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



                 REAUTHORIZATION OF THE USA PATRIOT ACT

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

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 8, 2005

                               __________

                           Serial No. 109-10

                               __________

         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                  CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana                  DEBBIE WASSERMAN SCHULTZ, Florida
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


                            C O N T E N T S

                              ----------                              

                              JUNE 8, 2005

                           OPENING STATEMENT

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

                                WITNESS

The Honorable James B. Comey, Deputy Attorney General, U.S. 
  Department of Justice
  Oral Testimony.................................................     4
  Prepared Statement.............................................     6

          LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Prepared Statement of the Honorable John Conyers, Jr., a 
  Representative in Congress from the State of Michigan, and 
  Ranking Member, Committee on the Judiciary.....................     2
Prepared Statement of the Honorable Maxine Waters, a 
  Representative in Congress from the State of California........     3

                                APPENDIX
               Material Submitted for the Hearing Record

Indictment of Tarik ibn Osman Shah submitted by F. James 
  Sensenbrenner, Jr., Chairman, Committee on the Judiciary.......    33

 
                        REAUTHORIZATION OF THE 
                            USA PATRIOT ACT

                              ----------                              


                        WEDNESDAY, JUNE 8, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10 a.m., in Room 
2141, Rayburn House Office Building, the Honorable F. James 
Sensenbrenner, Jr. (Chairman of the Committee) presiding.
    Chairman Sensenbrenner. The Committee will be in order.
    A quorum is present for the taking of testimony. Today 
marks the Committee's eleventh hearing in a series of oversight 
hearings on the reauthorization of the USA PATRIOT Act. We are 
pleased to have with us as our witness today the Deputy 
Attorney General, James Comey.
    Mr. Comey, it is my understanding that you are leaving the 
Department of Justice, and I would like to thank you for your 
dedication and service to our country.
    I would also like to thank Chairman Coble, Ranking Member 
Scott, and other Members of the Subcommittee on Crime, 
Terrorism, and Homeland Security, for holding nine of the 11 
hearings on the PATRIOT Act. These hearings have been 
beneficial in informing Congress and the public about many 
aspects of the PATRIOT Act, and also demonstrate this 
Committee's continued commitment to taking our oversight 
responsibility seriously.
    As this series of hearings has shown, the PATRIOT Act has 
been effective in bringing down the wall that prevented 
information sharing between the intelligence community and law 
enforcement. It has also updated the tools of law enforcement 
to match the technology used by the terrorists and criminals 
today.
    In reviewing the authorities of this act, it is crucial to 
focus on the facts, and not on hypothetical scenarios. In a 
post-9/11 world, it would be irresponsible to refuse to provide 
our law enforcement authorities with vital anti-terrorism tools 
based solely on the possibility that somewhere at some time 
someone might abuse the law.
    Unfortunately, all Government powers have the potential to 
be abused; which is why Congress provides penalties for such 
abuse. Additionally, Congress, the courts, and the executive 
branch have created several protections against abuse before, 
during, and after the enactment of the PATRIOT Act.
    Rather than base the decision on whether to reauthorize the 
PATRIOT Act on scenarios on how it might be abused, I think it 
is more constructive to focus our review on how the PATRIOT Act 
has actually been used.
    A real-life example on how the tools of the PATRIOT Act 
have been effectively used involves a recent case of two U.S. 
citizens, Tarik ibn Osman Shah and Rafiq Sabir, who were 
arrested and indicted on charges of providing material support 
to al-Qaeda. This investigation began in 2002, and over the 
course of 3 years the FBI used several provisions enhanced by 
the USA PATRIOT Act. So that everybody may see how the FBI used 
these tools, I am submitting for the record a copy of the 
indictment which was unsealed on May 31st.
    [The material referred to is located in the Appendix.]
    Chairman Sensenbrenner. I am pleased that these hearings 
have also been effective in dispelling public misconceptions 
about the PATRIOT Act. For instance, the Attorney General 
informed us that section 215, dubbed ``the library provision,'' 
has never been used to obtain business records from a library 
or bookstore.
    However, the hearings have also demonstrated the danger of 
carving out safe harbors or exemptions that terrorists could 
exploit. As U.S. Attorney Wainstein testified, the 9/11 
terrorists used computers in public libraries to check on their 
travel arrangements for the day of the attack.
    These hearings also corrected the erroneous claim that 
probable cause was no longer necessary when law enforcement 
sought court approval for surveillance orders. Probable cause 
is needed in both a criminal case or an intelligence case. For 
a criminal case, there must be probable cause that a crime has 
been or is about to be committed; and for an intelligence case, 
there must be probable cause that the target of the 
surveillance is an agent of a foreign power. These probable 
cause standards existed before the PATRIOT Act, and remain 
unchanged.
    The hearings also provided the Members and the Department 
of Justice the opportunity to discuss the adequacy of notice to 
suspected terrorists and criminals, the need for reporting to 
Congress, and the ability to challenge the intelligence 
authorities in court.
    The hearing today will provide Members the opportunity to 
address any issues that remain open and allow the Deputy 
Attorney General to address any concerns that were raised 
during the previous hearings. With that, I recognize the 
Ranking Member, the gentleman from Michigan, Mr. Conyers, for 
his remarks.
    Mr. Conyers. Thank you, Chairman Sensenbrenner. I'm 
delighted to be here and welcome the Honorable James Comey, 
Deputy Attorney General for the Department of Justice. We have 
your prepared statement, and we look forward to a rigorous 
discussion during this hearing.
    I'd also ask unanimous consent to put my statement in the 
record at this time, and I'll return any time that I have.
    Chairman Sensenbrenner. Without objection, the gentleman's 
statement will be placed in the record. Without objection, all 
Members' opening statements will be placed in the record at 
this point.
    [The prepared statement of Mr. Conyers follows:]

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

    There are few issues that are more important to this Committee or 
this Congress than the Patriot Act and the war against terror. This not 
only affects the rights and privacy of every American, but impacts the 
extent our nation is able to hold itself out as a beacon of liberty as 
we advocate for democracy around the world.
    For many of us, this process of hearings is not merely about 
whether we should extend 16 expiring provisions of the USA Patriot Act; 
its about the manner in which our government uses its legal authorities 
to prosecute the war against terror, both domestically and abroad.
    That is why I think its so critical that our Committee hold 
hearings on the practice of closed immigration proceedings; the 
sanctioning of torture and abuse; and the widespread use of racial 
profiling of Arab and Muslim Americans. To avoid issues of this nature 
is to avoid dealing with the concerns that go to the very heart of our 
constitutional values and principles in my judgment.
    If the Majority is not willing to hold hearings on such issues, I 
believe fundamental fairness and comity dictate that those Members who 
have an interest in doing so be able to conduct their own forums, as 
has always been the case on this committee.
    The importance of this issue is also why I believe that at the very 
least the Members are entitled to answers to their written questions 
before we markup any legislation. There is no reason in the world that 
the Department of Justice--the largest law firm in the world--can't 
take time to respond to our questions in a timely and useful manner.
    In order to protect the rights of the Minority to a fair process, I 
am today submitting a letter seeking additional hearings. I of course 
remain open and hopeful that we can resolve these matter though the 
ordinary give and take of discussions with the Majority, as we have in 
the past.
    As we move from the hearing process to legislation, there is no 
member of this Committee who is more interested in developing a 
bipartisan solution to the problem of terrorism in the 21st century 
than I am. Events in the Senate make it all the more imperative that we 
come to the table with a united front to this problem. We came very 
close to such an approach four years ago, and there is no reason we 
cannot craft a bill which protects our nation against terrorists, while 
preserving our fundamental values.

    [The prepared statement of Ms. Waters follows:]

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

    Mr. Chairman, the USA Patriot Act has too many provisions that 
leave the government with too much discretion and power in their 
application. Furthermore, the Patriot Act provides absolutely no checks 
on government power and leaves too much room for misuse and abuse of 
its provisions, which could lead to an unconstitutional application of 
the law. Therefore, many sections of the USA Patriot Act should be 
allowed to sunset at the end of the year.
    Mr. Chairman, to illustrate, section 215 of the Patriot Act allows 
the government to seize and search business records and any other 
tangible things that are ``relevant'' to an international terrorism 
investigation or an investigation of clandestine intelligence 
activities. The recipient of the orders to turn over the records, are 
placed under a gag order, prohibiting them from telling anyone about 
the search or seizure. This section clearly overreaches.
    In the government's ability to secretly seize and search any 
records that are ``relevant'' to the investigation, the information the 
government can seize is overwhelming. For it gives the government too 
much secret surveillance power. American citizens have the right to be 
eventually notified that they are under surveillance and section 215 
impedes on that right by allowing the government to conduct 
surveillance, without the requirement of notice, for time periods that 
are unspecified and unchecked.
    Mr. Chairman, another example of the Patriot Act's vast powers is 
section 206. This provision should also be allowed to sunset. Section 
206, allows the government to obtain ``John Doe'' roving wiretaps in 
foreign intelligence cases. There is no requirement to specify a target 
or a telephone, and the government can use the wiretaps without 
checking that the intercepted conversations actually involve a target 
of the investigation. In addition, these wiretaps are ordered with no 
requirement to give the target notice that they are being wiretapped. 
This section is blatantly unconstitutional. It violates the Fourth 
Amendment by failing to specify, with ``particularity,'' what the 
subject of the investigation is, again giving the government unchecked 
power to secretly wiretap a target, without sufficient judicial 
oversight.
    Mr. Chairman, these are just a few of the extreme powers bestowed 
upon the government through the USA Patriot Act. Without a carefully 
monitored system of checks and balances, we specifically endanger our 
individual rights to privacy and due process of the laws. Even though 
national security has become a top priority since 9/11, we still must 
not allow our constitutional rights to be so blatantly violated.
    Mr. Chairman, as I have stated before, absent an undeniably clear 
demonstration from law enforcement that these provisions are essential, 
the relevant sections of the USA Patriot Act must be allowed to sunset 
at the end of this year. I yield back the balance of my time.

