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



       MATERIAL WITNESS PROVISIONS OF THE CRIMINAL CODE, AND THE 
   IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 505 THAT ADDRESSES 
NATIONAL SECURITY LETTERS, AND SECTION 804 THAT ADDRESSES JURISDICTION 
            OVER CRIMES COMMITTED AT U.S. FACILITIES ABROAD

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

                                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 26, 2005

                               __________

                           Serial No. 109-19

                               __________

         Printed for the use of the Committee on the Judiciary


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


                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
21-396                      WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                       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, General Counsel-Chief of Staff
               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 26, 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

Mr. Chuck Rosenberg, Chief of Staff, Office of the Deputy 
  Attorney General, U.S. Department of Justice
  Oral Testimony.................................................     5
  Prepared Statement.............................................     6
Mr. Matthew Berry, Counselor to the Assistant Attorney General, 
  Office of Legal Policy, U.S. Department of Justice
  Oral Testimony.................................................     9
  Prepared Statement.............................................    12
Mr. Gregory Nojeim, acting Director of the Washington Legislative 
  Office, American Civil Liberties Union
  Oral Testimony.................................................    21
  Prepared Statement.............................................    22
Mr. Shayana Kadidal, Staff Attorney, Center for Constitutional 
  Rights
  Oral Testimony.................................................    39
  Prepared Statement.............................................    42

                                APPENDIX
               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................    79
Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California........    79

 
       MATERIAL WITNESS PROVISIONS OF THE CRIMINAL CODE, AND THE 
   IMPLEMENTATION OF THE USA PATRIOT ACT: SECTION 505 THAT ADDRESSES 
NATIONAL SECURITY LETTERS, AND SECTION 804 THAT ADDRESSES JURISDICTION 
            OVER CRIMES COMMITTED AT U.S. FACILITIES ABROAD

                              ----------                              


                         THURSDAY, MAY 26, 2005

                  House of Representatives,
                  Subcommittee on Crime, Terrorism,
                              and Homeland Security
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommitee met, pursuant to notice, at 9:34 p.m., in 
Room 2141, Rayburn House Office Building, the Honorable Howard 
Coble (Chair of the Subcommittee) presiding.
    Mr. Coble. Good morning, ladies and gentlemen. Today the 
Subcommittee on Crime, Terrorism, and Homeland Security will 
conduct a hearing--in fact, at the request of our Democrat 
Members--to review two PATRIOT Act provisions concerning 
national security letters and extraterritorial jurisdiction, 
and one issue unrelated to the PATRIOT Act, which is the 
material witness law.
    Section 505 of the PATRIOT Act amended the authority to use 
NSLs, or national security letters. A national security letter, 
as you all perhaps know, is an administrative subpoena that can 
be used in international counter-terrorism and foreign counter-
intelligence investigations.
    Prior to the PATRIOT Act, an FBI agent, who authorized an 
issuance of an NSL, had to certify that there were specific and 
articulable facts giving reason to believe that the information 
sought pertains to a foreign power or an agent of a foreign 
power.
    The USA PATRIOT Act changed this to allow for certification 
that the NSL is sought for foreign counter intelligence purpose 
to protect against international terrorism and clandestine 
intelligence activities.
    This is consistent with the Supreme Court's ruling on the 
issuance and purpose of administration subpoenas.
    While this section does not sunset, a district court found 
that the underlying law that authorized NSLs violated the 
fourth and first amendments.
    The court's decision found no fault with the amended 
language from the PATRIOT Act per se, but rather by pre-
existing provisions of the statute.
    First, the court found that the statute was unclear as to 
whether the recipient of an NSL could consult with an attorney 
without violating the prohibition on disclosure for such a 
request.
    Second, the statute contained no explicit provision for the 
Government to seek judicial enforcement.
    And third, there was no provision imposing penalties 
against a person who fails to comply with an NSL.
    The court found that H.R. 3179, a bill you may recall that 
was introduced in the last session by Chairman Sensenbrenner, 
would have addressed two of the issues listed above by 
explicitly providing for judicial enforcement of NSLs and by 
imposing penalties of up to 5 years in imprisonment for persons 
who unlawfully disclose that they had received an NSL.
    The second issue we're here to discuss today is section 804 
of the PATRIOT Act, which extends extraterritorial jurisdiction 
beyond military personnel and military contractors to other 
Federal agency employees and contractors.
    The third issue for today's hearing is not a PATRIOT Act 
provision. The longstanding material witness law was codified 
under title 18 of the U.S. Code, section 3144. The authority to 
detain and depose a material witness has existed for decades. 
Basically, the law provides that when a judge determines that 
an affidavit filed by a party proves that the testimony of a 
person is material in a criminal proceeding and the person's 
appearance cannot be secured, the judge then may authorize a 
warrant for detaining that person until testimony can be 
provided or that the person can be deposed.
    Now, we all look forward to the testimony from the 
witnesses today, and now I am pleased to recognize the 
distinguished gentleman from Virginia, the Ranking Member of 
this Subcommittee, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman, and I am pleased to 
join you in convening this hearing on sections 505, 804 of the 
PATRIOT Act, and the material witness provisions codified in 
sections 3144 and 3142 of title 18.
    I'd also like to personally thank you and Chairman 
Sensenbrenner for acquiescing to the minority's request to hold 
a hearing on these three topics.
    While none of the authorities included in the scope of 
today's hearing are scheduled to expire at the end of the year, 
like other parts of the PATRIOT Act, the Department's 
aggressive use and extraordinary power, particularly contained 
within section 505 of the PATRIOT Act, and the material witness 
statute, warrant today's additional hearing.
    The material witness statute was originally enacted with 
the sole purpose of guaranteeing the testimony of a witness 
during a grand jury or other criminal proceeding. Yet, since 
September 11, this authority has been routinely used as a 
pretextual investigatory arrest and detention of dozens of 
terrorist suspects.
    And the arrest of Brandon Mayfield serves as a classic 
example.
    As you recall, he was wrongly arrested and detained for 
over 2 weeks last year while the Government investigated his 
suspected involvement in the 2004 train bombing in Spain.
    Now, we know that Mr. Mayfield's arrest and 2-week 
detention as a material witness was pretextual because not long 
afterwards, Federal agents candidly told reporters that he was 
arrested simply to prevent him from fleeing while authorities 
built a case against him. In other words, the Federal agents 
freely admitted using the material witness statute to make an 
end run around the fourth amendment barring the arrest or 
detention of an individual without probable cause of criminal 
activity.
    Hopefully, we can all agree that something must be done to 
end this unconstitutional and abusive practice.
    Now, in section 505, the Department's increasing use of 
national security letters raises different, but equally 
important, concerns.
    Under section 505, the Federal Government can secretly 
obtain certain confidential communication and financial records 
provided the Government maintains that the need of such records 
is relevant to an ongoing intelligence or international 
terrorism investigation.
    The inherent problems associated with this new authority 
are numerous.
    First, records sought under this provision don't have to 
pertain to a foreign power or an agent of a foreign power, 
thus, the confidentiality of records of countless innocent 
Americans can routinely get caught up in such requests.
    Second, instead of requiring the approval of a senior 
official at FBI headquarters, section 505 authorizes the 
release of such letters at the whim of a special agent in 
charge who is located somewhere in a local FBI office.
    Third, national security letters are subject to the gag 
rule, which prevents the recipient from disclosing its receipt, 
and, therefore, questioning whether it's appropriate.
    Finally, the issuance of such letters is accomplished 
without any judicial supervision or checks and balances 
whatsoever. Admittedly, with regard to these latter two points, 
a recent decision by a Federal court in Doe v. Ashcroft may 
have adequately addressed these concerns, but as I understand 
it, the case is currently on appeal, and, therefore, additional 
legislation may still be warranted.
    So, Mr. Chairman, I look forward to the testimony of our 
witnesses on how these extraordinary powers are being used and 
how we can best provide the necessary checks and balances our 
system calls for and working with you to implement those 
changes. Thank you.
    Mr. Coble. I thank you, Mr. Scott.
    Gentlemen, it's the practice of the Subcommittee to swear 
all witnesses appearing before us, so if each of you would 
please rise and raise your right hand.
    [Witnesses sworn.]
    Mr. Coble. You may be seated. Let the record show that each 
of the witnesses answered in the affirmative.
    We have a very distinguished panel today, ladies and 
gentlemen. Our first witness is Mr. Chuck Rosenberg, Chief of 
Staff to Deputy Attorney General James B. Comey. Prior to 
introducing Mr. Rosenberg, I'd like to thank him for appearing 
before us for I believe a second time--Mr. Rosenberg--in this 
series of hearings on the USA PATRIOT Act.
    Mr. Rosenberg previously served as counselor to Attorney 
General, John Ashcroft, and before that was counsel to FBI 
Director Mueller.
    Prior to joining the FBI, Mr. Rosenberg was an Assistant 
U.S. Attorney, and he is an alumnus of Tufts University, 
Harvard University, and the University of Virginia School of 
Law.
    Our second witness is Mr. Matthew Berry, Counselor to the 
Assistant Attorney General for the Office of Legal Policy at 
the Department of Justice.
    Prior to serving in his current capacity, Mr. Berry served 
as an attorney advisor in the Office of Legal Counsel. 
Additionally, Mr. Berry worked as a visiting assistant 
professor at William and Mary School of Law, and clerked for 
U.S. Supreme Court Justice Clarence Thomas and the Honorable 
Lawrence Silberman of the U.S. Court of Appeals for the 
District of Columbia Circuit.
    Mr. Berry is a graduate of the Dartmouth College and the 
Yale School of Law.
    Our third witness today is Mr. Gregory Nojeim, Acting 
Director of the Washington Legislative Office of the American 
Civil Liberties Union. I also want to thank Mr. Nojeim for 
joining us I believe as well for a second time, Mr. Nojeim, in 
this series of hearings on the USA PATRIOT Act.
    Prior to joining the ACLU, Mr. Nojeim served as Director of 
Legal Services of the American Arab Anti-Discrimination 
Committee. Previously, he worked as an attorney with the 
Washington D.C. law firm Kirkpatrick and Lockhart, where he 
specialized in mergers and acquisitions, securities law, and 
international trade.
    He is a graduate of the University of Rochester and the 
University of Virginia School of Law.
    Our final witness today is Mr. Shayana Kadidal. Am I close, 
Mr. Kadidado? Pardon. Kadidal--who is Staff Attorney at the 
Center for Constitutional Rights.
    As Staff Attorney, Mr. Kadidal works on a wide variety of 
issues, including military jurisdiction, post-9/11 immigration 
litigation, racial discrimination in employment and the first 
amendment.
    Previously, he worked as counsel to a variety of high tech 
start-up and hedge fund clients. Mr. Kadidal clerked for the 
Honorable Kermit Lipez of the U.S. Court of Appeals for the 
First Circuit. He is a graduate of Duke University and the Yale 
Law School.
    Gentleman, as you all have been previously advised, we 
operate under the 5-minute rule here. We impose that rule to 
you all, but we impose it to ourselves as well. So when you see 
the red light appear on that panel, that is your warning, your 
not so subtle warning, that your 5 minutes have elapsed. You'll 
have an amber light that will tell you that you have a minute 
remaining. Mr. Rosenberg, if you will start us off.

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

    Mr. Rosenberg. Chairman Coble and Ranking Member Scott, 
thank you very much for holding these hearings and for giving 
me the opportunity to testify today. I will be brief.
    Material witness warrant authority, Mr. Chairman, as you 
noted, is longstanding. It was codified many years ago. The 
recent incarnation of the statute, 18 U.S.C. 3144, was enacted 
in 1984. The predecessor statute, almost identical, enacted in 
1966.
    The material warrant is an ordinary tool, as a Federal 
prosecutor one that I used myself and one that Federal 
prosecutors and agents use all the time throughout the country 
in good faith, scrupulously, and closely adhering to the 
Constitution.
    A warrant would be issued upon application to a Federal 
judge and not on the sole authority of a prosecutor or an 
agent. And that application would have to establish probable 
cause to believe that the testimony of a witness is material 
and that it would be impracticable to secure that witness's 
testimony by subpoena, in other words that you need to have 
this witness. You really need this witness. The testimony is 
material and the Federal judge so finds.
    Now, if detained or if arrested as a material witness, Mr. 
Chairman, that witness, nevertheless, still has certain and 
numerous important rights: for instance, to be represented by 
an attorney. And, if the witness cannot afford an attorney, 
under 18 U.S.C. 3006(a), a witness is appointed--excuse me an 
attorney is appointed for the witness.
    As well, that witness would have the right, through his or 
her attorney, to challenge that detention under the authority 
of the Bail Reform Act, 18 U.S.C. 3142.
    A hearing pursuant to that Bail Reform Act, Mr. Chairman, 
would demonstrate that there are either conditions upon which 
that witness can be released pending a grand jury appearance or 
that that witness would need to be detained because there is no 
condition or a combination of conditions which would assure his 
or her appearance.
    But, in short, this is an ordinary tool that's used 
throughout the country, but always in adherence to the 
Constitution and always--and this is so important--always with 
the oversight of a Federal judge who has to determine that that 
probable cause exists in the first place.
    And so, while it's not a PATRIOT Act provision, and you're 
quite right to note that, I do want to tell you in my opening 
statement and later in response to questions how we use it, why 
we use it, and why we need it. I thank you for the opportunity 
to testify.
    [The prepared statement of Mr. Rosenberg follows:]
                 Prepared Statement of Chuck Rosenberg



    Mr. Coble. Mr. Rosenberg, I think you have established a 
record. You did it in less than 3 minutes
    Mr. Rosenberg. Well, I wanted to be invited back a third 
time, Mr. Chairman.
    Mr. Coble. Very well. All right, sir. Mr. Berry, you're 
recognized.

TESTIMONY OF MATTHEW BERRY, COUNSELOR TO THE ASSISTANT ATTORNEY 
  GENERAL, OFFICE OF LEGAL POLICY, U.S. DEPARTMENT OF JUSTICE

