[Senate Hearing 108-482]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 108-482

         AMERICA AFTER 9/11: FREEDOM PRESERVED OR FREEDOM LOST?

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

                           NOVEMBER 18, 2003

                               __________

                          Serial No. J-108-53

                               __________

         Printed for the use of the Committee on the Judiciary



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                       COMMITTEE ON THE JUDICIARY

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


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Craig, Hon. Larry E., a U.S. Senator from the State of Idaho, 
  prepared statement.............................................   255
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah......     1
    prepared statement...........................................   282
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   284
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     3
    prepared statement...........................................   313

                               WITNESSES

Barr, Hon. Bob, a former Representative in Congress from the 
  State of Georgia...............................................     6
Chishti, Muzaffar, Director, Migration Policy Institute at New 
  York University School of Law, New York, New York..............    18
Cleary, Robert J., Proskauer Rose, LLP, New York, New York.......    20
Dempsey, James X., Executive Director, Center for Democracy and 
  Technology, Washington, D.C....................................    16
Dinh, Viet D., Professor of Law, Georgetown University Law 
  Center, Washington, D.C........................................    11
Strossen, Nadine, President, American Civil Liberties Union, New 
  York, New York.................................................     9
Zogby, James J., President, Arab American Institute, Washington, 
  D.C............................................................    14

                         QUESTIONS AND ANSWERS

Questions submitted by Senator Leahy to the witnesses............    57
Questions submitted by Senator Kennedy to the witnesses..........    63
Questions submitted by Senator Biden to the witnesses............    67
Questions submitted by Senator Feingold to the witnesses.........    70
Questions submitted by Senator Craig to the witnesses............    73
Responses of Bob Barr to questions submitted by Senators Leahy, 
  Kennedy, Feingold, and Craig...................................    74
Responses of Muzaffar Chishti to questions submitted by Senator 
  Kennedy........................................................    80
Responses of Muzaffar Chishti to questions submitted by Senator 
  Feingold.......................................................    83
Responses of Muzaffar Chishti to questions submitted by Senator 
  Leahy..........................................................    84
Responses of Robert J. Cleary to questions submitted by Senators 
  Leahy, Kennedy, Biden and Craig................................    88
Responses of Viet D. Dinh to questions submitted by Senator Craig   110
Responses of Viet D. Dinh to questions submitted by Senator Biden   115
Responses of Viet D. Dinh to questions submitted by Senator 
  Kennedy........................................................   119
Responses of Viet D. Dinh to questions submitted by Senator Leahy   121
Responses of Nadine Strossen to questions submitted by Senators 
  Leahy, Kennedy, Feingold, and Craig............................   122
Responses of James J. Zogby to questions submitted by Senators 
  Leahy, Kennedy, Biden, Feingold, and Craig.....................   135

                       SUBMISSIONS FOR THE RECORD

American-Arab Anti-Discrimination Committee, Mary Rose Oakar, 
  President, Washington, D.C. report summary and attachments.....   145
American Library Association, Carla Hayden, Washignton, D.C., 
  letter and attachments.........................................   161
Amnesty International, Stephen Richard, Coordinator, Washington, 
  D.C., letter...................................................   167
Barr, Hon. Bob, a former Representative in Congress from the 
  State of Georgia...............................................   171
Center for Democracy & Technology, Center for American Progress, 
  Center for National Security Studies, Washington, D.C., joint 
  report.........................................................   180
Chishti, Muzaffar, Director, Migration Policy Institute at New 
  York University School of Law, New York, New York..............   219
Cleary, Robert J., Partner, Proskauer Rose, LLP, New York, New 
  York...........................................................   241
Dempsey, James X., Executive Director, Center for Democracy and 
  Technology, Washington, D.C....................................   258
Dinh, Viet D., Professor of Law, Georgetown University Law 
  Center, Washington, D.C........................................   277
Fine, Glenn A., Inspector General, Department of Justice, 
  Washington, D.C., letter.......................................   280
Lawyers Committee for Human Rights, Washington, D.C., report.....   293
Mexican American Legal Defense and Educational Fund, Katherine 
  Cullition, Legislative Staff Attorney, Washington, D.C., 
  statement......................................................   319
Massimino, Elisa, Director, Lawyers Committee for Human Rights, 
  Washington, D.C., statement....................................   327
New York Times, Clifford Krauss, New York, New York, article.....   335
Strossen, Nadine, President, American Civil Liberties Union, and 
  Timothy H. Edgar, Legislative Counsel, New York, New York, 
  statement......................................................   338
Washington Post, Washington, D.C.
    DeNeen L. Brown, November 12, 2003, article..................   355
    November 9, 2003, editorial..................................   357
    Philip Allen Lacovar, November 12, 2003, article.............   358
Zogby, James J., President, Arab American Institute, Washington, 
  D.C., statement................................................   360

 
         AMERICA AFTER 9/11: FREEDOM PRESERVED OR FREEDOM LOST?

                              ----------                              


                       TUESDAY, NOVEMBER 18, 2003

                              United States Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch, Chairman of the Committee, presiding.
    Present: Senators Hatch, Kyl, Sessions, Chambliss, Leahy, 
Biden, Feinstein, Feingold, and Durbin.

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

    Chairman Hatch. Good morning. I want to welcome everyone to 
our second hearing in a series to examine the adequacy of our 
Federal laws to protect the American public from acts of 
terrorism against the United States.
    At the outset, I would like to thank our ranking minority 
member, Senator Leahy, for his continued cooperation in working 
together to examine these important issues. Senator Leahy has 
been a tireless advocate for the protection of our individual 
rights and liberties, as has, I believe, every person on this 
Committee.
    As the Chairman of this Committee, he helped to craft the 
PATRIOT Act into a bipartisan measure which carefully balances 
the need to protect our country without sacrificing our civil 
liberties. Without the leadership of Senator Leahy and the 
support of my fellow colleagues across the aisle, we could not 
have acted so effectively after 9/11 to pass this measure by a 
vote of 98 to 1. I am confident that we will continue to work 
cooperatively in the future as we plan additional hearings when 
Congress returns next year.
    Today's hearing focuses on the issue of our civil liberties 
in the aftermath of the horrific September 11 attacks against 
our people. The unprovoked and unjustified attacks on 9/11 
require us all to take every appropriate step to make sure that 
our citizens are safe. This is the first responsibility of 
Government.
    Thomas Jefferson said, ``The price of freedom is eternal 
vigilance.'' Congress must be vigilant. True individual freedom 
cannot exist without security, and our security cannot exist 
without the protection of our civil liberties.
    There are some who say that the cost of protecting our 
country from future terrorist attacks is infringement upon our 
cherished freedoms. Some have suggested that our anti-terrorism 
laws are contrary to our Nation's historical commitment to 
civil liberties. Well, we disagreed, or we would not have 
passed the PATRIOT Act. However, the fact that we did doesn't 
mean that that is perfect and that it can't be criticized. 
Personally, I think that we have to combine both our civil 
liberties and our National security or we will have neither.
    While we all share this common commitment to security and 
freedom, the question we are examining today is how best to do 
so in an environment where terrorists like the 9/11 attackers 
are able to operate within our borders, using the very freedoms 
that we so dearly cherish, to carry out their deadly plots 
against our country.
    Let me remind everyone that the 9/11 attackers were able to 
enter into our country without the strictures of immigration 
laws, enjoy the fruits of our freedom, secure for themselves 
all the necessary trappings of law-abiding members of our 
society, and then carry out their terrible attacks under the 
radar screen of law enforcement, intelligence, and immigration 
agencies.
    Let me make just one comment with respect to immigration-
related matters. There has been much in the press in recent 
weeks concerning the detention of certain aliens suspected of 
terrorist activities. The Supreme Court will hear a case in 
this area. While this issue is not the central focus of today's 
hearing, important issues have been raised that this Committee 
must wrestle with over the next number of months.
    This hearing will examine our Government's efforts to 
promote our freedoms, not just the freedom to live in a safe 
and security society, but the freedoms that our country was 
founded on and the freedoms that each of us enjoy each and 
every day and, of course, the freedoms that are the lifeblood 
of our very society.
    I am especially interested in hearing from today's 
witnesses about the details of any specific abuses that have 
occurred under our current laws. We have invited five critics 
to ensure that interested parties have ample opportunity to 
express their concerns. I am very interested in listening to 
them.
    At the outset, let us make it clear who is not a witness 
today--Attorney General Ashcroft. At the last hearing, some 
negatively and unfairly commented on the AG's absence, even 
though he was not invited to testify by me. We are planning on 
the Attorney General, FBI Director Mueller, and Secretary Ridge 
to testify early next year. I think that John Ashcroft is a 
good man, and he is doing a very good job as our Attorney 
General.
    At our last hearing, my good friend and colleague, Senator 
Feinstein, made an important point about the dearth of hard 
evidence of specific abuses under current law. We must not let 
the debate fall into the hands of those who spread 
unsubstantiated or outright false allegations when it comes to 
these important issues.
    We will question today's witnesses on specific abuses of 
our laws. We also want to hear their ideas about how current 
law should or can be modified to better protect our National 
security interests, while maintaining our civil liberties.
    I am hopeful we can examine the issue of civil liberties 
today in a responsible manner. This Committee will continue to 
gather all of the facts. We will ascertain whether the 
Government has actually infringed on anyone's civil liberties 
while exercising its authority under current law.
    I want to now turn it over to Senator Leahy for his opening 
statement. After that, I will ask each witness to speak for 5 
minutes and then we will a ten-minute round of questions for 
each member.
    Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Senator Leahy. Well, thank you, Mr. Chairman.
    As you noted, this is the second in our series of oversight 
hearings reviewing America's progress in the fight against 
terrorism. Our focus today is on the ways the administration's 
policies and actions affect the privacy and civil liberties of 
United States citizens, as well as, of course, the rule of law.
    We will examine the implications of secret detentions and 
round-ups based on religion and ethnicity, the implications of 
granting the government more power over our liberties without 
sufficient checks and balances, and the implications of 
government secrecy or stonewalling. It is an ambitious subject 
for one hearing. We all know that we will need additional 
hearings next year on related issues.
    I compliment the Chairman, because we have worked together 
and agreed on the need for a separate hearing to examine the 
administration's discretion to designate certain individuals as 
enemy combatants. I appreciate very much working with the 
Chairman on that.
    Now, as you noted, the Attorney General is going to come 
before us next year. If we don't adjourn this week, I would 
hope that we could actually have him appear this year. There 
was criticism on both sides of the aisle when we learned that 
the Attorney General, who has had plenty of time to make public 
appearances and lobbying appearances around in the country was 
not available to appear. In the 29 years I have been here, I 
cannot remember an Attorney General who has spent less time 
before the Senate Judiciary Committee.
    I do welcome our witnesses today. I thank them for coming. 
It is important for us to revisit the policy decisions we made 
in the PATRIOT Act. As the Chairman noted, it was negotiated 
and passed in the emotional aftermath of the terrorist attacks 
of September 11. I think we have to look beyond the four 
corners of that legislation and we have to examine other 
administration policies and actions that affect the civil 
liberties of the American people in the name of fighting 
terrorism. All of us want to fight terrorism.
    One major area of concern involves the mass arrest and 
secret detentions that followed the September 11 attacks. 
Columnist Stuart Taylor referred to it recently as the 
administration's truly alarming and utterly unnecessary abuses 
of its detention powers. Earlier this year, the Department of 
Justice's own Inspector General reported critically on the 
Department's handling of immigration detainees swept up in the 
9/11 investigation.
    The Inspector General found that the vast majority of these 
immigrants were never linked to terrorism. Rather, they had 
committed only the civil violation of overstaying their visas 
and then found themselves in the wrong place at the wrong time. 
I welcomed the hearing the Committee held on the Inspector 
General's report in June, but I think we also have to hear from 
outside experts, not just administration experts.
    Of course, it is proper for the Government to enforce our 
immigration laws, but when we suddenly see a major shift in the 
way they are being enforced, we have to make sure that the laws 
are not being enforced with regard to the religion or the 
ethnicity of the aliens involved. An unbiased immigration 
policy is not simply the right thing for a great country like 
ours to do, but it is also the best national security policy.
    Along these lines, I am alarmed by recent reports that the 
FBI assisted in the rendition of a Canadian Syrian citizen to 
Syria. He was stopped while changing planes in New York and he 
was sent to Syria with the help of the United States, where he 
was put in a prison and beaten for hours until he confessed to 
attending a training camp in Afghanistan; according to him, 
confessing just to stop the beatings. Whether that is true or 
not, we ought to find out because he says he was held in a cell 
that was 3 feet wide, 6 feet deep, 7 feet high, for 10 months, 
until he was released by Syrian authorities in October.
    Living just less than an hour's drive from the Canadian 
border, I see a lot of the Canadian press. There is no better 
ally we have than Canada. It is our largest trading partner. 
Let me tell you this has given an enormous black eye to the 
United States, and as several administration officials have 
stated in the press, at least anonymously, they have 
acknowledged that they know it gives the U.S. a black eye. It 
seriously damages our credibility as a responsible member of 
the international community.
    When earlier allegations of rendition surfaced, I wrote to 
administration officials asking for guarantees that the United 
States is complying with the United States obligations under 
the Convention Against Torture, something that we have signed 
and ratified. I sent a letter to National Security Adviser 
Condoleezza Rice on June 2 of this year. It was answered by 
Department of Defense General Counsel William Haynes on June 
25.
    I was assured that if the United States should transfer an 
individual to another country, we would obtain specific 
assurances that the receiving country would not torture the 
individual. I wrote a follow-up letter to Mr. Haynes asking for 
greater detail on how our Government is going to get a 
guarantee from another country that if we turn somebody over to 
it, the government is not going to torture that individual. I 
want to know what the assurances are. We never received a 
response, but Mr. Haynes is coming before this Committee in a 
confirmation hearing tomorrow and we will ask him again. I also 
sent a letter to the FBI Director to inquire about the alleged 
role of the FBI in this case.
    I will put my full statement in the record, but I want to 
just touch on two things. They involve certain Government 
powers that are not subject to effective checks and balances to 
ensure against abuse and certain administration policies that 
perpetuate Government secrecy rather than ensure Government 
accountability to the American people.
    When a government is accountable and open, it is a better 
government. When a government is secret and unaccountable, I 
don't care whether it is a Democratic administration or 
Republican administration, it is not as good a government.
    The civil liberties entrusted to each generation of 
Americans are ours to enjoy and defend, but they belong not 
only to us, they belong to the next generation. We are 
benefactors of the freedoms we ourselves have inherited, but we 
are also the stewards of those freedoms. Our children and our 
grandchildren will look back to see whether we were diligent 
when we were tested or whether we sat silent. Others around the 
world, including right now the people of Iraq, will also take 
note of how vigilant we are in defending the freedoms of our 
democracy.
    Our civil liberties were hard-won. We fought a revolution, 
we went through very trying times. But as hard as these 
liberties are to win, they are very easy to lose, and once we 
give them away, they are very difficult to reclaim. Benjamin 
Franklin said, ``Those who would trade their freedom for 
security deserve neither.''
    Hearings like this produce report cards on how well we are 
meeting this test and honoring the trust of the American 
people. So again I thank the Chairman, my good friend from 
Utah, for his attention to these matters, and also colleagues 
on both sides of the aisle for their active and informed 
participation in this important debate.
    I will put my full statement in the record.
    [The prepared statement of Senator Leahy appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you, Senator.
    We are going to start with Representative Barr, who 
currently occupies the 21st Century Liberties Chair for Freedom 
and Privacy in the American Conservative Union. He is a 
consultant to the American Civil Liberties Union. From 1995 to 
2003, Bob represented the 7th District of Georgia in the U.S. 
House of Representatives, serving as a senior member of the 
Judiciary Committee and Vice Chairman of the Government Reform 
Committee, and was an 8-year veteran of the Committee on 
Financial Services. Prior to his service in Congress, 
Congressman Barr was appointed by President Reagan to serve as 
the U.S. Attorney for the Northern District of Georgia from 
1986 to 1990.
    Nadine Strossen is the President of the American Civil 
Liberties Union and a Professor of Law at New York Law School. 
Prior to her current positions, Ms. Strossen practiced law for 
9 years in Minneapolis and New York City. She graduated from 
Harvard College and Harvard Law School, where she was editor of 
the Harvard Law Review.
    We welcome both of you here.
    Professor Viet Dinh served in the Justice Department as 
Assistant Attorney General for the Office of Legal Policy from 
May 2001 until May 2003. Before joining the Justice Department, 
Professor Dinh was Deputy Director of Asian Law and Policy 
Studies at the Georgetown University Law Center. Professor Dinh 
graduated from both Harvard College and Harvard Law School. He 
was a law clerk to Judge Lawrence H. Silberman, of the U.S. 
Court of Appeals for the D.C. Circuit, and to U.S. Supreme 
Court Justice Sandra Day O'Connor.
    James J. Zogby is founder and president of the Arab 
American Institute. He is a lecturer and scholar on Middle East 
issues, U.S.-Arab relations, and the history of the Arab 
American community. Mr. Zogby is a board member of Middle East 
Watch, a human rights organization, and a member of the Council 
on Foreign Relations.
    We welcome you, Professor Dinh, and you, Mr. Zogby, as 
well.
    James Dempsey has served as the Executive Director of the 
Center for Democracy and Technology since 2003. Before working 
at CDT, Mr. Dempsey was the Deputy Director of the Center for 
National Security Studies, and from 1985 to 1994, Mr. Dempsey 
served as assistant counsel to the House Judiciary Subcommittee 
on Civil and Constitutional Rights. It is good to see you 
again.
    Mr. Muzaffar Chishti--I think I am pronouncing that 
correctly.
    Mr. Chishti. Almost correctly.
    Chairman Hatch. Almost correctly? Tell me how to do it 
correctly.
    Senator Leahy. In the ball park.
    Mr. Chishti. Chishti.
    Chairman Hatch. Muzaffar Chishti, okay. I am doing better.
    He is based at the Migration Policy Institute's office at 
NYU School of Law. Prior to joining MPI, Mr. Chishti was 
founder and director of the Immigration Project of the Union of 
Needle Trades, Industrial and Textile Employees, UNITE. Mr. 
Chishti also serves as treasurer of the U.S. Committee for 
Refugees, and is a member of the Coordinating Committee on 
Immigration of the American Bar Association.
    We welcome you, as well.
    Robert Cleary joined Proskauer Rose in June 2002 after a 
lengthy career as a Federal prosecutor. From 1999 to 2002, Mr. 
Cleary served as the U.S. Attorney in two different judicial 
districts, the District of New Jersey and the Southern District 
of Illinois.
    Before being appointed United States Attorney, Mr. Cleary 
was the lead prosecutor in the Unabomber case, United States v. 
Theodore J. Kaczynski, from 1994 until his appointment as the 
Unabomber prosecutor in 1996. Mr. Cleary was the First 
Assistant United States Attorney in the District of New Jersey. 
From 1987 to 1994, Mr. Cleary served as an Assistant United 
States Attorney in the Southern District of New York, a man of 
great experience, and we are delighted to have you here with us 
as well.
    We welcome all of you and we look forward to your 
testimony. We would like you to conclude when the light goes on 
up here. We will give each of you 5 minutes. I am not going to 
be tough about it, but I would like you to try and stay within 
that if you can so we have enough time for questions.
    Bob, welcome back to the Congress. We are glad to have you 
here.

