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