[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



                   USA PATRIOT ACT: A REVIEW FOR THE 
                       PURPOSE OF REAUTHORIZATION

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                             APRIL 6, 2005

                               __________

                           Serial No. 109-12

                               __________

         Printed for the use of the Committee on the Judiciary


    Available via the World Wide Web: http://www.house.gov/judiciary



                                 ______

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                       COMMITTEE ON THE JUDICIARY

            F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois              JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina         HOWARD L. BERMAN, California
LAMAR SMITH, Texas                   RICK BOUCHER, Virginia
ELTON GALLEGLY, California           JERROLD NADLER, New York
BOB GOODLATTE, Virginia              ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio                   MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California        ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee        SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah                   MAXINE WATERS, California
SPENCER BACHUS, Alabama              MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina           WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana          ROBERT WEXLER, Florida
MARK GREEN, Wisconsin                ANTHONY D. WEINER, New York
RIC KELLER, Florida                  ADAM B. SCHIFF, California
DARRELL ISSA, California             LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona                  ADAM SMITH, Washington
MIKE PENCE, Indiana                  CHRIS VAN HOLLEN, Maryland
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas

             Philip G. Kiko, Chief of Staff-General Counsel
               Perry H. Apelbaum, Minority Chief Counsel


                            C O N T E N T S

                              ----------                              

                             APRIL 6, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable F. James Sensenbrenner, Jr., a Representative in 
  Congress from the State of Wisconsin, and Chairman, Committee 
  on the Judiciary...............................................     1
The Honorable John Conyers, Jr., a Representative in Congress 
  from the State of Michigan, and Ranking Member, Committee on 
  the Judiciary..................................................     2

                               WITNESSES

The Honorable Alberto R. Gonzales, Attorney General, U.S. 
  Department of Justice
  Oral Testimony.................................................    33
  Prepared Statement.............................................    37

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Letter submitted by the Honorable John Conyers, Jr. from Ms. 
  Clash-Drexler..................................................     5
Article submitted by the Honorable John Conyers, Jr., entitled 
  ``Seeking the Truth From Justice,'' by Laura Murphy, former 
  Director, American Civil Liberties Union.......................     7
Prepared Statement of the Honorable Sheila Jackson Lee, a 
  Representative in Congress from the State of Texas.............    19
Prepared Statement of the Honorable Linda Sanchez, a 
  Representative in Congress from the State of California........    32
Prepared Statement of the Honorable Zoe Lofgren, a Representative 
  in Congress from the State of California.......................    32

                                APPENDIX
               Material Submitted for the Hearing Record

USA Patriot Act: Sunsets Report, prepared by the U.S. Department 
  of Justice.....................................................    85
Chapter I of On Liberty by John Stuart Mill, submitted for the 
  Record by the Honorable Sheila Jackson Lee.....................   156

 
      USA PATRIOT ACT: A REVIEW FOR THE PURPOSE OF REAUTHORIZATION

                              ----------                              


                        WEDNESDAY, APRIL 6, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 1:01 p.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
quorum for the taking of testimony is present.
    On September 11, 2001, 19 terrorists turned four planes 
into guided missiles that killed more than 3,000 innocent men, 
women, and children, caused approximately $100 billion in 
economic losses, and triggered U.S. military action in 
Afghanistan. In response to the failure of the Nation's law 
enforcement and intelligence communities to discover and 
prevent these attacks, Congress passed the USA PATRIOT Act. The 
objective of this bill was to modernize both Federal law 
enforcement and intelligence investigative tools and to ensure 
that the information collected was shared between the law 
enforcement and intelligence communities.
    September 11 also led to the passage of several other key 
pieces of legislation to assist law enforcement and the 
Intelligence Community with their efforts in the war on 
terrorism. Such accomplishments included creating a Department 
of Homeland Security to better coordinate agency efforts for a 
secure homeland; further improvements to information sharing; 
efforts to enhance border and visa security; and heightened 
penalties for terrorist acts and criminal activities which 
assist in their furtherance.
    The PATRIOT Act is an important part of the overall 
framework to protect our Nation. In passing the PATRIOT Act, 
Congress established standards and oversight for the use of the 
Act's provision. For example, section 1001 of the PATRIOT Act 
requires the Inspector General of the Department of Justice to 
determine and report to Congress civil liberties violations. I 
would note that this includes any violations of civil liberties 
by DOJ, not just those alleged to have occurred under the 
provisions of the PATRIOT Act. To date, the Inspector General 
has issued six reports and not found a single example of a 
civil liberties violation relating to authority granted under 
the PATRIOT Act.
    To further address concerns that enhanced law enforcement 
tools could lead to civil liberties violations, Congress 
included a sunset provision for 16 sections of the PATRIOT Act. 
These 16 sections, set to expire this year on December 31, are 
aimed at updating investigative tools and improving information 
sharing and go to the very heart of our Nation's response to a 
changed world in which terrorists plot to destroy our very way 
of life.
    As we consider the reauthorization of these provisions, we 
must consider whether allowing them to expire will once again 
saddle law enforcement and the Intelligence Community with the 
restrictions that will render intelligence unreliable and 
prosecutions unattainable against criminals and terrorists who 
increasingly utilize advanced technology and 
countersurveillance methods to improve their efforts to harm 
and to kill.
    As we learned from the 9/11 attacks, procedures needed to 
be streamlined for law enforcement and the Intelligence 
Community to react in real time. In this war on terrorism, we 
are racing against the clock. Terrorist cells operate 
throughout the world, including within our own borders, and 
actively plan attacks against U.S. citizens. Law enforcement 
and the Intelligence Community must be able to quickly protect 
the public from future attacks.
    That is why I believe that one of the most important tasks 
Congress faces this year is to consider the reauthorization of 
these provisions. Lawmakers must focus on how the PATRIOT Act 
has been implemented, what improvements, if any, are needed, 
and whether the provisions set to expire deserve to be made 
permanent.
    Accordingly, the Committee plans an ambitious hearing and 
oversight schedule beginning with today's full Committee 
hearing with Attorney General Alberto Gonzales. After this 
hearing, the Committee will hold eight Subcommittee hearings 
through April and May on the PATRIOT Act provisions that are 
set to expire on December 31. Finally, I anticipate the Deputy 
Attorney General and the Inspector General will testify before 
the full Committee soon after the Subcommittee hearings are 
completed. These hearings reflect this Committee's continued 
commitment to monitor the implementation of anti-terrorism 
legislation, to conduct active oversight over the Department of 
Justice, and to ensure that law enforcement has the tools 
necessary to fight and to win the war on terrorism and to fight 
crime in general.
    I look forward to hearing the testimony of the Attorney 
General, and congratulations, General Gonzales, on your recent 
confirmation.
    Now I recognize the gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman. Good afternoon, Mr. 
Attorney General. We are delighted to have you here.
    As we begin our review of the PATRIOT Act, let me start at 
this very important point. Those who oppose the passage of any 
parts of the PATRIOT Act, want changes, who question its 
utility, who are concerned about the Government's demand for 
new and unnecessary powers after September 11 are not those who 
do that because they have any sympathy with terrorists or those 
that support them. I personally resent on the part of all 
Americans any one, particularly in the Government, that takes 
that point of view.
    In the Congress and in the Judiciary Committee, that's even 
more important because we make the laws. We pass the laws. 
These are our responsibilities. This is what we took the oath 
for. So we have a historic and legitimate concern regarding the 
misuse and the abuse of Government power, any Government power, 
but particularly coming from the Department of Justice, not 
only under the PATRIOT Act, but under the entire array of 
authority unilaterally assumed in many instances by the 
Administration since September 11.
    This includes the mistreatment of detainees, the condoning 
of torture, the designation of enemy combatants, the 
immigration sweeps, hundreds of them, the excessive collection 
of personnel data, the closing of immigration proceedings, the 
unchecked military tribunals, and the abuse of our material 
witness statutes.
    When our own Government detains and verbally and physically 
abuses thousands of immigrants for unknown and unspecified 
reasons with no time limits, targets tens of thousands of Arab 
Americans for intensive interrogation, I, sir, see a Department 
of Justice that has institutionalized racial and ethnic 
profiling without the benefit of a single terrorism conviction.
    When our President takes upon himself to label United 
States citizens as enemy combatants without a trial, without 
charges, without access to the outside world, I see an 
executive branch that has placed itself in the constitutionally 
untenable position of prosecutor, judge, and jury, and is 
ignoring, to my shock and dismay, the principles of the 
separation of powers.
    When our Justice Department condones the torture of 
prisoners at home and abroad, authorizes the monitoring of 
mosques and religious sites without any indication of criminal 
activity, I see a course of conduct that makes our citizens 
less safe, not more safe, and undermines our role as a beacon 
of democracy and freedom in the world.
    When the FBI can arrest an innocent American citizen, a 
Muslim, Brandon Mayfield, based on a botched fingerprint exam, 
blame him for blowing up a train in Spain and he's never been 
in the country, has no known connection to al-Qaeda or any 
terrorist group, I hope you can understand why so many 
Americans are distrustful about the tactics and standards being 
applied in our war against terror.
    When the PATRIOT Act can be misused to tap Mr. Mayfield's 
phones, seize his property, copy his computer, spy on his 
children, take his DNA, all without his knowledge, please, sir, 
appreciate why I am today calling on the Inspector General to 
review the manner in which this American citizen and his family 
have been treated by our Government.
    In the past, your predecessor has stated that those who 
would criticize this Administration are aiding the terrorists 
and giving ammunition to America's enemies and chastise us as 
searching for phantoms of lost liberty. Well, I'm here to say 
that these incidents are not phantoms, thousands of them. They 
involve real people with real families whose civil liberties 
have been abused in the war on terror.
    This Member will not be bullied or intimidated or rushed 
into backing down from my legislative and oversight 
responsibilities. Many of us remember a time when the powers of 
the FBI and the CIA were horribly abused. We know what it means 
to face racial profiling and religious persecution. Many of us 
know that our Nation has too frequently overreacted to threats 
of violence in the past by clamping down on legitimate protests 
and law-abiding citizens and immigrants. To me, the lessons of 
September 11 are that if we allow law enforcement to do their 
work free of political interference, if we give them adequate 
resources and modern technologies, we can protect our citizens 
without intruding on our liberties.
    We all fight terrorism, but we want to work with you to 
fight it the right way, consistent with our Constitution and in 
a manner that serves as a model for the rest of the world.
    Chairman Sensenbrenner. Thank you, Mr. Conyers.
    [The letter from Ms. Clash-Drexler follows:]

Letter submitted for the Record by the Honorable John Conyers, Jr. from 
                           Ms. Clash-Drexler



Article submitted by the Honorable John Conyers, Jr. entitled ``Seeking 
 the Truth From Justice,'' by Laura Murphy, former Director, American 
                         Civil Liberties Union



    Chairman Sensenbrenner. Without objection, all Members may 
place opening statements in the record at this point.
    [The prepared statement of Ms. Jackson Lee follows:]

    
    
    [The prepared statement of Ms. Sanchez follows:]

Prepared Statement of the Honorable Linda T. Sanchez, a Representative 
                in Congress from the State of California

    Thank you, Chairman Sensenbrenner and Ranking Member Conyers for 
convening this oversight hearing today to review the PATRIOT Act, and 
to consider its reauthorization.
    Reauthorizing the PATRIOT Act raises many very deep concerns, and 
those concerns are just as deep as the opposition I feel to the first 
incarnation of the PATRIOT Act.
    The PATRIOT Act signed in 2001 is a massive infringement on many 
civil liberties. It became law with little consideration of the 
consequences of giving law enforcement such broad surveillance powers--
even going so far as granting them access to your library records.
    Every Member of this Committee is fully aware of how quickly we 
advanced from the terrorist attacks on 9/11, to the concept of the 
PATRIOT Act, to the bill being passed by both chambers of Congress.
    It only took 41 days.
    Forty-one days is simply not enough time to fully develop a bill 
that impacts the Constitutionally protected privacy rights of every 
American citizen, and granted so much authority to law enforcement 
agencies.
    Some of the new law enforcement powers the PATRIOT Act allows are 
shocking.
    We now live in a country where the government can listen to 
conversations between attorneys and clients as they prepare their 
defense in certain cases.
    We live in a country where the government has the power to 
indefinitely detain and even deport people who are part of certain 
associations, or simply exercise their right to free speech.
    We live in a country where law enforcement agents have the power to 
detain aliens when the Attorney General merely suspects they have 
engaged in terrorist activity.
    That doesn't sound like the United States to me, it sounds more 
like Communist China?
    As troubling as the law enforcement provisions of this bill are, 
the restrictions on the ability of Judiciary and Legislative branches 
to oversee law enforcement's actions are equally troubling.
    This Committee has tried in vain to exercise its oversight powers 
and get answers to our many questions about how the PATRIOT Act is 
being used, and more importantly, how it is being misused.
    Far too often we have been met by a wall of secrecy or silence.
    That is unacceptable. When every American's civil liberties and 
rights are at stake, we must have transparency to ensure that privacy 
rights are protected.
    I fully recognize how monumental and important the task of 
protecting national security and preventing future terrorist attacks 
is.
    I also recognize that law enforcement agents are working tirelessly 
to protect our country and will need every resource we can provide to 
keep another 9/11 from happening.
    But we cannot trample on the Constitution in our effort to prevent 
terrorist attacks.
    I thank the Attorney General for his testimony today, and I hope 
that he can inform the Committee how he plans to address the serious 
civil liberty concerns inherent in reauthorizing the PATRIOT Act.
    I yield back.

    [The prepared statement of Ms. Lofgren follows:]

 Prepared Statement of the Honorable Zoe Lofgren, a Representative in 
                 Congress from the State of California

    Following the attacks of 9/11, this Congress passed the USA PATRIOT 
Act to give our law enforcement and intelligence agencies new powers to 
fight terrorism. I voted for that law, but only after securing support 
for sunset provisions that allowed this Congress to revisit these 
issues under less trying circumstances.
    Today, we begin that review in a very different atmosphere. This 
Nation is still fighting terrorism at home and abroad. But an 
increasing number of Americans are beginning to wonder whether the 
PATRIOT Act does more harm than good. In fact, over 370 communities and 
4 states have passed resolutions opposing parts of the PATRIOT Act. 
These communities represent about 56 million Americans who have lost 
faith in their government's ability to protect civil liberties.
    It's no surprise so many Americans have lost faith. Aside from the 
PATRIOT Act, Americans have had to deal with torture scandals that were 
at least implicitly authorized by their own government. They have had 
to grapple with the reality that their government detains its own 
citizens for indefinite periods of time without charge, access to 
counsel, or due process. And they have had to watch their government 
conduct racial profiling sweeps and secret tribunals.
    Add to these realities the fact that this Administration has been 
so secretive about its use of the PATRIOT Act, and one can understand 
why the American public wants answers.
    Every American, whether Democrat or Republican, wants to protect 
this country and all it stands for. But we cannot let our zeal for 
security destroy our fundamental freedoms. There must be a system of 
checks and balances to ensure that the goals of security and liberty 
both receive attention.
    I question whether this Administration is succeeding in that 
challenge. I question this Administration's actions because I love this 
country too much to sit back and watch our fundamental freedoms give 
way to indefinite detentions and secret tribunals.
    For several years now, this Congress has abrogated its 
responsibility to ask the tough questions. But today, we have an 
opportunity to change that. There are difficult decisions ahead of us. 
I am hopeful that the members of this committee will follow their 
conscience and not the prevailing political winds of the day. These 
issues are too important.
    As we start this process, I for one plan to keep an open mind. But 
I cannot do my job unless this Administration starts to provide real 
answers. We have the time to give thoughtful consideration to whether 
particular powers actually advance security and adequately protect 
civil liberties. But we can't do that in a vacuum. We need to know the 
facts. We need to know whether these powers are actually helping 
protect this country from terrorism. And we need to know their effect 
on fundamental freedoms. These are not Republican issues, and they are 
not Democratic issues. They are American issues, and the public 
deserves answers. I hope we can get some starting today.

    Chairman Sensenbrenner. Now, I would like to welcome our 
witness today, Attorney General Alberto Gonzales. He was sworn 
in as our Nation's 80th Attorney General in February of this 
year. Prior to his appointment, he served as counsel to 
President George W. Bush throughout the President's first term. 
Before coming to Washington, he sat on the Supreme Court of 
Texas, served as Texas Secretary of State, and served as 
General Counsel to then-Governor Bush. Before joining the 
Governor's staff, he was a partner with the law firm of Vinson 
and Elkins. It is also noteworthy to mention that General 
Gonzales has served in the Air Force, which adds to his 
distinguished career.
    Welcome, General. We are pleased to have you testify today, 
and if you will please rise and take the oath, you may proceed 
afterwards.
    Do you solemnly swear that the testimony before this 
Committee will be the truth, the whole truth, and nothing but 
the truth, so help you, God?
    Attorney General Gonzales. I do.
    Chairman Sensenbrenner. Thank you. Attorney General, you 
are now recognized.