STATEMENT OF HON. BOB BARR, A FORMER REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF GEORGIA

    Mr. Barr. Thank you, Chairman Hatch. It is a distinct honor 
to be here today with you and your colleagues on both sides of 
the aisle, particularly my dear friend from Georgia and former 
House colleagues, Saxby Chambliss, who I know is distinguishing 
himself in this body as he did in the former body in which I 
had the honor of serving with him. I appreciate the invitation 
extended to me by the entire Committee to be here today with 
such a distinguished panel of witnesses.
    The bipartisan approach reflected by both the Chairman and 
the ranking member's remarks and the work of this Committee is 
also reflective of the bipartisan approach of those of us who 
have expressed some concerns, not just with the PATRIOT Act, 
but with the whole panoply of government programs and 
regulations, including the PATRIOT Act, including CAPPS II, 
including TIA and TIPS, and so on and so forth.
    It is bringing together citizens in this country, both 
those in the law as well as citizens not steeped in the law, 
who are concerned about their civil liberties in a way that I 
think is unique and very healthy in America. I very much 
appreciate the Chairman's indication that those of us who have 
expressed some concerns with the PATRIOT Act and Government 
programs are not doing anything un-American at all, that this 
is very much a part of the fabric of how we come up with the 
very best product, the very best laws, and the implementation 
of those laws in this country.
    I would also like to thank on the record today Attorney 
General Ashcroft and the entire Department of Justice. They 
have been faced over the last 2 years with challenges that are 
unique in our history. While I and some others find some 
substantive fault and have some disagreements with some of the 
provisions of these Federal laws and how they are being 
implemented, I know I don't, and I don't think any of us 
certainly on this panel and in America, find fault with the 
motivation of the Attorney General and the perspective that he 
brings. We are all trying to do the right thing by America. We 
simply have some disagreements on exactly how we need to get 
there.
    I would appreciate my written remarks being included in 
their entirety in the record, Mr. Chairman.
    Chairman Hatch. Without objection.
    Mr. Barr. Without going into all of that, being very 
mindful not only of the Committee's time constraints as well as 
the considerable background that the Committee has, which is 
far greater than mine, I will let that speak for itself and, if 
I could, just take a couple of moments to address one point 
that the Chairman made at the beginning of his remarks, and 
that is so-called hard evidence about abuses.
    Part of the problem, of course, Mr. Chairman, with coming 
up with what traditionally might be thought of as hard evidence 
of abuses--that is, actual cases in which the Government has 
abused the powers in the PATRIOT Act or other laws--is made 
necessarily difficult because of the secrecy, of course, that 
surrounds it.
    So holding those of us who have expressed some concern and 
some criticism of the PATRIOT Act and its implementation for 
failure to come up with a range of so-called hard-evidence 
actual cases is very difficult, if not impossible, in most 
instances because we don't know. Certainly, at this point some 
of these cases are still working their way through the court 
system and they are surrounded by this aura of secrecy, which 
is a problem with the entire PATRIOT Act and this approach.
    I do think, though, Mr. Chairman, that there is some hard 
evidence out there, hard evidence when you talk to both 
religious and political as well as social activist groups who 
feel very properly and very legitimately and very realistically 
that this law and the other Government programs and policies 
are having a very pronounced and very palpable chilling effect 
on their willingness, their ability to express their views in 
ways that heretofore have been not only appropriate, but 
accepted forms of expression in this country.
    I think also, Mr. Chairman, there are a number of instances 
of so-called fishing expeditions on which the Government has 
gone. There was one written about just yesterday in the Atlanta 
Journal Constitution that caught my attention, a case both from 
Virginia as well as with some aspects down in Georgia that are 
being handled through the court system.
    According to the newspaper accounts that I saw, there is 
very clear evidence that this is an example of a fishing 
expedition where the Government is using one particular power 
under the PATRIOT Act, and that is the broadened national scope 
of subpoenas to gather evidence in other districts around the 
country from individuals and organizations in other parts of 
the country against whom the Government has no evidence even 
remotely approaching probable cause that there is a connection 
between those individuals and corporations and terrorist 
activity, or even criminal activity in the first place. So I 
think we are seeing evidence of abuse of the PATRIOT Act in the 
sense that we are seeing these fishing expeditions.
    I do think also, Mr. Chairman, that there already is some 
very serious damage being done to the fabric of the Fourth 
Amendment in these various programs, such as some under the 
PATRIOT Act, CAPPS II, TIA, and other programs with which the 
Chairman and the Committee are very well aware, in which we now 
seem to be allowing the Government to gather evidence on 
citizens and other persons lawfully in this country without any 
of the traditional limitations, the traditional burdens which 
the Government has to surmount such as probable cause and 
reasonable suspicion. I think if we continue down that road, it 
will do very serious permanent damage to the Fourth Amendment.
    I think also, finally, Mr. Chairman, there is very clear 
evidence that some citizens and others, again, lawfully in this 
country, exercising their right to travel, is being arbitrarily 
abused, arbitrarily denied because of the exercise of some of 
these powers.
    In that regard, I know the Committee has concerns not just 
about the PATRIOT Act, but about some of these other programs 
that are very tangibly in terms of hard evidence infringing and 
denying people some of the basic liberties, such as the right 
to travel interstate, that have heretofore been protected 
activities in this country.
    So I think, Mr. Chairman, in response to your very 
legitimate concern--sort of show us the beef, where are the 
problems, are these very real problems or are they theoretical 
problems--I think that they are not theoretical problems. And 
as time goes on and these cases work their way through the 
court system, as hopefully some of the secrecy surrounding 
these problems is stripped away in those court proceedings, it 
will become even more apparent that we are indeed embarked on, 
at least in some respects with regard to the PATRIOT Act and 
these other Government powers since 9/11, a very, very slippery 
slope.
    I know the Committee shares the concerns of us as citizens 
to make sure that we correct that. Even those of us such as 
myself, and perhaps many on this panel that voted for the 
PATRIOT Act, certainly have some concerns about it, how it is 
being implemented, and how it is also being implemented in the 
context of all of these other things that the Government is 
doing that need to be addressed, need to be brought more back 
into balance.
    I appreciate the opportunity to both submit a written 
statement, provide this oral statement, and answer whatever 
questions the Committee might have today in this very important 
endeavor.
    [The prepared statement of Mr. Barr appears as a submission 
for the record.]
    Chairman Hatch. Thank you, Mr. Barr.
    We will turn to Ms. Strossen.

    STATEMENT OF NADINE STROSSEN, PRESIDENT, AMERICAN CIVIL 
              LIBERTIES UNION, NEW YORK, NEW YORK

    Ms. Strossen. Thank you so much, Chairman Hatch and Senator 
Leahy and other distinguished members of this Committee. I am 
very honored to be before this Committee again. As I reminisced 
with Chairman Hatch before we started, my first such honor was 
more than 11 years ago, astoundingly, to testify on an issue 
that might seem very different, but I think actually has a lot 
in common. It was in defense of something called the Religious 
Freedom Restoration Act.
    What it had in common with the testimony we are presenting 
to you today is that that, too, was supported by an incredibly 
broad and diverse coalition entirely across the political 
spectrum, including Chairman Hatch himself, who was very 
gracious and courteous.
    I think the broad coalition in support of the reforms that 
we are asking for is illustrated very dramatically by the fact 
that I am not the only witness here this morning on behalf of 
the American Civil Liberties Union. Bob Barr is testifying on 
behalf of the American Civil Liberties Union and the American 
Conservative Union.
    I was struck as I looked at the transcript of the last 
hearing that this distinguished Committee had on October 21 on 
these issues that Senator Hatch and others indicated that those 
who are supporting reforms and who are criticizing some of the 
overreaching post-9/11 are the political extremes, the right 
and left. I think that is not true. I urge you to look at the 
list of 180-plus citizens organizations who support our 
coalition, right, left and center, and many non-partisan 
organizations, everything from the League of Women Voters to 
many mainstream religious groups.
    I want to also emphasize that the positions we are taking 
are not extreme. The positions we are taking are, first of all, 
looking at every provision of every measure individually. We 
are not wholesale saying, ``Repeal the PATRIOT Act, take away 
all executive orders''. No.
    We are simply saying some of these exceed the basic 
constitutional tests--and I will put on my constitutional law 
professor hat here--namely does this measure really maximize 
national security with minimal costs to civil liberties? That 
is the substantive test. If we can enhance safety to the same 
extent with lesser costs to civil liberties, then that is what 
we should do, and that is what many of the reform measures 
would do.
    The second test is a procedural one. Do these measures 
adhere to that fundamental core concept pervading our 
Constitution of essential checks and balances? And here, too, 
too many of the measures that have been implemented post-9/11 
have consolidated power, unreviewable power in the executive 
branch of Government, have ignored the oversight 
responsibilities of this great body, and have eviscerated the 
important power of judicial review. Again, it is restoring the 
checks and balances, not taking away the executive branch 
power, that we are seeking to do.
    I am going to cut right to the chase of the two questions 
that Senator Hatch posed at the outset. Number one, hard 
evidence of factual abuses. I echo and endorse everything that 
my colleague, Congressman Barr, has said. I would just like to 
add a couple of points here.
    Number one, my written testimony, which I hope will be 
incorporated into the record, on pages 12 to 13 gives specific 
examples of abuses, including specifically under the PATRIOT 
Act. I did see Senator Feinstein's e-mail that she referred to, 
or the e-mail from a staff member of the ACLU that she referred 
to, and I am very proud of that e-mail.
    This was referred to in the last hearing, in which Senator 
Feinstein asked a very specific question: Do you have specific, 
hard evidence of actual abuses of the PATRIOT Act in 
California? And our staff member correctly said we do not have 
specific evidence of that particular type of abuse. I think 
that is completely responsible, and completely inconsistent, by 
the way, with those who have accused their critics of being 
hysterical and overblown.
    We do have specific evidence of misuse of the PATRIOT Act 
and many of the other post-9/11 powers. I think the most 
damning abuses were--and the most damning documentation was, of 
course--in the report of the Inspector General which Senator 
Leahy has referred to.
    Specifically with respect to the PATRIOT Act, I want to say 
that what the ACLU has the most experience with, and has been 
the basis of a constitutional challenge that we brought, is 
Section 215 of the PATRIOT Act. Its mere existence--Chairman 
Hatch and others its mere existence has already enormously 
eviscerated the precious First Amendment rights of people in 
this country. It doesn't even have to be used, let alone 
abused.
    I would be happy to show you the briefs and affidavits that 
we have filed in that lawsuit, heartbreaking testimony from 
patriotic individuals who say that they have stopped going to 
worship services; they have dropped out of mosques, in 
particular. They have stopped expressing their political views 
because they are afraid that this power can be used against 
them.
    I am very struck by the fact that the Attorney General, of 
course, has said that he has not found it necessary to use this 
power in order to pursue the war on terrorism. I also noted 
from the last hearing that you asked the very pertinent 
question of the Government officials, law enforcement officials 
who were testifying, which of the new powers that they had 
gotten post-9/11 were helpful and important to them. And none 
of the powers that any of those witnesses listed--as Senator 
Feingold noted, not a single one of them included Section 215 
or the others that we and other critics are objecting to. So I 
think this, like RFRA, could be very constructively an area 
where there are common concerns and a meeting of the minds.
    Very quickly with respect to Chairman Hatch's second 
question, what are we asking for, that is laid out specifically 
on pages 15 to 16 of my written testimony. High among them is 
one of the modest reform measures that has been endorsed by 
broad bipartisan leadership, including on this Committee 
Senators Craig, Durbin and Feingold.
    What these provisions would do is return the law closer to 
where it was pre-PATRIOT Act, completely consistent with the 
testimony that you heard from the law enforcement officials at 
your last hearing. None of these modest reforms--not repeals--
would interfere with the powers that they have said are 
necessary for them in order to protect us all from terrorism.
    So I very much appreciate this opportunity and look forward 
to continuing to work together constructively.
    [The prepared statement of Ms. Strossen appears as a 
submission for the record.]
    Chairman Hatch. Thank you.
    Professor Dinh.

    STATEMENT OF VIET D. DINH, PROFESSOR OF LAW, GEORGETOWN 
            UNIVERSITY LAW CENTER, WASHINGTON, D.C.

    Mr. Dinh. Thank you very much, Mr. Chairman, Ranking Member 
Leahy, members of the Committee. Thank you very much for the 
honor and the pleasure of being here to talk about this very 
important topic. I have a written statement which I ask to be 
submitted for the record.
    Chairman Hatch. We will submit all written statements as 
though fully delivered, so you won't have to say that anymore.
    Mr. Dinh. Thank you very much, Mr. Chairman. I would like 
very quickly to go through some of the concerns that the 
Ranking Member and my colleagues have expressed, as well as 
some concerns that have been expressed in the public debate.
    I first want to echo Congressman Barr's bipartisan 
statement that we are all in good faith trying to discover the 
best way to protect the civil liberties and security of America 
at a time when these things are under threat. I know that no 
one in the Department of Justice, no one in the administration, 
no one at this table or other participants in this debate 
question the patriotism of those who engage in this debate. 
Governance is not a static process; it is a dynamic process, 
and I appreciate this Committee taking its time to do this 
valuable work in light of the threat of terror threatening our 
civil liberties.
    I want to go through my opening statement by converting my 
prepared statement to track the constitutional amendments that 
seem to be of concern. I want to start first with the First 
Amendment, and then the Fourth Amendment, and then conclude 
with the Fifth and Sixth Amendment regarding the right to trial 
by jury.
    With respect to the First Amendment, much noise and much 
criticism has been directed at Section 215 of the USA PATRIOT 
Act. As members of this Committee well know, Section 215 
translates into the national security context, the Foreign 
Intelligence Surveillance Act context, powers that preexisted 
Section 215, powers that the grand jury has always had since 
time immemorial and indeed can be exercised by prosecutors and 
investigators with much lesser checks than those that this 
Committee and Congress have afforded in Section 215.
    I do not doubt that individual activists and organizations 
may well feel a chill to their First Amendment activity. I do 
not doubt that these fears are sincere. I am also very 
confident they are not founded because they really should be 
addressed to preexisting criminal processes that preexisted 
Section 215. And indeed it is a legitimate question whether or 
not to extend to other contexts the protections of Section 215 
and elsewhere in the Foreign Intelligence Surveillance Act that 
do not permit Government officials to target First Amendment 
activities by the use of these powers. That is a legitimate 
debate.
    Indeed, I note here that in the Attorney General's 
revisions to the Attorney General guidelines which he published 
last June, June of 2002, at page 7 he instituted 
administratively such a restriction that investigations not be 
targeted solely at First Amendment activities, thereby 
extending the same protection that Section 215 affords to 
Foreign Intelligence Surveillance Act authorities to general 
criminal processes.
    I do think that questions regarding confidentiality and 
secrecy are very weighty ones in our constitutional structure, 
including in our criminal processes. That is why I welcome the 
very significant restrictions that Section 215 puts on law 
enforcement authorities, including the accountability 
provisions that the Department of Justice is under obligation 
to report to Congress every 6 months.
    With respect to the Fourth Amendment, Congressman Barr has 
noted that there has been significant concern regarding the USA 
PATRIOT Act. And much more importantly, preexisting authority 
in criminal law and foreign intelligence surveillance may have 
an undue burden on our constitutional protection against 
unreasonable searches and seizures. These are significant 
concerns.
    One of the commentaries that I have on the current debate 
is that the focus on what are considered to be politically-
charged or sexy issues, like Section 215, like the delayed 
notice provisions, has drowned out legitimate conversation and 
debate regarding how we go about protecting the Fourth 
Amendment even as we use these very important tools in the 
Foreign Intelligence Surveillance Act.
    For example, Section 218 of the USA PATRIOT Act makes a 
very critical change to the Foreign Intelligence Surveillance 
Act to allow better communication and coordination between law 
enforcement and intelligence. I don't think anybody, including 
those at this table and other critics, have questioned that 
underlying change in law.
    Many questions, however, are raised by that change in law, 
including what exclusion procedures would be applicable. Are 
they Fourth Amendment exclusion procedures, are they FISA 
exclusion procedures, or are they procedures under the 
Classified Information Protection Act? These are the questions 
that the courts, in particular the district court of Florida in 
the Sami Al-Arian case, are trying to work out and ultimately 
the courts will answer. But these are the kinds of questions 
that I think the public debate should focus on and this 
Committee will focus on in the near future in order to 
ascertain what, if anything, we can do in order to better 
protect the Fourth Amendment.
    Finally, a note about the Fifth and Sixth Amendments and 
the right to trial. There has been much talk regarding the 
detention of Mr. Jose Padilla and also Yasser Hamdi. Focus has 
been put on the Fifth and Sixth Amendment right to trial and 
how these rights are not being afforded to these particular 
individuals.
    Also of relevance, of course, is Article II of the 
Constitution, which grants to the President the commander-in-
chief authority. It is under this authority that the President 
has sought military detention of these individuals, just as 
Presidents in other times of war have detained battlefield 
detainees in order to incapacitate them from doing harm to our 
men and women fighting on the battlefield.
    In this war against terror, the terrorist has chosen the 
battlefield not to be restricted to Afghanistan or Iraq, but 
indeed expanding to Morocco, Saudi Arabia, Turkey and, of 
course, on September 11, the World Trade Center and Washington, 
D.C. In such a circumstance, I think it is an easy question, 
not particularly an easy question, but I think it is only a 
small step to extend the President's authority to detain 
battlefield detainees outside the traditional battlefield.
    A much harder question, one that I think the Supreme Court 
will ultimately answer--and frankly I do not find much support 
in the cases to provide the answer--is whether or not the Court 
will defer to the Executive when there is nothing to defer to; 
that is where there are no alternative processes, either 
military, executive or other types of processes, as we have 
seen in the past with the In Re Quirin or Ex Parte Milligan 
cases. Those are the questions that the Second Circuit grappled 
with yesterday. I think ultimately the Supreme Court will 
answer those questions.
    I would note, in conclusion, however, that it is not the 
Court alone that should be answering these questions, and it 
certainly should not be the Executive alone. But this body, 
this Committee, has a very significant voice in the 
constitutional debate, and I sincerely hope that out of these 
hearings and out of the increased attention paid to these 
issues would be a Congressional voice with respect to these 
very, very important issues.
    Thank you very much.
    [The prepared statement of Mr. Dinh appears as a submission 
for the record.]
    Chairman Hatch. Thank you, Professor.
    Mr. Zogby.