    Mr. Berry. Chairman Coble, Ranking Member Scott, Members of 
the Subcommittee. It is a pleasure to appear before you today.
    The Subcommittee's work in conducting oversight of the 
Department's use of the PATRIOT Act has been exemplary. Your 
series of hearings has allowed us the opportunity to explain 
how we have utilized the Act to protect the safety of the 
American people in a manner consistent with the preservation of 
civil liberties.
    The Department strongly believes that the record 
established in these hearings demonstrates the need for 
Congress to reauthorize those provisions of the Act that are 
currently scheduled to sunset, and we look forward with you to 
working on accomplishing this goal.
    My written testimony today, however, discusses two 
provisions of the Act that are not scheduled to sunset, 
sections 505 and 804. And in my oral statement today, I will 
focus only on section 505, which relates to national security 
letters or NSLs.
    NSLs, as the Chairman indicated, are similar to 
administrative subpoenas, and, as is the case with other types 
of subpoenas, an NSL merely constitutes a request for the 
production of information.
    If the recipient of an NSL declines to produce this 
information, the FBI's only recourse is to turn to a Federal 
court for an enforcement order. We can't just go in and seize 
the records.
    The FBI's authority to issue NSLs preceded the PATRIOT Act 
by many years. Section 505 of the Act simply revised the 
standards governing their issuance. Section 505, in particular, 
amended three NSL statutes.
    The first allows the FBI to obtain subscriber information 
and other records from a wire or electronic communications 
service provider, such as a telephone company.
    The second allows the FBI to obtain financial records from 
financial institutions, and the third allows the FBI to obtain 
specified data from consumer reporting agencies.
    The information acquired through NSLs is extremely valuable 
to national security investigations. Pursuing and disrupting 
terrorist plots often requires the FBI to seek information 
relating to the electronic communications of particular 
individuals. Likewise, tracking the movement of funds through 
financial institutions is often essential to identifying and 
locating those supporting or engaging in terrorist operations.
    Unfortunately, however, NSLs were of limited utility prior 
to the PATRIOT Act. While records held by third parties may 
generally be subpoenaed by a grand jury in a criminal 
investigation so long as those records are relevant, the 
standard for obtaining such records through an NSL was much 
higher before October of 2001.
    The FBI had to have specific and articulable facts that the 
information requested pertained to a foreign power or an agent 
of a foreign power. This requirement often prohibited the FBI 
from using NSLs to develop evidence at the early stages of an 
investigation, which is precisely when they are the most 
useful.
    The prior standard, Mr. Chairman, put the cart before the 
horse. Agents trying to determine whether or not there were 
specific and articulable facts that a certain individual was a 
terrorist or spy were precluded from using an NSL in this 
inquiry because, in order to use an NSL, they first had to be 
in possession of such facts.
    Suppose, for example, investigators were tracking a known 
al-Qaeda operative and saw him having lunch with three 
individuals. A responsible agent would want to conduct a 
preliminary investigation of those individuals and find out, 
among other things, with whom they had recently been in 
communication.
    Before the passage of the PATRIOT Act, however, the FBI 
could not have issued an NSL to obtain such information. While 
investigators could have demonstrated that this information was 
relevant to an ongoing terrorism investigation, they could not 
have demonstrated sufficient specific, and articulable facts 
that the individuals in question were agents of a foreign 
power.
    Thankfully, however, section 505 of the USA PATRIOT Act 
corrected this problem. In the last three and a half years, 
section 505 has proven to be of enormous benefit to the 
Department in national security investigations. While the 
details regarding the Department's use of NSLs necessarily 
remain classified, information obtained through NSLs has 
significantly advanced numerous sensitive terrorism and 
espionage investigations and has assisted the FBI in 
discovering links to previously unknown terrorist operatives.
    I'm aware that some on this Subcommittee have expressed 
concerns about NSLs and have suggested modifying the statutes 
authorizing their use. One bill, for example, would forbid the 
FBI from using NSLs to obtain information from libraries and 
would sunset section 505 at the end of this year.
    The Department believes that both of these ideas are 
seriously flawed and should be rejected.
    To the extent that libraries function as wire or electronic 
communication service providers, they should be treated the 
same as all such providers. The record before the Subcommittee 
clearly demonstrates that terrorists use libraries to access 
the Internet.
    For example, information provided to this Subcommittee last 
month strongly suggests that the 9/11 hijackers used two public 
libraries in the United States prior to their attacks. Given 
this evidence, it simply does not make any sense to say that 
NSLs should be used to obtain information from any wire or 
electronic communications service provider other than a 
library.
    Returning to the pre USA PATRIOT Act standard for NSLs by 
sunsetting section 505 would also be a serious mistake. As I 
explained earlier, the previous standard denied the FBI 
relevant information in terrorism and espionage investigations. 
Allowing section 505 to expire would impede the FBI's ability 
to conduct effective terrorism and espionage investigations and 
risks harm to the safety and security of the American people.
    In closing, I would like to thank the Subcommittee for 
inviting me to appear before you today, and I look forward to 
answering your questions.
    [The prepared statement of Mr. Berry follows:]
                  Prepared Statement of Matthew Berry




    Mr. Coble. Thank you, Mr. Berry. And you beat the 5-minute 
mark as well.
    Mr. Berry. Thank you.
    Mr. Coble. The pressure is on, Mr. Nojeim. Good to have you 
with us, sir.

TESTIMONY OF GREGORY NOJEIM, ACTING DIRECTOR OF THE WASHINGTON 
       LEGISLATIVE OFFICE, AMERICAN CIVIL LIBERTIES UNION

    Mr. Nojeim. Thank you, Mr. Chairman, Ranking Member Scott, 
and Mr. Nadler.
    It's a pleasure to be testifying before you on behalf of 
the ACLU about national security letters and the material 
witness statute.
    I'll first discuss section 505 of the PATRIOT Act, which 
expanded national security letters, and which does not sunset, 
as other witnesses have noted, but that raises some of the same 
concerns as does section 215 of the PATRIOT Act, which does 
sunset and has some of the same civil liberties problems.
    I'll then discuss the material witness statute, which the 
PATRIOT Act did not alter.
    Section 505 of the PATRIOT Act expanded national security 
letter authority to allow the FBI to issue a letter compelling 
Internet service providers, financial institutions, and 
consumer credit reporting agencies to produce records about 
people who use or benefit from their services.
    This power was later expanded to include the records of car 
dealers, boat dealers, jewelry dealers, real estate 
professionals, pawn brokers, and others.
    In the case of both NSLs and section 215, the PATRIOT Act 
removed from the law the requirement that the records being 
produced pertained to an agent of a foreign power; that is, a 
foreign country, foreign business, or a foreign terrorist 
organization. This significantly expanded law enforcement 
access to records pertaining to Americans.
    And this is not, as Mr. Rosenberg indicated--I'm sorry as, 
Mr. Berry indicated, putting the cart before the horse in an 
investigation. The records that are accessible are very 
sensitive. The agent of a foreign power standard puts the cart 
right where it belongs, behind the horse, because it ought to 
be the case that before those records are accessed, there ought 
to be some suspicion about the person to whom the records 
relate.
    The NSL statutes do not require that the recipient of a 
letter can challenge it--do not require notice that the 
recipient of a letter can challenge it in court. They indicate 
that the recipient can tell no one that the recipient has 
received an NSL, including any attorney with whom they might 
like to consult.
    In common parlance, the recipient is gagged. And under the 
statutory language, the gag stays in place forever.
    We do not ask that you repeal section 505. Rather, we ask 
that you restore the agent of a foreign power requirement and 
that you amend the statute to time limit the gag, exempt 
attorney-client communications from it, and allow for court 
challenges.
    If these changes are made to the NSL statues, they would 
likely satisfy the court that struck down as unconstitutional 
the statute that applies to NSL's directed at Internet service 
providers.
    We also recommend that you require the Government to report 
publicly about the number of times it uses this power.
    And I'll turn to the material witness statute.
    Your oversight of the Department of Justice's use of the 
material witness law is welcomed. Congress enacted it to enable 
the Government in narrow circumstances to secure the testimony 
of witnesses who might otherwise avoid testifying in a criminal 
proceeding.
    If a court finds that a person has information material to 
a criminal proceeding and is otherwise unlikely to appear, the 
witness can be detained until he testifies or is deposed.
    Since September 11, however, the Department of Justice has 
misused the law for a very different purpose: to incarcerate 
terrorism suspects without public scrutiny and without proving 
to a judge probable cause to believe that the individual has 
committed a crime.
    A large number of these witnesses are never even brought 
before a grand jury or a court to testify.
    To head off the misuse of the material witness statute, we 
suggest that Congress request an investigation by the Inspector 
General on the Department of Justice's use of the material 
witness law since September 11, and renew its request to the 
DOJ to inform Congress of the names, bases, and detention 
details of the material witnesses detained since September 11.
    We also suggest that you amend the material witness statute 
to take a cue from what many of the States have done, They have 
a heightened standard for arresting and detaining a material 
witness. And many States limit the Government's ability to hold 
the witness for a grand jury proceeding or for a trial to a 
specific short period, such as 5 days.
    We also suggest that you require the Government to 
affirmatively inform witnesses of the basis of their detention 
and of their immediate right to a lawyer upon request.
    We're not asking that these law enforcement powers be taken 
away. Rather, we're asking that they be made subject to 
reasonable checks and balances, such as meaningful judicial and 
congressional oversight, meaningful access to counsel, and 
appropriate disclosure to the public of the use of the power. 
Thank you very much.
    [The testimony of Mr . Nojeim follows:]

                Prepared Statement of Gregory T. Nojeim

    Chairman Coble, Ranking Member Scott and Members of the 
Subcommittee:
    I am pleased to appear before you today on behalf of the American 
Civil Liberties Union and its more than 400,000 members, dedicated to 
preserving the principles of the Constitution and Bill of Rights. This 
is an oversight hearing on sections of the USA PATRIOT Act of 2001 
expanding national security letter powers and extraterritorial 
jurisdiction for federal criminal prosecutions,\1\ as well as the very 
important topic of the Justice Department's use of the material witness 
statute.\2\
---------------------------------------------------------------------------
    \1\ Uniting and Strengthening America by Providing Appropriate 
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) 
Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
    \2\ 18 U.S.C. Sec. 3144. The material witness law provides in full:

    GRelease or detention of a material witness.--If it appears from an 
affidavit filed by a party that the testimony of a person is material 
in a criminal proceeding, and if it is shown that it may become 
impracticable to secure the presence of the person by subpoena, a 
judicial officer may order the arrest of the person and treat the 
person in accordance with the provisions of section 3142 of this title. 
No material witness may be detained because of inability to comply with 
any condition of release if the testimony of such witness can 
adequately be secured by deposition, and if further detention is not 
necessary to prevent a failure of justice. Release of a material 
witness may be delayed for a reasonable period of time until the 
deposition of the witness can be taken pursuant to the Federal Rules of 
Criminal Procedure.
    This statement's main focus is on national security letters and 
material witness detention. While these powers are not set to expire at 
the end of the year, their unrestricted use poses a serious threat to 
basic civil liberties and should be the subject of this subcommittee's 
careful scrutiny. The statement also briefly addresses extraterritorial 
jurisdiction.

 SECRET RECORDS SEARCHES WITHOUT JUDICIAL REVIEW, PROBABLE CAUSE OR AN 
            ABILITY TO CHALLENGE: NATIONAL SECURITY LETTERS

    Perhaps no sections of the Patriot Act have become more 
controversial than the sections allowing the government secretly to 
obtain confidential records in national security investigations--
investigations ``to protect against international terrorism or 
clandestine intelligence activities.''
    National security investigations are not limited to gathering 
information about criminal activity. Instead, they are intelligence 
investigations designed to collect information the government decides 
is needed to prevent--``to protect against''--the threat of terrorism 
or espionage. They pose greater risks for civil liberties because they 
potentially involve the secret gathering of information about lawful 
political or religious activities that federal agents believe may be 
relevant to the actions of a foreign government or foreign political 
organization (including a terrorist group).
    The traditional limit on national security investigations is the 
focus on investigating foreign powers or agents of foreign powers. 
Indeed, the ``foreign power'' standard is really the only meaningful 
substantive limit for non-criminal investigations given the astonishing 
breadth of information government officials might decide is needed for 
intelligence reasons. The Patriot Act eliminated this basic limit for 
records searches, including the FBI's power to use a ``national 
security letter'' to obtain some records without any court review at 
all.
    Section 505 of the Patriot Act expanded the FBI's power to obtain 
some records in national security investigations without any court 
review at all. These ``national security letters'' can be used to 
obtain financial records, credit reports, and telephone, Internet and 
other communications billing or transactional records. The letters can 
be issued simply on the FBI's own assertion that they are needed for an 
investigation, and also contain an automatic and permanent 
nondisclosure requirement.
    Although national security letters never required probable cause, 
they did require, prior to the Patriot Act, ``specific and articulable 
facts giving reason to believe'' the records pertain to an ``agent of a 
foreign power.'' The Patriot Act removed that standard.
    As a result, a previously obscure and rarely used power can now be 
used far more widely to obtain many more records of American citizens 
and lawful residents. Because the requirement of individual suspicion 
has been repealed, records powers may now be used to obtain entire 
databases of private information for ``data mining'' purposes--using 
computer software to tag law abiding Americans as terrorist suspects 
based on a computer algorithm.
    In Doe v. Ashcroft, 334 F. Supp. 2d 471 (S.D.N.Y. 2004), a federal 
district court struck down a ``national security letter'' records power 
expanded by the Patriot Act, agreeing with the ACLU that the failure to 
provide any explicit right for a recipient to challenge a national 
security letter search order violated the Fourth Amendment and that the 
automatic secrecy rule violated the First Amendment. The case is now on 
appeal before the United States Court of Appeals for the Second 
Circuit.
    There has been some confusion about whether Doe v. Ashcroft struck 
down a provision of the Patriot Act. In fact, Doe v. Ashcroft struck 
down, in its entirety, 18 U.S.C. Sec. 2709(b), the national security 
letter authority for customer records of communications service 
providers, as amended by section 505(a) of the Patriot Act. The court 
referred repeatedly to the Patriot Act in its opinion. To be clear, the 
court invalidated all of section 505(a) of the Patriot Act. \3\ It is 
simply inaccurate to imply that the court's decision was unrelated to 
the Patriot Act, or that it did not strike down a provision of the 
Patriot Act. If the court's decision is sustained on appeal, section 
505(a) of the Patriot Act will no longer have any force or effect.\4\
---------------------------------------------------------------------------
    \3\ Please see attachment A illustrating precisely what the court 
in Doe v. Ashcroft struck down.
    \4\ While the use of national security letters are secret, the 
press has reported a dramatic increase in the number of letters issued, 
and in the scope of such requests. For example, over the 2003-04 
holiday period, the FBI reportedly obtained the names of over 300,000 
travelers to Las Vegas, despite casinos' deep reluctance to share such 
confidential customer information with the government. It is not clear 
whether the records were obtained in part with a national security 
letter, with the threat of such a letter, or whether the information 
was instead turned over voluntarily or to comply with a subpoena.
---------------------------------------------------------------------------
    National security letters can be used to obtain sensitive records 
relating to the exercise of First Amendment rights. A national security 
letter could be used to monitor use of a computer at a library or 
Internet cafe under the government's theory that providing Internet 
access (even for free) makes an institution a ``communications service 
provider'' under the law.
    While national security letters cannot be issued in an 
investigation of a United States citizen or lawful permanent resident 
if the investigation is based ``solely'' on First Amendment activities, 
this provides little protection. An investigation is rarely, if ever, 
based ``solely'' on any one factor; investigations based in large part, 
but not solely, on constitutionally protected speech or association are 
implicitly allowed. An investigation of a temporary resident can be 
based ``solely'' on First Amendment activities, and such an 
investigation of a foreign visitor may involve obtaining records 
pertaining to a United States citizen. For example, a investigation 
based solely on the First Amendment activities of an international 
student could involve a demand for the confidential records of a 
student political group that includes United States citizens or 
permanent residents.
    The government defends national security letters as analogous to a 
administrative subpoenas, which they point out do not require probable 
cause and can be issued without prior review by a judge. As explained 
above, national security letters are dramatically different from both 
administrative and grand jury subpoenas because they provides no 
explicit right to challenge and contain an automatic, permanent gag 
order that even the Attorney General concedes should be amended to 
ensure it permits conversations with attorneys.
    Moreover, this argument fundamentally misunderstands the difference 
between foreign intelligence investigations, criminal investigations, 
and administrative agency regulation, and the impact of that difference 
on First Amendment freedoms. Foreign intelligence investigations are 
domestic investigations of the activities of foreign governments or 
organizations, including foreign terrorist organizations. Foreign 
intelligence investigations may involve investigation of criminal 
activities, such as espionage or terrorism, but may also involve 
intelligence gathering for foreign policy or other purposes involving 
lawful activities. The guidelines for conducting foreign intelligence 
investigations (including what level of suspicion is required for 
certain intrusive techniques) are classified.
    As Justice Powell, writing for the Supreme Court in a landmark case 
involving intelligence gathering, observed:

        National security cases, moreover, often reflect a convergence 
        of First and Fourth Amendment values not present in cases of 
        `ordinary' crime . . . History abundantly documents the 
        tendency of Government--however benevolent and benign its 
        motives--to view with suspicion those who most fervently 
        dispute its policies. . . .

        The price of lawful public dissent must not be a dread of 
        subjection to an unchecked surveillance power.\5\
---------------------------------------------------------------------------
    \5\ United States v. United States District Court, 407 U.S. 297, 
313-14 (1972).

