standard required for a FISA order from primary
purpose to significant purpose. I think I first suggested that
amendment. The amendment helps lower the wall between
intelligence and law enforcement.
Another is section 314, which requires cooperative efforts
to deter money laundering and allows the sharing of information
by law enforcement and regulatory authorities and financial
institutions to help detect terrorist financing and/or money
laundering. And the final one is Section 411, which changes
definitions related to terrorism and makes it easier to deport
aliens who raise money for terrorist organizations and broadens
the definition of terrorist organizations.
Now, in my judgment, there is a lot of public concern out
there about this bill. I find it interesting that of the over
21,000 comments I received--now, I generally wait until I get
about 30,000 before I come to any specific conclusions--but of
the 21,434 who have written or called, to have half really
against a bill that has never been introduced is interesting,
and to have a substantial number relate to the National Entry-
Exit Registration System, which is not part of the bill, is
also interesting.
Now, what I have deduced from this is that there is
substantial uncertainty, perhaps some ignorance, about what
this bill does and, secondly, how this bill has been employed.
So I look forward to these hearings as a way of clearing some
of that up.
I thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Feingold?
STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR FROM THE
STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman.
Thank you for agreeing to hold the series of oversight
hearings on the administration's counterterrorism efforts. My
first priority and I strongly believe Congress' first priority
in a post-September 11 America is to fight terrorism. Today,
the Committee will hear the administration's perspective on its
counterterrorism initiatives, and I am eager to hear what the
administration has to say.
I also look forward to our next hearing, when I am told we
will hear from experts outside the administration who believe
that our government can do a better job fighting terrorism
without sacrificing the values that make us the greatest
democracy on Earth. I understand the hearing will be held on
November 5, and I commend the Chairman and the Ranking Member
for their collaboration in arranging those hearings.
Mr. Chairman, I think we must be mindful that while there
have been important successes in the war on terrorism, there
are legitimate concerns, legitimate concerns, about whether
some of the administration's conduct has been fair, just and
effective. According to the Justice Department's own Inspector
General, many of the over 750 men who were rounded up and
detained on immigration violations in the aftermath of
September 11 were haphazardly and indiscriminately labeled as
terrorist suspects. But none were ever charged with a terrorism
offense, and some were treated in an inexcusably harsh and
unfair manner. I remember very well that those of us who raised
questions about the treatment of these detainees at the time
were accused of, quote, ``aiding the terrorists,'' unquote.
Now, the Inspector General has vindicated our concerns but
2 years too late to help those whose rights were violated. In
addition, three men, two of whom are U.S. citizens have been
designated enemy combatants and are currently detained by the
military here in the U.S. They are locked up with no access to
attorneys or family and no guarantee that they will ever be
charged or have their day in court. This treatment raises
questions that I think go to the very core of the Bill of
Rights.
Mr. Chairman, then, there is the PATRIOT Act. As I made
clear during the debate on the bill 2 years ago, I supported 90
percent of the USA PATRIOT Act. But the bill went too far in
some respects, and I am very pleased that there is a growing
bipartisan support, including some of our colleagues from both
sides of the aisle on this Committee, to modify the law to
ensure that it is consistent with the Constitution and not be
subject to abuse.
There is too much confusion and misinformation about this
issue, as the Senator from California just indicated. The first
is the notion that I think I heard somebody say that the sneak
and peek provisions are sunsetted, which they are not, and that
they have not been used, which is not the case. They are being
used, and they do need review. They do need to be sunsetted,
and they do need to be modified.
Secondly, I do acknowledge that the administration has
indicated that they have not used the Section 215 library
provisions, provisions that they described as essential to the
fight against terrorism. Now, which is it? That they have never
used them, or that they are essential? And what is the
objection, then, to reasonable modifications if they have not
even been used?
Finally, the Senator from California effectively
demonstrated the vast number of Americans that are raising
questions about this bill. Of course, not everybody who raises
those objections knows all of the details of the bill, just
like the members of the Senate did not know the details of the
bill when they voted for it. But they do sense that something
is wrong.
The way to handle that is not to refer to people who have
concerns as hysterical. The way to handle that is to talk to
the American people about their concerns, to carefully go
through what is needed and what is not needed, what is being
used, and what is not being used. I regard the administration's
attempt to marginalize and dismiss those who criticize this
bill as highly objectionable and not consistent with the
fundamental goal, and the fundamental goal, Mr. Chairman, is to
bring the American people together as we fight terrorism, not
to label people who have questions as marginal or hysterical.
So, Mr. Chairman, I thank you for having this hearing, and
I look forward to this one as well as the next one that is
specifically on the USA PATRIOT Act. Thank you, Mr. Chairman.
[The prepared statement of Senator Feingold appears as a
submission for the record.]
Chairman Hatch. Senator Craig?
STATEMENT OF HON. LARRY E. CRAIG, A U.S. SENATOR FROM THE STATE
OF IDAHO
Senator Craig. Well, thank you very much, Mr. Chairman. I
am here basically to listen and to see what is happening within
this law. As you know, I have recently joined with a group of
my colleagues in crafting some reform to the PATRIOT Act that
we are now calling the SAFE Act that we believe have some
essential grounds for clear review before this Committee.
But I must say that whether it is SAFE Act or PATRIOT Act
or where we go, let me give you a new statistic. I just came
from doing an interview on Social Security card issuances. I am
Chairman of the Aging Committee. And it is frustrating to me:
last year, we issued 12.4 million Social Security cards in this
country, 1.2 million, 22 percent, to noncitizens: no background
checks, no indication that these were all legal, foreign aliens
in our country; 1.2 million. We have got problems everywhere
when it comes to effectively tracking those who are in our
country, handling them right and handling them reasonably and
giving our law enforcement the appropriate tools to do so while
protecting our civil liberties.
Gentlemen, I am anxious to hear your testimony.
Chairman Hatch. Well, thank you, Senator.
Senator Schumer?
STATEMENT OF HON. CHARLES E. SCHUMER, A U.S. SENATOR FROM THE
STATE OF NEW YORK
Senator Schumer. Mr. Chairman, thank you for holding these
hearings. These hearings are entitled Protecting our National
Security from Terrorist Attacks, a Review of Criminal Terrorist
Investigations and Prosecutions.
Well, the investigation that I am most interested in--it
should come as no surprise--is that into the allegation that
someone in the administration leaked the name of a covert CIA
agent. It is, in my opinion, a dastardly crime, and it goes to
the heart of our ability to deal with terrorism.
Let me start by welcoming the three witnesses who are here
this morning. It is unfortunate that the two people who can
best answer questions about that investigation, Attorney
General Ashcroft and John Dion, head of the Counterespionage
Section, are not here today. It is a shame that Attorney
General Ashcroft has chosen to stay away from the hearing,
since he is a close ally of the President and has refused to
recuse himself from the investigation thusfar.
We do not have the slightest idea about the extent of his
involvement. We do not know, for instance, if he is involved in
determining what witnesses can be interviewed or whether a new
line of questioning can be pursued. These are crucial questions
that deal with the integrity of this investigation.
Now, I sent a letter to Chairman Hatch, and we called the
Justice Department asking that Mr. Dion be here today, because
other than Attorney General Ashcroft, he is really the only one
who can tell us what we need to know about who is running the
investigation and how independent it really is. It is a shame
that he, too, is not here today, but at least we will have the
opportunity to ask Mr. Wray to shed some much-needed light
here.
There are a lot of questions that we need answered in this
investigation. These do not deal with the specific facts of any
ongoing investigation; rather, they deal with the structure and
independence of the investigation, something that is well
within this Committee's purview and something I hope we will
pursue with some degree of diligence. But here are some of the
questions that I would like answered: first and foremost, who
is really in charge of this investigation? While DOJ says that
career prosecutors are running this investigation, it is quite
clear that close associates and allies of the President are in
the line of command and have not recused themselves.
Does Mr. Dion have the power to take whatever investigative
steps he deems appropriate? Or can he be blocked from
subpoenaing documents, putting a witness in the grand jury or
doing anything else he believes is essential to finding out who
committed this dastardly crime? If someone with a conflict of
interest or an apparent conflict of interest can block Mr. Dion
from investigating this case the right way, that is a very,
very big problem.
I, for one, want to know what is being done about it. Why
have we seen such unusual delays? Why did the Department of
Justice accede to a White House request to delay telling
employees to preserve evidence? And why has a special
prosecutor not been appointed to run this investigation?
I take the Justice Department's criminal investigation into
the leak of a covert CIA operative's identity very seriously,
because it is an act so vile and so heinous that it is a shock
to the conscience. It demands a full and fearless investigation
that is above politics, but so far, the way that this probe has
been conducted falls short of that bar. These questions go to
the heart of whether the public can trust that the
investigation is being conducted in a responsible manner. It
should not take a hearing to determine that, but that is what
we are left with.
Now, Mr. Chairman, I advised Mr. Wray's staff that I would
be asking these questions today, so there is no surprise here.
We do not want to surprise anyone, catch anyone off guard. We
just want the answers we have been seeking for weeks. This
Committee has important oversight responsibilities, not only on
the PATRIOT Act but about this investigation as well, and we
owe a duty to the American people and our intelligence
operatives, brave men and women on the front lines risking
their lives for us, to ensure that this investigation is done
right, and I look forward to getting some answers today.
Chairman Hatch. Thank you.
[The prepared statement of Senator Schumer appears as a
submission for the record.]
Senator Durbin?
STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR FROM THE
STATE OF ILLINOIS
Senator Durbin. Thank you very much, Mr. Chairman. I want
to thank those who are here before the Committee today,
particularly Pat Fitzgerald, who comes to us from the Northern
District of Illinois, and I was happy to support Senator
Fitzgerald's--no relation--nomination of Pat Fitzgerald. He has
done an excellent job as our U.S. Attorney and may be one of
the most knowledgeable people in this whole subject of
terrorism. So I am looking forward to his testimony. Though we
may disagree on a point or two, I certainly respect him and all
of the other witnesses who are before us.
But the point has been raised over and over again: there is
an empty chair here today, a chair which should be filled by
the Attorney General of the United States, who, frankly, has
been a rare visitor to Capitol Hill when it comes to justifying
his administration's process and procedure that they are using
to fight terrorism. It really strikes me as indefensible that
we are here in the Judiciary Committee reviewing the most
critical piece of legislation involving civil rights and
liberties in America, and the Attorney General of the United
States is too busy to be here.
I do not understand that. I do not think it makes any
sense, and I do not think it is fair. And it is not just a
matter of his personal appearance. I have had an experience
that other Senators have had that this Department of Justice is
unresponsive to letters and requests for information. They
really believe that they are above it all, that oversight is
not something that they really have to submit themselves to.
In the name of fighting terrorism, they are ignoring their
basic Constitutional responsibility. Now, I am glad that the
people who are before us today will be able to answer
questions, but Attorney General John Ashcroft should be in one
of those chairs before that microphone answering the questions
that we have had raised by citizens all across America about
the PATRIOT Act. And I think that the fact that he is not here
is a sad commentary on this administration's attitude toward
its Constitutional responsibility.
Put in historical context the PATRIOT Act: it was passed at
a critical moment in the history of the United States. It was a
moment of tragedy; it was a moment of fear. It was a moment
when we moved, at the Government's suggestion, to give our
Government more powers to apprehend those responsible for
crimes of terrorism. And there were misgivings on our part.
Many of us on this panel wondered: have we gone too far? Have
we given the Government more authority than we should have,
more than it needs? Have we infringed on the Bill of Rights
that we have all sworn to protect on both sides of the table?
We were not sure, but because we were certain that we
wanted to make America safe, we voted for this PATRIOT Act, and
now come voices back to us asking questions about whether we
did go too far. And I listened to Senator Feinstein, and I
think she is probably right. If you ask the average critic of
the PATRIOT Act, be specific, what is it about this law that
you do not like, many are at a loss to be that specific. But
keep in mind what is at play here. Who has the burden of proof
when it comes to taking away the rights and liberties of
Americans? It certainly is the Government's burden to prove
that. The individual citizen should not have to make that case.
The Government ought to stand up and say this is why we are
taking away your rights and liberties. This is why order is
more important than liberty.
They have that burden. And the fact that individuals
writing us letters cannot give us chapter and verse as to
exactly why they are troubled by the PATRIOT Act I think,
frankly, shifts that burden. It says to the average person in
the street, you have to come up with an explanation of why this
Government is going too far, a Government through an Attorney
General who refuses to be held accountable, refuses to submit
himself to the oversight of this Committee.
And listen to what that Government, what that Attorney
General says of his critics: when he did appear before this
Committee in a rare appearance, he said, quote, ``to those who
scare peace-loving people with phantoms of lost liberty, my
message is this: your tactics could only aid terrorists, for
they erode our National unity and diminish our resolve. They
give ammunition to America's enemies and pause to America's
friends. They encourage people of good will to remain silent in
the face of evil.''
And that was not the end of it. On September 19 of this
year, another quote from Attorney General Ashcroft about the
critics of the PATRIOT Act: ``The charges of the hysterics are
revealed for what they are: castles in the air built on
misrepresentations supported by unfounded fear held aloft by
hysteria.'' That is what the Attorney General of the United
States said to those Americans and those Senators and
Congressmen questioning whether the PATRIOT Act went too far.
And that, I believe, is why he is not at the table today,
because if he were held to the same standard of proof of why
this Government needs to take away our rights and liberties, I
think he would be at a loss.
Now, people on both ends of the political spectrum have
come together, right and left, and said that there are at least
three areas of this law that went too far. And the Government,
in response, has said, well, we have not even used it. Well, it
is 2 years after September 11, and if you have not used them,
perhaps you do not need them. And frankly, those you have used,
sneak and peek, for example, raise serious questions as to
whether they infringe on our Constitutional rights.
I hope, Mr. Chairman, the next time we have a meeting of
this Committee, the Attorney General will not be too busy to
come before us and be held accountable, to be subjected to the
oversight that this Committee, I think, has a responsibility to
exert on behalf of people all across America who believe as I
do that the presumption is on the side of American citizens in
protecting our rights and liberties, and the burden is on the
Government to prove time and again that they have to infringe
on those rights and to establish new law.
Thank you, Mr. Chairman.
[The prepared statement of Senator Kennedy appears as a
submission for the record.]
Chairman Hatch. Well, let the record show that we did not
invite Attorney General Ashcroft to this hearing. The purpose
of this hearing is to have these law enforcement officials help
us to understand some of these things better. He will be
invited. He has said he will come. And I just want to make that
record clear.
Now, one other thing: you know, I listened to Senator
Schumer, and I have to say that a leak concerning intelligence
information or agents can never be condoned. I do not believe
that there is anyone who disagrees with that proposition, and I
join in Senator Schumer's desire that the identity of the
person who leaked this serious information be discovered.
But I believe that the Department of Justice is the
appropriate agency to look into this matter. Historically, the
CIA notifies the Department of Justice--
Senator Leahy. Mr. Chairman, if I could just interrupt for
just one second--
Chairman Hatch. Sure.
Senator Leahy. We did request that Mr. Ashcroft come here
to testify, and we did express the concern that, with all due
respect to Mr. Wray, Mr. Fitzgerald and Mr. McNulty, this is
usually the level we see for a staff briefing, not for the full
Committee.
Chairman Hatch. Well, let me just make it clear: I think
these are three of the top law enforcement officials in the
country who are on the front lines, and we decided to go with
them first. But let us also make it clear, in all fairness to
the Attorney General that we did not invite him. So I do not
think that we should be pounding on the Attorney General for
failing to appear here when he was not invited. And that is the
point I am making.