     STATEMENT OF JAMES J. ZOGBY, PRESIDENT, ARAB AMERICAN 
                  INSTITUTE, WASHINGTON, D.C.

    Mr. Zogby. Thank you, Mr. Chairman. Thank you to you and to 
the Ranking Member and to the members of the Committee for 
convening this important session.
    Much has been done in the last 2 years to combat the threat 
of terrorism. We have had significant accomplishments. We 
deposed the regime in Afghanistan that was hosting those who 
committed damage to our country. We created the Department of 
Homeland Security. We have taken steps to enhance airport and 
border security and we have improved information-sharing 
between intelligence and law enforcement agencies.
    Arab Americans are proud to have played a part in these 
efforts. We serve on the front lines of the war on terrorism as 
police officers, firefighters, soldiers, FBI agents, and 
translators. My institute has worked with Federal, State and 
local law enforcement in efforts to secure the homeland.
    We helped recruit Arab Americans with needed language 
skills and tried to serve as a bridge between law enforcement 
and my community. Recently working with the Washington Field 
Office of the FBI, my institute helped create the first Arab 
American FBI Advisory Committee. It is now serving as a model 
for other similar efforts around the country.
    As someone who has spent my entire professional life 
working to bring Arab Americans into the mainstream of American 
political life and to build a bridge between my country and the 
Arab world, I am concerned about the direction, however, of 
some of the efforts to combat the terrorist threat and the 
impact that some of these initiatives are having on our country 
and on my community.
    I am going to leave the constitutional issues to those more 
qualified to speak about them. But as a professor myself, a 
professor of religion, and someone who has written extensively 
on the Middle East and traveled there and worked in my 
community here, I want to talk about the impact that these 
initiatives are having not only on civil liberties, but also on 
the very well-being of my community here and on our image 
overseas.
    Specifically, I speak of a number of initiatives that have 
been launched by the Department of Justice, many of which went 
beyond the PATRIOT Act. First, there was the dragnet that 
rounded up over 1,000--we don't know the number because they 
stopped giving it when it got too high--in the aftermath of 9/
11.
    What troubles me was not the fact that some were arrested 
and charged with immigration violations. But it was the 
deliberate conflation and confusion of those arrests with the 
war on terrorism, creating the impression that hundreds, if not 
all of these, somehow were wrapped up in the war on terrorism.
    The same occurred when the call-up of 5,000 and then 3,000 
occurred. The notion was, in other words, that somehow this was 
not just a cleanup operation for an INS system that is in 
serious trouble, but somehow it had to do with the war on 
terrorism, creating enormous fear in my community and 
suspicious about my community.
    This was, I think, in many ways exacerbated by the poor way 
that these programs were implemented. For example, when letters 
were sent out, in many instances citizens got letters, creating 
even greater fear as to what this program was about. The same 
happened with NSEERS, resulting in not only the registration of 
individuals, but fear to go and register, and that fear was 
compounded when many of those who actually abided by the law 
and registered ended up being detained and in some cases are 
now scheduled for deportation.
    These programs combined have harmed individuals and their 
rights. They have created fear. They have also promoted 
suspicion, as many of our fellow Americans view as a result of 
these programs that have been based on profiling recent 
immigrant Arabs or Muslims as collectively a threat to our 
country. And when those of us who were in leadership roles in 
my community criticized the programs and how they were being 
implemented, we found immediately how great the fear and how 
great the suspicion because we became subject ourselves to 
death threats.
    In fact, it was ironic that the FBI had to go and 
investigate people who threatened me because I was criticizing 
some of the programs initiated by the Department of Justice. 
And these programs serve to break trust between ourselves and 
the FBI. In fact, the FBI would call us and criticize these 
very programs because they were concerned that they were 
breaking down the community policing relationship that we, both 
of us, were working to establish.
    Equally significant is the impact that these programs have 
had on our nation's image overseas, and I think is significant 
because the war on terrorism requires partnership, requires 
trust, and requires a good American relationship with countries 
that we need to be our allies.
    Visitors are down. Student and business visas are down. 
Doctors, and even Fulbright scholars, are down. There is fear 
of coming to the United States, and coming to the United States 
has been so important in the past for building the 
relationships necessary to help transform not only the way 
countries view America, but how those countries advance and 
move forward.
    There is also a threat to our image in terms of how we have 
projected ourselves to the world. I had a debate with a foreign 
minister of an Arab country and I was arguing with him about 
the way he was treating prisoners in his own country--trial 
without due process, no charges given, no access to attorney, 
et cetera. After 9/11 he saw me at one point and said, you 
know, you are doing exactly what you have accused us of doing. 
That hurt me as an American and I think it hurts our country.
    If the President is right and reform in Arab countries is 
necessary to combat terrorism, then we must acknowledge that 
with our post 9/11 behavior, we have stopped setting a standard 
for the world. We have lowered the bar. We are no longer the 
city on the hill that reformers can look up to. We have now 
become just another one of the guys that abuse human rights. 
That is wrong and it is not good for our country or the war on 
terror.
    So I close with the observation that I think we have some 
soul-searching to do. Have these programs that I outlined 
contributed to the war on terror? Have they succeeded in making 
us more secure, or have they only served the purpose of 
creating a kind of a publicity stunt that says, oh, we are 
rounding up 5,000 or going after 3,000 or registering people, 
with negligible effect on the war on terror?
    I think the damage down outweighs any good. In fact, we 
have seen no good from most of these programs, according to the 
Inspector General's reports and others. So I think we need to 
take a long, hard look at how we move forward so that we once 
again become America, the country that is looked up to, that 
sets a standard for the world, and can not only be the role 
model we seek to be, but also can become more secure with 
partners working with us to achieve that security.
    Thank you.
    [The prepared statement of Mr. Zogby appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Zogby.
    Mr. Dempsey.

 STATEMENT OF JAMES X. DEMPSEY, EXECUTIVE DIRECTOR, CENTER FOR 
           DEMOCRACY AND TECHNOLOGY, WASHINGTON, D.C.

    Mr. Dempsey. Mr. Chairman, Senator Leahy, members of the 
Committee, good morning, and thank you for the opportunity to 
testify at this important set of oversight hearings.
    Terrorism poses a grave and imminent threat to our Nation. 
While more needs to be done, huge strides have been made since 
9/11 to improve our counter-terrorism capabilities. We are all 
very fortunate to be protected by the dedicated officials of 
the FBI and the Department of Justice and the other agencies. 
To do their jobs, these officials need powerful legal tools. 
These powers, however, must be subject to controls, standards, 
and oversight.
    Since 9/11, the Federal Government has engaged in a series 
of serious abuses of constitutional and human rights. The 
phrase ``the PATRIOT Act'' has become a symbol or a shorthand 
reference to the Government's response to terrorism since 9/11, 
but the most egregious abuses of civil liberties and human 
rights have taken place outside of the PATRIOT Act or any other 
Congressional authorization.
    The PATRIOT Act itself contains many useful and non-
controversial provisions, but also in the PATRIOT Act, not 
surprisingly given the time pressures and the emotional 
situation under which it was passed, mistakes were made. The 
pendulum swung too far, and important checks and balances were 
eroded that now need to be restored.
    Of course, the FBI should be able to carry out roving taps 
during intelligence investigations of terrorism, just as it has 
long been able to carry out roving taps in criminal 
investigations of terrorism. But the PATRIOT Act standard for 
roving taps in intelligence cases omits some of the important 
procedural protections that exist on the criminal side.
    Of course, the law should clearly allow the Government to 
intercept transactional data about Internet communications, but 
the standard for both Internet communications and telephones is 
so low that the judges are reduced to mere rubber stamps and 
cannot even inquire into the factual basis for the surveillance 
application.
    Of course, prosecutors should be able to use FISA evidence 
in criminal cases and to coordinate intelligence and criminal 
investigations, but FISA evidence in criminal cases should not 
be shielded from the adversarial process, as it has been in 
every case so far where it has been used.
    The worst civil liberties abuses since 9/11, as I said, 
have occurred outside the PATRIOT Act. These include the 
detention of U.S. citizens in military jails without criminal 
charges. I think the case of Padilla illustrates the inadequacy 
of the war metaphor applied without thinking to the present 
situation. We all use it. There are clearly war elements to 
what is going on, such as the operation in Afghanistan.
    But as Professor Dinh said, if you start with the war 
metaphor and apply it uniformly, and if you assume that the 
President as commander-in-chief is carrying out his commander-
in-chief responsibilities in this war, and if you assume that 
the battlefield is without borders and that the battlefield 
includes the United States, then as Professor Dinh said, it is 
a short and relatively easy step to say that the President can 
arrest and incarcerate citizens without criminal charges and 
hold them indefinitely in military prisons.
    I think the solution there is to distinguish when the war 
concept is correct and when the criminal justice concept must 
be applied. And in the case of citizens, people arrested in 
this country, the criminal justice system is fully adequate to 
deal with those cases and should be used.
    The detention of foreign nationals at Guantanamo and other 
locations with no due process, I think, is another example not 
where full criminal process should be applied, but at least 
where there should be compliance with the Geneva conventions, 
which this administration has also sought to avoid.
    The post-9/11 detentions of foreign nationals in the United 
States has been alluded to. The Office of Inspector General at 
the Department of Justice has documented the abuses there.
    Senator Leahy referred to the alleged rendition of suspects 
to other countries, knowing or intending that they will be 
tortured. There is also the abuse of the material witness law 
to hold aliens and citizens alike in this country for long 
periods of time without bringing them before a grand jury or 
without seeking their testimony. All of these are important, 
documented civil liberties and human rights abuses, all of 
them, I believe, unnecessary in winning this struggle.
    Turning to the PATRIOT Act, one of the clearest abuses 
concerns the use of sneak-and-peek searches in ordinary 
criminal cases, including even non-violent crimes unrelated to 
terrorism. The Government admits using the Section 213 
authority in non-violent cases. These included the 
investigation of judicial corruption, where agents carried out 
a sneak-and-peek of judicial chambers; a health care fraud 
investigation where they carried out a sneak-and-peek of a 
nursing care business.
    Section 213 fails in its stated purpose of establishing a 
uniform national standard applicable to sneak-and-peek searches 
throughout the United States and does not give judges the 
guidance they need either in terms of the standards or the 
length of time for which notice may be delayed.
    I don't really know why we are still debating Section 215, 
the business records section. The Justice Department has 
admitted that they have not used this a single time since 9/11, 
not only not for library records, but not for any kind of 
records. I think it is an unnecessary provision and should be 
repealed. It illustrates the failure to examine before the 
adoption of the law whether any of the authorities being sought 
were needed, but we clearly have one there that is not needed.
    The use of FISA evidence in criminal cases without due 
process is another abuse. There is a solution readily at hand, 
namely the application of the Classified Information Procedures 
Act to ensure that FISA applications can be scrutinized and 
subjected to the adversarial process by defendants.
    And there are other abuses, of course, outside of the 
PATRIOT Act. Congressman Barr referred to some of the data-
mining applications. The U.S. Army recently acquired records 
from the JetBlue Airline about air passenger travel without any 
form of authorization, and that is clearly something that needs 
to be looked at because I believe that the JetBlue case is 
really the tip of the iceberg in terms of the Government's use 
of data-mining techniques.
    We are in an epic struggle. None of us doubt that. These 
are very, very difficult and dangerous times that our country 
faces. But in order to be successful in this struggle, we are 
going to need every check and balance, every guideline, every 
standard, every form of oversight and accountability at our 
disposal. I don't see how we can possibly win otherwise, 
domestically or internationally.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Dempsey appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Dempsey.
    Mr. Chishti.

   STATEMENT OF MUZAFFAR CHISHTI, DIRECTOR, MIGRATION POLICY 
 INSTITUTE AT NEW YORK UNIVERSITY SCHOOL OF LAW, NEW YORK, NEW 
                              YORK

    Mr. Chishti. Thank you, Mr. Chairman.
    Chairman Hatch. A vote has just started, so what we are 
going to do is try and finish the last two testimonies, then we 
will all go vote. We have two votes in a row, so we will use up 
most of the time of the first vote and then we will try and 
vote quickly and come right back.
    So, Mr. Chishti, we will go to you.
    Mr. Chishti. Thank you, Mr. Chairman and other 
distinguished members of the Committee. We applaud you for 
holding these hearings on this extremely vital topic, and thank 
you for the invitation to testify here.
    The Migration Policy Institute, which is a D.C.-based think 
tank on immigration and refugee matters, recently completed an 
18-month review of our Government's post-9/11 immigration 
measures. The report, titled ``America's Challenged Domestic 
Security, Civil Liberties, and National Unity after 9/11,'' is 
a very comprehensive look at our immigration policies from 
these three distinct perspectives. Doris Meissner, the former 
Commissioner of the INS, is one of the co-authors of the 
report, along with me.
    The report is based on interviews with a wide range of 
current and former law enforcement and intelligence officials, 
and leaders of the Arab American and Muslim and other immigrant 
communities all across the country. It provides a legal 
analysis of the Government's immigration measures since 9/11 
and it looks historically at how the country has dealt with 
similar chapters of national crises in the past.
    Most importantly, the report is based on the profiles of 
over 400 people detained in the immediate aftermath of 
September 11. Mr. Chairman, we have submitted the entire report 
and the appendix which contains these profiles for inclusion in 
the record.
    The report concludes that our Government has overemphasized 
the use of the immigration system as the lead weapon against 
terrorism, at least in the domestic context, since 9/11. The 
immigration system simply cannot be a lead weapon in the war 
against terrorism. As an anti-terrorism measure, immigration 
enforcement is of limited effectiveness. The failure of 9/11 
was not a failure of our immigration policy. It was 
fundamentally a failure of intelligence.
    But on the other hand, immigration measures that have 
targeted specific nationality groups that Jim Zogby talked 
about, and non-citizens in many of these measures, have 
provided us a false sense of security, have not made us safer, 
but instead have undermined some of the bedrock constitutional 
principles and eroded our sense of national unity. They have 
alienated the important and critical communities in the Arab 
and Muslim populations in the U.S., and these actions have an 
echo effect around the world.
    When actions are taken against Muslim and Arab communities 
which alienate them, they deepen the perception in the Muslim 
and Arab world that America is anti-Muslim and our principles 
are hypocritical. That only strengthens the voices of radicals 
in those parts of the world.
    Let me tell you about what we learned from the profiles of 
406 people who were detained post-9/11. As we have heard here, 
secrecy was paramount in the Government's actions regarding 
detainees after 9/11, but we were able to gather these profiles 
based mostly on information we got from lawyers who did their 
cases, sometimes from detainee interviews themselves, and a lot 
from the press reports. Let me give you highlights of these 
profiles.
    About one-third of these people--and, by the way, the 
sample of 406 is thrice the size of the Office of Inspector 
General's profile of the numbers that they looked at in their 
report, but it draws similar conclusions.
    About one-third of the people caught after 9/11 were 
Pakistanis and Egyptians, with no clear understanding or 
explanation of why there was such a disproportionate number. 
Unlike the hijackers who we think were rootless and recent 
arrivals, about 46 percent of the people in our sample had 
lived in the country for more than 6 years, and about half of 
them had spouses, children, and other relatives in the country.
    A large number of these people were detained for long 
periods of time. About half of them were detained for more than 
9 weeks, and about 10 percent were detained for more than 9 
months. Many were detained without a charge being brought 
against them for long periods, circumventing the USA PATRIOT 
Act's mandate of bringing a charge within 7 days of an arrest.
    Fifty-two percent of people in our sample were held on what 
came to be known as FBI holds after a final determination on 
their case, and about 42 percent were denied the opportunity to 
post a bond. We also found that the Government brought people 
as material witnesses in about 50 cases, which meant that they 
had circumvented the procedural aspects of detaining these 
people.
    Six hundred immigration hearings were closed to the public 
and, most importantly, none of the arrests that were made as a 
result of the immigration initiatives of the Government after 
9/11 resulted in a terrorism-related prosecution.
    We made recommendations in six areas in our report, ranging 
from Congressional oversight to foreign policy. Let me just 
highlight only two. Congress has shown extraordinary deference 
to the executive branch on immigration measures after 9/11. In 
the immediate aftermath of 9/11, that would be understandable, 
but I think it is high time for Congress to reassert its policy 
and oversight role, and evaluate how these immigration 
procedures have been used after 9/11.
    The executive branch, for example, has defended closed 
hearings, and it has defended withholding the names of people 
whom they have arrested on the basis that it provides an 
important way for them to seek informants. I think we need to 
ascertain whether there is validity in these claims via a 
Congressional committee.
    Detention, Mr. Chairman, is the most onerous power a state 
can have and it should be exercised very carefully. We believe 
that detentions of more than 2 days after the charge, closed 
hearings, and use of classified information are all matters 
that should be subject to judicial review.
    Finally, the last point I would make is that even in the 
war on terrorism, we are dealing in a world of limited 
resources, of both human and financial resources. It is 
important for us to spend those resources on information-
sharing and analysis, on interagency cooperation, instead of 
having broad, blanket operations against specific groups of 
people.
    The one measure that is still alive today is the special 
registration program, the call-in registration program that 
targeted nationals of 25 countries. The Government decided not 
to extend that program last year beyond the first 25 countries. 
Since it decided not to extend that, we believe it is important 
that the follow-up requirements of that measure should be 
abandoned.
    Thank you.
    [The prepared statement of Mr. Chishti appears as a 
submission for the record.]
    Chairman Hatch. Thank you, Mr. Chishti.
    Mr. Cleary, we will go to you.