   TESTIMONY OF ALBERTO R. GONZALES, ATTORNEY GENERAL, U.S. 
                     DEPARTMENT OF JUSTICE

    Attorney General Gonzales. Chairman Sensenbrenner, 
Congressman Conyers, and Members of the Committee, I am pleased 
to be here to discuss an issue relating to the security of the 
American people and the protection of our cherished freedoms.
    Following the attacks of September 11, the Administration 
and Congress came together to prevent another tragedy from 
happening again. One result of our collaboration was the USA 
PATRIOT Act, which was passed by Congress with overwhelming 
bipartisan support after carefully balancing security and civil 
liberties. And since then, this law has been integral to the 
Government's prosection of the war on terrorism. We have 
dismantled terrorist cells, disrupted terrorist plots, and 
captured terrorists before they could strike.
    Many of the most important authorities in the Act are 
scheduled to expire on December 31 of this year. I believe it 
is important that they remain available. Al-Qaeda and other 
terrorist groups still pose a grave threat to the security of 
the American people and now is not the time to relinquish some 
of our most effective tools in the fight.
    As Congress considers whether to renew these provisions, I 
am open to suggestions for clarifying and strengthening the Act 
and I look forward to meeting with those both inside and 
outside of Congress who have expressed concern about some of 
these provisions. But let me be clear that I cannot support any 
proposal that would undermine our ability to combat terrorism 
effectively.
    All of us continue to have the same objective, ensuring the 
security of the American people while preserving our civil 
liberties. I, therefore, hope that we would consider 
reauthorization in a calm and thoughtful manner and with the 
understanding that while the tools of the PATRIOT Act are 
important, they are not extraordinary. Many of these 
authorities to deal with terrorists have long been available to 
prosecutors to deal with ordinary criminals, and actions under 
the Act often must occur with the approval of a Federal judge. 
Our dialogue should be based on these facts rather than 
exaggeration.
    And because I believe that this discussion must be 
conducted in an open and honest fashion, I will begin my 
testimony today by presenting this Committee with relatively 
new information recently declassified about the use of certain 
PATRIOT Act provisions.
    Of the 16 provisions scheduled to sunset, I understand that 
some Members of this Committee are most concerned about 
sections 206 and 215. Section 215 granted national security 
investigators authority to seek a court order requiring the 
production of records relevant to their investigation. Just as 
prosecutors use grand jury subpoenas as the building blocks of 
criminal investigations, investigators of international 
terrorism and espionage cases must have the ability, with 
appropriate safeguards, to request production of evidence that 
can be essential to the success of an intelligence 
investigation.
    To be clear, a section 215 order, like a subpoena, does not 
authorize Government investigators to enter anyone's home or 
search anyone's property. It is a request for information. A 
Federal judge must approve every request for records under 
section 215, and the FISA court has granted the Department's 
request for a 215 order 35 times as of March 30, 2005.
    Although prosecutors have long been able to obtain and have 
obtained library records in connection with a criminal 
investigation, I understand section 215 may be considered 
controversial because of fears concerning its theoretical use 
to obtain library records. However, I can report the Department 
has not sought a section 215 order to obtain library or book 
store records, medical records, or gun sale records. Rather, 
the provision to date has been used only to obtain driver's 
license records, public accommodation records, apartment 
leasing records, credit card records, and subscriber 
information, such as names and addresses, for telephone numbers 
captured through court-authorized pen-register devices.
    Going forward, the Department anticipates that our use of 
section 215 will increase as we continue to use the provision 
to obtain subscriber information for telephone numbers captured 
through court-authorized pen-register devices, just as such 
information is routinely obtained in criminal investigations.
    Although some of the concerns expressed about section 215 
have been based on inaccurate fears about its use, other 
criticisms have apparently been based on possible ambiguity in 
the law. The Department has already stated in litigation that 
the recipient of a section 215 order may consult with an 
attorney and may challenge that order in court. The Department 
has also stated that the Government may seek and a court may 
require only the production of records that are relevant to a 
national security investigation, a standard similar to the 
relevant standard that applied to grand jury subpoenas in 
criminal cases. The text of section 215, however, is not as 
clear as it could be in these respects. The Department, 
therefore, is willing to support amendments to section 215 to 
clarify these points.
    We cannot, however, support elevating the relevant standard 
under section 215 to probable cause. According to our lawyers 
and agents, raising the standard would render section 215 a 
dead letter. As we all know, probable cause is the standard 
that law enforcement must meet to justify a search for 
electronic surveillance. It should not be applied to 
preliminary investigative tools, such as grand jury subpoenas 
or section 215 orders, which are used to determine whether more 
intrusive investigative techniques requiring probable cause are 
justified.
    Section 206 also provides terrorism investigators with an 
authority long possessed by criminal investigators. In 1986, 
Congress authorized the use of multi-point or roving wiretaps 
in criminal investigations. Before the PATRIOT Act, however, 
these orders were not available for national security 
investigations under FISA. Therefore, when an international 
terrorist or spy switched telephones, investigators had to 
return to the FISA court for a new surveillance order and risk 
missing key conversations.
    In a post-9/11 world, we cannot afford to take that risk. 
Section 206 fixed this problem by authorizing multi-point 
surveillance of an international terrorist or spy when a judge 
finds that the target may take action to thwart surveillance; 
and as of March 30, this provision had been used 49 times.
    As in the case of multi-point wiretaps for traditional 
criminal investigations, section 206 contains ample safeguards 
to protect the privacy of innocent Americans. The target of 
roving surveillance must be identified or described 
specifically in the order. The Government cannot use a 206 
roving wiretap order to move from target to target. If the 
Government wants to obtain a wiretap for a new target, it must 
go back to court.
    Another important FISA-related PATRIOT Act provision is 
section 207. Prior to this law, the Justice Department invested 
considerable time returning to court to renew existing orders. 
Section 207 substantially reduced this investment of time by 
increasing the maximum time duration for FISA electronic 
surveillance and physical search orders.
    The Department estimates that section 207 has saved nearly 
60,000 attorney hours. In other words, it has saved 30 lawyers 
a year's work, and this estimate does not account for the time 
saved by FBI agents, administrative staff, and the judiciary. 
Department personnel were able to spend that time pursuing 
other investigations and oversight matters.
    And given section 207's success, I am today proposing 
additional amendments to increase the efficiency of the FISA 
process, copies of which will be presented to this Committee 
today. And had these proposals been included in the PATRIOT 
Act, the Department estimates that an additional 25,000 
attorney hours would have been saved in the interim. Most of 
these ideas were specifically endorsed in the recent report of 
the WMD Commission, which said that these amendments would 
allow the Department both to ``focus their attention where it 
is most needed,'' and to maintain the current level of 
oversight paid to cases implicating the civil liberties of 
Americans.
    Finally, I would like to touch on another provision that 
has generated significant discussion. Section 213, which is not 
scheduled to sunset, established a nationwide standard for 
issuing delayed notice search warrants, which have been used by 
law enforcement and criminal investigations and approved by 
courts for decades. Under section 213, law enforcement must 
always provide notice to a person whose property is searched. A 
judge may allow that notice to be temporarily delayed, but that 
person will always receive notification.
    The Department uses this tool only when necessary. For 
instance, from enactment of the PATRIOT Act through January 31 
of this year, the Department used section 213 to request 
approximately 155 delayed notice search warrants, which have 
been issued in terrorism, drug, murder, and other criminal 
investigations. We estimate that this number represents less 
than one-fifth of 1 percent of all search warrants obtained by 
the Department during this time. In other words, in more than 
499 of 500 cases, the Department provides immediate notice of 
the search. In appropriate cases, however, delayed notice 
search warrants are necessary, because if terrorists or other 
criminals are prematurely tipped off that they are under 
investigation, they may destroy evidence, harm witnesses, or 
flee prosecution.
    I hope that this information will demystify these essential 
national security tools, eliminate some of the confusion 
surrounding their use, and enrich the debate about the 
Department's counterterrorism efforts.
    I believe the authorities of the PATRIOT Act are critical 
to our Nation's success in the war against terrorism. I am, 
therefore, committed to providing the information that this 
Committee and the American public need to thoroughly evaluate 
its effectiveness. The Act has a proven record of success in 
protecting the security of the American people and we cannot 
afford to allow its most important provisions to sunset.
    I look forward to working with the Committee closely in the 
weeks ahead, listening to your concerns, and joining together 
again to protect the security of the American people. Thank 
you, Mr. Chairman.
    Chairman Sensenbrenner. Thank you very much, Attorney 
General Gonzales.
    [The prepared statement of Mr. Gonzales follows:]

        Prepared Statement of the Honorable Alberto R. Gonzales

    Chairman Sensenbrenner, Ranking Member Conyers, and Members of the 
Committee:
    It is my pleasure to appear before you this afternoon to discuss 
the USA PATRIOT Act. Approximately three-and-a-half years ago, our 
Nation suffered a great tragedy. Thousands of our fellow citizens were 
murdered at the World Trade Center, the Pentagon, and a field in rural 
Pennsylvania. We will never forget that day or the heroes who perished 
on that hallowed ground. Forever in our Nation's collective memory are 
stories of the New York City firefighters who rushed into burning 
buildings so that others might live and of the brave passengers who 
brought down United Airlines Flight 93 before it could reach 
Washington, DC, and the messages from those trapped in the World Trade 
Center saying their last goodbyes to loved ones as they faced certain 
death will stay forever in our hearts.
    In the wake of this horrific attack on American soil, we mourned 
our Nation's terrible loss. In addition, we came together in an effort 
to prevent such a tragedy from ever happening again. Members of both 
parties worked together on legislation to ensure that investigators and 
prosecutors would have the tools they need to uncover and disrupt 
terrorist plots. Additionally, members joined hands across the aisle to 
guarantee that our efforts to update and strengthen the laws governing 
the investigation and prosecution of terrorism remained firmly within 
the parameters of the Constitution and our fundamental national 
commitment to the protection of civil rights and civil liberties.
    The result of this collaboration was the USA PATRIOT Act, which 
passed both Houses of the Congress with overwhelming bipartisan 
majorities and was signed into law by President Bush on October 26, 
2001. In the past three-and-a-half years, the USA PATRIOT Act has been 
an integral part of the Federal Government's successful prosecution of 
the war against terrorism. Thanks to the Act, we have been able to 
identify terrorist operatives, dismantle terrorist cells, disrupt 
terrorist plots, and capture terrorists before they have been able to 
strike.
    Many of the most important provisions of the USA PATRIOT Act, 
however, are scheduled to expire at the end of this year. Therefore, I 
am here today primarily to convey one simple message: All provisions of 
the USA PATRIOT Act that are scheduled to sunset at the end of this 
year must be made permanent. While we have made considerable progress 
in the war against terrorism in the past three-and-a-half years, al 
Qaeda and other terrorist groups still pose a grave threat to the 
safety and security of the American people. The tools contained in the 
USA PATRIOT Act have proven to be essential weapons in our arsenal to 
combat the terrorists, and now is not the time for us to be engaging in 
unilateral disarmament. Moreover, many provisions in the Act simply 
updated the law to reflect recent technological developments and have 
been used, as was intended by Congress, not only in terrorism cases, 
but also to combat other serious criminal conduct. If these provisions 
are not renewed, the Department's ability to combat serious offenses 
such as cybercrime, child pornography, and kidnappings will also be 
hindered.
    As Congress considers whether to renew key USA PATRIOT Act 
provisions, I also wish to stress that I am open to any ideas that may 
be offered for improving these provisions. If members of this Committee 
or other members of Congress wish to offer proposals in this regard, I 
and others at the Department of Justice would be happy to consult with 
you and review your ideas. However, let me be clear about one thing: I 
will not support any proposal that would undermine the ability of 
investigators and prosecutors to disrupt terrorist plots and combat 
terrorism effectively.
    It is also my sincere hope that we will be able to consider these 
crucial issues in a calm and thoughtful fashion. All of us seek to 
ensure the safety and security of the American people and to protect 
their civil liberties as well. As this debate goes forward, I will 
treat those who express concerns about the USA PATRIOT Act with respect 
and listen to their concerns with an open mind. I also hope that all 
who participate in the debate will stick to the facts and avoid 
overheated rhetoric that inevitably tends to obfuscate rather than 
elucidate the truth.
    Today, I would like to use the rest of my testimony to explain how 
key provisions of the USA PATRIOT Act have helped to protect the 
American people. I will particularly focus on those sections of the Act 
that are scheduled to expire at the end of 2005. To begin with, I will 
discuss how the USA PATRIOT Act has enhanced the federal government's 
ability to share intelligence. Then, I will explain how the USA PATRIOT 
Act provided terrorism investigators with many of the same tools long 
available to investigators in traditional criminal cases. Additionally, 
I will explore how the USA PATRIOT Act updated the law to reflect new 
technology. And finally, I will review how the Act protects the civil 
liberties of the American people and respects the important role of 
checks and balances within the Federal Government.

                          INFORMATION SHARING

    The most important reforms contained in the USA PATRIOT Act 
improved coordination and information sharing within the Federal 
Government. Prior to the attacks of September 11, 2001, our 
counterterrorism efforts were severely hampered by unnecessary 
obstacles and barriers to information sharing. These obstacles and 
barriers, taken together, have been described as a ``wall'' that 
largely separated intelligence personnel from law enforcement 
personnel, thus dramatically hampering the Department's ability to 
detect and disrupt terrorist plots.
    It is vitally important for this Committee to understand how the 
``wall'' was developed and how it was dismantled, not for the purpose 
of placing blame but rather to ensure that it is never rebuilt. Before 
the passage of the USA PATRIOT Act, the Foreign Intelligence 
Surveillance Act (FISA) mandated that applications for orders 
authorizing electronic surveillance or physical searches under FISA 
were required to include a certification that ``the purpose'' of the 
surveillance or search was to gather foreign intelligence information. 
This requirement, however, came to be interpreted by the courts and 
later the Department of Justice to require that the ``primary purpose'' 
of the collection was to obtain foreign intelligence information rather 
than evidence of a crime. And, because the courts evaluated the 
Department's purpose for using FISA, in part, by examining the nature 
and extent of coordination between intelligence and law enforcement 
personnel, the more coordination that occurred, the more likely courts 
would find that law enforcement, rather than foreign intelligence, had 
become the primary purpose of the surveillance or search, a finding 
that would prevent the court from authorizing surveillance under FISA. 
As a result, over the years, the ``primary purpose'' standard had the 
effect of constructing a metaphorical ``wall'' between intelligence and 
law enforcement personnel.
    During the 1980s, a set of largely unwritten rules only limited 
information sharing between intelligence and law enforcement officials 
to some degree. In 1995, however, the Department established formal 
procedures that limited the sharing of information between intelligence 
and law enforcement personnel. The promulgation of these procedures was 
motivated in part by the concern that the use of FISA authorities would 
not be allowed to continue in particular investigations if criminal 
prosecution began to overcome intelligence gathering as an 
investigation's primary purpose.
    As they were originally designed, the procedures were intended to 
permit a degree of interaction and information sharing between 
prosecutors and intelligence officers, while at the same time ensuring 
that the FBI would be able to obtain or continue FISA surveillance and 
later use the fruits of that surveillance in a criminal prosecution. 
Over time, however, coordination and information sharing between 
intelligence and law enforcement investigators became even more limited 
in practice than was permitted in theory. Due both to the complexities 
of the restrictions on information sharing and to a perception that 
improper information sharing could end a career, investigators often 
erred on the side of caution and refrained from sharing information. 
The end result was a culture within the Department sharply limiting the 
exchange of information between intelligence and law enforcement 
officials.
    In hindsight, it is difficult to overemphasize the negative impact 
of the ``wall.'' In order to uncover terrorist plots, it is essential 
that investigators have access to as much information as possible. 
Often, only by piecing together disparate and seemingly unrelated 
points of information are investigators able to detect suspicious 
patterns of activity, a phenomenon generally referred to as 
``connecting the dots.'' If, however, one set of investigators has 
access to only one-half of the dots, and another set of investigators 
has access to the other half of the dots, the likelihood that either 
set of investigators will be able to connect the dots is significantly 
reduced.
    The operation of the ``wall'' was vividly illustrated in testimony 
from Patrick Fitzgerald, U.S. Attorney for the Northern District of 
Illinois, before the Senate Judiciary Committee:

          I was on a prosecution team in New York that began a criminal 
        investigation of Usama Bin Laden in early 1996. The team--
        prosecutors and FBI agents assigned to the criminal case--had 
        access to a number of sources. We could talk to citizens. We 
        could talk to local police officers. We could talk to other 
        U.S. Government agencies. We could talk to foreign police 
        officers. Even foreign intelligence personnel. And foreign 
        citizens. And we did all those things as often as we could. We 
        could even talk to al Qaeda members--and we did. We actually 
        called several members and associates of al Qaeda to testify 
        before a grand jury in New York. And we even debriefed al Qaeda 
        members overseas who agreed to become cooperating witnesses.
          But there was one group of people we were not permitted to 
        talk to. Who? The FBI agents across the street from us in lower 
        Manhattan assigned to a parallel intelligence investigation of 
        Usama Bin Laden and al Qaeda. We could not learn what 
        information they had gathered. That was ``the wall.''

    Thanks in large part to the USA PATRIOT Act, this ``wall'' has been 
lowered. Section 218 of the Act, in particular, helped to tear down the 
``wall'' by eliminating the ``primary purpose'' requirement under FISA 
and replacing it with a ``significant purpose'' test. Under section 
218, the Department may now conduct FISA surveillance or searches if 
foreign-intelligence gathering is a ``significant purpose'' of the 
surveillance or search. As a result, courts no longer need to compare 
the relative weight of the ``foreign intelligence'' and ``law 
enforcement'' purposes of a proposed surveillance or search and 
determine which is the primary purpose; they simply need to determine 
whether a significant purpose of the surveillance is to obtain foreign 
intelligence. The consequence is that intelligence and law enforcement 
personnel may share information much more freely without fear that such 
coordination will undermine the Department's ability to continue to 
gain authorization for surveillance under FISA.
    Section 218 of the USA PATRIOT Act not only removed what was 
perceived at the time as the primary impediment to robust information 
sharing between intelligence and law enforcement personnel; it also 
provided the necessary impetus for the removal of the formal 
administrative restrictions as well as the informal cultural 
restrictions on information sharing. Thanks to the USA PATRIOT Act, the 
Department has been able to move from a culture where information 
sharing was viewed with a wary eye to one where it is an integral 
component of our counterterrorism strategy. Following passage of the 
Act, the Department adopted new procedures specifically designed to 
increase information sharing between intelligence and law enforcement 
personnel. Moreover, Attorney General Ashcroft instructed every U.S. 
Attorney across the country to review intelligence files to discover 
whether there was a basis for bringing criminal charges against the 
subjects of intelligence investigations. He also directed every U.S. 
Attorney to develop a plan to monitor intelligence investigations, to 
ensure that information about terrorist threats is shared with other 
agencies, and to consider criminal charges in those investigations.
    The increased information sharing facilitated by section 218 of the 
USA PATRIOT Act has led to tangible results in the war against 
terrorism: plots have been disrupted; terrorists have been apprehended; 
and convictions have been obtained in terrorism cases. Information 
sharing between intelligence and law enforcement personnel, for 
example, was critical in successfully dismantling a terror cell in 
Portland, Oregon, popularly known as the ``Portland Seven,'' as well as 
a terror cell in Lackawanna, New York. Such information sharing has 
also been used in the prosecution of: several persons involved in al 
Qaeda drugs-for-weapons plot in San Diego, two of whom have pleaded 
guilty; nine associates in Northern Virginia of a violent extremist 
group known as Lashkar-e-Taiba that has ties to al Qaeda, who were 
convicted and sentenced to prison terms ranging from four years to life 
imprisonment; two Yemeni citizens, Mohammed Ali Hasan Al-Moayad and 
Mohshen Yahya Zayed, who were charged and convicted for conspiring to 
provide material support to al Qaeda and HAMAS; Khaled Abdel Latif 
Dumeisi, who was convicted by a jury in January 2004 of illegally 
acting as an agent of the former government of Iraq as well as two 
counts of perjury; and Enaam Arnaout, the Executive Director of the 
Illinois-based Benevolence International Foundation, who had a long-
standing relationship with Osama Bin Laden and pleaded guilty to a 
racketeering charge, admitting that he diverted thousands of dollars 
from his charity organization to support Islamic militant groups in 
Bosnia and Chechnya. Information sharing between intelligence and law 
enforcement personnel has also been extremely valuable in a number of 
other ongoing or otherwise sensitive investigations that I am not at 
liberty to discuss today.
    While the ``wall'' primarily blocked the flow of information from 
intelligence investigators to law enforcement investigators, another 
set of barriers, before the passage of the USA PATRIOT Act, often 
prevented law enforcement officials from sharing information with 
intelligence personnel and others in the government responsible for 
protecting the national security. Federal law, for example, was 
interpreted generally to prohibit federal prosecutors from disclosing 
information from grand jury testimony and criminal investigative 
wiretaps to intelligence and national defense officials even if that 
information indicated that terrorists were planning a future attack, 
unless such officials were actually assisting with the criminal 
investigation. Sections 203(a) and (b) of the USA PATRIOT Act, however, 
eliminated these obstacles to information sharing by allowing for the 
dissemination of that information to assist Federal law enforcement, 
intelligence, protective, immigration, national defense, and national 
security officials in the performance of their official duties, even if 
their duties are unrelated to the criminal investigation. (Section 
203(a) covers grand jury information, and section 203(b) covers wiretap 
information). Section 203(d), likewise, ensures that important 
information that is obtained by law enforcement means may be shared 
with intelligence and other national security officials. This provision 
does so by creating a generic exception to any other law purporting to 
bar Federal law enforcement, intelligence, immigration, national 
defense, or national security officials from receiving, for official 
use, information regarding foreign intelligence or counterintelligence 
obtained as part of a criminal investigation. Indeed, section 905 of 
the USA PATRIOT Act requires the Attorney General to expeditiously 
disclose to the Director of Central Intelligence foreign intelligence 
acquired by the Department of Justice in the course of a criminal 
investigation unless disclosure of such information would jeopardize an 
ongoing investigation or impair other significant law enforcement 
interests.
    The Department has relied on section 203 in disclosing vital 
information to the intelligence community and other federal officials 
on many occasions. Such disclosures, for instance, have been used to 
assist in the dismantling of terror cells in Portland, Oregon and 
Lackawanna, New York, to support the revocation of suspected 
terrorists' visas, to track terrorists' funding sources, and to 
identify terrorist operatives overseas.
    The information sharing provisions described above have been 
heralded by investigators in the field as the most important provisions 
of the USA PATRIOT Act. Their value has also been recognized by the 9/
11 Commission, which stated in its official report that ``[t]he 
provisions in the act that facilitate the sharing of information among 
intelligence agencies and between law enforcement and intelligence 
appear, on balance, to be beneficial.''
    Since the passage of the USA PATRIOT Act, Congress has taken in the 
Homeland Security Act of 2002 and the Intelligence Reform and Terrorism 
Prevention Act of 2004 other important steps forward to improve 
coordination and information sharing throughout the Federal Government. 
If Congress does not act by the end of the year, however, we will soon 
take a dramatic step back to the days when unnecessary obstacles 
blocked vital information sharing. Three of the key information sharing 
provisions of the USA PATRIOT Act, sections 203(b), 203(d), and 218, 
are scheduled to sunset at the end of the year. It is imperative that 
we not allow this to happen. To ensure that the ``wall'' is not 
reconstructed and investigators are able to ``connect the dots'' to 
prevent future terrorist attacks, these provisions must be made 
permanent.