Now, with regard to leaks, approximately 50 times a year,
every year, the Justice Department is asked to investigate
complaints about the leak of classified information. The
Department has career professionals dealing with these matters,
and their professionalism and experience will ensure a
competent and complete investigation.
When you talk about career prosecutors, I am told that one
of the most experienced career prosecutors in this area is John
Dion, a career Justice employee who is heading this
investigation. Now, consider that Mr. Dion has participated in
the investigation and arrest of those responsible for breaching
national security during both Republican administrations--the
Walker spy ring, for example--and during Democratic
administrations, like the Robert Hansen and Aldrich Ames cases.
This is the quality of this man. He is obviously a man who
follows the evidence wherever it may lead, and because of this
experience, I cannot understand why anyone would suggest that
the Department would appoint anyone other than Mr. Dion to look
into this matter.
He is a career Department prosecutor, and he has the
authority to look at this. Now, Attorney General Ashcroft has
directed this matter to be undertaken with the kind of
thoroughness, promptness and professionalism that Mr. Dion has
exhibited throughout his service and his entire career across a
variety of administrations. Now, having John Dion here today
would serve no real purpose other than propounding questions to
him that he cannot answer because of the ongoing investigation,
and more importantly, having him here would take away from
actually conducting this investigation.
Mr. Dion represents the nature of career employees within
the FBI and the Department of Justice. The continuity of
service within our law enforcement community through Republican
and Democratic administrations is what makes the criminal
justice system in this country the best that there is in the
world today.
Chairman Hatch. Now, I just wanted to set the record
straight, because the purpose of this hearing is to get into
some of these questions that people have raised and to get it
straight from the horse's mouth, from people who are
prosecuting these matters. We have the chief of the Criminal
Division today, Hon. Christopher Wray, who will begin our
discussion. He is the chief of the--excuse me; just let me
introduce them and then--he is the chief of the Criminal
Division of the United States Department of Justice; Hon.
Patrick Fitzgerald, the U.S. Attorney for the Northern District
of Illinois, one of the top U.S. Attorneys in the country, as
is Hon. Paul McNulty, whom we all know from having served up
here on Capitol Hill, U.S. Attorney for the Eastern District of
Virginia in Alexandria, Virginia.
And I am interested in what you have to say, and then, we
are going to have a series of these hearings, and we will have
the Attorney General, the Director of the FBI and others in
here to add to what you folks have to say and to answer any
questions that anybody on this Committee will care to ask. And
we will do that, and we will do that at the appropriate time.
Senator Schumer. Mr. Chairman, just briefly--
Chairman Hatch. Sure.
Senator Schumer. --because you addressed me, and I just
want to briefly--and I know the Committee's time is valuable,
address them.
Chairman Hatch. Right.
Senator Schumer. Two things: there are many leak
investigations. There has not been, to my recollection, a leak
of a covert agent's name, number one; that is a crime. And
second--
Chairman Hatch. They are all crimes.
Senator Schumer. --that it was alleged by a reputed
columnist that it was done by high-level administration
officials. We do not know who they are. That is quite different
from a regular leak investigation. I have no doubt about Mr.
Dion's integrity. You are right: he is a fine career employee.
But on a highly sensitive investigation like this, it may be
and it may not be that his higher-ups have asked him to check
with them before he does, that or the other thing. It might be
Attorney General Ashcroft; it might be somebody else.
Those questions--it is our obligation to find those out.
Those do not interfere with the ongoing investigation. In fact,
in fact, Mr. Chairman, with all due respect, that makes sure
that we have a real ongoing investigation that gets to the
bottom of this. To ask about the structure of an investigation
is different from questions who are you questioning and what
have they said, which I do not think that this Committee should
do.
So I would just hope that we could either bring Attorney
General Ashcroft here, who I think speaks volumes by his
absence, or, at the very minimum, or, at the very minimum, we
bring Mr. Dion here to ask him those questions. And I think
that is perfectly not only appropriate but within the role,
within the obligation of this Committee, because let me tell
you: at least in my State, in New York, this is not a partisan
issue. I get questions from people of both parties, of all
political persuasions, and all they want to do is get to the
bottom of this. It does not matter who it was, as long as you
find out who it is and punish them.
Chairman Hatch. I understand, and you will be able to ask
Attorney General Ashcroft those questions when he comes.
Now, with regard to Mr. Dion, we will see, but it is an
ongoing investigation, and let us just see where it goes.
With that, we will turn to Mr. Wray. Then, we will go right
to Mr. Fitzgerald and then to Mr. McNulty. And you each have 7
minutes. We would appreciate it if you could cover everything
that you can in that limited period of time. And then, we will
have questions.
STATEMENT OF CHRISTOPHER WRAY, CHIEF, CRIMINAL DIVISION,
DEPARTMENT OF JUSTICE, WASHINGTON, D.C.
Mr. Wray. Mr. Chairman, members of the Committee, thank you
for asking the three of us here today. I am pleased to be able
to discuss with you the Justice Department's efforts in the war
on terror and how the PATRIOT Act has helped prosecutors and
agents on the front lines of that war.
Like many of you, I remember where I was on September 11
when I first learned of the attacks on the World Trade Center
and the Pentagon. I recall vividly the chill I felt as I
watched the television footage of the wounded Manhattan
skyline, and I will never forget the conversations that I had
with my wife and children after learning of the tragedy, or the
grim faces of my colleagues at the Justice Department, or the
dense weight that settled in my stomach for the rest of that
mournful day.
Just as memorable, though, were the heavy burdens of the
next few months. All of us in the Department jolted with a
start and a quickened pulse every time our pagers went off,
whether it was in the middle of the day or the middle of the
night. Our adrenaline went racing with every report of white
powder in someone's mail. Every airplane pilot who did not
promptly respond to radio calls brought a familiar cold knot to
our stomachs, and we were determined not to miss something that
would cost more innocent lives. So each of these incidents made
us think with dread, not again.
I also shared the frustration felt by our agents and
prosecutors who were working around the clock to prevent more
terrorist attacks and to apprehend those responsible for
September 11. Those of us who had spent many years fighting
non-terrorism crimes were incredulous to learn that the law
barred us from using many of our trusted tools to fight
terrorism. Faced with a sophisticated, well-financed and
ruthless enemy determined to kill vast numbers of Americans, we
could not pursue terrorists with the same methods we used
against drug dealers.
This was maddening, and as we continued to check our pagers
and our cell phones, we knew that we could be and should be
doing more. Thankfully, when confronted with this sober
situation, Congress responded with the PATRIOT Act. After six
weeks of intense scrutiny, negotiation and debate, Congress
passed the Act by overwhelmingly bipartisan margins, and to
those of us in the field, the Act was nothing short of a
breakthrough.
Now, prosecutors and agents can communicate far more easily
with intelligence and military officials and coordinate their
efforts. They can adapt to the sophisticated methods now used
by terrorists. They can use tools that have long been available
to fight non-terrorism crimes. They can punish terrorists and
their supporters more severely. Such measures are an absolute
necessity when all that the enemy seeks is a base hit, and we
have to pitch a perfect game every single day.
The PATRIOT Act removed the legal barriers that prevented
law enforcement officials from sharing information with the
intelligence and military communities. Before the Act, the law
required these groups to form separate huddles that could not
readily talk to each other, and naturally, the collective
defense against terrorism was weaker than it should have been.
And that information sharing post-PATRIOT Act has proven
effective. It led to the indictment of Sami Al-Arian and other
alleged members of the Palestinian Islamic Jihad in Tampa,
Florida. PIJ is responsible or believed responsible for over
100 murders, including those of two young Americans, 20-year-
old Alisa Flatow and 16-year-old Shoshana Ben-Yishai.
Intelligence information sharing also assisted in the
investigation of Ilyas Ali in San Diego, California, who was
charged with conspiring to exchange hashish for anti-aircraft
missiles for sale to Al Qaeda. The PATRIOT Act also brought the
law up to date with current technology, so we no longer have to
fight a digital-age battle with antique weapons. Terrorists,
like other criminals, now use modern technology to conduct
their activities. To us, the PATRIOT Act simply leveled the
playing field by allowing investigators to adapt to these
measures.
The PATRIOT Act has also given prosecutors and
investigators stronger tools with which to deter and disrupt
terrorist activity. By increasing the maximum sentences for a
number of terrorism-related offenses, the Act ensures that
terrorists and their supporters are punished appropriately and,
just as importantly, leads to more information and cooperation
from those linked to terrorism.
Another important tool that a number of the members of the
Committee have already mentioned has been the delayed-notice
search warrant. This tool allows investigators to delay, not to
deny, notifying the target of a search for a limited time while
the court-approved warrant is executed. The use of this tool
has long been upheld by courts in investigations of organized
crime and drug offenses. The PATRIOT Act simply codified the
case law in this area to provide certainty and consistency in
terrorism and other criminal investigations; for example, in a
recent narcoterrorism case, one court issued a delayed-notice
warrant to search an envelope that had been mailed to the
target of the investigation.
By getting that kind of a warrant, it allowed the officials
working on the case to continue investigating without
compromising a wiretap. That search ultimately confirmed that
the target was funneling money to an affiliate of the Islamic
Jihad terrorist organization.
It is easy to be lulled into complacency about the
terrorist threat, and as September 11 recedes in time, it is
natural for it to begin to resemble some hazy, horrible
nightmare. But as we know, and as Congress recognized when it
passed the PATRIOT Act, this was not a bad dream. Every
morning, officials in the law enforcement, intelligence and
military communities are confronting the threat on a very real
basis. There are many who will gladly take the place of the
September 11 hijackers, who are just as intent on killing many
more innocent Americans. And the fervor and organization of our
enemy requires us to be vigilant. Figures like Osama bin Laden
continue to exhort their followers to fulfill their holy duty
of killing Americans. One such message, as the Committee knows,
from bin Laden, aired just this past Saturday.
And terrorists have gained footholds everywhere, even in
our own backyards. They now operate from places like Idaho and
Lackawanna, New York, and Portland, Oregon, and Tampa, Florida.
The Department has enjoyed key successes in the war on
terrorism. Since the attacks of September 11, we have charged
284 defendants as a result of terrorism investigations. To
date, over 150 of them have been convicted. We have broken up
terrorist cells in Buffalo, Charlotte, Detroit, Seattle and
Portland. Through interagency and international cooperation,
over half of Al Qaeda's leadership worldwide has been captured
or killed. And more importantly, since September 11, 2001, we
have not seen another major terrorist attack on American soil.
For this blessing, we can thank not only our dedicated
front line agents and prosecutors but also the enhanced
capabilities that the PATRIOT Act affords them. I should say
that the Act has not gone unnoticed amongst the terrorists
themselves. As the Attorney General pointed out last week, they
are, in fact, explicitly complaining about the Act. Jeffrey
Battle is a member of the Portland terrorist cell who recently
pleaded guilty, and the investigation revealed that he was
explaining to one FBI informant during the course of the
activity that his enterprise was not as organized or well-
financed as it should have been because, and I quote, ``we
don't have support.''
Because of the PATRIOT Act, defendant Battle complained,
``everybody is scared to give up any money to help us.'' And I
would respectfully submit that this Committee and the Congress
can and should be proud of results like that. I want to assure
the members of the Committee that the Department is well aware
of its responsibility to uphold the rights of every American
while protecting the country from terrorist attacks. Congress
itself embedded a number of procedural safeguards in the
PATRIOT Act, including the fact, and I cannot emphasize this
enough, that almost everything that the Department does under
the Act is reviewed by an independent Federal judge.
To date, no provision of the Act has been held
unconstitutional by any court. We also observe comprehensive
constitutional, statutory and administrative rules that guide
all Justice Department investigators and prosecutors. The
PATRIOT Act, in our view, from the front lines, successfully
balances our National security with our civil liberties, and
the Department is committed to protecting the freedoms that we
all so dearly cherish.
Mr. Chairman, I thank you again for inviting us here and
for giving us the opportunity to discuss how the PATRIOT Act is
being used every day in the field to fight terrorism. I would
also like to thank the Committee for its continued leadership
and support. And after you hear from my colleagues, Mr.
Fitzgerald and Mr. McNulty, I would be happy to take a shot at
any questions that you all would like to ask us.
[The prepared statement of Mr. Wray appears as a submission
for the record.]
Chairman Hatch. Thank you, Mr. Wray. We appreciate your
testimony.
Mr. Fitzgerald, we will turn to you.
STATEMENT OF PATRICK FITZGERALD, UNITED STATES ATTORNEY,
NORTHERN DISTRICT OF ILLINOIS, CHICAGO, ILLINOIS
Mr. Fitzgerald. Thank you, Mr. Chairman and members of the
Committee. I am very happy to be invited here today, really for
two different reasons. One is I think it is very, very
important that we get the record straight as to what has led to
the PATRIOT Act and how it has been put into effect.
Something that Senator Feinstein mentioned, I think, is
very true: there is much misinformation and confusion out
there. In talking to the community in Illinois, I can tell you
that many people have genuinely-held concerns about the PATRIOT
Act that are based upon misinformation that is in the public
domain. Everything that we can do to set forth what is and what
is not in the PATRIOT Act I think would be helpful to the
American people.
And the second important reason is I would like to thank
this Committee and Congress on behalf of the prosecutors in the
field and the FBI agents working these cases for finally ending
the wall that was part of the PATRIOT Act. I come to this
Committee having worked for 7 years on terrorism cases before
the PATRIOT Act and can give the Committee, I think, a sort of
before and after view.
The most important thing the PATRIOT Act did was to end the
wall that blocked criminal and intelligence investigators from
talking to each other. And let me give you a concrete example:
in New York, FBI agents, criminal agents, and prosecutors work
together--I was part of the team--in 1996 when we began the
investigation of Osama bin Laden. And here were the ground
rules: we could talk to the FBI agents working the criminal
case; we could talk to the New York City Police Department; we
could talk to other Federal agencies in the Government,
including the intelligence community; we could talk to
citizens; foreign police; and foreign intelligence, including
spies.
We did that. We went overseas to talk to people. We could
even talk to Al Qaeda. We took Al Qaeda members and associates,
and we hauled them before a grand jury and asked them
questions, and I will describe some of that today, because
usually, that is not public, but it has since become public.
And beyond that, we talked to Al Qaeda members who agreed to
defect, and we debriefed overseas and worked with us.
It is amazing that we could talk to Al Qaeda, but we had a
group of people we were not allowed to talk to. And those were
the FBI agents across the street in Manhattan working the
parallel intelligence investigation. We could not talk to them.
And we knew then, and we know now, that any system that allows
prosecutors to talk to just about anyone in the world,
including Al Qaeda, but not the FBI agents investigating the
same case was broken. And what the PATRIOT Act did was to
shatter that dysfunctional wall that prevented us from doing
our jobs.
Let me give you a concrete example of how that came into
play, involving a person named Ali Mohamed. On August 7, 1998,
two embassies, two American embassies, one in Nairobi, Kenya
and one in Dar es Salaam, Tanzania, were bombed nearly
simultaneously, 10 minutes apart. It was quickly clear to us
that Al Qaeda was involved. And the criminal investigation team
deployed to Africa did some investigative steps, made some
arrests over there and then returned to the United States.
At that point in time, we knew about a person named Ali
Mohamed, who was a U.S. citizen living in California. He had
become a U.S. citizen after serving in the American Army from
1986 to 1989. We knew he had links to Al Qaeda and knew the
people over in Nairobi who had carried out the bombing but had
not left the United States effectively for about 5 years. He
was a person of interest to our investigation.
