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



 IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS 201, 202, 223 OF THE 
  ACT THAT ADDRESS CRIMINAL WIRETAPS, AND SECTION 213 OF THE ACT THAT 
                        ADDRESSES DELAYED NOTICE

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

                                HEARING

                               BEFORE THE

                   SUBCOMMITTEE ON CRIME, TERRORISM,
                         AND HOMELAND SECURITY

                                 OF THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                              MAY 3, 2005

                               __________

                           Serial No. 109-20

                               __________

         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
                                 ------                                

        Subcommittee on Crime, Terrorism, and Homeland Security

                 HOWARD COBLE, North Carolina, Chairman

DANIEL E. LUNGREN, California        ROBERT C. SCOTT, Virginia
MARK GREEN, Wisconsin                SHEILA JACKSON LEE, Texas
TOM FEENEY, Florida                  MAXINE WATERS, California
STEVE CHABOT, Ohio                   MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida                  WILLIAM D. DELAHUNT, Massachusetts
JEFF FLAKE, Arizona                  ANTHONY D. WEINER, New York
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
LOUIE GOHMERT, Texas

                      Jay Apperson, Chief Counsel

            Elizabeth Sokul, Special Counsel on Intelligence

                         and Homeland Security

                 Jason Cervenak, Full Committee Counsel

                  Michael Volkov, Deputy Chief Counsel

                     Bobby Vassar, Minority Counsel


                            C O N T E N T S

                              ----------                              

                              MAY 3, 2005

                           OPENING STATEMENT

                                                                   Page
The Honorable Howard Coble, a Representative in Congress from the 
  State of North Carolina, and Chairman, Subcommittee on Crime, 
  Terrorism, and Homeland Security...............................     1
The Honorable Robert C. Scott, a Representative in Congress from 
  the State of Virginia, and Ranking Member, Subcommittee on 
  Crime, Terrorism, and Homeland Security........................     2

                               WITNESSES

The Honorable Michael J. Sullivan, United States Attorney, 
  District of Massachusetts
  Oral Testimony.................................................     6
  Prepared Statement.............................................     8
Mr. Chuck Rosenberg, Chief of Staff to Deputy Attorney General, 
  U.S. Department of Justice
  Oral Testimony.................................................    14
  Prepared Statement.............................................    16
Ms. Heather Mac Donald, John M. Olin Fellow, The Manhattan 
  Institute for Policy Research
  Oral Testimony.................................................    20
  Prepared Statement.............................................    21
The Honorable Bob Barr, former Member of Congress, Atlanta, 
  Georgia
  Oral Testimony.................................................    24
  Prepared Statement.............................................    25

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable Robert C. Scott, a 
  Representative in Congress from the State of Virginia, and 
  Ranking Member, Subcommittee on Crime, Terrorism, and Homeland 
  Security.......................................................    47
Letter from the Honorable William E. Moschella, Assistant 
  Attorney General, U.S. Department of Justice to the Honorable 
  Arlen Specter..................................................    52
Report from the Office of the Inspector General entitled ``Report 
  to Congress on Implementation of Section 1001 of the USA 
  PATRIOT Act,'' March 11, 2005..................................    59
Report from the U.S. Department of Justice entitled ``Delayed 
  Notice Search Warrants: A Vital and Time-Honored Tool for 
  Fighting Crime,'' September 2004...............................    79
Letter from the Honorable William E. Moschella, Assistant 
  Attorney General, U.S. Department of Justice to the Honorable 
  Howard Coble...................................................    88
Article submitted by Heather Mac Donald, John M. Olin Fellow, The 
  Manhattan Institute for Policy Research, entitled ``Straight 
  Talk on Homeland Security,'' City Journal (Summer 2003)........    95

 
 IMPLEMENTATION OF THE USA PATRIOT ACT: SECTIONS 201, 202, 223 OF THE 
  ACT THAT ADDRESS CRIMINAL WIRETAPS, AND SECTION 213 OF THE ACT THAT 
                        ADDRESSES DELAYED NOTICE

                              ----------                              


                          TUESDAY, MAY 3, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10 a.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. At the 
outset I will apologize. I just told Mr. Scott and Mr. Beckert 
I have fallen victim to the April-May pollen attack. So pardon 
my raspy, gravelly voice, but we'll try to get through it
    Today the Subcommittee on Crime, Terrorism, and Homeland 
Security will hold a hearing on criminal authorities for 
surveillance and search warrants. We are examining three 
sections of the PATRIOT Act that are sunsetting, and one 
section that is not, but has become controversial. Sections 201 
and 202 of the PATRIOT Act create new wiretap predicates. 
Wiretap predicates are serious crimes enumerated in the Federal 
Criminal Code, but fall under one of the limited circumstances 
for which Congress authorized the use of a wiretap or electric 
surveillance.
    Sections 201 and 202 in no way change the strict 
limitations on when wiretaps may be used, as Congress dictated 
in title III of the Omnibus Crime Control and Safe Streets Act 
of 1968. That Act outlines what is and what is not permissible 
with regard to wiretapping and electronic eavesdropping.
    Title III restrictions go beyond fourth amendment 
constitutional protections and include a statutory suppression 
rule to exclude evidence that was collected in violation of 
title III. Section 223 of the PATRIOT Act added additional 
safeguards against abuse by amending the Federal Criminal Code 
to provide for administrative discipline of Federal officers or 
employees, as well as for similar actions to be brought against 
the United States for damages by a person aggrieved by such 
illegal disclosures.
    Section 213 provides courts the discretion to delay 
notifying a suspect whose property is the target of a search. 
Some have deemed this section controversial, but I believe that 
any controversy has been caused by inaccurate information. I 
realize that my view may not be shared by my good friend Mr. 
Barr, and perhaps others, but nonetheless, I'm concerned with 
the level of rhetoric that has been disseminated about this 
section, which has been a long-standing, vital tool for law 
enforcement.
    Many in the public sector may be shocked to know that 
section 213 does not create a new title search warrant; rather, 
it merely standardized the special circumstances upon which a 
court may authorize delayed notice to a target of a search. 
Because of alarmist rhetoric in many cases by some, the public 
also may not be aware that courts have been authorizing delayed 
notice for search warrants for several decades. In fact, this 
section does not affect the standard that requires a judge to 
find probable cause of criminal activity prior to issuing a 
search warrant.
    I would also like to note that the Administrative Office of 
the U.S. Courts found that in a 12-month period that ended in 
September of 2003, the Court, the Federal courts, handled 
32,529 search warrants. While I don't have numbers for the same 
period for the number of times courts authorized delayed notice 
for those search warrants, I do have numbers for a similar 
duration of 14 months, between April of 2003 and July 2004. 
Over that period the number of times courts authorized delayed 
notice was 61. So 61 search warrants with delayed notice out of 
32,000 plus comes to about, I think, .2 percent. These numbers 
are discussed in a Department of Justice April 4, 2005 letter, 
which, without objection, I would like to introduce into the 
record.
    Throughout these hearings many have argued that the sunset 
provision of the act has required the Department to be on its 
best behavior for implementing the PATRIOT Act. I would like to 
point out that this section, sunset, has been used very rarely, 
and the inspector general for the Department of Justice has not 
found any abuse of this section or any other sections of the 
PATRIOT Act in the six reports it has sent to the Congress. So 
even without a sunset allegedly forcing the Department to 
behave, section 213 has not been abused. The Government and 
Federal judges in whom the authority rests under the statute 
appear to have judiciously used this provision.
    Having said this, I look forward to hearing testimony from 
our panel, and I am now pleased to recognize the distinguished 
gentleman from Virginia, the Ranking Member, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman. And thank you for 
holding the hearing on these important sections.
    We're considering section 213 of the USA PATRIOT Act, the 
infamous delayed notice or ``sneak and peek'' authority 
extended under the act. This lets police secretly go into 
someone's home or place of business to look around for evidence 
and not necessarily seize anything. In addition to the 
observations, pictures or other recordings such as CDs or 
floppy disks can be taken, and they can record things off of 
your computer. Under ordinary circumstances, notice of the 
search would be given through the officers showing up at your 
door to conduct the search. With sneak and peek, notice is not 
given until sometime after the search, such as when an arrest 
or physical seizure of property has taken place. Even before 
section 213, courts allowed sneak and peek searches, with 
probable cause and reasonable circumstances justifying the 
delayed notice.
    The U.S. Supreme Court has not ruled on the sufficiency of 
sneak and peak warrants under the fourth amendment, but there 
have been several circuit court decisions, the second, fourth 
and ninth circuits, for example, and while these courts have 
not set a specific standard for such searches and notices, they 
have ruled that search and notice must be reasonable and should 
not exceed 7 days without additional reasonable foundation 
separate and apart from the original delay. Although this 
provision is not one of the sunsetted provisions under this 
PATRIOT Act, it is the provision of the act which has received 
the most congressional attention since its enactment.
    Sneak and peak was not in the bill approved unanimously by 
this Committee in the weeks following 9/11, and during the last 
Congress the House actually passed by a wide margin an 
amendment to the Department of Justice appropriations denying 
the use of funds to implement any sneak and peek warrants. It 
did not pass the Senate, so it did not become law, but it did 
show by a wide margin that that amendment did pass the House.
    Sneak and peek warrants are anathema to our traditions of 
privacy and notice under the fourth amendment.
    Now, one of the problems with section 213 is that it does 
not set a time limit on how long the notice can be delayed. 
Another problem is this catch-all provision that allows the 
court to approve a sneak and peak warrant without there being 
really dire or exigent circumstances.
    Under the court-approved sneak and peak warrants under 
section 213--under sneak and peak warrants before section 213, 
the warrants were approved only where it was deemed necessary 
to prevent such things as endangering life or physical safety, 
flight from prosecution, or destruction of evidence. Under 
section 213, an addition to these circumstances, a sneak and 
peak warrant can be issued to prevent a case from being, quote, 
otherwise seriously jeopardized or a trial from being unduly 
delayed.
    Within the 155 sneak and peak warrants the Department of 
Justice concedes to have issued under section 213, recent 
information reveals that 92 of them have been under this catch-
all provision. Of course, when the Department talks about 
section 213, as with all PATRIOT Act provisions, it talks about 
how important it is to protect us from terrorism. Yet it is 
clear that these extraordinary powers, such as sneak and peek, 
are used for more than just terrorism cases, and just how much 
more is one of the issues we need to explore. With this broad 
use, including the garden variety crimes, makes it even more 
imperative that we keep a close watch on these provisions.
    So, Mr. Chairman, this is another situation where if we 
don't eliminate the extraordinary power for Government to pry 
into our private lives and affairs, we certainly ought to make 
sure that we structure that authority to ensure it is not the 
subject of abuse, or that the safeguards don't degrade over 
time. So I look forward to the testimony of our witnesses to 
see how we might accomplish that.
    Mr. Coble. I thank the gentleman from Virginia.
    Lady and gentlemen, it is the practice of the Subcommittee 
to swear in all witnesses appearing before it, so if you all 
would please stand and raise your right hands.
    [Witnesses sworn.]
    Mr. Coble. Let the record show that each of the witnesses 
answered in the affirmative.
    We are blessed today, ladies and gentlemen, with a very 
fine panel. Our first witness is Mr. Michael J. Sullivan, 
United States Attorney for the District of Massachusetts. Mr. 
Sullivan has been active in instituting task forces that enable 
the Federal Government, along with State and local governments, 
to combat potential terrorist attacks.
    Prior to serving as U.S. Attorney, Mr. Sullivan was a 
District Attorney of Plymouth County, and was a member of the 
Massachusetts House of Representatives. He is a graduate of 
Boston College and the Suffolk University School of Law.
    Our second witness is Mr. Chuck Rosenberg, Chief of Staff 
to Deputy Attorney General James B. Comey. Mr. Rosenberg 
previously served as counsel to Attorney General John Ashcroft, 
and prior to that as counsel to FBI Director Mueller. Prior to 
joining the FBI, Mr. Rosenberg was an Assistant District 
Attorney. He is an alumnus of the Tufts University, Harvard 
University and the University of Virginia School of Law.
    Our next witness is Ms. Heather Mac Donald, a John M. Olin 
Fellow at the Manhattan Institute and a contributing editor to 
City Journal. Prior to joining the Manhattan Institute, Ms. Mac 
Donald clerked for the Honorable Stephen Reinhardt, U.S. Court 
of Appeals for the Ninth Circuit, served as an attorney-advisor 
in the Office of the General Counsel of the U.S. Environmental 
Protection Agency, and served as a volunteer with the Natural 
Resource Defense Fund in New York City.
    Ms. Mac Donald received her B.A. in English from Yale 
University, graduated summa cum laude with a Mellon fellowship 
to Cambridge University, where she earned an M.A. in English, 
and studied in Italy through a college study grant. She also is 
a graduate of Stanford University School of Law.
    Our final witness is Mr. Bob Barr, the Honorable Bob Barr, 
represented the Seventh District of Georgia at the U.S. House 
of Representatives, and is an alum of this Committee. Good to 
have you back on the Hill, Bob.
    Mr. Barr. Thank you, Mr. Chairman.
    Mr. Coble. He is the 21st Century Liberties Chair for 
Freedom and Privacy at the American Conservative Union, and 
provides advice to several organizations, including the ACLU.
    Mr. Barr served as the United States Attorney for the 
Northern District of Georgia from 1986 to 1990, and he was also 
an official with the CIA and practiced law for many years. Now 
I don't have this in my statement, Mr. Barr, but if my memory 
serves correctly, you did your undergraduate work at USC, and 
was awarded a law degree from Georgetown.
    Mr. Barr. The real USC.
    Mr. Coble. I was going to say in my district USC would be 
the University of South Carolina, but in your case it is, 
indeed, Southern California.
    Now I have not talked to Mr. Delahunt. Mr. Delahunt, would 
you like to introduce Mr. Sullivan furthermore?
    Mr. Delahunt. Of course. I had the pleasure to serve with 
Mr. Sullivan for--I think our terms overlapped as district 
attorneys in Massachusetts for maybe a year or two, and he was 
coming along just fine, Mr. Coble. And then, of course, he won 
the approval of the President and has served well in the U.S. 
Attorney's Office. And I want to welcome you, Mike, to this 
hearing.
    And I also have to acknowledge our former colleague and 
friend Bob Barr, who we served together for--how many years was 
it, Bob?
    Mr. Barr. It seems like about 40 or 50, but a little bit 
less than that.
    Mr. Delahunt. That's my memory, too. While we had some 
disagreements in terms of a number of issues, we also shared, 
you know, a consensus on some significant issues, particularly 
in the course of the Committee's proceedings dealing with the 
PATRIOT Act. And I think it really reflected well on the full 
Committee that at least the first version of the PATRIOT Act--
and Bob Barr had much to do with that final result in a piece 
of legislation I think we all took great pride in. And I 
remember, of course, serving with Bob Barr during the 
impeachment proceedings; again, we had disagreements, but he is 
a man of keen intellect, and I consider Bob a friend.
    Mr. Coble. Thank you, Mr. Delahunt.
    Mr. Delahunt knows this, and this has absolutely nothing to 
do with the PATRIOT Act, but I am a long-time Celtic and 
Patriot fan, however, I did not cheer for the Patriots when 
they beat the Carolina Panthers in the Super Bowl several years 
ago.
    Mr. Scott. Mr. Chairman, I would like to say a word about 
our former colleague, too, because when we went through the 
PATRIOT Act originally, we had some late nights--many of us 
worked late nights to try to get that into a form that we could 
come to some agreement on, and Mr. Barr was one of those that 
spent as many late nights and long meetings as anybody else. 
And as the gentleman from Massachusetts has indicated, we put 
together a package that passed this Committee unanimously, and 
the gentleman from Massachusetts has also put that in historic 
context. That was just a few months after the impeachment 
process where this Committee in some view did not distinguish 
itself in terms of partisan cooperation, but coming up with a 
version of the USA PATRIOT Act that passed this Committee 
unanimously, I think, was quite a feat. Unfortunately, 
somewhere been the Committee and the floor our good work got 
lost, but Mr. Barr was one of those that worked long and hard 
to try to come together.
    Mr. Coble. I want the record to show that I earlier told 
Mr. Barr that we miss him on the Hill--I don't want to be the 
only guy here not praising Mr. Barr.
    Folks, it's good to have you all with us. We also have been 
joined by the distinguished gentleman from Ohio Mr. Chabot. 
Good to have you here with us today.
    Mr. Chabot. Thank you, Mr. Chairman.
    Mr. Coble. Folks, we try on this Subcommittee to operate 
under the 5-minute rule, as you all have been previously 
notified. The panels that appear before you all, when the amber 
light appears, the ice on which you are skating is becoming 
thin, you have a minute to go; and then when the red light 
appears, your time has expired. So if you could stay within the 
5-minute time frame, we would be appreciative.
    Mr. Sullivan, why don't you kick it off.