    Moreover, as a result of section 203 of the Patriot Act, 
information properly obtained in a criminal investigation of terrorism 
(including information obtained with a grand jury subpoena) can be 
freely shared with intelligence agents. National security letters are 
an entirely different, and more intrusive, power--a power for 
intelligence agents to obtain highly personal records unbounded by any 
need to show relevance to any criminal investigation.
    The administration has disclosed little useful information about 
the use of national security letters. For example, in response to 
repeated requests for information about the use of national security 
letters under the Freedom of Information Act, the government has 
responded with page after page of heavily redacted documents that do 
not provide the public with any way to judge how the power is being 
used.\6\
---------------------------------------------------------------------------
    \6\ Please see attachment B, a blacked-out list of NSL requests 
provided to the ACLU in response to a request under FOIA. Even the 
total number of NSLs issued is redacted.
---------------------------------------------------------------------------
    The disclosure of information about how often a different 
controversial intelligence records power (section 215 of the Patriot 
Act) has been used, and the types of records it has been used to 
obtain, calls into serious question the government's longstanding 
position that similar information about the use of national security 
letters is properly kept secret.
    We do not ask that you repeal section 505 of the Patriot Act. 
Rather, we ask that you restore the ``agent of a foreign power'' 
requirement and that you amend the statute to time limit the gag, 
exempt attorney-client communications from it, and allow for court 
challenges. If these changes are made to the NSL statute, they would 
satisfy the court that struck down that statute under the First and the 
Fourth Amendment.
    The SAFE Act (``Security and Freedom Ensured Act,'' H.R. 1526) 
would subject section 505 to the Patriot Act's sunset provision, thus 
restoring the requirement of ``specific and articulable facts giving 
reason to believe'' the records ``pertain to a foreign power or an 
agent of a foreign power'' for national security letters. Restoring 
this requirement is needed to ensure section 505 of the Patriot Act is 
not used to obtain the personal records of ordinary Americans.
    The Senate version of the SAFE Act (S. 737) makes additional 
improvements which should be added to the House version should the SAFE 
Act move forward to committee consideration. S. 737 makes explicit the 
right to file a motion to quash the national security letters because 
they are unreasonable, contrary to law, or seek privileged information. 
The Senate bill also sets standards for a judicially-imposed, temporary 
secrecy order that can be challenged by the recipient of a national 
security letter. Finally, the Senate bill provides a right to notice, 
and an opportunity to challenge, before information from a FISA records 
search or national security letter search can be used in a court 
proceeding.

                   SECRET DETENTION WITHOUT CHARGE: 
               THE MISUSE OF THE MATERIAL WITNESS STATUTE

    This subcommittee's oversight of the Justice Department's use of 
the material witness statute to arrest and detain scores of people 
without charge is long overdue. Since September 11, the abuse of the 
material witness law has thrust many into a world of secret detention, 
secret evidence, and baseless accusations of terrorist links. The 
prolonged incarceration of hundreds of immigrants on routine visa 
violations until cleared by the FBI of presumed terrorist connections 
is well documented.\7\ Less well known is the misuse of the federal 
material witness law to arrest and imprison scores of people--including 
United States citizens--indefinitely without criminal charges.
---------------------------------------------------------------------------
    \7\ American Civil Liberties Union, America's Disappeared: Seeking 
International Justice for Immigrants Detained after September 11 
(January 2004); Human Rights Watch, Presumption of Guilt: Human Rights 
Abuses of Post-September 11 Detainees (August 2002); U.S. Department of 
Justice, Office of the Inspector General (OIG), The September 11 
Detainees: A Review of the Treatment of Aliens Held on Immigration 
Charges in Connection with the Investigation of the September 11 
Attacks (April 2003).
---------------------------------------------------------------------------
    The Justice Department has tried to keep hidden its use of the 
material witness law, refusing to respond to Congressional inquiries 
and keeping courtroom doors closed and material witness cases off court 
dockets. This testimony draws from results of extensive research by the 
ACLU and Human Rights Watch (HRW), which will be released shortly in a 
joint report detailing the experiences of scores of individuals whom 
the federal government arrested as material witnesses in connection 
with its anti-terrorism investigations.
    That report will identify serious, systemic abuses of civil 
liberties that occurred as a direct result of the Justice Department's 
policy of abusing the material witness law for purposes Congress never 
intended, and will make detailed recommendations for corrective action. 
The report is based on interviews, affidavits, and court records of 
scores of individuals who were detained as material witnesses.
    The material witness statute, 18 U.S.C. Sec. 3144, comprises a 
single paragraph that simply states if it appears from an affidavit 
that a witness has testimony that is ``material'' to a ``criminal 
proceeding,'' the witness may be arrested and held ``if it is shown 
that it may become impracticable to secure the presence of the person 
by subpoena.'' A deposition is required, instead of detention, if a 
deposition would ``adequately'' secure testimony and if ``further 
detention is not necessary to prevent a failure of justice.''
    Congress enacted the material witness law to enable the government, 
in narrow circumstances, to secure the testimony of witnesses who might 
otherwise avoid testifying in a criminal proceeding. If a court accepts 
an affidavit that says a person has information ``material'' to a 
criminal proceeding and is otherwise unlikely to appear, the witness 
can be locked up until he testifies or is deposed.
    Since September 11, however, the Department of Justice has misused 
the law for a very different purpose: to secure the indefinite 
incarceration of those it wanted to investigate as possible terrorist 
suspects. This allowed the government to evade public scrutiny and to 
avoid the constitutional protections guaranteed to suspects, including 
probable cause to believe the individual committed a crime and time-
limited detention.
    The report will show that the post-September 11 material witnesses 
were incarcerated for periods ranging from a few days to upwards of a 
year. Many spent at least two months in jail. Witnesses were typically 
held round the clock in solitary confinement, subjected to the harsh 
and degrading high security conditions typically reserved for the most 
dangerous inmates accused or convicted of the most serious crimes. 
Indeed, they were often arrested at gunpoint in front of families and 
neighbors and transported to jail in handcuffs; any time they were 
taken out of their cells they were handcuffed and shackled. They were 
interrogated without counsel about their own alleged wrongdoing.
    While the government has contended that almost all material 
witnesses had useful information, our report will show that a large 
number of witnesses were never brought before a grand jury or court to 
testify. More tellingly, in repeated cases the government has now 
apologized for arresting and incarcerating the ``wrong guy.'' The 
material witnesses were victims of the federal investigators and 
attorneys who were to quick to jump to the wrong conclusions, relying 
on false, unreliable and irrelevant information. By evading the 
probable cause requirement for arrests of suspects, the government made 
numerous mistakes.

          Brandon Mayfield--When armed agents took Brandon 
        Mayfield, a lawyer in Oregon, into custody in May 2004 on the 
        basis of a sealed material witness warrant, a criminal 
        indictment seemed likely to follow. The FBI appeared to believe 
        that Mr. Mayfield--a U.S. citizen, veteran of the U.S. Army and 
        a married father of three--himself was a perpetrator of the 
        bombing because their experts claim to have made a ``100% 
        positive identification'' of Mr. Mayfield's fingerprint as 
        being the print found on a bag of detonators found near the 
        Madrid bombing site. For two weeks, the government held Mr. 
        Mayfield, mostly in maximum security conditions, and urged in 
        closed court proceedings that Mr. Mayfield was involved with 
        the crime. Prosecutors threatened him with capital charges and 
        refered to him as a target in court papers--even though there 
        was no evidence that Mr. Mayfield had traveled to Spain, or 
        otherwise had been out of the country for more than ten years. 
        These logical gaps were explained when three weeks after his 
        arrest, the Spanish government apprehended an Algerian man 
        whose fingerprint accurately matched the print found near the 
        site, after weeks of the Spanish launching protests to the U.S. 
        government that Mr. Mayfield's fingerprint was not a match. The 
        Justice Department has since apologized to Mr. Mayfield and has 
        issued an internal report sharply criticizing the FBI 
        investigation and fingerprint match.

          Al Badr al-Hazmi--In the early morning of September 
        12, 2001, five FBI agents visited the house of Dr. Albader al-
        Hazmi, a medical doctor doing his residency in San Antonio, 
        Texas, who lived with his wife and young children. The 
        government based its arrest of Dr. al-Hazmi on the fact that he 
        shared the last name as one of the hijackers and had been in 
        phone contact months earlier with someone at the Saudi Arabian 
        embassy with the last name ``bin Laden.'' After the government 
        held Dr. al-Hazmi in solitary confinement in Texas and New York 
        for two weeks, and restricted his lawyers' access to him, Dr. 
        al-Hazmi was released without ever testifying. The harrowing 
        experience prompted Dr. al-Hazmi to send his wife and children 
        back to Saudi Arabia. Although he was cleared of any 
        involvement with the September 11 investigation, the government 
        never unsealed his records or apologized to Dr. al-Hazmi.

    These examples demonstrate the pattern of the abuse of the law to 
hold a suspect to make an end-run around establishing probable cause, 
as well as the dangers of circumventing criminal safeguards which 
protect both rights and good government. These cases represent only two 
of a much larger series of mistakes the government made in its secret 
arrests of material witnesses.
    In part, the abuses resulted from an absence of real judicial 
scrutiny. Judicial scrutiny of arrest warrants was frustrated in part 
because the Justice Department sought the arrest of most of the 
witnesses in connection with grand jury investigations--although 
material witness arrests, prior to September 11, had been used very 
rarely in grand jury investigations. Because the government has broad 
powers in grand jury investigations, courts often deferred to the 
government's requests for testimony. Moreover, the government urged 
that witnesses urgently needed to remain detained for national security 
reasons.
    Public proceedings and records of arrests and detentions are 
another criminal justice safeguard that was not available for the post-
September 11 material witnesses. Historically, proceedings about 
whether to detain or release material witnesses--(including proceedings 
involving whether to detain grand jury witnesses--have been public 
under the long-standing American principle that secret arrests are 
odious to a democracy. Yet the Justice Department insisted on 
conducting proceedings behind closed doors and sealing virtually all 
documents connected with the witnesses' arrests and detentions, 
including warrants, affidavits, transcripts, legal briefs, and court 
rulings.
    Although the Justice Department claimed some witnesses preferred 
not to speak publicly, they nevertheless insisted on obtaining orders 
gagging witnesses' attorneys and family members, barring reporters from 
meeting with witnesses, and keeping witnesses off the public docket 
altogether--so as to deny the basic fact of their incarceration. For 
example, Brandon Mayfield's family members and lawyers were gagged, and 
Dr. al-Hazmi's court proceedings were not publicly docketed.
    Grand jury rules required such secrecy, the Justice Department 
maintained, but those rules only prohibit revealing what happens inside 
a grand jury room. Prior to September 11, the Justice Department did 
not insist on secrecy; detention hearings for material witnesses in 
grand jury proceedings were public. Had the proceedings been open, the 
government's mistakes would have come to light far more quickly and the 
witnesses released much sooner.
    While material witnesses (unlike immigration detainees) have a 
right to court-appointed counsel if they cannot afford an attorney, the 
Justice Department prevented attorneys for the material witnesses from 
being able to adequately protect their clients' interests. It often 
refused to give the witnesses or their attorneys a copy of the 
affidavit supporting the arrest, or put constraints on their ability to 
review this crucial document. Some were even restricted from revealing 
the contents of the affidavits to their clients--which made preparing 
an effective response next to impossible.
    Attorneys were not able to protect their clients in other ways, as 
well, most notably while they were interrogated. While calling them 
witnesses, the government clearly viewed most of these individuals as 
suspects. Nevertheless, federal agents often refused to tell them of 
their right to remain silent or to have an attorney present at their 
custodial interrogations; interviewed witnesses without counsel; and 
failed to honor witnesses' requests for an attorney or stop 
interrogations when witnesses did ask for counsel. In many of the cases 
where witnesses later faced criminal charges, the Justice Department 
based the charges on statements the witnesses--including unsworn 
statements made with no attorney present--made during such 
interrogations.
    After weeks and months of detention without charge had passed--in 
some cases without the so-called ``witness'' ever being brought before 
a grand jury--some courts' patience was exhausted. The result varied:

          Many were released, and in more than a dozen cases, 
        the Justice Department apologized for arresting them in the 
        first place;

          Some were charged with criminal offenses unrelated to 
        terrorism (including, in some cases, the offense of allegedly 
        lying to the grand jury or even making false, unsworn 
        statements during interrogations);

          Some non-citizens left the country, either 
        voluntarily or after being ordered deported for immigration 
        violations unrelated to terrorism;

          Two (including one American citizen) were designated 
        ``enemy combatants'' and held in military brigs without 
        charges, trial or access to counsel;

          A small minority were charged with terrorism crimes 
        and were convicted, pled guilty, or continue to await trial.

    Apologies are poor compensation for loss of liberty. Material 
witnesses were often arrested in highly public settings, with little 
chance to clear their name because all substantive proceedings were 
closed. All the information the public learned of these arrests was 
what the government chose to leak. Even after their release, some 
continued to face lasting repercussions to their reputations, 
businesses, families and community lives.
    Because of the serious abuses that have resulted from the material 
witness law, Congress must take action that will ensure that the 
investigation and arrest of persons suspected of having material 
information to an investigation are conducted with regard for the 
rights of all persons in the United States.
    We specifically urge Congress to:

          Request an investigation by the Inspector General on 
        the Department of Justice's use of the material witness law 
        since September 11.

          Renew its request to the Justice Department to inform 
        Congress of the names, basis, and detention details of material 
        witnesses since September 11.

    We also urge Congress to amend the material witness law to:

          Heighten the standard for arresting and detaining a 
        material witness. More than half of the state material witness 
        laws have greater protections for witnesses, permitting such 
        detention only if a witness has refused to guarantee that he or 
        she will appear to testify at a scheduled proceeding.

          Limit the government's ability to hold a witness for 
        a grand jury proceeding or trial to a specific, short period of 
        time, such as five days, that would allow testimony to be taken 
        but would not allow the statute to be abused for other 
        purposes.

    Congress should explicitly recognize rights for material witnesses, 
including: requiring the government to inform witnesses of the basis of 
their detention upon the arrest and providing a copy of the warrant; 
informing witnesses of their immediate right to a lawyer upon arrest; 
providing Miranda-type rights before any interrogation and comply with 
witnesses' requests for lawyers.
    In addition, Congress should also require that material witnesses 
be detained in a separate detention center than criminal suspects and 
defendants and prohibit detention of witnesses in conditions of high 
security unless their specific and personal behavior in detention 
warrants it.

            EXPANDING EXTRATERRITORIAL CRIMINAL JURISDICTION

    Section 804 of the Patriot Act expands the ``special maritime and 
territorial jurisdiction of the United States'' to include a criminal 
offense by or against a United States national committed on the 
premises of any diplomatic, consular, military or other United States 
government mission or entity, or on a residence used for those purposes 
or used by personnel assigned to those missions or entities. Section 
804 could be used as a basis for prosecuting terrorism crimes committed 
abroad, but is not limited to terrorism crimes.
    Section 804 is part of a trend in increased extraterritorial 
application of American law. The federal criminal code now permits 
United States courts to try criminal defendants for a wide variety of 
crimes, including terrorism, war crimes, and other offenses, that are 
committed overseas and over which the federal courts traditionally have 
not had jurisdiction.
    The ACLU does not object to the exercise of extraterritorial 
jurisdiction in cases of terrorism, war crimes, crimes against humanity 
or other grave offenses where there is a legitimate nexus to the United 
States, as is required by section 804. Indeed, the wide array of 
extraterritorial offenses calls into serious doubt any claim by the 
Bush administration that United States district courts are not the 
appropriate forum for terrorism trials.
    For example, the 1998 trial of Al Qaeda terrorists implicated in 
the bombings of United States embassies in Africa resulted in 
convictions even though the crimes occurred overseas, much of the 
evidence had been obtained overseas in areas plagued by civil conflict, 
and much of the evidence involved classified information requiring the 
use of the special procedures of the Classified Information Procedures 
Act.
    While the exercise of extraterritorial jurisdiction could be 
stretched too far, the United States district courts are clearly the 
right forum for the trial of terrorism suspects. The ACLU supports 
efforts by Congress and the Justice Department to bring terrorists to 
justice in the time-honored American way--through a criminal compliant 
alleging terrorism crimes in a federal district court bound by all the 
principles of the Bill of Rights.
    The availability of extraterritorial jurisdiction for a wide array 
of serious crimes, and the successful use of the criminal courts to try 
and convict terrorism suspects in such cases, shows there is no 
reasonable excuse for the government's failure to provide justice in 
the case of so many it is now holding as ``enemy combatants'' without 
trial. It also calls into serious doubt the need for inadequate and 
second-class substitutes for a full and fair trial, such as the 
``military commissions'' the department of defense has established.