    Chairman Sensenbrenner. Now it is my privilege today to 
introduce Deputy Attorney General James B. Comey. President 
Bush nominated Mr. Comey on October 3, 2003, and he was 
unanimously confirmed by the Senate on December 9, 2003.
    Prior to becoming Deputy Attorney General, Mr. Comey served 
as the United States Attorney for the Southern District of New 
York, from January 2002 until the time of his confirmation and 
his present post. As U.S. Attorney, he oversaw numerous 
terrorism cases, and created a specialized unit devoted to 
prosecuting international drug cartels.
    Mr. Comey graduated from the College of William and Mary, 
and received his Juris Doctor from the University of Chicago 
Law School.
    Mr. Comey, would you please raise your right hand and stand 
up, and I will swear you in.
    [Witness sworn.]
    Chairman Sensenbrenner. Thank you, Mr. Comey. Let the 
record show that Mr. Comey answered in the affirmative. Without 
objection, his written statement will be included in the record 
as a part of his testimony.
    And Mr. Comey, you are now recognized.

  TESTIMONY OF THE HONORABLE JAMES B. COMEY, DEPUTY ATTORNEY 
              GENERAL, U.S. DEPARTMENT OF JUSTICE

    Mr. Comey. Thank you, Mr. Chairman, Mr. Conyers, Members of 
the Committee. Thank you for this opportunity to come and to 
talk, but most importantly to listen and to respond to concerns 
and questions.
    I believe that people should question authority; that 
people should be skeptical of Government power; people should 
demand answers about how the Government is using its power. Our 
country, I was taught, was founded by people who had a big 
problem with Government power and worried about Government 
power, and so divided our powers and then added a Bill of 
Rights to make sure that some of their concerns were set out in 
writing.
    I think it's incumbent upon the Government to explain how 
it's using power, how its tools have been important, how they 
matter; and to respond especially to the oversight of the 
legislative branch. I think citizens should question authority, 
and should demand the details about how the Government is using 
its power.
    I worried very much a year ago that we were never going to 
find the space in American life to have a debate, a real 
informed discussion about the PATRIOT Act. Instead, where we 
had found ourselves was people on both sides of the issue 
exchanging bumper stickers; people standing around at a 
barbecue or a cocktail party and talking about all manner of 
things, and someone saying, ``Isn't the PATRIOT Act evil?'' and 
people would nod and then go on talking about whether the 
Nationals were going to be a real baseball team or current 
events of some sort; and that we were missing a discussion from 
both sides, a demand for the details and a supplying of the 
details.
    I worried very much about that. I needn't have worried. 
Thanks largely to the work of this Committee and to your 
colleagues in the Senate, we have had, as you said, Mr. 
Chairman, a robust discussion and debate about these tools over 
the last months. And I think the American people understand 
them better. I think all of us have had an opportunity to 
demand details and respond to the questions.
    I look forward to answering any and all questions, 
especially those about the details. I believe that the angel of 
the PATRIOT Act is in those details. The angel is in 
demonstrating that these are tools that make a difference in 
the life of this country and in our ability to protect people 
in this country.
    I think the angel is also in the details that demonstrate 
to folks that the PATRIOT Act is chock full of oversight, in a 
lot of ways that regular criminal procedure is not; full of the 
involvement of Federal judges, full of the involvement of the 
Inspector General, full of the involvement of this Committee 
and other Committees in Congress to conduct rigorous oversight 
in response to our reporting about what we're doing.
    The bottom line, I believe, is that the PATRIOT Act is 
smart; it's ordinary in a lot of respects; it's certainly 
constitutional. We ought to make permanent the provisions that 
have meant so much to the people that I represent: the men and 
women in law enforcement and in the intelligence community 
fighting the fight against terrorism and crimes of all sorts.
    So I thank you for this opportunity. I look forward to a 
robust discussion and debate. And I will try my best to answer 
any and all questions; and not talk past a question, but 
respond directly. So thank you, Mr. Chairman. **
    [The prepared statement of Mr. Comey follows:]