 TESTIMONY OF THE HONORABLE MICHAEL J. SULLIVAN, UNITED STATES 
              ATTORNEY, DISTRICT OF MASSACHUSETTS

    Mr. Sullivan. Thank you very much, Mr. Chairman. And thank 
you for your support of both the New England Patriots and the 
Boston Celtics. I want the record to reflect I'm also a fan of 
the Patriots and the Celtics and the Boston Red Sox, and 
certainly the Boston Bruins.
    Mr. Chairman, Ranking Member Scott, Members of the 
Subcommittee, my good friend Mr. Delahunt, I want to thank you 
for the invitation to appear before you today to discuss 
several important provisions of the USA PATRIOT Act. I want to 
address sections 201 and 202 of the act which provide law 
enforcement with the ability to use preexisting wiretap 
authorities to investigate certain crimes that terrorists are 
likely to commit, such as those involving weapons of mass 
destruction, material support to terrorists and foreign 
terrorist organizations, and important cybercrime and 
cyberterrorism offenses. I will also address section 223.
    All three of these sections are currently scheduled to 
sunset at the end of 2005. If section 201 and 202 are allowed 
to sunset, we will lose valuable tools that allow law 
enforcement to investigate a full range of terrorism-related 
crimes. Paradoxically, these tools would be unavailable in 
criminal investigations and offenses involving chemical 
weapons, cyberterrorism, and weapons of mass destruction, but 
would be available to investigate traditional crimes such as 
drug offenses, mail fraud and passport fraud. This would be a 
senseless approach because it's absolutely vital that the 
Justice Department have all the appropriate tools at its 
disposal to investigate terrorism crimes.
    I'm here to ask you to make permanent sections 201 and 202, 
and also 223 of the USA PATRIOT Act.
    In the criminal law enforcement context, Federal 
investigators have long been able to obtain court orders to 
intercept wire communications and oral communications to 
investigate numerous criminal offenses listed in the Federal 
wiretap statute. The list of offenses include traditional 
crimes including drug crimes, mail fraud and passport fraud. 
Prior to the enactment of the USA PATRIOT Act, however, certain 
extremely serious crimes that terrorists are likely to commit 
were not among them. This prevented law enforcement authorities 
from using many forms of electronic surveillance to investigate 
these criminal offenses. As a result, law enforcement could 
obtain, under appropriate circumstances, a court order to 
intercept foreign communications in a passport fraud 
investigation, but not a criminal investigation of terrorists 
using chemical weapons or murdering a United States national 
abroad.
    Section 201 of the USA PATRIOT Act ended this anomaly in 
the law by amending the criminal wiretap statute when Congress 
added the following terrorism-related crimes to the list of 
wiretap predicates: chemical weapons offenses, murders and 
other acts of violence against United States nationals 
occurring outside of the United States, the use of weapons of 
mass destruction, violent acts of terrorism transcending 
national borders, financing transactions with countries that 
support terrorism, and material support for terrorists and 
terrorist organizations. There are also two other offenses that 
Congress subsequently added to the list.
    Section 201 of the USA PATRIOT Act preserved all of the 
preexisting standards in the wiretap statute.
    Just as many traditional terrorism-related offenses were 
not listed as wiretap predicates before the passage of the USA 
PATRIOT Act, neither were many important cybercrime or 
cyberterrorism offenses, offenses concerning which law 
enforcement must remain vigilant and prepared in the 21st 
century. Section 202 of the USA PATRIOT Act eliminated this 
anomaly by allowing law enforcement to use preexisting wiretap 
authorities to investigate felony offenses under the Computer 
Fraud and Abuse Act, and brought the criminal code up to date 
with modern technology.
    As with section 201, section 202 of the USA PATRIOT Act 
preserved all the preexisting standards in the wiretap statute. 
If section 202 were allowed to expire, then investigators will 
not be able to obtain wiretap orders to investigate many 
important cybercrime and cyberterrorism offenses, resulting in 
a criminal code that is dangerously out of date compared to 
modern technology.
    As for section 223, a person now harmed by willful 
violation of the criminal wiretap statute or improper use and 
disclosure of information contained in the Foreign Intelligence 
Surveillance Act may now file a claim against the United States 
for at least $10,000 in damages, plus costs. Most everyone who 
has reviewed this section agrees it is a valuable tool and 
should be renewed.
    I want to thank you again for the opportunity to discuss 
section 201, 202 and 223 of the USA PATRIOT Act. These 
provisions are critical to the Department's efforts to protect 
Americans from terrorism. From my experience as a prosecutor, I 
know firsthand how valuable wiretaps are to investigations and 
prosecution of serious criminal offenses. There is no logical 
reason why these valuable tools should not be extended to law 
enforcement to protect our citizens from terrorism-related 
offenses as well.
    I would be happy to answer any questions you may have.
    Mr. Coble. Thank you, Mr. Sullivan.
    [The prepared statement of Mr. Sullivan follows:]

                 Prepared Statement of Michael Sullivan



    Mr. Coble. And Mr. Rosenberg.

TESTIMONY OF CHUCK ROSENBERG, CHIEF OF STAFF TO DEPUTY ATTORNEY 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Rosenberg. Thank you, Chairman Coble, Ranking Member 
Scott, Members of the Subcommittee, Mr. Delahunt and Mr. 
Chabot. It's a pleasure to be here today, and I appreciate the 
opportunity to speak to the Subcommittee about what I believe 
to be a very ordinary tool that has been gravely misunderstood 
and misperceived. I speak of section 213 of the PATRIOT Act, 
which codified and gave us a single uniform national standard 
for the execution of delayed notification searches.
    Delayed notification searches are nothing new. I said 
they're rather ordinary; I should also say they're rather old, 
we've had them for decades. The authority to execute delayed 
notification searches dates back many, many years. Implicitly, 
a Supreme Court case in 1967, Katz v. United States, and more 
concretely, to a 1979 Supreme Court case which recognized that 
the fourth amendment does not require in all instances 
immediate notification of a search.
    In the wake of that 1979 Supreme Court case, circuit courts 
throughout the country, in the second, in the fourth and the 
ninth circuit, had slightly varying standards on how you would 
obtain a delayed notification search, what was required, and 
how long the period of delay would be. And what this Congress 
gave us in section 213 again was a single standard, so there 
was uniformity through the country.
    Let me clear up one large misperception. Under the fourth 
amendment, to execute a search warrant a Federal prosecutor, an 
agent, had to demonstrate to the satisfaction of a Federal 
judge probable cause; in other words, probable cause that the 
search would yield fruits of a crime, evidence of a crime. That 
was true before the PATRIOT Act, it is true now; nothing about 
the PATRIOT Act or section 213 changed that at all.
    As well, prior to the PATRIOT Act, a Federal judge had to 
authorize a search warrant; whether it was with delayed notice 
or without, regardless, a Federal judge had to authorize it. 
That was true before the PATRIOT Act, that's true now. Nothing 
about that has changed.
    To delay notice, however, you require something more, 
probable cause for the search, but for the delay you need to 
show reasonable cause that if you don't delay notification, 
that some adverse result would flow from that. There are five 
in the statute: that a life would be endangered, that there 
would be flight from prosecution, that evidence might be 
destroyed or tampered with, that potential witnesses could be 
intimidated, or that an investigation could be seriously 
jeopardized.
    In all cases we need to demonstrate that to a Federal 
judge, and she needs to be satisfied that we have reasonable 
cause to delay the search. So without that, we can't delay. And 
that's what I want to be very clear about, Mr. Chairman, we 
must have permission of the court to act not just for the 
underlying search, but for the delay as well.
    In all cases, in all cases, we still give notice, we must. 
It's required under the law. It's just a question of whether or 
not we may be able to delay that notice for some reasonable 
period of time.
    We do not use this authority very often. Out of every 1,000 
searches--and this is a rough average--we use it twice. That's 
about .2 percent. We use it when we need it. And, I submit, we 
use it judiciously and smartly and carefully, and, again, only 
with the authorization of a court. Nothing in the PATRIOT Act, 
nothing in section 213 removes the probable cause requirement. 
Nothing in the PATRIOT Act removes the requirement that a judge 
give us permission to delay notice.
    I have a little bit of time left, but I don't want to use 
it all now. I will pass it along. I appreciate the opportunity 
to speak. I am happy to answer any questions you may have.
    [The prepared statement of Mr. Rosenberg follows:]

                 Prepared Statement of Chuck Rosenberg



    Mr. Coble. Well, you and Mr. Sullivan have put Ms. Mac 
Donald and Mr. Barr under a bright light because you both beat 
the red light.
    Ms. Mac Donald, you're on.