                               CONCLUSION

    This committee's review of the Patriot Act and related legal 
measures in the ongoing effort to combat terrorism is needed to ensure 
continued public support for the government's efforts to safeguard 
national security. The controversy over the Patriot Act reflects the 
concerns of millions of Americans for preserving our fundamental 
freedoms while safeguarding national security.
    Resolutions affirming civil liberties have been passed in 383 
communities in 43 states including seven state-wide resolutions. These 
communities represent approximately 61 million people. While these 
resolutions are often called anti-Patriot Act resolutions, they also 
take aim at other serious abuses of civil liberties, including the 
detention without charge of many Americans through a variety of 
pretexts such as the material witness laws.
    A nationwide coalition under the banner ``Patriots to Restore 
Checks and Balances'' has formed under the leadership of former 
Congressman Bob Barr (R-GA), and includes groups as diverse as the 
ACLU, the American Conservative Union, the Free Congress Foundation, 
and Gun Owners of America.
    Such widespread concern, across ideological lines, reflects the 
strong belief of Americans that security and liberty need not be 
competing values. As Congress considers renewal of the Patriot Act, we 
strongly urge this subcommittee to look beyond the expiring provisions 
to review other legal issues, both inside and out of the Patriot Act. 
Now is the time for Congress to restore basic checks and balances to 
Executive Branch powers.

                              ATTACHMENT A



                              ATTACHMENT B



    Mr. Coble. Thank you, Mr. Nojeim. Mr. Kadidal, you're 
recognized for 5 minutes.

   TESTIMONY OF SHAYANA KADIDAL, STAFF ATTORNEY, CENTER FOR 
                     CONSTITUTIONAL RIGHTS

    Mr. Kadidal. Thank you.
    Mr. Coble. If you'll suspend a minute, Mr. Nojeim. We have 
been joined by the distinguished gentleman from Texas and 
Florida and the gentleman from Arizona was here earlier, Mr. 
Flake. Mr. Gohmert from Texas, Mr. Feeney from Florida, and the 
distinguished gentleman from New York, Mr. Nadler. Mr. Nadler 
does not sit as a Member of the Subcommittee, but is a Member 
of the full House Judiciary Committee.
    Mr. Kadidal.
    Mr. Kadidal. Thank you, Mr. Chairman and Members of the 
Committee for inviting me here to testify on behalf of the 
Center for Constitutional Rights on two of three of the 
important issues up for discussion today--the abuse of the 
material witness statute and the need to ensure that 
extraterritorial criminal jurisdiction extends over all members 
of our Armed Forces and their civilian employees and private 
contractors.
    First, the material witness statute. CCR's greatest 
concerns with the statute are with the abuse of the statute to 
detain individuals in connection with grand jury proceedings. 
Because the investigative scope of grand jury proceedings is 
very wide and flexible, almost any testimony is material to a 
grand jury proceeding. And because grand jury proceedings are 
shrouded in secrecy, abusive uses of the statute for these 
purposes are slow to come to light in the media.
    CCR believes that such uses of the statute are tantamount 
to unconstitutional preventive or investigative detention. The 
conditions of confinement of material witnesses since 9/11 have 
been more suitable for suspected terrorists than for mere 
witnesses.
    First some examples. Osama Awadallah was held in solitary 
confinement and stripped searched repeatedly during his 
detention. Adbullah Hijazi was induced to give a false 
confession relating to an aircraft radio found in the World 
Trade Center hotel by his conditions of confinement and by the 
fact that, as a witness and not a suspect, he could be 
questioned without a lawyer or without Miranda warnings.
    Almost half the post-9/11 material witnesses never were 
called to testify before any proceeding. In one notorious case, 
where a witness was held for a non-grand jury proceeding, 
Abdullah Al Kidd, a football star at Idaho, was held for weeks 
to testify at a material support trial for someone else that 
fell apart. And he was never called during the actual trial.
    The one criminal charge that he was to be called in support 
of turned out to be utterly trivial: his acquaintance's 
overstay of a student visa. That would be akin to holding me to 
testify about a visa overstay of one of CCR's many foreign law 
student interns. And in this case, it utterly destroyed Mr. al 
Kidd's life.
    Secrecy and the lack of substantive judicial oversight has 
led to abuse of the statute. Of the 70 material witnesses held 
in relation to terrorism investigations, 69 were Muslim and 68 
were of South Asian or Arab ethnicity. CCR recommends strongly 
that Congress amend the statute to make it utterly clear to the 
courts that it was never intended for use in relation to grand 
jury proceedings. We believe anything short of that would leave 
the statute too susceptible to abuse as a tool for preventive 
detention.
    And now to section 804. Section 804 of the PATRIOT Act 
allows Federal civilian prosecutors to prosecute certain crimes 
that take place overseas. It's part of a series of statutes 
that overlap and interact in complex ways, spelled out in some 
detail in my written testimony.
    Mercifully, I'm not going to try to repeat that discussion 
in full here, but I will try to summarize it very quickly.
    The Uniform Code of Military Justice gives military courts, 
courts-martial jurisdiction over crimes by servicemen, but 
not--at least during--undeclared wars over crimes by civilian 
employees and private contractors. Congress closed this gap in 
2000 with the Military Extraterritorial Jurisdiction Act, MEJA, 
which gives Federal prosecutors here at home the power to 
prosecute Federal felonies by persons employed by or 
accompanying the Armed Forces outside of the United States. But 
the MEJA does not cover members of the Armed Forces while they 
are subject to the UCMJ.
    Now, the best interpretation of PATRIOT Act section 804 is 
that it is a residual statute, intended to sweep into the 
Federal prosecutor's power all conduct by any American on all 
facilities or lands used by the military except when the 
prosecutions are already authorized by MEJA.
    So section 804 gives U.S. Attorneys the power to prosecute 
all UCMJ violations, and conduct by civilians who are not 
employed by or accompanying the Armed Forces. 804 thus ensures 
that prosecution of civilian contractors can occur, and also 
creates concurrent authority in U.S. Attorneys over UCMJ 
violations that could also be prosecuted by courts-martial.
    Congress would do well to keep this provision, which is not 
designed to sunset, and preferably clarify and extend it, since 
courts do tend to interpret extraterritorial application of 
statutes very narrowly.
    I believe section 804 is useful for a number of reasons. 
First, military prosecutions under the UCMJ have proved slow 
and ineffectual. U.S. forces and private contractors have 
committed the worst abuses of detention possible over the last 
3 years--torture and murder--in the name of the American 
people. Yet, of the 341 military investigations that have taken 
place through March 2005, only a third have been found to be 
substantiated. Only 47 court martials have resulted. The 
majority of the substantiated allegations have led to weak 
punishments, like reprimands, rank reductions, or lesser 
sanctions. Of the 79 detainee deaths investigated, there have 
only been two homicide courts-martial. There's only been one 
prosecution in Federal criminal court for the many serious 
violations occurring in Abu Ghraib, Afghanistan, Guantanamo, 
and elsewhere. And that has been brought under section 804.
    Preserving this parallel jurisdiction over UCMJ violations 
under section 804 would allow U.S. Attorneys to move more 
quickly than the military prosecutors in instances where those 
investigations have bogged down. It would ensure the ability to 
prosecute civilian contractors and non-DOD employees. It would 
allow prosecution of high level civilian DOD officials. And, 
like all extensions of extraterritorial criminal jurisdiction, 
it will probably make it easier for the military to negotiate 
status of forces agreements with our military allies.
    CCR, therefore, encourages Congress to preserve and extend 
this sort of concurrent civilian jurisdiction over our military 
forces and their associated civilian employees and private 
contractors, but we would also encourage Congress to create 
authority for independent prosecutors to deal with situations 
where the DOJ and Attorney General are deeply implicated in 
setting policies that underlay the worst detention abuses--
torture and resulting deaths in military custody-- wherever 
they occur in the world. Thank you.
    [The prepared statement of Mr. Kadidal follows:]