We subpoenaed him to a grand jury in Manhattan, brought him
into the grand jury, where he lied, and he left the building.
We knew that he had plans to fly to Egypt, and we had a
decision to make that day: do we arrest him, or do we let him
go? We had to make that decision without knowing what was on
the other side of the wall. We did not know what evidence we
would have from the intelligence investigation.
And as we sat and made that decision, we got lucky. We
decided to arrest him that night and not let him leave the
country. After we made that decision, which we made with only
knowing part of our hand because of the wall, we later received
the evidence that had been obtained in the intelligence
channels, from the intelligence investigation in California,
and we found a search had happened which recovered many
documents, including handwritten communications with Al Qaeda
members that, had we known about, would have made our decision
a lot easier.
Later on, as a result of further investigation, Ali Mohamed
plead guilty, and he admitted in court that he is the one that
largely trained the Al Qaeda network in terrorism techniques,
in intelligence, in counterintelligence techniques. He trained
bin Laden; Ayman Al-Zawahiri, the number two; Muhammad Atef,
the former military commander, and many others.
Chairman Hatch. That is Ali Sheikh Mohamed?
Mr. Fitzgerald. This is Ali Mohamed. His middle name is not
Sheikh. It is Ali A. Mohamed from California.
And he trained those members. He also conducted the
surveillance of the American Embassy in Nairobi back in 1993
and showed surveillance photographs to Osama bin Laden
afterwards. As part of his plea, he admitted that had he not
been arrested in New York in September 1998, he intended to
rejoin Osama bin Laden overseas in Afghanistan. Had we made the
wrong decision because we had not seen what was on the other
side of the wall, instead of being in a jail, Ali Mohamed could
be in cave in Tora Bora or who knows where else, were he with
Osama bin Laden right now.
And the notion, when I hear in the public debate that the
PATRIOT Act too quickly took down the wall in a rush after 9/
11, I bang my head against a desk and say it was too late. For
10 years, we worked under this sort of broken system where we
were not allowed to know what each other were doing. So I
applaud this Committee for taking down the wall and allowing
those cases to proceed.
I will rely upon my written record and compare now what we
do post-PATRIOT Act. Before, when we had two teams connecting
the dots separately, at the risk that they did not put their
dots together, now, we do not have that broken system. In
Chicago, I work with the SAC, the Special Agent in Charge of
the FBI, Tom Kneir, and his agents and my staff, and we sit
down and decide what is the FBI looking at? Who are the
terrorist suspects? What intelligence are they gathering? We
compare notes on what criminal cases we are doing, and we
decide if we have information that we can put together.
We make a decision about whether or not criminal charges
can be brought. Then, we make an informed policy decision about
what cases should be brought. We can turn around and decide
that it is better for national security to let an intelligence
investigation proceed, or we can decide that we are safer
taking this person out of existence, putting them in jail so
that they cannot operate and hoping to get information out of
them.
That seems logical and simple, to decide what is the best
for our country based upon full information, and it is. It was
not that way before the PATRIOT Act, and I applaud this
Committee and the Senate for having enacted it.
With that, I will rely upon my written statement and be
happy to answer any questions at the end of the testimony.
[The prepared statement of Mr. Fitzgerald appears as a
submission for the record.]
Chairman Hatch. We will put the full written statements in
the record.
Let me just add back in 1996, when we passed the Hatch-Dole
Anti-Terrorism Effective Death Penalty Act, I tried to get a
number of these provisions into law then. Senator Biden
mentioned that he had worked on that as well, which he had.
We were stopped then by the far left and the far right
complaining about American civil liberties, which, as you have
pointed out, have been protected in the PATRIOT Act. And the
same arguments were used then. But had we had those provisions
that are currently in the PATRIOT Act, we might very well have
interdicted and caught these terrorists on 9/11. And that is
something we cannot know, but it is something that will haunt
me the rest of my life, that we were unsuccessful in getting
that through, in getting a lot of these ideas through back in
1996, even though that was a major step forward in the fight
against terrorism in this country.
But we are grateful to people like the three of you for the
work that you are doing. I just wanted to make that point,
because there are a number of us who have really tried to get
these tools to law enforcement through the years but were
stopped by the extremists on both ends, both extremes, who seem
to be dominating the debate in the media today.
Mr. McNulty?
STATEMENT OF PAUL MCNULTY, UNITED STATES ATTORNEY, EASTERN
DISTRICT OF VIRGINIA, ALEXANDRIA, VIRGINIA
Mr. McNulty. Thank you, Mr. Chairman and members of the
Committee. I am glad to have the opportunity to be here today
to discuss what is happening in the Eastern District of
Virginia in the war on terrorism, and I am proud to report that
the men and women in my office are fully devoted to this cause
and have sacrificed countless hours, precious time away from
home and family, to do all they can to prevent terrorism and to
prosecute terrorists and those who support them.
Of course, the top priority in the Eastern District is
terrorism. We have developed a strategic plan to ensure that we
have the most proactive and comprehensive effort in pursuit of
this top priority.
An early step in our strategic planning process was to
examine the actions of the September 11 hijackers and determine
what we could do to prevent future terrorist acts of a similar
nature. We discovered, among other things, that the terrorists
obtained fraudulent identification, received large financial
resources to sustain themselves for long periods of time, and
breached security at the airports.
These facts have played a significant role in the
development of our district's strategic objectives in
counterterrorism. Mr. Chairman, we have six objectives: first,
identify the terrorist threats. What Mr. Fitzgerald talked
about in terms of the exchange of information between U.S.
Attorneys' offices and the FBI is part of that effort to serve
that objective: identify the threats. Two, eliminate material
support to terrorists. Three, restore the integrity of our
identification, financial and immigration systems. Four,
protect the vital infrastructure of Eastern Virginia. Five,
successfully prosecute terrorists. And six, protect our
National security information.
Generally speaking, these objectives can be summarized in
the goal of identifying and disrupting terrorist networks in
the United States. The challenge is to find and stop terrorist
killers among us before they can carry out their plans.
Now, crime prevention, by its nature, is difficult to
measure. How do you quantify that which does not happen? But by
aggressively attacking the method and means of terrorism, I
believe we have been effective in preventing it. Shortly after
I took office more than 2 years ago, I created a terrorism
national security unit with more than a dozen experienced
prosecutors assigned full-time to terrorism cases, and this
group of dedicated individuals, working with many other people
in law enforcement, have disrupted the activities of terrorists
and their supporters. We have closed off whole avenues that
terrorists have used in the past to sustain themselves in the
United States. We have clamped down on illegal money remitters,
gone after credit card bust-out schemes, and made it harder for
people to pretend to be somebody they are not or to pretend
that they are legally in this country.
In short, our objective has been to make it much more
difficult for terrorists to operate. Let me briefly highlight
some of our initiatives: in the area of identification document
fraud, we are seeking to unmask the terrorists by stopping the
large-scale purveyors of fraudulent documents and by
strengthening the integrity of our Nation's identification
system. Identification document fraud is pervasive, and
Virginia appears to be a hub of this activity. If a person is
willing to pay the price, fraudulent identification can be
obtained for any purpose, no questions asked.
Identification document fraud is big business. A pair of
defendants dealing in fraudulent immigration documents, labor
certificates, made no less than $6.3 million in the space of 18
months, including $1 million in cash seized from a suitcase
under one of the defendants' beds. Identification document
fraud directly undermines our homeland security. It creates
huge holes in our immigration and naturalization controls. It
helps terrorists enter and remain in our country, and it
facilitates other crimes, such as credit card fraud, mortgage
fraud or bank fraud.
And this is no abstract concern. Seven of the September 11
hijackers obtained genuine Virginia identification cards by
submitting false proof of Virginia residency to the DMV.
Now, with regard to financing, as I said earlier,
terrorists need financial support. Sleeper cells cost money.
Mr. Wray's earlier anecdote about admissions by one defendant
is very telling. And in order to dry up potential sources of
terrorist financing, we now take cases to develop informants
and cooperators who may provide valuable information. Criminals
who smuggle cigarettes or sell bogus baby formula, for example,
may provide information about terrorist financiers. We
investigate such cases because the money from these scams
sometimes heads back to terrorists.
Similarly, we now examine suspicious activity reports from
financial institutions that too often went unread for lack of
resources. We seize money from and prosecute unlicensed money
remitters and money couriers at the international airports, and
we scan bankruptcy reports to detect credit card fraud among
individuals claiming that they ran up hundreds of thousands of
dollars in credit card debt but cannot pay it back because, in
reality, they transferred it to Pakistan.
We have been very aggressive in our investigation of
terrorist financing, especially on money sent from America to
support terrorism overseas. Based on an indictment that has
been recently unsealed, I can tell you that tens of thousands
of dollars were sent from organizations and individuals in
Northern Virginia to Salaam Al-Arian, who presently awaits
trial in Tampa, Florida, on terrorism charges involving the
Palestinian Islamic Jihad.
I am also pleased to tell you that we recently obtained our
first conviction in this wide-ranging financial support
investigation. Soliman Biheiri, the founder of a company known
as BMI, was convicted of immigration fraud. In the course of a
related investigation, a BMI accountant contacted an FBI agent
and told him that, quote, ``funds the accountant was
transferring overseas on behalf of the company may have been
used to finance the embassy bombings in Africa.''
But preventing document fraud or drying up financial
resources is not enough. We must also take away opportunities
for terrorists to strike. Recent news reports about box cutters
on airplanes reminds us that we must be vigilant about who has
access to secure areas of our Nation's airports, maritime
ports, power plants and military bases. Last year, we
established a task force to investigate 28,000 holders of
secure area access badges at Reagan National and Dulles
Airports. In the end, approximately 120 of them were charged
with various crimes, including making false statements, Social
Security fraud and immigration fraud. Another 20 badge holders
were arrested by INS on administrative charges.
Finally, Mr. Chairman, the dedicated men and women in my
office must be equipped with the proper tools and resources for
this fight. Our success is dependent on it. The USA PATRIOT
Act, in my view, is an integral part of our efforts to identify
terrorists and disrupt their activities in the United States.
It provides law enforcement with important tools to enhance our
Nation's domestic security and to prevent future acts of
terrorism.
We used a PATRIOT Act provision to obtain a court order,
for example, and a search warrant from a single United States
District Court in a complex, multi-state financial
investigation of terrorists' financial networks. This provision
in the PATRIOT Act greatly expedited the investigation and
saved precious time that would have been spent obtaining
warrants in other districts. And that tool is something we make
frequent use of, being able to centralize location for seeking
warrants that have a nationwide reach.
Another example: delayed notification search warrants.
These warrants have been used in drug cases for years, and the
PATRIOT Act now allows this tool to be used in terrorism cases.
In one recent case, the court authorized a delayed notice of a
business in Virginia. Surreptitious entry permitted law
enforcement agents to copy numerous records without removing
them related to the offenses under investigation. Pursuant to
the court order, a copy of the warrant was not left on the
premises of the business at the conclusion of the search. We
believe that proceeds of the drug trafficking activities
supported operations of Islamic extremist organizations,
including Al Qaeda.
Without this authority, the investigation, as well as the
safety of cooperating witnesses, would have been seriously
jeopardized. And by the way, that notice has now been made.
In conclusion, Mr. Chairman, the word from the front lines
of the domestic war on terrorism is hopeful. We are making
progress in prosecuting terrorists and disrupting the criminal
activity that supports them. And the PATRIOT Act has played a
significant part in the successes we have enjoyed to date.
Thank you, and I look forward to your questions and
discussing these issues with you.
[The prepared statement of Mr. McNulty appears as a
submission for the record.]
Chairman Hatch. Well, thank you so much. We have
appreciated all three of you being here and patiently listening
and also contributing here.
Let me ask each of you the same question. We start with
you, Mr. Wray. From a law enforcement perspective, is our
country in a better position today to prevent acts of terrorism
than we were on September 10, 2001? Tell us if we are; tell us
why.
Mr. Wray. Thank you, Mr. Chairman. My answer to your
question is that absolutely, we are in a better position today
to fight against the enemy that would do us harm, in no small
part because of the PATRIOT Act. The information-sharing wall
that has been overcome that Mr. Fitzgerald talked about and I
think all three of us made reference to, in particular, is
really a sea change in how law enforcement, intelligence and
military officials, lawyers and agents, all interact with each
other. It means that the Government's effort is an integrated,
coordinated one in a way that I can only say from having been
in the Department before September 11, been in the Department
during September 11, and been in the Department after September
11, is just a really dramatic and very positive change. I think
the American people would be proud of the cooperation and
coordination that that provides.
Another crucial thing I would add is that some of the
greater penalties that the PATRIOT Act provides, especially on
material support, have been used to get greater cooperation.
One of the complaints that you used to hear a lot when people
were trying to figure out what went wrong is that we did not
have enough sources of human intelligence--that we had lots of
electronic interceptions of different sorts, but it was
ambiguous and oblique, and we could not really tell what it
meant.
But one of the best ways to get inside any organization is
to get cooperators, to get human intelligence. And to do that,
you need leverage, and the PATRIOT Act provided us with useful
leverage in getting cooperation. I would mention, for example,
the recent Detroit terrorism prosecution, which is a nice
little juxtaposition. You had two defendants, Koubriti and
Elmardoudi, who were both convicted of the same offense, but
the conduct of one of them went beyond the time frame of the
PATRIOT Act. Therefore, he was covered by the PATRIOT Act, and
he now faces a significantly greater penalty as a result of
that.
So in conclusion, I think that we are in much better shape
than we were, but we have, obviously, a long way to go, and we
look forward to being able to continue to work with this
Committee in the future.
Chairman Hatch. I think you mentioned since the PATRIOT
Act, how many suspected terrorists have been apprehended, and
how many have been convicted?
Mr. Wray. We have charged, I believe, about two hundred and
eighty something defendants as a result of terrorism
investigations.
Chairman Hatch. These are within the United States of
America?
Mr. Wray. All charged within the United States, some
convicted for crimes that targeted Americans overseas, but the
charges are here in the United States.
Chairman Hatch. How many convicted?
Mr. Wray. A little over 150 so far.
Chairman Hatch. That is a remarkable record.
Mr. Fitzgerald, do you care to add anything here?
Mr. Fitzgerald. I would just reaffirm that I think we
absolutely are safer today because of the PATRIOT Act, if
nothing else due to the taking down of the wall. That is the
single greatest change we needed, and it was made.
Chairman Hatch. Thank you.
Mr. McNulty?
Mr. McNulty. Yes; without question. People have been
stopped in their planning who may have gone undetected in the
past. Iman Ferris, for example, has pleaded guilty in Eastern
Virginia. This is a gentleman who was scoping out the Brooklyn
Bridge as a future target for Al Qaeda. Major sources of money
have been dried up. Just extremely large sums, accounts have
been frozen, and many of the groups that were involved in
financing have been slowed or stopped in their actions, and the
systems and vulnerabilities that I discussed in my testimony
have been improved. There is still a long way to go there, but
it is harder to get certain kinds of fraudulent identification
than it was before, because we are more aware of that weakness
in our system.
So there have been a number of relatively minor, in the
sense of comparison to prosecuting a live terrorist, but
important systems issues that I think have been improved to
make a difference as well.
Chairman Hatch. All right; now, all of your testimonies are
replete with references to the PATRIOT Act. Please help the
Committee and the general public by telling us what happens at
the operational level when a suspected terrorist is arrested.