          USING PREEXISTING TOOLS IN TERRORISM INVESTIGATIONS

    In addition to enhancing the information sharing capabilities of 
the Department, the USA PATRIOT Act also permitted several existing 
investigative tools that had been used for years in a wide range of 
criminal investigations to be used in terrorism cases as well. 
Essentially, these provisions gave investigators the ability to fight 
terrorism utilizing many of the same court-approved tools that have 
been used successfully and constitutionally for many years in drug, 
fraud, and organized crime cases.
    Section 201 of the USA PATRIOT Act is one such provision. In the 
context of criminal law enforcement, Federal investigators have long 
been able to obtain court orders to conduct wiretaps when investigating 
numerous traditional criminal offenses. Specifically, these orders have 
authorized the interception of certain communications to investigate 
the predicate offenses listed in the federal wiretap statute, 18 U.S.C. 
Sec. 2516(1). The listed offenses include numerous crimes, such as drug 
crimes, mail fraud, passport fraud, embezzlement from pension and 
welfare funds, the transmission of wagering information, and obscenity 
offenses.
    Prior to the passage of the USA PATRIOT Act, however, certain 
extremely serious crimes that terrorists are likely to commit were not 
included in this list, which prevented law enforcement authorities from 
using wiretaps to investigate these serious terrorism-related offenses. 
As a result, law enforcement could obtain under appropriate 
circumstances a court order to intercept phone communications in a 
passport fraud investigation but not a chemical weapons investigation 
or an investigation into terrorism transcending national boundaries.
    Section 201 of the Act ended this anomaly in the law by amending 
the criminal wiretap statute to add the following terrorism-related 
crimes to the list of wiretap predicates: (1) chemical-weapons 
offenses; (2) certain homicides and other acts of violence against 
Americans occurring outside of the country; (3) the use of weapons of 
mass destruction; (4) acts of terrorism transcending national borders; 
(5) financial transactions with countries which support terrorism; and 
(6) material support of terrorists and terrorist organizations.
    This provision simply enables investigators to use wiretaps when 
looking into the full range of terrorism-related crimes. This authority 
makes as much, if not more, sense in the war against terrorism as it 
does in traditional criminal investigations; if wiretaps are an 
appropriate investigative tool to be utilized in cases involving 
bribery, gambling, and obscenity, then surely investigators should be 
able to use them when investigating the use of weapons of mass 
destruction, acts of terrorism transcending national borders, chemical 
weapons offenses, and other serious crimes that terrorists are likely 
to commit.
    It is also important to point out that section 201 preserved all of 
the pre-existing standards in the wiretap statute. For example, law 
enforcement must file an application with a court, and a court must 
find that: (1) there is probable cause to believe an individual is 
committing, has committed, or is about to commit a particular predicate 
offense; (2) there is probable cause to believe that particular 
communications concerning that offense will be obtained through the 
wiretap; and (3) ``normal investigative procedures'' have been tried 
and failed or reasonably appear to be unlikely to succeed or are too 
dangerous.
    Section 206 of the USA PATRIOT Act, like section 201 discussed 
above, provided terrorism investigators with an authority that 
investigators have long possessed in traditional criminal 
investigations. Before the passage of the Act, multipoint or so-called 
``roving'' wiretap orders, which attach to a particular suspect rather 
than a particular phone or communications facility, were not available 
under FISA. As a result, each time an international terrorist or spy 
switched communications providers, for example, by changing cell phones 
or Internet accounts, investigators had to return to court to obtain a 
new surveillance order, often leaving investigators unable to monitor 
key conversations.
    Congress eliminated this problem with respect to traditional 
criminal crimes, such as drug offenses and racketeering, in 1986 when 
it authorized the use of multi-point or ``roving'' wiretaps in criminal 
investigations. But from 1986 until the passage of the USA PATRIOT Act 
in 2001, such authority was not available under FISA for cases 
involving terrorists and spies. Multi-point wiretaps could be used to 
conduct surveillance of drug dealers but not international terrorists. 
However, such authority was needed under FISA. International terrorists 
and foreign intelligence officers are trained to thwart surveillance by 
changing the communications facilities they use, thus making vital the 
ability to obtain ``roving'' surveillance. Without such surveillance, 
investigators were often left two steps behind sophisticated 
terrorists.
    Section 206 of the Act amended the law to allow the FISA Court to 
authorize multi-point surveillance of a terrorist or spy when it finds 
that the target's actions may thwart the identification of those 
specific individuals or companies, such as communications providers, 
whose assistance may be needed to carry out the surveillance. Thus, the 
FISA Court does not have to name in the wiretap order each 
telecommunications company or other ``specified person'' whose 
assistance may be required.
    A number of federal courts--including the Second, Fifth, and Ninth 
Circuits--have squarely ruled that multi-point wiretaps are perfectly 
consistent with the Fourth Amendment. Section 206 simply authorizes the 
same constitutional techniques used to investigate ordinary crimes to 
be used in national-security investigations. Despite this fact, section 
206 remains one of the more controversial provisions of the USA PATRIOT 
Act. However, as in the case of multi-point wiretaps used for 
traditional criminal investigations, section 206 contains ample 
safeguards to protect the privacy of innocent Americans.
    First, section 206 did not change FISA's requirement that the 
target of multi-point surveillance must be identified or described in 
the order. In fact, section 206 is always connected to a particular 
target of surveillance. For example, even if the Justice Department is 
not sure of the actual identity of the target of such a wiretap, FISA 
nonetheless requires our attorneys to provide a description of the 
target of the electronic surveillance to the FISA Court prior to 
obtaining multi-point surveillance order.
    Second, just as the law required prior to the Act, the FISA Court 
must find that there is probable cause to believe the target of 
surveillance is either a foreign power or an agent of a foreign power, 
such as a terrorist or spy. In addition, the FISA Court must also find 
that the actions of the target of the application may have the effect 
of thwarting surveillance before multi-point surveillance may be 
authorized.
    Third, section 206 in no way altered the robust FISA minimization 
procedures that limit the acquisition, retention, and dissemination by 
the government of information or communications involving United States 
persons.
    Section 214 is yet another provision of the USA PATRIOT Act that 
provides terrorism investigators with the same authority that 
investigators have long possessed in traditional criminal 
investigations. Specifically, this section allows the government to 
obtain a pen register or trap-and-trace order in national security 
investigations where the information to be obtained is likely to be 
relevant to an international terrorism or espionage investigation. A 
pen register or trap-and-trace device can track routing and addressing 
information about a communication--for example, which numbers are 
dialed from a particular telephone. Such devices, however, are not used 
to collect the content of communications.
    Under FISA, intelligence officers may seek a court order for a pen 
register or trap-and-trace to gather foreign intelligence information 
or information about international terrorism. Prior to the enactment of 
the USA PATRIOT Act, however, FISA required government personnel to 
certify not just that the information they sought to obtain with a pen 
register or trap-and-trace device would be relevant to their 
investigation, but also that the particular facilities being monitored, 
such as phones, were being used by foreign governments, international 
terrorists, or spies. As a result, it was much more difficult to obtain 
a pen register or trap-and-trace device order under FISA than it was 
under the criminal wiretap statute, where the applicable standard was 
and remains simply one of relevance in an ongoing criminal 
investigation.
    Section 214 of the Act simply harmonized the standard for obtaining 
a pen register order in a criminal investigation and a national-
security investigation by eliminating the restriction limiting FISA pen 
register and trap-and-trace orders to facilities used by foreign agents 
or agents of foreign powers. Applicants must still, however, certify 
that a pen register or trap-and-trace device is likely to reveal 
information relevant to an international terrorism or espionage 
investigation or foreign intelligence information not concerning a 
United States person. This provision made the standard contained in 
FISA for obtaining a pen register or trap-and-trace order parallel with 
the standard for obtaining those same orders in the criminal context. 
Now, as before, investigators cannot install a pen register or trap-
and-trace device unless they apply for and receive permission from the 
FISA Court.
    I will now turn to section 215, which I recognize has become the 
most controversial provision in the USA PATRIOT Act. This provision, 
however, simply granted national security investigators the same 
authority that criminal investigators have had for centuries--that is, 
to request the production of records that may be relevant to their 
investigation. For years, ordinary grand juries have issued subpoenas 
to obtain records from third parties that are relevant to criminal 
inquiries. But just as prosecutors need to obtain such records in order 
to advance traditional criminal investigations, so, too, must 
investigators in international terrorism and espionage cases have the 
ability, with appropriate safeguards, to request the production of 
relevant records.
    While obtaining business records is a long-standing law enforcement 
tactic that has been considered an ordinary tool in criminal 
investigations, prior to the USA PATRIOT Act it was difficult for 
investigators to obtain access to the same types of records in 
connection with foreign intelligence investigations. Such records, for 
example, could be sought only from common carriers, public 
accommodation providers, physical storage facility operators, and 
vehicle rental agencies. In addition, intelligence investigators had to 
meet a higher evidentiary standard to obtain an order requiring the 
production of such records than prosecutors had to meet to obtain a 
grand jury subpoena to require the production of those same records in 
a criminal investigation.
    To address this anomaly in the law, section 215 of the Act made 
several important changes to the FISA business-records authority so 
that intelligence agents would be better able to obtain crucial 
information in important national-security investigations. Section 215 
expanded the types of entities that can be compelled to disclose 
information. Under the old provision, the FBI could obtain records only 
from ``a common carrier, public accommodation facility, physical 
storage facility or vehicle rental facility.'' The new provision 
contains no such restrictions. Section 215 also expanded the types of 
items that can be requested. Under the old authority, the FBI could 
only seek ``records.'' Now, the FBI can seek ``any tangible things 
(including books, records, papers, documents, and other items).''
    I recognize that section 215 has been subject to a great deal of 
criticism because of its speculative application to libraries, and 
based on what some have said about the provision, I can understand why 
many Americans would be concerned. The government should not be 
obtaining the library records of law-abiding Americans, and I will do 
everything within my power to ensure that this will not happen on my 
watch.
    Section 215 does not focus on libraries. Indeed, the USA PATRIOT 
Act nowhere mentions the word ``library,'' a fact that many Americans 
are surprised to learn. Section 215 simply does not exempt libraries 
from the range of entities that may be required to produce records. Now 
some have suggested, since the Department has no interest in the 
reading habits of law-abiding Americans, that section 215 should be 
amended to forbid us from using the provision to request the production 
of records from libraries and booksellers. This, however, would be a 
serious mistake.
    Libraries are currently not safe havens for criminals. Grand jury 
subpoenas have long been used to obtain relevant records from libraries 
and bookstores in criminal investigations. In fact, law enforcement 
used this authority in investigating the Gianni Versace murder case as 
well as the case of the Zodiac gunman in order to determine who checked 
out particular books from public libraries that were relevant in those 
murder investigations. And if libraries are not safe havens for common 
criminals, neither should they be safe havens for international 
terrorists or spies, especially since we know that terrorists and spies 
have used libraries to plan and carry out activities that threaten our 
national security. The Justice Department, for instance, has confirmed 
that, as recently as the winter and spring of 2004, a member of a 
terrorist group closely affiliated with al Qaeda used Internet service 
provided by a public library to communicate with his confederates.
    Section 215, moreover, contains very specific safeguards in order 
to ensure that the privacy of law-abiding Americans, both with respect 
to their library records as well as other types of records, is 
respected. First, section 215 expressly protects First Amendment 
rights, unlike grand jury subpoenas. Even though libraries and 
bookstores are not specifically mentioned in the provision, section 215 
does prohibit the government from using this authority to conduct 
investigations ``of a United States person solely on the basis of 
activities protected by the First Amendment to the Constitution of the 
United States.'' In other words, the library habits of ordinary 
Americans are of no interest to those conducting terrorism 
investigations, nor are they permitted to be.
    Second, any request for the production of records under section 215 
must be issued through a court order. Therefore, investigators cannot 
use this authority unilaterally to compel any entity to turn over its 
records; rather, a judge must first approve the government's request. 
By contrast, a grand jury subpoena is typically issued without any 
prior judicial review or approval. Both grand jury subpoenas and 
section 215 orders are also governed by a standard of relevance. Under 
section 215, agents may not seek records that are irrelevant to an 
investigation to obtain foreign intelligence information not concerning 
a United States person or to protect against international terrorism or 
clandestine intelligence activities.
    Third, section 215 has a narrow scope. It can only be used in an 
authorized investigation (1) ``to obtain foreign intelligence 
information not concerning a United States person''; or (2) ``to 
protect against international terrorism or clandestine intelligence 
activities.'' It cannot be used to investigate ordinary crimes, or even 
domestic terrorism. On the other hand, a grand jury many obtain 
business records in investigations of any federal crime.
    Finally, section 215 provides for thorough congressional oversight 
that is not present with respect to grand-jury subpoenas. On a semi-
annual basis, I must ``fully inform'' appropriate congressional 
committees concerning all requests for records under section 215 as 
well as the number of section 215 orders granted, modified, or denied. 
To date, the Department has provided Congress with six reports 
regarding its use of section 215.
    Admittedly, the recipient of an order under section 215 is not 
permitted to make that order publicly known, and this confidentiality 
requirement has generated some fear among the public. It is critical, 
however, that terrorists are not tipped off prematurely about sensitive 
investigations. Otherwise, their conspirators may flee and key 
information may be destroyed before the government's investigation has 
been completed. As the U.S. Senate concluded when adopting FISA: ``By 
its very nature, foreign intelligence surveillance must be conducted in 
secret.''

               UPDATING THE LAW TO REFLECT NEW TECHNOLOGY

    As well as providing terrorism investigators many of the same tools 
that law enforcement investigators had long possessed in traditional 
criminal investigations, many sections of the USA PATRIOT Act updated 
the law to reflect new technology and to prevent sophisticated 
terrorists and criminals from exploiting that new technology. Several 
of these provisions, some of which are currently set to sunset at the 
end of this year, simply updated tools available to law enforcement in 
the context of ordinary criminal investigations to address recent 
technological developments, while others sought to make existing 
criminal statutes technology-neutral. I wish to focus on five such 
provisions of the Act, which are currently set to expire at the end of 
2005. The Department believes that each of these provisions has proven 
valuable and should be made permanent.
    Section 212 amended the Electronic Communications Privacy Act to 
authorize electronic communications service providers to disclose 
communications and records relating to customers or subscribers in an 
emergency involving the immediate danger of death or serious physical 
injury. Before the USA PATRIOT Act, for example, if an Internet service 
provider had learned that a customer was about to commit a terrorist 
act and notified law enforcement to that effect, the service provider 
could have been subject to civil lawsuits. Now, however, providers are 
permitted voluntarily to turn over information to the government in 
emergencies without fear of civil liability. It is important to point 
out that they are under no obligation whatsoever to review customer 
communications and records. This provision also corrected an anomaly in 
prior law under which an Internet service provider could voluntarily 
disclose the content of communications to protect itself against 
hacking, but could not voluntarily disclose customer records for the 
same purpose.
    Communications providers have relied upon section 212 to disclose 
vital and time-sensitive information to the government on many 
occasions since the passage of the USA PATRIOT Act, thus saving lives. 
To give just one example, this provision was used to apprehend an 
individual threatening to destroy a Texas mosque before he could carry 
out his threat. Jared Bjarnason, a 30-year-old resident of El Paso, 
Texas, sent an e-mail message to the El Paso Islamic Center on April 
18, 2004, threatening to burn the Islamic Center's mosque to the ground 
if hostages in Iraq were not freed within three days. Section 212 
allowed FBI officers investigating the threat to obtain information 
quickly from electronic communications service providers, leading to 
the identification and arrest of Bjarnason before he could attack the 
mosque. It is not clear, however, that absent section 212 investigators 
would have been able to locate and apprehend Bjarnason in time.
    Section 212 of the USA PATRIOT Act governed both the voluntary 
disclosure of the content of communications and the voluntary 
disclosure of non-content customer records in emergency situations; but 
in 2002, the Homeland Security Act repealed that portion of section 212 
governing the disclosure of the content of communications in emergency 
situations and placed similar authority in a separate statutory 
provision that is not scheduled to sunset. The remaining portion of 
section 212, governing the disclosure of customer records, however, is 
set to expire at the end of 2005. Should section 212 expire, 
communications providers would be able to disclose the content of 
customers' communications in emergency situations but would not be able 
voluntarily to disclose non-content customer records pertaining to 
those communications. Such an outcome would defy common sense. Allowing 
section 212 to expire, moreover, would dramatically restrict 
communications providers' ability voluntarily to disclose life-saving 
information to the government in emergency situations.
    Section 202, for its part, modernized the criminal code in light of 
the increased importance of telecommunications and digital 
communications. The provision allows law enforcement to use pre-
existing wiretap authorities to intercept voice communications, such as 
telephone conversations, in the interception of felony offenses under 
the Computer Fraud and Abuse Act. These include many important 
cybercrime and cyberterrorism offenses, such as computer espionage and 
intentionally damaging a Federal Government computer. Significantly, 
section 202 preserved all of the pre-existing standards in the wiretap 
statute, meaning that law enforcement must file an application with a 
court, and a court must find that: (1) there is probable cause to 
believe an individual is committing, has committed, or is about to 
commit a particular predicate offense; (2) there is probable cause to 
believe that particular communications concerning that offense will be 
obtained through the wiretap; and (3) ``normal investigative 
procedures'' have been tried and failed or reasonably appear to be 
unlikely to succeed or are too dangerous. If wiretaps are an 
appropriate investigative tool to be utilized in cases involving 
bribery, gambling, and obscenity, as was the case prior to the passage 
of the USA PATRIOT Act, then surely investigators should be able to use 
them when investigating computer espionage, extortion, and other 
serious cybercrime and cyberterrorism offenses.
    Turning to section 220, that provision allows courts, in 
investigations over which they have jurisdiction, to issue search 
warrants for electronic evidence stored outside of the district where 
they are located. Federal law requires investigators to use a search 
warrant to compel an Internet service provider to disclose unopened e-
mail messages that are less than six months old. Prior to the USA 
PATRIOT Act, some courts interpreting Rule 41 of the Federal Rules of 
Criminal Procedure declined to issue search warrants for e-mail 
messages stored on servers in other districts, leading to delays in 
many time-sensitive investigations as investigators had to bring 
agents, prosecutors, and judges in another district up to speed. 
Requiring investigators to obtain warrants in distant jurisdictions 
also placed enormous administrative burdens on districts in which major 
Internet service providers are located, such as the Northern District 
of California and the Eastern District of Virginia.
    Section 220 fixed this problem. It makes clear, for example, that a 
judge with jurisdiction over a murder investigation in Pennsylvania can 
issue a search warrant for e-mail messages pertaining to that 
investigation that were stored on a server in Silicon Valley. Thus, 
investigators in Pennsylvania, under this scenario, can ask a judge 
familiar with the investigation to issue the warrant rather than having 
to ask Assistant United States Attorneys in California, who are 
unfamiliar with the case, to ask a judge in the United States District 
Court for the Northern District of California, who is also unfamiliar 
with the case, to issue the warrant.
    The Department has already utilized section 220 in important 
terrorism investigations. As Assistant Attorney General Christopher 
Wray testified before this committee on October 21, 2003, section 220 
was useful in the Portland terror cell case because ``the judge who was 
most familiar with the case was able to issue the search warrants for 
the defendants' e-mail accounts from providers in other districts, 
which dramatically sped up the investigation and reduced all sorts of 
unnecessary burdens on other prosecutors, agents and courts.'' This 
section has been similarly useful in the ``Virginia Jihad'' case 
involving a Northern Virginia terror cell and in the case of the 
infamous ``shoebomber'' terrorist Richard Reid. Moreover, the ability 
to obtain search warrants in the jurisdiction of the investigation has 
proven critical to the success of complex, multi-jurisdictional child 
pornography cases.
    Contrary to concerns voiced by some, section 220 does not promote 
forum-shopping; the provision may be used only in a court with 
jurisdiction over the investigation. Investigators may not ask any 
court in the country to issue a warrant to obtain electronic evidence.
    It is imperative that section 220 be renewed; allowing the 
provision to expire would delay many time-sensitive investigations and 
result in the inefficient use of investigators', prosecutors', and 
judges' time.
    Moving to section 209, that provision made existing statutes 
technology-neutral by providing that voicemail messages stored with a 
third-party provider should be treated like e-mail messages and 
answering machine messages, which may be obtained through a search 
warrant. Previously, such messages fell under the rubric of the more 
restrictive provisions of the criminal wiretap statute, which apply to 
the interception of live conversations. Given that stored voice 
communications possess few of the sensitivities associated with the 
real-time interception of telephone communications, it was unreasonable 
to subject attempts to retrieve voice-mail message stored with third-
party providers to the same burdensome process as requests for 
wiretaps. Section 209 simply allows investigators, upon a showing of 
probable cause, to apply for and receive a court-ordered search warrant 
to obtain voicemails held by a third-party provider, preserving all of 
the pre-existing standards for the availability of search warrants. 
Since the passage of the USA PATRIOT Act, such search warrants have 
been used in a variety of criminal cases to obtain key evidence, 
including voicemail messages left for foreign and domestic terrorists, 
and to investigate a large-scale Ecstasy smuggling ring based in the 
Netherlands.
    The speed with which voicemail is seized and searched can often be 
critical to an investigation given that deleted messages are lost 
forever. Allowing section 209 to expire, as it is set to do in 2005, 
would once again require different treatment for stored voicemail 
messages than for messages stored on an answering machine in a person's 
home, needlessly hampering law enforcement efforts to investigate 
crimes and obtain evidence in a timely manner.
    Section 217 similarly makes criminal law technology-neutral, 
placing cyber-trespassers on the same footing as physical intruders by 
allowing victims of computer-hacking crimes voluntarily to request law 
enforcement assistance in monitoring trespassers on their computers. 
Just as burglary victims have long been able to invite officers into 
their homes to catch the thieves, hacking victims can now invite law 
enforcement assistance to assist them in combating cyber-intruders. 
Section 217 does not require computer operators to involve law 
enforcement if they detect trespassers on their systems; it simply 
gives them the option to do so. In so doing, section 217 also preserves 
the privacy of law-abiding computer users by sharply limiting the 
circumstances under which section 217 is available. Officers may not 
agree to help a computer owner unless (1) they are engaged in a lawful 
investigation; (2) there is reason to believe that the communications 
will be relevant to that investigation; and (3) their activities will 
not acquire the communications of non-trespassers. Moreover, the 
provision amended the wiretap statute to protect the privacy of an 
Internet service provider's customers by providing a definition of 
``computer trespasser'' which excludes an individual who has a 
contractual relationship with the service provider. Therefore, for 
example, section 217 would not allow Earthlink to ask law enforcement 
to help monitor a hacking attack on its system that was initiated by 
one of its own subscribers.
    Since its enactment, section 217 has played a key role in sensitive 
national security matters, including investigations into hackers' 
attempts to compromise military computer systems. Section 217 is also 
particularly helpful when computer hackers launch massive ``denial of 
service'' attacks--which are designed to shut down individual web 
sites, computer networks, or even the entire Internet. Allowing section 
217 to expire, which is set to occur in 2005, would lead to a bizarre 
world in which a computer hacker's supposed privacy right would trump 
the legitimate privacy rights of a hacker's victims, making it more 
difficult to combat hacking and cyberterrorism effectively.