                 Prepared Statement of Shayana Kadidal



    Mr. Coble. Thank you, Mr. Kadidal, and I commend you all. 
Mr. Kadidal violated the 5-minute rule but not severely so, so 
you won't be punished for that.
    Mr. Kadidal. Thanks.
    Mr. Coble. Folks, don't think I'm obsessed with the 5-
minute rule, but Mr. Scott and I do try to comply with that 
because if we don't, we can be here all day and that would be 
to your detriment as well as ours.
    We will now start a line of questioning, and I am told, 
folks, that we will probably have votes on or about 11 a.m.
    Mr. Berry, let me start with you. Mr. Berry, if you would 
like to, I'd like for you to respond to Mr. Nojeim's comments 
regarding your testimony and his suggestion, as I understood 
it, that an NSL should be used after a person was deemed an 
agent of a foreign power, if I read that correctly?
    Mr. Berry. I would be happy to, Mr. Chairman. I think that 
Congress wisely recognized that the standard prior to the 
PATRIOT Act was unduly restrictive, and let me give you an 
example of how that is the case.
    Let's say that post-2001--and this has happened--you 
capture a terrorist, and on the terrorist's computer you have a 
series of phone numbers. Any investigator worth his or her salt 
would want to take those phone numbers and figure out the 
subscriber information, whose phone numbers they are, and in 
many cases toll billing records, who has--what numbers have 
been calling that phone number and what numbers has that phone 
number been calling.
    Prior to the PATRIOT Act we couldn't use NSLs to obtain 
that information because we had no idea whatsoever whose phone 
numbers they were. They could be a terrorist associate's phone 
numbers. They could be the drycleaner's phone numbers. We 
needed the basic information to forward the investigation. We 
couldn't use it for that purpose.
    Now, because the standard is relevance, the same standard 
that we have in criminal investigations with grand jury 
subpoenas, we can obtain that information. And I can report 
that--that such uses of the NSLs have been very valuable to the 
Department and have allowed us to identify terrorist operatives 
that we previously did not know about. So I think that it would 
be a major, major mistake to return back to the prior standard.
    Mr. Coble. Thank you, Mr. Berry.
    Mr. Rosenberg, it is my belief that the USA PATRIOT Act did 
not, in fact, create the material witness law. Am I correct 
about that?
    Mr. Rosenberg. You are, Mr. Chairman.
    Mr. Coble. Well, let me ask you this: Comment, if you 
will--and I have heard pros and cons on this question--as to 
whether or not the material witness provision has been abused, 
if you will enlighten us about that.
    Mr. Rosenberg. Thank you for the question. I don't believe 
it has. To be very clear, this is not a power that the FBI or a 
Federal prosecutor can take onto itself. In other words, we 
must go to a Federal judge who must authorize the arrest of a 
witness if there's probable cause, as determined by the judge, 
to believe that the witness has material information and we 
can't otherwise secure it.
    Moreover, the witness has a whole bunch of rights that are 
then conferred on him: the right to counsel, the right to 
challenge the detention in a detention hearing pursuant to the 
provisions of the Bail Reform Act, and to challenge it again, 
in other words, to revisit that detention decision down the 
road, to confront witnesses and to confront evidence at that 
hearing. And in addition, Mr. Chairman--and I don't think any 
one of us mentioned it earlier--rule 46(h) of the Federal Rules 
of Criminal Procedure require us to report on a biweekly basis 
to the court about the status of those who are material 
witnesses and being held.
    So there's a whole bunch of protections, statutory and 
constitutional, built into this provision.
    Mr. Coble. Thank you, Mr. Rosenberg.
    Mr. Nojeim, you will agree--well, strike that. Maybe you 
don't agree. What is your opinion as to whether our laws should 
be enforced? That is to say, we--it is my belief that we should 
not aid and abet terrorists by providing intelligence-related 
information, nor should we assist them in the detection--we 
should assist in the detection and apprehension of terrorists 
who may be planning to harm this country and those who reside 
herein. Do you agree with that? Your mike, Mr. Nojeim.
    Mr. Nojeim. Of course, the Government should prevent 
terrorism, and it has adequate authority to do that. But let me 
address the point that Mr. Berry--Mr. Berry made.
    What he fails to acknowledge is that the records that we're 
talking about are very private records, the financial records, 
what you bought, where you bought it, your credit scores, your 
credit records, the ISP records, the records from a car dealer, 
the records from a boat dealer. They're very sensitive. They 
show a person's personal life.
    What he's saying basically is that those records should be 
open to the Government even when it's not investigating a 
crime. Even when it's not investigating a crime. And what we're 
saying is that, no, an intelligence investigation is different. 
Intelligence investigations typically involve allegations that 
a person is engaging in activity that is typically protected by 
the first amendment, and so they're very sensitive. And the 
reimposition of the agent of a foreign power standard would put 
the statute right back where it belongs, because should the 
Government actually be investigating a crime, it could get the 
information with a subpoena. What they're saying is that they 
don't want to have to be investigating a crime. They don't want 
there to be a solid potential charge. They're just gathering 
information. And in those circumstances, they ought to be 
gathering information about agents of a foreign power, 
potential spies, and terrorists who might be dangerous.
    Mr. Coble. Well, now, the red light now appears into my 
eyes, so we will visit--we will revisit it. I am pleased to 
recognize the gentleman from Virginia, but first let me 
recognize that the gentleman from Massachusetts, I see at the 
far end, my friend Mister--Bill, good to have you with us--Mr. 
Delahunt.
    Mr. Scott is recognized for 5 minutes.
    Mr. Scott. Thank you.
    Mr. Berry, what's--if you want to get these National 
Security Letters without the normal probable cause or, I 
thought I heard, without even articulable suspicion, what is 
the standard?
    Mr. Berry. Congressman Scott, the standard is relevance, 
which is the same standard that one would use in a criminal 
investigation to obtain those same records through a grand jury 
subpoena.
    Mr. Scott. Now, the records that you're looking for are not 
the records of the agent of a foreign government but relevant 
to the investigation of the agent of a foreign government. Is 
that right?
    Mr. Berry. They would be relevant to either a terrorism 
investigation or an espionage investigation, and as the example 
I gave----
    Mr. Scott. Wait a minute. Espionage? What about foreign 
intelligence?
    Mr. Berry. No, it has to be terrorism or espionage. I know 
that you have this concern about FISA where foreign 
intelligence information is included. That's not in the NSL 
statutes.
    Mr. Scott. Okay. So it has to be--at least we're talking 
about crimes in this situation.
    Mr. Berry. We are talking about terrorism and espionage 
investigations. That is correct.
    Mr. Scott. Okay. But the records could be records held by 
innocent people.
    Mr. Berry. It is certainly----
    Mr. Scott. If it is relevant to that investigation.
    Mr. Berry. Well, it is certainly possible, and the example 
I gave with the phone numbers on the terrorist's computer, we 
need to do some basic information that--investigation that NSLs 
allow us to do to either get--obtain specific----
    Mr. Scott. Well, what about phone numbers on the--an 
associate of the terrorist? If you know that--if you find out 
one of those numbers he's been calling or an e-mail address and 
you track down that e-mail, can you get--you can get all that 
information.
    Mr. Berry. Well, it really depends on the facts of a 
specific investigation.
    Mr. Scott. You mentioned one of those numbers may be the 
cleaners.
    Mr. Berry. Right.
    Mr. Scott. Okay. So you go to the cleaners and get all his 
little information.
    Mr. Berry. No, it depends on the facts of a specific 
investigation. If in the list of phone numbers we discover that 
one of them is a drycleaners, absent other information, I would 
say it would be 99.9 percent the case that we would not seek 
any more information on the drycleaners because, at that point, 
it doesn't appear to be relevant. But----
    Mr. Scott. But if you decided it was relevant, you can go 
get that information. Mr. Nojeim, do you want to comment?
    Mr. Nojeim. Yeah, I do. Take the example that he used in 
his testimony, the written statement. Somebody is having lunch 
with an al-Qaeda operative. That alone in the Government's view 
allows them to get all these records about that person.
    Take it to the next step. What if they had a discussion 
with the waiter? What if they talked? Would that alone also 
give them access to records about the waiter? They would go to 
his Internet service provider and obtain records about his 
activity. They would go to the boat dealer and obtain records 
about what he bought. There is just no----
    Mr. Scott. How is this different from the criminal 
investigation that Mr. Berry talked about, just a normal 
criminal investigation where the standard is relevance for a 
grand jury subpoena?
    Mr. Nojeim. It's different in many ways. First of all, 
remember what we're talking about is a case where there is no 
judge. There is no proceeding. There's no grand jury. What 
there is is the Government telling itself that the records are 
relevant to what the Government is seeking. And it's not that 
there's a particular charge. It's that the Government has 
decided that there's relevance. And there's--there's never a 
test, there need never be a test later on down the road where 
they have to actually go into a court and say this. They could 
go right up to the Internet service provider, present the 
National Security Letter, and get the records, and that's the 
end, and the person never knows.
    Mr. Scott. Does the exclusionary rule ever--does the 
exclusionary rule ever kick in?
    Mr. Nojeim. It could kick in if they charged the person 
later on down the road, commenced a criminal proceeding.
    Mr. Scott. Where is the--on the material witness, where is 
the judge in all this? What warrant do you need from--do you 
need a warrant from a judge to arrest somebody on a material 
witness.
    Mr. Rosenberg. Yes, Congressman, you do. You need a warrant 
from a Federal judge. And the judge also plays a role in the 
subsequent detention hearing, and the judge also plays a role 
in receiving the reports required under rule 46(h).
    Mr. Scott. On the Mayfield case, what information was 
presented to the judge to justify locking him up?
    Mr. Rosenberg. You're going to find my answer wholly 
unsatisfactory, but because there's an internal Department of 
Justice investigation and civil litigation, I cannot comment on 
that.
    Mr. Scott. What is the standard for getting the warrant 
generally?
    Mr. Rosenberg. As set out by the Second Circuit in the 
Awadallah case and the Ninth Circuit in the 1971 Bacon case, my 
understanding is it's probable cause, probable cause to believe 
that the witness is material--in other words, the information 
would be material--and that it would be impracticable to secure 
that testimony by some other means.
    Mr. Scott. Is he advised of a right to deposition and then 
being released?
    Mr. Rosenberg. Well, he's given an attorney, and he has a 
right to an attorney, and it's that attorney's obligation to 
inform his client of what his rights are. We don't interpose 
ourselves in that relationship. And, by the way, Mr. Scott, if 
he can't afford an attorney, one is appointed for him.
    Mr. Coble. The gentleman's time has expired.
    In order of appearance, the Chair recognizes the 
distinguished gentleman from Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you, Mr. Chairman.
    First, Mr. Berry, Mr. Nojeim mentioned the sensitivity and 
privacy of records that are sometimes sought. Could you 
illuminate for us on how courts have ruled on the privacy 
expectation, for example, of credit card records, things like 
that?
    Mr. Berry. I don't think that there is any dispute that the 
Government can obtain these standards--these records, whether 
they be records from financial institutions, electronic 
communication transactional records, or records from consumer 
reporting agencies on a relevance standard. The Supreme Court 
pretty much decided this issue back in the 1940's in a case 
involving the Oklahoma Press Publishing Company. So this is 
done all the time through grand jury subpoenas----
    Mr. Gohmert. But it's relevant to what? A criminal 
investigation? Those cases deal with relevance to criminal 
investigations, correct?
    Mr. Berry. Right, but the Supreme Court has dealt with this 
in the context of administrative subpoenas, which generally 
don't deal with criminal investigations, but could deal with 
regulatory investigations or other types of investigations. And 
even the Southern District of New York in the Doe v. Ashcroft 
case made it very clear that relevance to a national security 
investigation is a sufficient standard.
    Mr. Gohmert. And let me ask Mr. Kadidal--correct me, 
please.
    Mr. Kadidal. Kadidal.
    Mr. Gohmert. Kadidal, all right. You had mentioned at one 
point that there were 70 individuals held as witnesses and 69 
were Muslim, and I thought there was going to be another shoe 
dropped there, like, ``And it turned out that there was nothing 
to the investigations, because to my knowledge, the terrorists 
that have attacked us like on September 11, the insurgents that 
are attacking our troops in Iraq, as best I understand, they're 
Muslim.'' So the mere fact that they held 69 people who are 
Muslim, there needs to be another shoe dropped if you're going 
to get me to be bothered by that. If you're investigating 
Muslim terrorist activity, then I would anticipate chances are 
they're going to talk to Muslims who may--can provide--shed 
light on that. Is there another factor that you didn't tell us, 
like those cases they were held on were meaningless or turned 
out to be trivial or minor, or--I didn't hear anything further 
when you said 69 were Muslim.
    Mr. Kadidal. Sure. Here's how I'd address that. First of 
all, you know, I did say that half of them never actually were 
called to testify in any proceedings.
    Mr. Gohmert. Okay.
    Mr. Kadidal. You know, I would categorize this as part of a 
larger, you know, sort of problematic pattern of racial 
profiling. You know, the best analogue that we have a lot of 
information about--and, again, we don't have a lot of 
information, as Mr. Nojeim has pointed out, about the scope of 
material witness detentions. But the best analogue is the 
special interest detentions of immigration detainees right 
after 9/11. These were the people who were here, you know, as 
undocumented aliens, swept up in the first month or so after 9/
11. Twelve hundred individuals by the Government's own 
accounting, and perhaps as many as 2,000, were held as so-
called special interest detainees under very restrictive 
conditions of confinement with their immigration hearings 
closed to the press and public. None of them were ever charged 
with any terrorism-related crimes. What did they have in 
common? They were all Muslim men from South Asian or Arab 
countries.
    Mr. Gohmert. Okay.
    Mr. Nojeim. Mr. Gohmert, could I add one thing?
    Mr. Gohmert. All right.
    Mr. Nojeim. You had said, well, the other shoe didn't come 
down, that these people were all innocent. But really----
    Mr. Gohmert. No, I didn't say ``were all innocent.'' I said 
there was some other factor, because if you're investigating, 
you know, Muslim terrorist activity--and I do have Muslim 
supporters, I got Muslim friends. But if we're being told 
that--if we're investigating Muslim terrorist activity, that, 
in order to avoid hurting someone's feelings, we really need to 
bring in some perhaps English and Irish and Hispanic and 
Japanese who have nothing to do with it just so it doesn't look 
like we're checking only with Muslims from the Middle East, 
then I think we're--you're asking us to waste time and 
resources.
    Mr. Nojeim. No. What we're actually asking is that you 
focus the time and resources that are involved in detaining 
people with respect to whom there is probable cause of crime.
    Mr. Gohmert. Right.
    Mr. Nojeim. And what's happened here----
    Mr. Gohmert. And, understand, I'm a big probable cause 
supporter for the number one reason it's in the Constitution. 
And I've had some concerns as we've gone through time and we 
keep lessening the standard. But since my time is so limited, 
let me ask, Mr. Berry, you mentioned this business about the 
numbers that were--you get numbers that had been dialed and you 
need information, you may need to submit an NSL, as I 
understood it, to get that information. And I'm sitting here 
thinking, well, if you'll just give me the numbers, I'll give 
you whose numbers those are without you going and demanding 
private information from somebody else that may be more than 
you need. I can tell you whether or not it's a drycleaner 
number, and most of the Federal agents that I'm friends with 
could do that, too, without sending a letter to somebody else 
saying tell me what these are. It's my understanding it's very 
easy to--no, it's not my understanding. I've done that. And 
so--and it's public information, and I see that different as 
pursuing as what some of the things Mr. Nojeim had pointed out.
    Let me ask, though, Mr. Berry, do you--would you have a 
problem with a time limit as they suggested and maybe 6 months 
and then extend it? We discussed that in a prior hearing.
    Mr. Coble. And, Mr. Berry, very briefly if you will. The 
gentleman's time has expired.
    Mr. Gohmert. Oh, I'm sorry. I couldn't see the light very 
well.
    Mr. Coble. It's okay.
    Mr. Gohmert. I'm so far down the pecking order, I can't see 
the light down here.
    Mr. Coble. It's all right.
    Mr. Berry. If I could just address the first point very 
briefly, and then I'll move on to the second point.
    With respect to the first point, toll billing records are 
not publicly available. You need some kind of Government 
process to get those records, and those are exceptionally 
important to our national security investigations.
    With respect to subscriber information, in certain cases, 
you're absolutely right; that is publicly available. In other 
cases, it's not. It's on a case-by-case basis, and so NSLs do 
have value.
    With respect to the non-disclosure requirement, we think 
that it is absolutely essential that the secrecy of national 
security investigations be safeguarded so that people are not 
tipped off that they are under investigation. Given our 
experience with national security investigations, we think that 
a 6-month non-disclosure requirement is an entirely unrealistic 
length of time, and we could not support that.
    Mr. Gohmert. Okay. In the prior hearing, I'd understood DOJ 
could support it if there was a provision for extension, if 
necessary, for another 6 months. But, anyway, my time's up, and 
I guess that's somebody else's idea.
    Mr. Coble. The gentleman's time has expired.
    We have been joined by the distinguished lady from 
California, Ms. Waters. Ms. Waters, good to have you with us.
    The Chair recognizes the distinguished gentleman from 
Massachusetts, Mr. Delahunt.
    Mr. Delahunt. Thank you, Mr. Chairman.
    I just want to focus for a moment on the material witness 
statute. Why don't you walk through for us, Mr. Rosenberg, in 
very simple terms so that everyone can understand how the 
material statute--how the material witness statute is 
implemented?
    Mr. Rosenberg. Yes, Congressman, I'd be glad to. And as a 
former Federal prosecutor, I've used it. I can talk about my 
example but without the specifics.
    If you believe, in the course of an investigation, that 
there's a witness out there and that he or she will not 
cooperate or might flee if you try to subpoena them, you may 
apply to a Federal judge--in other words, not on my own accord, 
but I may apply to a Federal judge for a warrant authorizing 
the arrest of that witness, if I can demonstrate two things: 
one--and both, by the way, by the probable cause standard that 
Mr. Gohmert referred to earlier. If I can demonstrate, first, 
that the witness is material, in other words, in good faith we 
believe that they have information material to the underlying 
investigation; and, two, probable cause to believe that it's 
impracticable to secure their testimony by subpoena.
    In the vast majority of cases, Mr. Delahunt, if I am 
conducting a grand jury investigation--and I know you know 
this. You're a former prosecutor. When you give a subpoena to 
someone, they show up and they give their testimony, and most 
of the time, fortunately, it's truthful.
    Mr. Delahunt. So let's kind of fast forward a little.
    Mr. Rosenberg. Yes, sir.
    Mr. Delahunt. So then an arrest is effected.
    Mr. Rosenberg. You get permission to make the arrest. You 
get the warrant. The agent goes out and makes the arrest, and 
that witness is brought before the court. That court then 
appoints an attorney, if the witness cannot afford one, or----
    Mr. Delahunt. Impractical. Let's go back to the standard of 
impractical.
    Mr. Rosenberg. Sure.
    Mr. Delahunt. Is that defined in the material witness 
statute?
    Mr. Rosenberg. No, sir, it is not.
    Mr. Delahunt. See, that, I think, gives angst, if you will, 
to many, and I would suggest that that really is a very serious 
issue that ought to be addressed in a legislative fashion.
    Mr. Rosenberg. No, and that's a fair point, although maybe 
I can give you some comfort when I tell you----
    Mr. Delahunt. Give me a little bit of comfort.
    Mr. Rosenberg. I'm going to try awfully hard to give you 
some comfort. At least in my own case, we laid out a whole 
series of things we did to obtain the testimony of this 
witness: the number of times we had given subpoenas which were 
ignored----
    Mr. Delahunt. You're giving me comfort by saying that you 
are an ethical prosecutor.
    Mr. Rosenberg. Well, I'm going to build on that, I hope. 
I'm going to build on that, I hope.
    Mr. Delahunt. Okay.
    Mr. Rosenberg. We laid all of this out for the Federal 
judge, and then he authorized the warrant because we made a 
showing to his satisfaction of the impracticability, which is a 
word that I almost cannot pronounce. In any given case, the 
agent and the prosecutor would have to go to a Federal judge 
and satisfy him----
    Mr. Delahunt. When would the statute require another 
appearance before that judge?
    Mr. Rosenberg. Yes, thank you. After the arrest, after the 
appointment of counsel, there is then, pursuant to statute, 18 
U.S.C. 3142, the Bail Reform Act, a detention hearing. So not 
all material witnesses, by the way, are detained.
    Mr. Delahunt. I understand.
    Mr. Rosenberg. Many are not.
    Mr. Delahunt. But I'm only--I'm focusing on those that are 
detained.
    Mr. Rosenberg. That's the next appearance. Within 3 days at 
the request of the Government, within 5 days if the witness 
would like a little extra time to prepare.
    Mr. Delahunt. And after that detention hearing, when is the 
next appearance before a magistrate, a judge?
    Mr. Rosenberg. Well, the witness through his attorney can 
ask for a reconsideration, so that's more flexible, as well----
    Mr. Delahunt. Is it mandated?
    Mr. Rosenberg. Is it mandated? No, I don't believe it's 
mandated, but rule 46 of the Federal Rules of Criminal 
Procedure require us to report back to the judge on the status 
of the investigation. So there's some--the judge can engage----
    Mr. Delahunt. Do you have any--I have another concern 
because, with all due respect to the Federal prosecutorial--I 
find it, as a former State prosecutor, amazing how lengthy 
Federal investigations can become. And I think that's something 
that is disturbing. Is there any time limit as part of the 
material witness statute?
    Mr. Rosenberg. Within 3144, within the statute itself?
    Mr. Delahunt. Within the material----
    Mr. Rosenberg. No, sir, there is not.
    Mr. Delahunt. That's a concern.
    Mr. Rosenberg. I have done cases that have taken a long 
time, and I have done cases that have moved quickly. Not all 
delay is the fault of the Government.
    Mr. Delahunt. I'm not suggesting it is.
    Mr. Rosenberg. For instance, often in litigation there will 
be all types of hearings and orders----
    Mr. Delahunt. I'm very familiar with----
    Mr. Rosenberg.--that are appealed by the defendants.
    Mr. Delahunt. I'm very, very familiar with that. But there 
comes--there comes a point where it is the responsibility of 
the Government--it is the responsibility of the Government to 
move----
    Mr. Rosenberg. I agree.
    Mr. Delahunt.--to a conclusion on an investigation.
    Mr. Rosenberg. I agree with you. You're right.
    Mr. Delahunt. And I would suggest that this Committee ought 
to seriously consider sounding out those such as yourselves--I 
say all four of you--what would be a responsible time limit.
    Mr. Rosenberg. I know the time has--may I just respond to 
that, Mister----
    Mr. Coble. Very briefly, Mr. Rosenberg.
    Mr. Rosenberg. Very briefly. I think the statute strikes 
the right balance because it has in it the flexibility we need 
and the monitoring of the court. You're right, we need to move 
these things along because it affects people's lives.
    Mr. Delahunt. But we--I understand. But we also know this, 
too, that there are Federal judges that have vastly different 
views. You know, we have, for lack of--euphemistically, we have 