   TESTIMONY OF HEATHER MAC DONALD, JOHN M. OLIN FELLOW, THE 
            MANHATTAN INSTITUTE FOR POLICY RESEARCH

    Ms. Mac Donald. I'm going to be lean and mean, Mr. 
Chairman.
    Thank you very much for inviting me today, I am honored to 
be testifying before you.
    The PATRIOT Act has been subject to the most successful 
misinformation campaign in recent memory. From the day of its 
passage, it's been portrayed as a power grab by an 
Administration intent on trampling on civil rights. As I have 
debated the act across the country, I've been amazed by the 
amount of ignorance out there about it, and therefore I applaud 
the Committee for taking the time to set the record straight.
    Now, I have observed four rhetorical strategies used to 
discredit the act, and I want to discuss them in the context of 
section 213, the delayed notification provision, because if you 
can discredit them in those--in that context, you have the key 
for undermining the entire anti-PATRIOT propaganda campaign.
    The first strategy used by opponents of the act is to 
conceal legal precedent. Section 213, as we heard, allows the 
Government to delay notice of the search if notice would result 
in witness intimidation, evidence tampering or other adverse 
results. The section has been universally portrayed as a 
radical new power that will unleash Government tyranny. The 
gall of this claim astounds me, because, as Mr. Rosenberg 
explained, section 213 merely codifies two decades of judicial 
precedent. If delayed notice were the threat that it were made 
out to be, we would have heard about abuses by now. But as with 
every other section of the PATRIOT Act, the critics have been 
unable to bring forth a single example of abuse over not just 4 
years of use, but two decades of delayed notice authority.
    The second strategy used by PATRIOT Act opponents is what I 
call ``hiding the judge.'' We never learn from the section 213 
opponents that under it the Government can investigate a 
suspect and delay notice only if a judge gives permission. It's 
a Federal judge who decides whether delay is reasonable, not a 
law enforcement agent.
    The third strategy against the PATRIOT Act, amending the 
statute. PATRIOT Act critics invariably imply under section 213 
the Government can permanently conceal that a search has 
occurred. This charge rewrites the section which says that 
delay can only be temporary for a reasonable period of time.
    Ultimately I've discovered what drives most critics of the 
act is a deep suspicion of Government secrecy in criminal or 
terror investigations. This is the fourth strategy, rejecting 
secrecy. Opponents of section 213 apparently believe that if 
the Government wants to search Muhammad Atta's hard drive, it 
should show up at his door and hand him a search warrant and 
say, ``Oh, Mr. Atta, we would like permission, please, to 
search your computer.'' This line of attack shows a complete 
obliviousness to the distinction between an after-the-fact 
criminal investigation and preemptive antiterror 
investigations.
    In passing the PATRIOT Act, Congress recognized the urgency 
of moving law enforcement from a reactive to a preventative 
mode. Speed and secrecy are the essence of preventing terrorist 
attacks, and, indeed, in many criminal investigations as well.
    There is one final fallacy that I want to quickly allude to 
which is being suspended in time. For critics of the PATRIOT 
Act, it is always 1968 when J. Edgar Hoover was indeed 
trampling on civil rights; but this line of reasoning ignores 
the massive sea change in law enforcement that has occurred 
since then. The FBI has internalized the rule of law and the 
norms of restraint. The biggest challenge we had before 9/11 
was persuading our agents to use this power that was available 
to them.
    In conclusion, section 213, like the rest of the PATRIOT 
Act, was a reasonable response to the new threat of 
catastrophic terrorism. It has not led to a single abuse of 
civil rights, and it should be renewed. Thank you.
    Mr. Coble. Thank you, Ms. Mac Donald.
    [The prepared statement of Ms. Mac Donald follows:]

                Prepared Statement of Heather Mac Donald

    Thank you, Mr. Chairman and members of the Committee. My name is 
Heather Mac Donald. I am a senior fellow at the Manhattan Institute for 
Policy Research, a think tank in New York City. I have written 
extensively on homeland security for the Washington Post, the Wall 
Street Journal, the Los Angeles Times, and City Journal, among other 
publications. I appreciate the opportunity to testify today on this 
important topic.
    The most powerful weapon against terrorism is intelligence. The 
United States is too big a country to rely on physical barriers against 
attack; the most certain defense is advanced knowledge of terrorist 
plans.
    In recognition of this fact, Congress amended existing surveillance 
powers after 9/11 to ready them for the terrorist challenge. The signal 
achievement of these amendments, known as the Patriot Act, was to tear 
down the regulatory ``wall'' that had prevented anti-terrorism 
intelligence agents and anti-terrorism criminal agents from sharing 
information. The Patriot Act made other necessary changes to 
surveillance law as well: it extended to terrorism investigators powers 
long enjoyed by criminal investigators, and it brought surveillance law 
into the 21st century of cell phones and e-mail. Where the act modestly 
expands the government's authority, it does so for one reason only: to 
make sure that the government can gather enough information to prevent 
terrorism, not just prosecute it after the fact.
    Each modest expansion of government power in the Patriot Act is 
accompanied by the most effective restraint in our constitutional 
system: judicial review. The act carefully preserves the traditional 
checks and balances that safeguard civil liberties; four years after 
its enactment, after constant monitoring by the Justice Department's 
Inspector General and a host of hostile advocacy groups, not a single 
abuse of government power has been found or even alleged.
    This record of restraint is not the picture of the act most often 
presented in the media or by government critics, however. The Patriot 
Act has been the target of the most successful disinformation campaign 
in recent memory. From the day of its passage, law enforcement critics 
have portrayed it as an unprecedented power grab by an administration 
intent on trampling civil rights.
    As lie after lie accumulated, the administration failed utterly to 
respond. As a result, the public is wholly ignorant about what the law 
actually does. Hundreds of city councils have passed resolutions 
against the act; it is a safe bet that none of them know what is in it. 
The Committee is to be congratulated for taking the time to get the 
truth out.
    Though the charges against the Patriot Act have been dazzling in 
their number, they boil down to four main strategies. This morning, I 
would like to dissect those strategies, with particular reference to 
the most controversial section of the act: section 213. Section 213 
allows the government to delay notice of a search, something criminal 
investigators have been allowed to do for decades. Discredit the anti-
Patriot Act strategies against section 213, and you have the key for 
discrediting them in every other context.

                --STRATEGY #1: CONCEAL LEGAL PRECEDENT.

    Here's how section 213 works: Let's say the FBI wants to plumb 
Mohammad Atta's hard drive for evidence of a nascent terror attack. If 
a federal agent shows up at his door and says: ``Mr. Atta, we have a 
search warrant for your hard drive, which we suspect contains 
information about the structure and purpose of your cell,'' Atta will 
tell his cronies back in Hamburg and Afghanistan: ``They're on to us; 
destroy your files--and the infidel who sold us out.'' The government's 
ability to plot out that branch of Al Qaeda is finished.
    To avoid torpedoing preemptive investigations, Section 213 lets the 
government ask a judge for permission to delay notice of a search. The 
judge can grant the request only if he finds ``reasonable cause'' to 
believe that notice would result in death or physical harm to an 
individual, flight from prosecution, evidence tampering, witness 
intimidation, or other serious jeopardy to an investigation. In the 
case of Mohammad Atta's hard drive, the judge will likely allow a 
delay, since notice could seriously jeopardize the investigation, and 
would likely result in evidence tampering or witness intimidation.
    The government can delay notifying the subject only for a 
``reasonable'' period of time; eventually officials must tell Atta that 
they inspected his hard drive.
    Section 213 carefully balances traditional expectations of notice 
and the imperatives of preemptive terror and crime investigations. 
That's not how left- and right-wing libertarians have portrayed it, 
however. They present Section 213, which they have dubbed ``sneak-and-
peek,'' as one of the most outrageous new powers seized by former 
Attorney General John Ashcroft. The ACLU's fund-raising pitches warn: 
``Now, the government can secretly enter your home while you're away . 
. . rifle through your personal belongings . . . download your computer 
files . . . and seize any items at will. . . . And, because of the 
Patriot Act, you may never know what the government has done.''
    Notice the ACLU's ``Now.'' Like every anti-213 crusader, the ACLU 
implies that section 213 is a radical new power. This charge is a rank 
fabrication. For decades, federal courts have allowed investigators to 
delay notice of a search in drug cases, organized crime, and child 
pornography, for the same reasons as in section 213. Indeed, the 
ability to delay notice of a search is an almost inevitable concomitant 
of investigations that seek to stop a crime before it happens. But the 
lack of precise uniformity in the court rulings on delayed notice 
slowed down complex national terror cases. Section 213 codified 
existing case law under a single national standard to streamline 
detective work; it did not create new authority regarding searches. 
Those critics who believe that the target of a search should always be 
notified prior to the search, regardless of the risks, should have 
raised their complaints decades ago--to the Supreme Court and the many 
other courts who have recognized the necessity of a delay option.
    Critics of Section 213 raise the spectre of widespread surveillance 
abuse should the government be allowed to delay notice. FBI agents will 
be rummaging around the effects of law-abiding citizens on mere whim, 
even stealing from them, allege the anti-Patriot propagandists. But the 
government has had the delayed notice power for decades, and the anti-
Patriot demagogues have not brought forward a single case of abuse 
under delayed notice case law. Their argument against Section 213 
remains purely speculative: It could be abused. But there's no need to 
speculate; the historical record refutes the claim.

                     --STRATEGY #2: HIDE THE JUDGE.

    The most pervasive tactic used against the Patriot Act is to 
conceal its judicial review provisions.
    The cascades of anti-section 213 vitriol contain not one mention of 
the fact that the FBI can only delay notice of a search pursuant to 
judicial approval. It is a federal judge who decides whether a delay is 
reasonable, not law enforcement officials. And before a government 
agent can even seek to delay notice of a search, he must already have 
proven to a judge that he has probable cause to conduct the search in 
the first place.
    But the opponents suggest that under section 213, the government 
can unilaterally and for the most nefarious of purposes decide to 
conceal its investigative activities. Indeed, the ACLU implies that 
federal investigators can not only unilaterally delay notice, but can 
choose what and whether to search, without any judicial oversight: 
``Now, the government can . . . seize any items [from your home] at 
will,'' it blares. But section 213 allows a warrant to issue only if a 
judge finds a ``reasonable necessity'' for it--the executive's 
arbitrary ``will'' has nothing to do with it. This is hardly a recipe 
for lawless executive behavior--unless the anti-Patriot forces are also 
alleging that the federal judiciary is determined to violate citizens 
rights. If that's what they mean, they should come out and say it.

                   --STRATEGY #3: AMEND THE STATUTE.

    Anti-Patriot lore has it that section 213 allows the government to 
permanently conceal a search. The section ``allows the government to 
conduct secret searches without notification,'' cries Richard Leone, 
president of the Century Foundation and editor of The War on Our 
Freedoms: Civil Liberties in an Age of Terrorism. This conceit rewrites 
the section, which provides only for a delay of notice, not its 
cancellation. A warrant issued under section 213 must explicitly 
require notice after a ``reasonable'' period of time. This key feature 
of the section is completely suppressed by the critics.

                     --STRATEGY #4: REJECT SECRECY.

    Many of the attacks on the Patriot Act emanate from a single 
source: the critics do not believe that the government should ever act 
in secret. Recipients of document production orders in terror 
investigations--whether Section 215 orders or national security letters 
under the 1986 Electronic Communications Privacy Act--should be able to 
publicize the government's request, say the critics. If intelligence 
agents want to search a suspected cell's apartment, they should inform 
the cell members in advance to give them an opportunity to challenge 
the search. Time and again, law enforcement critics disparage the 
Foreign Intelligence Surveillance Court, because its proceedings are 
closed to the public.
    This transparent approach may satisfy those on the left and right 
who believe that the American people have no greater enemy than their 
own government, but it fails to answer the major question: how would it 
possibly be effective in protecting the country? The Patriot Act 
critics fail to grasp the distinction between the prosecution of an 
already committed crime, for which probable cause and publicity 
requirements were crafted, and the effort to preempt a catastrophic 
attack on American soil before it happens. For preemptive 
investigations, secrecy is of the essence. Opponents of the Patriot Act 
have never explained how they think the government can track down the 
web of Islamist activity in public. Given the fact that section 213 and 
other sections are carefully circumscribed with judicial checks and 
balances, it is in fact the secrecy that they allow that most riles the 
opponents.
    The recent history of government intelligence-gathering belies the 
notion that any government surveillance power sets us on a slippery 
slope to tyranny. There is a slippery-slope problem in terror 
investigations--but it runs the other way. Since the 1970s, 
libertarians of all political stripes have piled restriction after 
restriction on intelligence-gathering, even preventing two anti-terror 
FBI agents in the same office from collaborating on a case if one was 
an ``intelligence'' investigator and the other a ``criminal'' 
investigator. By the late '90s, the bureau worried more about avoiding 
a pseudo-civil liberties scandal than about preventing a terror attack. 
No one demanding the ever-more Byzantine protections against 
hypothetical abuse asked whether they were exacting a cost in public 
safety. We know now that they were.
    The libertarian certainty about looming government abuse is a 
healthy instinct; it animates the Constitution. But critics of the 
Patriot Act and other anti-terror authorities ignore the sea change in 
law enforcement culture over the last several decades. For privacy 
fanatics, it's always 1968, when J. Edgar Hoover's FBI was voraciously 
surveilling political activists with no check on its power. That FBI is 
dead and gone. In its place arose a risk-averse and overwhelmingly law-
abiding Bureau, that has internalized the norms of restraint and 
respect for privacy.
    This respect for the law now characterizes intelligence agencies 
across the board. Lieutenant General Michael V. Hayden, the nominee for 
Principal Deputy Director of National Intelligence, told the Senate 
Select Committee on April 14 that the challenge for supervisors in the 
National Security Agency was persuading analysts to use all of their 
legal powers, not to pull analysts back from an abuse of those powers.
    It is because of this sea-change in law enforcement culture that 
Patriot Act critics cannot point to a single abuse of the act over the 
last four years, and why they are always left to argue in the 
hypothetical.
    In conclusion, the Patriot Act is a balanced updating of 
surveillance authority in light of the new reality of catastrophic 
terrorism. It corrects anachronisms in law enforcement powers, whereby 
health care fraud investigators, for example, enjoyed greater ability 
to gather evidence than Al Qaeda intelligence squads. It created no 
novel powers, but built on existing authorities within the context of 
constitutional checks and balances. It protects civil liberties while 
making sure that intelligence analysts can get the information they 
need to protect the country. The law should be reenacted.

    Mr. Coble. Mr. Barr.