                       PROTECTING CIVIL LIBERTIES

    While the USA PATRIOT Act provided investigators and prosecutors 
with tools critical for protecting the American people, it is vital to 
note that it did so in a manner fully consistent with constitutional 
rights of the American people. In section 102 of the USA PATRIOT Act, 
Congress expressed its sense that ``the civil rights and civil 
liberties of all Americans . . . must be protected,'' and the USA 
PATRIOT Act does just that.
    In the first place, the USA PATRIOT Act contains several provisions 
specifically designed to provide additional protection to the civil 
rights and civil liberties of all Americans. Section 223, for example, 
allows individuals aggrieved by any willful violation of the criminal 
wiretap statute (Title III), the Electronic Communications Privacy Act, 
or certain provisions the FISA, to file an action in United States 
District Court to recover not less than $10,000 in damages. This 
provision allows an individual whose privacy is violated to sue the 
United States for money damages if Federal officers or employees 
disclose sensitive information without lawful authorization. Section 
223 also requires Federal departments and agencies to initiate a 
proceeding to determine whether disciplinary action is warranted 
against an officer or employee whenever a court or agency finds that 
the circumstances surrounding a violation of Title III raise serious 
questions about whether that officer or employee willfully or 
intentionally violated Title III. To date, there have been no 
administrative disciplinary proceedings or civil actions initiated 
under section 223 of the USA PATRIOT Act. I believe that this reflects 
the fact that employees of the Justice Department consistently strive 
to comply with their legal obligations. Nevertheless, section 223 
provides an important mechanism for holding the Department of Justice 
accountable, and I strongly urge Congress not to allow it to sunset at 
the end of 2005.
    Additionally, section 1001 of the USA PATRIOT Act requires the 
Justice Department's Inspector General to designate one official 
responsible for the review of complaints alleging abuses of civil 
rights and civil liberties by Justice Department employees. This 
individual is then responsible for conducting a public awareness 
campaign through the Internet, radio, television, and newspaper 
advertisements to ensure that individuals know how to file complaints 
with the Office of the Inspector General. Section 1001 also directs the 
Office of Inspector General to submit to this Committee and the House 
Judiciary Committee on a semi-annual basis a report detailing any 
abuses of civil rights and civil liberties by Department employees or 
officials. To date, six such reports have been submitted by the Office 
of the Inspector General pursuant to section 1001; they were 
transmitted in July 2002, January 2003, July 2003, January 2004, 
September 2004, and March 2005. I am pleased to be able to state that 
the Office of the Inspector General has not documented in these reports 
any abuse of civil rights or civil liberties by the Department related 
to the use of any substantive provision of the USA PATRIOT Act.
    In addition to containing special provisions designed to ensure 
that the civil rights and civil liberties of the American people are 
respected, the USA PATRIOT Act also respects the vital role of the 
judiciary by providing for ample judicial oversight to guarantee that 
the constitutional rights of all Americans are safeguarded and that the 
important role of checks and balances within our Federal Government is 
preserved. As reviewed above, under section 214 of the Act, 
investigators cannot utilize a pen register or trap-and-trace device 
unless they apply for and receive permission from the FISA Court. 
Section 215 of the Act requires investigators to obtain a court order 
to request the production of business records in national security 
investigations. Section 206 requires the Foreign Intelligence 
Surveillance Court to approve the use of ``roving'' surveillance in 
national security investigations. Sections 201 and 202 require a 
Federal court to approve the use of a criminal investigative wiretap, 
and sections 209 and 220 require a Federal court to issue search 
warrants to obtain evidence in a criminal investigation.
    Besides safeguarding the vital role of the judiciary, the USA 
PATRIOT Act also recognizes the crucial importance of congressional 
oversight. On a semiannual basis, for example, as noted before, I am 
required to report to this Committee and the House Judiciary Committee 
the number of applications made for orders requiring the production of 
business records under section 215 as well as the number of such orders 
granted, modified or denied. I am also required to fully inform the 
Permanent Select Committee on Intelligence of the House of 
Representatives and the Select Committee on Intelligence of the Senate 
on a semiannual basis concerning all requests for the production of 
business records under section 215. These reports were transmitted by 
the Department to the appropriate committees in April 2002, January 
2003, September 2003, December 2003, September 2004, and December 2004. 
Moreover, I am required by statute to submit a comprehensive report on 
a semiannual basis to the Permanent Select Committee on Intelligence of 
the House of Representatives and the Select Committee on Intelligence 
of the Senate regarding the Department's use of FISA. These reports 
contain valuable information concerning the Department's use of USA 
PATRIOT Act provisions, including sections 207, 214, and 218.
    I would note that the Department has gone to great lengths to 
respond to congressional concerns about the implementation of the USA 
PATRIOT Act. The Department has, for example, provided answers to more 
than 520 oversight questions from Members of Congress regarding the USA 
PATRIOT Act. In the 108th Congress alone, in fact, the Department sent 
100 letters to Congress that specifically addressed the USA PATRIOT 
Act. The Department also has provided witnesses at over 50 terrorism-
related hearings, and its employees have conducted numerous formal and 
informal briefings with Members and staff on USA PATRIOT Act 
provisions. In short, the Department has been responsive and will 
continue to be responsive as Congress considers whether key sections of 
the USA PATRIOT Act will be made permanent.

                               CONCLUSION

    In closing, the issues that we are discussing today are absolutely 
critical to our Nation's future success in the war against terrorism. 
The USA PATRIOT Act has a proven record of success when it comes to 
protecting the safety and security of the American people, and we 
cannot afford to allow many of the Act's most important provisions to 
expire at the end of the year. For while we certainly wish that the 
terrorist threat would disappear on December 31, 2005, we all know that 
this will not be the case. I look forward to working with the Members 
of this Committee closely in the weeks and months ahead, listening to 
your concerns, and joining together again on a bipartisan basis to 
ensure that those in the field have the tools that they need to 
effectively prosecute the war against terrorism. Finally, Mr. Chairman, 
we have taken the liberty of supplying the Committee with a copy of FBI 
Director Mueller's testimony concerning the USA PATRIOT Act, which he 
presented yesterday before the Senate's Committee on the Judiciary. We 
ask that it be made a part of this Committee's hearing record, as well.
    I look forward to answering your questions today.