pro-defendant judges and we have pro-Government judges. And I 
really think that this is an issue that more appropriately lies 
for a determination by the United States Congress.
    Mr. Kadidal. Mr. Chairman, might I make a brief comment?
    Mr. Coble. Well, the gentleman's time has expired. I think 
we're going to come back for a second round.
    In order of appearance, the Chair--well, hold that a 
minute. The Chair recognizes that the Ranking Member has joined 
us. Good to have you with us, Mr. Conyers.
    The Chair recognizes the distinguished gentleman from 
Arizona, Mr. Flake, for 5 minutes.
    Mr. Flake. I thank the Chairman and thank the witnesses.
    Mr. Berry, I guess, on this--or Mr. Rosenberg, what are the 
consequences for a Federal agent, an FBI agent who abuses 
material witness statutes. Is that all caught by the judge? 
There has been testimony about witnesses being taken into 
custody simply for asking that they testify before a grand 
jury, for example? Can you cite any examples of FBI agents who 
have been penalized or reprimanded in any way?
    Mr. Rosenberg. Not off the top of my head, Congressman, but 
I will say this--and as I told Mr. Scott--it's not a case that 
I can talk about, but we have an internal investigation, both 
in the Office of Inspector General and in the Office of 
Professional Responsibility in the Mayfield matter. And, 
frankly, when there's a problem, that's what we should do. We 
should take a very hard look at it.
    No, I don't know of folks who have been punished off the 
top of my head, but if an agent willfully engages in 
misconduct, willfully misleads the court, you know, swears out 
a false affidavit, there should be severe repercussions. I 
don't think anyone in the Department of Justice with tell you 
otherwise, sir.
    Mr. Flake. Mr. Berry, do you have anything to add to that?
    Mr. Berry. I'll defer to Mr. Rosenberg on all questions 
related to the material witness statute.
    Mr. Flake. Mr. Nojeim, do you have any comment there?
    Mr. Nojeim. I think that it's telling that there haven't 
been any people who have been disciplined for misuse of the 
material witness statute. There are just far too many cases. We 
reviewed a number of cases and found that in about 40 percent 
of the cases the person was never even brought--brought forward 
to testify, and that was the supposed purpose for them being 
detained.
    Mr. Flake. Would that--would a substantial number of those 
be taken as evidence that an FBI agent has abused his authority 
if you continue to have 90 percent, 95 percent of those who are 
pulled in as material witnesses, nothing ever comes of it? At 
what point do you say they're overreaching here? Mr. Rosenberg?
    Mr. Rosenberg. I don't believe that's evidence of abuse at 
all. Because it may turn out that a witness does not have 
material information or that there's no need to call that 
witness before the grand jury doesn't make the underlying 
affidavit false or the probable cause determination wrong.
    For instance, we get information all the time and we act on 
it in good faith, I hope, all the time. Sometimes we get bad 
information which we act on in good faith. If a material 
witness is arrested on the basis of bad information, in other 
words, an informant who is spinning us or who lies--it 
happens--then there may be absolutely--not only no need to have 
that person held, but they may never testify.
    There's nothing wrong with that as long as the underlying 
actions are supervised by a judge and brought in good faith.
    Mr. Flake. Mr. Berry, you mentioned in your oral testimony 
that these National Security Letters are needed because, as you 
put it, you may have a known al-Qaeda agent having lunch with 
somebody else, and the only way you can get to information is 
through a National Security Letter.
    It strikes me that if there's somebody who's a known al-
Qaeda agent, then a probable cause standard wouldn't be that 
difficult. Why do you need to go on a lesser standard of simply 
relevance?
    Mr. Berry. Congressman Flake, with respect to people having 
lunch with a known al-Qaeda operative, to the extent that we 
know that someone is an al-Qaeda operative, we certainly have 
probable cause in most cases to go after that person's records. 
But no magistrate judge in the United States would approve a 
probable cause determination just simply because you have lunch 
with an al-Qaeda operative, that there's probable cause to 
believe that you are committing a crime. That is why in a grand 
jury context to get those records the standard is relevance. It 
has been one for decades to get these kinds of records held by 
third parties. All we're saying is that the standard on the 
national security side, that of relevance for NSLs, should be 
the same as on the criminal side to a grand jury investigation.
    Mr. Flake. But if it were the same as on the criminal side, 
then you'd have a grand jury and not just a National Security 
Letter. Correct?
    Mr. Berry. The standard is the same, one of relevance. On 
the criminal side, it's relevance to an ongoing criminal 
investigation; on the national security side, it's relevance to 
a terrorism or espionage investigation.
    Mr. Flake. But the difference in terms of standard is, one, 
you have somebody outside of the Federal agency okaying it, as 
opposed to a letter to yourself saying that this relevance 
standard applies.
    Mr. Berry. Congressman Flake, that's not correct. A grand 
jury subpoena is not issued with prior judicial approval, and 
the grand jury subpoena is normally issued by an Assistant U.S. 
Attorney signing a subpoena for the grand jury and sending that 
out. So I don't see any really meaningful difference between 
the context of the grand jury and the context of the NSLs when 
it comes to some kind of prior independent check. And I also 
think it's important to point out the process that the FBI goes 
through before issuing an NSL. The agent----
    Mr. Flake. My time is up, but I'll come back to that. I 
know Mr. Nojeim looks like he wants to comment.
    Mr. Coble. The gentleman's time has expired. We'll get back 
to it. Thank you.
    Mr. Nojeim. What the argument is ignoring is that there is 
a grand jury that has been convened and it is receiving 
information that comes from a subpoena. The argument also 
ignores the fact that a National Security Letter is far 
different from a subpoena. A subpoena does not say you can't 
talk to anyone about this request, this demand for records that 
you have received. It doesn't say that you must comply. And it 
doesn't--I mean, it does say that you must comply, but it 
doesn't put you in the same position because you cannot consult 
with an attorney. In fact, it makes it clear you can't tell 
anyone.
    Mr. Coble. The gentleman's time has expired.
    The chair is now pleased to recognize the Ranking Member of 
the full Committee, the distinguished gentleman from Michigan, 
Mr. Conyers.
    Mr. Conyers. Chairman Coble and Members of the 
Subcommittee, I want to thank you for this important hearing 
and I really wish I had been here earlier.
    But there are three matters. I'd like Greg Nojeim and 
Shayana Kadidal to pay attention to these three questions.
    How can the Department of Justice be defending the FISA 
review and have already started approving the Senator from 
Kansas' proposal to allow administrative subpoenas to be issued 
under FISA? Now, this is all public information. It's like 
we're supposed to not be able to read the papers even. This is 
stunning. There is now a live proposal that is suggesting that 
we skip all this business about the FISA court review.
    The second question is how seriously is the Department 
misusing the material witness statute to indefinitely detain 
people?
    And finally, what about the National Security Letters that 
are being directed to libraries and bookstores to find out what 
people are reading? When we've had Government witnesses say, 
first, there were no requests, there was nothing that was asked 
for or given by anybody. Now it's up to 215. But when you add 
on National Security Letters, I don't know where it ends.
    Why don't you start off, Mr. Nojeim?
    Mr. Nojeim. I'd like to address the first and the third 
question and leave the second for Mr. Kadidal.
    It's important to distinguish National Security Letters 
from section 215 orders. National Security Letters are for a 
limited class of records and they don't require any prior 
judicial review. What's happening in the Senate, and it might 
be happening even as we speak, is a discussion of a potential 
statute that renders all this discussion irrelevant because it 
would allow for administrative subpoenas for all records with 
no prior judicial review.
    We believe also, Mr. Conyers, that the secrecy that the 
Government has insisted upon with respect to its use of the 
National Security Letter power is very troubling and completely 
inappropriate, given the disclosure that it has already 
conceded and done in other intelligence contexts.
    This is an illustration of the six-page response that ACLU 
received from a Federal Freedom of Information Act request 
about the Government's use of National Security Letters.
    Mr. Conyers. Is it all blacked out?
    Mr. Nojeim. Yes. Page after page after page blacked out 
about the Government's use of this power. Won't even give raw 
numbers. And yet every single year the Government reports how 
many Foreign Intelligence Surveillance Act orders have been 
ordered by a court to conduct far more intrusive searches, like 
breaking into a person's home secretly, like listening in on 
their telephone conversations. They'll report raw numbers every 
year because Congress required it, and they do it without any 
damage to national security. And yet they won't report raw 
numbers of National Security Letters.
    Even for section 215 orders, the Government at first said 
it's a secret, can't report it, it would damage national 
security. A few months later, actually a couple of years later, 
they did report. They've been used 35 times.
    Mr. Conyers, we don't know how often National Security 
Letters have been used to get library records. I don't think 
the Government has disclosed that. What it has said is that it 
hasn't used section 215 orders to get those records.
    Mr. Conyers. Mr. Kadidal?
    Mr. Kadidal. Thank you. The short answer is that we don't 
know the extent of the misuse of the material witness statute. 
We don't know enough about it, and I think it's a good subject 
for a congressional----
    Mr. Conyers. Can I ask unanimous consent for one additional 
minute?
    Mr. Coble. Without objection.
    Mr. Kadidal. Thank you. My friend and Mr. Nojeim's 
colleague at ACLU, Anjana Malhotra, has undertaken to interview 
every single material witness, or every single person who is 
detained as a material witness, but it is a full-time job. It's 
something that I think that that sort of information could be 
compiled much more readily by the Government itself.
    I'll mention one----
    Mr. Conyers. How many do you think there are?
    Mr. Kadidal. Well, I think we know about, I think, 70 that 
were linked to terrorism investigations. That sounds roughly 
about right, from the numbers that I've talked to her about. 
And as I said, 69 of them were Muslim men and 68 were of Arab 
or South Asian extraction.
    You know, one comment that I think needs to be recorded 
here is that any time you've got that sort of appearance of 
profiling, it leads to the loss of the best weapon that law 
enforcement has in the battle against terrorism domestically, 
and that's the trust and cooperation of immigrant and minority 
communities. These communities have to serve as the eyes and 
ears of the police on the street and they have to be willing to 
testify in judicial proceedings later in order to carry out 
effective law enforcement against terrorism. And when, you 
know, things like the abuse and the material witness statute 
are undertaken, that, you know, clearly at least convey the 
appearance that there's broad ethnic and religious profiling 
going on, that damages that trust. It makes people unwilling to 
serve as the eyes and ears of the police, and that in turn 
damages the national security of the United States.
    Mr. Coble. The gentleman's time has expired.
    The chair recognizes the distinguished gentleman from 
Florida for 5 minutes, Mr. Feeney.
    Mr. Feeney. Thank you, Mr. Chairman.
    Maybe either Mr. Rosenberg or Mr. Berry, in the Southern 
District of New York, after Doe v. Ashcroft, are National 
Security Letters still available in that district, supposing 
the U.S. Supreme Court would uphold the lower court's decision? 
And I guess the second part of that question would be, should 
Congress now grant some explicit right to go to court and 
challenge it and--a letter to head off potential problems?
    Mr. Berry. Congressman Feeney, those are both excellent 
questions. With respect to your first question, it's my 
understanding that there's been a stay placed on the district 
court's ruling, so presently there's no effect on the issuance 
of NSLs. Were the 2nd Circuit or the Supreme Court to uphold 
the district court's ruling, then we would--it depends on the 
structure of the injunction we're issued, but if it came from 
the Supreme Court, we would effectively be precluded from using 
18 USC 2709, which is the NSL statute dealing with wire or 
electronic communications----
    Mr. Feeney. And presumably at that point you would 
recommend that Congress go in and grant some explicit right 
to----
    Mr. Berry. Well, if I could address that question, because 
it is a very good question. We have taken the position in 
litigation that, number one, the recipient of an NSL can 
consult an attorney regarding that NSL. And I think that that 
is based on the specific statute because the statute implicitly 
contemplates the idea that recipients of NSLs would be telling 
their agents. And we think the normal interpretation of the 
word ``agent'' would include one's attorney. And we're 
forwarding that argument in front of the 2nd Circuit.
    We also believe that the recipient has a right to pre-
enforcement judicial review of an NSL. Now, the district court 
disagreed with that argument, and we are forwarding it, again, 
before the 2nd Circuit.
    Mr. Feeney. So the court basically held that, because they 
disagreed with your interpretation of the recipient's rights, 
that that's one of the reasons they----
    Mr. Berry. Yes. And if I could just add, this is kind of an 
odd situation. Because the Department of Justice is saying yes, 
recipients have the right to pre-enforcement judicial review.
    Mr. Feeney. Was there anybody in the court arguing that the 
recipient did not have the right?
    Mr. Berry. The ACLU.
    Mr. Nojeim. Excuse me. Excuse me, that is not accurate. 
That is not accurate.
    Mr. Coble. Regular order. Regular order.
    Mr. Berry. Could I finish my point, please? The ACLU said 
that the statute does not allow for pre-enforcement judicial 
review. We said it does allow for pre-enforcement judicial 
review. If Congress wished to clarify that in the statutes----
    Mr. Feeney. Well, maybe we could make the ACLU and the 
Department of Justice happy if we clarify that.
    Mr. Nojeim. Why don't we just do that?
    Mr. Feeney. Well--and we may.
    Mr. Berry, would you like to briefly comment on Mr. 
Nojeim's response to Mr. Conyers about when our Government can 
break into our house and violate our security in sort of a 
blanket way?
    Mr. Berry. Congressman Feeney, I'm not exactly sure which 
comments you're referring to, but if we're talking about 
breaking into a house, then we're talking about the need, 
except in exigent circumstances, which are exceptionally rare, 
to have a search warrant that demonstrates probable cause. And, 
in a criminal investigation, those are issued by article III 
Federal judges, and, in a foreign intelligence investigation, 
those are issued by a judge of the FISA court, again an article 
III judge. What we're talking about with National Security 
Letters has nothing to do with breaking into anyone's house.
    Mr. Feeney. I want to talk to Mr. Rosenberg about the 
material witness, because it does seem unfair that a material 
witness can be, without being charged with anything, held 
indefinitely. And the time they can be questioned I think is a 
reasonable one. I understand your response that it's not always 
the Government's fault that there are delays--Mr. Delahunt's 
question--but neither is it likely to be the material witness's 
fault about delays, and that's the person who is suffering the 
consequences.
    Wouldn't there be some way where we could allow the 
Government, along with participation of the defendant's 
counsel, to videotape or otherwise record testimony of the 
material witness and have that testimony admissible, if we 
enacted a law that would protect the material witness from 
indefinite detention? Isn't there some way that we can let 
these folks who are not charged with anything go and yet record 
their material testimony?
    Mr. Rosenberg. There is. I mean, Congressman, under the 
statute there is authority, and the Awadallah case recognized 
it--the 2nd Circuit case, excuse me, recognized it, to take a 
deposition in lieu of grand jury testimony. Now, again, part of 
that turns on the witness being cooperative and truthful. But 
it's the judge, not the Government, that orders the detention. 
And the judge can revisit that at the request of the witness.
    So there are mechanisms already in place so that the court 
can ensure that it's not indefinite or delay is not undue or 
the fault of the Government. And as well, as I mentioned but 
perhaps not clearly enough--and forgive me for that--we do need 
to report back to the court on a regular basis, under rule 46 
of the criminal rules, so that they can engage in this 
monitoring function. So I really do believe that there are 
safeguards that are built into the statute and the rules of 
criminal procedure.
    Mr. Coble. The gentleman's time has expired.
    The chair recognizes the gentlelady from California, Ms. 
Waters, for 5 minutes.
    Ms. Waters. Thank you very much. Mr. Chairman and Members, 
again I'd like to commend you for the time that you've put in 
on this PATRIOT Act. You've really done a wonderful job in 
focusing us in this Congress on the PATRIOT Act, and I think 
that's very important. Because this is all about a discussion 
of how far does our Government go, how far do we support them 
in the fight on terrorism or the so-called efforts to keep us 
secure and safe.
    And I think we're way over the line. I think we're way over 
the line. As a matter of fact, the example, I think, that is 
given in your testimony, Mr. Berry, about someone having lunch 
with suspected terrorists and your ability to issue NSLs, I 
think what's implied in your testimony is that the person 
having lunch with the suspected terrorist, despite the fact you 
have no information that should lead you to believe that this 
person is involved in any kind of plot or any kind of 
conspiracy, could be issued an NSL and all that goes along with 
that. Which means possible access to all records, including 
financial records, et cetera, et cetera.
    Now, you argue in your testimony that the case that was 
just referred to did not cause the court to determine that 
section 505 was a violation of constitutional rights. And you 
argue, Mr. Nojeim, that the court did determine that it was a 
violation of constitutional rights. Why do you differ on this 
issue? I'd like to hear first from you, Mr. Berry, then you, 
Mr. Nojeim.
    Mr. Berry. Congresswoman Waters, let me respond to the 
first point first and then the second point. With respect to 
the first point, what I said in my testimony was that the FBI 
should be conducting preliminary investigations of people if 
they are seen having lunch with known al-Qaeda operatives. I 
believe that if we did not follow those leads and do some basic 
investigation of people having lunch with known al-Qaeda 
operatives, people from the FBI and people from the Justice 
Department would be hauled before this Committee and you would 
be demanding to know why we weren't doing that.
    Ms. Waters. May I stop you for one moment. And I'm sorry to 
interrupt you, but I want to be clear. I walk into one of these 
food courts. We have so many of them in the shopping malls. And 
there are some people sitting at the table. And you're always 
looking for someplace to sit. Aha, there's a table with one 
chair and I'm glad to get it. And I sit down and I have lunch 
and I say ``Hello, how are you doing?''--you know, courtesy, 
just being decent. And they say, ``Hello, how are you doing? 
Oh, what is that book you're reading, or that's a wonderful 
outfit that you have on.'' We're talking. We don't know each 
other. We have eaten our lunch, and then I go on and catch my 
plane. Am I now subject to investigation if these two turned 
out to be suspects that are under surveillance or suspects by 
the FBI who will be issued NSL letters? Can I now be issued 
one?
    Mr. Berry. Two quick points in answer to that question. 
Number one, I don't know what your personal experience is, 
about 99.5 percent of the time when I have physically been 
eating lunch at a restaurant or at a food court with other 
people, I do know who those other people are. But secondly----
    Ms. Waters. No, that's not my experience. I run through 
these airports, I run through these shopping centers, I'll take 
a chair anywhere. Given my experience, discuss the issue.
    Mr. Berry. Even in the rare case, I think, where you are 
sitting down in a food court and having lunch with someone that 
you do not know, there would be a basic preliminary 
investigation if you happened to have the misfortune of sitting 
down with a known al-Qaeda operative. And once the preliminary 
investigation turned up nothing, the Attorney General's 
guidelines----
    Ms. Waters. What's a preliminary investigation? Do they now 
get all of my telephone records? Do they get the Internet? Do 
they get my financial records? What's a preliminary 
investigation?
    Mr. Berry. It's a case-by-case determination given the 
predication in an individual case. But I think it would be a 
serious mistake for us to write our general guidelines so that 
the paradigmatic case is a case where you happen to be having 
lunch with a person you don't know in public. Does that happen? 
Yes. Is that a rare occurrence compared to all the times you 
have lunch with people that you do know? I would submit----
    Ms. Waters. I could give you 101 other circumstances under 
which you could end up having lunch--you could be invited to 
somebody's home who has other guests that you're meeting for 
the first time. I do that all the time. As a matter of fact, we 
all do that all the time. Members of Congress are invited to go 
places where we don't know half of the people in the room, and 
we sit with them, we talk with them. And other people in 
America do this also. Are we now subject--not just us, but any 
American--subject to an investigation because we happened to 
talk with, eat with, associate with for 15 minutes, 20 minutes, 
a half hour, an hour, somebody who may be under surveillance or 
may be suspected?
    Mr. Berry. Ms. Waters, my example involved an instance 
where you're eating lunch with a known al-Qaeda operative at a 
restaurant. It is, again, my experience, and I apologize if my 
experience is different from yours----
    Ms. Waters. Well, listen, sir, I hate to keep interrupting 
you----
    Mr. Berry.--that you generally know who you're eating lunch 
with when you're eating lunch at a restaurant.
    Ms. Waters. Some of those Saudis who were whisked out of 
the United States may have been providing funds for the 
madrassahs in Saudi Arabia that I was at a cocktail party with. 
I mean--so what I'm asking you is, not to view this based on 
whether it's rare, it's occasional, or whether or not it 
probably will not happen. I want to know if you support the 
law, and does the law say that I could be issued an NSL based 
on that association, whether it's rare or not.
    Mr. Coble. Mr. Berry, briefly if you can. The gentlelady's 
time has expired.
    Mr. Berry. It is possible, Congresswoman Waters, that if 
you sat down at the food court of an airport and you happened 
to have the misfortune of sitting down and eating with someone 
who is a known al-Qaeda operative, that the FBI would indeed do 
a preliminary investigation of you to determine whether or not 
you actually have any terrorist background.
    Again, I would submit if we see someone in public sitting 
at a restaurant having lunch with a known al-Qaeda operative, 
and the FBI would do nothing to look into that person's 
background to see who they were, I guarantee you that members 
of the FBI, the people in the Department of Justice, perhaps 
including the misfortune of me, would be hauled before this 
Committee and asked why aren't you following up on a legitimate 
investigative lead.
    Mr. Coble. The gentlelady's time has expired. And Ms. 
Waters, I'll say to you if it would help you any, given that 
hypothetical, I would be happy to come forward in your defense 
if it would help.
    Ms. Waters. Well, if they thought you really meant it, I 
would be happy for you to.
    Mr. Coble. Oh, I'd do it.
    Ms. Waters. If you can't really convince somebody that you 
really mean it, then don't do it.
    Mr. Coble. I do indeed mean it.
    Now comes the time, folks, when we're going to be a little 
irregular here. We have a gentleman who has hung tough with us 
for about an hour and a half. He does not sit as a Member of 
the Subcommittee. And the practice of the Subcommittee is that 
in order to question witnesses, you must sit as a Member of the 
Subcommittee. So I'm going to recognize Mr. Scott, the Ranking 
Member, who in turn would yield his time to the gentleman from 
New York, Mr. Nadler, to accommodate you, Mr. Nadler.
    The chair recognizes the distinguished gentleman from 
Virginia.
    Mr. Scott. Thank you, Mr. Chairman. I think I'll take my 
own 5 minutes. No, just joking. [Laughter.]