Are they charged under the PATRIOT Act or under other statutes?
Please explain how the post-September 11 PATRIOT Act works with
regard to pre-existing criminal statutes.
Do you want to start?
Mr. Wray. Thank you, Mr. Chairman.
When a defendant, say one of these 280 that I mentioned, is
arrested in the course of a terrorism investigation, they
generally would not be charged with a crime under the PATRIOT
Act per se. There are some who would be charged with material
support, which was a crime that existed before the PATRIOT Act
but was improved and enhanced by the PATRIOT Act. Some of them
would also be charged under a provision--I think it is 373--
which goes to unlicensed money transmitters or hawalas, because
a lot of what is going on in the effort to prevent further
terrorist attacks is the targeting of fundraising and support
that exists.
However, the PATRIOT Act is used quite frequently in the
course of the investigations that lead up to those charges. So,
in other words, you might have a defendant who was charged with
false statements or some kind of identity theft or something of
that nature who would never be charged with a terrorism offense
at that time. But in the course of the terrorism investigation
that led to that charge, PATRIOT Act tools, investigative
tools, would have been used.
Chairman Hatch. Do you care to add anything?
Mr. Fitzgerald. I would simply add that there are people
probably using the PATRIOT Act and not aware that they are,
because when you are a prosecutor, you take out Title 18, and I
start at Section 1 and read to the back to make sure I look at
every possible option.
So if you use one of the material support statutes or a
money laundering statute, you may not recognize that that has
been modified by the PATRIOT Act, because as a field
prosecutor, you do not care which tool you are using. You want
the right one. But I think what Chris said is the most
important point is you may be having an arrest because of the
PATRIOT Act because the information is being shared.
Without the information being shared, you may not know to
arrest someone in the first place. Once you make the arrest,
you pick whatever statute works, whether it is 100 years old or
1 year old.
Chairman Hatch. Let me just say, a lot of people fail to
recognize that a lot of the things that we put in the PATRIOT
Act were already in law with regard to prosecuting hardened
criminals, drug lords, et cetera, et cetera. What makes the
PATRIOT Act so much more dangerous when it is basically just
codifying the law enforcement that we were able to use against
mobsters and racketeers and others who commit heinous crimes in
our society?
Mr. Wray. Mr. Chairman, I do not think the PATRIOT Act is
dangerous, and I think you have focused exactly on the right
issue. There is, as several members of the Committee
recognized, a level of confusion in the discourse about the
PATRIOT Act and what is part of the PATRIOT Act and what is
not.
Chairman Hatch. Would it be fair to say that we just bring
the PATRIOT Act up to the level, in most cases, of what already
is the law with regard to other violent crimes?
Mr. Wray. There are a number of illustrations of that in
the PATRIOT Act. For example, the wiretap provisions are a
classic example of that.
Chairman Hatch. Pen register trap and trace provisions.
Mr. Wray. Exactly.
Chairman Hatch. Getting the phone numbers in and out of a
terrorist's phone; you could not do that before the PATRIOT
Act. You could not knock down this wall and have discussions
between the various segments of law enforcement. You could go
on and on, I guess. Give me some other illustrations, if you
care, please.
Mr. Wray. Well, the other thing is that some of the
provisions that are criticized are actually efforts to bring
the intelligence investigators closer to the criminal powers.
But in some cases, the ability to investigate a person for
credit card fraud is easier to use on the criminal side than it
would be to investigate the same person for a bombing.
Chairman Hatch. Well, as a matter of fact, sometimes, it is
a little bit more difficult using the PATRIOT Act, because you
have more onerous provisions in the PATRIOT Act than you have
to meet than there are under current criminal laws; is that not
correct?
Mr. Wray. Yes. If you were looking for business records, if
I suspected a person was engaged in credit card fraud, I or any
one of 130 prosecutors in my office could issue a subpoena in
very short order without judicial oversight before the issuance
of the subpoena to obtain those business records--
Chairman Hatch. Sure.
Mr. Wray. --based upon a showing of relevance. But if an
agent were doing it to investigate a terrorist bombing plot in
Chicago, he would have to make a showing in Washington to get
the approval to do so. So whenever FISA court approval is
required for something or a higher-level approval, you are
looking at a higher standard than is required for a person
investigating a criminal case.
Chairman Hatch. Right; and then, with regard to the library
situation that has been blown out of proportion in most of the
newspapers in this country, it has never been used, but you can
use it for violent crime. That is the ability to go after
business records, including library records, that was used in
the Unabomber case, right?
Mr. Wray. That is correct.
Chairman Hatch. And in other cases as well.
Mr. Wray. Yes.
Chairman Hatch. So all we are doing is giving the same
rights to go after terrorists that we have already in existence
to go after violent criminals.
Mr. Wray. And even to go after nonviolent criminals
involving loss of money. If there is a Federal violation for
loss of money, those powers are still available.
Chairman Hatch. And before the PATRIOT Act, you could not
do those things with regard to terrorism or suspected
terrorism.
Mr. Wray. Correct.
Chairman Hatch. Well, my time is up. We are going to limit
everybody to exactly 10 minutes. I let everybody go over on
their statements, which everybody did, and we will start with
Senator Leahy.
Senator Leahy. Thank you, Mr. Chairman, and I have found
both the discussion and the answers interesting. Incidentally,
Mr. McNulty, you may want to be careful using the example. I
understand the temptation about what we have seen recently with
the box cutters and all. I think if anything, that should be an
example of sheer embarrassment for our Government. Those things
sat there that long. There were many who feel that the
prosecution of the person who put it there is more to cover the
fact that the Government dropped the ball. I am not suggesting
that that is the reason at all, but that is not one of the
brightest lights of things we have seen recently.
Mr. Wray, on October 14 of this year, a few days ago, the
FBI announced it is going to recruit more language translators
because of the FBI's expanding coverage into areas that require
translation support. It is interesting the timing of that. Two
years ago, I authored the provision in the PATRIOT Act that was
designed to help the hiring of more translators by the FBI.
Section 205 granted them the authority to expeditiously hire
translators. I did that because of the reports about getting
involved in material that sat there that was never translated.
Now, in July 2002, last year, whistleblowers in the FBI
said they are still not doing anything on the FBI translation
program. So I asked the Attorney General specific questions.
President Bush had signed into law this act. Section 205 was
the law. Why was it not being followed?
A year later, the Attorney General got around to answering
my letter; actually, on July 17 of this year, and said the
FBI's success in recruiting, vetting and hiring linguists has
eliminated the need to implement the provisions set forth in
Section 205 of the act. In other words, the Attorney General
said we do not have to follow what you wrote into the law.
That is fine. I have heard that before. But, so, on July
17, the Attorney General, 2 years later and 1 year after I
asked the question, said we do not have to follow that part of
the law, but on October 14, he said that, well, now, we do have
to hire more translators. Is there an inconsistency there? Is
that section now, finally, after 2 years being followed?
Mr. Wray. Senator--
Senator Leahy. Just curious.
Mr. Wray. I am sorry.
Senator Leahy. I said just curious.
Mr. Wray. I am not intimately familiar with the FBI's
current translator hiring program. I certainly share your
concern that translators are a vital part of our terrorism
investigations and that the speed with which we need to move,
which I know you recognize, is directly affected by that.
Senator Leahy. You are familiar with the Department of
Justice and their handling, and in July, we were told by the
Department of Justice we did not need to follow this section.
Now, apparently, we are. Is there an inconsistency in that? I
do not care about the FBI. I am talking about the Department of
Justice generally.
Mr. Wray. And in the instance of the particular
correspondence that you are describing about this provision, I
am not familiar with those particular letters, so I cannot
speak to it.
Senator Leahy. All right.
Mr. Wray. It does sound like there has been a delay in
responding to you, and that is unfortunate.
Senator Leahy. One of the reasons we would kind of like to
have the Attorney General come here. But I will repeat it for
the record, and I expect an answer back. This has been on the
books for 2 years. We were told in July we do not have to
follow the law, and then, about a week ago, we are told that we
need the law. I just want to know which is accurate.
Now, the Attorney General has announced that the Department
has not used Section 215 of the PATRIOT Act to obtain records
from libraries or from anyone else, for that matter. But in a
letter to the House Judiciary Committee dated June 13 of last
year, the Department stated that the FISA court order under
Section 215 could conceivably be served on a public library or
bookstore then added that the more appropriate tool would be a
national security letter.
So the FBI could seek the production of certain library
records. I am speaking now not in specifics but just in the
law. The FBI could seek the production of certain library
records using NSLs, national security letters; is that right?
Mr. Wray. Senator, the national security letters do provide
for production of some records. They do not cover as many types
of business records.
Senator Leahy. I understand. I understand the difference. I
was there at the drafting of this legislation. Go ahead.
Mr. Wray. And the other relative disadvantage to national
security letters over the FISA business records request is the
relative speed with which one can compel production.
Senator Leahy. Has the FBI served any NSLs on libraries
since September 11?
Mr. Wray. Not that I am aware of.
Senator Leahy. And they have not used Section 215.
Mr. Wray. That is correct. That number was recently
declassified.
Senator Leahy. Now, I know that in your answers to the
chairman's question, you were talking about the number of
people being convicted of terrorism, and it sounded like a
pretty good conviction record. Actually, we find in 2003, there
were 616 defendants convicted in cases classified as terrorism,
in fiscal year 2003, 616 defendants convicted in cases
classified as terrorism cases. That is a pretty high number. I
suppose we are doing one heck of a battle. But then, it says
only 236 were sentenced to prison terms, and the median prison
sentence was 2 months.
Are we putting a whole lot of cases in under the rubric of
terrorism that really do not belong there to make the
statistics look good? You do not have to answer that, but let
me ask you this: has the Department of Justice notified U.S.
Attorneys around the country to reclassify as many cases as
they can to make them terrorism cases and not routine
immigration cases or whatever?
Mr. Wray. The Department has, over the course of the last
year or so, tried to make significant improvements in the
accuracy of its record keeping on investigations, specifically
terrorism investigations. One thing that I would say about--
Senator Leahy. Is that a way of saying--is that a
bureaucratic way of saying that they have reclassified a lot of
cases that were not called terrorism, and now, they are called
terrorism?
Mr. Wray. No, it is not.
Senator Leahy. Okay. What does it mean?
Mr. Wray. What it means is that there are a number of
terrorism investigations--and I think each of my colleagues
could speak to this as well from their respective districts--
but there are a number of terrorism investigations where the
decision is made at the charging stage to charge the defendant
with a non-terrorism crime in order to protect, in particular,
national security and classified information that may be
exposed, sources and methods and that sort of thing, that may
be jeopardized by the criminal discovery that would ensue if we
were to charge the terrorism offense.
So sometimes--in fact, fairly frequently--the judgment is
made that a lesser non-terrorism offense, a fraud offense, that
sort of thing, will be charged as a result of a terrorism
investigation in connection with somebody whom intelligence
links to terrorist organizations.
Senator Leahy. But, Mr. Wray, let us be serious about this.
A few months after September 11, when there was--just about the
time that there had been a lot of criticism that maybe the
Department of Justice had dropped the ball; in fact, one of the
senior Republican Senators had said that had they connected the
dots, the Department of Justice connected the dots, we might
have avoided September 11. I do not know if I would draw that
conclusion or not, but there was criticism there. And then, all
of a sudden, everything is reclassified, and lo and behold, we
are just getting more terrorism convictions than we had ever
seen. Nothing seems to have changed that much but more
terrorism convictions.
And then, we find that the average sentence or the median
sentence is 2 months. Now, real terrorists are not getting two-
month sentences. I mean, the Department of Justice is not going
to stand for that. I point that out because it is great to say
look at all of these huge new convictions we are getting in
terrorism, but two month sentences? I mean, this is like
looking at the, you know, look at the enormous job we have done
on bank robberies. We got the guy who stole $800.
Mr. Fitzpatrick, you have a tremendous career investigating
and prosecuting terrorism cases in the civilian judicial
system: U.S. Embassy bombing case, prosecutions of Sheikh Omar,
Abdel Raman, Ramsey Youseff, and so on. Since September 11, the
administration has decided some terrorism suspects will not be
given a trial in Federal court but will be designated as enemy
combatants: Jose Padilla, Yaser Hamdi, Ali al-Marri; two of
those cases, of course, originated in Illinois.
Do you think Padilla and al-Marri could have been
prosecuted successfully within our civilian judicial system?
Mr. Fitzgerald. I do not know the facts of those cases to
give you an honest opinion, and to be blunt, I never like to
speak about other people's cases if I do not know the facts. I
can tell you, obviously, that I understand it is a heavy
decision the President has to make to make a decision, do we go
with what is the ordinary criminal process versus a special
case. And I recognize people are concerned that we would like
to do things in the regular judicial system. But I also
recognize that the President has to look at situations
sometimes where there may be very good reason to believe that
if the person is allowed to walk around on the street, that
they can kill, and there may not be the ability to use
information as evidence in a courtroom and that the answer is
not to let a citizen wander the street through Times Square and
everywhere else because we cannot prevent that from happening.
But I cannot tell you--
Senator Leahy. You had no role in the Padilla case?
Mr. Fitzgerald. I was on the periphery of Padilla, because
he had come through Chicago; went back to New York as a
material witness, so he was briefly in Chicago, so I knew about
him. And then, he went back to New York, and Southern New York
was looking at him, and then, I learned about the decision
after it was made by the President.
And if I could just answer just one brief thing on the last
question you asked Mr. Wray, I certainly was given no directive
from Washington to sort of pump the numbers on the terrorism
side.
Senator Leahy. I appreciate that, and as I said, Mr.
Fitzgerald, I have a great deal of respect for you and the work
that you have done in the past. It is not in the abstract; it
is in the concrete, and we have all benefitted by that. Thank
you.
Thank you, Mr. Chairman.
Chairman Hatch. Thank you.
Senator Leahy. I will submit other questions for the
record.
Chairman Hatch. Thank you, Senator. We will all submit
questions to the record if desired.
Senator DeWine?
Senator DeWine. Thank you, Mr. Chairman.
Mr. McNulty, Mr. Fitzgerald, you both are on the front line
in the war on terrorism, but you also run offices and run the
gamut of criminal prosecution. Since September 11, we have
asked the FBI to do really a sea change in how they approach
things, and they are obviously doing a lot more preventive work
in regard to terrorism.
When the FBI testifies here, I ask them what are you doing
less of? And so, I am going to ask you what are you doing less
of? What are you prosecuting less of? If I looked at your
office records for the last couple of years, what do I see less
of? What are you prosecuting, Mr. McNulty, less of than you
were a couple of years ago?
Mr. McNulty. Well, I do not know if the statistics would
actually bear that out.
Senator DeWine. Or anecdotally will be fine.
Mr. McNulty. Yes, but my sense is, of course, that we
struggle more now to get the resources we need in generally
speaking the white collar area. And I think if you talk to my
colleagues around the country, they would acknowledge that with
the FBI's first priority in terrorism and the considerable
effort that each field office is making to do all that they can
to detect and disrupt and to prevent future acts that we have
had to try to be a little more innovative when it comes to
finding investigative resources for the wide range of frauds
that we may have been able to have resources for in the past.
I work closely with the Washington Field Office of the FBI.
They have additional burdens. When the anthrax attacks
occurred, that office was diverted in its resources to try to
deal with that investigation. So these are real problems that
each SAC struggles with. I might add, by the way, that we are
meeting as a group this week together, the Special Agents in
Charge and all of the U.S. Attorneys, to work through these
very questions to find out how we can do more with sometimes
less in certain categories for investigations.