TESTIMONY OF THE HONORABLE BOB BARR, FORMER MEMBER OF CONGRESS, 
                        ATLANTA, GEORGIA

    Mr. Barr. Thank you very much, Mr. Chairman. And the fact 
that you're here today, despite some medical problems, is a 
very loud tribute to your concern for the Constitution and for 
open and objective and extensive debate on important 
constitutional issues such as those included in these sections 
in the USA PATRIOT Act. And I personally very much appreciate 
your being here and holding this hearing, as well as the other 
Members of the Committee. And, I appreciate very much their 
very kind words for my former service on this very Subcommittee 
that I consider one of the high points in my public career. I 
very much appreciate them being here today and conducting these 
hearings.
    I do have, Mr. Chairman, a fairly extensive set of written 
remarks which I have sent to the Subcommittee, and ask that 
they be included in the record of these proceedings.
    Mr. Coble. Without objection.
    Mr. Barr. What I'd like to do in the few minutes allowable 
for opening statements, Mr. Chairman, is put this in historical 
context, do away with some of the hyperbole and misplaced facts 
of the prior witness, and let the Subcommittee know what it is 
that I and a number of others from across the ideological 
spectrum, who care just as much as all of the witnesses here 
today and as Members of this Subcommittee about the 
Constitution, exactly what it is that we're proposing and what 
we're not proposing.
    The issue, Mr. Chairman, of notice for searches goes back 
long before the last couple of decades; it goes back even long 
before our own Constitution, including its Bill of Rights, was 
adopted. It goes back at least 300 years before our 
Constitution. The notice that--or the principle that notice 
should be given before the sovereign could invade a man's 
castle, in the words of James Otis, was something very 
sacrosanct, a notion that the privacy of that dwelling--and the 
notion that before that the Government could invade that 
dwelling, or later that business, and gather evidence against 
that or another person without giving notice was very much 
important and I think is engrained in the fourth amendment.
    Indeed, no less a constitutional scholar than Justice 
Clarence Thomas recognized recently that the notice provision 
is indeed an important underpinning of the reasonableness basis 
for the fourth amendment.
    So the notion that we're talking about some radical concept 
here that would harm our Nation when we're talking about the 
norm being notice is not radical at all; it is very consistent 
with a long history both of the philosophy underlying our Bill 
of Rights as well as judicial interpretations thereof.
    The courts, as has been correctly stated by prior 
witnesses, have never held that noticeless searches are per se 
okay. Quite the contrary. In the two instances in which courts 
of appeal, the second and ninth circuit, have ruled on the 
issue of noticeless searches, they simply address the issue of 
the reasonableness of the delay in the notice. And indeed, the 
Supreme Court has not ruled on this issue. In the Delia case, 
1979, that was simply a case not involving a search for or a 
seizure of evidence, but simply that in the case where the 
Government wished to properly place a listening device, a bug, 
in a location, it made no sense for the Government to announce 
that it was doing that. That's very different from a search and 
seizure of evidence.
    What exactly is it that the USA PATRIOT Act did in its 
section 213? For the very first time in our Nation's history, 
it established a legal basis on which the Government could, in 
defined circumstances, execute a warrantless search, a so-
called sneak and peek search. I, and most others who find some 
fault with that provision, don't contest that basic premise. 
Yes, there are instances in which the Government needs to 
conduct a search without providing contemporaneous notice; but 
we do believe that those circumstances ought to be very 
carefully limited to ensure that they remain very much, both in 
principle and in practice, not the norm, but the exception to 
the general rule. And we also believe that there needs to be 
defined limitations in terms of time for the execution of 
noticeless searches and seizures of evidence.
    Therefore, what we are proposing, because section 213 is 
deficient in both of those two areas--it provides no definitive 
endpoint for a warrant noticeless search, and it provides a 
sort of general catch-all phrase that to deny the Government 
the use of a noticeless search would unduly delay the trial--
that's not an appropriate constitutional basis on which to take 
away that important right for notice, Mr. Chairman. Therefore, 
what we are proposing is not the preposterous hypothetical that 
the previous witness indicated of having to tell Muhammad Atta 
that the Government is there to look at his hard drive. Nobody 
reasonably is proposing that, and the organizations with which 
I work are not. What we are simply doing, Mr. Chairman, is 
taking the existing framework in section 213 and providing a 
change in only two areas, one, a definitive endpoint for the 
noticeless search, with extensions; and secondly--and this is 
most important, I think, Mr. Chairman--I apologize for going on 
just slightly longer than the time, but this is most 
important--we clearly recognize that in those instances in 
which to deny the Government the ability to conduct a 
noticeless search would seriously harm the national security, 
yes, the Government ought to be able to proceed. And the Safe 
Act provision, which we commend to this Subcommittee and which 
some Members, Mr. Conyers and Mr. Flake, I believe, are already 
cosponsors, does that.
    It does not take away, we are not proposing to take away, 
the section 213 authority, we are simply proposing that there 
be some definitive limitations, and that the general catch-all 
phrase be limited so that it clearly allows, in national 
security cases, but doesn't become simply a bureaucratic tool 
for the Government to use.
    Mr. Coble. I thank the gentleman.
    [The prepared statement of Mr. Barr follows:]

              Prepared Statement of the Honorable Bob Barr

    Chairman Coble, Ranking Member Scott, Members of the Subcommittee, 
thank you again for inviting me to testify on the PATRIOT Act. You 
deserve applause for your oversight today.
    The results of the debate over the extension of the PATRIOT Act's 
more intrusive provisions will define this Congress in our Nation's 
history. Will Congress correct some of the provisions that were hastily 
passed just days after the tragic attacks of 9/11 and bring the statute 
back in line with the command our nation's charter, our Constitution? 
Will Congress adopt safeguards to properly focus our law enforcement 
efforts on terrorists rather than ordinary Americans?
    I am here today because I am confident that, working together, we 
can do just that and honor both the letter and the spirit of our Fourth 
Amendment freedoms by bringing the PATRIOT Act back in line with the 
Constitution.
    My name is Bob Barr. From 1995 to 2003, I had the honor to 
represent Georgia's Seventh District in the United States House of 
Representatives, serving that entire period with many of you on the 
House Judiciary Committee.
    From 1986 to 1990, I served as the United States Attorney for the 
Northern District of Georgia after being nominated by President Ronald 
Reagan, and was thereafter the president of the Southeastern Legal 
Foundation. For much of the 1970s, I was an official with the CIA.
    I currently serve as CEO and President of Liberty Strategies, LLC, 
and Of Counsel with the Law Offices of Edwin Marger. I also hold the 
21st Century Liberties Chair for Freedom and Privacy at the American 
Conservative Union, consult on privacy issues with the American Civil 
Liberties Union, and am a board member of the National Rifle 
Association.
    I am also the Chairman of a new network of primarily conservative 
organizations called Patriots to Restore Checks and Balances, which 
includes the American Conservative Union, Eagle Forum, Americans for 
Tax Reform, the American Civil Liberties Union, Gun Owners of America, 
the Second Amendment Foundation, the Libertarian Party, the Association 
of American Physicians and Surgeons, and the Free Congress Foundation.
    You have asked me to testify today about sections 201, 202, 223, 
and 213 of the PATRIOT Act. I will focus the bulk of this testimony on 
section 213, the ``sneak and peek'' provision, and reserve some brief 
comments on the other provisions at the end of this written statement.
    Section 213 of the PATRIOT Act authorizes ``sneak and peek,'' or 
``delayed notice,'' search warrants in all criminal cases--without 
limitation to cases involving terrorism or a foreign agents--where the 
federal government says notice of the search warrant would result in 
destruction of evidence, the endangerment of an individual's life or 
physical safety, flight from prosecution, intimidation of a witness, or 
serious jeopardy to a criminal investigation. The Act sets no limit on 
the length of time such a search of a person's home or business can be 
kept secret. Section 213 is not subject to sunset this year but should 
be amended and should be given a new sunset as amended, if it is not 
repealed.
    I have grave concerns about covert searches of people's homes or 
businesses in general and about the design of this statute in 
particular. I would hope the Members of the Judiciary Committee would 
agree with me on one fundamental premise of American law. The idea of 
strangers, including government agents, secretly entering the privacy 
of our homes and examining our personal possessions is a threat to the 
fundamental freedoms our Fourth Amendment was written to protect.
    Secret searches of American homes and businesses must not be 
allowed to become routine. They must be closely circumscribed. Although 
one might imagine a rare circumstance where a short delay in notice 
might be compelling and even pass scrutiny under the Fourth Amendment, 
secret searches should not be allowed to become a garden-variety tool 
of law enforcement. The PATRIOT Act, however, permanently enshrined 
secret searches of American homes and businesses in our law under the 
guise of anti-terrorism efforts.
    As members of the House Judiciary Committee, you know well that the 
House Judiciary Committee's original marked-up version of the PATRIOT 
Act did not include statutory authority for secret criminal searches, 
although the Administration had asked for it. The ``sneak-and-peek'' 
provision was imposed on you by the Senate at the last minute in a 
substitution of the bill this Committee produced. Respectfully, I 
believe this addition to the bill was a serious mistake, but there was 
no time then to correct it. There is time now.
    Giving federal law enforcement statutory authority for secret 
criminal search warrants in ordinary criminal cases has nothing to do 
with ``Uniting and Strengthening America by Providing Appropriate Tools 
Required to Intercept and Obstruct Terrorism,'' as the PATRIOT Act was 
pitched to the American people. We all know that. As the American 
people have come to understand that, they too have expressed strong 
reservations about the use of such extraordinarily intrusive and 
secretive powers, especially where such searches are not used to 
obstruct terrorist attacks.
    If Congress chooses to continue to give statutory authority for 
these covert-entry, delayed-notification searches, they should be 
carefully limited to ensure that what should be the rarest of 
exceptions does not become the rule. The PATRIOT Act, however, has 
inadequate controls. And, even though the sneak and peek authority is 
not set to sunset by the end of the year, I urge you to support the 
addition of sound and modest checks on the use, and also against the 
abuse, of this secret search authority.
    Section 213 of the PATRIOT Act, as codified at 18 U.S.C. Sec. 3103a 
(2004), contains at least two fundamental flaws. First, it fails to set 
a statutory time limit on secret searches. The statute requires notice 
of the execution of a sneak and peek warrant within a ``reasonable 
period of its execution,'' but sets no time limit on when such notice 
is required.\1\
---------------------------------------------------------------------------
    \1\ 18 U.S.C. Sec. 3103a(b)(3).
---------------------------------------------------------------------------
    From the outset, critics of the PATRIOT Act have warned that such 
open-endedness would result in these warrants being used to justify the 
indefinite delay of notice. Attorney General Gonzales recently 
testified that at least six of the secret searches that have been 
authorized under section 213 were authorized to be secret indefinitely, 
even though the Department has simultaneously said that a secret search 
under section 213 cannot be kept secret forever. The Attorney General 
has also testified that the ``average'' length of time a search is kept 
secret is between 30 and 90 days, but the government has not shared the 
details of most of its secret searches with the American people and has 
shared only limited information about a few carefully selected ones it 
wanted to discuss.\2\
---------------------------------------------------------------------------
    \2\ Oversight of the USA Patriot Act: Hearing Before the Senate 
Judiciary Committee, 109th Cong. (2005) (Attorney General Gonzales 
Responding to Senator Feingold).
---------------------------------------------------------------------------
    The indeterminateness allowed by the statute as it currently exists 
is directly contrary to the rulings in the only two circuit courts to 
fully consider the issue of a lower court authorizing criminal search 
warrants with delay in notification allowed before the PATRIOT Act.\3\ 
In the first such case, a circuit court held that ``in this case the 
warrant was constitutionally defective in failing to provide explicitly 
for notice within a reasonable, but short, time subsequent to the 
surreptitious entry. Such a time should not exceed seven days except 
upon a strong showing of necessity.'' \4\
---------------------------------------------------------------------------
    \3\ Stephen D. Lobaugh, Congress's Response to September 11: 
Liberty's Protector, 1 Geo. J.L. & Pub. Pol'y 131, 143 (Winter 2002) 
(stating, ``The Supreme Court has not ruled on the constitutionality of 
``sneak-and-peek'' searches, and only two United States Courts of 
Appeals have heard such cases.''). A third case, United States v. 
Simons, 206 F.3d 392 (4th Cir. 2000), relied upon by the Justice 
Department did not involve a criminal search warrant that the issuing 
judge approved be kept secret at the time the warrant was executed and 
the lower court ultimately found that law enforcement did not 
deliberately disregard the rules in failing to leave notice of the 
warrant.
    \4\ United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986).
---------------------------------------------------------------------------
    The only other circuit court to consider a lower court-approved 
delay in notice of a search, the Second Circuit, insisted on a specific 
time period for notice of a secret search, holding that notice could be 
delayed for only seven days unless there were fresh showings of cause 
for extensions.\5\ Prior to the PATRIOT Act and since it passed, the 
Supreme Court has not issued any decisions endorsing the 
constitutionality of secret criminal search warrants, except in the 
limited context of warrants authorizing the installation of devices 
(i.e., bugs) for audio surveillance specifically authorized by statute, 
a decision the Department wrongly relies on as authority for its 
position that the Court has approved ``sneak and peek'' searches for 
general purposes.\6\
---------------------------------------------------------------------------
    \5\ United States v. Villegas, 899 F.2d 1324, 1339 (2nd Cir. 1990).
    \6\ Dalia v. United States, 441 U.S. 238 (1979).
---------------------------------------------------------------------------
    The idea that giving an American citizen notice that their home or 
business is being searched by the police is central both to the spirit 
and to the letter of the Constitution. Indeed, the principle that law 
enforcement should ``knock and announce'' their presence before 
executing a search warrant was well entrenched in the common law by the 
time of the Constitution's ratification, going back perhaps an 
additional 300 years before the American Revolution.\7\
---------------------------------------------------------------------------
    \7\ Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth 
Amendment Sec. 4.8(a) (4th ed. 2004).
---------------------------------------------------------------------------
    Notably, the dreaded general warrants or ``writs of assistance'' 
wielded by the British crown's customs inspectors in colonial America 
actually ``required that notice be given before entry was made, and 
reported instances of [their] use included notice.'' \8\ These searches 
were reviled not because they were conducted covertly under cover of 
night, but because they did not require any particularity or probable 
cause before issuance. The Supreme Court has relied on the original 
intent of the Framers in deciding that notice of a search is a basic 
aspect of whether a search is ``reasonable,'' as expressly required by 
the Constitution. In Wilson v. Arkansas, Justice Thomas wrote for a 
unanimous court that the ``common-law `knock and announce' principle 
forms a part of the reasonableness inquiry under the Fourth 
Amendment.'' \9\
---------------------------------------------------------------------------
    \8\ Id.
    \9\ 514 U.S. 927 (1995).
---------------------------------------------------------------------------
    Accordingly, the scope of permissible delay under section 213 of 
the PATRIOT Act is far broader than that contemplated by the appellate 
courts that examined sneak and peek authority prior to the PATRIOT Act. 
As such, supporters of modest PATRIOT Act reform have asked that 
Congress precisely delimit the period of delay. The bipartisan SAFE Act 
would create a time limit for the secrecy of such searches. The SAFE 
Act limits the initial period of delay to seven days, and allows that 
period to be renewed for good cause (for additional seven-day periods 
in the House version, and for 21-day periods in the Senate version). I 
commend Congressmen Flake and Conyers for co-sponsoring this 
legislation.
    I would note that the notice, or knock and announce, principle has 
been allowed by the courts to give way to countervailing law 
enforcement interests in extraordinary circumstances, which leads me to 
the second fundamental flaw of section 213. The operative word here is 
extraordinary, something that the PATRIOT Act ignores by authorizing 
secrecy under circumstances that too many criminal cases might meet. 
This flaw is more substantively dangerous than the open-ended notice 
provision of section 213 because it telegraphs to law enforcement 
agents that they can relatively easily get approval for a secret 
search.
    Specifically, 18 U.S.C. Sec. 3103a(b)(1), enacted by the PATRIOT 
Act, requires an agent seeking a sneak and peek warrant to show that 
notice would have an ``adverse result'' as defined by 18 U.S.C. 
Sec. 2705, to include destruction of evidence, danger to a person, 
flight from prosecution, witness tampering or ``otherwise seriously 
jeopardizing an investigation or unduly delaying a trial.'' Leaving 
aside the issues of whether secret searches should be allowed generally 
in cases far afield from terrorism, the fifth provision--the catch-all 
exception--is the most problematic.
    Congress should eliminate the catch-all exception and circumscribe 
section 213. On the evening before the Senate Judiciary Committee's 
first hearing in preparation for the sunsets debate, the Justice 
Department released new statistics showing a marked increase in the use 
of these secret searches. This, by the way, is another reason Congress 
should impose a sunset on section 213 so that it will not become a 
permanent fixture in our criminal system, and also give the Executive 
Branch some incentive to account for its use of this extraordinary 
power.
    Between November 2001 and April 2003, the authorities used section 
213 of the PATRIOT Act 47 times, a rate of 2.7 a month. Between April 
2003 and January 2005, they requested and executed 108, a rate of 4.7 a 
month. At the Senate Judiciary Committee hearing, Chairman Specter 
disclosed that in a closed-door briefing DOJ admitted that 92 of the 
155 sneak and peek searches that have been authorized since the PATRIOT 
Act have been under the vague ``catch all'' section, that there is 
``reasonable cause to believe that providing immediate notification of 
the execution of the warrant may'' jeopardize an investigation.\10\ 
That's nearly 60% of the time.
---------------------------------------------------------------------------
    \10\ Oversight of the USA Patriot Act, supra note 3.
---------------------------------------------------------------------------
    The use of the catch-all will undoubtedly grow dramatically as the 
spotlight on the PATRIOT Act begins to fade. Arguably law enforcement 
could claim immediate notice of a search would jeopardize an 
investigation in many, perhaps most, criminal cases. Notably, agents 
have never been turned away in a request for a sneak and peek warrant.
    One must recall exactly what happens when federal agents use 
section 213. The government obtains a search warrant that allows agents 
to break into a private residence, enter under cover of darkness, 
conduct an extensive search of the premises, retain digital or paper 
files, document the search with photographs, seize tangible property 
like DNA, and then leave.
    In testimony before the Senate Select Committee on Intelligence, 
Attorney General Gonzales recently selected example of where the catch-
all definition of ``adverse result'' was used to secure a sneak and 
peek warrant.\11\ Although the scenario was ostensibly meant to 
illustrate the need for retaining the open-ended justification for 
sneak and peek warrants, I believe it actually showcased the problem 
with this provision:
---------------------------------------------------------------------------
    \11\ The USA Patriot Act of 2001: Hearing Before the United States 
Senate Select Committee on Intelligence, 109th Cong. (2005) (testimony 
of Attorney General Alberto Gonzales).
---------------------------------------------------------------------------
    In this case, the Justice Department obtained a delayed-notice 
search warrant for a Federal Express package that contained counterfeit 
credit cards. At the time of the search, it was very important not to 
disclose the existence of the federal investigation, as this would have 
exposed a related Title III wiretap that was ongoing for major drug 
trafficking activities.
    An organized crime/drug enforcement task force, which included 
agents from the DEA, the IRS, the Pittsburgh Police Department and 
other state and local agencies was engaged in a multi-year 
investigation that resulted in the indictment of the largest drug 
trafficking organization ever prosecuted in the Western District of 
Pennsylvania.
    While the drug trafficking investigation was ongoing, it became 
clear that several leaders of the drug trafficking conspiracy had ties 
to an ongoing credit card fraud operation. An investigation into the 
credit card fraud was undertaken and a search was made of a Federal 
Express package that contained fraudulent credit cards.
    Had notice of the Federal Express search tied to the credit card 
fraud investigation been immediately given, it could have revealed the 
ongoing drug trafficking investigation prematurely, and the drug 
trafficking investigation might have been seriously jeopardized. Even 
modest delay would not have been available if this provision of Section 
213 were deleted.
    I would urge the Members of the Subcommittee to question the 
Attorney General at more length about this example.
    First, I think it notable that this case does not involve terrorism 
at all. Although the Justice Department continues to argue that those 
of us who voted for the PATRIOT Act knew full well that this was an 
omnibus crime measure, not just a terrorism bill, I think that is 
disingenuous. Attorney General Ashcroft was quite clear in his 
admonitions that delay on passage of the PATRIOT Act would lay the 
blame for any future terrorist attack on our heads. Yet, as we saw in 
the Justice Department's field report on the use of section 213, 
released in September 2004, it appears that the government is using 
delayed-notification search warrants primarily in criminal cases.\12\
---------------------------------------------------------------------------
    \12\ Department of Justice, Delayed Notification Search Warrants: A 
Vital and Time-Honored Tool For Fighting Crime, Sept. 2004.
---------------------------------------------------------------------------
    Second, I do not see how this example bolsters the case for 
retaining the catch-all definition of ``adverse result'' for sneak and 
peek warrants. Could the agents in this case have made a solid argument 
that notice of the search would have resulted in the destruction of 
evidence, flight from prosecution, or intimidation of persons or 
witnesses? If so, they could still have obtained a delay under more 
exacting rules. If not, what did they believe would be the result of 
providing notice?
    Fixing this failing in section 213 is not difficult. The SAFE Act, 
in both the Senate and the House, would remove the catch-all provision. 
I urge the Subcommittee to support this modest improvement to the 
PATRIOT Act.
    Finally, I would note the increasing use of sneak and peek 
searches. One of the primary reasons we insisted on including sunset 
provisions in the PATRIOT Act was out of fear that by breaking down 
checks and balances on government authority, we would encourage 
``mission creep'' and the use of these broadened authorities in 
contexts far afield from counter-terrorism.
    And, while I acknowledge the Justice Department's argument that the 
use of delayed-notification search warrants only represents a small 
fraction of the tangible searches conducted by federal authorities 
annually, I fear my concerns are not assuaged. Sneak and peek warrants 
are inherently problematic. They do not give you a chance to examine 
the warrant before execution for mistakes or to challenge it.
    While I think anyone knowledgeable about the practical nature of 
law enforcement, criminal investigation and counter-terrorism can 
contemplate the need for this special power under very special 
circumstances, the PATRIOT Act really threatens to make what should be 
an extraordinary power an ordinary power. And for that reason, I ask 
you to support at least the modest changes to the language of the law 
embodied in the SAFE Act.
    Additionally, I would note the there is incomplete information 
about how this power has been used. We know it has been used at least 
155 times as of this January. What we do not know, and what the 
government isn't telling the Judiciary Committee or the American 
people, is:

          how many times section 213 has been used in terrorism 
        cases, as opposed to more ordinary crimes;

          how many times it has been used against citizens, 
        versus foreign suspects;

          how many times the secret warrants have led to 
        prosecutions or convictions and how many of those were in 
        terrorism cases; and

          what happens to the contents of such secret searches 
        (taking photos of people's homes, copies of their computers or 
        their even their DNA samples) if no charges are brought.

    I will now turn briefly to the other sections that are a subject of 
this hearing.
    Section 223, which provides a civil remedy for victims of unlawful 
government surveillance, is a common-sense privacy protection measure 
and should be renewed. However, victims of secret surveillance abuse 
will often not know of such abuse and, as a result, the usefulness of 
section 223 is limited. Nevertheless, while it may be rare for an 
innocent person to discover they have been the victims of unlawful 
government surveillance, in such cases there should be a remedy, and 
section 223 provides one. It should be made permanent.
    Sections 201 and 202 of the PATRIOT Act added new terrorism-related 
crimes to the list of criminal wiretapping predicates under Title III. 
While any expansion of federal wiretapping powers must give small 
government conservatives some pause, I personally regard these 
provisions of the PATRIOT Act as mainly beneficial to law enforcement 
and not unduly intrusive on the privacy of the American people. Title 
III requires a court order from a regular federal district court based 
on probable cause of crime, the time-honored Fourth Amendment standard 
that is lacking in surveillance orders approved by the special court 
that administers the Foreign Intelligence Surveillance Act (FISA). As a 
result, Title III surveillance is much less susceptible to abuse than 
FISA surveillance. The new wiretapping predicates listed in sections 
201 and 202 are serious federal crimes. In my personal opinion, 
Congress should make sections 201 and 202 permanent.
    I look forward to your questions. Thank you.