    Chairman Sensenbrenner. Before getting to questions, let me 
just explain the process that I intend to use during this 
hearing. The Chair has been making notes of the approximate 
order in which Members have arrived on both sides of the aisle, 
and after Mr. Conyers and I are done asking General Gonzales 
questions, the Chair will alternate from side to side in the 
order in which Members appeared and will let everybody know 
what the list is with the order.
    Because we have a limited amount of time today and because 
those Members who are going to go to the Pope's funeral have to 
get out to Andrews Air Force Base, the Chair announces right 
now off the bat that he is going to strictly enforce the 5-
minute rule on everybody, including himself. We will have a 
break for votes somewhere around 3. If all of the Members who 
wish to ask questions have not asked their questions by then, 
we will come back and the remaining Members will be able to ask 
their questions.
    So the Chair now recognizes himself for 5 minutes.
    Attorney General Gonzales, as you know, I was instrumental 
in putting the sunset into the PATRIOT Act because I felt that 
the Congress should have a chance to have the opportunity to 
review the effectiveness of the Act's provisions as well as use 
that as a tool to do oversight over the Department of Justice. 
Do you believe that the sunset should be completely repealed, 
or do you think that there should be another sunset put in, and 
if so, how far in the future do you think we should force 
another review?
    Attorney General Gonzales. Mr. Chairman, it was my 
understanding that the sunset provisions were included in the 
Act because of concerns about whether or not the Congress had 
achieved the right balance between protecting our country and 
securing our civil liberties. We've now had a period of time to 
evaluate how these provisions work, how the Department has used 
these provisions. I think it's a strong record of success. I 
think the Act has been effective. I think the Department has 
acted responsibly. I think there is sufficient information for 
the Congress to make a determination that, in fact, these 
provisions should be made permanent.
    As a matter of reality, we all understand that the Congress 
at any time, the next year or the year after, could at any time 
evaluate whether or not certain provisions should be 
discontinued, and so even if the decision were made to remove 
the sunsets, that would not, in my judgment, in any way affect 
the ability or the right or the authority of Congress to 
examine and reexamine the way that these authorities are 
working and the way that the Department is using these 
authorities.
    Chairman Sensenbrenner. One of the things that I believe 
all Members of the Committee and particularly I have heard is 
concerns about section 215. Let me say that--or make two 
points. First of all, I am gratified at your testimony that the 
Justice Department has never sought bookstore, medical, or gun 
sale records under section 215.
    Secondly, I would observe that if section 215 is repealed, 
as some have advocated, all of these records would still be 
available to law enforcement through the procedure of a grand 
jury subpoena, and with a grand jury subpoena, it is up to the 
recipient to hire a lawyer and move to quash the subpoena in 
Federal court, whereas under section 215, there is judicial 
review by the FISA court before the FISA warrant is issued 
under section 215.
    I salute your willingness to have some amendments to 
section 215 to clarify the process under which the Justice 
Department utilizes this section. Can you talk in a little bit 
greater detail on how you suggest section 215 be amended to do 
so?
    Attorney General Gonzales. As I have indicated, Mr. 
Chairman, the Department has taken the position in litigation 
that we interpret 215 as including an implicit right for a 
recipient of a 215 order to challenge that order. We also read 
in the statute the right of a recipient to disclose the 
existence of a receipt of an order to an attorney in order to 
help them prepare such a challenge.
    I, quite frankly, understand the concerns at the fact that 
the statute doesn't have those rights explicitly spelled out in 
the statute, and for that reason, the Department is quite 
comfortable supporting an amendment to make it clear that, in 
fact, those authorities should be included as part of a 
statute.
    Another important point that we would support is the 
specific acknowledgement of what the appropriate standard is. 
There is some question as to whether or not a relevance 
standard is applicable in the statute. We believe it does. We 
believe that is the applicable statute--standard, even though 
that--and we think judges have interpreted 215 to impose a 
relevance standard. But in order to remove any doubt or 
ambiguity, we would support the explicit acknowledgment that 
that is the standard that must be met whenever we go to the 
Federal judge, that that is the standard that we have to meet 
in order to receive a 215 order.
    Chairman Sensenbrenner. Thank you. My time has expired.
    The gentleman from Michigan, Mr. Conyers?
    Mr. Conyers. Thank you, Mr. Chairman. Thank you.
    I have within the time allotted to me three questions. One 
is about the Brandon Mayfield incident in which the PATRIOT Act 
was used.
    The second is about terrorists' access to guns in which we 
have a GAO study that shows, Mr. Attorney General, that out of 
56 firearm purchase attempts by individuals designated as 
suspected terrorists, 47 of them were permitted to involve 
themselves in--were able to purchase weapons.
    And my third question is about racial and religious 
profiling in which since September 11 the Department of Justice 
has interviewed over 3,000 Middle Eastern immigrants, counted 
mosques and surveyed their attendees, registered over 83,000 
Arab and Muslim visitors, interviewed 10,000 Iraqi nationals, 
and I wanted to find out what all this profiling was for, 
racial and religious profiling, which is contrary to FBI 
guidelines, and what do we have to show for it?
    Let's start with Brandon Mayfield, who really got hit up 
pretty hard and I think, to make this a short conversation, 
you've already conceded that the PATRIOT Act was involved, 
right?
    Attorney General Gonzales. What I have said, Congressman, 
is that section 213 was not implicated--was not used. There 
were stories, I believe, in the press that section 213 of the 
PATRIOT Act was the basis for the search. That is not true.
    What I have said is that the PATRIOT Act is implicated to 
the extent that this was a FISA search and that FISA, the 
provisions of FISA were amended by the PATRIOT Act. For 
example, section 218, which deals with changing the standard 
from the purpose to a significant purpose in targeting an 
intelligence investigation, and also sections----
    Mr. Conyers. Excuse me, sir. Sections 207 and 218 were 
involved, right? Sections----
    Attorney General Gonzales. Sections 207 and 218, that's 
what I was just saying.
    Mr. Conyers. Yes.
    Attorney General Gonzales. Yes.
    Mr. Conyers. So the answer is yes.
    Attorney General Gonzales. To the extent that we're talking 
about utilizing FISA and to the extent that the PATRIOT Act 
amended provisions of FISA, yes. Provisions of the PATRIOT Act 
were used in connection with that investigation, but I might 
add that based on what I know today, and I'm limited in what I 
can say because this matter is in litigation, I don't believe 
that the Brandon Mayfield case is an example where there was a 
misuse or abuse of a provision of the PATRIOT Act.
    Mr. Conyers. Well, let me just ask you, can we on this 
Committee cooperate with you to open up those Mayfield files so 
we can learn exactly how the PATRIOT Act was used in this case? 
The Seattle Times and others widely report PATRIOT Act use in 
Portland, attorney investigation, Attorney General says, and 
goes on and on and on, and I think you've said the same thing 
here.
    Attorney General Gonzales. Again, Congressman, this matter 
is in litigation so I'm likely to be limited about what 
information I can share with you, but I'm happy to go back and 
see what we can do to provide information to the Committee in 
connection with this case.
    Mr. Conyers. Let's go on to the----
    Attorney General Gonzales. The GAO report. Congressman, it 
is up to Congress to determine who is able to possess a firearm 
in this country. Congress designates certain categories of 
people, based upon various actions, that make them disabled 
from owning a firearm. If someone does not have such a 
disability which has been recognized by Congress, even though 
they're a terrorist, there are limits to what this Department 
can do to prevent them----
    Mr. Conyers. Would you be willing to support legislation 
limiting a terrorist's access to such weapons?
    Attorney General Gonzales. I think that we'd be willing to 
consider looking at such legislation, Congressman----
    Mr. Conyers. Well, 47 suspected terrorists were able to get 
weapons. What----
    Attorney General Gonzales. Let me try to explain that we 
try to be very, very careful about who appears on the Terrorist 
Watch List.
    Mr. Conyers. Sure.
    Attorney General Gonzales. There are various reasons that 
people appear on the Terrorist Watch List, and so the fact that 
someone appears on the Terrorist Watch List----
    Mr. Conyers. That doesn't make them a good guy.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from California, Mr. Lungren?
    Mr. Lungren. Thank you very much, Mr. Chairman, and welcome 
again to the Committee, Mr. Attorney General.
    Mr. Attorney General, when I've had town hall meetings in 
my district, even though I'm a former Attorney General of 
California, and try to explain it in legal terms, I've had 
people raise section 213. They don't know it as delayed 
notification. They know it by another name. And a concern is 
always raised about this would necessarily lead to abuses and 
somehow seems unfair.
    This is an investigative authority that has been used in 
cases other than terrorism. Could you just explain why that is 
an important technique, an important authority, and how, if 
extending it to terrorism cases, it changes the nature of it or 
the seriousness of the authority given, or if it does not? That 
is, what would you say to my constituents who ask me this 
question at town hall meetings, despite my best efforts to 
answer them?
    Attorney General Gonzales. I would respond by maybe giving 
them this hypothetical. I'm going to change some facts here 
about a hypothetical and how this tool can be very useful in 
dealing with terrorism, and that is, let's say, we uncover 
ammonium nitrate, a large stockpile of ammonium nitrate. It is 
a very important ingredient in creating a very dangerous bomb. 
So we discover this. We don't know who all is involved in this 
plot, this possible conspiracy. So we want to make sure we get 
everyone involved in it. On the other hand, we want to grab it 
because we're concerned that we may lose track of it and it may 
be used to build a bomb and kill lots of people.
    And so we get a delayed notification warrant that allows us 
to come in. We substitute the ammonium nitrate with an inert 
substitute and we're able to continue the investigation to the 
appropriate time without jeopardizing a possible creation of a 
bomb, an explosion killing hundreds of people. So that would be 
an example of where the ability to go in and do a search 
without notifying the target can be extremely beneficial until 
the time comes when we have sufficient information to make our 
case, and that would be an example that I would provide to your 
constituents.
    Mr. Lungren. And is that any different than what we do in 
other kinds of criminal cases with the delayed notification 
authority?
    Attorney General Gonzales. Delayed notification warrants 
have been in place for many, many years in ordinary criminal 
investigations for a wide variety of crimes. People need to 
understand that it is under the jurisdiction and supervision of 
a Federal judge. We still have to show the probable--we still 
have to meet the probable cause standards, and so----
    Mr. Lungren. And that is all done prior to the time that 
the entry is made or the----
    Attorney General Gonzales. Absolutely. We go to a judge 
like in every other case and we make our case, present the 
facts, and the judge makes the determination whether or not we 
meet the standards under the Constitution.
    Mr. Lungren. Mr. Attorney General, you have said here and 
you've said before, and I'll quote an article in the New York 
Times that quotes you as warning Congress that we cannot afford 
to assume the quiet of the day will mean peace for tomorrow and 
the terrorist threat will not expire, even if parts of the 
PATRIOT Act are allowed to. If we fail to renew these 
provisions of the PATRIOT Act, could you tell us how this would 
harm law enforcement, because we made sort of a broad statement 
that it would, but specifically, how would it?
    Attorney General Gonzales. One major way would be in the 
sharing of information. If you look at the reports of the 9/11 
Commission and the WMD Commission, both have acknowledged that 
a serious weapon--the most effective weapon in dealing with 
terrorism is in the sharing of information. And prior to the 
PATRIOT Act, there were questions within the law enforcement 
community about how much information could be shared by those 
in the Intelligence Community with law enforcement, and those 
questions were laid to rest by certain provisions in the 
PATRIOT Act.
    If those provisions were sunsetted, we would once again be 
in a situation where law enforcement would be very, very 
cautious in sharing of information. They would want to check 
with their superiors, and so it would cause delays in 
investigations and I think would needlessly tie the hands of 
American investigators in dealing with this threat.
    Mr. Lungren. Thank you, Mr. Attorney General. I might just 
say for the record, while I understand what you say about 
perhaps we don't have the need to put in the sunset in the 
future, as a spur to Congress to make sure we do appropriate 
oversight, I'm inclined to support a sunset provision in the 
future, because, frankly, this is serious and the people need 
to be assured that we are, in fact, doing the oversight that is 
necessary.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from California, Mr. Schiff?
    Mr. Schiff. Mr. Attorney General, I want to thank you for 
being here. I'm a former Assistant U.S. Attorney and I greatly 
value the work done by Justice Department people all over the 
country.
    I'm an original cosponsor of the House version of the 
PATRIOT bill. In my view, the PATRIOT bill was a bargain. We 
would give the Government greater ability to investigate and 
prosecute terrorism suspects, and in return, we would take upon 
ourselves greater responsibility for overseeing these more 
powerful tools.
    In my view, we have not kept up our part of the bargain. We 
have not done adequate oversight of the PATRIOT bill in this 
House or in this Committee. For the Justice Department's part, 
I believe the Department has not been forthcoming with the 
information that we would need also to do our job of oversight.
    And in one area in particular, I have been most concerned. 
This is an area both within, but largely without, the PATRIOT 
bill and that is the detention of Americans and lawful 
residents as enemy combatants. For 3 years now, I have been 
raising this issue, what the standards ought to be for the 
detention of an American, what due process should be afforded. 
I introduced legislation 3 years ago to authorize the detention 
of enemy combatants, but to ensure that there was access to 
judicial review and access to counsel.
    We've had no hearing on any of this legislation. Indeed, 
requests to have a hearing just on the issue of the detention 
of Americans have not been successful. We have had no hearing 
on this subject. That's been our problem, our unwillingness to 
set any limit on the power of the executive to detain an 
American citizen. That's been our problem.
    At the same time, efforts that I've made to learn 
information from the Justice Department and the Defense 
Department about our Government's own policies of when we treat 
someone as an enemy combatant or when we treat them as a 
criminal defendant--when we treat them as a defendant with all 
of the rights that attach to that, when we treat them as an 
enemy combatant with none of the due process that attaches to 
that, I have been unable to get really any meaningful 
information, even in classified form.
    When you gave a speech to the ABA a year or two ago, it was 
the most information I had ever heard about how we were 
deciding when to treat someone as an enemy combatant. More 
information than you gave publicly was denied me in classified 
form. That cannot persist.
    I find it odd that there aren't more voices in the Congress 
raising this issue, that aren't demanding that Congress act to 
set limits on the detention of Americans, to set due process 
for the detainees at Guantanamo. Of course, all this thing, not 
done for the terrorism suspects but done for all the rest of 
us, to protect our civil liberties and our due process. I find 
it very odd there have been so few voices in the Congress on 
this issue, but I find I have a new and powerful ally on the 
Supreme Court of the United States.
    As you know, the District Courts have been conflicting 
about whether the executive has the power to detain enemy 
combatants and under what conditions. Justice Scalia, in one of 
his dissenting opinions, commented, ``I frankly do not know 
whether the tools are sufficient to meet the Government's 
security needs, including the need to obtain intelligence 
through interrogation. It is far beyond my competence or the 
Court's competence to determine that, but it is not beyond 
Congress's.'' We could not have, I think, a stronger admonition 
that we need to act in the Congress, and so I'm in the unusual 
position of asking you to help us to do our job.
    Mr. Attorney General, do you believe, as I do, that the 
Justice Department's power to detain enemy combatants, which I 
believe the Department has to have in the war on terrorism, 
don't you believe that power is strengthened when the Congress 
acts to provide both the authority clearly and the due process 
clearly? Isn't the power strengthened because it will now have 
the imprimatur of both the legislative and executive branch 
and, therefore, have the respect of the judicial branch? 
Shouldn't we act so that we don't have piecemeal decision 
making by the courts? Will you work with the Congress to 
propose legislation setting out the due process for the 
detention of Americans as enemy combatants and the detainees in 
Guantanamo?
    Attorney General Gonzales. Congressman, there is a lot 
there to respond to. Generally, in the area of war, the framers 
of the Constitution gave both to the executive branch and to 
the legislative branch certain powers, and I think in the 
exercise of the power, I, for one, as someone who looks at 
these things, look at where you are on the continuing spectrum.
    I mean, for example, if the--if America is attacked, I 
think this President, as Commander in Chief, can take action to 
defend this country without action by Congress. I think he has 
the authority to do that. But if we're talking about taking 
100,000 troops into another country for an extended period of 
time, then it becomes, I think, more difficult whether or not--
can the Commander in Chief do that without any kind of 
Congressional authorization.
    I think the Framers probably had it right. It probably 
works best, particularly when we talk about putting the lives 
of men and women at risk, to have both branches working 
together in most cases. Whether or not legislation is 
appropriate, these are very, very difficult issues. I have 
really discovered how difficult these issues have been these 
past 4 years.
    There is a reason why courts around this country reach 
conflicting decisions about these issues, because they are so 
hard. Many of the issues have never been confronted in our 
courts before. It's a new kind of war, and some of the old 
rules just don't apply. And so we try to deal with them.
    And so to answer directly your question about whether or 
not legislation would be beneficial, I'd have to look at the 
circumstances. I'd have to look at the legislation, quite 
frankly.
    You're right. We waited too long, in my judgment, to 
respond, to explain to the American people what we're doing and 
why, and it was one of the things that I mentioned in that 
speech you referred to, is that we waited. We waited a long 
time because of concerns that we didn't want to say anything 
that might help the enemy, might jeopardize something that 
we're doing. But we finally acknowledged that we were hurting 
ourselves, that the American people and the Congress really 
needed to know what we were doing and why, and that was--I'm 
delighted to know about your speech, because I did, I think, 
talk a lot about the process that we used in designating 
someone as an enemy combatant or having them go through the 
criminal justice system.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The time of the gentleman from Texas, Mr. Smith.
    Mr. Smith of Texas. Thank you, Mr. Chairman.
    General Gonzales, thank you for being here today. General 
Gonzales, recently, you made the statement that you felt that 
the PATRIOT Act is working and, in fact, it has helped to 
prevent additional terrorist attacks. Could you be more 
specific? Could you point to the number of individuals, the 
number of would-be terrorists who might have been detected and 
apprehended? Can you point to terrorist rings that might have 
been disrupted or broken up to substantiate that statement?
    Attorney General Gonzales. It's kind of hard to sort of 
prove a negative or show a negative. I can certainly--I've got 
a list here of where the PATRIOT Act has been beneficial or 
helpful. I can certainly provide to the Congress and to you 
examples of cases where the PATRIOT Act has been very helpful.
    Mr. Smith of Texas. Let me just----
    Attorney General Gonzales. I would just repeat what I said 
earlier in a response to another question about, I mean, just 
the sharing of information. There's a reason that there's not 
been another attack in this country, quite frankly, and not 
just the PATRIOT Act. I know this Congress worked very hard in 
standing up a new Department, Homeland Security, so a lot of 
actions taken by the Government in order to defend this 
country.
    But I think the PATRIOT Act has been very, very helpful. We 
have in various cities around the country, in Portland, Oregon, 
in Buffalo and Detroit, I mean, in New York City, rounded up 
people who were engaged in plotting another terrorist attack. 
Often times, we obtain convictions. Some critics of the 
Administration have said, well, you've only got low-level 
convictions. That's because we try to preempt something really 
bad from happening, and so sometimes we cannot--we have to move 
in early enough to prevent another attack and we don't have a 
sufficient basis to prosecute someone for something really 
serious.
    Mr. Smith of Texas. General Gonzales, how many convictions 
have you obtained?
    Attorney General Gonzales. I don't know, but I can get that 
information for you.
    Mr. Smith of Texas. Okay. I would be curious about that.
    Let me go to another aspect or another kind of terrorist 
threat. You are aware, I am sure, that last year, the number of 
individuals coming across our Southern border from terrorist-
sponsoring nations increased dramatically, and I'm just 
wondering what we're doing to target the individuals who might 
be coming into our country to commit terrorist acts.
    And as a sort of a second part of that question, I point 
out, which you also know to be the case, the Border Patrol 
tells us that for every three individuals seeking to come into 
the country illegally, two succeed. Two out of every three 
people who want to come into the country illegally are able to 
do so. We wouldn't be surprised, given that, that there might 
not be another terrorist attack. But what is your response as 
to how we can prevent that from occurring and how we target the 
individuals who might be coming across the border who would 
be--might be would-be terrorists from terrorist-sponsoring 
countries?
    Attorney General Gonzales. Congressman, I know the 
immigration issue is one that you have spent a lot of time on 
and you have a lot of expertise and knowledge about. It is a 
very, very difficult issue. As I've said many times in talking 
about this issue, because we have a country that traditionally 
has invited immigrants, we embrace them, we want them to come 
in our country, it is the fabric of our great country, is the 
contributions of immigrants.
    We have generally an open border in the South. People along 
the border communities cross the border every day, back and 
forth, so that they can go to work, provide for their families, 
and that's the reality of life.
    On the other hand, a new reality after September 11 is the 
fact that we need to do what we can do to make it so that 
terrorists cannot come into this country. Of course, the 
Department of Homeland Security has now the primary 
responsibility for dealing with that. I know Mike Chertoff, he 
and I have spoken about this issue. We've invested money, the 
Congress working with the Administration and making sure 
additional monies are available for additional agents. Our 
technology is getting better. But we still have a long way to 
go. I mean, this is a very difficult issue. It's one that's 
existed for many, many years. If it were one that could easily 
be solved, it would have been solved a long time ago. But I 
just--we'll continue to work with the Congress to try to 
address it.
    We understand it's a problem. I was in Mexico last week. We 
talked about this issue with President Fox and the Attorney 
General in Mexico, and so they understand that we consider it a 
serious--we're seriously concerned about it, and I was 
reassured by the Attorney General that they consider it an 
issue for them. They realize how harmful it would be for their 
economy, their tourism, if, in fact, we have a situation where 
terrorists come up from Latin America, other countries, through 
Mexico into our country and cause another attack. They realize 
how damaging that would be, and so they're very concerned about 
it, as well.
    Mr. Smith of Texas. Thank you, General Gonzales. Regarding 
my first question, the number of convictions, I understand it's 
in the 80's to 90's range, and I'll look forward to that 
information.
    Attorney General Gonzales. Thank you.
    Mr. Smith of Texas. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from California, Mr. Berman?
    Mr. Berman. Thank you very much, Mr. Chairman, and thank 
you, Mr. Attorney General, for being here and for at least 
conveying the impression that you sometimes hear and even 
understand the questions we ask. That's already an improvement 
over your predecessor.
    The PATRIOT Act sunset provisions you've discussed, I 
frankly think most Members of Congress have come or will come 
to the conclusion that many of these sunsetted provisions 
should be--perhaps all of them should be continued, perhaps 
refined. Mr. Chairman, I would hope this review, though, would 
also take into account a number of unilateral actions--Mr. 
Schiff certainly brought up one in the context of the enemy 
combatants issue--that we should be considering that weren't 
part of the PATRIOT Act but were developed in response to 
September 11 and in our effort to fight a more effective war on 
terror.
    Some of these include policies instituted without any input 
from Congress, mining data from public and non-public 
databases, blanket closure of deportation hearings to the 
public, blanket closure, denial of bond to whole classes of 
non-citizens, altering the makeup of the Board of Immigration 
Appeals in a way that has overwhelmed the Federal circuit 
courts, and permitting the DOG's immigration attorney's to 
unilaterally overrule an immigration judge when he has ordered 
someone released on bond.
    Today, Mr. Delahunt and I are introducing a law we call the 
Civil Liberties Restoration Act. It doesn't repeal any part of 
the PATRIOT Act. It doesn't impede in any way the ability of 
agencies to share information. Our goal is simply to ensure 
there are appropriate checks and balances on a number of 