Senator DeWine. What about drugs?
Mr. McNulty. Drugs? We have not seen a real problem there.
Now, the FBI's role in drugs has been largely through the OCDF
program in the past; continues to be. I mean, they have had,
certainly, a substantial number of investigations in drug
trafficking activity that has not only been in OCDF, but that
has been a key focus. And because of the DEA's commitment there
and the task forces with local law enforcement, I think the
Director of the FBI would say that he has probably fewer agents
today doing drug investigations, but I have not seen, in the
Eastern District of Virginia, that be a problem.
Senator DeWine. You are not seeing that change?
Mr. McNulty. I am not seeing a change in the number of our
cases. Our cases, we have more drug cases now than we had
before 9/11.
Senator DeWine. Really?
Mr. McNulty. Yes; part of this goes back to an effort just
by the prosecutors and other resources to lean forward even
more and make that a priority.
Senator DeWine. Mr. Fitzgerald?
Mr. Fitzgerald. I have not seen a decrease in our caseload.
In the office, we did receive additional resources for
terrorism. I think our caseload in the year after 9/11 went up
about 50 percent. So we have not seen a change in volume. I can
say, working with the FBI, that the FBI has reallocated
resources to terrorism. It has not hurt in the drug area
because they have done it smartly. As Paul said, they work
through OCDETF, and they work through HIDTA, which are task
force programs, and they have made it an emphasis to make sure
that where the FBI agents are participating, it is because they
are adding value and letting DEA take more of a role.
So in the drug area and in the violent crime area, the FBI
has scaled back smartly. In the white collar area, it is still
one of the top priorities of the office, and it is the same
with the FBI, so we get their attention to focus on the biggest
cases we have. The concern that I have is that the medium-level
cases in white collar, not just because some resources have to
go to terrorism, but we have taken some of their best agents in
the white collar area because we need to go after terrorism
financing. I think it is a smart move, because the best way to
fight terrorism is to dry up the money.
We do want to make sure we keep up the experience level.
Separate from that, there is a demographic, I think, in a lot
of law enforcement agencies where there are a lot of agents who
have a lot of experience in white collar crime who are coming
of age to retirement, and we lose those people to the private
sector. There is a brain drain, because they cannot draw a
second pension. So irrespective of 9/11, we are seeing that in
IRS and other agencies, where we are losing lots of experienced
white collar investigators. So that is an issue out there.
But by and large, I think the FBI is dedicating lots more
resources to terrorism. They have done it smartly and
efficiently, particularly in the drug area. We are still going
after white collar cases, in fact, harder, but I think long-
term, we should look past 9/11 and look at the demographic of
the brain drain on all law enforcement agencies in the white
collar area.
Senator DeWine. Mr. McNulty, Mr. Fitzgerald, what is your
total--and then, I will move on--but what is your total number
of assistant U.S. Attorneys? How does that compare? How has it
changed in the last 2 years?
Mr. McNulty. Well, I had substantial growth in the Eastern
District largely as a result of the terrorism resources, but I
have 120 attorneys and probably another 30 or more Special
Assistant United States Attorneys. And we have grown about 25
percent as an office in the last 2 years because of increased
positions for terrorism prosecution and some gun positions and
cyber-crime positions.
Senator DeWine. Mr. Fitzgerald?
Mr. Fitzgerald. In Chicago, we had not had growth basically
in about a decade. In the last year, we have grown by 11
assistants, I think, to about 149. We picked up nine assistants
for terrorism and I think two for cyber-crime and an additional
gun position.
Senator DeWine. All right; you both have described some of
the benefits of the new PATRIOT Act. You have described how it
has worked effectively. Could you describe for us any area that
it has not worked or any area that needs to be improved?
Mr. Fitzgerald. I think it needs just to be understood
better by the public. So much of what people are angry about
does not concern the PATRIOT Act or does not involve it.
Sometimes, you hear about the expression of a tree falls in the
woods, and no one hears it; with the PATRIOT Act, a tree has
not fallen, but lots of people hear it loudly. And I mean that,
that people legitimately have concerns about the PATRIOT Act,
about parts of it that are simply not there, and I think I have
been trying in Illinois to meet with community forums and
educate people on what the act does and does not do, because
there is a great misapprehension there.
I think a lot of what people are concerned about, they
should not be concerned about, but nevertheless, they are. We
need to address that.
Senator DeWine. Mr. McNulty?
Mr. McNulty. Nothing comes to mind that is a problem. I
certainly agree strongly with Pat's point about the disconnect
between much of the rhetoric we hear and then what we are
actually doing, and the use of the PATRIOT Act provisions, so
many of the things that are talked about are not even within
the scope of the PATRIOT Act.
So, but nothing comes to mind as being a weakness or a
problem that we have run into with the act.
Senator DeWine. Mr. Fitzgerald, you mean none of your
assistants come to you and ever say they cannot understand why
these Senators or Congressmen did not get this, and why they
did not write this a little differently? That is kind of a
little hard for me to believe that they--you know. I think I
used to do that when I was a lowly county prosecutor, wonder
why the stupid state legislature did not write the law
differently, you know. I know I did that.
Mr. Fitzgerald. They do come to me and say why do they not
fix this law, but I do not think because it is such a patchwork
quilt, people can figure out which law comes from the PATRIOT
Act and which does not. So they say here is what ought to be
fixed, or here is what we need, but they are not going back
saying if you look at Section 3, such and such, in the PATRIOT
Act, why did they not change this comma?
There are some fixes that may be needed to some statutes
that are modified by the PATRIOT Act that may need further
modification, but they are not coming in and complaining about
the PATRIOT Act as a problem.
Senator DeWine. So you do not have any advice for us, I
guess?
Mr. McNulty. On the PATRIOT Act or on terrorism laws?
Senator DeWine. You have the opportunity today to talk
about anything you want to.
Mr. Fitzgerald. I just think that we need to look at
terrorism financing, because those cases are hard to prosecute
in a way that money laundering is hard to prosecute, squared,
because in money laundering cases, you need to prove that the
person laundering the money knew that it was going to a
specific crime such as drugs. In terrorism financing cases,
when people move money overseas, then, that money is used for a
violent act, you often not only have to prove that the person
facilitating the movement of money knew about the crime
committed, but you may or may not have to deal in court with
the defenses of the person overseas, such as if they were a
freedom fighter who thought that they were authorized by law to
fight. There are many issues like that that make terrorism
financing cases harder to prosecute than even money laundering,
and that is because they make us prove that the person
supported terrorism.
It is hard to prosecute, under the current law, someone who
sends money overseas just to support violence, without putting
the terrorism label on it. There may be areas of conflict
overseas where there is violence going on where our country may
or may not take a position, but we should not have private
citizens on our soil funding fighting, particularly since some
of those fighters may turn out to be Al Qaeda fighters who may
be fighting in a regional conflict today and be coming after us
tomorrow.
So I think there is a need to look at terrorism financing
laws to see whether there ought to be a law against just
supporting violence, not in a terrorism context, not having the
terrorism penalties, but allowing us to stop people from
funding violence from our soil as private citizens. That can
lead to death overseas and can also lead to the further
training of Al Qaeda.
Chairman Hatch. Senator, your time is up.
Senator DeWine. Thank you very much.
Chairman Hatch. Senator Kennedy?
Senator Kennedy. Thank you very much, Mr. Chairman.
Thank you. I guess, Mr. Wray, you have spoken about the
need to give law enforcement the necessary tools to prevent
acts of terrorism. One measure that is clearly necessary in
today's America is the Undetectable Firearms Act. That act
makes it illegal to make or possess a firearm that is not
detectable by walk-through metal detectors or the type of x-ray
machines commonly used at airports. As you know, the act is set
to expire in December.
To my knowledge, the administration has not taken any steps
to see that this critical law is renewed. Tomorrow, I will
introduce a bill to renew the Undetectable Firearms Act, make
it permanent. Will the Justice Department support the bill?
Mr. Wray. Senator, I agree that the issue of weapons being
undetected is an important one. I would be happy to review the
legislation and get back to you on that. I am not familiar with
the legislation as it now stands.
Senator Kennedy. Well, it is time-sensitive, so we would
appreciate it.
I join Senator Schumer--I know he has been the leader on
these issues in the Senate, but I join him in sending the
letters to the Department about the leak investigation, and I
heard our Chairman speak on this issue earlier.
As far as we can tell, Mr. Wray, you are the Presidential
appointee directly supervising the career attorney in charge of
this inquiry, Mr. John Dion, the chief of your counterespionage
section. So can you tell us who is the highest official in the
Department who is getting briefed on the progress of the
inquiry or has any decision making power over it?
Mr. Wray. Senator, as you mentioned, John Dion--
Senator Kennedy. Dion?
Mr. Wray. Dion, right. I am sorry.
Senator Kennedy. No, you were right.
The Chief of the Counterespionage Section, who is a 30-year
veteran of the Department specializing in this area, is the one
who is the head of the investigation and who has the day-to-day
responsibility for it. He reports, in turn, to Bruce Schwartz,
who is also a career prosecutor, a Deputy Assistant Attorney
General in the Criminal Division, and together, they report to
me as the head of the Criminal Division. And although I am a
political appointee, I have spent the bulk of my career as a
prosecutor in the system, both in this administration and in
the U.S. Attorney's office before this administration.
Senator Kennedy. So you are--
Mr. Wray. I am sorry?
Senator Kennedy. Go ahead.
Mr. Wray. And then, I, in turn keep the Attorney General
apprised of the progress of the investigation. But the day-to-
day responsibility for the investigation, the day-to-day
management of the investigation, the decision making in the
investigation, is done by the career prosecutors and agents who
have the expertise in this area.
Senator Kennedy. So the Attorney General has not recused
himself?
Mr. Wray. The Attorney General has said that he keeps all
options open, but at this time, he has not recused himself.
Senator Kennedy. So what role is he playing?
Mr. Wray. As I said, he is kept apprised of the progress of
the investigation, and he has communicated, in no uncertain
terms, his commitment that this investigation be done
thoroughly, fairly, professionally and impartially.
Senator Kennedy. So he is ultimately the one who will make
the decision on whether to appoint a special prosecutor or not?
Mr. Wray. I believe that the law on special prosecutor, on
special counsel, I think is the correct term, reserves that
power specifically to the Attorney General under the
regulations and the statute that applies.
Senator Kennedy. And he has not felt that it is necessary
for him to recuse himself in this matter?
Mr. Wray. As I mentioned, the Attorney General has said
specifically that he keeps all options open as the
investigation progresses but that he, like I, has tremendous
confidence in the career prosecutors and agents who are the
people who have been doing these kinds of investigations for
years.
Senator Kennedy. Well, we all have that confidence, and
there is no reason not to have confidence in others that are
making decisions. But that is not what we wanted to know; what
the line of authority--let me just ask you, and then, I want to
move into another subject. Are you the person at the
Department, then, dealing with the White House Counsel or
anyone else at the White House in the investigation procedures?
Mr. Wray. Do you mean generally or in the context of this
particular investigation?
Senator Kennedy. With regard to this investigation.
Mr. Wray. The lawyers handling the case, the prosecutors
handling the case, are the ones who interface with all of the
folks with whom they interact in the course of the
investigation.
Senator Kennedy. So they are the lead person for dealing
with the White House Counsel would be Mr. Dion, then?
Mr. Wray. And Mr. Swartz.
Senator Kennedy. Those two would be the ones?
Mr. Wray. Right, they are the career prosecutors handling
the investigation.
Senator Kennedy. Let me ask you, because the time--I am
concerned about the Department's commitment to address the
abuses identified by the Inspector General, Glenn Fine, in his
June 20, 2003, report on the treatment of immigrants detained
after 11. In your statement, Mr. Wray, you encourage all
Americans to read the Website, lifeliberty.gov, to learn about,
quote, ``how the PATRIOT Act protects our Nation's security or
protects the personal liberties we so dearly cherish.''
On that Website, the Justice Department has posted an
article by writer Heather McDonald titled ``Straight Talk on
Homeland Security.'' The posted article says the following
about the IG's report: ``Fine report, however measured in its
language. It is ultimately as much a misrepresentation of the
Government's post-9/11 act as the shrillest press release from
Amnesty International. It fails utterly to understand the
terrifying actuality of 9/11. Fine's cool and sensible
recommendations read, frankly, like a joke in light of the
circumstances at the time.''
Do you agree or disagree with Ms. McDonald's
characterization of the IG's report, and why in the world is
this being posted on the Justice Department's own Web, and does
this violate the anti-lobbying law in terms of the PATRIOT Act?
Mr. Wray. Senator, I do not--
Senator Kennedy. Are we using Department of Justice money
for this kind of activity, are we?
Mr. Wray. Senator, I do not administer the Website. I would
say--
Senator Kennedy. First of all, do you agree or disagree
with the characterizations?
Mr. Wray. What I believe is that Inspector General Glenn
Fine is a career professional who, like others, has made
constructive criticism of the Department's efforts, and I
believe that the Department has made a responsible effort to
address those recommendations. I think it is important to note
that, as the Inspector General himself recognized, all of the
detainees in question were held legally. They were all in
violation of the laws of this country, and they were held
legally. And as the Inspector General has also recognized in
another report of his, that illegal aliens, when bonded out as
opposed to detained, abscond at an astonishingly high rate. And
so, it is not surprising that the career agents and prosecutors
working on the matters at the time in the immediate wake of
September 11 felt it appropriate to seek detention, which
again, was found fully lawful by the Inspector General.
Senator Kennedy. I am not going to debate the IG's report,
but why is this article posted on the Justice Department's own
Website?
Mr. Wray. I am sorry; as I said, Senator, I do not
administer the Website. I know there is a lot of useful
information on there. But I cannot speak to the particular
decision to put that particular article on the Website.
Senator Kennedy. Well, just because my time is up, the IG's
report was a detailed and thoroughly substantiated report
issued by one of the Department's most respected attorneys. And
yet, on the date the report was issued, the Department's
spokesman issued a statement declaring the Department made no
apologies for any of its actions or policies.
Mr. Chairman, my time has expired.
Chairman Hatch. Thank you, Senator.
We will turn to Senator Cornyn.
Senator Cornyn. Thank you very much, Mr. Chairman.
Thank you, gentlemen, for being here today. I think some of
the questions that have come up with regard to the detention of
immigrants here under our immigration laws have been raised by
Senator Kennedy and others, and just to be clear, those are
provisions of law that have nothing to do with the PATRIOT Act;
is that correct, Mr. Wray?
Mr. Wray. Yes, Senator Cornyn, the provisions under which
the individuals who are the subject of the Inspector General's
report were detained under the immigration laws and not under
any provision to do with the PATRIOT Act. I appreciate your
flagging that issue, because it goes to a subject that several
members of the Committee mentioned in their opening statements,
as did my colleagues and I, that there is a level of confusion
in the public discourse about what is and is not part of the
PATRIOT Act. The PATRIOT Act, for better or for worse, has
become sort of a shorthand for every kind of complaint or
criticism that everyone would have with respect to anything to
do with terrorism. And I think Senator Feinstein acknowledged
that very persuasively in her statement.
Senator Cornyn. Well, I think we all recognize the
difference between constructive criticism and Congress doing
its important job of oversight and reserving the right to
change our laws if, in fact, the laws we have passed do not
apply or are not being administered in the way that we
intended, perhaps, or we find other gaps that need to be
filled. But I think there is an important difference between
constructive criticism and shooting the messenger.