 STATEMENT OF ROBERT J. CLEARY, PROSKAUER ROSE, LLP, NEW YORK, 
                            NEW YORK

    Mr. Cleary. Mr. Chairman, Ranking Member Leahy, and members 
of the Committee, thank you so much for holding these important 
hearings and for inviting me to present my views.
    I was the United States Attorney in the District of New 
Jersey on September 11, 2001. Immediately after the attacks, we 
established a command post which served as the nerve center for 
the New Jersey 9/11 investigation. Because New Jersey as it 
turned out had been a staging ground for the attacks, we played 
a vital role in the global 9/11 investigation.
    In order to illustrate how indispensable the PATRIOT Act is 
to the war on terrorism, and to illustrate why some of the 
loudest criticism against the Act is misplaced, I would like to 
provide a brief glimpse into our command post.
    Those in charge of the command post were gripped on a daily 
basis with an all-consuming fear that another catastrophic 
terrorist attack was about to happen any hour, any day. We did 
not know where and we did not know when. Everyday, we 
challenged ourselves and we pushed our subordinates to work 
faster, to work more efficiently, to work more expeditiously.
    Our overriding goal everyday was to, as quickly as 
possible, detect and dismantle any terrorist plot that we 
feared was on the horizon. Speed and efficiency--those became 
our watch words in the command post, and I would suggest to 
this Committee that speed and efficiency need to be the watch 
words of every terrorist investigation. They need to be the 
watch words because those investigations must prevent the next 
terrorist attack.
    As we soon found out in our command post, the speed and 
efficiency that we valued so highly was compromised by 
administrative impediments imposed by antiquated laws. The 
PATRIOT Act removed those obstacles. As just one example, I 
should mention the efforts Government made, that law 
enforcement made to obtain e-mail evidence. E-mail is a 
preferred method of communication among terrorists. In order to 
obtain e-mail content, the message itself or the subject line, 
law enforcement quite properly needs to obtain a search 
warrant.
    Here is the problem: Prior to the PATRIOT Act, the law 
required that the search warrant for e-mail content could only 
be obtained in the district where the Internet service 
provider--Yahoo, America Online, Hot Mail, et cetera--where 
that service provider existed. Two of the three largest service 
providers in this country exist in the Northern District of 
California.
    What that meant as a practical matter during our 9/11 
investigation was that our New Jersey search warrant seeking e-
mail from a terrorist that resided in New Jersey and who had 
sent e-mail from New Jersey--that search warrant could not be 
filed in the District of New Jersey. It had to be filed and 
only could be filed 3,000 miles away in California, along with 
the search warrants seeking similar information by every other 
United States Attorney's office throughout our country.
    This created an enormous bottleneck because, in addition to 
the paperwork that got filed out there, each and every one of 
those U.S. Attorneys' offices had to find a prosecutor in 
California and an agent in California who was unfamiliar with 
our New Jersey case to act as the people to submit the 
application to the California judge. This slowed down our 
investigation, and the PATRIOT Act thankfully has removed that 
bottleneck. And why shouldn't it? The same protections and 
safeguards that were in place prior to the PATRIOT Act--a need 
to demonstrate probable cause--apply after the PATRIOT Act.
    Similar impediments concerning search warrants for other 
materials in terrorism cases and for requests for Internet 
activity have likewise been removed by the PATRIOT Act, all 
without any diminution in the constitutional or privacy 
safeguards that existed under prior law.
    In closing, as a citizen I thank you and your colleagues in 
Congress for providing law enforcement with the tools they need 
to protect us in the PATRIOT Act.
    Thank you.
    [The prepared statement of Mr. Cleary appears as a 
submission for the record.]
    Chairman Hatch. Well, thank you. We appreciate the 
testimony of all of you. We are going to go vote twice now and 
we will return as soon as we can and we will start the 
questions as soon as we get back, and probably start with 
Senator Leahy.
    With that, we will recess until we can get back.
    [The Committee stood recess from 11:14 a.m. to 11:44 a.m.]
    Chairman Hatch. If we can have order, I appreciate that.
    Let me just ask one question of each of you and then I will 
be happy to turn to Senator Leahy.
    I will ask this question, Ms. Strossen, of you, and I don't 
mean to single you out. It is just that I think you are 
probably the one who should answer this first. We have heard 
testimony from several U.S. Attorneys, including Jim Comey, the 
new Deputy from New York, whom the Judiciary Committee just 
last night unanimously voted on as our next Deputy Attorney 
General, that from a statutory and enforcement perspective our 
Nation is better prepared to prevent and respond to terrorist 
attacks than we were on the morning of September 11, 2001.
    I have two related questions. First, do you agree that our 
country is better prepared to stop acts of terrorism today than 
we were 2 years ago? And, secondly, are our strengthened laws 
and vigilant efforts at law enforcement consistent with our 
traditional American respect for civil liberties and 
constitutional rights?
    So those are the two questions, and we will start with you 
and then I will go to--
    Ms. Strossen. I couldn't hear the second question.
    Chairman Hatch. Well, the second would be--
    Ms. Strossen. I think the sound system isn't working.
    Chairman Hatch. I am having trouble with this laryngitic 
voice.
    Are our strengthened laws that we just referred to and 
vigilant efforts at law enforcement consistent with our 
traditional American respect for civil liberties and individual 
rights?
    Ms. Strossen. On the first question, Senator Hatch--are we 
better prepared to face terrorism--I have never held myself 
forward, nor has my organization held it itself forward as an 
expert on counter-terrorism. I can only hope that we are better 
prepared.
    I have followed all of the expert analyses that have been 
made publicly available on that issue, including, as far as I 
know, the most in-depth having been done by the intelligence 
committees of both the House and the Senate, the joint inquiry. 
Although part of their findings were, of course, classified and 
not released to the public, I did read with great interest the 
findings and recommendations that were released to the public 
and I noted with great interest that most of those findings and 
recommendations had absolutely nothing to do with increasing 
the Government's powers of surveillance, investigation, and 
prosecution, but rather had to do with what some of the 
Senators on this Committee referred to in the last hearing as 
nuts-and-bolts problems, mundane but critically important, 
having to do with, for example, improving the computer system 
in the FBI, having more translators.
    And I noted at the last hearing of this Committee on this 
issue on October 21 Senator Leahy was very concerned that the 
Government still had not followed the repeated recommendations 
of Congress to do such a basic thing as hiring more translators 
of Arabic and other languages that are obviously essential to 
really make us safer.
    And I continue to be concerned--I must say as somebody who 
flies at least 200,000 miles a year, I have a very deep 
interest in aviation security, and yet I heard just this 
morning that we are only now beginning to institute the 
beginnings of cargo searches even of the air cargo, 22 percent 
of which goes onto passenger flights. So I continue to be 
concerned about some of these nuts-and-bolts steps that have 
not been taken.
    Senator Hatch, referring to your second question, which I 
think really is kind of the flip side of the first one, I 
listened with great interest to the two Government witnesses 
here, Messrs. Dinh and Cleary, and the only specific example 
that I heard them allude to was in Mr. Cleary's statement of a 
new power that had been given post-9/11 that was deemed to be 
necessary, or indeed even specifically helpful in order to 
improve our counter-terrorism efforts. The one specific new 
power that was referred to by Mr. Cleary was the nationwide 
search warrant power.
    Now, here, too, Chairman Hatch, I want to stress what I 
said in my opening remarks that it is sort of like apples and 
oranges. The Government witnesses are saying we can do a better 
job to protect national security because of these powers, and 
the civil libertarian critics across the political spectrum are 
saying we object to these other powers.
    The nationwide search warrant power is a perfect case in 
point. The only objection we have to the wide-open way in which 
that new section of the law is written is that it is written in 
such an open-ended way that it could be used only for judge-
shopping. That is not the situation that was described by Mr. 
Cleary. He described a situation where there was a legitimate 
nexus between the jurisdiction where the investigation was 
going on and that where the search warrant application was 
made.
    So I have not heard anything either today or in this 
Committee's prior hearings that makes me convinced that we 
cannot go forward with the modest revisions that are put 
forward in bills such as the SAFE bill that would be completely 
consistent with both civil liberties and the national security 
concerns that the Government is raising.
    Chairman Hatch. Let me go to Professor Dinh next, since he 
will have perhaps another point of view.
    Mr. Dinh. Thank you very much, Mr. Chairman. I think it is 
undoubted that the country's law enforcement and intelligence 
agencies and our State and local partners in the fight against 
terrorism have more resources, more legal authorities to combat 
terrorism today than they did on September 10, 2001.
    In order to illustrate the necessity and the critical 
importance of these tools that Congress has provided to law 
enforcement, I would simply point the Committee and members of 
the panel to the May 13, 2003, submission to the House 
Judiciary Committee, a 60-page document in which the Department 
of Justice and other Government agencies in response to that 
Committee gave a section-by-section compendium of how these 
authorities were used and how they were helpful in the fight 
against terrorism.
    I would note, echoing your opening remarks about the 
bipartisan nature of the fight against terrorism, that the 
proposals the Congress accepted as part of the USA PATRIOT Act 
did not come from the administration out of the blue right 
after September 11, but rather they came from recommendations, 
for example, of the Hart-Rudman Commission which issued its 
report in 1999, but largely recommendations that were unheeded.
    Indeed, we had an opportunity earlier last week to speak on 
a panel with former Deputy Attorney Jamie Gorelick, who noted 
that many of the proposals were ones that she had thought were 
necessary prior to September 11, but were not acted on before 
then.
    Do we have more authorities? Absolutely. Is there more work 
that needs to be done? Undoubtedly, including the breaking down 
not just of the legal barriers which Congress has done with 
Section 218 of the USA PATRIOT Act, but the institutional and 
cultural barriers to cooperation and collaboration between the 
intelligence community and the law enforcement community, and 
between State and Federal law enforcement communities. I think 
that these sets of hearings elucidate the need for further 
action, but also to evaluate the successes that we have had in 
the last 2 years of keeping America safe.
    Chairman Hatch. Thank you.
    Mr. Barr, we will go to you and then Mr. Cleary, so that we 
kind of have the two different points of view.
    Mr. Barr. Thank you, Mr. Chairman. If I could, as I related 
to both the Chairman and the ranking member, I have a plane to 
catch, and if I could be excused after this.
    Chairman Hatch. We understand and we will certainly excuse 
you.
    Mr. Barr. I appreciate the Committee's forbearance and 
apologize for leaving early. I certainly would be happy to 
answer any additional questions in writing that any member of 
the Committee would care to send.
    Chairman Hatch. We will keep the record open for any 
questions in writing that members of the Committee would care 
to submit.
    Mr. Barr. Mr. Chairman, from my perspective as a former 
intelligence official with the CIA, as a former United States 
Attorney, a Federal prosecutor, as a former Member of Congress 
and a member of the House Judiciary Committee, and as a defense 
attorney--in all of those capacities, and certainly perhaps 
most importantly as a citizen observer, I believe that America 
is safer today than we were on 9/11.
    Are we safe enough? No. Will we ever be safe enough to rest 
assured that there will be no further attacks? No, we will not. 
This is always the risk that anybody, even a free society as 
ours, faces, or especially a free society as ours.
    I do think that when one looks at the legitimate reasons 
why the terrorist attacks succeeded on September 11, one is 
struck by a couple of things. One is the Government pre-9/11 
had fully sufficient power to have stopped those attacks. The 
Government had in many respects fully sufficient resources to 
have stopped those attacks. And that is not necessarily being 
over-critical of the Government that we did not stop those 
attacks, but simply to say that some mistakes were made both at 
the local and at the State, as well as the Federal level.
    There were indeed poor policy decisions made, such as in 
the Moussaoui case. There was not a legal prohibition on 
getting access to Moussaoui's computer, but a bad policy 
decision was made by field officials with the FBI, for example. 
There were security breaches at a number of locations, 
including the aircraft training schools, including license 
bureaus, including access to airports and flight facilities and 
planes themselves, none of which had to do even remotely with 
the expanded powers that the Government sought and obtained in 
the PATRIOT Act, and which it also is taking through these 
various other programs.
    So I think first and foremost, certainly what we ought to 
look to in terms of remedying those reasons that account for 
why the terrorists succeeded on 9/11 are indeed deficiencies in 
preexisting resource allocation prioritization, policy 
decisionmaking, and effective and consistent use of preexisting 
laws.
    I think also, Mr. Chairman, we ought to keep in mind as we 
look at your second question, and that is the focus on our 
freedoms and traditional constitutional norms in this country--
I believe that we are in danger of rapidly accelerating a trip 
down a very slippery slope toward effectively completely 
gutting the Fourth Amendment. Now, I know that may sound like 
an overstatement, but I truly do worry about this.
    When we say to the Government that you take the 
authorization to catch terrorists by profiling law-abiding 
American citizens, by gathering evidence on law-abiding 
citizens and lawful visitors to this country without any 
pretext whatsoever that they have done anything wrong, I think 
we should say to the Government that doesn't appear on the face 
of it to be the most effective or efficient way, or the most 
constitutional way to catch terrorists.
    I think there are much better ways, much more efficient 
ways of going about this than the route of TIA, CAPPS II, the 
MATRIX program, and so forth. And if we indeed continue down 
that road, I think that we will wake up 1 day in the not too 
distant future when the Fourth Amendment has been effectively 
rendered meaningless. And at that time, the answer to your 
question will not only be, the way the question was posed, no, 
we are not fighting this fight consistent with traditional 
constitutional norms, but we may be to the point beyond which 
we can't even return to those traditional constitutional 
rights.
    Chairman Hatch. My time is up, but, Mr. Cleary, do you have 
additional comments?
    Mr. Barr. May I be excused, Mr. Chairman?
    Chairman Hatch. Sure, we will be happy to excuse you, Bob. 
Thanks for being here.
    Senator Leahy. I just was going to say, Congressman Barr, I 
will submit questions to you, and among them will be whether 
you have seen the Domestic Surveillance Oversight Act which 
adds transparency to FISA, the PATRIOT Oversight Restoration 
Act which subjects several controversial provisions of that law 
to the December 2005 sunset, and the restoration of the Freedom 
of Information Act which protects public access to information 
regarding our Nation's infrastructure.
    I will submit that to you because I want to know, one, 
whether you have seen the laws, and, two, whether you support 
them.
    Mr. Barr. Thank you, and with the Chairman's indulgence, 
the answer to both questions is yes, I have reviewed them, as 
well as a number of other pending provisions such as the SAFE 
Act, and I do support them, including those that the Ranking 
Member mentioned.
    Chairman Hatch. Mr. Cleary, we will wind up with you and 
then we will turn to Senator Leahy.
    Mr. Cleary. Thank you, Mr. Chairman. As to your first 
question, the strength, no doubt we are better able to fend 
off, to detect, and to deter any sort of terrorist attack today 
much better than we were before. In large measure, that is due 
to two things: one, additional attention given to the problem 
by both Congress and the executive branch, and particularly as 
it relates to Congress the tools that you have provided which 
are set forth in my view of that in my written statement. In 
particular, it is the strength of the statutes, the 
modernization of the statutes, and the speed and efficiency 
that it provides.
    As to your second question about respect for civil 
liberties, I have no doubt that we can do a better job 
protecting civil liberties, and I am heartened to see that this 
Committee is focusing on that issue. But I think the important 
point, Mr. Chairman, is to identify those particular aspects of 
the legislative package that really do need to be changed or 
amended.
    A lot of criticism I hear about the PATRIOT Act is simply 
misplaced. As a simple example, I have read a lot of criticism 
about Section 213, the delayed notification search warrant. Law 
enforcement has had the authority to seek delayed notification 
warrants for time in memorial, so this is no radical change in 
the law.
    The law is quite clear that there is no constitutional 
right to immediate notification. All Section 213 does is codify 
the standards, make them applicable around the country.
    Chairman Hatch. To terrorism?
    Mr. Cleary. That is correct, Your Honor--I mean Mr. 
Chairman. I have been hanging out in court too long.
    Senator Leahy. That is what all the rest of us call him, I 
want you to know.
    [Laughter.]
    Chairman Hatch. I hate to tell you what they call me.
    Mr. Cleary. So the point being that we need to identify 
those areas that really do affect individual rights and 
liberties in a way that they had not been before.
    Ms. Strossen. Is it possible to respond to that 
characterization, because here I hear a joinder of issue which 
we really haven't had so far?
    Chairman Hatch. If you can do it quickly.
    Ms. Strossen. Unfortunately, it is not correct that Section 
213 merely codifies preexisting power in a number of respects. 
Number one, Section 213 applies to any crime, not just 
terrorism crimes. Number two, Section 213 allows the Government 
to get delayed notice not only in the three specific situations 
that had been allowed under prior law, namely if life or 
physical safety is threatened, number one; number two, if there 
is a danger of fleeing prosecution; number three, a danger of 
tampering with or destroying evidence. Instead, Section 213 
adds a catch-all provision of any adverse impact to the 
Government's interest.
    And finally, and very importantly, Section 213 does not 
specify a presumptive length of delay. It is an open-ended, 
undefined, quote, ``reasonable period,'' whereas the two 
circuit courts that had previously upheld this authority had 
had a presumptive delay of only 7 days, subject to renewed 
showing by the Government.
    And this is a perfect example, Chairman Hatch and Senator 
Leahy, of why the SAFE proposal is such a safe one, ensuring 
safety and freedom, and because it would restore those 
safeguards, reasonable safeguards that had existed in prior 
law.
    Chairman Hatch. Mr. Cleary.
    Mr. Cleary. The prior power to conduct sneak-and-peek, like 
the 213 power, applied to all crimes, not just terrorism 
crimes. So there has not been a change in the law in that 
respect. Whether there is going to be a presumptive period that 
the courts impose in their interpretation of 213, as was the 
case under prior law, is something that has not been determined 
yet. So the law is very consistent, with minimal change. There 
has been an additional basis to seek a Section 213 sneak-and-
peek warrant, but that is a basis that is available nationwide, 
making for consistent application of this important tool.
    Chairman Hatch. What is the purpose of the so-called sneak-
and-peek?
    Mr. Cleary. The purpose, Mr. Chairman, is so that 
investigations do not get compromised if they are continuing 
past the time of the execution of the warrant. If a Title III 
wiretap is up and running and providing productive information 
to the Government but there is a time to execute a warrant, you 
don't want to compromise the ongoing Title III wiretap, as an 
example.
    Chairman Hatch. And you are saying this has been used in 
general criminal law for a long time?
    Mr. Cleary. Yes, it has.
    Chairman Hatch. Senator Leahy.
    Senator Leahy. Thank you, Mr. Chairman. I will put in the 
record a statement by Senator Kennedy and a number of other 
submissions for the record, if I may.