    Mr. Coble. I thank all of the Members.
    Now, folks, we apply the 5-minute rule to ourselves as 
well, so if you all could keep your responses as tersely as 
possible, that way we can cover more ground.
    And, Mr. Sullivan--strike that.
    We have been joined by the distinguished gentleman from 
California. Dan, good to have you with us. No one else is here.
    Mr. Sullivan, if section 201 of the USA PATRIOT Act is 
allowed to expire, is it true that criminal investigators could 
obtain a court-ordered wiretap to investigate mail fraud and 
obscenity offenses on the one hand, but not offenses involving 
weapons of mass destruction? Is that correct?
    Mr. Sullivan. That's a correct statement, Mr. Chairman.
    Mr. Coble. That was a rhetorical question. I thought that 
was right. Do you want to elaborate just a minute on it?
    Mr. Sullivan. Well, certainly. Congress essentially has 
provided a number of predicate offenses in which electronic 
surveillance would be allowed. The circumstances of section 201 
included offenses that traditionally terrorists have used prior 
to the passage of section 201, and the Government was not 
permitted to essentially use electronic surveillance for those 
particular offenses.
    Mr. Coble. Thank you, sir.
    Mr. Barr, your distinguished tenure as U.S. Attorney in 
Georgia, at any time did you or any of your assistants file an 
application for a delayed notification of a search warrant?
    Mr. Barr. I don't recall specifically, Mr. Chairman. It 
wouldn't surprise me if there were circumstances such as many 
of those very appropriate examples laid out in the former--the 
current Attorney General's testimony and the report submitted 
to the Congress. It wouldn't surprise me if my office did under 
such circumstances as those. I don't specifically recall any 
instances, Mr. Chairman.
    Mr. Coble. I thank you.
    Mr. Rosenberg, section 213 requires that notice be given to 
those against whom a search warrant was executed within a 
reasonable amount of time. Now I've known that as few days as 
7, and I think 180 at one point. Comment what, in your opinion, 
is reasonable and how oftentimes a judge might come to that 
conclusion.
    Mr. Rosenberg. Thank you Mr. Chairman for the question. 
That is a very fact-specific inquiry.
    In every case we go to the judge, and we ask her for what 
we believe we need in a particular investigation, whether it's 
drugs or mob or child pornography. So 7 days may well be all we 
need in a particular case, and all we get. In another case it 
may be 3 weeks or 2 months. And so each time we will go to the 
judge and attempt to demonstrate not just probable cause for 
the search, but reasonable cause for the delay based on the 
facts and circumstances.
    Mr. Coble. I thank you.
    Ms. Mac Donald, I am told--and I have not seen it--but I am 
told that the ACLU has run a television advertisement claiming 
that section 213 of the USA PATRIOT Act allows law enforcement 
to search homes, ``without notifying us.'' Now, are you 
familiar with that ad?
    Ms. Mac Donald. Well, that sounds very similar to a written 
copy that they produced soon after the PATRIOT Act was passed.
    Mr. Coble. And if, in fact, that was disseminated, I 
believe that would be an inaccurate description of section 213; 
would it not?
    Ms. Mac Donald. It's a classic example, Chairman, of the 
strategies used against the act to rewrite it, to amend the 
statute by saying--ignoring the fact that a judge has to 
approve delayed notice, and the fact that notice is only 
delayed, it is not a permanent condition that the Government is 
asking for.
    Mr. Coble. I thank you.
    Bob, I think I have one--time for one more question.
    In your testimony, Mr. Barr, you briefly mention that you 
support making permanent sections 201 and 202, and 223 of the 
PATRIOT Act. Explain to us why you are comfortable with that 
position.
    Mr. Barr. Thank you, Mr. Chairman.
    With regard to section 201 and 202, which simply add new or 
added new terrorism-related requirements to the list of 
criminal wiretapping predicates under title III, I think, the 
offenses that have been and would continue to be included if 
that provision is extended are appropriate.
    We also understand, of course, as this Committee does, that 
title III includes within its provisions many safeguards on the 
extent to which and the way in which a title III wiretap, so to 
speak, is carried out. So there are plenty of safeguards in the 
statute already.
    Section 223, which provides a civil remedy for victims of 
unlawful Government surveillance, I think, is a common-sense 
privacy measure that should be renewed. And I think there is 
also--Congress acted correctly initially. We've looked at 
those, I'm sure the Subcommittee and the full Committee will 
look carefully at them, and we have no problem with those being 
reauthorized.
    Mr. Coble. Thank you. My time has expired.
    The gentleman from Virginia.
    Mr. Scott. Thank you.
    Ms. Mac Donald, I was intrigued with your use of the word 
``propaganda'' because we've been having some trouble trying to 
get some straight answers from some of the other witnesses, and 
there is exaggeration of some of the provisions. We haven't 
discussed this provision today, but the FISA wiretaps and some 
of the expanded powers under the Foreign Intelligence 
Surveillance Act, everybody comes and testifies without 
exception about the use in terrorism, terrorism, terrorism. And 
it is almost like pulling teeth to try to get them to 
acknowledge that FISA is not just terrorism; in fact, it can be 
used even if crimes are not involved, if it's involving generic 
foreign intelligence, conduct of foreign affairs.
    And when you talk about hiding the judge, they say, yes, 
but we have to get probable cause. And then you say, probable 
cause of what? You don't have to find probable cause of a 
crime, just probable cause that the person you're starting the 
wiretap with is an agent of a foreign government. There doesn't 
have to be any crimes involved.
    So I agree with you that there is a lot of misinformation, 
and I appreciate your testimony today.
    Let me ask you a specific question. You indicated, I think, 
that you could not have one of these secret searches where the 
delay is permanent, where it is an indefinite secret; is that 
your testimony? Did the Attorney General say that six of the 
secret searches were authorized by a court to be secret 
indefinitely?
    Ms. Mac Donald. I'm not aware of that. There are 
possibilities for continuing delay; but again, that is a fact-
based determination, and I think that----
    Mr. Scott. It could be permanent, you may never know. You 
may never know.
    Ms. Mac Donald. In a completely hypothetical scenario, I 
suppose, if you have an ongoing investigation----
    Mr. Scott. Let's ask Mr. Rosenberg. Any cases where the 
search--where the court has authorized an indefinite secret?
    Mr. Rosenberg. To my knowledge, Mr. Scott, if you're 
talking about delayed notice searches apart from FISA, notice 
is always given, always. Now, the investigation may run a long 
time----
    Mr. Scott. Indefinitely.
    Mr. Rosenberg. Well, no, not indefinitely, a long time. And 
at the end of that time----
    Mr. Scott. You're not aware of any cases where the court 
has authorized an indefinite secret?
    Mr. Rosenberg. Well, let me say it this way: At the end of 
the investigation, notice will be given. Now, there may be a 
case----
    Mr. Scott. Or, as a matter of fact, the end of the war on 
terrorism. That's when enemy combatants get out of jail.
    Mr. Rosenberg. There may be a case where a judge leaves it 
open and requires the assistant United States attorney to come 
back, and often we do. Often we come back and ask for 
permission again.
    Mr. Scott. Well, we will get more specific information on 
these six cases.
    Mr. Rosenberg, when you use the word ``judge,'' are you 
using United States district court judge and United States 
magistrate interchangeably?
    Mr. Rosenberg. Yes, sir.
    Mr. Scott. Okay. When you go to get one of these warrants, 
does the U.S. Attorney or an assistant U.S. Attorney go, or 
does the FBI go by itself?
    Mr. Rosenberg. That practice will vary. In the Eastern 
District of Virginia, where I was an assistant U.S. Attorney, 
both in Norfolk and Alexandria, the practice was typically--and 
I believe in Alexandria all the time--for the assistant U.S. 
Attorney to accompany the agent to the magistrate judge's 
chambers when the warrant was sworn out.
    Mr. Scott. In the normal search you have some checks and 
balances. You have to announce so the person being searched has 
an opportunity to contest it. If it is overly broad, they can 
comment on that, and if it's out of bounds, they can--you're 
subject to the exclusionary rule. If you have several searches, 
and only one of them produces any evidence, what is the 
sanction against not notifying those for whom you're not using 
evidence?
    Mr. Rosenberg. Well, let me just pick at one part of the 
premise. Delayed notification searches are normal searches, 
they just have delayed notice. But in all cases, Mr. Scott, in 
all cases, if there is a criminal proceeding--and often there 
is at the end--then the subject of the search can challenge it 
in all the ways----
    Mr. Scott. If there is no criminal proceeding, if you 
didn't find anything in the search----
    Mr. Rosenberg. Then, for instance, under rule 41 of the 
Federal Rules of Criminal Procedure, the subject of the search 
can move for the return of his property.
    Mr. Scott. If there is nothing to return. Well, they don't 
know, if you didn't let them know.
    Mr. Rosenberg. But you do let them know. You always let 
them know.
    Mr. Scott. What is the sanction for not letting them know?
    Mr. Rosenberg. You mean for willfully violating a Federal 
rule of criminal procedure? I'm not an expert here, but I 
imagine there would be some civil remedy.
    Mr. Scott. For evidence that is excluded in court under the 
exclusionary rule which suggests that some violation occurred, 
are you aware of any police officer or prosecutor that has ever 
been prosecuted for the illegal search, other than being 
embarrassed with the exclusionary rule?
    Mr. Rosenberg. Not all bad searches are illegal searches, 
sir; some bad searches are made in good faith, and evidence is 
suppressed even though there is no illegality.
    Mr. Scott. If you have a bad search and don't notify them, 
what is the sanction?
    Mr. Rosenberg. You do notify them; you notify in all cases.
    Mr. Scott. But there is no sanction if you don't.
    Mr. Rosenberg. Again, if you don't notify--if you willfully 
violate the Federal Rules of Criminal Procedure, Mr. Scott, 
then I would imagine at the end--it hasn't happened to me, I 
have never willfully violated the rules of criminal procedures 
as a prosecutor--that there would be a remedy for the subject 
of the search.
    Mr. Coble. The gentleman's time has expired. The 
gentleman--in order of appearance, the gentleman from Ohio Mr. 
Chabot is recognized for 5 minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I want to thank you 
for holding this important hearing.
    I want to first join my colleagues in welcoming former 
Congressman Bob Barr; we are very interested in his testimony. 
We may not agree with everything, as we didn't necessarily 
agree on this Committee all the time, but it was an honor to 
serve with Congressman Barr here. And we sat next to each other 
for about 8 years on this Committee and on the full Judiciary 
Committee and went through all kinds of things together, from 
impeaching Presidents to debating about whether or not we ought 
to put cameras in the Federal courtrooms, and a whole range of 
other issues.
    So it's great to have you back today, Bob. Bob, we wish you 
best in the future as well. I would like to see you back up 
here someday if the cards are right.
    Let me, if I can, turn to you at this point Ms. Mac Donald. 
And Mr. Scott was cross-examining you there with some questions 
and things, and because of time, oftentimes witnesses don't get 
a chance to respond to the extent that they might like to. If 
there are any additional responses that you might like to make 
to any of the points that my friend was making, I would be 
happy to give you that time now.
    Ms. Mac Donald. Well, I think, again, we need to understand 
that these are members of the Federal judiciary who have been 
sworn to uphold the Constitution that are ruling on whether 
delay is reasonable in a particular search. And again, this is 
after already having found probable cause to conduct the search 
in the first place.
    There is a second step that the judge has to go through in 
approving a delayed notice search, which is, is there grounds, 
certain exigent circumstances that make delay reasonable, such 
as witness intimidation or obstruction of evidence.
    It seems to me we have to assume that the checks and 
balances that the Founders provided in setting up the 
Constitution in the first place, the most important of which is 
judicial review, will work in this situation. I don't 
understand how you can possibly conduct a preemptive 
investigation, whether it's a criminal investigation or a 
terror investigation, without a delayed notice capacity. It is 
logically impossible to preemptively investigate either a crime 
or terrorism and notify the subjects of the search.
    Mr. Chabot. Thank you.
    Let me ask you another question. The Knoxville News 
Sentinel in Tennessee reported that during the jury 
deliberation process in the case of Hafiz and Torres-Luna that 
ultimately found the two men not guilty of cocaine possession 
and distribution, as well as multiple Federal firearm 
violations, the jury posed a PATRIOT Act-related question to 
the judge. The question asked, if the defendants were being 
tried under the PATRIOT Act--in a handwritten note to the judge 
added that the PATRIOT Act had been ruled unconstitutional in 
four States and several municipalities. Judge Leon Jordan 
responded simply, ``no''. Could you comment on that story?
    Ms. Mac Donald. That's classic. You found a classic 
example. The ACLU and other groups have done a bang-up job of 
getting misunderstanding out there. Everybody thinks they're 
under PATRIOT Act investigations. They think the war in 
Afghanistan is being conducted under PATRIOT Act powers.
    The PATRIOT Act was a narrow act designed for one thing and 
one thing only, intelligence. It acknowledged the fact that our 
only weapon against terrorist is intelligence. We cannot 
target-harden our way into safety.
    And so when it comes to bringing surveillance powers into 
the 21st century, acknowledging the existence of cell phones 
and e-mail, the PATRIOT Act does that, tearing down the wall 
that prevented two FBI agents on the same al Qaeda squad from 
talking to each other, the PATRIOT Act tore down that wall. It 
is narrow; it is not something that is affecting the entire 
country. And again, if there had been abuses under this act, 
believe me, Congressman, we would have heard about it.
    Mr. Chabot. And that's what I wanted to get into with the 
little time I have remaining. I know, Mr. Rosenberg, I think, 
Mr. Sullivan, you also indicated, that there weren't any 
examples of PATRIOT Act abuse, and not a single example of 
abuse of civil rights and that sort of thing, and I've heard 
that before.
    Bob, do you have any cases or are there any examples that 
you've heard that you would believe that would counter that? 
What would be your response to that?
    Mr. Barr. It's, of course, very difficult to say, Mr. 
Chabot. For one thing, section 213 searches are conducted in 
secret, so it's very difficult to know what abuses there might 
have been, if any. So it's virtually impossible, at least until 
the end of these investigations when--and I certainly take the 
Department of Justice at its word, that at the end of the 
investigations, everybody will be notified. The problem is, Mr. 
Chabot, we know for a fact, according to the Attorney General's 
testimony, that in at least I believe six of the instances in 
which the Government allows that it has sought the section 213 
authority to conduct a search without notice, that the delayed 
notice has gone on indefinitely. So it's virtually impossible 
to say, Mr. Chabot.
    We do know there have been some examples of noticeless 
searches such as that, even though it was not conducted under 
section 213, the problems that manifest themselves are the 
same, the Mayfield case out in Oregon. And I don't want to get 
into a big discussion of that, but that was simply a case in 
which there was a noticeless search that turned out to be 
problematic.
    So I think one can reasonably state that there have been 
problems, the extent of which, the magnitude of which it is 
impossible to say at this still relatively early stage in the 
exercise of section 213 powers.
    Mr. Chabot. Could I ask for unanimous consent for 1 
additional minute, if I could, just to ask for a response?
    Mr. Coble. I'll do that, but we're going to have a second 