As I pointed out in my statement, the PATRIOT Act, passed
overwhelmingly by both branches of Congress; was signed by the
President, endorsed by members on both sides of the aisle, as
it should have been, in my opinion. But I am always amazed that
where some refer to such phrases as extreme measures being
taken by the Department of Justice, usually in the persona of
John Ashcroft, in order to perhaps question his motives or
perhaps even vilify him, to criticize the PATRIOT Act, and I
worry not that people criticize but that they do so when
perhaps misinformed of what the facts are, and, of course, that
is the purpose, one of the purposes of this hearing here today.
And just to make one point, another point, clear, has any
provision of the PATRIOT Act, since Congress passed it some 2
years ago, been held in violation of the Constitution, Mr.
McNulty, Mr. Fitzgerald?
Mr. McNulty. I will defer to Mr. Wray. I am not aware of
any, Senator.
Senator Cornyn. Mr. Fitzgerald?
Mr. Fitzgerald. No.
Senator Cornyn. Mr. Wray?
Mr. Wray. No, Senator, none has.
Senator Cornyn. And among the two provisions of the act
that people cite the most often that cause them concerns, and
here, again, I understand why concerns are expressed, but just
to be clear, Section 213 that deals with delayed notification
of search warrants, let me ask Mr. Fitzgerald, is it not true
that that delayed notification of search warrants occurs with
judicial review and approval; is that correct, sir?
Mr. Fitzgerald. Yes, as it did before the PATRIOT Act,
under existing legal authority.
Senator Cornyn. So Mr. Ashcroft, sitting in his office in
the Department of Justice, does not decide the issue sort of
sneak-and-peek search warrants without some independent
judicial officer, some judge who has been confirmed by the
United States Senate after nomination by the President has had
a chance to review it and determine that good cause exists for
issuance of a delayed notification; is that correct, sir?
Mr. Fitzgerald. That is exactly right.
Senator Cornyn. And likewise, under Section 215, which
authorizes searches for business records and other items under
the Foreign Intelligence Surveillance Act, Mr. McNulty, is it
not the case that, indeed, before those searches take place
that Article III judges on the Foreign Intelligence
Surveillance Court, in fact, have to review the application and
approve it?
Mr. McNulty. That is right.
Senator Cornyn. I will tell you one thing that does concern
me and that has sort of come up, and I know a couple of times,
we have talked about immigration. Mr. McNulty, you have
discussed it, and it continues to be a concern, and just most
recently, Senator Craig, I believe, in his Committee on Aging
this morning reviewed a recent General Accounting Office report
that has to do with the issuance of Social Security numbers to
non-citizens. And I believe the figure was, in 2002, some 12.4
million Social Security numbers were issued; 1.3 million of
those were issued to non-citizens, an alarming percentage.
And I believe, Mr. McNulty, you talked about one of the
concerns in the efforts to fight the war on terror that our law
enforcement officials, including your office, is focusing on is
ID document fraud. Could you please just address whether you
would be similarly concerned with the issuance of Social
Security numbers to non-citizens?
Mr. McNulty. Well, I do not have a position on that policy
change, but I certainly am concerned about anything that would
undermine the integrity of identification systems generally
speaking, and I do not know if that would actually cause that
to happen. We are seeing just the widest range of identity
document fraud, of just from birth certificates to Social
Security cards, driver's licenses, you name it. Often, the
vendors provide all of those documents fraudulently for various
prices.
And we also look at Social Security fraud and the use of
numbers either that have been fraudulently established or have
been stolen from someone else. We look at that very
aggressively. We look at those individuals who give those
numbers to obtain commercial driver's licenses or FAA pilot's
licenses and then try to trace back who those individuals are
to prosecute them for that fraud.
So it is a very widespread and significant problem, and I
am not really in a position to comment on that particular
policy change that I know is being debated in many places in
the country.
Senator Cornyn. Well, just as you are concerned about those
who fraudulently produce fake identification for those who are
not entitled to receive that as an official document, would you
be concerned about the U.S. Government, including the Social
Security Administration, issuing Social Security numbers and
cards to those who are not legally entitled to have those?
Mr. McNulty. Well, again, our primary concern from the law
enforcement is to make sure that someone is who he or she says
they are. It is the question of matching up the true identity
with the number or document, whatever it might be. That is more
of the focus we have from a law enforcement perspective rather
than who actually is the possessor of that number. That is a
different question for us.
Senator Cornyn. I understand your very carefully-stated
answer, and I am not trying to get you in trouble with your
superiors or others. But what I am merely trying to point out
is that false identification, whether it is sold by someone who
is in the business of illegally manufacturing those documents,
perhaps, to those who would threaten us and perhaps kill our
citizens, that, I believe, is as much a problem as it is when
the Federal Government, perhaps through neglect, oversight, or
otherwise, issues a Government document which is the primary
identification card for American citizens to people who are not
entitled to them.
And I would say that, you know, the more I hear about how
much of our documents are abused, how much we do not seem to
have a good handle on the number of people who, frankly, are
here in this country illegally and who are under final orders
of deportation, some 300,000 at last count, when we do not know
where they are, or whether it is the fact that perhaps 8 to 10
million people are living illegally in this country now, and we
simply do not know for sure where they are and their purpose
for being here just adds to my concerns about what we need to
do in terms of comprehensive immigration reform.
Because I think until we get a handle on that, we cannot
truly say we have done what we need to do in terms of homeland
security.
Let me just--I know my time is just--
Chairman Hatch. Your time is up.
Senator Cornyn. It is up?
Chairman Hatch. Yes.
Senator Cornyn. Thank you, Chairman.
Chairman Hatch. Senator Feinstein?
Senator Feinstein. Thank you very much, Mr. Chairman. I may
have misspoken in my earlier comments. And for the record, I
just wanted to correct them. I want to be clear that there is
not a sunset on Section 213, which is the delayed notification
provision, also known as the sneak and peek. In addition, I do
not know how it has been used in every instance, but I do not
believe that it would have been used against libraries. It is
obviously Section 215 which the libraries are concerned about,
because it permits the government to seize computers and other
tangible things. It is my understanding from Mr. Ashcroft's
public statement that that section has never been used against
libraries.
Does anyone have a different view of this that is sitting
here?
Mr. Wray. No, Senator Feinstein, you are correct.
Senator Feinstein. Okay; thank you. I wanted to correct
that.
Now, I want to just confine my questions to specifics of
the bill, if I could, or of the act. Section 412 of the act
states that if an alien has been detained solely under this
section because he is a threat to national security but his
removal from the United States is unlikely in the foreseeable
future, the Attorney General may continue to detain him for
additional periods of up to 6 months.
Now, according to a booklet put out by the Justice
Department called the ``USA PATRIOT Act: Myth versus Reality,''
to date, the Attorney General has not used Section 412 but
believes it should be retained for use in, quote ``appropriate
situations.'' Is that true? What would the appropriate
situations be? And if it has not been used, should we keep it
in the act? Because I think this is a cause of some of the
concern.
Mr. Wray or Mr. Fitzgerald, whoever wants to take it?
Mr. Fitzgerald. Sure; thank you, Senator.
First, to my understanding, it is correct that it has not
been used to date, and obviously, but I can tell you that one
of the most vexing problems from the field is how we deal with
terrorist immigrants. Going back 10 years to the first World
Trade Center bomber, the mastermind, Ramsey Yousef, came off of
a plane at John F. Kennedy Airport. My recollection was that he
was one of 30 illegal aliens getting off of that flight. My
understanding is that we have the capacity to only house a
couple of people from that flight. He came off. He had a fake
Iraqi passport with a loosely-fitting photograph in it. He was
wearing a silk suit, puffy shirt, and slippers, and he was
told, basically you are paroled into the country. You are
admitted here because he claimed he needed political asylum
because he feared persecution by Saddam Hussein.
He is then given a document that says, basically, we trust
you to show up at the Federal Building in 6 months for a
hearing. And he comes in; he was represented pro bono by a very
prominent New York attorney thinking that they were vindicating
civil liberties. And he blew up the World Trade Center, and he
left.
The concern I always have with immigration is we have the
person who is sitting at the borders making these decisions
that if they keep everyone out, they are changing the fabric of
our country. If they let someone in who blows something up, it
is on their head. If a person comes in that we do not have a
prosecutable case, and he or she is stopped at the border, at
an airport, and perhaps we have very good intelligence
information that we cannot use--maybe it is a very sensitive
technique; maybe revealing it would burn a source; maybe it
comes from a country that says you cannot use this information
in court.
Yet, they are sitting there at the border. We do not want
to parole them in to let them walk around the country, and it
may well be that they are coming from a country that we would
return them to that would refuse to take them precisely because
they are so dangerous. So we could have a ticking time bomb
landing on our shores whom our immigration policies will not
let us expel; our National security policy will not let us let
them in. In that circumstance, I do not know why, you know, we
need to have the Attorney General have the ability to say I
will invoke that provision if necessary.
Senator Feinstein. Thank you. I want to move on, because I
think you have answered it, really, quite adequately.
The PATRIOT Act also changed the definitions of pen
registers and trap and trace devices to include devices that
track dialing, routing, addressing or signalling information.
And this change allows the tracking of email and Internet usage
rather than just phone calls. The act also requires that pen
registers and trap and trace devices not capture the contents
of any communication. How extensively have you used pen
registers and trap and trace devices to track email and
Internet use? And how does DOJ ensure that these devices do not
capture the contents of any communication?
Mr. Wray. Senator Feinstein, you are obviously correct that
the provision specifically goes out of its way to instruct the
folks on the front lines to avoid the collection of content.
The provision has been used in the investigation, for example,
in the murder of Wall Street Journal reporter Daniel Pearl. It
has also been used in a number of cases involving terrorist co-
conspirators. One interesting non-terrorism case in which it
was very useful was a case in which a man had lured a 13-year-
old girl from her home and then sexually abused her in his home
in Herndon, Virginia. He had emailed an obscene picture of his
victim to another person in another state, and through the use
of this technique, it ultimately led to the rescue of the child
from the individual's home. He has subsequently been sentenced
to 19 years in prison.
As far as the efforts that we take to ensure, as you
mentioned, that content not be collected, my former boss, Larry
Thompson, the former Deputy Attorney General, issued a
memorandum a little while back that was very explicit and went
into detail instructing prosecutors in the field to minimize
the possible collection of content; to refrain from using any
content that was inadvertently collected; and to coordinate
with Main Justice to ensure that we did not have people using
it in an inconsistent or unintentionally irresponsible manner.
Senator Feinstein. To help stop terrorism by disrupting
terrorist financial networks, the act also includes a title,
namely, Title III, which focuses on money laundering, and it
provides for increased information sharing, which was a real
concern that we had, because of the stovepipes that existed.
The provisions in this title would allow suspicious activity
reports received by Treasury to be shared with intelligence
agencies, and also authorize the sharing of surveillance
information between law enforcement and intelligence agencies.
I am really very concerned about this. With Al-Hazmi and
Al-Midhar, I think the absence of that ability to share
information resulted in them not being picked up before 9/11.
So anything you could tell us about how suspicious activity
reports are being shared with the FBI and whether this has
actually aided FBI investigations would be useful and how it is
being shared by the FBI with the rest of the intelligence
community.
Mr. McNulty. I could speak, Senator, to the review of
suspicious activity reports as an initiative within my office
and other offices, I am sure. And it will not go directly to
the heart of the sharing with FBI, but it is connected to that.
We have begun to very actively review those reports.
Previously, they did not really get reviewed simply because of
resources. There were so many being filed, but there were so
few people in the position to be able to review. And now, we
have just made a point of it to review them throughout the
Eastern District of Virginia and to look at opportunities to
either, because of the leads that we can see from the reports
that would lead us to questions about large sums of cash, to
follow up and to use other authorities like civil forfeiture
authorities to deal with that.
That effort to review those reports is done in cooperation
with the FBI, and the FBI field offices have agents working
beside IRS agents and Assistant United States Attorneys in the
review, so that information can be shared, and those leads,
then, will get fed into the counterterrorism or the joint
terrorism task forces and the counterintelligence agents.
Chairman Hatch. Senator, your time is up.
Senator Feinstein. Could Mr. Fitzgerald just quickly--
quickly--
Chairman Hatch. Sure.
Senator Feinstein. --respond?
Chairman Hatch. Sure.
Mr. Fitzgerald. I cannot answer with the level of
specificity you would like, but I can tell you that we formed
recently, about a year ago, a money laundering asset forfeiture
section where I put one of my top lawyers in charge of focusing
on money and the trail and gathering information. We work with
Customs now, ICE, in that area. We work with the Bureau. We
work with DEA. We focus on bulk cash smuggling, which is also a
provision that was in the PATRIOT Act, and we just brought
aboard a retired IRS investigator to work as a financial
analyst, and we are having them work together with a former
terrorism expert who is now on staff.
As to the specific SAR sharing, I cannot give you the
details. I could try to find that out, but we are definitely
understanding that the movement of money and the laundering of
money is key to this battle, and getting all the people
together under sort of one program is part of that, and she has
been sort of crafting a structure.
Chairman Hatch. Thank you.
Senator Kyl?
Senator Kyl. Thank you very much. I was intrigued at a
press conference last week, the Attorney General discussed the
plea agreements that were reached with the members of the
Portland terrorist cell that received quite a bit of publicity,
and specifically, he mentioned the PATRIOT Act as assisting in
the shutting down of that cell.
I suspect--Mr. Wray, this question is for you--but can you
describe how that worked, how the PATRIOT Act assisted
specifically in that particular case?
Mr. Wray. Thank you, Senator Kyl. I would be happy to,
because I think it is a true success story, and it is precisely
the sort of victory in the field that I think illustrates the
use of the Act.
One way in which it assisted is the way in which we have
already heard so much about in a more general sense, which is
the information sharing provisions. The information sharing
between law enforcement and intelligence that the Act provided
in that particular investigation allowed a really unprecedented
level of coordination between the law enforcement criminal
investigators and a parallel intelligence investigation.
One of the things that the PATRIOT Act helped us do, for
example, was find and arrest one of the defendants, Ahmed
Bilal, who was a fugitive. It also helped us to determine when
was the precisely correct moment to take down the criminal
investigation--that is, when to go overt, as we in the field
tend to call it. One of the ways we were able to calibrate that
was by monitoring the ongoing intelligence investigation, which
we could now do. We did not have the wall that Mr. Fitzgerald
described as existing before the PATRIOT Act. So that was of
tremendous value.
In addition, Section 220 of the PATRIOT Act, a different
provision, which provides for nationwide search warrants of
ISPs, or Internet service providers, was useful in that
particular case because the Portland judge, who was the judge
most familiar with the case, was able to issue the search
warrants for the defendants' email accounts from providers in
other districts, which dramatically sped up the investigation
and reduced all sorts of unnecessary burdens on other
prosecutors, agents and courts.
The last way is the way to which I alluded briefly in my
opening remarks, which is that one of the defendants, in a
conversation with an undercover FBI informant, complained that
he was not getting the financial support he was looking for,
because the PATRIOT Act was chilling people's willingness to
send his organization money.
So for all of those reasons, we think the PATRIOT Act was
very useful in that particular investigation.
Senator Kyl. Thank you. Is that the fellow--he did not
refer to the PATRIOT Act. He just said that law that Bush
wrote. Is that the quotation that I have seen?
Mr. Wray. That is right. His name is Jeffrey Battle, and he
complained about that law that Bush wrote, which he said
prevented people from giving him the support that he needed.