PATRIOT provisions as well as an opportunity for Congress to 
address some of the unilateral policy decisions that I just 
mentioned. They're all drafted, we think, in a way that tries 
to achieve the balance that you and others have talked about. I 
would hope at some point you might have a chance to take a look 
at some of the proposals contained in that legislation.
    But I think the 9/11 Commission was instructive on this 
issue, and my question to you is--I'm going to mention--they 
established some standards for the process that we are now 
about to embark on and I'd like your reaction to it. The 9/11 
Commission essentially said we should reexamine the specific 
provisions that sunset, taking care not to renew any provision 
unless the Government can show, one, that the power actually 
materially enhances security, and two, that there is adequate 
supervision of the executive's use of the power to ensure 
protection of civil liberties.
    Secondly, if the power is granted, there must be adequate 
guidelines and oversight to properly confine its use.
    And thirdly, on the issue I've just touched on, because the 
issues of national security and civil liberties posed by anti-
terrorism powers that are not part of the PATRIOT Act sunset 
are at least as serious as any posed by those provisions that 
do sunset, Congress should undertake the broader review of 
anti-terrorism powers both within and outside of the PATRIOT 
Act, using the same standard of review that I just mentioned 
for the sunset provisions.
    Anything wrong with that as a methodological approach for 
us to begin this effort?
    Attorney General Gonzales. I think this country was founded 
by people concerned about the exercise of power in our home 
country and I think it is appropriate to always--to question 
and to examine the exercise of power by the Government, and so 
I welcome--that's why I welcome this debate.
    I think that the record shows that the PATRIOT Act has been 
effective. I think the record shows that the exercise of the 
authorities granted to the Department of Justice have been used 
wisely and judiciously. But I think that----
    Mr. Berman. Let me just throw out one thing here. For 
instance, in our bill that we're introducing today, the blanket 
closure of all immigration hearings, why isn't it case by case? 
Where there's a legitimate national security reason to close 
that hearing, by all means, you ought to have the authority to 
have that hearing closed. But why does there need to be a 
blanket closure?
    Attorney General Gonzales. Congressman, I wasn't involved--
--
    Mr. Berman. Can you defend that decision?
    Attorney General Gonzales.--I wasn't involved in that 
decision, and so I probably do not know--in fact, I know I 
don't know all the facts that were weighed or considered in 
connection with that----
    Mr. Berman. From what you know now, what do you think of 
that?
    Attorney General Gonzales. Well, I think that there were 
mistakes made, quite frankly, and I think if you look at the IG 
report about the detentions of immigrants, there were some 
mistakes made. We've worked very, very hard--the Department has 
worked hard to try and address and respond to the 
recommendations made by the IG. But in terms of the blanket, 
that would be something I would have to look at.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from Iowa, Mr. King?
    Mr. King. Thank you, Mr. Chairman.
    Mr. Attorney General, I thank you for being here to testify 
today, I believe the first time in the position that you're in. 
I welcome you to the Judiciary Committee.
    A series of questions have arisen as I listened to your 
testimony and the questions here today and one of them is with 
regard to the question asked by the Ranking Member. Fifty-six 
attempts to purchase guns and 47 of them were successful in 
purchasing guns, and as I listened to the follow-up question, I 
heard the phrase, ``suspected terrorists.'' Was there any 
anticipation that suspected terrorists would be screened from 
getting guns, and could you also speak as to under what 
circumstances the other nine might have been prohibited?
    Attorney General Gonzales. I don't have the information 
about the other nine. We--unless Congress says that if you have 
this disability or something or you have this characteristic or 
you've done this kind of action, you're going to be entitled to 
own a firearm in this country. As I've said before, we do not 
want to see a situation where terrorists have the right to 
possess a weapon in this country. But at the end of the day, 
all we can do is enforce the law.
    Under our current structure, you are disabled if you've 
been involved in some kind of domestic abuse. You're disabled 
if you're an illegal immigrant. You're disabled if you're a 
felon. But in that list of disabilities is not the words 
``terrorist.'' That doesn't mean that we just give up. 
Obviously, when someone wants to purchase a weapon and there's 
a hit on the Terrorist Watch List, we tried to alert the local 
officials and see if we can get additional information to find 
out if there is a way that this person can either be arrested 
or deported or can we discover some kind of disability to 
prevent them from getting a weapon. But if we can't do that, 
they're entitled under the law to get a weapon.
    Mr. King. We don't have a category for suspected terrorists 
and I think that's the summary of that answer and I thank you.
    Then on another subject matter, the PATRIOT Act requires 
the Inspector General of the Department of Justice to provide a 
twice-yearly report as to the civil liberties, whether they 
have been violated by use of the PATRIOT Act, and it's my 
understanding that those six reports have not found a single 
violation of civil liberties.
    Would you care to expand on that? I guess the question 
comes to me is why do I continually hear the stories about 
civil liberties being violated--and I'd expand my question a 
little more in that I'm inclined to support eliminating the 
sunset on the PATRIOT Act for the very reason of the 
demagoguery that I hear about the abuse of the PATRIOT Act and 
not finding evidence of it.
    Attorney General Gonzales. You are correct, sir, that the 
IG is required to submit a report semi-annually about abuses 
under the PATRIOT Act, and to date, he has not been able to 
report any abuses under the PATRIOT Act. I visited with our IG 
several weeks ago and asked him again, are you aware of any 
such abuses, and he said no.
    And as I travel around the country and I've encouraged 
other officials within the Department of Justice to go out and 
try to solicit examples of where real abuses or misuses of the 
PATRIOT Act have occurred, there's a lot of misinformation, a 
lot of disinformation out there. Some people believe that 
because certain provisions may have been struck down, that 
means that the PATRIOT Act was somehow found unconstitutional, 
and we discovered that, no, it related to a provision that was 
passed by the Congress years before the PATRIOT Act.
    And so I think that, again, I think the record of the 
Department is a very good one regarding the use of the PATRIOT 
Act. I think that the record also reflects that Congress 
probably did a pretty good job in achieving a good balance 
between protection of civil liberties and protection of this 
country.
    Mr. King. Thank you. And then with regard to section 215, 
do you believe there's a reason to expand that to cover 
domestic terrorism, as well?
    Attorney General Gonzales. I would have to look at that, 
Congressman. I don't have an answer for that, whether or not 
215 should be expanded to include domestic terrorism.
    Mr. King. And then off of Mr. Smith's statement with regard 
to the--I mean, really, the amount of immigrants coming into 
this country on the illegal side, it looks like that number is 
over three million, if using that extrapolation of Mr. Smith's 
remarks. And out of that huge haystack, how would you think it 
would be logical that we could sort the terrorist needles out 
of 3.4 million illegals?
    Attorney General Gonzales. I think it would be difficult. 
Obviously, from our perspective, I think it is good if we know 
who is coming into this country and why they're coming into 
this country. The key question is, how do we do that, and 
that's something that we're working on and I know Members of 
Congress have been thinking about and are continuing to work on 
it, because it is a very important issue.
    Mr. King. And I would suggest reducing the size of the 
haystack. Thank you, General Gonzales. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler?
    Mr. Nadler. Thank you. Mr. Attorney General, my basic 
problem with all of this is that the Administration, the 
current Administration that's enforcing the PATRIOT Act seems 
to have no sense of limits and no sense of due process 
whatsoever when dealing with real or alleged terrorism cases. I 
will cite, for instance, the memo that you wrote justifying 
torture, which I am sure you won't characterize as such, but I 
will.
    Number two, the whole doctrine of the enemy combatants that 
Mr. Schiff talked about in which the President has claimed the 
power to point his finger at any American citizen--or non-
citizen--but any American citizen and say, you are an enemy 
combatant because I say so on the basis of secret information 
which I won't reveal to you or anyone else, and by that 
declaration, I have the power to throw you in jail forever with 
no due process, no hearing, no evidence, no nothing. Nobody, to 
my knowledge, no executive in an English-speaking country has 
made such a claim of tyrannical power since before Magna Carta, 
and yet--and the Justice Department under your predecessor had 
the nerve to say to the Federal courts that they didn't have 
the jurisdiction to even question the fact or the authority of 
the President.
    Third, you stated in your opening statement that the 
PATRIOT Act was well considered and well balanced. Well, maybe 
it's balanced and maybe not, but it certainly wasn't well 
considered. If you recall how it passed here, this Committee 
considered in detail a PATRIOT Act, considered for 4 days, 
voted on amendments, marked it up, unanimously reported the 
bill on a Thursday, I believe. Over the weekend, the leadership 
of the House together with the Administration took the well-
considered bill, which I thought was balanced, and threw it in 
the garbage, wrote over the weekend an entirely new bill, 
presented this 200-and-some-odd-page bill to the House with two 
copies available, one for the Democrats, one for the 
Republicans, warm to the touch at 10 in the morning. We started 
the debate at 11 and voted on it at 1 and nobody had a chance 
to read it. So it's certainly not well considered. It may be 
well balanced, but certainly not well considered.
    In light of all this, I have two specific questions about 
the bill. There are provisions in the PATRIOT Act that are fine 
and that have positively reformed the way intelligence is 
gathered and used to protect the United States and provisions 
that I think are over the top.
    Last September, a judge in the Southern District of New 
York, Judge Morero, ruled that section 505 dealing with 
national security letters violated two constitutional 
principles, the first amendment right to freedom of speech and 
the right to be free from unreasonable searches and seizures 
under the fourth amendment. Section 505 authorizes the FBI, 
using only a piece of letterhead paper signed by a field agent 
in charge of a local FBI office, to demand private information 
without court review or approval, without the person being 
suspected of any crime, without ever having to tell him or her 
that it happened.
    Moreover, the business from which the FBI gets these 
private records is gagged and prohibited from notifying the 
targeted individual, so they may never move in court to quash 
this request or to even question it.
    Do you believe that section 505 should be either stricken 
or amended, question number one?
    Question number two is that section 206 creates roving 
wiretaps in intelligence cases which allows the Government to 
get a single order that follows a target from phone to phone, 
which I think makes sense. But in addition, last year's 
Intelligence Authorization Act allows the Government to issue 
John Doe wiretaps where the phone and facility is known but the 
target is not. The combination of these two laws seems to allow 
for a general wiretap, one that follows an unknown suspect from 
unknown phone to unknown phone.
    Should this section be changed to clarify that the 
Government would specify either the person or the phone to be 
tapped, or are we now into the business of general wiretaps 
like the British Writs of Assistance that helped spark the 
American Revolution?
    Attorney General Gonzales. Thank you, Congressman. As to 
505, I don't think that 505, I think, should be amended or 
deleted. The court, as I understand it, found a problem with 
the fact that a person did not have the right to contest the 
national security letter or to tell anyone about the national 
security letter, even though the Department took the position, 
yes, you do, and we argued that in that litigation.
    Mr. Nadler. That was one of the problems it found.
    Attorney General Gonzales. I don't think that the court had 
a problem per se with 505, and some people have characterized 
this as a decision by the court that somehow struck down a 
provision of the PATRIOT Act when an ACLU attorney himself even 
acknowledged that, no, that wasn't the case. The problem was 
the first amendment and the fourth amendment and it did not 
relate to the PATRIOT Act, in my judgment.
    In terms of roving wiretaps, in my reading of 206, I 
believe that the Department has an obligation to identify a 
specific target. We may not know the name of that person, but 
we have to go before a Federal judge and give the judge enough 
information that the judge is comfortable that we've satisfied 
the probable cause standard as to a specific target being a 
foreign power or an agent of a foreign power. That's the first 
thing.
    And so it's not the case that if we get a wiretap on person 
A and we discover--a roving wiretap on person A and we 
discover, whoops, this is not the right guy, let's listen to 
the phone of this person, if we go to person B, we have to get 
another order from a Federal judge. So it's not the case--we 
get an order for one specific person.
    Now, when we go to the judge, we also go to the judge 
having to satisfy a probable cause standard as to a particular 
location or facility or phone that the terrorists or target is 
either about to use or is using. So it wouldn't be the case 
where we'd be able to simply get an order from a judge to tap 
the phones of everybody in an apartment building. The way it 
works is we get a roving wiretap on, say, terrorist A and 
terrorist A is on a cell phone. If he goes to a different cell 
phone, that roving wiretap would go with that terrorist to that 
second cell phone.
    Chairman Sensenbrenner. The gentleman's time has expired.
    Without objection, immediately following Mr. Conyers' 
opening statement, a letter from Sarah W. Clash Drexler, Trial 
Attorney of the Department of Justice Civil Division, to Elden 
Rosenthal, an attorney in Portland, Oregon, relating to the 
Brandon Mayfield case will be inserted.
    The gentleman from Florida, Mr. Feeney?
    Mr. Feeney. Thank you, Mr. Chairman, and thank you, General 
Gonzales. Like yourself and a lot of proponents of the PATRIOT 
Act as well as a lot of the critics and people that have voiced 
concerns, I'm interested in finding the appropriate balance 
between civil liberties and between protecting ourself against 
this enormous threat from terrorism, which is very real indeed.
    I note that, amongst other things, that the Constitution is 
often not absolute when it comes to civil liberties. For 
example, the prohibition against certain searches and seizures 
is based on reasonableness, according to the Founders. What 
that means to me is that whether a search or a seizure is 
reasonable or unreasonable may depend on the threat at any 
given time, so that it may not be an absolute bar. I think the 
Founders invited us to change that bar based on the threat to 
the United States and, of course, habeas corpus can be 
suspended amongst other times, so certainly under article I, 
during periods of emergency, the Congress has the right to 
suspend habeas.
    The other thing that I note here is there are not a lot of 
legal precedents. So you've been referring to arguments by the 
ACLU. We've got different lower court decisions recently. But 
the last time we were attacked by a hostile foreign power 
successfully on the continental U.S. was 1812. There hasn't 
been a lot of litigation since 1812 on what the Government can 
or can't do in this regard.
    We did have a Civil War within our shores from 1860 to 
1865. Chief Justice Rehnquist has written a very important book 
about 15 years before the terrorist attack called All the Laws 
But One after Lincoln's quote when he suspended habeas corpus 
and was criticized for doing so and he said, ``Am I to suffer 
basically the loss of the Union and all of our laws as we 
defend one law, that being habeas?''
    And I guess in that historical light, since we don't have a 
lot of recent precedents on how to do this balance, I'd like to 
ask you with respect to American citizens who are suspected 
under the PATRIOT Act or other provisions of law of engaging in 
war on terror whether you can compare them to, say, a 
rebellious Confederate soldier. Lincoln thought that States per 
se didn't have the right to secede. He treated individual 
soldiers, at least at the beginning of the war, as individual 
criminals. But he didn't give them any of the normal due 
process that we would expect criminals. When he captured 
somebody from Lee's army, he treated them as a prisoner of war. 
So there's that question, and to ask you whether that has any 
precedential value.
    Lincoln's suspension of habeas corpus, of course, there 
were, among other things, railroads being torn apart in 
Maryland by sympathizers with the Southern rebellion and there 
were Union troops that were attacked on the way. Habeas was 
suspended. That was just one of several cases.
    And finally, as you deal with whether the Civil War and 
some of the other historical episodes in our history where we 
have had to cut back on normally anticipated and expected civil 
liberties, finally, I'd like to congratulate you, because 
there's two things that we can with some comfort say after 
September 11. One is that there have been no other successful 
attacks, and while it's true, as you said, you can't prove a 
negative, that but for the PATRIOT Act, we would have been 
attacked successfully, we can note that our enemies have made 
clear they want to attack us and they have been unsuccessful 
since September 11. And as you say, to my knowledge, there has 
been no proven civil liberty abuse under the PATRIOT Act, even 
though people are invited to bring civil actions under certain 
cases if they feel like they've been.
    So I guess I'm interested in an historical aspect here 
because we really have a huge dearth of constitutional 
precedents dealing with how this pendulum swings, civil 
liberties versus protecting us from foreign threats.
    Attorney General Gonzales. Congressman, I'm not sure how to 
answer that question. One point that I would want to emphasize 
is that I don't view this, the PATRIOT Act or certain actions 
by this Government, as reflecting a decision that protecting 
our country is okay at the expense of civil liberties. I think 
we can have both. I think we need to have both, quite frankly. 
I think we need to protect our country. We need to protect our 
civil liberties. I think that's very, very important.
    I think the PATRIOT Act is an example of the Congress and 
the President coming together and trying to achieve that 
balance, because we all understand--there are reasons these 
safeguards are in here. Even after the--six weeks after the 
most horrific attack on this country, people still wanted to 
have safeguards because Members of Congress and the President 
understood that civil liberties, the protection of civil 
liberties, was equally important.
    And so I think that it would be a mistake to say that, 
depending on what the circumstances of the moment are, that 
sometimes civil liberties should be sacrificed in any way in 
order to protect the security of this country.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from Texas, Ms. Jackson Lee.
    Ms. Jackson Lee. Thank you very much, Mr. Chairman. Allow 
me on my time a moment of personal privilege to welcome General 
Gonzales and to recognize that our paths cross as lawyers in 
the City of Houston, and let me applaud you for your historical 
family background and the history that you're making on behalf 
of the American people.
    And I might say that my questioning is not personal. I 
appreciate you very much and I wish your family and you best 
and well as you proceed in this very important position.
    We have spoken on occasion on some issues dealing with 
civil rights and so I think you have a sense of my concern as 
we look at the issue of either reauthorizing or making 
permanent several positions--specific provisions of the PATRIOT 
One. I think it should be well noted that I supported a PATRIOT 
Act One legislative initiative as drafted in a bipartisan 
manner by this same Judiciary Committee. That was not the bill 
that arrived at the floor of the House and, therefore, I was 
compelled to stand, I think, more importantly with the 
Constitution and security by voting against it.
    Let me just share very briefly some words that I think are 
important to note. ``Individual liberty is individual power. 
The nation which enjoys the most freedom must necessarily be in 
proportion to its numbers the most powerful nation.'' That's 
John Quincy Adams.
    Another by Samuel Adams notes that ``the Constitution 
should never be construed to authorize Congress to infringe,'' 
and then it goes on to say, ``on the ability of citizens to 
redress their grievances or to subject the people to 
unreasonable searches and seizures of their possessions, 
papers,'' or, as I said, possessions.
    I say that because we seemingly have conceded to losing our 
rights because of the horrific act of 9/11. I think we are 
consistent in this Congress and in this Judiciary Committee to 
acknowledge, and I think you have acknowledged it, General, 
along with the President, that our highest responsibility is to 
secure the Nation and to secure the people of the United 
States. I don't step away from that responsibility.
    I would argue, however, that the tone in which we have 
proceeded in the legislative initiatives have really done us 
in, and I say that because your beloved Texas now seems to be 
under the eye of the new Minutemen, Minutewomen. Border 
watchers have eyes on Texas. So because we have either created 
this atmosphere of fear, because we have either not done our 
job, we have not protected civil liberties, we have not 
enforced laws that we already have dealing with border 
security, we now have men taking up arms and placing themselves 
on the border, even to the extent that Border Patrol agents 
have said it may be a dangerous condition. So I'm concerned 
about the tone.
    In addition, before the PATRIOT Act Two was pulled, we even 
had a potential section 501 that would take away someone's 
citizenship, which the Supreme Court under Justice Warren said 
that the 14th amendment protects our citizenship unless we 
voluntarily give it up.
    It is the tone that has been created, and frankly, I don't 
believe that the PATRIOT Act provisions really have made us 
safer. I hope that we will vet them at a very high standard as 
to the standard of how they have denied our civil liberties, 
how they've created an atmosphere for Guantanamo Bay, and I do 
not criticize the military that is doing their job. I do 
criticize the existence of Guantanamo Bay for no reason. I 
criticize the existence of a determination of enemy combatant, 
which seemingly has no basis in law.
    So I raise these questions with you. One, would you be able 
to provide for me the numbers of Pakistani who were required to 
sign up on the registration list in the early part of 2002-
2003, the numbers of them? You can't give me names. How many 
were signed up? How many terrorists were found off of that 
list? That is my first question, and you obviously may not have 
that at your fingertips. I'd appreciate your issue on that.
    Section 206 is the roving wiretap, and my question to you 
on that, the value of the roving wiretap. It doesn't seem to 
have enough restraints in terms of, again, the litmus test of 
civil liberties.
    And my last one is to ask prospectively, because of the 
tone that's been created, do you think it's viable that we 
should have as a provision of any PATRIOT Act the removal of 
one's natural born citizenship that is protected under the 14th 
amendment? And I thank the gentleman for his concern on these 
questions.
    Attorney General Gonzales. I don't have the information on 
Pakistan. I'll see what I can learn and see what information 
can be provided.
    On 206, 206 is--allows the use of roving wiretaps in 
connection with intelligence investigations, and the use of 
roving wiretaps based on a probable cause standard is something 
that's been around for many, many years, has been reviewed by 
the courts, and I do believe does meet constitutional 
standards.
    In terms of removal of citizens, I don't recall the 
specific provision you're referring to in what was, quote, 
PATRIOT----
    Ms. Jackson Lee. Section 501.
    Attorney General Gonzales.--PATRIOT Two, but I'd be happy 
to look at it and give you my views about it.
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Jackson Lee. I thank you.
    Chairman Sensenbrenner. The gentleman from Texas, Judge 
Gohmert.
    Mr. Gohmert. Thank you, Mr. Chairman.
    General Gonzales, I've been a fan of yours for a long time, 
going back to my days as a judge and Chief Justice back in 
Texas. Proud to have you here. Thank you for your testimony.
    I want to go quickly into these things. Five minutes goes 
fast. I was watching about 1 or 2 this morning a replay of some 
of your testimony yesterday with the FBI Director before the 
Senate and I wanted to clarify something with regard to section 
215 and also 217. You had mentioned there was a lot of concern. 
Obviously, there is a lot of concern. Under 215, where it 
discusses that you or your designee may make an application for 
order and it's of a U.S. person, and it goes on that that would 
be to a judge of a court or magistrate, specifies that, and 
then it says if the judge finds the application meets the 
requirements of this section, then he will grant the warrant.
    And I heard a lot of different discussion on different 
standards of proof and I want to make sure that--and I don't 
see anything in the section, haven't seen it, which says what 
is the burden of proof when you go before that judge that's 
designated and I want to make clear for the record--find out 
clearly for the record what is that standard you have to prove 
to that judge or magistrate.
    Attorney General Gonzales. Our position is, is that the 
standard that has to be met is a relevance standard, the same 
kind of--similar to standards that you would have to show--to 
meet in connection, say, with a grand jury subpoena.
    You are correct that the relevance--that standard is not 
explicitly mentioned in 215. Our experience is, is that judges 
have construed 215 to impose a relevance standard. That is a 
position that we have argued in litigation. It is one of the 
amendments to 215 that the Department would support because we 
believe that that is the appropriate standard, to include a 
specific relevance reference.
    Mr. Gohmert. Also, there's obviously been a lot of concern 
about the sharing of information, and as you've heard from both 
sides of the aisle, nobody's meaning this personal to you, but 
apparently, there was a precedent back in the early 1970's that 
had a counsel that was abusive enough he had one FBI file, went 
to prison for it. And then I hear tell there's even been a 
White House Administration so corrupt they might have even had 
1,000 FBI files and didn't have an Attorney General with the 
wherefore to go ahead and prosecute such a terrible abuse. So 
you can understand why there'd be some concerns about those 
things if it's true that you could really have that kind of 
abuse at the highest levels. I'm not concerned about you or 