                  Prepared Statement of James B. Comey



    Chairman Sensenbrenner. Well, thank you very much. The 
Chair will enforce the 5-minute rule, as he has done in the 
past. And Members will be called alternatively from one side to 
the other, in the order in which they have appeared. The Chair 
will recognize himself and Mr. Conyers first, and I will 
recognize myself for 5 minutes.
    Mr. Comey, section 218, which is the provision of the 
PATRIOT Act that tore down the so called ``wall'' that 
inhibited or prohibited the sharing of intelligence information 
between the CIA and the FBI, was enacted to change the culture 
that inhibited law enforcement and the intelligence community 
from sharing vital intelligence and criminal information.
    Congress recognized immediately after 9/11 that one of the 
problems that may have contributed to the successful attacks by 
the terrorists was the lack of information sharing. This was a 
problem that previous Administrations and Congresses had tried 
to address, but failed. The PATRIOT Act succeeded. The lack of 
information sharing was also criticized by various commissions, 
including the 9/11 Commission, which was created to examine how 
the terrorists were able to attack our country.
    We're now considering whether or not to reauthorize and 
make permanent section 218. Do you believe that section 218 
helped tear down the wall that prevented communications between 
agencies? Should we make this section permanent? And can you 
give us some specific details on why we had a problem before 9/
11, and how this was solved?
    Mr. Comey. Yes, Mr. Chairman, I'd be glad to, and thank you 
for the question. Section 218 changed our world. It is the one 
part of the PATRIOT Act that is groundbreaking, earthshaking, 
breathtaking to those of us who have devoted our lives to this 
work, because it broke down that wall.
    The situation we had before September 11th, as you said, 
was a situation that didn't make any sense when you're talking 
about fighting international terrorism. My good friend, Pat 
Fitzgerald, now the U.S. Attorney in Chicago, was then the 
chief of the terrorism unit at the U.S. Attorney's Office in 
Manhattan. And he and a dedicated group of agents in the 1990's 
were chasing somebody named ``Osama bin Laden,'' whose name was 
not a household name by any means anywhere in this country 
certainly. But they knew who he was; they knew what he had 
done; and they were tracking him.
    And in the course of doing that, they were working with 
informants; they were conducting surveillance; they were 
obtaining documents. They could talk to foreign police 
officers; they could talk to foreign spies. Most importantly, 
they could talk to al-Qaeda cooperators. They brought a couple 
of guys in from the dark side, and they could talk to them.
    There was only one group they couldn't talk to, and that 
was the group of equally talented investigators and agents, 
literally across the street from the FBI, who were FBI agents 
conducting the so-called intelligence investigation of Osama 
bin Laden and al-Qaeda; conducting surveillance; conducting 
electronic surveillance; talking to witnesses--all parallel to 
what these bright people on the criminal side were doing.
    And as Pat Fitzgerald has said, a world in which he could 
talk to al-Qaeda, but not to other members of the FBI, was a 
world in which we were not as safe as we needed to be.
    And I think there's broad support for that, the notion that 
that's changed our world. Today, when we approach al-Qaeda, if 
we have an al-Qaeda operative or suspected al-Qaeda sleeper 
cell in the United States, we conduct--use our tools under FISA 
conduct our intelligence investigations; but we're able to make 
sure that the criminal prosecutors and criminal investigators 
are in the loop and able to use their tools to incapacitate 
these terrorists. And that makes us immeasurably safer.
    That is the absolutely most important part of the PATRIOT 
Act. And if it were to go away, we would go back to a place 
that people don't want us to be. That changed our world for the 
better, Mr. Chairman.
    Chairman Sensenbrenner. Mr. Comey, much of the criticism of 
the PATRIOT Act has been directed at section 215, which is the 
business records part of the PATRIOT Act. When the Attorney 
General was here a couple of months ago, he said he was going 
to propose some amendments to section 215 to address the 
concerns of the libraries and book stores. Could you detail 
what those changes are the AG proposes? And also, tell us how 
many times this section has been used relative to get library 
and book store records, if you can.
    Mr. Comey. Yes, sir. section 215, as you said, has become 
known as the so-called ``library provision''--something that 
remains a mystery to me. I tease some of my friends in 
journalism, to ask them to do an investigative piece to figure 
out how it came to be called that; because it never occurred to 
those of us in law enforcement, when we saw that we had a 
provision that we could obtain tangible things--which was 
defined as books, records, etcetera--that people would 
understand ``books'' to mean library books.
    Regardless, it's become the ``library provision.'' We've 
never used it in connection with a library or book store, as 
the Attorney General has said. But the Attorney General has 
also said that people have made some reasonable comments about 
section 215, and some constructive criticisms.
    Among other things, they've said, ``Look, you guys in 
Government understand it to be a relevance standard, but it 
doesn't say that in the statute.'' So the Attorney General has 
said that we will support adding a relevance standard. That's 
the way we've operated, and that's what we expect it to be.
    Second, folks have said, ``Look, it doesn't make it clear 
that we're able to talk to a lawyer, and to challenge if we 
believe the order is over-broad or abusive or something like 
that.'' And that's a very good point. And as the Attorney 
General has said, we support putting that in the statute. So, 
if someone receives a 215 order--most likely in the real world, 
a credit card issuer, a hotel company, or a travel record 
company--and they believe for some reason it's inappropriate, 
they can talk to a lawyer. And there are procedures in place, 
and the real power for them to challenge the court--before the 
court that issued that order. The substance of that order. 
That's reasonable. That's appropriate.
    But this is a very, very important tool, and it is a tool 
that offers far more oversight and involvement of the courts 
and Congress than our normal tool to obtain records, including 
records we could obtain from a book store or library; that is, 
grand jury process.
    Section 215 requires that an FBI agent go to a Federal 
judge, nominated by the President, confirmed by the Senate, who 
sits on the Foreign Intelligence Surveillance Court, and make a 
written application for an order to obtain documents. So a 
Federal judge is involved. Then, requires us to report to 
Congress every 6 months on how we're using it precisely; what 
we're using it for; and how many times we've used it.
    There is nothing like that oversight in the thousands and 
thousands of instances every day where we obtain records using 
the grand jury process. I think 215 strikes an important 
balance. It offers oversight and offers a very important tool 
to the FBI to obtain records in our most important 
investigations.
    Chairman Sensenbrenner. Thank you. My time has expired. The 
gentleman from Michigan, Mr. Conyers.
    Mr. Conyers. Thank you, Mr. Chairman.
    Several weeks ago, Mr. Deputy Attorney General, Members of 
the Committee have submitted questions to the Department of 
Justice, and we've not had any response. And if you could help 
expedite a response to those questions--they are all in the 
record of the some-11 hearings that have been held--we would be 
grateful.
    Now, let's be frank about this subject that we're on. We've 
had lots of hearings, but here is the problem. We haven't been 
discussing much more than the expiring provisions in the 
PATRIOT Act. Which is fair enough: we've got to make sure we 
want to keep them, or we want to let them go.
    There have been a few added, but let me review with you the 
matters that have not come before the Committee at this point:
    The torture and abuse of detainees, Abu Ghraib, Guantanamo, 
and other places;
    The outsourcing of torture; that is, rendition, sending 
people to countries where we know torture is a standard 
activity;
    The practice of closed immigration hearings;
    The indefinite detention of thousands of people who 
responded to the Department of Justice and then end up being 
kept and held without notification to their families or without 
them being able to contact a lawyer;
    The racial profiling of many of the more than 30 countries 
with Middle Eastern origins;
    And, the use of FISA authorities on non-terrorism cases.
    Now, what we are trying to do here--and we're in the 
process of deciding this within the Committee--is whether we're 
going to just review mostly the provisions that are expiring, 
or whether we're going to have an opportunity to look at the 
whole PATRIOT Act.
    And I don't want to take you into ancient history, but I 
think you know the rather murky circumstances of which the 
original bill this Committee passed was substituted for a bill 
that came from the Department of Justice to the Rules Committee 
the night before it came to the floor. Are you aware of that?
    Mr. Comey. No, sir.
    Mr. Conyers. You weren't? Okay.
    Mr. Comey. I mean, I've heard----
    Mr. Conyers. I know.
    Mr. Comey.--press accounts, but I was not----
    Mr. Conyers. Right.
    Mr. Comey. I was happily ensconced as an Assistant U.S. 
Attorney in Richmond at the time.
    Mr. Conyers. All right. The other matter that I want to 
bring to your attention--and you may be one of the people 
that'll have to send the letter back with us giving us 
additional comments to these questions. I've got two more.
    The Department of Justice has failed to bring any criminal 
prosecutions for the abuse of detainees that took place at Abu 
Ghraib. In your view, or within your knowledge, does the 
Department believe that the abuses, the electrocution shocks, 
the beatings, the humiliations that occurred, were legal?
    And my final question is, can you guarantee the Members of 
this Committee that the Department of Justice is not holding 
any individual in the war of terrorism, that you're aware of, 
who is the victim of misidentification similar to that in the 
Brandon Mayfield instance? The Department held Seattle attorney 
Brandon Mayfield as a material witness to Madrid train bombing, 
and the FBI incorrectly identified Mayfield through a 
fingerprint found on a bag in Spain.
    So those are the questions. My time has expired. And I 
suggest you spend as much time writing a response, or getting 
it in any way that you can. I do not--Would you allow him to 
answer, Mr. Chairman?
    Chairman Sensenbrenner. Mr. Comey, you can answer the 
questions verbally, if you know the answers. And if you don't 
know the answers, please indicate, and we'll include your 
written response in the record.
    Mr. Conyers. Thank you, Mr. Chairman.
    Mr. Comey. Thank you, Mr. Chairman. Mr. Conyers, starting 
with the last one, I am not aware of anyone who's being held 
anywhere in the Federal criminal justice system based on a case 
of mistaken identity. If I were to learn of that, I wouldn't be 
here today. I'd be working to try and fix that.
    You're correct; Mr. Mayfield was held, by order of a court, 
on application of the Government, for 2 weeks, as I recall, as 
a material witness, based on a mistake.
    You asked me if I--with respect to the abuse of detainees 
at Abu Ghraib. Based on the pictures I've seen, which I'm sure 
you've seen, a whole lot of it looks criminal to me. I'm also 
aware, though, that people are being prosecuted for that in the 
forum in which the jurisdiction lies, which is, for the 
military personnel, in the Court of Military Justice.
    The Department of Justice does have under review at least 
one matter related to that that relates to a non-military 
employee. That's the area where we would have jurisdiction. But 
it's something we take very, very seriously, and pursue very, 
very aggressively.
    And I think that's--I think those are the ones I'm able to 
answer at this point.
    Mr. Conyers. Thank you.
    Chairman Sensenbrenner. The gentleman from North Carolina, 
Mr. Coble.
    Mr. Coble. Thank you, Mr. Chairman.
    Mr. Comey, you are indeed correct when you said earlier 
that governmental authority should be challenged and 
questioned. We have provided many forums for that. Our 
Subcommittees had nine hearings, as you probably know.
    I want to share with you and with my colleagues what 
happened to me back in my district about nine or 10 months ago. 
A constituent came to me and he said, ``We've got to do 
something about this PATRIOT Act.'' He said, ``It's trampling 
all over rights of everybody here, there, and yonder.'' And I 
said to him, I said, ``Well, sir, can you give me an example 
how you have been adversely affected by it?'' ``Well, no, I 
can't do that,'' he said. I said, ``Well, can you give me an 
example how anyone you know has been adversely affected by the 
PATRIOT Act?'' ``Well, I can't do that, either.'' I said, 
``Well, you're not helping me any.''
    Now, I'm not suggesting, Mr. Comey, that the PATRIOT Act is 