round as we go.
    Mr. Chabot. If I could have 1 minute, I would appreciate 
it.
    Mr. Coble. All right.
    Mr. Chabot. Would any of the witnesses like to respond to 
the response about allegations and the secret cases and things?
    Ms. Mac Donald. I would like to respond to the Mayfield 
case, because I know it has been raised before. The Mayfield 
case was not an abuse of the PATRIOT Act. The problem was there 
were fingerprints; the FBI misread the fingerprints. But it's--
the use of the PATRIOT Act were completely valid. And this was, 
after all, a terrorism investigation. Let's remember the 
context. This was after the Madrid train bombing, and the FBI 
had evidence that led them to Mr. Mayfield. Unfortunately they 
read their prints wrong. It had nothing to do with abuse of the 
PATRIOT Act.
    Mr. Chabot. Thank you very much. Yield back.
    Mr. Coble. The Chair now recognizes Mr. Sullivan's personal 
Congressman, Mr. Delahunt.
    Mr. Delahunt. That's right, I am his Congressman.
    Ms. Mac Donald, I think that Mr. Barr's observation that 
access to information is very problematic in terms of reaching 
a conclusion as to whether there has been problems or abuse--
you know, you referenced earlier the--I think it was 1968 and 
J. Edgar Hoover and the FBI having transformed itself.
    [10:58 a.m.]
    Mr. Delahunt. I beg to differ. I think it has transformed 
itself recently. But one can point to numerous abuses during 
the 1970's and the 1980's and the 1990's. I know Mr. Sullivan 
is familiar with what occurred in the Boston office of the FBI, 
as am I.
    You know, you talk about secrecy in Government or distrust, 
if you will, of secrecy in Government. I would suggest it is 
healthy. It is really, if you will, reflective of the Founders' 
concerns about Government. It really led to the Bill of Rights. 
I think that Mr. Barr would probably concur with that. So I can 
assure you--I sat on a Committee that was examining the conduct 
of the Boston office of the FBI; to secure information from the 
executive branch of Government was extremely difficult. We do 
not know what is occurring, and I say Congress does not really 
know. And I am not suggesting any individual is in any way 
withholding information. It is just, if you will, I presume 
that the natural tensions that exist between the branches. But 
the problem is, is secrecy in Government.
    You know, the American people are reading that there is a 
huge increase in the number of classified documents on a yearly 
basis. You know, the gentleman that is responsible for archives 
and the keeping of that information has publicly expressed 
concern. So notice and transparency, you know, is important in 
terms of accountability. We are all held to be accountable. I 
hope that there are very few abuses. I mean, I think you say 
you cannot cite a single example. Well, we do not know.
    And I guess, let me direct this question to Mr. Barr, 
because he served in Congress, and he is familiar with the 
relationship between the branches. And I have to tell you 
something, I think we have had a series of very informative 
hearings under the leadership of Chairman Coble relative to the 
PATRIOT Act, but I am becoming more and more inclined to not 
make permanent any particular provision that will sunset. In 
fact, I would go a step further, because I would entertain and, 
possibly when the time comes, seek to amend to make the entire 
PATRIOT Act subject to sunset. I do not know how many years. 
But I have no doubt that it would encourage cooperation by the 
executive branch and enhance accountability to the American 
public.
    And I would--Bob, what is your--former Congressman Barr, 
what is your take on my observations?
    Mr. Barr. Well, it is a view that I share and I think the 
true conservatives share as well. And I am somewhat mystified 
why a lot of my former colleagues and your current colleagues 
are so afraid of a sunset provision.
    Particularly those of us who are conservative about many 
issues understand the need for oversight, as you have 
eloquently expressed it, and we also know that the realities 
are that if, generally speaking, if Congress does not have to 
do something, it will not. And this is a case in point. I do 
not think that we would be here today, I do not think that 
these hearings would be convened at this point in time were it 
not for the sunset provisions. It is a very, very important 
provision that liberals and conservatives alike ought to 
embrace.
    Mr. Coble. I thank the gentleman.
    The distinguished gentleman from California. If you will 
suspend just a minute.
    Let me say to my friend from Massachusetts, the other day, 
you may recall I indicated that I am not uncomfortable 
conceptually with sunsets; it gives us a chance to come back 
and reexamine it. But I would say this--and this would be over 
my pay grade I am sure--but I would like for us subsequently 
to, when we examine sunsets, I would like for it to be at the 
end of a Congress rather than in the first early weeks as the 
case has been now. We have been jumping through hoops, as you 
all know, for the past 2 months.
    The gentleman from California.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Thank you, members of the panel, for appearing before us.
    Mr. Barr, I happen to think oversight is extremely 
important. That is why I have made the observation more than 
once that Congress cannot do appropriate oversight just meeting 
Tuesday through Thursday. That is above our pay grade here, but 
I mean that honestly. Congress ought to reorganize itself so 
that we are here 5 days a week. This Chairman is working very 
hard to do it, but the compression of time with Committees and 
Subcommittees where, basically, part of Tuesday and Wednesday 
is the only time you have got to meet together I do not think 
gives us proper time for reflection. And that is just an 
observation I have had after being gone from this place for 16 
years.
    Mr. Rosenberg, Mr. Barr has said that ``secret searches,'' 
of American homes and businesses must not be allowed to become 
routine; they must be closely circumscribed. I happen to agree 
with him on that. However you characterize it--but one way the 
Government can justify delayed notice search warrants is 
through--well, the ways they can are articulated specifically 
in the statute. But one of those is number five: Notification 
would cause serious jeopardy to an investigation or unduly 
delay a trial. That has been criticized as being a catch-all 
phrase that leads to delayed notice being issued in run-of-the-
mill cases. How would you respond to that characterization?
    Mr. Rosenberg. Mr. Lungren, by the way, I believe, too, 
that we should be carefully circumscribed and scrutinized in 
the way that we use this power. Having said that, I do not see 
that as a catch-all provision. As a career prosecutor, I can 
tell you that most of the time that we use a delayed notice 
search--and, again, we only use it in two out of every thousand 
searches or so--it is because notifying the subject of the 
search prematurely is going to essentially end, upset, or 
jeopardize the investigation. And just to be clear: We need to 
go to a judge, a magistrate judge or a Federal judge, and 
demonstrate that to her satisfaction.
    So you may call it a catch-all provision--not you 
personally. Others may call it a catch-all provision, but it is 
not. It is really the part of the statute that we rely on most 
often, at least the plurality of the time, that we are seeking 
this authority, because that is the way we do our business. We 
have investigations, and as they play out, we like to see who 
else is involved, who the conspirators are, who they are 
talking to, who they are selling to. And if we bring it down 
too fast, we jeopardize that.
    Mr. Lungren. I know we have had this in the law for some 
period of time. We want to make sure it applies to terrorist 
cases. And it has been my observation that we do have the 
presence of so-called sleeper cells in the United States who we 
have evidence not only have been here for days, months, but 
years, which would suggest an investigation of people involved 
in that might take more than a few days. And in his written 
testimony, Congressman Barr stated that section 213 sets no 
limits on the length of time notice of search warrants 
execution may be delayed.
    But isn't it true, Mr. Rosenberg, Ms. MacDonald, that the 
judge would set the time? The judge sets the time? And that if, 
at the end of that time, you need more time, you have to go 
back?
    Mr. Rosenberg. That is exactly right, sir. The judge would 
set that time based upon our application. We would have to 
demonstrate what we needed and why we needed it.
    Mr. Lungren. What about Mr. Barr's suggestion that 7 days 
would be a reasonable time, at least to start the process 
going?
    Mr. Rosenberg. He is right in some cases, 7 days may be all 
we need in some cases. But it is clearly not all we need in 
certain cases. And so I believe the way the law is written now 
gives us the flexibility and the judge the necessary oversight 
to set a reasonable amount of time.
    Mr. Lungren. Now, let me mention, in the letter that we 
received from the Justice Department, they talked about one of 
the cases that was involved with the U.S. Attorney in the 
Southern District of Illinois sought and received approval to 
delay notification based on the fifth category of adverse 
result. The length of the delay granted by the court was 7 
days. Notification could not be made within 7 days, and the 
office was required to seek 31 extensions. The office was able 
to do that. Why is that a problem?
    Mr. Rosenberg. Well, it is a problem only in the following 
sense: Every time we go back--and we go back often for many 
things--but every time we go back, we are not doing something 
else. We have a finite pool of resources; we can spend it in 
any number of ways. In this case, the judge gave us 7-day 
increments.
    Mr. Lungren. Thirty-one times.
    Mr. Rosenberg. Thirty-one times. But that is 31 
applications, 31 times that the agent comes down to the 
courthouse to swear out the warrant; 31 times that an assistant 
U.S. Attorney is not doing something else.
    Mr. Lungren. Let me ask Mr. Barr to follow up on that and 
then ask you to respond because my time will be up.
    Congressman Barr, here you have a situation where they went 
31 times, each time getting 7 days. Doesn't that seem a little 
silly? Or do you think that is appropriate because what we are 
doing is we are protecting constitutional rights, and 
therefore, we ought to extend that? And my second question is, 
is it the 7 days that you support, or is it some statutorily 
specified time that could be longer than 7 days?
    Mr. Barr. I do not think there is anything magical about 7 
days, Mr. Lungren. I do think it is important that there be a 
requirement on the Government such as in the SAFE Act that I 
and a number of others are supporting. For extensions, we 
believe that is entirely appropriate. I do think, though, that 
if the Government is forced to go back to the court on a 
regular basis, and if it is 7 days, then it is 7 days. And my 
experience as a U.S. attorney, that sort of thing was never a 
problem. Yes, does it take a few minutes of time? Absolutely. 
But those are procedures that are, generally speaking, fairly 
routine to both the assistant U.S. attorneys and the 
investigators.
    Mr. Lungren. Would 21 days or 30 days be appropriate under 
your concept?
    Mr. Barr. I think 21 days could be. And that is the 
provision that is provided in the SAFE Act which is pending in 
the other body in the Senate version.
    Mr. Lungren. Ms. MacDonald?
    Ms. MacDonald. Well, Mr. Barr reminded us of the 
constitutional history of warrants and warrants for searches 
perfectly appropriately.
    And of course, Mr. Delahunt, we need to preserve the 
constitutional framework for our Government. I believe the 
PATRIOT Act does that. But let us remember that the fourth 
amendment itself speaks in terms of reasonableness. It 
prohibits only unreasonable searches. It does not itself try to 
codify that with numerical terms. So judges, their very 
profession is involved in reading broad grants of authority 
like the Constitution gives them. So I think that the wording 
of the current section 213, which says you may delay notice for 
a reasonable period of time, is fully within the constitutional 
tradition and allows judges to make that fact, specific 
determination for each preemptive investigation.
    Mr. Coble. The gentleman's time has expired.
    Mr. Rosenberg, I noticed that you referred to judges in the 
feminine gender. I do not want any of these male judges to 
accuse you of discrimination. Hopefully, that will not happen.
    Mr. Rosenberg. I have a daughter at home who is going to 
make sure I do it just that way.
    Mr. Coble. Very well.
    Folks, in view of my allergy infirmity, I am going to rest 
my vocal cords, and let Mr. Scott start the second round.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Barr, if you give the notice late, if you violate the 
law, if you had 7 days to do it and you turned in the evidence, 
turned in the report a couple of days or a couple of weeks 
late, but you are not going to use the evidence, is there any 
sanction?
    Mr. Barr. Currently, no, the law provides none.
    Mr. Scott. Now, when we start trusting people, we have to 
put it in the context that this Administration in prior 
testimony on enemy combatants suggested that you could arrest 
an American citizen and hold them indefinitely without charges 
until the end of the conflict, which sounds like until the end 
of the war on terrorism, which certainly violates what most of 
us thought the Constitution would have required.
    So let me ask you, Mr. Barr, another question. On the 
question of Mohammed Atta's computer, are there provisions in 
the law right now without the catch-all provision that would 
have allowed someone to get to his computer? Or would you have 
to rewrite the catch-all provision to be able to allow the 
search of his computer on a delayed notice?
    Mr. Barr. I think, Mr. Scott, that if you look at the 
language of the exception, the adverse result, which is found 
in 18 U.S.C. 2705, clearly, and I think this is evident in the 
various examples of how delayed notice or notice-less searches 
have been used that have been provided by the Department of 
Justice and by the Attorney General. The categories that we are 
talking about here, endangering the life or physical safety, 
flight from prosecution, destruction of or tampering with 
evidence, or intimidation of potential witnesses are extremely 
broad. And I went through the list of examples that the 
Department has cited, and I would be hard pressed as a former 
prosecutor using one's imagination within the bounds of the law 
not to find an appropriate basis even in those four exceptions 
to the general rule to take into account the situation that 
would have been faced or would be faced in a Mohammed Atta 
situation.
    And it is also important, I think, to emphasize, Mr. Scott, 
that the SAFE Act, which is simply one vehicle now currently 
pending before both houses of the Congress to correct this 
deficiency, clearly, clearly lays out a scenario and 
appropriate basis on which that very situation could and should 
be addressed.
    Mr. Scott. Thank you.
    Now, Mr. Barr, in your testimony, you ask several questions 
about what we know about the use of section 213. And I am going 
to ask Mr. Rosenberg, do you know how many times section 213 
has been used in the 155 cases? How many of those were 
terrorist cases? How many we used against U.S. citizens? How 
many times the secret warrants have actually led to 
prosecutions? And how many of those were terrorism cases? And 
what happens to the contents of such searches if no charges are 
brought? I assume you cannot answer those off the top of your 
head.
    Mr. Rosenberg. I cannot answer all of those off the top of 
my head.
    Mr. Scott. If you could provide us with that information.
    Mr. Rosenberg. I think I can answer part of that, though, 
Mr. Scott. I do not know how it breaks down between terrorism 
cases and perhaps what I would call the more ordinary criminal 
cases. But my impression, and again, having been an assistant 
U.S. attorney for so long, that most of the time that we use a 
delayed notification search it would be in the drug context or 
perhaps the fraud context. Now, some of those may also be 
terrorism-related. I would be happy to get back to you, though, 
sir, with all the specifics or at least as many as we can 
muster.
    Mr. Scott. Well, if you are having a drug investigation, 
any search is going to, ``seriously jeopardize an 
investigation, or unduly delay a trial,'' any drug 
investigation would qualify for that.
    Mr. Rosenberg. Not necessarily. Not if you are at the end 
of the investigation and you are doing a search and making an 
arrest simultaneously.
    Mr. Scott. If you are investigating drugs in a major city, 
that is going to be, it seems to me, an ongoing operation.