    Chairman Hatch. Without objection.
    Senator Leahy. I have asked the question, of course, of 
former Congressman Barr and I was pleased that he is supportive 
of our three bills that I, along with others in both parties, 
have introduced--the Domestic Surveillance Oversight Act; the 
PATRIOT Oversight Restoration Act, which adds to the sunset 
provisions; and the restoration of Freedom of Information Act 
to make sure that citizens have the ability in our country to 
know what is going on.
    The Freedom of Information Act was of particular importance 
to me because it has been my experience here after 29 years and 
6 different administrations that all administrations, no matter 
which party controls the White House, are very eager to send 
out reams of press releases when they feel they have 
accomplished something which sheds good light on them and will 
be politically helpful, and are somewhat reluctant to do that 
if it is the other way around.
    The Freedom of Information Act has been a chance for the 
press and the Congress, but especially the press, to find out 
those things that go wrong, as well as those things that go 
right. Democracy is better off if we know about the things that 
go wrong because then we have the ability to correct it.
    Now, Professor Strossen and Mr. Zogby, I am going to ask 
you this question. I mentioned earlier in my opening statement 
that I am concerned that the United States may be engaging in 
the rendition of non-citizens to countries who rely on torture 
as a means of interrogating prisoners. We are all well aware of 
the Canadian Syrian citizen who was sent to Syria, instead of 
back to Canada where he resides.
    We all know that torture is a crime. The United States has 
always condemned torture. And, of course, we all know that if 
you make a couple of exceptions here and there for torture, 
then the exceptions become the rule. If the United States is 
seen as being complicit in torture, it makes it very difficult 
for the United States to articulate a moral position against 
torture, whether it takes place in China or Iraq or Chile or 
Pakistan or anywhere else.
    If an American soldier is captured and tortured now, how do 
we say, well, we have always been against this? Or if torture 
is justified to obtain information from a suspected terrorist, 
well, then why can't we justify torturing the terrorist's 
spouse or terrorists' children, or friends or acquaintances of 
those who work with a suspected terrorist who might know about 
his whereabouts?
    A lot of Members of Congress on both sides of the aisle 
have criticized other governments numerous times for treating 
prisoners that way, and we stand up for the rule of law. So 
now, having done that, I understand, Professor Strossen, that 
the ACLU filed a Freedom of Information Act request and a 
subsequent lawsuit with relevant agencies to obtain general 
non-classified information about the Government's practice of 
rendition. I have tried to get the same information and have 
not been very successful.
    Have you been successful?
    Ms. Strossen. Not yet, Senator Leahy, and before I answer 
that I would like to take this opportunity to say that my staff 
expert said I made one misstatement on Section 213, and I want 
to correct the record immediately because precision and 
accuracy are critical here. It is true, as Mr. Cleary said, 
that that power was not previously limited to terrorist cases, 
but the other two distinctions stand.
    Senator Leahy, we really appreciate your vigorous defense 
of FOIA and freedom of access to information, in general, 
including with respect to this issue. This is one of many 
Freedom of Information Act requests that the ACLU has submitted 
since 9/11 in an attempt to get basic information about how our 
Government is conducting the so-called war on terrorism.
    As you probably know, we have not been successful in 
getting answers from the Government to any of those requests 
and in some cases have already gone to court. In some cases, 
the courts have ordered the Government to turn over the 
information. In one such case, the request is now pending 
before the United States Supreme Court to get the names of 
those hundreds of post-September 11 detainees who turned out, 
according to the Inspector General, only to be innocent 
immigrants--I am sorry--guilty of immigration violations to be 
sure, but hardly guilty of or even charged with terrorism.
    With respect to the request that we submitted in September, 
Senator Leahy, just this morning I spoke to the lawyer for the 
ACLU who is the lead counsel on that case, Jameel Jafir, and he 
told me that we have as yet not gotten any information from any 
of the Government agencies from which we had sought 
information--and by the way, it was information that was sought 
based on plausible press accounts, including quoting anonymous 
senior officials who not only said that our Government was 
rending to countries that are, according to our own State 
Department, engaging in torture and other degrading and 
inhumane treatment, but also that there were senior officials 
who were participating in this knowingly, and perhaps even 
encouragingly.
    So rather than the general conclusory denials that we have 
gotten from the administration which are welcome, that is only 
the first step. We are asking for documentation.
    Now, when I spoke to Jameel Jafir this morning, I said I 
looked at the date of our FOIA request and isn't the 
Government's answer overdue? And he said, well, they are always 
late. So we are, in fact, contemplating litigation yet again to 
enforce what should be turned over under the statute.
    I would like to add one other comment about that FOIA 
proceeding, Senator Leahy, and that is that the ACLU and the 
Center for Constitutional Rights are bringing that together 
with not only Physicians for Social Responsibility, but also--I 
think this is very significant--two veterans organizations 
whose members have fought in every war from the Vietnam War and 
earlier to the first Gulf War. They understand better than 
anybody else how the lives of American men and women, service 
members, are jeopardized, how they are in danger of being 
tortured themselves.
    Senator Leahy. I understand that and I appreciate it. I am 
sorry to cut you off, but certainly you will have time to add 
more. But in the time available, I did also want to ask a 
question of Mr. Zogby, who is, as we know, the respected head 
of a highly regarded organization. I ask you this question, Mr. 
Zogby, because you are in contact with people throughout the 
Arab and Muslim world.
    How do you believe that citizens in predominantly Muslim 
nations are going to react if they find that it is true that 
the United States sent back an individual to Syria for 
interrogation? The citizen was allegedly tortured while he was 
detained there. What is that going to do to our image overseas, 
especially in the Muslim world?
    Mr. Zogby. Thank you, Senator. I am very troubled about 
this because not only in the case of the Syrian Canadian 
citizen who was sent to Syria for them to get the information 
from him that we apparently wanted, but it appears that on a 
number of levels we have moved in a very different direction.
    There are reports from Afghanistan and Iraq that we may be 
sliding down the slippery slope ourselves of using cruel, 
inhumane and degrading treatment of detainees, and/or of 
civilians whom we treat in a manner equal--something that can 
be characterized as collective punishment in order to get their 
relatives to turn themselves in or to get information from them 
about their relatives. I am concerned about that.
    I am concerned about the cooperation that we have had with 
several countries in the Middle East, Israel and Arab 
countries, accepting intelligence information from them that we 
know was derived by means that we in the past have found 
unacceptable.
    The problem exists on two levels. Certainly, there is the 
public opinion level that you have raised, and I find that 
worrisome and I am hearing it. But I am also worried about the 
impact it has on the leadership level because, in fact, they 
feel we have now joined the club.
    Senator Leahy. On the leadership level. You mean the 
leadership of these other countries?
    Mr. Zogby. Of countries in that region. We have now joined 
the club. We validate what they have always done. So if 
President Bush is right, and I believe that he was when he 
noted that reform and advancement of human rights and 
democratic rights is critical in the war on terrorism, I 
believe that practices such as these undercut the fundamental 
truth in that message.
    We validate practices on the one side that the President is 
criticizing on the other side, and so we set back the movement 
for reform. That is the detriment of our overall program; it is 
to the detriment of our values that we have sought so 
intensively to project in the world. I think that it harms our 
country and it harms our ultimate goal of combating terrorism 
by promoting reform and a democratic agenda.
    Senator Leahy. Thank you.
    I notice my time is up, Mr. Chairman. I do have other 
questions, especially about national security letters and I 
will submit those to Mr. Dempsey. I am especially curious about 
those that may be given to everybody from a real estate agent 
to a car dealer and effectively shut down their business.
    Thank you.
    Chairman Hatch. Thank you, Senator Leahy.
    Senator Kyl.
    Senator Kyl. Thank you, Mr. Chairman.
    Part of the problem that I think we have here--and I 
appreciate the effort of some of you to find joinder on 
specific issues because at the end of the day, as legislators, 
we are going to have to come together and refine the law, if 
that is called for--but part of the problem in doing that is 
the kind of political climate that has been created by 
hyperbole and, shall we say, over-zealous language.
    All of you represent respected national organizations or 
are associated with the enforcement of the laws and therefore 
clearly appreciate how important it is to be precise as lawyers 
and to try to keep the debate from rubbing the raw emotions 
that are so close to the surface on this particular issue.
    There are several examples that I could point to here, but 
let me focus a little bit on the ACLU because it has a 
reputation as a respected and careful organization. I think in 
your testimony today, Ms. Strossen, you have certainly tried to 
do that, but I note on the website, for example, at least 
according to the extract that has been provided to me here for 
high school and college students, www.stopthepatriotact.org. 
``Stop the PATRIOT Act''; the title itself, it seems to me, is 
not designed to encourage a fair debate and careful 
examination.
    According to the website, you claim that Section 802 of the 
PATRIOT Act, and I am quoting now, ``broadly expands the 
official definition of terrorism, so that students groups that 
engage in certain types of civil disobedience could very well 
find themselves labeled as terrorists,'' end of quote.
    It is my understanding that under Section 802, a protester 
can only be said to be engaging in domestic terrorism if he or 
she partakes in criminal wrongdoing that could result in death. 
So the question I ask you is whether that is a fair statement 
or whether it encourages this kind of hyperbole that prevents 
the kind of careful discussion that I think we need to have.
    Ms. Strossen. A very fair question, Senator Kyl, and as you 
can tell from comments I have already made today, I take great 
pride in the carefulness of my organization, which depends for 
its credibility on not overstating. That is why Senator 
Feinstein received an answer that we did not know whether the 
PATRIOT Act was being abused in California.
    First of all, I would say please do not judge any 
organization by the name of the website. Obviously, that is 
overly simplified, and as you could tell from the content of 
the website itself, it was not calling for a repeal of the 
PATRIOT Act. Al Gore did that. The ACLU and its website did 
not.
    We have always listed a number of specific provisions that 
are troubling and have troubling implications. Section 802 is 
one of them. By the way, Congressman Bob Barr's written 
testimony, as well as my written testimony, give specific 
examples that are of concern, in Bob Barr's case specifically 
to conservative organizations in the right-to-life movement and 
gunowners' movement. Let me tell you the exact language.
    Senator Kyl. Can I just note that we only have a very 
limited amount of time, so if you could answer my question, I 
would appreciate it.
    Ms. Strossen. Here is the exact language: ``Domestic 
terrorism means activities that involve acts dangerous to human 
life, that are a violation of the criminal laws of the United 
States or of any state, and appear to be intended to influence 
the policy of government by intimidation or coercion.''
    So if you have a student group--let's use Bob Barr's 
example that it is a pro-life student group that is engaging in 
an activist tactic of exercising its First Amendment rights 
outside of an abortion clinic, engaging in some scuffles with 
members of the public that are trying to enter or exit from 
that facility. As we know, some of those organizations have 
done that. It could be dangerous to human life.
    Senator Kyl. Scuffles are different than threats to life or 
danger to life.
    Ms. Strossen. Actually, acts dangerous to human life--there 
are cars coming in and out of parking lots.
    Senator Kyl. I think I make the point--
    Ms. Strossen. I hope that a prosecutor--
    Senator Kyl. --that you stretch beyond the point of reason, 
and names like that and stretching this beyond reason don't 
contribute to a careful debate. Some of us up here are willing 
to examine some of the legal points that have been made.
    Mr. Zogby, with all due respect, you are a person whose 
views are respected in this city, but when you refer in your 
testimony to John Ashcroft's Justice Department, it is not in a 
respectful way. It is a way that he is referred to by people 
who don't respect him.
    Ms. Strossen. Senator Kyl, may I please respond because we 
did make a specific proposal that I think would be consistent 
with your concept and the general concept of terrorism? That 
would be an intent to harm human life or endanger human life. 
This talks about ``involve acts that are dangerous and that 
appear to be intended''--
    Senator Kyl. If I could make the point now, it was that 
your website is inciting people to opposition in an 
inappropriate and emotional way. You may have recommended very 
sensible solutions. It would be far preferable to suggest on 
your website that there may be a potential danger with wording 
of a definition of terrorism rather than suggesting to students 
that their activities in civil disobedience could characterize 
them as terrorists.
    The reason I make this point is that the ACLU has been such 
a leader in trying to prevent the chilling of the expression of 
First Amendment.
    Ms. Strossen. Thank you.
    Senator Kyl. And yet this kind of hyperbole will chill 
students from engaging in activity that would clearly not be 
defined as terrorism because of the way you have expressed it 
on your website.
    Ms. Strossen. Well, our concern is that the language of the 
Act is hyperbolic, and I hope that we are inciting students to 
exercise their First Amendment rights to lobby for the kinds of 
reforms to this law that we are advocating.
    Senator Kyl. Let me cite a couple of other examples. You 
talk about invading--``the Government has knowledge using 
delayed notice and search warrants to invade dozens of homes 
and businesses.'' Now, getting a court-ordered search warrant 
doesn't fall into my definition of invading a home.
    When you talk about the ability of the FBI to enter mosques 
and political meetings on a whim, out of curiosity, I think you 
would have to agree that if you look at the wording of the FBI 
guideline, that is hyperbolic.
    Go ahead and respond.
    Ms. Strossen. With all due respect, I disagree. First of 
all, I do completely agree that if the Fourth Amendment, with 
its requirements of probable cause and a search warrant issued 
by a neutral and independent magistrate, were adhered to, that 
is fantastic. That is an A-plus from a civil liberties point of 
view.
    But we don't even have a requirement of individualized 
suspicion under many of the powers that we are complaining 
about in the PATRIOT Act. And the most important case in 
point--we keep coming back to it--is Section 215 which requires 
even less than relevance. All the Government has to do is 
assert that it is seeking the information for a terrorism 
investigation and the judge must issue the warrant. Worse yet 
is Section 505, which Senator Leahy began to refer to, which 
doesn't require any judicial participation at all. It is simply 
unilateral action by the Government itself.
    Senator Kyl. Going to a public place in which there is no 
expectation of privacy, is that not correct?
    Ms. Strossen. That is not correct, sir. Section 215 applies 
to any record that is held by anybody, anywhere, and Section 
505 refers to certain kinds of records, regardless of where 
they are held, but typically by financial institutions and the 
other specified businesses. So it would be private business 
premises.
    Senator Kyl. I thought you were talking about the FBI 
guidelines.
    Ms. Strossen. And the FBI guidelines--yes, thank you--also 
what they do is turn back the prior guidelines that had been 
put in place since Congress's investigation and hearings into 
the COINTELPRO abuses.
    Senator Kyl. So you defend the ``whim and curiosity'' 
portrayal?
    Ms. Strossen. Unfortunately, it can be any reason. No 
reason is required.
    Senator Kyl. And you also defend the characterization of 
search warrants to invade--this is a court-ordered search 
warrant--to invade dozens of homes and businesses? That may be 
a minor point, but language matters.
    Ms. Strossen. If what you are talking about is 213, which 
is a court-ordered search warrant, it is an invasion in the 
sense that the time-honored requirement of knocking on a house 
before you enter it is no longer applicable.
    Senator Kyl. I understand you are defending the language 
still.
    Ms. Strossen. I am.
    Senator Kyl. Let me ask, does anybody here believe that the 
PATRIOT Act, as distinguished from other Government policies, 
because this is where confusion--and I appreciate some of you 
pointing out that confusion--that the PATRIOT Act essentially 
suspends habeas corpus? Does anybody believe that that is true 
on this panel?
    Let the record reflect nobody is answering that question in 
the affirmative.
    Ms. Strossen. I certainly am concerned about what remains 
of habeas corpus, which unfortunately had been gutted through a 
series of Supreme Court decisions and prior legislation.
    Senator Kyl. The PATRIOT Act, not other Government policies 
that we are talking about, the PATRIOT Act itself.
    Ms. Strossen. Other Government policies certainly 
contributed.
    Senator Kyl. But my question is does the PATRIOT Act 
essentially suspend habeas corpus.
    Mr. Dempsey. There is nothing in there one way or the 
other.
    Chairman Hatch. I didn't hear you.
    Mr. Dempsey. There is nothing in there one way or the 
other.
    Senator Kyl. Thank you.
    Mr. Zogby. Senator, before we leave, did you throw my name 
out on a whim or was there something there?
    Senator Kyl. I didn't throw it out. I specifically referred 
to you, though, and if you would like to respond, you are very 
welcome to do so.
    Mr. Zogby. I don't quite get what the point was.
    Senator Kyl. What I was trying to say--
    Mr. Zogby. I mentioned John Ashcroft's Department of 
Justice--
    Senator Kyl. Yes, yes, you did.
    Mr. Zogby. --as opposed to Janet Reno's Department of 
Justice, as opposed to the career officers who serve in that 
department, and FBI and law enforcement officials who serve 
throughout successive administrations, et cetera. It was a 
descriptive term, meant nothing more, nothing else.
    Senator Feingold. Mr. Chairman, I want to agree with Mr. 
Zogby on this. I know it is out of order, but there is 
absolutely nothing wrong with referring to John Ashcroft's 
Justice Department. The only error is you should have called it 
what it really is, George Bush's Justice Department. That is 
what it is. That is the only error.
    Chairman Hatch. Now that we have that clear--
    [Laughter.]
    Senator Kyl. I appreciate the clarification on that. Thank 
you, Mr. Chairman.
    Chairman Hatch. Mr. Cleary, you had some comments. Mr. 
Dempsey, you had some comments. Mr. Dinh, you had some 
comments. Let's go in that order.
    Mr. Cleary. Thank you, Mr. Chairman. I just wanted to talk 
about Section 215 briefly, which is another section people have 
talked about here today that I think misses the point of where 
our attention should be focused. Our attention should be 
focused on civil liberties issues. This is not one of them.
    What 215 does is it allows the FISA court to issue an order 
seeking the production of tangible things, and this has become 
in the popular media a concern about library records, what are 
people doing in the library. All this statute does with respect 
to libraries is allow the intelligence community to do what 
criminal investigators have done historically, and that is to 
obtain library records.
    Chairman Hatch. In libraries?
    Mr. Cleary. That is correct, and as one case in point I 
would point back to the Unabomb investigation.
    Chairman Hatch. You actually tried that case for the 
prosecution?
    Mr. Cleary. That is correct, Mr. Chairman, and those of you 
who may remember, Theodore Kaczynski sent what became known as 
the Unabomb Manifesto before he had been identified. That 
manifesto identifies or quotes from a number of books and one 
of the things the investigators did, with a subpoena, is go to 
the local library in Lincoln, Montana, and find out that 
through an exchange program run by that library, a fellow named 
Theodore Kaczynski had checked out a number of those books, and 