a perfect piece of legislation. I am suggesting that much 
misunderstanding has surrounded it, as was evidenced by my 
conversation with my constituent.
    At one of our hearings--strike that. At several of our 
hearings, there were some recommendations, Mr. Comey, that 
section 220--that is, to allow for the recipient, usually an 
ISP, to challenge a nationwide search warrant in the district 
where it is issued, or where it is served. As we all know, 
currently section 220 allows challenges only in the district 
where it's issued.
    Now, at first blush, I don't see a problem here. But do you 
see a problem where you might have different districts 
reviewing or examining or authorizing a warrant that may have 
been issued in one district, served in another; rather than an 
appeals court making that determination? Do you see a problem 
if we did in fact amend 220?
    Mr. Comey. Potentially, Mr. Coble, on its face, I agree 
with you. My first reaction to it was, ``Well, that's not a big 
deal.'' But it might be a big deal because, first of all, you'd 
have a district judge, in a district that had not issued it, 
passing upon it; so not have spent time reviewing it. You 
wouldn't be going to the judge that had the expertise and had 
issued the order in the first place. So I'm not sure how 
efficient it would be from a judicial perspective.
    But potentially complicating is the fact that the 
districts, if they're in different circuits, may operate under 
slightly different rules that govern suppression hearings, that 
govern standards to apply when there's a fourth amendment 
challenge. And so you'd have a tricky question of having one 
circuit and a district in that circuit trying to evaluate under 
its standards, or maybe those of a foreign circuit, what the 
judge had done originally.
    I don't think this is enormously burdensome. It's not a 
problem that I've heard from ISPs. In my experience, ISPs are 
fairly sophisticated businesses and don't find it daunting to 
have, if they want to move to suppress or to challenge--excuse 
me, if they want to move to challenge a warrant, to be able to 
do it in a district other than the one in which they're 
physically located.
    I'm not sure anything is broken there, I guess is what I'm 
trying to say. And I worry that, because it seems on its face 
like not a big deal, if we made that change, we might bollox up 
what is a process that's working pretty well.
    Mr. Coble. I thank you, sir. Another suggestion at one of 
our hearings involved publicly announcing how many reporting 
requirements or inquiries were made. For example, ``X''-number 
of inquiries were presented to a book store, as opposed to five 
to a library. Now, I don't want to seem paranoid, Mr. Comey, 
but I don't want to give anybody who wants to do harm to us any 
information that might in fact be beneficial to them.
    We in the Congress receive this classified information 
already. Do you see any advantage to making this information as 
public knowledge?
    Mr. Comey. That's a hard question. And we get beat up all 
the time and accused of being paranoid for over-classifying and 
not wanting to release numbers. And as was discussed earlier, 
the Attorney General took the step, as Attorney General 
Ashcroft did, to declassify some numbers.
    The reason we don't want to have those numbers out there is 
not because we're looking to hide them; especially from 
Congress, because Congress is going to get them anyway. We just 
don't want to give any additional clues to the bad guys; 
especially when the bad guys are terrorist groups that really, 
really want to do horrific damage in the United States.
    And so people say to me all the time, you know, ``What's 
the harm if you declassified the number on a regular basis?'' 
And I turn it around a little bit and say, ``Well, there may 
not be any harm, but given the nature of what I do, shouldn't 
there be a really good reason to tell the bad guys how often 
I'm using a tool in this place or in that place?'' Sometimes I 
can't figure out how it would help them exactly, but they're 
pretty clever people who are not only clever, but willing to 
die to kill people.
    Mr. Coble. They're clever people, Mr. Comey, who want to 
kill you, and they're willing to kill themselves to make a 
point.
    Mr. Comey. Yes, sir. And that makes me proceed very, very 
cautiously.
    Mr. Coble. Thank you, Mr. Comey. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from California, Mr. Berman.
    Mr. Berman. Well, thank you very much, Mr. Chairman.
    General Comey, as I mentioned to you in my office, I have a 
number of concerns about actions that aren't part of the 
PATRIOT Act, but relate to unilateral actions taken by the 
Administration on issues that fall squarely within the 
jurisdiction of this Committee; even though in these areas we 
haven't at this point offered input.
    I'd like to talk to you about four of these areas. One of 
them is detention of non-citizens without notice of charges. 
The second is the blanket closure of immigration proceedings by 
the so-called ``Creppy memo.'' The third, automatic stays of 
bonds. And the fourth, denial of individualized bond hearings.
    What each of these policies has in common is that they are 
all a one-size-fits-all policy applied in immigration cases 
across the board, whether or not they involve matters of 
national security, and with little or no balance in terms of 
due process.
    I've raise these issues in previous hearings, and Attorney 
Generals have acknowledged we need to improve and mistakes were 
made. I think at the time, as we consider the sunset provisions 
in the PATRIOT Act, I'd like to get past the acknowledgement of 
errors and into a discussion of solutions.
    Mr. Delahunt and I introduced the Civil Liberties 
Restoration Act, where we tried to strike a balance, without 
taking away any of the powers the Department has that they 
believe are vital to the war on terror. I think we've found a 
solution on each of these issues. I'd like to hear your 
thoughts on them.
    First, on the issue of notice of charges to detained non-
citizens, we provided in section 412 of the PATRIOT Act a way 
for you to hold aliens suspected of involvement in terrorism 
for up to 6 months without approval of a judge, subject only to 
issuance of a writ of habeas corpus, as long as they were given 
notice of the charges against them within 7 days.
    As far as we've been told, that power has never been used. 
And instead, it was circumvented in favor of a policy put in 
place before the PATRIOT Act that allows people to be held for 
indeterminate periods of time with no notice of charges.
    Our bill would leave section 412 undisturbed, but replace 
the policy the Department put in place with a requirement that 
a notice to appear be served on every non-citizen within 48 
hours of his arrest or detention, and that those held for more 
than 48 hours be brought before an immigration judge within 72 
hours of arrest. You'd still have the 412 authority to hold for 
up to 7 days, and then to keep in detention in cases of 
suspected terrorism, espionage, and other provisions set forth 
in 412.
    Second, the Creppy memo, the blanket closures of 
immigration hearings following September 11. On this policy, 
the Civil Liberties Restoration Act would end the across-the-
board closure, but would still authorize closure of all or part 
of an immigration hearing when the Government can demonstrate a 
compelling privacy or national security interest.
    Third and fourth are two issues that I'd like your thoughts 
on, also. They deny bond to whole classes of non-citizens, with 
no individualized hearings before a judge, is one of them. And 
another that enables a Government lawyer to unilaterally 
nullify a judge's order to release an individual on bond after 
finding that he is neither a flight risk nor a danger to the 
community.
    On the blanket denial of bond issue, the CRLA [sic] would 
make a shift from a one-size-fits-all policy to a case-by-case 
approach, to provide detainees, except those in categories 
specifically designated by Congress as posing a special threat, 
with an individualized assessment as to whether the non-citizen 
poses a flight risk or a threat to public safety.
    And finally, on the automatic stays of bonds, our bill 
would permit the Board of Immigration Appeals to stay the 
immigration judge's decision to release an alien for a limited 
time period, when the Government is likely to prevail in 
appealing that decision and the board finds there is risk of 
irreparable harm in the absence of a stay.
    So I'd be, one, interested in your comments on this and, 
secondly, I would in the context of dealing with the PATRIOT 
Act at the point where we get to marking up, would like the 
opportunity--even though these aren't specifically PATRIOT Act 
provisions, but they all are directly related to the events and 
actions taken after 9/11--have a chance to see if we can 
rectify the balance somewhat. Thank you.
    Mr. Comey. Thank you, Mr. Berman. And as you said, these 
are not PATRIOT Act issues, per se; which is one of the 
challenges we have in dealing with the PATRIOT Act. Folks sort 
of--you know they're not, and I know they're not, but people 
tend to lump them together. But they're important issues, 
nonetheless.
    Mr. Berman. And I take your point about the confusion out 
there as to what is or isn't. It's quite widespread.
    Mr. Comey. Yes, big challenge. And I pretend to know a lot 
about a lot of things. The one I will not pretend to know a lot 
about is immigration laws. I think I confess to you. But I can 
comment on a couple of these.
    Maybe revealing that I am a short-timer, I never liked the 
blanket closure of immigration proceedings, because it's a one-
size-fit-all approach. And if our lawyers can demonstrate that 
it ought to be sealed, we'll get that from the judge and so I 
think--and that's where we are now. We proceed on a case-by-
case basis. To say all of a certain class must be closed, 
frankly, is not smart, and makes us take a hit that we don't 
need to take. I mean, if we can demonstrate it, let's 
demonstrate it. If we can't, let's have it be an open hearing.
    With respect to your concerns about due process, my 
understanding, which is non-expert, is that there are no 
immigrants who are arrested on immigration charges who are held 
without notice of their charges; that there is a requirement 
that they brought before an immigration judge to have an 
application--opportunity to apply for bond and to have notice 
of the charges. It may be what----
    Mr. Berman. What about the Inspector General's report?
    Mr. Comey. Well, the Inspector General found in the 
practice in the months after September 11th that there were a 
whole bunch of people who were sort of held until cleared, and 
that was a screw-up; that that was not consistent with what the 
policies and procedures that the regulatory regime lays out 
are.
    My understanding of what the regulatory regime is is that 
you have to have--it's sort of--there's a lot of due process--I 
was frankly surprised when I tried to educate myself on it--
that people have an opportunity to appear promptly before a 
judge, to apply for bond, to obtain counsel if they wish, to 
contact family members; and that the problems that the IG found 
were that procedures were not followed; and that people were 
held in kind of a limbo state that was inappropriate; that they 
were not given notice of why they were held, they didn't have a 
reasonable opportunity to contact counsel or family members. 
And those are things that were the subject of the IG's report. 
But I'm not sure the procedures are broken.
    Mr. Berman. Well, I'd like to take a chance at some point--
not now--to show you----
    Chairman Sensenbrenner. The gentleman's time has expired. 
Mr. Comey, you can answer the questions that Mr. Berman asked 
before the red light went on, but there are a lot of other 
Members that would like to have a shot at you, too.
    Mr. Comey. Okay. I think I tried to, and I'm sure the 
Department--experts in the Department will have an opportunity 
to offer views on those particular provisions. Mine would be 
too uninformed to add more, I think.
    Chairman Sensenbrenner. And with that, the gentleman from 
Texas, Mr. Smith, is recognized.
    Mr. Smith of Texas. Thank you, Mr. Chairman.
    Mr. Comey, thank you for your testimony, and also for your 
answers to the earlier questions. I'd like to ask you about a 
subject that was dealt with in your written testimony, but that 
hasn't been mentioned so far today. And that is the question of 
sunsets.
    Several people have suggested that, rather than eliminate 
the sunsets, we simply extend the sunsets; particularly in 
regard to section 218. Why would that be a good or bad idea?
    Mr. Comey. It would, in my opinion, be a very bad idea to 
continue the sunsets, generally; but particularly with 218. 
Because what 218 does is foster cultural change, which--all of 
us work in big institutions--is enormously difficult in big 
institutions.
    And I worry very much that if we hung out there the 
prospect that the destruction of the ``wall'' might be 
reversed, we will never get people to embrace the idea that we 
need to have everybody communicating, sharing information in 
the counterterrorism realm.
    We've made great progress. Somebody who went to Mars in the 
summer of '01 would not recognize our counterterrorism 
operation today. But we need to do better. And 218 is what has 
given us the space to knit together everybody who matters in 
