[Senate Hearing 108-787]
[From the U.S. Government Printing Office]

                                                        S. Hrg. 108-787



                               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 




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


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



                       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.

                       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 
    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 
    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 
    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?

                      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 
    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 
    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 
    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 
    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 
    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.


    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 
    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?

                     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 
    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?

                        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?

                       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 
    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 
    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?


    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 
    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.

                          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 
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator.
    Senator Feinstein?

                      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?

                       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 
    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?

                            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?

                       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 
    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?

                       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 
    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 
    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 
    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.


    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 
    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 
    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 
    Mr. Fitzgerald, we will turn to you.


    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 
    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 
    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?


    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 
    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 
    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 
    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 
    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 
    Chairman Hatch. These are within the United States of 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you.
    Senator Leahy. I will submit other questions for the 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    Does anyone have a different view of this that is sitting 
    Mr. Wray. No, Senator Feinstein, you are correct.
    Senator Feinstein. Okay; thank you. I wanted to correct 
    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 
    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 
    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 
    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--
    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 
    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 
    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, 
    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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 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 
    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 
    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 
    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 
    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 
    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 
    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 
    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 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 
    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 
    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 
    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 
    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