that became a large part of the probable cause showing that was 
used to get the search warrant to search Kaczynski's cabin and 
the rest is history.
    I use that as one very dramatic example of how historically 
the Government has been able to obtain records from libraries 
and should be allowed to do it. That is with a grand jury 
subpoena where there is no court oversight. What 215 does is 
provide for an order for similar sorts of records, but 
pursuant, and only pursuant to the FISA court's oversight.
    Chairman Hatch. Thank you.
    Mr. Dempsey and then Mr. Dinh.
    Mr. Dempsey. Well, Mr. Chairman, there are several points 
that could be responded to here. Let me just for a second 
respond to a question that Senator Kyl raised which has to do 
with the FBI guidelines.
    The language of the guidelines says that for the purpose of 
detecting or preventing terrorist activities, the FBI is 
authorized to visit any place on the same terms and conditions 
as members of the public generally. Now, as a guideline, this 
gives no guidance. It doesn't say how to prioritize, it doesn't 
say how to focus investigative activities, it doesn't say what 
to do. It says that an FBI agent can do whatever a member of 
the public can do, which is you are walking down the street and 
you say, oh, there is a nice interesting building, nice 
architecture, let me walk into it. I think that is a whim.
    Now, I don't think that this serves the national security 
interest of telling FBI agents how, given limited resources and 
a terribly overwhelming problem, to focus their activities, 
where to go, when to go, how to decide what to do. So they are 
left rudderless.
    The fear, of course, is that they will be guided by 
inappropriate factors such as ethnicity, religion, political 
factors, et cetera. But even leaving those aside, the 
guidelines provide no guidance, and in that sense I think they 
need to be revisited.
    Chairman Hatch. Mr. Dinh, and then we are going to go to 
Senator Biden.
    Mr. Dinh. Thank you, Mr. Chairman. On that very quick 
point, the Attorney General's guidelines are guidelines; they 
are not exclusive of all the various training procedures and 
supervision that the Department of Justice imposes on, and the 
FBI internally imposes upon its own personnel with respect to 
they conduct investigations.
    This merely states very clearly that for purposes of 
terrorism investigations, the FBI agents have the same 
authority as any community police officer does in order to be 
on the same terms and conditions as general members of the 
public.
    Two other clarifications. Section 802, it must be pointed 
out, is not a substantive provision; it is merely a 
definitional provision. It amends, it adds to Section 2331 of 
Title 18 of the United States Code a definition of domestic 
terrorism; that is, terrorism that occurs within the 
geographical boundaries of the United States.
    The reason that was necessary was prior to the USA PATRIOT 
Act, the only definition of terrorism was international 
terrorism; that is, terrorism that occurs outside the 
geographical boundaries of the United States. It is meant to be 
a geographical description, not a purpose or an intent 
provision.
    And even so, when this Committee considered the provision, 
it was very careful. It did not import the previous definition 
of international terrorism lock, stock and barrel. But, rather, 
the definition of international terrorism is violent acts or 
acts dangerous to human life that are a violation of the 
criminal law of the United States or States of the Union.
    When the Committee considered that definition, it removed 
the phrase ``violent acts'' precisely because of a fear of 
potential chilling or overreach into acts occurring in the 
geographical boundaries of the United States that might 
otherwise be protected by the letter or the spirit of the First 
Amendment.
    Let me repeat, it does not criminalize domestic terrorism. 
Rather, it gives a definitional base for other crimes, most 
significantly, for example, Section 805, which is terrorist 
financing. Without that definition, it would apply to terrorist 
financing that occurred outside the geographical boundaries of 
the United States, but would stop when the boundaries of the 
United States take hold. I think it is simple common sense in 
order to extend that definition. It is also very careful work 
by this Committee to protect the interests of the First 
Amendment in that regard.
    The mischaracterization has been endemic on this provision. 
I want to be very, very clear. Even very, very distinguished 
scholars, one of them my beloved colleague, Sam Dash, have made 
the same mistake in other places. And it just suggests it is 
not an error of characterization, but simply a fundamental 
error of misunderstanding that I think should be corrected.
    Chairman Hatch. Senator Biden, Mr. Zogby wanted to make one 
comment and then I will go to you.
    Mr. Zogby. Just one comment to Senator Kyl.
    I agree with you, Senator, about the need to use temperate 
language and to avoid overladen rhetorical expressions and 
emotionally-driven language that can be very damaging to this 
political discourse. It is an important discussion.
    But I would suggest to you that there have been repeated 
hearings that I have taken note of on very sensitive issues 
close to this discussion about the nature of Islam, about 
Wahabbism, about Saudi Arabia, and about Muslims in America 
that have frequently featured individuals who have used 
rhetorical excess, who have not helped us better understand 
these phenomena, and who frankly have had a political agenda 
designed specifically to obfuscate and, I believe, to inflame 
passions.
    And I would urge you, let's make this a two-way street. 
Let's have a temperate discussion. Let's come to an 
understanding of where we are, what we need to do, and how we 
have to proceed to better understand each other so that we can 
better serve, I think, our collective goal of making our 
country more safe, secure, respected, and understood.
    Thank you.
    Chairman Hatch. Thank you.
    Senator Biden.
    Senator Biden. Thank you very much, Mr. Chairman, and thank 
you for holding the hearing. I am going to try to see if I 
understand whether there are any points of general agreement 
here among all of us first.
    I might note that I--and I will say this for the record, 
but I have said it before, that a lot of the difficulty and a 
lot of the misunderstanding, to the extent there is any, I 
think is a consequence of the attitude of this administration, 
not merely actions, but the attitude of this administration of 
not being responsive to, in my view, this Committee.
    I know the Chairman is a good man. Just as I might find 
myself when I was Chairman--and thank God, I am not anymore--
when I was Chairman of this Committee or Ranking Member for 18 
years, when you have an Attorney General of your own party, you 
try to be helpful if you can even when you disagree. I am not 
suggesting the Chairman disagrees, but I found myself in that 
spot once in a while.
    There has been not a whole lot of disclosure. There has not 
been a whole lot of cooperation and there has been an attitude 
of arrogance that has emanated from this administration with 
regard to this legislation. I think that feeds into some of the 
necessary corrections that need to be made in the PATRIOT Act.
    I have been a Senator for 31 years. There is not one major 
piece of criminal legislation in the last 21 years that I 
haven't cosponsored or written, and every time we pass one I 
say the same thing. This requires us to go back and look at it 
after a year or so. We make mistakes.
    So if we had the normal oversight of this, with cooperation 
in a very tenuous time, at a time when it is not surprising 
that there are excesses in American society on the part of 
Government--and I know it is an old saw, but Franklin Roosevelt 
took every Japanese American and put them behind barbed wire. 
So bad things happen when very bad things happen and people are 
frightened. That is why we are here, for oversight. That is the 
purpose, and that is why some of this was sunseted as well.
    But if I read through this, the bulk of--don't be 
defensive, either side of this debate--the bulk of the most 
egregious mistakes made on the part of our Government, I sense 
from all of you, are things that occurred unrelated to the 
PATRIOT Act. So let's kind of put this in context. It doesn't 
mean the PATRIOT Act shouldn't be scrapped or altered or 
amended or touched, but the bulk of the things that have caused 
us the worst--I have changed seats; I am now on the Foreign 
Relations Committee as the senior Democrat. I can tell you that 
Guantanamo Bay has done more damage to the United States image 
abroad than anything else that has happened, anything else that 
has happened.
    Without passing judgment on whether we should or shouldn't 
have had Guantanamo Bay, the fact of life is as I travel the 
world, no matter where I am, this is brought up. I think it has 
endangered American soldiers. I think it has endangered the 
American military. I think it has endangered American 
diplomats. I think it has endangered American personnel. So you 
can see the effects of it in non-judicial ways, in non-legal 
ways just in terms of the perception of who we are.
    I think there is an absolute need for us to redefine, for 
Congress to exercise its responsibility, as Schiff has in the 
House, and as some of us over here--Durbin, Feingold, and 
others have talked about redefining or defining, laying out 
definitional criteria for what constitutes a combatant and a 
whole lot of different things. That is our responsibility, and 
history is going to judge us on not that we didn't do it within 
a year or two, but if we don't get about doing it pretty soon. 
So we are still within the time warp that it takes big nations, 
like supertankers, to turn around here, and hopefully we will 
do that.
    I want to now move to the PATRIOT Act to make sure I 
understand, again, if there is any consensus. We are basically 
talking about--and when I say basically, it doesn't mean it is 
inconsequential. We are talking about a disagreement relating 
to basically three sections of the PATRIOT Act--213, the 
delayed notice provisions; 215, FISA and the changes in FISA 
that are accommodated in this Act, and there are changes; and 
802 in terms of definitional, whether, A, it is a definition, 
what its meaning is, and if it is a definition, whether it can 
be further refined, or go back behind it to 2331 and redefine 
it.
    So the arguments are who are terrorists; if there are 
terrorists, if it is a suspected terrorist, what constitutes 
the ability for a court to allow delayed notice and the fact 
that you have gone in and impacted on their Fourth Amendment 
rights; and whether or not FISA, in fact, has been expanded in 
a way that is a problem.
    Now, as the author of FISA, I find myself in an interesting 
dilemma here, and that is that I suspect, Professor, you don't 
like FISA, period. So part of your criticism, which is totally 
legitimate, by the way--I am not in any way impugning anyone's 
motive here, okay?
    You are not for FISA, period. You don't think there should 
be FISA.
    Ms. Strossen. Well, actually, I consulted with my staff 
experts to see whether my instinct was right, which was that it 
was better than the prior law which it corrected.
    Senator Biden. But you still don't like it. It is okay. A 
lot of people don't like it.
    [Laughter.]
    Ms. Strossen. We love the Fourth Amendment.
    [Laughter.]
    Senator Biden. Look, I will be candid with you if you are 
candid with me, all right?
    Ms. Strossen. We prefer the Fourth Amendment.
    Senator Biden. It is time to be straight up about this, 
right?
    Ms. Strossen. As you know, it was a compromise on both 
sides, and I think it was a workable compromise.
    Senator Biden. I know. I wrote it. I am the guy that wrote 
it. I understand the compromise, and I understand my usual 
allies in the civil liberties community were opposed to it, 
period. So let's not kid each other here, all right?
    So part of the problem is not merely whether or not FISA 
has been--my first question is if we amended FISA like I think 
we should, as Senator Feingold has suggested--and I happen to 
think he is right--to essentially take FISA and bring it back 
to the standard required prior to the PATRIOT Act, would you be 
for it, then?
    Ms. Strossen. We would certainly support that.
    Senator Biden. Okay.
    Ms. Strossen. That is in the SAFE Act; it is in several 
other Acts.
    Senator Biden. Would anybody else who is opposed to the 
PATRIOT Act think that is--let me back up. For those of you who 
believe, with good reason from your perspective, that this Act, 
the PATRIOT Act, per se, has a chilling effect and it is a bad 
idea, et cetera, is there anything other than repeal of the 
Act, total repeal, that would satisfy you in the sense that you 
would say I now support the Act, other than total repeal?
    I am not being a wise guy. I am trying to get the 
parameters here so we know what we are talking about.
    Ms. Strossen. Well, Senator Biden, I could say that in 
addition to the three reforms that you referred to, there is an 
additional one in the SAFE Act itself, which is constricting 
the roving wiretaps authority, which now do not have safeguards 
to protect against sweeping up conversations by innocent 
people. So that is one more reform.
    Senator Biden. Again, I am the guy that proposed the roving 
wiretaps in previous legislation.
    [Laughter.]
    Senator Biden. No, seriously, and Orrin and I worked on 
that because it was about organized crime.
    Ms. Strossen. And we are not saying repeal it. We are 
saying amend it slightly.
    Senator Biden. That is what I am trying to get at.
    Ms. Strossen. And the two amendments would be, number one, 
that there be a requirement that law enforcement ascertain that 
the target of the wiretap is actually using the communications 
device that is going to be wiretapped.
    Senator Biden. I don't think that is an unreasonable 
suggestion.
    Ms. Strossen. Exactly.
    Senator Biden. I don't think that is an unreasonable 
suggestion, but again I am trying to understand. The worst of 
all things would be--and I will end in a second, Mr. Chairman--
is that we go through all of this and assume for the sake of 
discussion we make the bulk of these, what I would call tweaks, 
refinements, changes, alterations--and I must tell you, 
Professor, I have been most impressed by your testimony.
    Ms. Strossen. Thank you.
    Senator Biden. And you support the Act, but you acknowledge 
what the real underlying debates here are. There are real civil 
liberties questions here.
    Ms. Strossen. But they are relatively apart from the 
national security concerns which have been raised by the 
Government.
    Senator Biden. Well, again, what I want to make sure of is 
if we go through this exercise and we amend it along the lines 
that are being discussed here, are we still going to have--and, 
Mr. Zogby, I have great respect for you, and I really mean 
this. I think that not only the Arab American community, but 
all Americans are indebted to you because of your prominence 
and your willingness to take on and speak up at a time other 
folks in your profession might view it as damaging to their 
interest to do so. So we owe you lot.
    But my guess is you are not for this Act, period, no matter 
how we change it, because it has a generic chilling effect. Is 
that right?
    Mr. Zogby. No, Senator, we have actually not said that at 
all.
    Senator Biden. Well, I am not arguing. I am just trying to 
figure it out.
    Mr. Zogby. Let me just be clear. We have not said that. We 
have been very careful not to say that.
    Senator Biden. Okay.
    Mr. Zogby. We have not supported those who have used 
language that has gone above and beyond where we feel the 
discourse ought to go. We support the SAFE Act and we feel very 
strongly that there is a legislative fix that is possible and 
we are looking for ways to accomplish that.
    Senator Biden. Okay.
    Mr. Dempsey. Senator, if I could?
    Senator Biden. Yes, please.
    Mr. Dempsey. Just speaking for the Center for Democracy and 
Technology, my organization, we do not, in principle, oppose 
the PATRIOT Act. We don't oppose FISA, in principle. We don't 
oppose Title III, we don't oppose roving taps. As I said in my 
opening remarks, I believe that the extension of roving tap 
authority to intelligence investigations made perfect sense. 
The addition of other Title III predicates in the PATRIOT Act 
made perfect sense. It was to some extent overdue.
    We have proposed a series of very specific amendments. I 
think I can categorically say that there is not in the PATRIOT 
Act a single grant of power to the Government and not a single 
provision in the PATRIOT Act that deals with a Government power 
where we oppose that Government power.
    Senator Biden. Good.
    Mr. Dempsey. All we are talking about here are the 
standards. And as you said, in the emotion and time pressure of 
the moment, some mistakes were made. We can have a legitimate 
debate about what should be the standards for delayed notice.
    Senator Biden. Good. Again, I am not in any way being 
critical of any of you. I am just trying to make sure I 
understand the place from which we can all agree to start. Some 
of you will say we start there and stop there, and others 
suggest we go beyond.
    That is a very helpful statement for you to make that none 
of the powers granted in here to the Government are, per se, 
from your perspective, Mr. Dempsey, bad, if you will. I have a 
lot of questions. I will cease and desist now, except to say to 
you I find this very helpful.
    Mr. Chairman, this is a lousy thing to do to you, but I 
really think that we should consider, at a time when we are not 
in session and Mr. Ashcroft has no excuses and we don't either, 
to have extensive hearings here maybe in December on this very 
issue. We have done that on every important thing before. We 
did that on the crime bill, we did that on a lot of other 
things.
    This is the time to maybe work through what I am most 
concerned about and what Mr. Zogby said, and that is working 
through left, right, center, the misconceptions, the hysteria, 
the political agendas. I am not talking about any one of you at 
the table, but just to get to the American people, through 
serious hearings and disclosure by the administration as to 
what they are doing and not doing, what the problems are.
    Ms. Strossen. Senator, I think that is so constructive and 
if it could be focused section by section, as opposed to just 
the PATRIOT Act.
    Senator Biden. I agree. Anyway, I thank you and I yield the 
floor.
    Chairman Hatch. Senator Feinstein.
    Senator Biden. Mr. Zogby wanted to say something.
    Mr. Chishti. Can I just add one comment to Senator Biden's 
question?
    Chairman Hatch. Let's take Mr. Chishti first and then Mr. 
Zogby.
    Mr. Chishti. I just want to say that I think it is 
appropriate that we should hold hearings not just on the FISA 
issue.
    Senator Biden. I mean on the Act. I didn't mean just FISA, 
across the board.
    Mr. Chishti. But I think, more than the Act, as you said in 
your initial statement, most of the acts of the Government, 
especially in the immigration realm, have taken place outside 
the USA PATRIOT Act.
    Senator Biden. I agree.
    Mr. Chishti. So, therefore, it is important to have 
oversight hearings on those issues as well.
    Senator Biden. I agree, I agree.
    Mr. Zogby. And I think that is the point I was going to 
make, is that for clarity sake it is important to recognize the 
PATRIOT Act to become a symbol for all of those other concerns, 
all of those other fears.
    Senator Biden. Which is exactly what it has become.
    Mr. Zogby. And therefore to make, I think, the political 
discourse more meaningful and more temperate, it is important 
to sort of separate those out and be able to criticize what 
needs to be criticized and protect what needs to be protected. 
I think that that would help us a lot.
    Senator Biden. You have said it more succinctly and in a 
more articulate manner than I attempted to say it. That is the 
entire purpose, because we end up having speeches by friends of 
mine and political allies of mine that it is all under the 
rubric of the PATRIOT Act. If you walk out there and 
constituencies that support me--everything is under the rubric 
of the PATRIOT Act, and it is not because people are trying 
to--they are just not informed. We haven't delineated the 
problems and separated them out, and then begun to address each 
one of them ad seriatim here, which I think we have to do.
    Anyway, I thank you. I apologize, Mr. Chairman, for going 
on.
    Chairman Hatch. That is fine.
    Senator Feinstein.
    Senator Feinstein. Thank you, Mr. Chairman.
    Chairman Hatch. I have to be through here in a short time, 
so I hope we can stay within the ten minutes, and that is 
longer than I really can stay.
    Senator Feinstein. I may be the only one that feels this 
way, but I still believe there is a great deal of confusion 
about the PATRIOT Act. I mentioned that at a previously hearing 
I had received over 21,000 letters, e-mails, post cards, and 
the like about the Act and related issues. Since that hearing, 
the number has risen 2,000. And we still have calls against 
PATRIOT II, a draft bill that has never actually been 
introduced. We have also had calls supporting the SAFE Act, 
which my colleagues have introduced, and we have now about 
1,300 against the PATRIOT Act, but they are all very non-
specific.
    To a great extent much of the criticism relates to the 
national security entry-exit registration system, known as 
special registration, which Professor Strossen mentioned. That 
comes through in the critics that I have heard from.
    And then I was listening to others and they were saying 
that the Department of Justice Office of Inspector General had 
found 34 specific abuses of the PATRIOT Act, and you mentioned 
them as well, Dr. Strossen. So I wrote a letter to the IG, Mr. 
Fine, on November 12 asking for clarification of that and he 