counterterrorism. And if people thought--sort of like living in 
a house you think someone might come and kick you out of: 
You're going to maybe not unpack your stuff, because you might 
get kicked out. And I don't want people to think they're going 
to get kicked out of 218.
    Mr. Smith of Texas. So you oppose any sort of continuation 
of any sunsets, whatsoever?
    Mr. Comey. I do. I think the answer, though, is rigorous 
oversight. I think we ought to be dragged up here and drilled 
and asked, ``How are you using this power? Why does it 
matter?'' on a regular basis. I don't think we need sunsets to 
do that, for you to scrub how we're conducting ourselves. And I 
support that.
    But the sunsets send a message that there's no permanence 
to these important tools, and that undercuts the ability to get 
the bureaucracy to embrace them and to understand they're part 
of our arsenal.
    Mr. Smith of Texas. Okay, thank you, Mr. Comey. My next 
question deals with a television advertisement that has been 
run by the ACLU, that claims that section 213 of the USA 
PATRIOT Act allows law enforcement to search out homes 
``without notifying us;'' implying that this provision gave 
Federal law enforcement the authority to conduct searches 
without ever providing notice to the individual whose property 
is searched. Is this an accurate description of section 213?
    Mr. Comey. No, sir, it is not. And it's one that I've spent 
a lot of time talking to folks about, and it's driven me a bit 
crazy.
    We have had for years--decades--delayed-notice search 
warrants in this country. That's what we in law enforcement 
call them, because it's accurate. You don't--there's never a 
circumstance when you're doing a criminal search that you never 
have to tell that the search was conducted. What was the 
circumstance before the PATRIOT Act is that in a limited set of 
circumstances--I would estimate probably 50 times a year in the 
whole country--a judge would give you permission, based on a 
written showing of probable cause and a written warrant, to 
conduct a search and simply delay--not get rid of, but delay 
telling the bad guys that you were there; to save lives, to 
preserve evidence, to protect witnesses.
    The PATRIOT Act simply enshrined that in black-letter law 
so we have the same standard across the country, and gave 
judges the ability to set periods of time that they believe 
reasonable, based on their knowledge of the facts, to delay 
notice. It will be given.
    I have personally used--and I won't take the time here--but 
I've personally used delayed-notice search warrants many times, 
and I think that in the process we've saved lives, in my career 
as a prosecutor. And if we lost that tool, anybody who 
understands it--and I think people at all points understand 
it--would realize we were less safe.
    Mr. Smith of Texas. Okay. Thank you, Mr. Comey. One last 
question, and this deals with section 201. If 201 were allowed 
to expire, is it true that criminal investigators could obtain 
a court-ordered wiretap to investigate mail fraud in obscenity 
offenses, but not offenses involving weapons of mass 
destruction?
    Mr. Comey. Yes. It would return us to the criminal 
predicate list that supported wiretaps that existed before, and 
I don't think anybody wants that. We need to be able to use 
that tool, certainly in the fraud and child pornography cases, 
but also where the stakes are impossibly high.
    Mr. Smith of Texas. Okay. Mr. Comey, thank you very much. 
Those are very good answers to my questions.
    Chairman Sensenbrenner. Thank you. The gentleman from 
Virginia, Mr. Scott.
    Mr. Scott. Thank you. Mr. Comey, it's good to see you 
again.
    Mr. Comey. You, too.
    Mr. Scott. You mentioned in your opening remarks that there 
is certain language that is not helpful in promoting an honest 
dialogue about this legislation. Would that include language 
such as, ``To those who scare peace-loving people with phantoms 
of lost liberty, my message is this: Your tactics only aid 
terrorists; for they erode our national unity and diminish our 
resolve''?
    Mr. Comey. I may be a short-timer, Mr. Scott, but I would 
prefer not to focus on anybody's words in particular. Any words 
that chill aggressive questioning of Government authority I 
think are not helpful. As I said in my opening, I think people 
should demand to know--all points of the political spectrum. I 
think Republicans should have as big a problem with Government 
power as Democrats.
    Mr. Scott. You recognize the words?
    Mr. Comey. I've heard them before, yes, sir.
    Mr. Scott. You mentioned--you explained how in section 215, 
what we're calling the ``library provision,'' you went to great 
lengths to explain how the judge was involved. Is that an 
important part of 215?
    Mr. Comey. I believe it is, yes.
    Mr. Scott. On roving wiretaps, when you have gotten 
probable cause, not that a crime has been committed, but the 
probable cause that the target is an agent of a foreign 
government--which means you can get the wiretap without 
probable cause of any crime, just that you're trying to get 
intelligence information which may not be criminal, just, you 
know, information on a trade deal, something, no crime as a 
predicate--and then you expand this as a roving wiretap, is it 
important that you ascertain before you start listening in that 
the target is actually in the location where you've placed the 
bug?
    Mr. Comey. It may be important as a practical matter, 
because we don't want to waste time. But in intelligence 
investigations, given the nature of the people we're following 
and surveilling, both with spies and terrorists who are trained 
to look for us and to be very careful, I'm troubled by an 
ascertainment requirement; which would require us, as you said, 
Mr. Scott, as we do in the criminal context, to know that the 
target is the one on the phone or the target is the one near 
the bug.
    Mr. Scott. Well, I say this because we've heard from 
witnesses before, like the Attorney General, that some of 
these--you know, we reduced the standard from the purpose of 
the wiretap being foreign intelligence to a significant 
purpose, which invites the question: If it wasn't the purpose, 
what was the purpose? And the answer, of course, is you're 
running a criminal investigation without probable cause.
    Now, since you're running a criminal investigation, isn't 
it important that the people you're listening in are actually 
targets of the wiretap? I mean, you could put these all over 
town where the target may be using the phone. If he leaves, 
shouldn't you stop listening?
    Mr. Comey. Well, you'd like to, because you don't want to 
waste the time, but the way----
    Mr. Scott. Well, no, no. No, you're not wasting time. 
You're listening in to people you wanted to listen in to. I 
mean, because you're running the criminal investigation under 
the auspices of this less strict standard of foreign 
intelligence. Should you be able to take advantage of the 
criminal investigation with the lower standard by listening in, 
when the target isn't even there?
    Mr. Comey. Well, first of all, you'd better not, if you 
work for me, be conducting an investigation to obtain criminal 
information using FISA unless the following is true: 
Significant purpose, as you said, Mr. Scott, is to obtain 
foreign intelligence. And if there is an additional purpose to 
obtain criminal information, it's only criminal information 
related to foreign intelligence crimes, terrorism crimes or 
espionage crimes. That's what the FISA court of review has told 
us is the law, and so we'd better--we are following the law.
    Mr. Scott. Well, we changed the law under the PATRIOT Act.
    Mr. Comey. Well, I've heard that said, but the court of 
appeals that governs this has said you may only collect 
information of foreign intelligence crimes if that's an 
additional purpose to the collection of foreign intelligence.
    But the ascertainment--the way we collect intelligence 
information, we strike a balance. Because of the nature of the 
target, we stand off a little bit more. We collect, and don't 
necessarily review real-time what's being collected. And we 
account for that with the rules that govern the storage and 
dissemination of that information. And that's a balance that's 
been struck to recognize that criminal investigations are 
different, and I think it's a reasonable one.
    When you drill down and look at the way we follow spies and 
follow terrorists, it would make it much more difficult to 
operate intelligence investigations if the agents were required 
to ascertain in every circumstance that the target is there at 
the bug or there on this particular phone.
    Mr. Scott. Could you----
    Mr. Comey. Rather than collecting and minimizing it later, 
and strictly controlling what you do with U.S. person 
information. I'm sorry, sir.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from Virginia, Mr. Goodlatte.
    Mr. Goodlatte. Thank you, Mr. Chairman. Mr. Comey, welcome. 
We are pleased to have your testimony today. Looking at section 
217, some have suggested that in order to better protect 
privacy, it should be more difficult under section 217 for a 
computer owner to seek the assistance of law enforcement in 
monitoring hackers who are trespassing on his or her computer.
    I believe, however, that we must be also concerned about 
the privacy rights of those who are being victimized by the 
hacking. And I wonder if you could please explain how hackers 
threaten the privacy rights of law-abiding Americans, and how 
section 217 has assisted the Justice Department in protecting 
privacy.
    Mr. Comey. I think of the computer today, sort of the cyber 
world, as like our house. I mean, so much of your--so much of 
my business, I think of all of our business, including our 
children's business, is in that computer and online that I 
think of it like a house. And what 217 allows us to do is--if a 
bad guy breaks into the house, the person who owns the house 
can invite the police to come in and help catch the bad guy.
    All of us know--I know, because I've tried to get some of 
this software on my computer to stop people from hacking and 
taking over passwords and taking over my account--that this is 
a scourge that we deal with all the time. That's on an 
individual level.
    If a hacker gets into an Internet service provider, it's 
not just my house. It's as if we all live in one enormous 
condominium, and the bad guy is in there, able to open all the 
doors and take all of our stuff. We think that it's very, very 
smart law enforcement to allow the owner of that condominium to 
call ``911'' and say, ``Cops, get in here, help me find this 
guy who's somewhere in here rummaging through people's 
belongings.''
    If you make that more cumbersome, I just think you make it 
harder to catch the bad guys in that sort of electronic house, 
if that makes any sense.
    Mr. Goodlatte. It does. The Department of Justice has 
informed the Congress that the September 11th terrorists 
utilized our public libraries before they killed 3,000 of our 
citizens. Yet some are proposing to exempt libraries and book 
stores from providing business records that are relevant to a 
terrorist investigation. And I wonder if you could tell us, if 
section 215 were amended to exempt libraries, what would be the 
effect?
    Mr. Comey. Oh, gosh. I think an effect that nobody really 
wants. We don't want to create sanctuaries any place--no less 
libraries--for bad guys, especially terrorists. But we have a 
big problem with pedophiles going to libraries, fraudsters 
going to libraries. We've had spies in libraries. And we know 
terrorists go there, because it's Internet access and they 
think it makes it harder for us to follow them and to know what 
they're doing.
    If we ever sent a message--and I worry, to be frank, that 
we've sent that informally, with some people posting signs at 
libraries saying basically that, ``We scrub the hard drives,'' 
or ``Be careful''--that we move toward creating a sanctuary for 
this kind of activity. And nobody wants that. Librarians don't 
want that. Nobody wants that.
    What people want to discuss--which is reasonable--is what's 
appropriate for the Government to be able to collect 
information in that forum and others? And I'm happy to discuss 
that.
    Mr. Goodlatte. To your knowledge, have there been any 
abuses of the section 215 powers?
    Mr. Comey. No, absolutely not.
    Mr. Goodlatte. Have there been any substantiated reports of 
abuse of the 18 orders that have been granted under section 213 
for delayed notification search warrants?
    Mr. Comey. No. And as I said earlier, that's a tool that's 
supervised by Federal judges. And I've spent my life with 
Federal judges of all stripes, and they are pretty good 
overseers.
    Mr. Goodlatte. Some have used section 213 and other 
provisions of the PATRIOT Act to scare the public, claiming 
that this is a new authority that allows law enforcement to 
enter your house and secretly search it. The implication 
appears to be that section 213 eliminated the existing probable 
cause requirement that a crime is or is about to be committed. 
Is section 213, that authorizes delayed notice, a new 
authority, or a codification of existing court decisions?
    Mr. Comey. Codification of existing court decisions, and a 
practice that's been approved--in fact, was developed by 
Federal judges, and concluded to be reasonable under the fourth 
amendment. I used it as an Assistant U.S. Attorney before it 