Senator Kyl. Right; this was in a phone call, I guess, that
was picked up between he and one of his cohorts; is that
correct?
Mr. Wray. It was with an FBI informant.
Senator Kyl. Yes; well, that was good news.
Now, did you mention--was it Section 220 that you just
referred to or 219 on the nationwide search?
Mr. Wray. In this particular case, Section 220--
Senator Kyl. Okay.
Mr. Wray. --the one for--
Senator Kyl. Okay; well, I wanted to also ask you about
Section 219, which permits the issuance of nationwide search
warrants in these terrorist investigations, and I wondered how
you could describe the benefit to the issuance of a nationwide
search warrant as opposed to going to the District judges where
the property is located.
Mr. Wray. In general, having a multidistrict criminal
investigation, as many, maybe even most, terrorist
investigations are, will require the execution of search
warrants in districts in a number of locations. And in the pre-
PATRIOT Act environment, it is not to say that we could not get
search warrants, but in effect, you could have a situation
where an investigation that was primarily grounded, for
example, in Mr. McNulty's district, might require the execution
of a search warrant in Mr. Fitzgerald's district. In the pre-
PATRIOT Act environment, pre-Section 219, Mr. McNulty would
have to have one of his lawyers hunt down somebody in Mr.
Fitzgerald's office, get him up to speed on what the
investigation was about, find an agent there unless the agent
working in Mr. McNulty's district was going to fly all the way
out to Chicago to do it, then go find a magistrate judge in
Chicago, walk through the whole process with that judge, so you
would have sort of just those two districts. You would have
twice as many prosecutors, twice as many agents, twice as many
judges all to get a search warrant that, but for geography,
could easily have been done out of the one district responsible
for the matter. And so, Section 219 has been a tremendous help
in that regard.
Senator Kyl. Mr. Chairman, I just want to make an
observation. I think of Paul Charleton, who I suspect all three
of you know, the U.S. Attorney for Arizona, who has been before
this Committee before, and I happen to know Mr. McNulty, and I
have been very impressed with Mr. Fitzgerald. And it just
strikes me that following on some of Senator Cornyn's comments
that those who attempt to denigrate the PATRIOT Act and
sometimes personalize it to Attorney General Ashcroft really
need to be thinking about the service that these three
gentlemen and people like the U.S. Attorney in Arizona, Paul
Charleton, have provided, to their country in aid of the
protection of our freedoms and helping to provide our safety.
I think we owe a debt of gratitude to these people and all
of the folks that they work with for assiduously adhering to
the law, upholding the rule of law, but helping us to maintain
our freedom by going after truly bad people. And these
sometimes rather flippant accusations and expressed concerns
about the law that we have passed here almost unanimously and
sometimes seemingly derogatory references to the Attorney
General I think do not do justice to the hundreds and hundreds
of people who work for or with the Attorney General who do
their jobs every day, who serve the public with great
distinction, and I am pleased that these three gentlemen could
be before us today, because I think it puts a face to the
people who are doing this job for us, and I want to express my
appreciation to each of you and ask you to please pass that
sentiment on, because I think we all share that sentiment here,
to those who work with you, because sometimes, it seems kind of
lonely. You seem like you are getting beat up. It is not your
fault. You are trying to do your job, and you are doing it for
all of us.
And I would like to have you convey that to your
colleagues.
Thank you, Mr. Chairman.
Chairman Hatch. I second those remarks.
Senator Feingold?
Senator Feingold. Mr. Chairman, first, I would like to make
one clarification for the record. In his written testimony, Mr.
Wray implied that this Committee passed the PATRIOT Act. There
were, of course, discussions between the administration and
some members of this Committee, especially the Chairman and the
ranking member, but this Committee did not mark up and pass the
legislation. The bill went straight to the floor only a few
weeks after being sent up to us.
And I would just quickly respond a bit to what Senator Kyl
just said, first agreeing with regard to my tremendous
appreciation for your service to our country and the fact that
you are working on the top priority, which is to stop people
from committing terrorist acts against Americans.
But I do have to say, Mr. Chairman, that the flippant
remarks did not begin with those criticizing the USA PATRIOT
Act. It began with remarks of people like the Attorney General
suggesting that anyone who questioned the act was somehow
aiding the terrorists. That is what started this kind of
reaction in this country, and frankly, generated fear.
My goal here is to take this down a few notches. I am very
struck by Mr. Wray's answer to the question: what aspects of
the USA PATRIOT Act have been helpful? You cited three things:
the information sharing, the Section 220 ISPs and the support
for financial organizations, none of which have been at the
core of the concerns that I have raised or groups around the
country have raised. They may be down the list.
But what we have here is sort of two ships passing in the
night, people suggesting concerns about the bill, and then, the
reaction is, well, you know, those parts of the bill are not
the ones that have really helped. And it strikes me that there
really could be common ground, as has been suggested by two
members of this Committee that I have joined with, Senator
Craig and Senator Durbin, about fixing the things that are the
most troubling to people. So somehow, we have got to get away
from this USA PATRIOT Act is all good, or it is all bad, and
get down to the facts and the actual situations where we can
fix the bill, in my view. Having been the Senator that voted
against it, I believe it is fixable, and it needs to be done.
Mr. Fitzgerald, in response to a question from Senator
Hatch, you said it can be more difficult under the PATRIOT Act
to get access to library records or credit card records. If you
suspected credit card fraud, you said you can pull out a
subpoena from your drawer. You do not need to go to a court.
But I assume that you are referring to a grand jury subpoena,
correct?
Mr. Fitzgerald. Yes.
Senator Feingold. And the recipient in that case, of
course, that means the recipient has the ability to challenge
that subpoena before a judge and is not prevented from
disclosing to others that he or she has received a subpoena,
whereas, I think you would agree, under Section 215, a
recipient is prohibited from even disclosing that he or she has
received it, and a judge approves the subpoena request because
a crime has not been committed. So no grand jury would have
been convened.
Section 215 is used in FISA investigations, not criminal
investigations. Was my statement there correct?
Mr. Fitzgerald. Yes, I would just qualify it slightly in
that you can, in certain circumstances, in the right to
financial privacy provision, tell some banks not to disclose
the existence of a subpoena. So if you are looking for business
records for a bank in the grand jury context, you can serve a
subpoena, where, to my understanding, for certain offenses, the
bank cannot disclose the existence of the subpoena to protect
the investigation.
Senator Feingold. But insofar as libraries are concerned,
my statement was correct.
Mr. Fitzgerald. Yes.
Senator Feingold. Mr. Wray, I would like to continue on
Section 215 of the PATRIOT Act. Your written testimony
discussed this provision in the context of library records,
but, of course, it also applies to an FBI request for any
records or tangible things, not just library records. It could
include a request for medical records from doctors and
hospitals, purchasing records from credit card companies or
even membership lists from the NRA, the ACLU, social clubs or
charitable organizations if the FBI alleged that the
information was sought in connection with a terrorist
investigation; is that not right? That is all that has to be
done by the FBI?
Mr. Wray. Under Section 215, in addition to all of the
internal approval requirements, there would have to be a
certification to the FISA judge either that the information
requested was to obtain foreign intelligence information not
concerning a United States person or to protect against
international terrorism or clandestine intelligence activities.
In addition, the statute explicitly, although one could
argue that this was not necessary, but it went an additional
step and preserves First Amendment rights by expressly
providing that the FBI cannot conduct investigations of United
States persons solely on the basis of activities protected by
the First Amendment.
Senator Feingold. Solely on the basis of activities
protected by the First Amendment.
Mr. Wray. That is the language of the--
Senator Feingold. Other than that, my statement of what
kinds of things are potentially obtainable was correct, was it
not?
Mr. Wray. It does cover broad categories of documents, and
that was one of the advantages of the provision.
Senator Feingold. The administration recently disclosed,
and you stated again in your testimony today, that Section 215
has not been used. But the concern that I have is that the
provision, as currently written, presents the potential for
being used in inappropriate ways. If the provision has not yet
been used, what objection does the administration have to
modifying the provision, as some of my colleagues and I have
proposed, to protect the privacy and liberty of law-abiding
Americans?
And, for example, where is the harm in requiring the FBI to
put a little more work in its application for a subpoena to the
court or to put it in prior--that they would have had to put in
prior to the PATRIOT Act, especially where the benefit is, in
my view, greater judicial oversight to protect against
potential fishing expeditions and also, of course, to reassure
the public that the privacy of law-abiding citizens is not
going to be violated?
The administration says it has no interest in the reading
habits or other aspects of the lives of ordinary Americans. If
that is so, why can we not fix this provision, which you have
not even used, in the modest way that we have suggested?
Mr. Wray. Senator, I believe that the provision in question
already requires FBI agents to go further than they would, for
example, in coming to Mr. McNulty or Mr. Fitzgerald or myself
for a grand jury subpoena, so there is a heightened level of
obligation on the part of the agents in terms of the paperwork
and the showing that would have to be made internally and also
to satisfy a judge than would have to happen in a grand jury
context.
The fact that the provision has not been used, I would
submit, is a reflection--and this is true of a number of
provisions--that we try to use these provisions sparingly, only
in those instances where we feel that that is the only tool
that we can use. But it is not hard for me to come up with, for
example, based on the kinds of experiences we go through every
day, examples where it would be extremely valuable to us to
have this provision kept intact.
For example, you could easily have--and this is a
hypothetical based on the kinds of things that come up on a
day-to-day basis at the FBI and the Justice Department and CIA
and other places--you could have a foreign intelligence service
that has a raid in a safe house overseas somewhere and, in the
course of that raid, comes up with records that, for example,
that might be rental car records or job applications or tenancy
documents of some sort. It might even be a library book, for
example, from the D.C. Library.
And it is not unusual for foreign intelligence services in
situations like that to not want to declassify the information,
not want, in sharing the information with our Government, to
let us subject that information to the criminal investigation
process so--
Senator Feingold. What about the modifications that we have
suggested to this Section 215 in my bill and the Craig-Durbin
bill would prevent you from getting at that? I do not think
there is any way in which the requirement of--some showing of
relevance is basically what we are asking for. Obviously, in
that scenario, you would have that. So I am asking again: what
is it about the modifications that we have proposed that will
not satisfy that kind of scenario, your concerns? That is what
we need to get at here, not just have people say that, you
know, the provision is all bad or all good, but how do we
address your legitimate concerns while, at the same time,
requiring what is, in fact, not required right now?
You have suggested that somehow, the judge has to review
this and find some kind of a showing. The fact is that there is
no showing required. All you have to do is assert that it is
sought in connection with, and the judge is basically required
to sign off. It is not a discretionary situation.
Mr. Wray. I am sorry; I would be happy to take a look at
the language that you have proposed, and I am sure the
Department would be happy to get back to you on that. I do
think it is worth noting that no one has identified any
instance in which the provision has been abused, and, of
course, we have already talked about the fact that it has not
been used.
Senator Feingold. It has not been used.
Mr. Wray. That is right. Nor am I aware of any instance in
which anyone has complained of abuse, for example, of a grand
jury subpoena for the same sorts of records. And, of course,
the showing there is far less than is required to--
Senator Feingold. Well, we have already talked about the
difference, and you have admitted the difference, between a
grand jury situation--at least Mr. Fitzgerald did--and the lack
of protections for the person in the other context, where they
cannot discuss it.
Chairman Hatch. Your time is up.
Senator Schumer?
Senator Schumer. Thank you, Mr. Chairman, and I thank the
witnesses for their patience.
As you know, Mr. Wray, I have told you in advance that I
would be asking you questions along this level, and I know that
Senator Kennedy touched on it a little bit, and I appreciate
your answering them rather than just saying we do not know
anything.
Now, just to reiterate: Senator Ashcroft--Attorney General
Ashcroft has not recused himself; is that correct?
Mr. Wray. I believe the Attorney General has said
explicitly that he has kept open all options and, as the
investigation develops, will continue to keep all options open.
Senator Schumer. But as of now has not recused himself.
Mr. Wray. I am not aware of any decision to recuse himself.
Senator Schumer. Okay; now, you mentioned previously that
he is being kept apprised of the role of the investigation, I
think; those were your words. Who is apprising him of this?
Mr. Wray. As the head of the Criminal Division, I am
responsible for keeping both the Attorney General and the
Deputy Attorney General, who I hope will soon be joining us
from your home state--
Senator Schumer. He is a good man.
Mr. Wray. --Mr. Comey, with whom I have had great
experience, as have my colleagues on this panel. I look forward
to working with him. But it is my responsibility to, on major
investigations, of which this is, of course, one, to keep the
leadership informed.
Senator Schumer. Right; so, first, you brief the Attorney
General on what is happening. Are there others who talk to him
as well?
Mr. Wray. I certainly could not speak to everyone who
speaks with the Attorney General. However, I am responsible for
the division which is handling the investigation, and I report
directly to the Attorney General.
Senator Schumer. Has Mr. Dion spoken, to your knowledge, at
all to the Attorney General about this, either at his request
or the Attorney General's request?
Mr. Wray. I am not aware of any such conversations. Mr.
Dion has been told by me, and I have relayed to him the message
from the Attorney General, that this investigation is to be
conducted fairly, impartially, aggressively, and
professionally, consistent with all of the expertise and
experience and track record that Mr. Dion has demonstrated over
his career.
Senator Schumer. I would just simply like to know, and you
can respond in writing, which is the custom of this Committee.
I would ask you to tell me who has the Attorney General talked
to about this investigation other than yourself, particularly
Mr. Dion, anyone else engaged in the investigation. Could you
get me that in writing, please?
Mr. Wray. Well, I would be happy to take a look at your
question. I want to be careful to maintain the confidentiality
of deliberations within the Department, which is consistent
with its practice.
Senator Schumer. I am not asking for the details. I am
asking just for the structure, which I think we are perfectly
entitled to do.
Mr. Wray. I would be happy to walk you through the
structure--
Senator Schumer. Right.
Mr. Wray. --again, which is that Mr. Dion is the Chief of
the Counterespionage--
Senator Schumer. I understand.
Mr. Wray. --Section. He reports to Deputy Assistant
Attorney General Bruce Swartz--
Senator Schumer. Swartz.
Mr. Wray. --who is the deputy over that section and a few
others. Both of them, then, report to me.
Senator Schumer. Right.
Mr. Wray. And then, I report to the Deputy Attorney General
and the Attorney General.
Senator Schumer. Let me ask you this: you keep the Attorney
General apprised. Can you give us some--how detailed is it? How
often does it occur?
Mr. Wray. I do not have a really good way of quantifying
that for you.
Senator Schumer. Do you talk to him every day about it?
Every week?
Mr. Wray. Certainly not every day.
Senator Schumer. Every week?
Mr. Wray. Well, the investigation has only been Pending for
a little while, but I would say again that I think he is kept
apprised to the level consistent with other major
investigations, and again--
Senator Schumer. Could you tell us what that means? Does
that mean that he knows the names of witnesses being
interrogated? How many witnesses are being interrogated?
Whether there is grand jury? Could you answer those?
Mr. Wray. I could not answer those.
Senator Schumer. Why not?
Mr. Wray. I could only tell you that I think the Attorney
General is apprised of the progress of the investigation
sufficiently to fulfill his responsibilities. I would not want
to speculate as to what is or is not in the Attorney General's
head.
Senator Schumer. No, I did not ask that. You are the one
briefing him. Do you mention specific names of witnesses who
might be interviewed? Have you ever done that?