    I yield to the gentleman from New York, who's been with us 
for the full Subcommittee meeting.
    Mr. Coble. The gentleman from New York.
    Mr. Nadler. Well, thank you. Let me first express my 
appreciation to the Chairman and the Ranking Member for this 
indulgence.
    Mr. Rosenberg, Mr. Berry, whichever of you cares to answer 
it, what bothers me about this section 505, we make all these 
nice legal distinctions and, you know, everything is a 
precedent for everything else--we've done it here, so we'll 
just move it a little further; there's a precedent here, we'll 
just extend it a little further. There doesn't seem to be much 
left of the fourth amendment. There doesn't seem to be much 
left of you shall not seize any person's papers or effects 
without describing the particular place to be searched, the 
particular thing to be seized, and the reason for it and having 
probable cause to suspect a crime.
    When Ms. Waters was talking about just sitting down, I 
mean, people do that all the time. You, Mr. Berry, may think 
that's rare, but people do sit down all the time in my 
district--maybe not in the mall, but you go into Starbucks or 
into Barnes & Noble in the cafe and you hope there's a seat, 
and you sit down next to God knows who. And they're reading 
books, and God knows what they're reading.
    Mr. Berry. Perhaps people want to stay away from me or 
something.
    Mr. Nadler. In any event, it seems to me that there has to 
be some predicate other than--you're saying because I sat down 
with somebody, you can look at all of my ISP records, et 
cetera. Now, yes, I understand that if you don't follow up on 
someone who's seen having lunch with an al-Qaeda agent, someone 
would raise perhaps legitimate questions. But there's no review 
here. And there's secrecy here.
    Now, would you agree that there should be some amendment to 
section 505 to put--now, we did have--Judge Marrero did rule 
section 505 unconstitutional as a violation of both the fourth 
amendment, because of no judicial review, and of the first 
amendment, because of the gag order. Would you agree that there 
ought to be some amendments made to section 505 to render it 
constitutional under the rirst and fourth amendments, perhaps a 
time limit on the gag order and ability to talk to counsel, or 
restoration of the standard that records sought relate to a 
suspected terrorist or a spy, things like that?
    Mr. Berry. That's an excellent question, I think, with 
respect to two issues. Number one, can you consult an attorney. 
We've taken the position that you can. The ACLU and Judge 
Marrero disagreed with us.
    Mr. Nadler. Well, they didn't disagree that you ought to be 
able to, they just----
    Mr. Berry. No, that you couldn't under current law.
    Mr. Nadler. You would agree that the statute ought to be 
amended to clarify that?
    Mr. Berry. The Department of Justice is not opposed in 
principle to such an amendment, and we could work with you on 
specific language.
    Secondly, we have taken the position in litigation you can 
obtain pre-enforcement judicial review of the NSL.
    Mr. Nadler. Cannot or can, did you say?
    Mr. Berry. You can. To the extent that Congress does not 
think that that is clear, we are not opposed in principle to--
--
    Mr. Nadler. How can you get pre-enforcement judicial review 
if you don't know about it?
    Mr. Berry. Well, the recipient does know about it.
    Mr. Nadler. The recipient. But the recipient is not the 
party of interest. In other words, you tell my Internet server 
that you want all the records related to what I read or what 
sites I visited. Now, I might object to that. The recipient 
gives it to you as a matter of course.
    Mr. Berry. Well, that's no different than in the context of 
a subpoena. It is the recipient of a grand jury subpoena that 
has the right to move to quash; it's not the person whose 
records are being sought. They have no standing to move to 
quash, and, indeed, they almost never know that the records are 
being sought. So I think that's the appropriate analogy. And if 
I understand correctly, what the ACLU is advocating is that the 
recipient be allowed pre-enforcement judicial review. And 
again, we have no objection in principle to clarifying the 
statute in that regard if Congress deems it necessary.
    Mr. Nadler. If the ISP in that case does not move to quash, 
do they have any civil liability to me if they should have? 
Under any circumstances?
    Mr. Berry. Under--and this isn't my area of expertise, but 
under 18 USC 2707, I don't believe in a typical case you would 
have civil liability. In an extreme case, where the ISP might 
have overwhelming evidence that an NSL was being issued----
    Mr. Nadler. Let me ask Mr. Nojeim. How could we protect the 
interest of the party of interest whose records are being 
sought here?
    Mr. Nojeim. To do that, you would have to statutorily 
protect the records. You could----
    Mr. Nadler. Statutorily protect what?
    Mr. Nojeim. The records. You could impose a notice 
requirement. We're not asking that that be done. I don't think 
that Congress would do that. I think that under the 
circumstances that we have here that what we ought to be 
focusing on is what's in the Senate version of the SAFE Act, 
which is time-limiting the gag, giving the recipient to the 
National Security Letter an opportunity to challenge it, and 
explicitly making it clear that a person who receives a 
National Security Letter can consult with an attorney.
    Mr. Nadler. Those are the three?
    Mr. Nojeim. And additional disclosure about the use of 
National Security Letters.
    If I could just--could I take a minute to respond to the 
argument that----
    Mr. Coble. Mr. Nojeim, if you'll be very brief. We have a 
gentleman from California I think has just joined, Mr. Lungren, 
and we're going to have votes imminently. So if you can be very 
brief, Mr. Nojeim, because Mr. Nadler's time has expired. Very 
briefly.
    Mr. Nojeim. I just want to illustrate, if I could, how the 
court struck down section 505 of the PATRIOT Act, section 
505(a).
    The first of these placards--and this is in my testimony--
shows what the statute looked like before the PATRIOT Act 
amended it.
    The next placard shows how the PATRIOT Act amended the 
National Security Letter statute. Everything that's in yellow 
was added. Everything that is struck through was struck from 
the statute. And as you can see, section 505(a) completely 
rewrote this statute.
    The third placard shows what's left of the statute after 
the court struck it down. It struck down the entire statute--
that which was added, that which was in the statute before.
    And I just don't think that there's any credibility to the 
argument that the court struck a section of the PATRIOT Act. If 
the Government wants to concede that it went further and struck 
not just what the PATRIOT Act amended but what was already in 
the statute before the PATRIOT Act, fine.
    Mr. Nadler. I thank you again, and again let me thank the 
Chairman for his indulgence.
    Mr. Coble. Good to have you with us, Mr. Nadler.
    Mr. Nadler. Thank you.
    Mr. Coble. Now, we're going to try to start a second round 
here. Mr. Scott and I will kick it off, but there will be a 
vote and when that vote is called, we likely will terminate the 
hearing rather than keep you all here. And if Members of the 
Subcommittee have additional questions, we can always submit 
those in writing.
    Mr. Berry, in Mr. Nojeim's testimony, he referred to the 
case of Doe v. Ashcroft which he claimed struck down a 
provision of the PATRIOT Act as unconstitutional. Another ACLU 
attorney, however, Mr. Jaffer, contradicts Mr. Nojeim's claim, 
stating that the provisions ``that we challenged and that the 
court objected to were in the statute before the PATRIOT Act 
was passed.'' Mr. Jaffer noted that, ``we could have raised the 
same objections before the power was expanded.''
    Now, which of the two ACLU attorneys is correct and on the 
money?
    Mr. Berry. Mr. Jaffer is a very wise man in many ways, and 
I agree with him in this instance.
    Mr. Coble. But that's not to say that Mr. Nojeim was not, 
is it, Mr. Berry?
    Mr. Berry. No. I respect him. But if I could just be more 
specific here. There were two provisions that were specifically 
identified as being unconstitutional. We don't agree with the 
court's ruling, but I'm just going to lay that out.
    The first is the nondisclosure provision. The nondisclosure 
provision has been in the law since 1986, since the passage of 
the Electronic Communications Privacy Act. It was there before, 
it was there after the PATRIOT Act. The PATRIOT Act did not 
affect that at all.
    The second issue was this fourth amendment issue about the 
ability of the recipient to obtain judicial review. There, 
that's a statutory interpretation issue. The court did not 
agree with us that the recipient has the ability to mount pre-
enforcement judicial review. But the changing of the standard 
under section 505 of the PATRIOT Act had nothing whatsoever to 
do with whether or not you can obtain judicial review.
    And the charts that Mr. Nojeim has, I will admit, make 
great props. But he omitted one important chart, and I wish I 
would have had it here today. If you would have had a chart 
about what is the result if we had never passed the PATRIOT Act 
and the ACLU had brought the same challenge to section 2709, 
under Judge Marrero's ruling you would still have that big ax. 
The changes in the PATRIOT Act had nothing whatsoever to do 
with the ruling in that case, and the ACLU's attorney, Mr. 
Jaffer, who's actually litigating that case, correctly 
recognized that when he said, and I quote, ``The provisions 
that we challenged and that the court objected to were in the 
statute before the PATRIOT Act was passed.''
    So I think that his statement is right on the money.
    Mr. Nojeim. Chairman Coble, I talked to Mr. Jaffer before 
the hearing and I asked him about that quote. You know what he 
said to me? He said, ``I did say that.'' And then I added also 
that the challenge that we made would not have been successful, 
may not have been successful had the PATRIOT Act not amended 
the statute. And the court repeatedly referred to changes that 
the PATRIOT Act made in making its decision. In finding the 
statute unconstitutional under the fourth amendment, Judge 
Marrero said--he cited as an example the kind of abuse now 
authorized by the statute, that it could be used to issue an 
NSL to obtain the name of a person who posted a blog critical 
of the Government on a Web site. He said that--I'm sorry. Just 
a moment.
    Or to obtain a list of the people who have e-mail accounts 
with a given political organization. The Government could not 
have obtained this information with an NSL prior to the PATRIOT 
Act amendment in section 505 unless the blogger or the people 
with such accounts were thought to be foreign powers or agents 
of foreign powers. The court also cited PATRIOT Act section 505 
when it struck the statute down on first amendment grounds. The 
court determined that the tie to foreign powers eliminated by 
section 505 ``limits the potential abuse'' of the statute and 
distinguishes it from other intelligence search provisions that 
retain the requirement of such a tie and include a statutory 
gag provision.
    Mr. Coble. Well, let me recognize Mr. Berry again since I 
put the question to him. Mr. Berry? Then I'll recognize Mr. 
Scott.
    Mr. Berry. It is certainly true that the district court 
opinion discussed section 505. The key question is what was its 
ruling? Its ruling on the fourth amendment point was that the 
statute was unconstitutional because there was no pre-
enforcement judicial review available to the recipient. I would 
like anyone to explain to me how section 505 of the PATRIOT Act 
impacted that issue.
    Secondly, it was held unconstitutional under the first 
amendment because of the permanent nondisclosure requirement. 
We disagree with that opinion. But that same nondisclosure 
requirement was in place from 1986 on, and I think that Mr. 
Jaffer was very candid when he talked about the provisions 
being there before the PATRIOT Act and their being there now. 
And I think the answer here is one of statutory interpretation. 
It's really not a constitutional disagreement between us and 
Judge Marrero.
    Mr. Coble. Well, my time is about to expire. In fact it has 
expired.
    I recognize the distinguished gentleman from Virginia, the 
Ranking Member, Mr. Bobby Scott.
    Mr. Scott. Thank you, Mr. Chairman.
    Mr. Berry, how many people have had their records sought 
through National Security Letters?
    Mr. Berry. Congressman Scott, Congress requires us to file 
regular reports on our use of each of the National Security 
Letter statutes. We are up to date with our compliance, and 
that information is classified, but available to you.
    Mr. Scott. When you get information from a National 
Security Letter, how many people can look at it?
    Mr. Berry. That matter is covered by the Attorney General's 
Guidelines for National Security Investigations. The NSL 
statutes specifically require that there be guidelines for 
dissemination and that there only be dissemination when 
dissemination would be relevant to the person's duties who's 
receiving that information. So that really is a case-by-case 
determination.
    Mr. Scott. Is that subject to the records-sharing, where 
any national defense and law enforcement and everybody else in 
town can look at it? Or is that just the FISA information?
    Mr. Berry. Well, section 203(d), which you're referring to, 
refers to information that's obtained as to law enforcement 
investigations. The NSL generally is not any law enforcement 
investigation per se, so it's not really covered by 203(d). It 
would be treated as other intelligence information is.
    Mr. Scott. We talked about, under the material witness, the 
arrest, you need probable cause, Mr. Rosenberg, you need 
probable cause for the arrest. How is this different from 
arresting somebody in the normal run-of-the-mill criminal 
warrant. Well, I guess it would allude to the Mayfield case, 
because he was arrested on a material witness warrant rather 
than a criminal warrant. Without referring to that case, what's 
the difference?
    Mr. Rosenberg. It's the same standard, Congressman, but it 
goes to a different question. In the routine criminal case, 
where you seek an arrest warrant, it's probable cause that a 
crime has been committed and the person you seek to arrest 
committed the crime. In the regular routine criminal search 
warrant, that a crime has been committed and--probable cause 
that a crime has been committed and that the fruits of the 
crime, evidence of the crime would be at a particular location. 
Here, it's simply probable cause to believe that testimony of a 
witness is material and that it would be impracticable to 
secure that testimony by other means, such as a subpoena.
    So it's always probable cause, but it's just a different 
type of inquiry.
    Mr. Scott. Well, can you use it against a suspect where his 
own testimony may--I mean, he was a suspect.
    Mr. Rosenberg. I understand your question, and it's an 
excellent one. It's not always the case that a witness is just 
a witness. They may also be a subject or a target of an 
investigation. It's not mutually exclusive. I mean, if you 
think of it----
    Mr. Scott. So you can arrest a suspect if they're a 
suspect.
    Mr. Rosenberg. Let me finish, because I think I can help on 
this.
    Mr. Scott. Okay.
    Mr. Rosenberg. It's almost always the case, or I would say 
it's probably always the case that someone who commits a crime 
is also a witness to the crime. You know, just common sense.
    So that's not a grand revelation. But if we arrest someone 
as a material witness and then later learn through other 
sources that that witness is more than a witness, that the 
witness participated in a conspiracy or the crime, then they 
could be subsequently charged. There's nothing that would 
preclude that.
    Mr. Scott. Yes, but that's the little problem we have here. 
You arrest them when they're a suspect, when you don't have 
probable cause that they're guilty but you kind of think they 
are, so you use a material witness, drag them in, lock them up, 
and then go out and make the case, if you can. And meanwhile, 
they're locked up.
    Mr. Rosenberg. I've heard that criticism.
    Mr. Scott. Can you get bond while you're under material 
witness?
    Mr. Rosenberg. Absolutely. Absolutely. Under 18 USC 3142, 
the Bail Reform Act, which is referenced specifically in the 
material witness warrant, a material witness arrested on such a 
warrant is entitled to a hearing under that provision. 
Absolutely.
    Mr. Scott. Let me get extraterritorial, very quickly. Have 
we covered everybody overseas associated with the United States 
working, military, and otherwise, in Iraq so that they are 
under somebody's criminal code?
    Mr. Berry. Congressman Scott, it is our belief that 
Congress has done that. section 804 filled in, with respect to, 
you know, U.S. military bases and diplomatic bases, kind of the 
last remaining gap. We believe that you would always be covered 
either by the Uniform Code of Military Justice, the Military 
Extraterritorial Jurisdiction Act----
    Mr. Scott. That's the 2000 law we passed.
    Mr. Berry. Yes. Or section 804 of the PATRIOT Act. And so 
we don't----
    Mr. Scott. So you don't have anybody over there associated 
with the United States Government, playing poker or shooting 
somebody, not subject to any criminal code?
    Mr. Berry. We're unaware of any jurisdictional gap. 
Certainly, if anyone has evidence that one exists, we would 
definitely want to know about it and take a look at it. But I 
don't think one exists.
    Mr. Coble. The gentleman's time has expired.
    The chair recognizes the distinguished gentleman from 
Texas, Mr. Gohmert, for 5 minutes.
    Mr. Gohmert. Thank you.
    I really just have one question, and it's for Mr. Berry and 
Mr. Rosenberg. I know at times I'm sarcastic and flippant, but 
I really have a very basic and important question to me that 
goes to the heart of all this for me and concerns about 
constitutional supervision and safety nets with regard to the 
immense powers under the PATRIOT Act.
    And preface it by saying I respect the President, I like 
the President, I thank God he's there. I disagree with him on a 
couple of things, but I have such immense respect and 
admiration for the man. I'm just very glad he's there. I like 
Alberto Gonzales, I know a great deal about him. I just like 
the guy. And I have a tremendous number of friends in DOJ, 
Federal law enforcement officials.
    But I'm going to paint a hypothetical. And I know it's so 
outlandish and so crazy, you may think it's just ridiculous, it 
could never happen. But just, you know, humor me on this, 
because the bottom line will be what in this situation would be 
the constitutional safety net. To me it's a very serious 
question.
    Say hypothetically--I know it could probably never happen, 
but just say that it might have--that you had a White House 
that was so politically corrupt and abusive of constitutional 
rights that they would call for a thousand FBI files to be 
delivered to the White House, and that done so that they could 
review the information for, say, on the Chairman of the 
Judiciary Committee, something like that, or political enemies, 
people that had been a thorn in the side of the White House. 
They want information that they can use in the pressure to back 
off politically.
    And this is a White House, hypothetically, that's so 
contemptuous of the law and the courts and truth that they've 
received subpoenas for records of perhaps a law firm that one 
of them had worked for, been partner in. And they don't even 
furnish the records even though they're present in the White 
House. So contemptuous of the law and truth that the White 
House would misrepresent the truth and answers to court 
discovery under oath.
    And say the White House said the death of somebody that was 
an attorney at the White House, and people were seen taking 
material out of the dead man's office before the investigators 
get there. And you have a Department of Justice, right at the 
very top, an Attorney General who himself or herself is not 
perhaps that bright and so the person under him just completely 
manipulates, allows him to be kept in the dark so he doesn't 
really know everything that's going on, so he can go before the 
Judiciary Committee in the House and Senate and swear that 
things never happened because he didn't know that they were 
happening and going on, because he's kept in the dark by the 
people the White House put under him in the AG's office.
    And say from that top of the DOJ you have orders to use 
NSLs, to get personal information on the political enemies or 
major contributors of opponents of the White House. There's a 
gag order in effect. The White House is the one demanding the 
information and so are the people at the top of the DOJ. It's 
hard to get congressional help or supervision because they're 
kept in the dark because the AG is not giving them information 
because he either doesn't know or doesn't come forth.
    What is the constitutional safety net for people's rights 
and the privacy of their information in such a hypothetical?
    Mr. Coble. Mr. Berry, if you will, we have a vote, so if 
you can be terse, I would appreciate it. We're going to adjourn 
after this response.
    Mr. Berry. I'll try to be brief. That's certainly a large 
hypothetical.
    Mr. Gohmert. Well, it's a large hypothetical, but it should 
be a very short answer.
    Mr. Berry. I'm going to answer it in particular with 
respect to the NSL component. What I can tell you is that there 
is a process in place at the FBI with multiple layers of review 
before an NSL is issued. An agent has to write up a memo 
explaining what the predication is and requesting authority to 
issue an NSL. That memo is then reviewed by his or her 
supervisor. Then it would be reviewed by the Special Agent in 
Charge of the field office, who's a very high-ranking official, 
as well as, typically, the top lawyer in the FBI field office. 
So you have multiple layers of review designed to guard against 
abuse.
    Secondly, if the recipient of the NSL believes it to be an 
unwarranted NSL, we believe that, under the current statute, 
the recipient of that NSL may consult an attorney and seek pre-
enforcement judicial review of the NSL. It should be clear 
under the statutes that we have no authority to enforce the NSL 
ourselves. We cannot go to the ISP, demand their records, and 
take them if they won't give them to us. The only way that we 
can enforce an NSL is in court, and the recipient of the NSL 
has every opportunity to contest that.
    Now, with respect to people acting in bad faith, it's 
exceptionally important to know that the men and women at the 
FBI take their jobs very seriously and are excellent 
professionals. To the extent that you would have a rogue agent 
who would in bad faith type up an NSL request on false 
predication----
    Mr. Gohmert. Yes, but that wasn't part of the hypothetical. 
It was from the top the order came down to do it.
    Mr. Berry. I would also say that under congressional 
statutes, the Attorney General is obliged to ``fully inform'' 
appropriate congressional Committees regarding our use of NSLs, 
and that Congress should conduct appropriate oversight of our 
use of them.
    Mr. Coble. The gentleman's time has expired.
    I thank the Members of the Subcommittee, in addition to Mr. 
Nadler, for having attended today. I thank the witnesses as 
well.
    Mr. Delahunt. Mr. Chairman, could I just ask one question 
before you adjourn?
    Mr. Coble. Very briefly, if you will. We do have a vote on.
    Mr. Delahunt. You know the FOIA request that was put 
forward by the ACLU, and we saw the redactions, I mean why 
wouldn't that raw data be available?
    Mr. Coble. Again, Mr. Berry, very quickly. We're on a short 
leash here.
    Mr. Delahunt. I mean, everybody can go and I'll just wait 
for the answer. [Laughter.]
    Mr. Berry. Two very quick points, then.
    Mr. Coble. Very quick.
    Mr. Berry. Number one is the information is available to 
Congress. And I would note, after----
    Mr. Delahunt. No, my question, Mr. Berry, is why wouldn't 
it be available to the American people?
    Mr. Berry. Those in charge of the classification process 
have to weigh the damage to national security----
    Mr. Delahunt. Raw numbers, Mr. Berry.
    Mr. Berry. Yes. The determination has been made that 
letting people know how often we are using one NSL statute 
versus another NSL statute versus another NSL statute would 
give those in foreign intelligence operations and our terrorist 
enemies an inclination of our----
    Mr. Delahunt. Now, that is just absurd. That is really 
silly. Now, this is the problem that you have. You hear a lot 
of expression of concern here, and it goes way beyond just the 
Department of Justice. The feeling is that we have a Government 
now that has more information every day about us, and, at the 
same time, American citizens know less about their Government. 
And that, I would suggest is the problem that we all have, and 
please send that message back from me so when we negotiate----
    Mr. Coble. Mr. Berry, let me get you and the gentleman from 
Massachusetts together. Let me wrap up so we can go vote. 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. Any written questions that a 
Member wants to submit should be submitted to the witnesses in 
the same 7-day time frame.
    This concludes the oversight hearing on the implementation 
of the USA PATRIOT Act section 505 that addresses National 
Security Letters, section 804 that addresses jurisdiction over 
crimes committed at U.S. facilities abroad, and material 
witnesses provisions of the criminal code.
    Thank you for your cooperation and for those in the 
audience who attended.
    The Subcommittee stands adjourned.
    [Whereupon, at 11:25 a.m., the Subcommittee adjourned.]