sent a response back to me, and I think it is important that it 
be read in the record. It is a letter dated yesterday.
    ``In your letter, you asked whether any of the complaints 
investigated by the OIG pursuant to Section 1001 of the PATRIOT 
Act involve an abuse or violation of a specific provision of 
the PATRIOT Act. The 34 allegations to which we refer in our 
July 1903 semi-annual report do not involve complaints alleging 
misconduct by Department of Justice employees related to their 
use of a provision of the PATRIOT Act. As we discussed in our 
report, we received several hundred complaints from individuals 
alleging that their civil rights or civil liberties have been 
infringed pursuant to the directives of Section 1001 of the 
PATRIOT Act. We reviewed those complaints,'' et cetera.
    ``These allegations''--and I think this is the key--``range 
in seriousness from alleged beatings of immigration detainees 
to verbal abuse of inmates. They generally involve complaints 
of mistreatment against Middle Eastern or Muslim individuals by 
the Federal Bureau of Prisons, the Federal Bureau of 
Investigation, or the Immigration and Naturalization Service. 
We detailed the specific complaints in our semi-annual reports 
to Congress and used the label `PATRIOT Act complaints' because 
we received, investigated them, et cetera, under Section 1001 
of the PATRIOT Act.''
    Every time I try to zero in on an abuse specific to the 
PATRIOT Act, it disappears before my very eyes. So I have come 
to the conclusion that most of the criticism that is out there 
is really not specifically related to the PATRIOT Act, but is 
related to a whole host of other things--special registration 
provisions, special searches that are done under other 
authorities, et cetera.
    Now, having said that, being a non-lawyer on this 
Committee, I spend a lot of time reading about terrorism and 
terrorists, and I go back to Ramzi Yousef and his encrypted 
computer which had details of a plot to destroy 11 airliners on 
it, to reports in the public press about there being the 
possibility of operatives in this country designed to carry out 
a second wave of attacks to 9/11. You recognize that you have 
to provide the wherewithal for domestic intelligence to 
function if you are going to get at the terrorist threat, and 
that is really what the PATRIOT Act is designed to do.
    I have heard enough reported in the public press to be 
concerned that there may well have been a second wave in play 
after September 11. And if there are people out there, the 
question, I guess, I would ask each of you is do you not want 
to get at them before they at us in a big way, and can we not 
do this through this Act.
    Senator Feingold and I were just talking about section 215 
and perhaps giving the judge more flexibility to deny a FISA 
application under that section 215 instead of making it so kind 
of cut-and-dried. But I want intelligence to respect the civil 
liberties of people residing in this country, but at the same 
time to have the ability to properly function and have enough 
clout to be able to get at what may be out there.
    Would you respond to that? Let me hear from Mr. Dinh 
because, Professor, you have been very articulate.
    Mr. Dinh. Thank you very much, Senator Feinstein. I will 
limit my comment to public press reports, as you have, 
regarding the terrorist threat because I do not want to do 
anything untoward with respect to our classifications.
    There have been reports of multiple phases following 
September 11, and I think that the fact that none of these 
phases have hit in the territory of the United States is a 
great tribute to the men and women of law enforcement, and in 
particular the men and women of State and local law enforcement 
who are our eyes and ears on the ground, and the men and women 
of intelligence who provide the basic information upon which 
law enforcement can take action.
    The key to that is, as you noted, both the intelligence and 
the action, actionable intelligence. We are no longer in a Cold 
War world whereby nation states watch each other and try to 
determine their bargaining positions at key rounds in order to 
look for deterrence purposes, but rather we are dealing with a 
world whereby a relatively small number of people with 
relatively little resources can inflict incredible catastrophic 
damage on nation states.
    And so the key is not simply to get information, to get 
intelligence for the sake of intelligence, but rather to 
transfer and take action based upon that intelligence, and, God 
help us, to interrupt terrorism before it happens before the 
terrorists act without the restraint of a nation state.
    I think that, in particular, Section 218 of the USA PATRIOT 
Act provides us with the critical tools in order to facilitate 
that process of collaboration and information-sharing. Much 
more needs to be done to change the culture to encourage such 
functional cooperation and collaboration, and perhaps the 
shift, which is a very significant shift in the nature of how 
intelligence does its business and how law enforcement does its 
business--the experience may suggest to us better ways in order 
to make this happen so that we get the full benefits of such 
coordination without any danger of returning to the days of 
COINTELPRO. I think that this Committee's work is very, very 
important in that regard.
    Mr. Dempsey. Senator, I think--
    Senator Feinstein. Before you answer, may I ask that you 
place this letter of November 17, Mr. Chairman, in the record 
before I forget?
    Chairman Hatch. Sure, I will be happy to do that.
    Senator Feinstein. Thank you.
    Yes, sir.
    Mr. Dempsey. Senator, there should be no doubt that there 
are people today planning terrorist attacks against innocent 
Americans. I don't think any of us should doubt that there are 
people in this country today doing that, and those attacks may 
involve biochemical or nuclear materials.
    But before 9/11, our intelligence and law enforcement 
agencies were drowning in information. They knew two of the 9/
11 hijackers had been spotted in Southeast Asia. They flew on 
those airplanes on September 11 under their own names, and yet 
the CIA had failed to get that information to the FBI and the 
INS in time. There was absolutely no legal barrier to sharing 
that information from the intelligence agencies to the law 
enforcement and immigration agencies.
    Senator Feinstein. Which the PATRIOT Act enables now to be 
shared.
    Mr. Dempsey. Actually, Senator, no, there was no barrier to 
the sharing of intelligence information with law enforcement 
agencies, and the PATRIOT Act has no provision on the sharing 
of intelligence information collected abroad with the law 
enforcement agencies. The PATRIOT Act does allow law 
enforcement to share information collected under law 
enforcement authorities with intelligence agencies. That was 
probably a very appropriate and legitimate change, although I 
think it should have been subject to more appropriate 
safeguards.
    The PATRIOT Act also tried to address the question of 
coordination, but again there was no prohibition in FISA to 
prosecutors and intelligence officers coordinating with each 
other. That was really an invention of the FISA court and the 
Justice Department, which came up with that really in secret 
and the whole thing got totally perverted and did do, I think, 
harm to national security without actually serving civil 
liberties.
    Senator Feinstein. I am sorry. What did harm to national 
security?
    Mr. Dempsey. The perverted concept of the wall, this notion 
that law enforcement officers and intelligence officers within 
the FBI and the Justice Department couldn't talk to each other, 
which was this rule that had been developed in secret by the 
FISA court and by the Justice Department. Attorney General Reno 
had actually tried to overcome that.
    Senator Feinstein. You will admit the PATRIOT Act lowered 
the wall. Whether you think it was there or not, it was there.
    Mr. Dempsey. Well, I think that the wall that was there had 
been a perverted wall and it could have been lowered without 
some of the other changes in the PATRIOT Act. I also think that 
to get to these terrorists who undoubtedly are planning these 
acts, we need these guidelines and these standards and this 
sense of direction and control and oversight.
    The last thing we need is a situation in which the 
Government draws in yet more information that it can't process; 
information that is unfocused and not guided by some reasonable 
suspicion and compounds the problem that existed before. What 
we are talking about today is what are the appropriate 
standards that can guide this vitally crucial activity; what 
are the checks and balances and guidelines that will help these 
agents do the job they need to do without tying their hands.
    Chairman Hatch. If I can interrupt, I am very interested in 
your comments and interested in your suggestions on how we 
might improve the PATRIOT Act, but that is not my 
understanding, Mr. Cleary or Mr. Dinh.
    Mr. Cleary. If I may, Mr. Chairman.
    Senator Feinstein, you are, I believe, one hundred-percent 
correct based on the practical application of what the standard 
was at the time. The standard at the time for FISA action was a 
primary purpose, a primary purpose being foreign intelligence. 
The practical consequence of that was that the Government was 
concerned, the law enforcement community was concerned that if 
the information the intelligence community was gathered was 
shared with the law enforcement community, it would appear to 
the FISA court that the investigative technique used in the 
intelligence community no longer had as its primary purpose--
the standard they have to meet no longer had as its primary 
purpose intelligence-gathering, and therefore the intelligence 
community would run the risk of no longer being able to 
continue with that investigation.
    Senator Feinstein. Thank you, because it was my amendment 
that changed it to ``significant purpose.'' So I remember it 
well.
    Mr. Cleary. Thank you, Senator.
    Senator Feinstein. Thank you.
    Chairman Hatch. We want to thank you.
    Mr. Dinh. Can I make one note here, Mr. Chairman?
    Chairman Hatch. Yes.
    Mr. Dinh. There has been a lot of focus--and I think Jim is 
right that it is not about the information that is collected, 
better use of that information that is collected, but much more 
importantly, it is also the information that got away.
    What we saw with a lot of pre-USA PATRIOT Act operations is 
that it is not that the Government's net is not big enough, but 
there were holes in it; that is, you could evade by simply 
throwing away your cell phone, or in one case anecdotally an 
alleged terrorist cell has formed its own Internet service 
provider in order to evade the formal processes of CALEA and 
other law enforcement authorities.
    It is those kinds of evasive maneuvers that are being 
exploited that really hampers the ability of law enforcement 
and intelligence to create a complete mosaic of intelligence 
information. It is not information that we have, but it is 
information that we don't have.
    Ms. Strossen. Once again, Senator Feinstein, that provision 
is not one that has been objected to by the ACLU or any other 
organization, the one that allows you to tap multiple cell 
phones of a particular suspect.
    Senator Feinstein. I think we know that, but I also think 
in the eyes of the public it is all confused. That is just one 
of the things that is happening out there. Everybody just hits 
at the PATRIOT Act and people confuse it with a whole host of 
other laws.
    Chairman Hatch. Senator Feingold, we will finish with you.
    Senator Feingold. Thank you, Mr. Chairman. As everybody has 
been pointing out, a lot of the recent discussion about 
terrorism and civil liberties has focused on the PATRIOT Act. 
The law does raise many concerns, and I do hope that Congress 
takes action on some very common-sense proposals to remedy some 
of the most troubling provisions.
    As I have previously and repeatedly said, there is much in 
the PATRIOT Act that I support. In fact, I said right when I 
voted against it that I probably support, if you count them all 
up, 90 percent of the provisions. But there also are provisions 
that I and a growing number of Americans have serious and valid 
concerns about.
    The American people are increasingly concerned about the 
potential for abuse in some of the new powers granted by the 
PATRIOT Act. These concerns are not baseless and they are not 
based on myths. And I want to take issue with Senator Kyl's 
presentation, where he read quotes from the ACLU and others 
saying that somehow it is wrong to have a website that says 
stop the PATRIOT Act. That is perfectly normal discourse in our 
country.
    I would note that those websites probably didn't exist 
until well after the Attorney General of this country came 
before this Committee and said the following inflammatory 
thing: ``To those who scare peace-loving people with phantoms 
of lost liberty, my message is this: Your tactics 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.''
    Mr. Chairman, this is the real history of what has happened 
with the PATRIOT Act. If people have a misconception about what 
is in the USA PATRIOT Act, that is our fault. It is not the 
fault of the American people. They are not expected to know 
every line and every word in a 200- or 300-page document.
    The fact is this body scared the American people by rushing 
through a document before it was ready. At the time, as you 
know, I tried to raise four or five specific concerns, and I 
honestly thought that there was a vote that I could vote for 
this piece of legislation. Instead, the process collapsed. This 
entire significant bill in the history of our country's civil 
liberties had only three or four hours of debate, and even my 
leader instructed my fellow Democrats to, quote, ``not vote on 
the merits of the amendments'' because we had to rush so fast.
    That is how we got here. It is not because the American 
people are somehow confused or being irrational. It is the 
hysterical language and approaches that have been used by those 
in advocacy of this bill and their unwillingness to look at 
specific provisions and work as we all want to do to change 
them that is the real problem.
    So I appreciate, frankly, Mr. Chairman, the tone of much of 
the conversation today. Senator Biden talked about trying to 
identify the specific provisions that need to be changed. I 
hope nobody actually answered his question saying if we do this 
and this, we are all done. This is a very important piece of 
legislation. We don't know how many of these provisions will 
work out, but we are in a position now to know that certain 
provisions need scrutiny and need change.
    In response to Senator Feinstein, who is very earnestly 
trying to address her feeling that perhaps some people don't 
know exactly what is in the bill, but also showing a 
willingness to change some of the provisions, I would urge her 
and others to look at the fact that there are provisions of the 
bill that we do know are being used. The expanded sneak-and-
peek powers apparently have been used at least in 47 cases.
    The administration says that Section 215 has not been used 
to access library and other business records, which, of course, 
raises the very critical point that Mr. Dempsey has pointed out 
that why in heck do we need it if it hasn't been used during 
this critical time.
    But let me add another point. Under the national security 
letters provision, Section 505, it may well be that the 
libraries are being contacted for the very same information. So 
when the administration says we have never used it, they are 
not necessarily telling the whole story. A survey in Chicago 
indicated that a number of libraries believe that they had been 
contacted in this regard. So perhaps it was under another 
provision of the Act, but that doesn't mean it isn't being 
used.
    The roving wiretaps provisions are almost certainly being 
used, although we can't be absolutely sure because of the 
secrecy of the FISA proceedings. And I believe a provision that 
doesn't get enough attention, Section 217, the computer 
trespass provisions, needs serious scrutiny because, as I 
understand it, they allow the definition of a trespasser to be 
somebody who not only hasn't done anything with regard to 
terrorism, but hasn't even committed a crime. All they have to 
do is buy a Christmas present on their employer's computer and 
they are trespassers and therefore may be subject to this 
provision. So anyone who believes that there aren't specific 
provisions of the USA PATRIOT Act that are being used and may 
be abused is wrong, and I don't want this hearing to go forward 
without that conclusion.
    But my feeling that is coming out of this is that the 
members of this Committee on both sides of the aisle actually 
do genuinely want to do what should have been done in the first 
place, which is to find those provisions that we know may be a 
problem now and fix them, especially provisions that the 
administration itself isn't even using. It is a great time to 
fix it, before anyone has been harmed by it. But even in cases 
where they may be harm, this is the opportunity to pass some 
legislation.
    So I do appreciate this hearing, Mr. Chairman. I think it 
is important and I think we are moving in the right direction 
on this issue.
    Mr. Chishti, in response to the criticism of the round-up 
of over 750 men, almost all of whom were either Arab or Muslim 
and who were detained on immigration violations in connection 
with the September 11 investigation, the administration has 
said that its conduct was justified because each of these 
individuals had broken the law and was simply enforcing the 
immigration laws.
    How do you respond to that?
    Mr. Chishti. I think that it is fair for them to say that 
they were enforcing the immigration laws. I think the point we 
are trying to make in the context of this hearing is that we 
should see what the aim and the goal of the post-9/11 
immigration initiatives were.
    If the administration would come to announce that we are 
going to initiate a new campaign to deport people who have 
stayed beyond their authorized visas, there would not be a 
question. The point was that these actions of the Government 
and immigration enforcement were sold to counter terrorism, and 
these round-ups of people under various immigration measures 
did not respond to the terrorism threats we had. All they did 
was intimidate this group of people and the communities they 
come from without any measure of success on the terrorism 
front. That is the real criticism. We should be clear about 
what we were doing here. If we were doing this in the name of 
fighting terrorism, we were not accomplishing it by these acts.
    Senator Feingold. I certainly agree with that.
    Mr. Dempsey, both the House and the Senate versions of the 
intelligence authorization bill currently in conference contain 
a provision that greatly expands the FBI's authority to issue 
these so-called national security letters that I just 
mentioned, a form of secretive administrative subpoena used in 
foreign intelligence and terrorism investigations.
    Currently, the FBI may serve NSLs on traditional financial 
institutions; that is, banks. And under the new provision, the 
FBI could also serve NSLs on pawnbrokers, travel agencies, car 
dealers, boat salesmen, casinos, real estate closing agencies, 
and the U.S. Postal Service.
    Today, I joined my colleagues, Senators Durbin and Leahy--
and I congratulate them for their leadership on this--in 
sending a letter to the Intelligence Committee asking that they 
refer this issue to the Judiciary Committee and defer action on 
it.
    What do you know about this provision and do you have any 
concerns about it?
    Mr. Dempsey. Well, we have serious concerns about this 
provision. It is in both the House-passed and Senate-passed 
intelligence authorization bills which are still pending in 
conference.
    The national security letter is an extraordinary device. 
This is literally a letter signed by an FBI agent and submitted 
to a credit company, a bank, or a telephone service provider to 
get certain transactional records.
    Now, in the past Congress has always been careful in 
expanding these. In each case, there was a careful 
justification made and they were narrowly focused. 
Unfortunately, in the PATRIOT Act the particularized suspicion 
standard was removed. In the past, where there was some reason 
to believe that a person might be a terrorist or might be a 
spy, the national security letter could be used to obtain that 
person's records.
    That particularized suspicion standard was eliminated by 
the PATRIOT Act, and honestly I am not sure how they are now 
being interpreted. They could cover entire databases, including 
information about innocent persons, all on the basis of a claim 
by the FBI agent, with absolutely no judicial scrutiny, that 
the information is sought for a counter-terrorism 
investigation.
    Senator Feingold. So it is identical to the concern that 
many of us have about the language in Section 215.
    Mr. Dempsey. Exactly.
    Senator Feingold. Contrary to the myth that is being 
perpetrated that somehow there is judicial review, in fact, it 
is essentially a mandatory provision. All the administration 
has to say is that they seek this information and the judge has 
to give it. Isn't that right?
    Mr. Dempsey. The judge is really a rubber stamp. The 
statute says he ``shall'' issue the order if the Government 
makes the certification. The judge cannot even look behind the 
certification to determine whether those facts are there.
    Senator Feingold. That is exactly what I wanted to get to.
    Mr. Dempsey. In the national security letter, there is no 
judge at all. It is simply the FBI agent saying to himself ``I 
want this.'' And now in this provision that is in the 
intelligence authorization bill, a financial institution would 
be defined to include a car salesman, a travel agent, and a 
host of other businesses not traditionally regulated, not like 
banks, which are required to report information to the 