this good President, but you never know. You can have a 
President like that.
    So who gets this information that you glean? Does it, under 
your interpretation, ever get to the White House?
    Attorney General Gonzales. Oh, absolutely not. We're 
talking about matters relating to prosecution. Certainly when I 
was in the White House and as the White House Counsel, we tried 
to be very, very clear.
    First of all, we tried to certainly limit any 
communications between the White House and the Department of 
Justice on any criminal matter. It would have to go through the 
counsel's office because we were very, very concerned about in 
any way of sharing information between the White House and the 
Department of Justice, and even in communications between the 
counsel's office and the Department of Justice, we were also 
very, very careful about the information and the kinds of 
questions we would ask about a particular case.
    No, believe me, we understand how sensitive this 
information is and we took great care to ensure that we didn't 
get access, and the Department was very good in ensuring that 
the White House did not get access to very sensitive 
information.
    Mr. Gohmert. And just so you know, there are those of us 
who do not criticize an Attorney General or a Department of 
Justice that if they need information about Iraq, they question 
people that have knowledge about Iraq and don't go to New 
Zealand to ask a farmer just so they don't look like they're 
profiling.
    But I want to ask you also, do you feel like there ought to 
be a criminal code with regard to violations of national 
security? Do we need that?
    Attorney General Gonzales. Congressman, I don't know 
whether or not we need it or not, quite frankly. I think that 
our current laws seem to be working well, but obviously, if 
you're serious about it, I'd be happy to think about it.
    Mr. Gohmert. Well, thank you. I wish you would. And I am in 
favor of a sunset provision. Thank you very much, Mr. Chairman.
    Chairman Sensenbrenner. Thank you.
    The gentlewoman from California, Ms. Lofgren.
    Ms. Lofgren. Thank you, Mr. Chairman, and I am glad that we 
are having this hearing. I have felt for the past several years 
that we should have had some oversight in a formal sense in the 
Committee. And I think back to those days after 9/11 and the 
Committee really did work closely together, and I remember over 
the weekend in this very room personally being here and working 
on the drafts before the Committee with Viet Din and others who 
were--and we had a unanimous vote, I believe, out of this 
Committee.
    Key to that was a sunset to make sure that we hadn't made a 
mistake, and I think I'm going to want a continued sunset just 
so it forces the Committee to review how this is going.
    Along those lines, and you've mentioned in answer to others 
that things are in litigation. I know that there's been times 
that the Committee hasn't received information because of 
security concerns. Every Member of the Committee has signed an 
oath and we are authorized to receive classified information in 
rooms that are here in the Capitol where you leave all your 
beepers outside. I'm hopeful that we can get the information 
you cannot give in a public session in a secure site so that we 
can fully understand what's going on here so that we can do our 
job.
    I have a couple of questions on specific elements of the 
Act. You mentioned 215. I'll tell you, I don't think any of us 
had in mind libraries and bookstores when that provision was 
put together, and you say it's never been used with a library 
or a bookstore, and I'm wondering whether the Department would 
support an effort to specify that personally identifiable 
information in bookstores or libraries would be excluded from 
section 215.
    I'm also interested in section 218. I want to know how many 
terrorism prosecutions have actually resulted from that 
section. If you don't have it today, I'd like it later. I just 
want to know the volume. How many have been issued and how many 
prosecutions for terrorism-related activities have occurred?
    And then I also--five minutes is not enough to get all our 
questions done, but I do have a general concern about--well, 
many things, but also habeas corpus. The very initial draft of 
the first PATRIOT Act sent over from the Department had a 
provision to suspend habeas corpus. As we know, in article I, 
section 9, suspension of habeas corpus is a power reserved to 
the legislative branch. It never really made it to print, but 
we're not going to suspend habeas corpus. But, I'm concerned 
that in a back door sort of way, we've ended up with that 
result.
    And one of the questions that's not in the PATRIOT Act 
itself, but it's part of the general effort on terrorism 
abatement, is the use of witness provisions, material witness 
statutes. The last update I've been able to find is from 2003, 
where the statute had been used supposedly 50 times. I don't 
know what's happened since that time, but here's the concern 
that's been raised in the press, that the material witness 
statute has been used but that it hasn't been used to produce 
testimony. So I'd like to know how many times this has been 
used in the Department's efforts to combat terrorism and how 
many of those individuals actually ended up testifying, because 
I do think that that is an issue relative to due process.
    I'm hopeful that we will have a number of hearings. I 
haven't had a chance to ask the Chairman yet, but I'm wondering 
if you could address the three questions that I've asked.
    Attorney General Gonzales. As to 215, whether or not I 
could support a provision that would exempt from the reach of 
215 personal information from libraries and bookstores?
    Ms. Lofgren. Personally identifiable information from 
libraries, bookstores, and I think also medical records.
    Attorney General Gonzales. Okay. I have said before--I 
mean, the Department has no interest in rummaging around and 
learning about people's personal library habits and looking at 
their medical records. We are concerned about making sure we 
have information about people who use libraries to plot for 
purposes of engaging in some kind of terrorist activity.
    We know that, certainly in the criminal context, libraries 
have been used and there have been investigations, there have 
been subpoenas of library records in the criminal context, and 
we've had convictions----
    Ms. Lofgren. Well----
    Attorney General Gonzales.--and my own judgment, 
Congresswoman, is that we should not allow libraries to become 
safe harbors for terrorists.
    Ms. Lofgren. If I may----
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    Ms. Lofgren. I'll give a follow-up question to you.
    Chairman Sensenbrenner. The gentleman from Indiana, Mr. 
Hostettler?
    Mr. Hostettler. Thank you, Mr. Chairman, and thank you, 
General Gonzales, for being here, and congratulations on your 
appointment and thank you for your willingness to take on such 
a tough job. I, like many of my colleagues, have received 
numerous questions since passage of the PATRIOT Act and my 
support of the PATRIOT Act regarding section 213. I would like 
to read to you the fourth amendment to the Constitution, and I 
have a question for you afterwards.
    Quote, ``The right of the people to be secure in their 
persons, houses, papers, and effects against unreasonable 
searches and seizures should not be violated and no warrants 
shall issue but upon probable cause supported by oath or 
affirmation and particularly describing the place to be 
searched and the persons or things to be seized,'' end quote.
    I don't see in the fourth amendment to the Constitution a 
requirement for prior notification. Do you see that in the 
fourth amendment----
    Attorney General Gonzales. No, and----
    Mr. Hostettler.--in the text of the fourth amendment?
    Attorney General Gonzales.--and I believe the Supreme Court 
in a case called, I think, Dowdia v. United States, has 
indicated that the fourth amendment does not require that 
notice be given when the warrant is executed, that it is 
constitutionally permissible to execute the warrant and to 
provide notice after the fact.
    Mr. Hostettler. And, in fact, even though I'm not 
suggesting that we do this, but the text of the amendment 
itself does not even require for any notification whatsoever, 
be it prior or delayed notification, the text of the amendment.
    Attorney General Gonzales. Well, I presume your reading is 
correct and there does not appear to be a requirement for 
notice, but obviously we do give notice, and even in the 
connection of section 213, notice is given in every case.
    Mr. Hostettler. Thank you. I have a question also about 
section 215. You, I believe, stated in your oral testimony that 
a recipient of a section 215 order is allowed--can be allowed 
to challenge that order prior to its execution. Did I hear that 
correctly?
    Attorney General Gonzales. It is our position that under 
215, a recipient could challenge that order----
    Mr. Hostettler. Prior to its execution? Prior to the order 
being executed?
    Attorney General Gonzales. And someone--if information is 
received, we believe that a person could seek to have that 
evidence or information suppressed in a subsequent proceeding. 
But yes, you do have the opportunity to challenge the execution 
of that order, in our judgment. We understand that 215 does not 
make that explicitly clear and we are prepared to support an 
amendment that would make that clear.
    Mr. Hostettler. Would there be a situation that you can 
foresee where that would be harmful to the investigation and 
potentially, therefore, the national security, if that process 
was allowed to be challenged prior to the execution?
    Attorney General Gonzales. I suppose that it could be. 
Obviously, we would do work as quickly as we could to make sure 
that that issue was heard and resolved by a judge as quickly as 
possible.
    Mr. Hostettler. Thank you very much. I yield back the 
balance of my time.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Thank you. Thank you, Mr. Chairman.
    Mr. Gonzales, we've heard--in talking about FISA--you keep 
talking about terrorism. FISA is not limited to terrorism or 
even criminal activity, is it? General intelligence, foreign 
intelligence----
    Attorney General Gonzales. Sure, yes.
    Mr. Scott.--a trade deal, spying on people. So we're not 
necessarily talking about crimes.
    Attorney General Gonzales. That is correct.
    Mr. Scott. Is a roving wiretap limited to terrorism?
    Attorney General Gonzales. Umm----
    Mr. Scott. I mean, if you get a warrant----
    Attorney General Gonzales. No. No. No. A roving wiretap is 
not limited to terrorism.
    Mr. Scott. Not even----
    Attorney General Gonzales. Roving wiretaps have been used 
in the criminal context for many, many years.
    Mr. Scott. But if you get a FISA wiretap, you don't even 
have to start off with a crime, just foreign intelligence.
    Attorney General Gonzales. Yes, that's correct.
    Mr. Scott. You can get a roving wiretap, no crime even 
involved.
    Attorney General Gonzales. But again, let me emphasize that 
this is not an authority that's used in the sole discretion of 
the Government. We do have to go to a Federal judge----
    Mr. Scott. Okay. Well----
    Attorney General Gonzales.--establish probable cause----
    Mr. Scott. Probable cause of what?
    Attorney General Gonzales. Establish probable cause that 
the target is either a foreign power or an agent of a foreign 
power and probable cause with respect to the location or 
facility that the target is either about to use or is using a 
certain telephone facility.
    Mr. Scott. I didn't hear you say a crime is about to be 
committed because that's not part of a roving wiretap, and the 
probable cause, most people think you're talking about probable 
cause of a crime. That's not what you're talking about, is it? 
No.
    Now, are you willing to limit this power to terrorism?
    Attorney General Gonzales. Am I willing to limit section 
206 to terrorism?
    Mr. Scott. Right.
    Attorney General Gonzales. Mr. Scott, I would have to look 
at that, and I'd be happy to consider that, but again, I do 
believe that this is an important tool----
    Mr. Scott. Okay, but----
    Attorney General Gonzales.--in dealing with the war on 
terrorism----
    Mr. Scott. You keep talking about terrorism, and let's 
limit it to terrorism. We already ascertained that some of 
this, no crime is even implicated because you're talking about 
foreign intelligence.
    Let me ask you another question on the roving wiretap. We 
had some discussion when we passed that thing that you ought to 
ascertain that the target is actually in the house where the 
phone is before you start listening to it. You can put these 
taps all over the place--cell phone, home phone, pay phone on 
the street corner if they use the phones. Shouldn't we require 
that you ascertain that the target is actually the one using 
the phone before you can start listening in?
    Attorney General Gonzales. There is no ascertainment 
requirement even in the criminal context with respect to wire 
and electronic communications. There is an ascertainment 
requirement with respect to oral communications, such as 
bugging.
    Mr. Scott. Should we put that in the bill, that if you're 
going to wiretap a person, you ought to ascertain that it's 
actually the person you're listening to, particularly because 
it may not be his home phone? It may be his next door 
neighbor's home phone if you know he keeps using that phone.
    Attorney General Gonzales. Well, I think that the statute 
is written in such a way that you have to have probable cause 
that, in fact, the target----
    Mr. Scott. You've got probable----
    Attorney General Gonzales.--is using or about to use a 
particular phone.
    Mr. Scott. And so you should--so there is implicated an 
ascertainment requirement that you've got to ascertain that the 
target is actually in the next-door neighbor's house before you 
start listening to the next door neighbor's phone.
    Attorney General Gonzales. It's my understanding that under 
206, you have to first identify a target and you cannot go up 
on a roving wiretap unless the target is either using or about 
to use the phone.
    Mr. Scott. And so you wouldn't be offended with an 
ascertainment requirement.
    On the----
    Attorney General Gonzales. I would have to look at that, 
Mr. Scott.
    Mr. Scott. Okay. We went to great lengths to change the law 
on foreign intelligence to suggest that you can get one of 
these warrants--it used to be if the purpose of the warrant was 
foreign intelligence, now if it's a substantial objective, not 
the primary objective. If the purpose of the warrant--of 
getting a FISA wiretap is something other than foreign 
intelligence, what is it? What are the other excuses for 
getting the FISA wiretap?
    Attorney General Gonzales. If it's other than foreign 
intelligence?
    Mr. Scott. Right.
    Attorney General Gonzales. You mean----
    Mr. Scott. The primary purpose is something other than 
foreign intelligence.
    Attorney General Gonzales. Criminal activity.
    Mr. Scott. You mean criminal activity without probable 
cause, without having to go through the rigamarol of getting a 
probable cause warrant?
    Attorney General Gonzales. Mr. Scott, I would want to study 
this and get back to you on this.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from North Carolina, Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    General, several months ago, a constituent came to me and 
he said, ``We've got to get rid of this PATRIOT Act. It has the 
trappings of creating a crisis in this country.'' I said, 
``Well, give me an example where it has adversely affected 
you.'' He said, ``I can't do it.'' I said, ``Well, give me an 
example of where it's adversely affected anyone you know or 
anyone you've heard about.'' ``Can't do it.'' I said, ``Well, 
you're not helping me any.''
    General, I fear this exchange between my constituent and me 
typifies widespread misunderstanding about the PATRIOT Act, 
that many people have heard how onerous and how bad it is, but 
they can't give you examples where they've been adversely 
affected. I think that applies to 213. I'm glad you mentioned 
213 because I've talked to many people who believe that delayed 
notification of a search warrant was born when the PATRIOT Act 
was enacted, and, of course, it was available long before then, 
as you pointed out. Of course, that's not subject to being 
sunsetted.
    Let me shift gears to the library situation. Some folks 
have referred to it as the ``angry librarians' provision,'' and 
I'm not sure that's accurate. I don't know that the librarians 
are angry, but I think they're perplexed, probably, and perhaps 
because of misunderstanding, because I'm told, and I think you 
may have alluded to this this afternoon, I don't think any 
inquiries have been leveled against libraries, is that correct, 
under the PATRIOT Act?
    Attorney General Gonzales. We have not exercised the 
authorities under section 215 for library records. Let me make 
one thing clear, because I want to be obviously forthcoming 
with the Committee. There have been library records produced to 
the FBI for purposes of a foreign intelligence investigation. 
We've gone forward to librarians. In some cases, the libraries 
have come to us concerned about the library habits of some of 
their customers and they have shared information with us 
voluntarily.
    So I don't want to leave the Committee the impression that 
there hasn't been some exchange of library information with the 
FBI, but it is true that section 215--that authority under 
section 215 has not been used to obtain library records.
    Mr. Coble. All right. Let me ask you this, Mr. Attorney 
General. If the information can be obtained with a grand jury 
subpoena, which it can be done, that does not require a court 
order, why would the Department of Justice want to use a FISA 
order that requires a court order and limits the type of 
information that the Department can obtain?
    Attorney General Gonzales. It may involve a very, very 
sensitive investigation where we may not want to jeopardize the 
source or the investigation itself, and therefore, we feel more 
comfortable pursuing a 215 order rather than a grand jury 
subpoena.
    Mr. Coble. Permit me to revisit the Mayfield case, and I 
realize there's litigation here and you're probably restricted 
as to how much you can say about that, but is it not true that 
the Attorney General is currently investigating whether or not 
PATRIOT Act authorities were abused in the case? I'm told that 
it is ongoing.
    Attorney General Gonzales. It is and has been looked at and 
is being looked at. I don't know if that review is complete, 
yes, by the Department.
    Mr. Coble. And finally, Mr. Attorney General, to follow up 
on Mr. Scott's questioning regarding the roving wiretaps, are 
there not two separate entities, that is to say, a roving 
wiretap for intelligence matters, on the one hand, and then a 
roving wiretap for criminal matters on the other, is that not 
correct?
    Attorney General Gonzales. Section 206 deals with roving 
surveillance under FISA. There is authority--other authorities 
that govern the use of roving authorities in criminal matters.
    Mr. Coble. Well, I want to reiterate what you said earlier 
about the importance of preserving our civil liberties while at 
the same token arming ourselves against would-be terrorists, 
and I, not unlike you, I believe we can do both. And I don't 
know you, Mr. Attorney General, but I like you. I like your 
style. Good to have you up here.
    Mr. Chairman, I beat the red light.
    Chairman Sensenbrenner. And now the other gentleman from 
North Carolina, Mr. Watt.
    Mr. Watt. Thank you, Mr. Chairman, and first, let me 
apologize to General Gonzales for not being present to actually 
hear his testimony. Unfortunately, I have two hearings going on 
at the same time and I was trying to save CDBG and deal with 
the PATRIOT Act at the same time.
    I got a briefing from my staff to try to avoid territory 
that had been covered by other Members of the Committee, so I 
want to zero in on one thing in which I was involved during the 
Committee's consideration of the PATRIOT Act and that's the 
Privacy and Civil Liberties Oversight Board. You're familiar 
with the provisions in the law that talk about that?
    Attorney General Gonzales. I believe I am, Congressman.
    Mr. Watt. Okay. All right. I'll just read, because I was 
interested to know what had transpired about the privacy 
oversight because privacy was obviously a major issue that we 
were confronting when we were trying to deal with this piece of 
legislation. So I got the Congressional Research Service to 
pull up--send us a report, and here's what it says.
    It says the Conference Committee version of the 
intelligence reform legislation retained the mandate for a 
Privacy and Civil Liberties Oversight Board. While the board 
would have most of the review and advice responsibilities 
contained in the Senate-adopted version of the legislation, it 
would not have subpoena power, but was authorized to request 
the assistance of the Attorney General in obtaining desired 
information from persons other than Federal departments and 
agencies. Now, this is the intelligence reform bill that got 
passed and that they are giving me the update on.
    It goes on to say that no nominations to membership 
positions on the Privacy and Civil Liberties Oversight Board 
were made in the early weeks of the 109th Congress and the 
President's fiscal year 2006 budget contained no request for 
funds for the panel.
    Now, my question to you is, if--obviously Congress decided 
this Privacy Oversight Review Board was an important 
ingredient. You've superimposed this intelligence reform stuff 
on top of the PATRIOT Act. First of all--two questions. First 
of all, do you think it's important to have a Privacy Review 
Board----
    Attorney General Gonzales. I think it is important that we 
review the actions of the Government to ensure that the privacy 
rights of Americans are protected.
    Mr. Watt. Okay. Well, at least we are together at that 
point.
    Second question, how could we extend the sunsetted 
provisions of the PATRIOT Act if the Congress having mandated--
this says it was a mandate to create this board, and the 
President not having made any nominations to this board and not 
proposed any money to fund the operations of the board. I mean, 
it seems to me that that would be directly contrary to the 
wishes of the Congress.
    Attorney General Gonzales. Well, I can assure you, 
Congressman, that the protection of the privacy rights and the 
civil liberties of all Americans is a priority for our 
President. I don't--not being in the White House, I don't know 
about the discussions or decisions regarding the budget. I do 
know--my latest information, it may be stale now, but my latest 
information is that the White House is in the process of 
identifying people to place on the board.
    But in the interim, as you know, the President did sign an 
Executive Order creating a Privacy Board which----
    Mr. Watt. No, he didn't create a Privacy Board. He created 
a Privacy Officer and he did that actually before we--the 
intelligence reform bill went through and we mandated for that 
purpose--Congress mandated for that purpose a board that was to 
be staffed, not an officer inside some department.
    Attorney General Gonzales. Respectfully, Congressman, it is 
a board chaired by the Deputy Attorney General and includes 
representatives from various agencies----
    Mr. Watt. All insiders.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    The gentleman from Arizona, Mr. Flake?
    Mr. Flake. Thank you, Mr. Chairman, and thank you, General 
Gonzales.
    Let me just try to bring this to the real world for a 
minute here with a real world scenario and see if we're on the 
same page here. You may be familiar with one of the Fox News 
analysts, Andrew Napolitano, who wrote an op-ed a while ago, 
and let me just read a portion of it and get your response to 
it.
    Quote, ``The Government can now, for the first time in 
American history, without obtaining the approval of a court, 
read a person's mail and prosecute a person on the basis of 
what is in the mail.'' Is that an accurate reflection of the 
law?
    Attorney General Gonzales. I'm not--I don't believe it is 
an accurate reflection of the law. Again, if we're talking 
about the exercise of authorities under the PATRIOT Act, in 
most cases, it does involve the Department going to a Federal 
judge and getting permission to use those authorities.
    Mr. Flake. I understand in most cases, but is that possible 
now for the first time in history, without obtaining the 
approval of a court, to read a person's mail and then prosecute 
the person on the basis of what is in that mail?
    Attorney General Gonzales. That sounds to me like it would 
be a search and I think that you would need probable cause to 
do that. You would need a warrant to do that and you'd have to 
go to a Federal judge in most cases, except, I think, in very 
rare circumstances, if in the event of an emergency, but even 
then, you'd have to go to a judge after the fact and explain 
what you've done. So I don't think that what he has said is 
accurate.
    Mr. Flake. But it would be accurate if you say in certain 
cases, you would have to go to the judge after the fact----
    Attorney General Gonzales. But those are very rare and 
extraordinary circumstances, and so----
    Mr. Flake. How many of those circumstances have we had?
    Attorney General Gonzales. I'm not aware of any.
    Mr. Flake. None?
    Attorney General Gonzales. I'm not aware of any.
    Mr. Flake. If there are some, could you get back to my 
office with that information?
    Attorney General Gonzales. I can certainly look into it.
    Mr. Flake. Thank you. I appreciate that. There's a lot of 
talk about a wall between intelligence and law enforcement that 
the PATRIOT Act helped eliminate. Is it possible that that talk 
of this wall has been exaggerated. Let me just read a statement 
from Judge Royce Lamberth and then get your reaction.
    ``The FISA court has long approved, under controlled 
circumstances, the sharing of FISA information with criminal 
prosecutors as well as consultations between intelligence and 
criminal investigations where FISA surveillances and searches 
have been conducted.'' Is that the case? Do you dispute that 
statement?
    Attorney General Gonzales. I think that in actual practice, 
it's been the case that law enforcement--before the PATRIOT 
Act, there was a reluctance amongst the law enforcement 
community and the Intelligence Community about sharing of 
information and that law enforcement personnel were concerned 
that if they shared too much information--if too much 
information was shared with intelligence, the Intelligence 
Community, it might jeopardize a prosecution. And so people 
were being very careful and there was a reluctance to share 
information, and I think after the PATRIOT Act, that reluctance 
has gone away.
    Mr. Flake. So the wall was more a function of a culture 
that existed than----
    Attorney General Gonzales. Well, there certainly was a 
culture that existed. Rightly or wrongly, I think people wanted 
to be very, very careful because people in--most people in 
Government really do--are concerned about doing the right thing 
and not doing things that in any way infringe upon the civil 
liberties of ordinary Americans. And so, you know, I certainly 
wouldn't characterize it, I mean, as a--I think people were 
just doing what they thought was the right thing to do.
    Mr. Flake. Now they're less reluctant to infringe, or----
    Attorney General Gonzales. Well, now they know. They've 
been given clear guidance that this is appropriate conduct and 
it is lawful conduct.
    Mr. Flake. With regard to delayed notification, what is the 
longest period of time now that a person can be under 
surveillance without their knowledge?
    Attorney General Gonzales. My understanding is that there 
have been six cases where the judge has said--has not imposed a 
time to provide notice that it had been an ongoing 
investigation. The judge has said, well, we'll see how the 
investigation proceeds. So there have been six such cases. You 
put those aside, I think the longest time period has been 120 
or--it's been 180 days.
    Mr. Flake. A hundred-and-eighty-days?
    Attorney General Gonzales. Yes.
    Mr. Flake. But in those six cases, it's fair to assume that 