Mr. Wray. Again, I think it would be better for me not to
discuss the deliberations of the Department. I can say that
this investigation is being conducted fairly, professionally,
impartially, and aggressively, consistent with the manner in
which I think you would expect and I think others would expect.
Senator Schumer. Mr. Wray, this is not a typical
investigation, for the obvious reasons that we all know, and I
am not asking you to tell me who. You should certainly not tell
me, even if I should ask. But when I ask you does he get
specific names of who is being interviewed and details of what
those interviews brought about, I think we are entitled to that
answer. In fact, the American people are entitled to that
answer.
Can you again--I am going to ask you once again: can you
tell me if, at any time in your conversations with him, you
have given him names of people who have been interviewed?
Mr. Wray. I think it is fair to say that in the course of
my discussions, I have given him the levels of detail that
would be consistent with any briefing on a major investigation,
and that would, I believe, include names of individuals.
Senator Schumer. Okay; thank you. I appreciate that. And
how about details or general thrust, not specific details, of
what they say?
Mr. Wray. Well, again, I think consistent--
Senator Schumer. I am not familiar with how an associate
Attorney General for the Criminal Division briefs an Attorney
General on these. I am not saying it is the same or different
as any others. So, just, what level does he know? He knows the
names of some people. Does he know that there have more than
one interview? It went for a long period of time? Does he know
whether they were cooperative? Whether this one looks like a
good lead, and this one does not, those types of things?
Mr. Wray. Again, I am not trying to be difficult, but I
think it is hard for me to speak to what the Attorney General
does and does not know.
Senator Schumer. I did not ask that. I asked you what you
tell him.
Mr. Wray. When I brief the Attorney General, I brief him
with the level of sufficient detail for him to understand
meaningfully what is going on in the investigation.
Senator Schumer. Okay; so, he knows the detail--he knows,
not the details, but he knows, to quote you, meaningfully what
is going on in the investigation?
Mr. Wray. I think one way to think of this would be--
Senator Schumer. But that is correct, right?
Mr. Wray. --I am sorry. In the chain of command, with each
ascending level within the Justice Department's hierarchy,
there is a gradually descending level of detail, so that you
have Mr. Dion working on the investigation--
Senator Schumer. Sure.
Mr. Wray. The level of command of mastery of the
investigation, as it comes up from him to the next person,
then, to me and then on up to the Attorney General, gradually
declines with time, as one would expect.
Senator Schumer. Okay, well, I appreciate your letting me
know that, and so, there is meaningful detail and names, and
that does answer my basic question there.
I have another question, and this is do you know about--
many of us have been concerned with some of the delays that
they said, well, we are going to get some documents, et cetera,
and then, got them later; do you know, were there
communications between the White House and the Department of
Justice about the leak before the official evidence
preservation request was made?
Mr. Wray. Senator, I--
Senator Schumer. Are you aware of any?
Mr. Wray. I want to be careful here. It is very important
to me, as I know it is to you, that this investigation be
handled professionally and consistent with--as they say, by the
books. And one of the ways in which we, as career prosecutors,
handle investigations by the books is not to discuss the
details, which is one of the things that you are asking about,
of an active, ongoing investigation.
I can assure you that it has been made painfully clear to
everyone involved that no punches are to be pulled in this
investigation. Anybody who thinks that we are going to be
pulling any punches in this investigation does not know the
lawyers and the agents working on this investigation very well.
Senator Schumer. Okay; let me ask you, though; I am not
asking, again, for, from what I have understood, it is sort of
bad practice; it is not what a good prosecutor would do to sort
of convey ahead of time we are going to ask for these documents
and then ask for them. Usually, they sort of try to go wshht!
and try to get everything that they can. I am not a prosecutor,
so I have had to ask other people. I have never been.
And so, if the people who potentially were investigated
knew ahead of time that their documents would be asked for,
again, that is not professional practice as I understand it,
certainly not good prosecutorial practice, and I think it is
legitimate for me to ask: can you answer that question? Did any
of the witnesses, potential witnesses or people who have become
witnesses since, know that they were going to be asked for
documents before they actually were?
Mr. Wray. Again, I think I have to respectfully submit that
the investigation is being handled, to my knowledge, in every
respect professionally--
Senator Schumer. That does not answer my question.
Mr. Wray. I would like to finish responding if I might. The
prosecutors and agents working on this investigation have been
handling it--in my estimation, based on my experience both as a
prosecutor and as a defense attorney--fully consistently with
all good judgment, expertise, professionalism, integrity and so
forth. I am not aware of any instance in which things have been
handled otherwise, and I believe that the American people can
have full confidence that they are handling it in that fashion.
I know I do.
Chairman Hatch. Senator, your time is up.
Senator Schumer. I would just make one comment, Mr.
Chairman.
Chairman Hatch. Well--
Senator Schumer. First, I would ask unanimous consent that
Mr. Wray be allowed to respond to some questions in writing.
Chairman Hatch. Well, of course. We will keep the record
open.
Senator Schumer. And second, I would just say, at least to
me, the fact that the Attorney General, who is, again, a close
associate of the President's in many ways, knows the details or
knows some of the people who have been called and the general
thrust of what has been asked. I find that troubling, and right
here and now, you can convey it to him--I will--I would urge
that the Attorney General recuse himself. That will satisfy, I
think, the American people.
Thank you, Mr. Chairman.
Chairman Hatch. Senator Durbin?
Senator Durbin. Thank you, Mr. Chairman, and thanks to the
witnesses before the Committee.
Mr. Wray, when the PATRIOT Act came before us, and the
issue of wiretaps came up, a point was made, I think very
effectively, that the wiretap law in the United States had been
written at a time before cell phones and before a lot of other
forms of telecommunication and that if we were going to be
successful in using wiretaps to go after those who were
responsible for 9/11 or those who would do similar things that
we had to reform this law and bring it up to date.
I thought that was a very compelling argument and was one
of the explanations I gave to people who asked me why I voted
for the PATRIOT Act. It strikes me, though, that we have to not
only make certain that our law reflects new technology but also
to do everything we can to make certain that there is no abuse
of the power of the Government to wiretap; specifically, that
innocent people would not have their conversations wiretapped.
In that light, can you tell me why, when it comes to these
roving wiretaps, you believe that it is unreasonable to ask the
Government to identify the target of the wiretap or the place
to be wiretapped?
Mr. Wray. Senator, in the connection with roving wiretaps,
the people who are the subjects of those sorts of investigative
tools are people who, by definition, are those with whom we
have had the most trouble tracking and intercepting. And
therefore, the Government has had considerable concerns about
making sure that the details of and the applications of the
technique in question are kept as confidential as possible in
order not to jeopardize the investigations.
Senator Durbin. So let us get down to the bottom line. If
you are going to wiretap someone, if you are going to tap their
phone, you do not call them in advance and say incidentally,
your phone is going to be tapped. That would defeat the whole
purpose. So the target of the wiretap is certainly kept in the
dark if this is going to be successful.
Why is it unreasonable for the Government to disclose to
the court when asking for a roving wiretap the name of the
person that they want to tap?
Mr. Wray. I would have to look at the particular situation
that you are describing. It is my experience that roving
wiretaps have consistently been handled effectively in
investigations; that they have been used fairly sparingly; and
that they have not been abused.
Senator Durbin. Well, I would just say this: the bill that
we have introduced, Senator Craig and myself, a very unlikely
duo for legislation on Capitol Hill, this is one of the
provisions, and it is beyond me to understand why the
Government should not say to the court Durbin is the one we
want to wiretap. Now, I do not know if it is going to be his
cell phone or his home phone or his office phone, but we are
going after Durbin.
Now, you are not going to tell him that, but the court
ought to know that. Currently, the roving wiretap does not
require that disclosure, that Durbin is the person. And all we
are saying as part of our SAFE Act and revision of the PATRIOT
Act is that that is not an unreasonable thing to do to make
certain that in your quest to get information about Durbin, you
do not pick up Schumer and Feingold and all of the others on
the Democratic side.
So the point I am making here is I do not think this is an
unreasonable thing to do. The point made by Senator Feingold, I
think, is equally valid. When we are talking about subpoenaing
business records or records from libraries or book stores, what
we are asking for the Government to do is perhaps to provide
some specificity to the court so as to avoid subpoenaing
documents of innocent people. Should that not be one of our
goals here, not only to give you the tools of prosecution but
to always measure them against the rights and liberties of
innocent people that may be infringed if the Government goes
too far?
Mr. Wray. Senator, I certainly agree that our efforts in
protecting the lives and liberties of Americans should be
always done fully within the bounds of the Constitution. I
understand that you and Senator Craig have proposed legislation
on the so-called John Doe roving wiretaps that you are
reforming to, and I gather that the Department is in the
process of formulating a response.
Senator Durbin. I sent a copy of it to Mr. Fitzgerald, too,
so that he could see what we were up to, because I announced
this in the City of Chicago, and I would like to go to a
question to Mr. Fitzgerald.
You made a point and a very valid point about the
difficulty you had in prosecuting cases when there was one camp
called intelligence and one camp that was dealing with the
prosecution through the FBI, domestic law and the like. It is a
very important point, and I am glad that, although the PATRIOT
Act may have addressed this, whatever was holding up this line
of conversation and dialogue has finally changed for the
better.
But I want to ask you a question: we heard from the GAO,
and this was the subject of a hearing by Senator Cornyn of
Texas, that nine different agencies still develop and maintain
a dozen terrorist watch lists, including overlapping and
different data and inconsistent procedures and policies on
sharing.
Now, the law that created the Department of Homeland
Security required the Department to consolidate these watch
lists, and the Bush administration has promised that it would
happen, and it has not. So when we talk about the wall between
intelligence and the ordinary prosecution of crime in America,
there are walls that still exist, creations of the bureaucracy
of this administration. Would you concede that point?
Mr. Fitzgerald. Well, I do not know when the bureaucracy
got created. There has been bureaucracy created for a long
time. So I do not want to get into the political--
Senator Durbin. Inherited by this administration, then.
Mr. Fitzgerald. And I do not want to do one of these that
is not my job, but my friend Mike Garcia over at Homeland
Security and his colleagues have to deal with the issues there.
I think that the difference is, all I know is in going about
doing the business of being a prosecutor, what the PATRIOT Act
did for us was tear down the wall where we could not
communicate.
Senator Durbin. I do not want to push you into an area that
may not be your area of understanding and expertise.
Mr. Fitzgerald. And I recognize that there is lots of work
to be done and lots of areas in making sure that we
coordinate--
Senator Durbin. Progress has been made. Tom Ridge is a
great appointment. I think Bob Mueller is doing a fine job.
There is no doubt in my mind about that. But the
interoperability of computers and the sharing of information on
terrorist lists, there is still a wall, and that wall can be
broken down, and it does not take a law, a new law, to have it
happen. It can happen within the administration, and it is too
slow in coming.
Mr. Wray, my last question to you is on this criminal leak
involving Ambassador Wilson's wife. Have you been party to any
conversations with the Attorney General and discussed the
necessity or the possibility of his recusing himself from this
case?
Mr. Wray. Senator, I respectfully cannot discuss the
substance or details of my deliberations with the Attorney
General. I can tell you that the Attorney General has said, I
believe publicly, that he has kept all options open and will
continue to keep all options open, but that in the meantime, he
has directed that this investigation be handled thoroughly,
professionally, and completely. It is an active, ongoing
investigation. And I will say that having seen and known the
prosecutors and agents working on this matter--the lead
prosecutor has 30 years' experience in this area and the lead
agent, who has about the same number of years--that you would
be inspired by their professionalism and work ethic and
integrity.
Senator Durbin. Mr. Wray, we are all students of and
creatures of the law, and we are familiar with two terms:
impropriety and appearance of impropriety, and I think what we
are dealing with here, whether the people on the case are the
very best professionals that the Government could possibly have
involved is just a question, a lingering question, as to
whether the Attorney General is too close to the people who are
being subjected to this investigation. That is the sole reason
for asking for an independent prosecutor, not questioning Mr.
Dion, Mr. Schwartz, yourself or anybody involved in it but the
fact that there is an appearance which lingers over this. There
are statements that have been made by some to diminish this.
Can I ask you: do you consider this criminal leak to be of
a serious nature?
Mr. Wray. Absolutely, Senator. I consider any leak of
classified national security information to be a very serious
matter and nowhere more so than when we are talking about the
identities of the men and women of our intelligence community.
I think that is the spirit with which everyone in this matter,
from top down, has been approaching this matter.
I will say that when it comes to the issues you are raising
about appearance, that I would hope that the American people
could have the confidence that I have in the people working on
this investigation. I will also say that it is difficult for me
to discuss the kinds of issues you are raising, because it
necessarily is based on assumptions about who the targets and
subjects of the investigation are. That is the direction in
which you would then be making judgments about how the matter
should be handled.
Senator Durbin. My thanks to the panel and thank you, Mr.
Chairman.
Chairman Hatch. Thank you, Senator.
I want to compliment this panel. You have sat there and
answered all of the questions and have helped us all to
understand even more how important the work is that you are
doing and, frankly, how important the PATRIOT Act is in helping
you to get the work done for the people of America to protect
us.
There are so many false statements being made against the
PATRIOT Act, and they are generally done by the two extremes:
from the far left to the far right. And it is disgusting to us
who have worked so hard to enact that Act. And the media just
grabs those radical statements as though they are fact, but I
think you have helped to clear away the brush to a degree here
today, to a large degree, and frankly, I think one of the most
telling statements is that the PATRIOT Act has been upheld in
every court of law that it has appeared in so far and with good
reason: had we had the PATRIOT Act, we may never have had, have
suffered 9/11, because we would have had the tools to maybe
catch these people.
Now, that does not mean it is perfect and that we will not
have terrorist acts in the future, but I will tell you one
thing: at least you will have some tools that anybody with
brains, I think, would conclude are important for law
enforcement to have in order to protect this Nation. And I
personally resent some of the misconstructions and false
statements and intellectual babbling that goes on about the
PATRIOT Act, and I think you folks, being on the front lines
have helped us to understand that better than any group that
has appeared before this Committee since we began discussing
the PATRIOT Act.
And a lot of people fail to recognize that the PATRIOT Act
passed 98 to 1 in the United States Senate and virtually
unanimously in the House. So we want to make sure you have the
tools to protect our Nation. We want to make sure you have the
tools to go after these criminals and these terrorists, and we
certainly want to bring the fight against terrorism, the tools
against terrorism, up to the level and dignity of the fight
against violent crime or even pornography and child
molestation.
Those are important areas of the criminal law. Why would we
not elevate the tools for law enforcement with regard to
terrorism to that level? It just makes common sense. But the
laws were not there when 9/11 happened, and I particularly feel
badly about it, because when we put the Hatch-Dole Anti-
Terrorism Effective Death Penalty through in 1996, it was very
disappointing to me that some on the far left and the far right
prevented us from giving you some of these tools that might
very well have protected us on 9/11 and saved upwards of 3,000
lives.
So your testimony here today is very important. Now, we are
going to keep the record open for written questions that must
be submitted within 7 days, and you will have 30 days in which
to respond to those questions. Now, I have agreed that if,
there are further matters arise that we can extend that seven-
day period for asking questions, but basically, we should be
able to ask all of the questions that need to be asked in the
next 7 days, and you will have 30 days to answer those
questions.
I want to thank all three of you. You are heroes to me and
heroes to this country, and we appreciate the good, hard work
that you are doing.
And with that, we will recess until further notice.
[Whereupon, at 1:23 p.m., the Committee adjourned.]
[Questions and answers and submissions for the record
follow.]
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