    Mr. Rosenberg. Often it is. But, again, if you are at the 
end, you could certainly in theory and in practice search and 
arrest, notify then, and bring the whole thing down.
    Mr. Scott. Would you agree to a more comprehensive report 
on the use of section 213 and have more meaningful limits on 
the length of the delays for notification?
    Mr. Rosenberg. I know we are happy to look at anything that 
the Committee proposes. I do not have the authority to commit 
the Department of Justice to anything right now.
    Mr. Scott. You cannot blame me for trying.
    Mr. Coble. I thank the gentleman from Virginia.
    The gentleman from California, Mr. Lungren, is recognized 
for 5 minutes.
    Mr. Lungren. Thank you very much, Mr. Chairman.
    Mr. Rosenberg, I would like to go back to the question of 
the fifth basis for allowing a delayed notification, quote, 
unquote, criticized by some as the catch-all phrase. Mr. Barr 
in his testimony specifically claims that law enforcement could 
claim that immediate notice of search would seriously 
jeopardize an investigation in many and perhaps most cases, in 
other words, not requiring you to be put to the test on the 
previous three or four, where you have to show specifically how 
it is done. Can you respond to that in some detail? And what I 
mean by that is, this architecture of the law has been there 
for some period of time prior to the PATRIOT Act. It has been 
utilized on numerous occasions in the past. From your 
standpoint, do you recognize the potential abuse there? Is this 
just something that sort of is overblown? I mean, do you 
understand why some people are concerned? And how do you 
specifically respond to that? That is, if you have those 
previous three or four, I guess it is four that you can talk 
about, how come you need this one?
    Mr. Rosenberg. It is a very fair question, and I appreciate 
the opportunity to address it. Remember, sir, we always have a 
filter on this, a very important filter, a Federal judge. And 
so it might be the case--and, again, I am speaking 
hypothetically now--where we do not know of a specific person 
whose life is endangered or we do not know of concrete evidence 
that we are going to lose or that will be destroyed. And so 
there is that more general provision that allows us to 
demonstrate, we hope, to a judge and have him or her authorize 
the delay under the fifth provision. But we have to go to a 
judge, and we have to demonstrate probable cause for the search 
and reasonable cause for the delay. And so you always have this 
filter. And that is the most important thing I can say today: 
We have to go to a judge, and we have to show a fact-specific 
reason to invoke one of these exceptions. Now, sometimes, we 
will invoke two or three in the same case. Lawyers often plead 
in the alternative. It is common. And we will say we think we 
may endanger the life of a witness; and if we lose that 
witness, it would seriously jeopardize the investigation. They 
can both be true at the same time. But we will lay out all the 
facts of a particular case and ask the judge to make that 
determination for us. We are not doing it ourselves.
    Mr. Lungren. Mr. Barr, I would love to have you respond to 
that, because it just strikes me that we have had this 
architecture for some years used in obscenity cases, drug 
cases, organized crime cases. Now, we are having it apply in 
terrorist cases. And while I share your concern that we ought 
not to let the terrorists succeed by having them cause us to 
tear up our Constitution in addition to or as opposed to 
tearing up our physical structure, that we are faced with a 
very, very serious threat that is out there. And because of the 
vastness of the threat and the almost sort of new intelligence 
that we are receiving and trying to understand this threat, 
that that fifth category may be more appropriate in terrorist 
cases than some of these other cases. And so I just ask you for 
your response to that. Is your criticism that the four previous 
categories are sufficient to cause specificity of evidence to 
be presented before the judge such that he or she could make an 
intelligent decision so that the fifth one is not necessary? 
And is that what your sense of catch-all phrase is?
    Mr. Barr. I do not have any problem, Mr. Lungren, with a 
fifth category. And that is why, for example, in the SAFE Act 
currently pending before the House and the Senate, it clearly 
provides that where there could be a serious endangerment of 
the national security by giving contemporaneous notice, the 
Government can seek or can apply for delayed notification. That 
is entirely appropriate. I think that clearly reflects the new 
world in which we are operating. I think it is a very broad 
authority for the Government, but yet it places a burden on the 
Government for more than some bureaucratic reason which unduly 
delaying a trial provides. I think unduly delaying a trial as 
the basis for not providing notice which has been, since long 
before our Constitution, one of the bases of privacy in our 
country and freedom in our country, is clearly not sufficient. 
And even if one assumes, as the Government is saying, they have 
had no abuses of this, especially as a conservative, I have a 
problem with the Government having that sort of broad authority 
because it can be abused very easily.
    Mr. Lungren. So am I. With all due respect, does that mean 
you do not want us to get rid of the fifth category, or are you 
just saying that we have to be particularly observant of that 
fifth category?
    Mr. Barr. I think it needs to be that--and I do believe, 
even with the Government's explanation of the circumstances 
under which the category is seriously jeopardizing an 
investigation or unduly delaying a trial, clearly indicates it 
has become sort of a catch-all. You put it in along with those 
others in case the others do not----
    Mr. Lungren. But you are raising that as a concern. You are 
not saying we need to----
    Mr. Barr. I think--I believe that, in order to be 
consistent with sound constitutional principles, the current 
category five needs to be removed. I would propose replacing it 
with one that is more specifically tailored to national 
security concerns.
    Mr. Lungren. Okay.
    Mr. Rosenberg, is the Candyman case relevant to this 
discussion at all?
    Mr. Rosenberg. I believe it is. You are referring to an 
investigation in which we had notice that a car I believe 
bearing some 30,000 ecstasy tablets was going across the 
Canadian border. It was stopped in Buffalo. And, using delayed 
notification search authority--meaning probable cause and 
reasonable cause for delay--we searched the car, allowed the 
investigation to continue, took very dangerous drugs off the 
street and, ultimately, rounded up a whole bunch of other drug 
conspirators. And we did that under the fifth so-called catch-
all--a phrase that I reject--exception that you find in section 
2705.
    In other words, had we had to take that whole case down 
there and then in Buffalo, okay, we would have still succeeded 
in removing those ecstasy tablets from the street, but we would 
not have been able to follow the trail of that investigation to 
other conspirators.
    Mr. Lungren. Was that in part because you did not know the 
extent of where the investigation would take you at that point 
in time, and that is why the fifth category was appropriate? I 
am trying to figure out why the fifth category is necessary and 
under what circumstances.
    Mr. Rosenberg. Well, that is exactly right. At the 
beginning of an investigation, you often do not know where the 
trail will lead. You are surprised many times by the twists and 
turns that it takes. And I know that you have a background in 
law enforcement. You do not always know who is involved or to 
what extent or where they live. And so allowing an 
investigation to run, not seriously jeopardizing it, enables us 
to learn the extent of the conspiracy and, in this case, to get 
other drugs and other conspirators off the street.
    Mr. Coble. Thank you. The gentleman's time has expired.
    The gentleman from Massachusetts.
    Mr. Delahunt. I would frame it in larger terms. I think, 
Congressman Barr, I think you are absolutely correct in terms 
of I do not think there is anybody that wants to endanger 
national security, and I do not think we will, because I think 
that we have that as a priority.
    Yet, at the same time, we have concerns given our history, 
given this natural inclination to distrust Government. That is 
why a lot of folks ended up here on this continent. But I would 
suggest that there is a crisis of confidence in the justice 
system. You know, Ms. MacDonald describes it as a campaign of 
misinformation, and in part, it could very well be. But it is 
this whole issue of secrecy and transparency and need for 
accountability and, again, not just to Congress, but to the 
American people. And I know that is difficult to balance. I am 
thinking beyond the PATRIOT Act. And I would address this to 
the U.S. Attorney.
    We have a case in my congressional district in Quincy, 
Massachusetts, the Ptech case, where a firm was subject to a 
lawful search, and records were seized. The U.S. Attorney 
issued a statement saying there is an ongoing investigation. 
There was a lot of publicity surrounding the search itself, not 
as a result of anything that the U.S. Attorney's Office was 
responsible for, but for other reasons. People are wondering, 
what happened? That search occurred, was it some 2.5 years ago 
now? I think we have got to communicate with the American 
public that after an event like that occurs and we hear nothing 
anymore, there has to be some sort of an accounting if we are 
going to restore confidence in the system itself.
    Mike, would you have any comments about the Ptech case?
    Mr. Sullivan. Well, I certainly appreciate your concerns, 
Mr. Delahunt. And this is a case that is 2.5 years old. And, 
unfortunately, the fact that this matter was under 
investigation did somehow get leaked to the media. And this is 
an instance, quite candidly, where I think the investigation 
and the company would have benefited by far less public 
scrutiny during the early stages. We took great pains to notify 
them of our authority to conduct a search warrant and took 
great pains to schedule the search warrant. We were not 
concerned that the documents at that point in time somehow 
could be secreted away, to do it late at night. Unfortunately, 
the fact that the search warrant was going to be executed was 
leaked. And that is how the media and the public ended up 
getting information regarding Ptech. I only made a public 
statement after it became public information to reassure the 
public that there was no reason for public fear at that point 
in time because of the nature of the investigation.
    But I do agree that, once a matter has become public, it is 
in the interest of the public to communicate when that matter 
has been resolved. Unfortunately, some of these cases do take 
years to reach final resolution.
    Mr. Delahunt. Well, again, and I respect your actions in 
the case. But it is 2.5 years at this point in time. Do you 
need any kind of authority to make a public statement 
indicating that this investigation has concluded--and I do not 
want to use the term exonerate--but concluded and there is no 
further action? I mean, I think we owe this to the 50-some odd 
employees who lost their jobs as a result of the publicity 
surrounding this particular case and give them, if you will, 
their reputations back. That, again, I am not in any way 
suggesting that the company's demise and the tarnished 
reputations was a result of your actions, but it occurred. And 
we have got to let the public know at some point in time 
whether there is anything there, or if there is not, remove the 
cloud. Do you need any kind of further authorization? Do you 
have the authority now to do it internally? Because I think it 
is very important. I use this just as an example, but I am sure 
that this example could be replicated all over the country in 
terms of communicating to the people. It goes to the issue of 
transparency and accountability.
    Mr. Sullivan. I believe the U.S. Attorney's Offices across 
the country have the unilateral authority to make those public 
statements at the point in time where they feel confident that 
they can make those public statements.
    Mr. Delahunt. Well, again, this goes to 2.5 years. I do not 
want to focus in on a particular case, but 2.5 years, it goes 
to the issue I think that you heard caused Mr. Scott concern 
about indefiniteness. There comes a point in time when the 
Government at a moment in time has to fish or cut bait.
    Mr. Rosenberg, you are shaking your head. I want to know 
why you are shaking your head.
    Mr. Rosenberg. I am shaking my head, yes, because I think 
it is a fair point. You mentioned earlier that distrust is 
healthy, Congressman. I agree with you; skepticism is healthy. 
And one of the ways in which the Government oversees what we do 
is both through the judges that review and sign or reject our 
warrants and through hearings like this where you ask hard 
questions and, hopefully, we give fathomable answers.
    Mr. Delahunt. But if I can indulge an additional minute, 
Mr. Chairman.
    But in the end, the American people are going to be the 
arbiters in terms of the integrity of the system. And when 
there is left hanging there clouds, then that erodes. It isn't 
just about, if you will, the people that are, if you will, the 
victims of improper publicity or leaks, but it is the integrity 
of the system. People are saying, what is happening? You know, 
whether it be there or--recently I was watching, I don't know, 
60 Minutes or something on Sunday, and there is somebody with a 
new book out about most of the detainees in Guantanamo happened 
to be there at the wrong time at the wrong place. It does not 
help America's image abroad, and it certainly erodes the 
confidence of the American public in terms of the integrity of 
the justice system. They do not make a distinction between 
military investigators and the FBI. People do not necessarily 
make those kind of distinctions. So it is very important, 
because I would suggest, if we are going to have a healthy 
democracy, you know, one that we all feel comfortable with, you 
know, transparency is important, balanced, obviously, with our 
need for secrecy in terms of enhancing our national security.
    Mr. Coble. The gentleman's time has expired.
    Folks this has been a good hearing. I again apologize to 
each and every one of you for my hacking and coughing. I know 
it sounded annoying, but I had no control over it. I will waive 
my second round of questions.
    Let me just say this in summing up: Is the PATRIOT Act a 
perfect piece of legislation? No. But I do not think it is as 
onerous and unreasonable as some folks believe. But much of 
this is subject to interpretation. Many of us on this 
Subcommittee disagree from time to time, but we usually 
disagree agreeably. And we are going to get to the end of this 
row one of these days. And, for your information--I want to 
mention this--again, I want to thank you all for being here. In 
order to ensure a full record and adequate consideration of 
this important issue, the record will be left open for 
additional submissions for 7 days. Also, any written questions 
from any Member must also be submitted to you all within that 
same 7-day timeframe.
    This concludes the oversight hearing on the implementation 
of the USA PATRIOT Act, sections 201, 202, 213 and 223--strike 
that. Not 213, because it does not sunset--201, 202, 223 of the 
Act that addresses criminal wiretaps and section 213 of the Act 
that addresses delayed notice. Thank you for your cooperation. 
The Subcommittee stands adjourned.
    [Whereupon, at 11:34 a.m., the Subcommittee was adjourned.]


                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

 Prepared Statement of the Honorable Robert C. Scott, a Representative 
      in Congress from the State of Virginia, and Ranking Member, 
        Subcommittee on Crime, Terrorism, and Homeland Security



  Letter from the Honorable William E. Moschella, Assistant Attorney 
   General, U.S. Department of Justice to the Honorable Arlen Specter



 Report from the Office of the Inspector General entitled ``Report to 
 Congress on Implementation of Section 1001 of the USA PATRIOT Act,'' 
                             March 11, 2005



 Report from the U.S. Department of Justice entitled ``Delayed Notice 
 Search Warrants: A Vital and Time-Honored Tool for Fighting Crime,'' 
                             September 2004




  Letter from the Honorable William E. Moschella, Assistant Attorney 
   General, U.S. Department of Justice to the Honorable Howard Coble




   Article submitted by Heather Mac Donald, John M. Olin Fellow, The 
 Manhattan Institute for Policy Research, entitled ``Straight Talk on 
            Homeland Security,'' City Journal (Summer 2003)




                                 
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