Government.
    The way the definition works, a financial record is any 
record of a financial institution. So the records that will be 
obtained are not necessarily about bank transactions, but you 
can go to the travel agency and the travel agency becomes a 
financial institution, and then all the records of the travel 
agency become financial records that can be obtained by this 
letter signed by an FBI agent.
    Senator Feingold. Thank you for that specific answer.
    Mr. Chairman, my time is up, but this is exactly the kind 
of analysis that we have been seeking for a couple of years to 
get down to the specifics and fix the provisions that are 
potentially open to abuse.
    Thank you, Mr. Chairman.
    Chairman Hatch. Thank you, Senator. We appreciate that. I 
think it deserves to be pointed out that, yes, they can get the 
warrant from the judge. It is automatic, but they had better be 
right in their representations or the judge can take them apart 
afterwards.
    Mr. Dempsey. I think that goes back to Senator Biden's 
point, which is to not repeal the--
    Chairman Hatch. Well, that is integrity on the part of the 
Government. That is the point.
    Mr. Dempsey. Well, right now, the judge under either 215--
    Chairman Hatch. He has to issue it, but if the Government 
has acted with a lack of integrity, that same judge can take 
the Government to task.
    Mr. Dempsey. But, Mr. Chairman--
    Chairman Hatch. It may be after the fact, but he can take 
them to task.
    Mr. Dempsey. But there is no reporting back to the judge. 
The judge will never know. There is no return.
    Chairman Hatch. Well, that is where the ACLU comes in. And 
don't worry, they will come in.
    Ms. Strossen. We will.
    Mr. Dempsey. Well, Mr. Chairman, every recipient of a 
national security letter and of a 215 order is prohibited from 
telling anybody.
    Chairman Hatch. It isn't just the ACLU. It is--
    Senator Feingold. It is a secret process, isn't it?
    Mr. Dempsey. We will never find out, Mr. Chairman. There is 
a permanent gag order.
    Chairman Hatch. Well, not necessarily. If they misrepresent 
to the court and that can be shown--in some cases, I suppose, 
in criminal law that can be shown--then they are going to 
suffer some tremendous problems.
    Mr. Dempsey. Only if it comes into court.
    Chairman Hatch. And I might add that Section 215 provides 
for Congressional oversight, as well. Every 6 months, we have 
to look at that, and we will. But be that as it may, I just 
wanted to make that one point.
    Senator Durbin.
    Senator Durbin. Mr. Chairman, because I serve both on this 
Committee and the Intelligence Committee, I want to tell you we 
didn't spend a minute, not a minute, discussing these national 
security letter changes as part of this intelligence 
authorization bill--none.
    Senator Feinstein--I am sorry she is not here--said we have 
never seen PATRIOT Act II. Here it is; here is one provision. 
Here is PATRIOT Act II, not coming through this Committee with 
a hearing for an opportunity for this discussion to really be 
full-blown on both sides. Instead, we have given jurisdiction 
over an expansion of the PATRIOT Act to the Intelligence 
Committee, which has not spent one minute discussing its 
substance, not a minute.
    To suggest that if the Government goes too far in a secret 
investigation involving someone's records at a travel agency or 
an insurance company or a real estate broker, that somehow the 
ACLU is going to find out about it--how, when? I really think 
this is a classic illustration of what can't be done by 
direction is being done by indirection. The PATRIOT Act is 
being expanded, and it will be unless, I hope, Mr. Chairman, 
you assert jurisdiction and say to the Intel Committee, stop, 
this is our responsibility; it is not yours.
    Let me just say, as well, that I voted for the PATRIOT Act 
with some misgivings, but understanding that we were facing a 
national tragedy and a national challenge. And I heard the 
argument that we wanted to pass the PATRIOT Act because we 
wanted to break down the wall between law enforcement and 
intelligence which had stopped us from finding would-be 
terrorists before they struck.
    I thought it was a decent argument, but I have come to 
understand as I have looked at it that there is another side to 
the story. We need more intelligence in law enforcement, and 
that is an element that I have really come to understand more, 
serving on both of these committees.
    The argument from the Government has been we need more 
information and we are sorry if the privacy of individuals has 
to be compromised to secure it. I think that is what is behind 
sneak-and-peek, that is what is behind the roving wiretap, and 
that is what is behind the effort to come up with library 
records.
    The Government is saying we regret that in searching 
library records for terrorists, we are also going to look at 
Aunt Louise's book club, but, you know, we have got to stop 
terrorism. And they are saying we are sorry that in tapping the 
phones of would-be suspects of terrorism, we are going to 
listen in to the conversations of innocent people.
    Doesn't that raise an interesting constitutional question 
for us here as to whether or not we are prepared to say that in 
stopping terrorism, we will compromise the rights of innocent 
people? That is what this debate is all about.
    I might also say that it isn't just a matter of gathering 
more information. In the time since September 11, it has been 
my experience that much of the information gathered by the 
Government is not used properly. Archaic computers at the FBI 
are finally, finally being replaced by Bob Mueller, and he 
deserves credit for that.
    The bureaucracy which stops immigration records from being 
shared with people in Homeland Security, and vice versa, 
finally is starting to change. Also, I think there is a very 
bad record when it comes to analyzing this information. They 
don't share it, they don't analyze it; it is not being used 
properly. There is also a ``cover your fanny'' timidity now 
about saying things between agencies. And all of that suggests 
that just enlarging the body of information gathered is not the 
be-all and end-all of this, and particularly at the expense of 
innocent people.
    I want to ask Mr. Zogby a question and preface it by saying 
that there has been no staff that has gone into this; this is 
my question alone and I am asking it of you directly.
    The Chicago Tribune started a series on Sunday, 
``Immigration Crackdown Shatters Muslims' Lives.'' They started 
following the Pakistanis who were deported back to Pakistan, 
and on the front page the finding just hit me between the eyes. 
``Since September 11, 2001, 83,310 foreign visitors from 24 
predominantly Muslim nations and North Korea registered with 
the government after U.S. Attorney General John Ashcroft 
required them to do so. 13,740 of those were ordered into 
deportation. Zero were publicly charged with terrorism, 
although officials say there are a few terrorism connections 
that come out of this.''
    I guess my point, Mr. Zogby and Mr. Chishti, and others as 
well, is this: How can we engage Arab Americans, the Muslim 
population, good, patriotic people who want to stop terrorism, 
if we are also embarking on this kind of effort that sweeps up 
so many people clearly who have been profiled by this 
Government that deports so many people and has so little to 
show for it?
    I think bringing intelligence and law enforcement together 
would argue the opposite should have been done. We could have 
reached out more constructively, come up with more positive 
information, made America safer, with a less heavy-handed 
approach.
    Mr. Zogby, you made reference to this in your statement, if 
you would like to comment on that.
    Mr. Zogby. I would. Thank you, Senator. As important as 
this discussion is, and as both Senators Feinstein and Feingold 
and Senator Biden have made clear, a detailed discussion of the 
PATRIOT Act to pull apart the pieces that work and don't work, 
are needed, not needed, dangerous, not dangerous, et cetera--we 
need to look at all the other practices that have been 
initiated by the Department of Justice that have created fear 
and panic, and that in many instances have then bounced back on 
the PATRIOT Act and the symbol for all these things.
    One of them, of course, is the special registration 
program, which from the very beginning was poorly conceived and 
I believe dangerous. When we first got word of it, we wanted, 
of course, to encourage our people to comply and to register. 
We were told that it would cover all countries, not just Arab 
and Muslim countries; that it would be for everybody.
    Senator Durbin. That is right.
    Mr. Zogby. We then said to the Department of Justice, what 
are you doing--we called INS and said what are you doing to 
make this work? They came back to us and said, well, we have 
sent out notices to all of your organizations. And I said, 
well, wait; number one, the people that you are registering 
don't belong to our organizations. They are visitors. They 
don't log onto the Arab American website to become members 
because they are only going to be here in the country for a 
short period of time. And they said, well, we have gone out to 
our offices.
    So we on our own called INS offices around the country to 
see what had been done to date. We found half of the offices 
that we called had done nothing. Some of them were not sure 
what they had to do. The Los Angeles office was interesting. 
They said we are all set; we are ready to go. We are going to 
be able to process these people. We are going to be able to get 
a hundred through in a day and we are all equipped to get the 
job done. Getting the job done differed from office to office 
because instructions weren't clear.
    INS offices are underfunded, understaffed, and they were 
ill-equipped to carry out this program, so that in Los Angeles, 
800 people showed up in 1 day; 700 got detained because they 
didn't know what to do with them. The fear that that created 
that spread across the country created panic.
    I have a weekly television show, a live call-in program, 
and we were getting calls from people saying I can't go; I am 
not going to register. I am afraid. I can't be detained. I have 
a job, I have family; I have this, I have that. We said you 
have to go and do it.
    Of the 83,000 who registered, I believe maybe an equal 
amount didn't go and register because they were so afraid after 
the L.A. Iranian situation, number one. Number two, what is 
tragic is that the people who complied, who obeyed the law and 
registered--of them, we are now deporting 13,000. The shock 
that that has sent throughout this community, because most of 
these people have ties of one sort or another, and has sent 
overseas has been very dangerous and damaging to our country.
    I think, therefore, that we need to take a very close look 
at this program and look at how it has not only not worked, but 
probably was designed not to work from the get-go.
    Senator Durbin. Mr. Chishti, before you respond I would 
like to have Professor Dinh's comment because I want to hear 
both sides of this story. But do you sense in my remarks that I 
have suggested that it isn't just about strengthening the hand 
of law enforcement, but it is also strengthening the 
intelligence-gathering, and at times they are at cross-
purposes? Clearly, this registration is one effort.
    I might also add that although the PATRIOT Act has become a 
shorthand for all of the fear of Government excess and many 
times a misnomer, it does reflect the feeling among many 
Americans that our liberties are being compromised in the name 
of security.
    Now that you have been in the administration and back out 
again into civilian life, can you understand this anxiety felt 
by the American people, and also sense that perhaps we are too 
heavy on the law enforcement side and should use intelligence 
more to protect America?
    Ms. Strossen. Chairman Hatch and Senator Durbin, with 
apologies, I have a plane to catch, so thank you very much for 
your important work and for including me.
    Senator Durbin. Thank you.
    Chairman Hatch. Well, we are very happy to have you here.
    Mr. Dinh. Senator Durbin, on your very important question, 
I do agree with you that the USA PATRIOT Act has been a brand, 
and a brand that has been severely diluted, and the dilution 
results from a general anxiety that is out there. Whether or 
not that anxiety is properly placed or not is the conversation 
that this Committee is having, and ultimate resolution on 
specifics with respect to constitutional rights will be 
ultimately resolved by the courts, I hope with help from this 
Committee and Congress in general.
    I do agree with you profoundly that the work of law 
enforcement and intelligence needs to be done better, and not 
only that they should work together, but each should be able to 
deliver the mail and make the trains run on time in their own 
respective organizations better, including the coordination 
between the two institutions.
    I do want to make a little note regarding the immigration 
enforcement. As you know, this is an issue that we have worked 
on before 9/11 to bring what I call sanity to the immigration 
policy so that we do not have a disconnect whereby the 
immigration laws are passed without proper resources to be 
enforced and therefore routinely ignored, to return some 
semblance of an immigration policy to this country.
    In that respect, I do think you are proper, and Mr. Zogby 
certainly is justified, to focus on the 80,000 number and the 
13,000 deportations. But to put it in context, every year the 
immigration authorities initiate proceedings against 
approximately one million persons who are illegally or 
unlawfully in this country. These numbers should be put in 
context so that there is not an untoward message that only 
these persons are being profiled, only these persons are being 
enforced against. But it is one part of immigration policy 
enforcement, and also national security protection.
    Senator Durbin. But this was a proactive effort by the 
Government. They decided that people primarily from Arab and 
Muslim nations would be called in to register. It is tantamount 
to a situation where an FBI agent called me--he is in a 
Midwestern city--and said I can't really go to a group of Arab 
Americans at a community center and say I want to talk to you 
about any concerns we should have in this community. But before 
we talk, what is your immigration status? Is it possible that 
you are out of status and maybe you should be deported? How far 
does that conversation go?
    Mr. Dinh. That does not go very far, and I very much agree 
with you on that very important technical point. One note I 
would make, however--and I do not know whether it is true or 
not, but one of the most welcome pieces of news I read in the 
newspaper within the last several months is that the Department 
of Homeland Security, the Bureau of Immigration and Customs 
Enforcement, is now ready to fully implement the charge of 
Congress since 1996 that there be a comprehensive entry-exit 
registration system.
    That has been a charge from Congress since 1996. That 
deadline, of course, was missed in 2001 and then extended. I am 
very glad that that comprehensive system has now been 
implemented, or at least is in the beginning stages of 
implementation, so that the complaint of Mr. Zogby and the 
justifiable perception that there is selective enforcement is 
no longer the reality that is out there.
    Senator Durbin. Mr. Chairman, you have been very patient. I 
thank the panel. I wish I could go longer, but I know that you 
don't. Thank you.
    [Laughter.]
    Chairman Hatch. Well, you all have gone longer. Let me just 
say this is important and it is important to you.
    I think it is important to point out that there is no bill 
that is this large that you can't refine or make better. This 
panel has helped us to a degree with regard to that, but still 
I think Senator Feinstein is right. An awful lot of criticism 
of what is going on in the administration is not of the PATRIOT 
Act, because it has nothing to do with the PATRIOT Act. A lot 
of it has to do with the immigration laws and the enforcement 
of those laws in those society.
    Frankly, that doesn't negate the fact that we have to be 
fair and that we have to do what is right, not just to Arab 
Americans, but to all Americans, and not just to non-Arab 
Americans, but all non-American people who are legally in this 
country. Those who are here illegally we need to treat with 
consideration as well, although we should enforce the laws.
    Now, what I have been interested in is that almost all the 
criticism of the PATRIOT Act has been, I think, very much 
misplaced if you listen to the experts in the field like Mr. 
Cleary who have had to actually implement it, and had to 
implement the laws before the PATRIOT Act came long, and will 
to a person, I believe, say that they are much better equipped 
today to fight against terrorism than they were before. Now, 
that doesn't mean that we can't look for ways of improving this 
law, and that is one reason for this hearing.
    I think in the regard, Mr. Dempsey, you have been very 
helpful to the Committee. We would enjoy receiving further 
information on a section-by-section basis on what you think 
could improve it. You haven't come here and said get rid of it, 
throw it out, it is a lousy law, et cetera, et cetera. You have 
come here and tried to make some constructive suggestions, not 
all of which I agree with, by the way, and neither did Senator 
Biden. I can't speak for him, but we have worked very closely 
on these criminal law issues.
    This is a very important Act. Without it, I don't think we 
could curtail terrorism like we are, and I think the record of 
the Justice Department, the FBI, and other law enforcement 
agencies in this country has proven that thus far.
    Now, if the Act goes too far, then we want to correct that. 
On the other hand, this business of sneak-and-peek--my gosh, 
criminal law enforcement has used that throughout the years. To 
make that sound like that is some big, brand new thing, it 
isn't at all. Under the PATRIOT Act, they are subject to 
reasonable rules.
    You know, I hear on the one hand from Ms. Strossen that she 
is not really against roving wiretaps. Yet, on the other hand, 
I heard her say she is basically against some aspects of it. 
Well, if she can make the case, we are going to listen. But I 
in many respects prefer to listen to Mr. Cleary, who is in 
private practice today but who was on the front line.
    Now, Professor Dinh worked with us day in and day out, 18-
hour days. I remember it was right here in this room where the 
PATRIOT Act was born. Senator Leahy and I had a lot to do with 
it; as a matter of fact, had almost everything to do with it. 
The fact of the matter is that without Professor Dinh, we 
wouldn't have done as good a job as we did.
    Now, there is no Act that is 300 pages or whatever it is 
that can't be improved. So we are interested in your comments, 
and interested in having any suggested improvements and we will 
certainly consider them. Mr. Zogby, that goes for you, and it 
goes for you, Mr. Chishti, because this is important.
    I want to thank all the witnesses for testifying today. 
This has been an important hearing. Security and freedom are 
the very foundations of our country. I don't know anybody on 
this panel, in the Judiciary Committee, who is not interested 
in protecting civil liberties and freedoms. Our country is a 
beacon of freedom throughout the world. It is a country where 
people come from all over the world and share the American 
dream.
    In preserving our place in the world, however, we have to 
be careful to act responsibly to identify, stop and disable 
terrorists around the world, but particularly in our country, 
and especially those who enter our country who want to 
perpetrate attacks on innocent Americans. Anybody who thinks 
this is just talk hasn't lived in the last few years.
    From today's hearing, it is apparent to me that much of the 
criticism surrounding the Government's anti-terrorism efforts 
centers on laws and policies that have little or nothing to do 
with the PATRIOT Act. That doesn't mean that we can't look for 
ways of improving it.
    In future hearings, this Committee will examine further 
some of these important civil liberties issues, such as the 
designation of enemy combatants and the detention of the 
Guantanamo Bay prisoners. Those are matters that bother all of 
us.
    On the other hand, wouldn't it be awful if we overemphasize 
civil liberties to the degree that we also have another major, 
major terrorist incident in our country because we didn't do 
the things that were protective of American citizens and 
others?
    George Washington once said, ``There is nothing so likely 
to produce peace as to be well prepared to meet the enemy.'' So 
we have to maintain our vigilance and our commitment to winning 
the war against terrorism, but do so in a manner that ensures 
the civil liberties and freedoms of all our people within our 
borders.
    Finally, I would like to commend Dr. Zogby for the work of 
his son, Joe, Senator Durbin's head staffer on immigration and 
other matters. We appreciate his work for the Committee. I 
think you should be a proud father, and I am sure you are. I 
can see by the look on your face that you are, and I would be 
disappointed if you weren't.
    Mr. Zogby. I thank you for your sign of good taste.
    Chairman Hatch. Thank you very much.
    Well, we have enjoyed having you all here today, and we 
will continue to research this matter, look at it further, and 
hopefully make the right decisions down the line. But I hope 
people realize this PATRIOT Act has played a significant role 
in protection of this land and we should never deemphasize 
that.
    With that, we will recess until further notice.
    [Whereupon, at 1:37 p.m., the Committee was adjourned.]
    [Additional material is being retained in the Committee 
files.]
    [Questions and answers and submissions for the record 
follow.]

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