was in the PATRIOT Act, to do a search, to save lives, when a 
drug gang was coming into Richmond, Virginia.
    Mr. Goodlatte. And it does not change the standard for 
obtaining a search warrant?
    Mr. Comey. Oh, no. It still requires a written 
demonstration based on a sworn affidavit that makes out 
probable cause, and a written search warrant affidavit from the 
judge. All the judge does is makes a determination that, 
``Because of the danger here, I will let you delay notice for a 
brief period of time.''
    Mr. Goodlatte. Let me get one more question in. In 
evaluating the need for roving wiretap authority in FISA 
investigations, I think that we need to take into account the 
ability of potential targets to evade surveillance. Based on 
your experience, do terrorists and spies attempt to thwart 
surveillance? And if so, how skilled are terrorists and spies 
at thwarting surveillance?
    Mr. Comey. Thwarting surveillance is their stock in trade. 
They are, unfortunately, very good at it. When you're talking 
about spies, you're talking about people that other governments 
spent lots of time and money training to stay away from us. 
Terrorists do the same thing. Al-Qaeda trains its people to 
deceive; to avoid; to hide.
    It is an authority that is important when you're talking 
about drug cases. And that's why Congress gave it to us in the 
1980's, because drug dealers were slippery characters. You 
can't compare in slipperiness drug dealers to terrorists and 
spies--orders of magnitude different. If we need these tools 
for drug dealers--which we do--boy, we sure need it for 
terrorists and spies.
    Mr. Goodlatte. Thank you, Mr. Chairman.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you, Mr. Chairman.
    General, first of all, before I ask my questions, let me 
say I want to associate myself with the comments of the 
gentleman from California, Mr. Berman. It seems to me that what 
he was driving at, the need for specificity in some of these 
with some of these tools, really defines the difference between 
due process and arbitrary power. And much of what we're doing, 
or what we're dealing with, is very high risk of the use of 
arbitrary power; which is un-American, our tradition. And 
that's what we're getting at.
    Last week, at a Subcommittee hearing, Mr. Matthew Berry, 
the counselor to the Assistant Attorney General for the Office 
of Legal Policy of the Department of Justice, introduced the 
following hypothetical dealing with national security letters.
    He said, suppose investigators were tracking a known al-
Qaeda operative, and saw him having lunch and conversing with 
an individual. Mr. Berry explained that such a situation would 
meet the relevance standard required for the FBI to issue a 
national security letter under section 505 of the PATRIOT Act.
    Now, let's take this hypothetical further. That person has 
been tainted and could be used--could be the target of a 
national security letter, of an NSL, for sitting next to a 
known al-Qaeda operative and politely making small talk. Sit 
down in Starbucks next to who knows--okay.
    Now, let's say that they were having lunch at the food 
court. From the food court, she walks--the person who happened 
to sit next to the al-Qaeda operative--to Barnes & Noble right 
there at the mall. Can the FBI then be justified in using a 
self-authorized NSL to demand records on her from the book 
store?
    She then walks to a jewelry store and purchases something. 
Could those records be sought using an NSL? She then decides to 
leave the mall, and walks to her car. Can the FBI get her 
records using an NSL from the car dealership or the rental 
agency?
    She drives to the public library, and there uses a computer 
to make travel plans through the online agency. Using a 
national security letter, can her private records be sought 
from the public library, the Internet server, the travel 
agency? You get the point. How far do we extend this?
    Furthermore, would the people she came into contact with 
during this time also be tainted with suspicion and be subject 
to NSLs, given their supposed relevance to a national security 
investigation?
    The records we're talking about are very private and 
sensitive. They show a person's private life and, as such, 
should enjoy a rather high standard of protection. Would you 
support legislation reestablishing the standard that the 
information sought be based on specific and articulable facts 
that suggest that that information pertains to a foreign power, 
or to one or more of its agents? Or are we on an open-ended 
fishing expedition that extends to the known universe, as 
apparently my hypothetical would seem to suggest?
    Mr. Comey. It's a very good question. And the same point is 
made not just with respect to NSLs, but with respect to 215.
    Mr. Nadler. Absolutely. But the NSLs seem to me even more 
Government arbitrary power than 215.
    Mr. Comey. Because there's no judge involved, especially.
    Mr. Nadler. No judge at all, that's right. It's just a 
field agent--a field office of the FBI.
    Mr. Comey. My concern with raising--with putting a 
``specific and articulable facts'' standard; or some have 
suggested ``reasonable articulable suspicion;'' others have 
gone so far as to say ``probable cause,'' which I know you're 
not suggesting----
    Mr. Nadler. Although I've thought of it.
    Mr. Comey. Okay. I hope you don't suggest it. I'm trying to 
think of real-life examples, and the one I come up with is--and 
it's fair to draw those kind of hypotheticals out--is Mohamed 
Atta's roommate. So I keep focusing on, what if I had these 
tools before September 11th, and just after September 11th I 
found out that a guy had lived in Mohamed Atta's apartment, but 
I knew nothing else about him. What reasonable investigation 
would I, as a career prosecutor, want to conduct?
    I would tell the FBI I want his credit reference record, I 
want his bank records, I want his travel records, I want his 
phone records. And what do I know, besides that this guy lived 
with a really bad guy? Do I have specific and articulable facts 
that justify, that show that these records are going to be----
    Mr. Nadler. But where do you draw a line? What if he sat 
down in Starbucks and talked to somebody. That was the 
hypothetical given us by the counsel to the Assistant Attorney 
General.
    Mr. Comey. Right.
    Mr. Nadler. I mean, we hope we don't live in the world of 
the wonderful show that I like to watch every Monday night, 
``24,'' where anything goes. I mean, yes, any suspicion based 
on anything, if there are no standards, if the king can give a 
writ of assistance to anybody in 1760, yes, it might help an 
investigation. But you have to have some protection.
    Mr. Comey. Yes.
    Mr. Nadler. Where do you draw that?
    Mr. Comey. And it's a show that always shows the 
prosecutors as the real namby-pambies.
    But it's a hard question to answer. I cling to the 
relevance standard. I don't believe--first of all, I'm not sure 
you could obtain some of those records under NSLs, given the 
limitations on the material that they can obtain. But they 
wouldn't be relevant. But I worry, if you import this. And I'm 
not saying it's unreasonable to suggest--when you put that 
standard in----
    Mr. Nadler. Let me ask you one further question before my 
time runs out. In Doe v. Ashcroft, the New York District Court 
held NSLs unconstitutional because the issuance of these 
letters is accomplished without any judicial review and are 
subject to an indefinite gag rule. Given this decision, do you 
agree that additional legislation may be warranted?
    Would you work with this Committee to legislatively clarify 
that an NSL recipient has the right to challenge both the 
requests and the gag orders in court? Would you support a 
congressional effort to permit the recipient of an NSL to 
disclose receiving such a letter in order to comply with the 
request, and/or to consult with legal counsel?
    And finally, would you have a problem with Congress setting 
a 90-day time limit for the gag orders based on exigent 
circumstances, with the possibility of 180-day extensions 
available from the court of appeals?
    Chairman Sensenbrenner. The gentleman's time has expired, 
and the witness will answer the question.
    Mr. Comey. We will work with you on all of that. I know 
there is legislation that's pending to address some of those. I 
don't think we've taken a position on it. But a lot of it is 
smart and reasonable.
    I don't have that same feeling about the 90-day/120-day. 
Given the nature of the people that we're dealing with in 
intelligence investigations, I think the balance has to be 
struck in favor of indefinite. And at some point----
    Mr. Nadler. How about that for conditional renewals?
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from California, Mr. Lungren.
    Mr. Lungren. I thank the Chairman. And I thank Mr. Comey 
for the open and forthright way with which you are facing this. 
And obviously, we wouldn't be here discussing the PATRIOT Act 
or the sunset provision, had it not been for 9/11. And 
sometimes we have to remind ourselves of that.
    I was reminded of that today when, in my home district, we 
received news of a father and a son charged with lying to 
Federal agents about the son's alleged training at an al-Qaeda 
camp for a mission that the judge said was to ``kill Americans 
whenever and wherever they can be found.''
    I'm not sure we've ever faced that before with a 
transnational organization that has indicated it is the duty of 
all those who have allegiance to the same beliefs they have to 
kill Americans--men, women, and children--wherever and whenever 
they can be found.
    Having said that, there is this concern about the PATRIOT 
Act; whether it's real or imagined, whether it's perception or 
reality. And for that reason, I lean toward putting sunsets in 
this legislation; not because, Mr. Comey, I want to upset the 
cultural change that's trying to take place in the Justice 
Department. But I point to a cultural change that's needed in 
the Congress.
    I think we're doing a tremendous job of oversight here, I 
think this Committee is. And I think that we have had good 
cooperation with the Department of Justice. But oversight has 
not been the strong suit of Congresses in the past. And I 
wonder whether we would be as vigorous if we didn't have the 
obligation of this. And some of us have a feeling that not only 
is it something necessary to effect the cultural change on the 
executive branch, but also the legislative branch.
    Do you truly think that if we had sunset provisions for 
section 215, for instance, and some of the others, that that 
would be a real interference with what you're accomplishing and 
what you hope to accomplish in the future with the changes 
brought about by the PATRIOT Act?
    Mr. Comey. The honest answer is I don't think it would be a 
disaster. But here's another reason why I don't think it makes 
sense. And I'm not in any position to talk about oversight, 
except that, as I said to the Chairman, we have seen, I think, 
remarkable oversight, as you noted, here.
    Chairman Sensenbrenner. The Chair thanks you for that 
comment. I think some of your predecessors in your office would 
not have done so.
    Mr. Comey. Well, the one thing I can tell you, though--and 
it's hard for me to put this into words without seeming small 
in my remarks--but we have devoted huge resources and time to 
this, as we should. But we have hundreds--``hundreds'' is 
fair--of people working on what we've done over the last 6 
months, and spending countless hours collecting information, 
responding, meeting.
    That's an enormous drain. And it should be. But I hope it's 
a rare drain, and that we use it to establish that the base 
line is sound; that what Congress did in September--after 
September 11th was sound; and that what we can do going forward 
is rolling, and not in a way that makes everybody and his 
brother in the Department of Justice work on the effort.
    We live in a bit of a myth, and that is that we have 
limitless resources. We don't. And it is a major challenge for 
us to do this. And we're happy to do it, because it ought to be 
done. I just--to be very frank, and I won't be here, it would 
be really hard to do this 3 years from now, or another 2 years 
from now, when we can substitute for it something that I think 
is as effective, which is rigorous oversight.
    Mr. Lungren. Well, it sort of begs the question of whether 
we would have rigorous oversight----
    Mr. Comey. Yes.
    Mr. Lungren.--if we didn't have this requirement. And you 
have talked about the tremendous number of hours that have been 
put into it, precisely because the Department thinks it's 
important to have this reauthorized. And precisely because many 
of us think it's important to have it reauthorized, we are 
spending the time to do that.
    I guess, let me ask a question about a specific section, 
section 212, which allows computer service providers to 
disclose communications and records in life-threatening 
emergencies. Number one, has that proven to be successful and 
useful? If so, could you provide some real examples of that? 
Also, have there been any substantiated reports of abuses of 
section 212?
    And then, it's my understanding that that section does not 
require judicial intervention. Is there a problem with an 
after-the-fact judicial review to see if in fact there was an 
emergency circumstance that required this?
    Chairman Sensenbrenner. The gentleman's time has expired. 
Would you answer the question?