                            A P P E N D I X

                              ----------                              


               Material Submitted for the Hearing Record

Prepared Statement of the Honorable John Conyers, Jr., a Representative 
 in Congress from the State of Michigan, and Ranking Member, Committee 
                            on the Judiciary

    Today we're reviewing some of the most troubling aspects of this 
Administration's anti-civil liberties record.
    Section 804 of the PATRIOT Act took the teeth out of the Military 
Extraterritorial Jurisdiction Act. Also know as MEJA, this law gave the 
Justice Department the authority to prosecute crimes committed by or 
against military personnel and those accompanying the military when the 
same act would be a felony in the United States.
    However, Section 804, while at once clarifying the MEJA applied to 
military, consular, diplomatic premises over seas, also exempts 
military personnel from prosecution for their actions at these sites. 
In light of the horrific detainee abuse that has now been well 
documented by the press and human rights organizations, we must 
reconsider whether we really want to exempt the officials who torture 
and demoralize detainees from prosecution under this statute.
    The material witness statute, which exists for the sole purpose of 
allowing law enforcement to briefly detain a witness until he or she 
can be deposed or testify, has become a blank check for the Justice 
Department. It has chosen to use this statute to detain men of middle 
eastern descent suspected of illegal activity when there is no probable 
cause to charge them with an actual crime.
    The Justice Department will tell us today that the statute is fine 
because a judge holds a hearing before detention ensues. Yet when men 
disappear for months at a time, and never testify or give a deposition, 
something is wrong.
    Finally, National Security Letters are among the most troubling 
parts of the PATRIOT Act, and regretfully are not scheduled to sunset. 
Issued without judicial oversight, and demanding an absolute gag 
indefinitely, these records demands aren't even directed at anyone 
suspected of any wrongdoing.
    That there are now proposals to expand them to cover all records--
not just telephone and internet records, financial documents, and 
consumer records as they do now--speaks to the absolute power grab of 
the Justice Department. If this now, what next? How many more freedoms 
are we going to throw away supposedly in the name of security?
    As we go forward with legislation in the near future we must keep 
these questions in mind. We've compromised too many rights already, for 
too little in return. We must all sincerely consider whether a handful 
of guilty pleas given by people with little or no connection to 
September 11, is worth the privacy we're glibly handing over to the 
government.

                               __________

Prepared Statement of the Honorable Maxine Waters, a Representative in 
                 Congress from the State of California

    Mr. Chairman, section 505 of the Patriot Act and the Material 
Witness Statute, violate Americans' privacy rights and civil liberties 
and both provisions should be repealed. In section 505, notice to the 
subject of the investigation is not required and the powers granted 
under the section are not subject to judicial oversight. The material 
witness provision allows the government to indefinitely and secretly 
detain someone who is deemed a ``material'' witness to an 
investigation, without any requirement that the witness actually 
testifies.
    Mr. Chairman, section 505, the ``National Security Letters'' 
section of the Patriot Act allows law enforcement to demand detailed 
information about an individual's private records without judicial 
review, without the individual ever being suspected of a crime, and 
without a requirement that law enforcement notify the individual that 
they are the subject of an investigation. Furthermore, this section 
contains an automatic, permanent gag order on the recipient of a 
National Security Letter, not even allowing the recipient to consult 
with an attorney. And law enforcement can act independently--now any 
local law enforcement office can invoke the power of this section.
    Mr. Chairman, this power represents a clear violation of the fourth 
amendment right against unreasonable search and seizure, as well as 
threatening speech protected under the first amendment. In fact, a U.S. 
District Judge struck down section 505 in a case involving the 
government's collection of sensitive customer records from Internet 
Service Providers and other businesses without judicial oversight. The 
judge found that the government's seizure of these records constituted 
an unreasonable search and seizure under the fourth amendment and found 
the broad gag provision to be an unconstitutional prior restraint on 
free speech.
    Mr. Chairman, the Material Witness Statute is just as detrimental 
as section 505. Under this statute, the government can detain and 
arrest anyone, indefinitely, without any criminal charges being filed, 
as long as it appears from an affidavit that the individual has 
testimony that is ``material'' to a ``criminal proceeding.'' This 
statute was created to be applied only in particular situations where 
the witness was deemed a flight risk and the witness would only be 
detained until he/she testified or was deposed. However, it appears 
that since 9/11, the Department of Justice has been misusing this 
statute to indefinitely detain individuals the government suspects as 
possible terrorists. The government has not been advising the 
``material witnesses'' of their constitutional rights to an attorney 
and has not been complying with the witness' requests for an attorney.
    Mr. Chairman, the government has even been making these arrests in 
secret by gagging the lawyers and family members involved, and sealing 
all court proceedings related to the ``material witness.'' In fact, 
since 9/11 many cases involving the Material Witness Statute have 
resulted with a public apology from the government for wrongly 
detaining an individual who actually had nothing to do with the 
investigation at hand.
    Mr. Chairman, we must limit the powers invoked under the Material 
Witness Statute and under section 505 of the Patriot Act. The 
government's powers to secretly detain an individual, even if they are 
deemed a ``material witness'' that is a flight risk, must be checked, 
and the government's power to the secret search and seizure of an 
individual's personal records must be checked. Though national security 
has become top priority since 9/11, we must not overstep the boundaries 
set by the Constitution to protect our civil liberties and our right to 
privacy.
    Mr. Chairman, absent a clear demonstration from law enforcement 
that these provisions are necessary, section 505 should be repealed and 
some limitations need to be implemented into the Material Witness 
Statute to protect the rights guaranteed to us by the Constitution. I 
yield back the balance of my time.

                                 