some of those investigations may still be going on or they're 
ongoing?
    Attorney General Gonzales. I don't know. That may be, in 
fact, be the case, but I'm not sure.
    Mr. Flake. Very quickly, before my time runs out, let me 
just be clear about the Justice Department's preference or 
position, I guess, on sunsets. I want to commend the Chairman 
for insisting on the sunset. I think to the extent that we've 
been careful and circumspect, it's largely as a result of the 
sunset provision. Are you saying that the Justice Department 
wants to do away with the sunset provision?
    Attorney General Gonzales. I don't know whether or not the 
sunsets are necessary. I fully trust Congress to perform its 
oversight functions. I hope Congress doesn't need the sunset 
provisions in order to perform its oversight functions. The 
sunsets were put in there initially because of the fact that 
people were concerned that decisions had been reached quickly 
about the bill. We now have a history of three-and-a-half 
years, and so my view is that Congress has all the authority it 
needs to perform the oversight necessary in the way that this 
Department exercises the authorities under the PATRIOT Act.
    Chairman Sensenbrenner. And the time of the gentleman is 
expired, and to paraphrase President Reagan, you trust and we 
verify.
    The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Yes. I thank the Chairman and I welcome 
General Gonzales and I welcome your words.
    To segue the gentleman from Arizona, Mr. Flake, you 
referenced you have confidence in Congress to exercise its 
oversight responsibilities and functions in our constitutional 
order, but I share the same concern that my colleague to my 
left, Mr. Schiff, articulated earlier to you about the lack of 
cooperation during the course of the past 4 years in terms of 
providing that information to Members of Congress so that we 
can exercise our oversight. So I would suggest that when we 
talk about sunsets, sunsets have played a very, I think, 
important role because now we seem to be engaged hopefully in a 
new way.
    I've had my own experience. I served on the--as an adjunct, 
if you will, on the Government Reform Committee during its 
inquiry into the conduct of some individuals in the office of 
the Boston FBI and it was only under threat of subpoena that we 
were able to secure a prosecutorial memorandum that dated back 
some 40 years that had nothing in there whatsoever that could 
be interpreted to be endangering of national security.
    So I really hope that we are moving, and I listened to your 
words and I respect those words, but I hope we're moving in a 
different direction in terms of the relationship between this 
branch, this Committee, and the Department of Justice.
    You know, I think it's critical in a viable democracy to 
emphasize that the concerns of a citizen to their privacy are 
absolutely essential, and at the same time that as much 
transparency as possible is important in terms of the 
confidence of the American people in its Government, in the 
integrity of its Government. It's a balancing act, and I 
understand that.
    But myself and Mr. Berman filed legislation today. He 
alluded to it earlier in his question to you about the issue of 
data mining. It's a concept that I'm sure you're familiar with 
where there's a broad search of both public and non-public 
databases without a particularized need being articulated to 
discern whether there are patterns that may implicate some sort 
of terrorist cabal. He and I, as part of a bill that, with the 
support of the Chairman, came out of Committee, didn't go 
anywhere when it got further along the legislative process, but 
that would have required each head of a Federal agency to 
report to Congress about their initiatives regarding data 
mining.
    The American people are concerned about privacy. I would 
suggest that this is something that I hope you would review 
carefully and support if we are going to have the kind of 
relationship between the branches, and specifically this 
Committee, that you have expressed and others have expressed.
    I don't know if you're familiar with that particular 
provision, but if you have any comments, I'd like to hear them.
    Attorney General Gonzales. I look forward to reading your 
legislation. I can say that I, like other Americans, would be 
very concerned about this issue. I think protection of privacy 
rights are very, very important, and rather than comment any 
further, I'll read the legislation and be happy to talk to you 
about it.
    Mr. Delahunt. I look forward to hearing from you. I'd make 
one final observation, is that, you know, when we see that 
there are 14 million new papers that have been classified, 25 
percent over the previous year according to the latest reports, 
I just want to let you know that I think many of us, and I 
think on both sides of the aisle, are very concerned about 
what's happening as far as a culture of concealment, if you 
will, and secrecy in Government that's got to be addressed.
    Attorney General Gonzales. Thank you, Congressman.
    Chairman Sensenbrenner. The gentleman yields back.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. Thank you for 
holding this hearing.
    General Gonzales, welcome, and thank you for the fast start 
you've gotten as our new Attorney General and thank you for 
coming to speak with us today.
    I'd like to call your attention to a couple of other issue 
areas that very much relate to our security but are not 
directly on the PATRIOT Act. I would like to follow up on the 
topic that the gentleman from Texas, Mr. Smith, addressed 
earlier, and that is immigration. I have legislation in the 
Congress to address a problem that was identified by the State 
Department last year with regard to the Visa Diversity Program, 
or also called the Visa Lottery Program, whereby individuals 
are given not just a visitor's visa, but permanent resident 
status in the United States not based upon any particular job 
skill, not based upon having any close family relationship with 
anybody, but simply by having a little bit of information put 
into a computer. Millions of people around the world do this, 
and then 50,000 are drawn out every year, the lucky winners, 
and receive green cards to come to the United States.
    Last year, the State Department's Inspector General 
testified before the Immigration Subcommittee that the Visa 
Lottery Program posed a significant risk that hostile 
intelligence officers and terrorists, especially those with no 
previous criminal backgrounds, could apply for the lottery and 
be awarded permanent resident status, and I wonder if the 
Department of Justice has conducted any analysis on the threat 
posed by this program. Have you or anybody else at the 
Department examined this report from the State Department?
    Attorney General Gonzales. I'm not aware of any 
examination, Congressman, but I'd be happy to look at it. It 
sounds--it concerns me, so I'd be happy to look at it and get 
back to you.
    Mr. Goodlatte. That would be very helpful and I would 
appreciate that.
    Now, the other area that I'm concerned about is in the area 
of piracy, particularly intellectual property theft, which is 
increasingly viewed as being something that's being used by 
various subversive organizations, including terrorist 
organizations, as a fundraising mechanism to fund their 
operations. As author of the ``No Electronic Theft Act, or NET 
Act,'' and other legislation dealing with piracy, and as co-
chair of the Congressional International Anti-Piracy Caucus, 
I'd like to first commend the Department of Justice for its 
work in setting up the Intellectual Property Task Force. This 
has, frankly, been long overdue.
    For years, we've had legislation on the books to enforce 
these laws, but not enough priority was made for it. That was 
done last year. Other efforts have been made by the Department, 
as well, to combat intellectual property theft. Projects like 
Operation Fast Link is a promising example of how our 
Government can work internationally to ensure that the messages 
sent are that intelligence piracy is a serious crime, and I'm 
wondering what your intentions are as the new head of the 
Department. Is that leadership going to continue in the effort 
to investigate and prosecute these types of intellectual 
property crimes?
    Attorney General Gonzales. Absolutely. It will remain a 
priority for the Department. In fact, I'm going out to, I 
believe, California perhaps later this month to talk about this 
issue to some of the groups out there. We realize that it 
remains a problem. It is a vehicle to finance potential 
terrorism activities and so, yes, very much so a priority. We 
continue to consider the work of the Intellectual Property Task 
Force as very, very important.
    Mr. Goodlatte. Good. Thank you very much. The last area I'd 
like to address is the problem that we're seeing all across the 
country. It's particularly a very serious problem in my 
district. Our United States Attorney for the Western District 
of Virginia, John Brantley, briefed Senator Warner and I last 
week on the problem with methamphetamines. This seems to be a 
particularly great problem in rural areas all across the 
country. The Shenandoah Valley has been particularly hard hit.
    It's a problem that entails being able to get hold of 
various basic household commodities and make some very 
dangerous drugs from them. I'm not sure that people realize 
that they're injecting Drano and battery acid and phosphine 
gas, some of the things that go into making methamphetamines, 
when they inject this, but it is a serious problem in rural 
areas and I'm wondering, is the Department under your 
leadership committed to meeting the increased need for law 
enforcement efforts because of the prevalence of this 
particular type of illegal drug activity in rural parts of 
America?
    Attorney General Gonzales. Absolutely, yes. Just in my 2 
months as Attorney General, in my visits with law enforcement, 
I have been struck by how often I've been told how serious this 
problem is all across the country.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from New York, Mr. Weiner.
    Mr. Weiner. Thank you, General. Welcome, and thank you for 
taking so much of your time.
    I hope you recognize by this point in the hearings, both in 
the other body and here, what the fundamental problem is that 
you face with Congress now, is that, in essence, what the 
PATRIOT Act reflected was a desire on the part of the 
Administration of greater authority, and you essentially said 
to Members of Congress like myself, trust us that we're going 
to use it wisely, that we're going to use it with discretion, 
we're going to use it with restraint. And that is why, when you 
say, well, why do you need something like delayed notification, 
well, you have to trust us and trust the judge because, 
frankly, the individual that is being--that the search is over 
is not going to know and be able to fight to defend their own 
rights.
    And where you've lost so many of us, including people like 
myself who have been eager, as a New Yorker and someone who 
considers himself as a moderate on law enforcement things, is 
this cloak of secrecy that has dominated the discussion over 
the last 4 years. Obviously, a rise in FISA activity and yet 
there's less information than there has perhaps ever been. 
Reports of secret arrests and detentions without charges. What 
it does is it makes us, who were happy about a sunset, 
completely unwilling to say either, first of all, extend them, 
or even further, to eliminate the sunset altogether.
    And then you compound it with other actions in other parts 
of the Justice Department that completely run counter to real 
efforts to fight terrorism--the virtual elimination of the COPS 
program, for example. Your predecessor sat in that chair and 
said what a great program it was. The President of the United 
States praised the program, and yet the Justice Department has 
virtually eliminated it. Homeland security starts at home. Not 
in this Administration. The COPS program hiring component has 
all but been eliminated, literally taking cops off the streets.
    So that what Members like myself and Mr. Delahunt and Mr. 
Schiff and folks on the other side of the aisle are speaking to 
is this notion that you made a compact. Give us more authority 
and entrust us to use it wisely. In order for that compact to 
be successful, in order to get us to say, okay, we agree 4 
years later that that has been the case, there has to be more 
information.
    And what has this attitude on the part of the Justice 
Department brought? Well, it's brought on one side you saying, 
well, people are creating phantoms of lost liberty, and I think 
some on the left have said, well, there's enormous intrusions 
on our lives. Only with more full disclosure to Congress, only 
with a more full debate that goes on between you and the 
American public is this going to happen. And frankly, that 
hasn't happened.
    You have exaggerated its value. I believe many on the left 
have exaggerated the harm it's caused. But fundamentally, 
you've lost the trust of so many in this Congress. When people 
like myself and Paul Wellstone of blessed memory vote for the 
PATRIOT Act, it is because fundamentally we believe it's 
important to make things safe and we trust those in positions 
of power to enforce it wisely, and I think you've let us down.
    You've let us down because you've let us down in ways that 
are fundamental and easy to fix. When Congress asks for 
cooperation, as Mr. Delahunt says, your first reflex shouldn't 
be no. When there's questions about secret arrests and 
detentions, you know, frankly, if your concern is about 
reinforcing the idea that the Justice Department is operating 
prudently, talk more freely. Have a frank discussion about 
what's going on in the world. We should not wait until the day 
of a Senate hearing to find out that there are 35 instances 
that section 215 was used and 155 times that the sneak-and-peek 
provisions were used under the PATRIOT Act.
    It is that level of information that, frankly, I think 
might have even helped your side of the argument if they had 
been released more steadily over the course of the last 4 
years. So that, I would argue, is your problem.
    Can I ask a question? I want to make sure I understand it. 
Section 215, the sneak-and-peek provisions that have delayed 
notifications, if we were to take away those expanded rights, 
there are no searches that could not happen. It would simply be 
a question of whether or not a judge was notified first or 
whether the citizen was notified first, is that right? But both 
of those cases, you'd still be able to do the investigations?
    Attorney General Gonzales. I don't know--you're talking 
about 213. I don't know whether or not we would be able to 
continue the investigation. The fact that we would in some 
cases have to make a hard choice whether or not to try to take 
possession of, say, contraband in order to prevent it--say 
drugs, for example--we'd have to make a hard choice between 
taking a chance and letting the drugs be distributed in order 
that we could identify all the Members of a very serious drug 
ring or take possession of the drugs and then jeopardize not 
knowing who those folks are.
    So if 213, the authorities under 213 were eliminated, I 
think that it could jeopardize some very important 
investigations.
    Chairman Sensenbrenner. The gentleman's time has expired.
    And last but not least, the gentleman from Alabama, Mr. 
Bachus.
    Mr. Bachus. Thank you.
    Mr. Attorney General, I want to address something that you 
may not have heard too much about, but that's a 1970 explosive 
permit law. Now, that law, when Homeland Security came into 
existence and we passed a lot of the new dictates under the 
laws we're talking about reauthorizing, the ATF started 
requiring an explosive permit for anyone that worked in the 
mines that was around explosives. They asked different mine 
workers to fill out an application to continue to handle these 
explosives.
    Now, I'll give you an example. I had three mine workers in 
my district that were taken off the job as a result of their 
applications. Now, let me tell you about one that agreed 
earlier today to let me use his name. He's Mickey Birchfield. 
He's worked 15 years in the mines. He's transported employees 
and explosives for 15 years. About a month or two ago, he 
filled out one of these applications and he listed that 17 
years ago, when he was 18 years old, he had a disorderly 
conduct misdemeanor and he said, ``I think I paid a $50 fine.'' 
Well, the ATF checked and didn't find any record of this, so 
the only way they knew about it is he said, you know, ``When I 
was 18 years old, I got arrested for disorderly conduct.''
    He has been reassigned off that job to a lower-paying job 
and he is waiting for the ATF appeal process, and I said 3 
weeks ago. It's 3 months ago, and they still haven't acted on 
that. First of all, they've taken the disorderly conduct thing 
when he was 18 and taken him off the job.
    My question to you is, are you familiar with the ATF and 
this explosive permitting procedure that they've established, 
because I have another coal miner that actually was taken off 
the job and because they didn't have a place for him, he's 
actually unemployed now. He has actually decided to retire. But 
do you know, are there any guidelines to how long the ATF can 
hold these cases, and why--I mean, I just--could you just tell 
me maybe why, under what rationale they would----
    Attorney General Gonzales. I wish I could, Congressman. I 
don't know. I presume that there are guidelines in place. I'd 
be happy to go back and look to see what's there and see if we 
can provide you some additional information about these cases.
    Mr. Bachus. Yes, and you see, that's a real case that is 
happening today. The reason I bring that up is that you have 
asked for Homeland Security--you've asked for new powers, new 
tools to combat terrorism and we've given you these tools and 
we hope that there are safeguards in place that we won't have 
what I consider a civil liberty violation against this guy. 
He's actually been--his pay has been reduced. Two other 
individuals in the district, one is a result of two DUIs, one 
in 1975 and one in 1984. He's no longer permitted to work in 
the mines. As I said, he was a year and a half away from 
retirement and he was told that this process is taking over a 
year, so he just retired.
    Attorney General Gonzales. Maybe we should have our staffs 
talk and we'll get some additional information. I'll see what 
we can find out.
    Mr. Bachus. You know, I guess what aggravates this, when we 
hear, and you've got questions about this, when we hear that 
people that are on the Terrorist Watch List can purchase guns 
and then you get a guy that when he was 18 years old had a 
disorderly conduct thing and he can't work at his job, it 
raises all kinds of questions. And I know that what I've been 
told is the list is overly broad and it has a lot of 
inaccuracies in it, but, you know, it's being used every day 
when people try to move around this country.
    And it's not just these. It's just one thing after another, 
like I talked to a group this week, Epileptic Foundation, and 
you'd be amazed at children with--they have these magnetic 
devices that are implanted within their body. The----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Bachus.--what they have to go through when they go 
through screening at the airport. So they're put aside and 
sometimes 30, 40 minutes, even though they have a letter 
saying----
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from Maryland, the late Mr. Van Hollen. 
[Laughter.]
    Mr. Van Hollen. Thank you, Mr. Chairman, and Mr. Attorney 
General, thank you for your testimony. As one of the newest 
Members of the Committee, it's, I guess, my privilege to be one 
of the people batting clean-up at the end here, but thank you 
for your testimony.
    I actually want to pick up on a related issue which has to 
do with the GAO report that came out recently showing that a 
number of individuals on the Terrorist Watch List were able to 
go into gun shops and legally purchase weapons in this country. 
I just want to pursue that line of questioning for a minute, 
because as I understand it right now, if you're on the 
Terrorist Watch List, you're not able to board an aircraft. 
You're able to be detained at the airport and not allowed to 
board an aircraft, is that right?
    Attorney General Gonzales. That is correct.
    Mr. Van Hollen. And the purpose of that, I assume, is to 
protect the public safety, is that right?
    Attorney General Gonzales. That is correct.
    Mr. Van Hollen. All right. Does it make sense to you that 
we stop a person from boarding the airline in order to protect 
the public safety, that individual can turn around, get in 
their car, go to the local gun shop and buy 20 semi-automatic 
assault weapons? Does that make sense to you, Mr. Attorney 
General?
    Attorney General Gonzales. I think that we should be doing 
everything we can to ensure that people that are, in fact, 
terrorists, shouldn't have weapons in this country, the truth 
of the matter is. But unless they are disabled from having a 
weapon under the statute, there's not much that we can do, 
other than maybe trying to get them out of the country or find 
a way to see if there's any kind of disability under the 
statute that would allow us to deny them a firearm.
    And so, again, at the end of the--I mean, we don't want 
terrorists to have firearms, but at the end of the day, we have 
to enforce the law. Unless they have a disability under the 
statute, then they're entitled to a weapon.
    Mr. Van Hollen. No, I thank you for that and I understand 
the law is the law and we have to enforce it. My question 
really is, would you be willing to work with Congress and do 
you think it's a good idea to try and change the law where 
somebody is legitimately on the Terrorist Watch List? I 
understand there are issues with respect to that, but if 
someone is determined to have been legitimately put on the 
Terrorist Watch List, would you not agree--I'm asking whether 
you would not agree that it doesn't make sense from a public 
safety point of view to allow that person to go to the gun shop 
and buy 20 semi-automatic assault weapons.
    Attorney General Gonzales. Well, what I can agree is that 
if you're a terrorist, you shouldn't have a weapon in this 
country, and so I do agree with you on that.
    Mr. Van Hollen. Let me ask you this, Mr. Attorney General. 
One of the issues that is raised is the quality of the 
Terrorist Watch List.
    Attorney General Gonzales. Right.
    Mr. Van Hollen. What mechanism is in place today for an 
individual whose name has been put on that list to contest 
whether or not they should be legitimately put on that list? 
What do you have today to make sure that the quality of that 
list is actually good and people aren't wrongfully put on that 
list?
    Attorney General Gonzales. That is a good question. I don't 
know the answer to that, but I'll be happy to get back to you 
on it.
    Mr. Van Hollen. It seems to me that there's been a lot of 
discussions with respect to the fact that the quality of the 
list may not be so good and, therefore, we can't necessarily 
use that to deny people their right to go purchase a handgun, 
and that's absolutely true, but it seems to me that somebody 
who's being denied access to an airplane, if they're wrongfully 
put on that list, it should be very clear to every American 
citizen who thinks they're wrongfully put on that list what 
mechanism procedure they have to get their name off.
    Attorney General Gonzales. I don't want the Committee to 
leave with the impression that we have a shabby Terrorist Watch 
List. Obviously, no one wants that. We all want the best list 
possible and we work very, very hard to make sure that the list 
is accurate. We get information from a variety of agencies who 
are looking at different threats. Say someone is concerned 
about terrorist financing, and so someone may end up on the 
Terrorist Watch List because of concerns about their support of 
terrorist activity--financial support of terrorist activities.
    So I say all of that sort of defending the--I mean, there's 
been a great effort within the Administration to try to make 
the Terrorist Watch List a valuable tool and one that we can 
depend on. But it's a difficult issue and I look forward to 
working with you on possible legislation. I'd be happy to 
consider it.
    Mr. Van Hollen. Thank you, and Mr. Chairman, if I could 
just close making two points, to the extent that we can depend 
on it and it's a valuable tool and someone is on there because 
they pose a risk to public safety, it seems to me that the 
question of whether they should be allowed to go down to the 
local gun store and buy 20 handguns or semi-automatic or 
whatever weapons it may be is one that we need to change to the 
extent that they're legitimately on there.
    And to the extent they're not legitimately on there, I 
would very much appreciate an answer to the question about how 
an American citizen goes about getting their name off it if 
they think they're wrongfully on it. It seems to me it's 
obviously a great unfair burden for a citizen to be placed on 
the Watch List without any mechanism that is familiar to the 
public for how they go about getting their name off of it.
    Attorney General Gonzales. I think the Watch List has been 
a valuable tool. I think it has been helpful in dealing with a 
terrorist threat. Obviously, there have been mistakes that have 
been made, but I look forward to working with you.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    General, let me say that I think this was an extremely 
valuable hearing in kicking off our review of the sunsetted 
provisions of the PATRIOT Act. You have done well.
    Attorney General Gonzales. Thank you.
    Chairman Sensenbrenner. I hope your next invitation to come 
up here, whenever that may be, as a friendly invitation because 
these types of exchanges, I think, help clarify the issues, 
help do away with a lot of the hype that has come about as a 
result of this law in particular, and we look forward not only 
to working with you and the Department relative to this 
legislation, but also in doing oversight which makes you do 
your job better and the American public have the confidence 
that you're doing your job better.
    Ms. Jackson Lee. Mr. Chairman----
    Mr. Conyers. Mr. Chairman----
    Chairman Sensenbrenner. So thank you again for coming.
    Ms. Jackson Lee. Mr. Chairman, would you yield for a 
question?
    Mr. Conyers. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Michigan.
    Mr. Conyers. I join in that thankfulness that you were here 
and have started this routine with us. It's very important. And 
I'd like unanimous consent to add in after my opening remarks 
``Seeking the Truth from Justice'' from Laura Murphy, former 
Director of the American Civil Liberties Union.
    Chairman Sensenbrenner. Without objection.
    Ms. Jackson Lee. Mr. Chairman, could you yield for a 
question, please?
    Chairman Sensenbrenner. The gentlewoman from Texas.
    Ms. Jackson Lee. Thank you, Mr. Chairman. Will the record 
remain open or will we be able to submit questions for the 
record? I have a question about Dr. Yaha Ghoul, a thoracic 
surgeon who is in detention at this point.
    Chairman Sensenbrenner. The record will remain open 
relative to questions relative to the general oversight of the 
USA PATRIOT Act. I don't know if the letter the gentlewoman is 
referring to relates to the USA PATRIOT Act. If so, the record 
will remain open for that purpose. But on matters related to 
other than the PATRIOT Act, I think it is best to deal with 
that issue in another context.
    Ms. Jackson Lee. I thank the Chairman, and I'd like to 
submit for the record ``On Liberty'' by John Stuart Mill, 1859. 
I'd like to submit that into the record.
    Chairman Sensenbrenner. I assume the copyright has expired 
on that, so without objection.
    [The article of Mr. Mill follows in the Appendix]
    Chairman Sensenbrenner. The Committee stands adjourned.
    Ms. Jackson Lee. I thank the Chairman.
    [Whereupon, at 3:27 p.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

            USA PATRIOT Act: Sunsets Report prepared by the 
                       U.S. Department of Justice



 Chapter I of On Liberty by John Stuart Mill, submitted for the Record 
                  by the Honorable Sheila Jackson Lee




                                 
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