    Mr. Comey. Yes, Mr. Chairman. Section 212 is the life-
saver. That's how I refer to it, because it's not used much in 
those circumstances, but I met a young girl, 16 years old, 
from--her parents brought her to meet me and the Attorney 
General from just outside of Pittsburgh, who had met some 
whacko on the Internet and he had lured her to meet him--she 
not knowing exactly who he was--and then kidnapped her and 
brought her and locked her in a dungeon in, I believe, the 
western part of the State of Virginia. And she was saved with 
212.
    And I won't take the time to explain all the details, but 
an Internet service provider was able to provide information, 
because this whacko sent an e-mail to one of his fellows 
bragging about that he had this girl in a dungeon. And they 
were able to provide the FBI with instant information on where 
he was, and they rushed in there and they saved this girl's 
life. And I was able to shake her hand--had my picture taken 
with her--because of 212.
    The proposal for judicial review, I'm not exactly sure how 
that would work. And I worry that it would tie up 212, because 
it's an emergency situation where the ISP is able to call the 
police--almost like the house is on fire--and provide the 
information. And I'd have to think through more carefully 
exactly how post-hoc judicial review would work. I have a hard 
time sort of figuring it out on the fly.
    Chairman Sensenbrenner. The gentlewoman from California, 
Ms. Lungren [sic].
    Ms. Lofgren. Actually, it's ``Lofgren,'' not ``Lungren.''
    Chairman Sensenbrenner. It's ``Lofgren.'' [Laughter.]
    I'm sorry. I should know better.
    Ms. Lofgren. Thank you, Mr. Chairman. And thank you, Mr. 
Comey. I, to some extent, agree with the comments that we need 
to cool down the rhetoric on the PATRIOT Act. I think we're 
here, and it's important that we're here, to review the details 
not just of the sunsetting provisions of the act, but all of 
the act.
    And yet, having said that, there are people in the country 
that everything they don't like they believe is because of the 
PATRIOT Act. And I constantly challenge, ``Where in the act is 
this misbehavior?'' There's things I don't like, too, but it's 
not all in the PATRIOT Act.
    At the same time, I think it's a terrible mistake to 
criticize those, or to question the patriotism of those who are 
legitimately engaging in oversight to make sure if we have 
preserved the balance between our civil liberties and our need 
to have vigorous law enforcement; which is what we're doing 
here today.
    Along those lines, I want to go back to section 215. In 
your testimony, you state that the FISA court has issued 35 
orders, but that none were issued to a library. At the same 
time, you say if we exempt or change 215 relative to libraries, 
you know, it's the end of the world. The roof will fall in; 
terrorists will make libraries safe havens.
    And I guess I'm skeptical of that. And I'm wondering if 
there isn't some intermediate provision that would assist with 
the anxiety that is afoot in the land. People are afraid that 
their reading habits are going to be interfered with. Their 
first amendment rights are in fact being chilled today, because 
of what people think is happening, even if it's not happening.
    And so the question I have is, why not require that 
personally identifiable information be exempt from section 215? 
It is true that anybody can go in and use a computer terminal 
in a library, and they can do good things or bad things. But 
the libraries I've been to don't keep track of who's on the 
terminals, and it's not personally identifiable. Could you 
answer that question?
    Mr. Comey. Yes, I'd be happy to. Something is broken, but I 
think--and I may be impossibly naive--but I think it's people's 
understanding of 215, and not 215. And if what's broken is 
their understanding, I'm going to work till I have no more 
breath to try and fix that; rather than change 215 just because 
folks don't understand it.
    Ms. Lofgren. What about the personally identifiable 
information exemption?
    Mr. Comey. I don't know why we would do that, though, 
because that would--I don't think the sky would fall, but you 
would create a sanctuary in those particular places. Because a 
bad guy would know, ``That's a place I can go.''
    Ms. Lofgren. Well, I mean, you can still get the 
information, if it's personally identifiable; just not through 
section 215.
    Mr. Comey. If we couldn't use 215 to obtain information 
that we could tie to a particular person, say, we were 
following--again, this is the kind of thing that doesn't 
happen, but if we were following a terrorist, and he was 
sitting at a computer terminal, and we wanted to get the 
records, his records, and we had done something that made it 
impossible for us to obtain records that told us they were his, 
I don't know why we would do that. And I don't think librarians 
would want that.
    Ms. Lofgren. Let me ask another question. And it goes back 
to our need to review the whole situation, not just what is 
being sunsetted. I guess in a way it goes back to the earlier 
comment about oversight and how much time and effort is being 
put into answering the questions that Congress has posed. And I 
assure you, I don't question that you are putting in a 
considerable amount of time.
    But after the Attorney General, Mr. Gonzales, appeared 
before the Committee, I had two questions that he was not able 
to answer on the spot. One had to do with section 218, how many 
prosecutions for non-terrorism-related crimes had been a result 
of this section; and then further, about the material witness 
section, under 3144 of 18 U.S. Code, how many individuals 
actually ended up testifying before a grand jury.
    I never--he wasn't able to answer it on the spot, which I 
can understand. I never got the answer afterwards. Do you know 
the answer today? And if not, will you promise to get me the 
answer?
    Mr. Comey. I don't know the answer, and I will promise to 
get you the answer. And I can do that with some confidence, 
because I know it's being worked on very hard. They're 
collecting--we're going out to the field to collect the 
information so that we can supply it.
    Ms. Lofgren. Finally, I just want to mention that we did 
not suspend habeas corpus in the PATRIOT Act. And yet, the 
detention of American citizens without charge, without access 
to counsel, has been referenced to the general action we took 
to authorize the invasion to enact the PATRIOT Act. Shouldn't 
we make it explicitly clear in any reauthorization that we are 
not suspending habeas corpus?
    Mr. Comey. I don't know--certainly, no one that I know has 
argued that Congress has suspended habeas corpus, and in fact--
--
    Ms. Lofgren. Then you wouldn't mind if we made that clear 
in the act?
    Mr. Comey. Well, I suppose I wouldn't mind. I mean, I don't 
know how the legislative process works. But habeas corpus is 
alive and well in this country. And in fact, the litigation 
you're referring to is pursuant to the habeas corpus, the great 
writ, and being decided by the courts now, whether the 
Government has that authority.
    Mr. Lungren. [Presiding.] The gentlelady's time has 
expired.
    The gentleman from Texas, Mr. Gohmert, is recognized for 5 
minutes.
    Mr. Gohmert. Thank you, Mr. Chairman. And I appreciate your 
being here, Deputy.
    First of all, I want to address something that was brought 
up earlier very quickly. And that is the so-called abuse or 
torture some people referred to, whether at Abu Ghraib or 
Guantanamo. And I'm deeply offended when I hear that 
individuals indicate that Abu Ghraib was some type of gulag. 
They need to go back and read the accounts of what happened to 
our fly-boys in the Pacific in World War II, when they had 
internal organs removed to be cannibalized by their captors; or 
had holes drilled in the head while their brain was probed 
while they were alive, to see what parts responded to what 
probing; to have bones repeatedly broken; to be handcuffed from 
behind and be hung by the wrists.
    These people that think that we are running gulags either 
have their head up an earthen or biological hole somewhere. I'm 
concerned.
    But anyway, also to read in a local tabloid today that a 
former President believes we should close Guantanamo, when 
perhaps he didn't protect the country when we had American soil 
attacked and our own people taken hostage and nothing 
meaningful was done for over a year to ever try to get them 
out, I have to take that with a grain of salt.
    So with that background and defense of the Nation and 
things we're doing, there have been abuses. Having been in the 
military, I know the UCMJ takes care of those. It is taking 
care of the abuses. They are abuses. They're not torture. And 
I've talked to POWs of ours who indicate just that. They would 
have welcomed having the abuse rather than the torture and hell 
they went through, for example, at the ``Hanoi Hilton.''
    So anyway, with regard to 215, though, would you have a 
problem--you know, I understand this AG's office and this DOJ 
believes that individuals that get the order to produce 
records, or even NSL, that's been interpreted as meaning they 
have a right to counsel and can talk to their own attorneys; 
isn't that correct?
    Mr. Comey. Yes, sir.
    Mr. Gohmert. But that's not written in the law, as I see it 
or find it. Would you have a problem with that being written 
in, so future AG offices or DOJs would understand you can 
consult your own attorney when you get this letter; you're not 
just, you know, blindfolded and having to produce records. Do 
you have a problem with that?
    Mr. Comey. No, sir. We agree with you on that.
    Mr. Gohmert. Well, I know that I understood that was your 
position, as far as interpretation. But it seems for future 
reference it would be good to have that in there.
    I do still have concerns about 215. And I trust implicitly 
this AG's office, this DOJ. But like in 215, where it says, you 
know, to get the order from the judge it just has to specify 
that records are sought for an authorized investigation, that 
could be to protect against clandestine intelligence 
activities.
    Hypothetically, if you had a President, an Attorney 
General, or DOJ top officials, that believed, perhaps 
hypothetically, there was some right-wing conspiracy out there 
to undermine or hurt the Presidency, and that they may be 
involved in clandestine intelligence activities, it just seems 
like the potential is there for using this in ways that it was 
not intended by an abusive President or an AG.
    You might hypothetically even have a DOJ that's so callous 
that they may just find a friendly judge--and we know some 
judges are more friendly to one Administration than another--
find a friendly judge that wasn't supposed to hear a case, just 
to go get an order to kidnap a child at gunpoint from people 
that are holding them. I mean, those kind of things might 
actually happen.
    So I'm concerned about removing the sunset review. You 
won't be there next time. But just so that there is that kind 
of attention. You foresee that possibility, if you're not 
there, there is somebody that could abuse their position?
    Mr. Comey. It's a very good point, Congressman. And I think 
all of us should worry about how authority could be abused. I 
think with 215, though, there are safeguards that are important 
to emphasize. One is that you've got to involve the FISA court; 
not just any Federal judge. You've got to go to the FISA 
court----
    Mr. Gohmert. To the FISA court.
    Mr. Comey.--selected by the Chief Justice of the United 
States. But beyond that, you've got to put it in writing. And 
then you've got to tell Congress every 6 months in a written 
report how you're using it, what you're using it for. And I 
think those are checks and balances that are very important and 
that are there to check against just the kind of thing you're 
talking about.
    We're a nation of laws, not men. We shouldn't rely on that 
we like the folks that are in the office. I agree with you. But 
I think those checks are in place to check that power, and 
they're appropriate.
    Chairman Sensenbrenner. [Presiding.] The gentleman's time 
has expired.
    The Chair recognizes the gentleman from Michigan, Mr. 
Conyers, for a unanimous consent request.
    Mr. Conyers. Thank you, Mr. Chairman. I ask unanimous 
consent that the gentlelady from Florida representative, Debbie 
Wasserman Schultz, soon to be a Member of the Committee, be 
permitted to participate in today's oversight hearing, and that 
it will not constitute a precedent.
    Chairman Sensenbrenner. Without objection, so ordered. And 
the gentlewoman from Florida is recognized.
    Ms. Wasserman Schultz. Thank you, Mr. Chairman. And thank 
you, Ranking Member Conyers.
    General Comey, you made a reference earlier--and I also 
want to ask a question about section 215--to pedophilic 
activity, and that you would hate to see pedophilic activity be 
able to continue, or to continue unchecked, if a change was 
made in 215. But I mean, my familiarity with library activity 
is such that pedophilic activity has been going on before 9/11 
and since 9/11, and there aren't many foreign terrorists who 
are engaging--using libraries to engage in pedophilic activity.
    In fact, you have been able to utilize grand jury subpoenas 
and your authority that existed before 9/11 to go after that 
kind of activity. So in fact, Ted Koczynski was apprehended as 
a result of your ability to examine library records and 
subpoena them before 9/11.
    So why did you need the provisions in 215 to go as far as 
they did, and what are you not able--what will you not be able 
to do if they are changed? Thank you.
    Mr. Comey. Thank you for the question. You're absolutely 
right. I made reference to pedophilia simply, I think, to try 
to buttress the broader point: that we don't want any 
particular place to be a sanctuary for criminal behavior. But 
you're absolutely right; 215 is about foreign intelligence 
crimes.
    We could always use, as you said, the grand jury process to 
go after regular crooks, big-time crooks, pedophiles, if they 
were using libraries; and we have. Section 215, what it does is 
it gives that grand jury criminal power to intelligence 
investigators. But makes it harder for them, because unlike a 
criminal investigator who wants to use a grand jury subpoena, 
who could come to an Assistant U.S. Attorney and get the grand 
jury subpoena, by the PATRIOT Act Congress made the 
intelligence investigators who want the same records have to go 
do it in writing, and do it to a Federal judge, and get a 
written order. And that makes it harder for them. And that's a 
judgment of Congress, and that's fine. But I think a lot of 
times when people focus on 215, they don't realize how we do it 
in the criminal context, as you said.
    Ms. Wasserman Schultz. And I agree with the gentlewoman 
from California when she talks about the balance that we need 
to strike. I strongly support much of the provisions in the 
PATRIOT Act. This is the most disturbing provision. It's the 
provision that I hear the most about, unsolicited, when I'm not 
even talking about the PATRIOT Act at home. At town hall 
meetings people bring up their concern about the library 
provision.
    The two other questions I have is, why did we need to give 
special powers to the FBI in those investigations, without at 
least first making the FBI show some proof that the person 
might be an agent of a foreign power? I mean, I realize they 
have to go to the FISA court, but they don't really have to 
show much of anything that their suspicion is that they're an 
agent of a foreign power.
    Mr. Comey. Right. They have to show--and we've always 
understood the statute to say this, but it's not explicit, so 
it's one of the things that we would support adding--that the 
records sought are relevant to a foreign intelligence or 
foreign counterterrorism investigation.
    The reason that they don't have to show more than that is 
this is a baseline investigative tool; and that, as Mr. Nadler 
and I were discussing, if you raised the threshold to make it 
more challenging, you have to make a higher showing to get 
basic records, you're going to thwart a lot of investigation 
you don't want to thwart.
    And the food court example is not mine, but it's if you saw 
someone in a restaurant and had an animated conversation with a 
Mohamed Atta, what do you know about that person? Not much, but 
you want to know an awful lot. And if the threshold is raised, 
that you have to have some baseline facts before you can start 
gathering baseline facts, you thwart an investigation in a way 
that I don't think any of us want.
    And when you drill down and think about how folks actually 
conduct these investigations, grand jury subpoenas and 215 
orders have to have the same standard; which is relevance. 
That's how we get started to see whether someone is bad. Or in 
many, many cases, what we're doing is investigating and 
clearing somebody, because we've received one of the many 
poison pen e-mails we get saying, ``My neighbor is a 
terrorist.'' We have to check that out. And what do we know, 
besides somebody wrote it anonymously? We don't. But we check 
it out, and when it turns out to be bogus, that's the end of 
the matter.
    Ms. Wasserman Schultz. Well, and the last part of my 
question relates to the gag orders. I mean, why do we have to 
have gag orders on those who receive the orders related to the 
library records and other provisions of 215? I mean, that seems 
to cloak the whole thing in secrecy.
    Mr. Comey. Yes. No, and that upsets folks. The reason is 
the same reason we have automatic gag orders, for example, in 
the thousands of bank subpoenas we issue in criminal 
investigations every year. Banks can't tell the account holder, 
by statute, that we've subpoenaed the records.
    The reason we have that there and we have it on the 215 
side is so the bad guys don't know we're looking at them, and 
so good people--and this is not something to be ignored--so 
good people don't get ruined.
    If we walk into an institution--a credit card company or 
hotel record--and serve a subpoena or a 215 order, check out 
one of these tips that someone's a terrorist, if that clerk who 
gets it can tell people, we may ruin a good person by doing 
that. So secrecy has two purposes: protect the bad guys from 
knowing we're coming, and protect the good guys from being 
ruined. And both of them are very important to the way we do 
our work.
    Chairman Sensenbrenner. The time of the gentlewoman has 
expired.
    The gentleman from Florida, Mr Feeney.
    Mr. Feeney. Well, thank you, Mr. Chairman. And first, I'd 
like to welcome, I guess a day or two ahead of time, our 
possible new colleague on the Committee, Congresswoman 
Wasserman Schultz. We have a long history in Florida together. 
And I want to warn my colleagues on this side of the aisle that 
we can expect some lively and engaging discussions and debate 
with the gentlelady. And we're glad to have her here.
    We thank you for your testimony. I had a question I'd like 
to start with that maybe you cannot answer. And that concerns a 
trial ongoing now in Florida with respect to Professor Al-
Arian, who is accused of a number of crimes related to 
international terrorism. And I'd like you to tell us, if you 
can, what portions of the PATRIOT Act were helpful in this 
specific investigation. And also, describe, if you will, the 
charges against Mr. Al-Arian.
    Mr. Comey. Congressman, as you mentioned, I have to be very 
careful----
    Mr. Feeney. Yes, I understand.
    Mr. Comey.--with a jury sitting in Florida right now, 
hearing that case, about what I say. I think I can safely say 
he's been indicted for providing material support to terrorism, 
and that there's been public litigation that much of the 
evidence that the Government is intending to offer in that 
prosecution stems from information--evidence obtained through 
foreign intelligence surveillance. I really ought to stop 
there.
    Mr. Feeney. Okay. Well, I appreciate that, and I understand 
the caution.
    A lot of us who are civil libertarians by instinct and 
concerned about Government power are supportive of the PATRIOT 
Act. We want to revise it where it needs to be revised. Some of 
us like the sunset provisions. I understand that you'd like to 
see some of those, if not all of them, repealed. But you know, 
the point is that over America's history, at times of national 
duress and threat to the very national existence--I mean, the 
Civil War, for example--civil liberties have been strained. And 
there is a balance that moves back and forth.
    Matter of fact, the Bill of Rights anticipates some of that 
when it talks about outlawing unreasonable searches and 
seizures. And presumably, what's reasonable during a period of 
time where there are little or no threats is different than 
what is a reasonable search during times of threats. Matter of 
fact, Chief Justice Rehnquist has a great book out on the 
history of civil liberties during times of duress, called ``All 
the Laws But One,'' which he wrote a good 12, 14 years before 
the terrorist attacks.
    But having said that, the PATRIOT Act is subject to a lot 
of myths out there. And if you had--you know, when I get 
accosted on the street, just like, you know, my Subcommittee 
Chairman mentioned, people blame all sorts of ills that they 
experience, whether it's at airports, or discomfort, on the 
PATRIOT Act, which of course have nothing to do with the 
PATRIOT Act.
    If you had 30 seconds or a minute to explain the difference 
between the PATRIOT Act reality versus myth to the American 
people, how would you convince us that much of what it has been 
blamed for is simply not related to or the fault of the PATRIOT 
Act itself?
    Mr. Comey. Thank you, Congressman. The first thing I would 
do is urge folks, all walks of life, who have concerns about 
the PATRIOT Act to demand the details. Always, always, always 
ask. When someone says, ``The PATRIOT Act is evil,'' say, 
``What do you mean, specifically? What part of it? And how is 
that different from what they can do in a criminal 
investigation? And so you're saying the PATRIOT Act does 
what?''
    The reason that's so important is it has become a vessel 
into which people pour concerns about all manner of stuff that 
has nothing to do with the PATRIOT Act. And I think if 
everybody demands the answer--doesn't just shake their head 
like one of those bobble dolls when someone says, ``Isn't the 
PATRIOT Act evil?''--they will find out that the stuff people 
are talking about either is not in it, or what's in it is 
reasonable, ordinary, and smart. Because it's mostly taking 
what we can do to track drug dealers and thugs, and give those 
tools to people tracking spies and terrorist. And then, 
something breathtaking; which is the destruction of the wall, 
the separation between counterterrorism intelligence and 
counterterrorism criminal.
    And if folks will simply demand the details, as hard as it 
can be, I think at the end of the day they're going to see 
there's an angel in those details.
    Mr. Feeney. Finally, has the standard for the demonstration 
that you have to establish under FISA's 207 as to who is an 
officer or employee of a foreign power, has that changed under 
the PATRIOT Act? And what is that standard? Presumably, the bad 
guys' versions of ``James Bond'' don't come register as a 
foreign agent or employee. What do you have to establish, and 
has that changed under the PATRIOT Act?
    Mr. Comey. We have to establish probable cause to believe 
that someone is an agent of a foreign power. And that can be a 
foreign power as commonly understood--a foreign state--or a 
foreign terrorist organization that the court has found to be a 
foreign power. So probable cause to believe that. Or, that 
someone is engaged in clandestine activities, intelligence 
activities, on behalf of a foreign power.
    My understanding is that was the standard under FISA 
before. It's the standard that the FISA court's been applying 
since 1978. And it requires a written showing of probable 
cause. And the reason I keep repeating that is folks don't 
realize that. People are always telling me, ``Oh, you have a 
different, lower burden in FISA.'' Huh-uh. It's the same 
probable cause we use to get arrest warrants and get search 
warrants.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentlewoman from California, Ms. Waters.
    Ms. Waters. Thank you very much, Mr. Chairman.
    And I'd like to apologize if this question has already been 
asked or discussed. I thank you for being here. I'm concerned 
about the national security letters. And I'm not clear about 
whether or not the Justice Department continues to use national 
security letters, or whether or not the court decision that--I 
think it was in the Southern District Court of New York.
    Mr. Comey. Yes, ma'am.
    Ms. Waters. Decided that perhaps these NSLs were in 
violation of the fourth amendment, and maybe the first 
amendment. I'm concerned whether or not you continue to use 
NSLs, whether or not you're appealing the court decision. And 
if you are, why do you think it's important to have them?
    The ability to use NSLs gives you awesome power to demand, 
command, all kind of personal information, without judicial 
review. It's another form, I guess, of administrative subpoena, 
without having to get the same kind of review that you would 
get under the normal administrative subpoena. So where does the 
Department stand on these NSLs at this time?
    Mr. Comey. Thank you. I think the answer is--or I can tell 
you what I know perhaps for certain. The Government is 
appealing to the Second Circuit Court of Appeals Judge 
Marrero's decision in the Southern District of New York. That 
I'm certain of. I'm quite certain that the judge's order was 
stayed, pending the appeal. And so there is no order presently 
in effect forbidding their use.
    So I expect--although as I sit here, I haven't been 
involved in issuing any--but I'm quite certain that they 
continue to be used, because they're very, very important. It's 
a limited class of information that can be obtained with an 
NSL. As I understand it, limited to credit information, 
financial institution information, or telecommunications 
records, phone, Internet records. And that's very, very 
important stuff for the FBI's counterintelligence and foreign 
intelligence investigators.
    Mr. Nadler. Would the gentlelady yield for a second?
    Ms. Waters. Yes, I'll yield.
    Mr. Nadler. You're aware that under legislation that we 
passed last year, financial institutions, for NSL purposes, 
means almost anything now? I yield back.
    Ms. Waters. Thank you. Oh, did you finish?
    Mr. Nadler. Yes, I think so. The knowledge.
    Ms. Waters. It is my understanding that we changed the 
standards so severely that we could have innocent people who 
come in contact with people who may be suspected of being an 
agent, who then would be subject to NSLs.
    The last time we had someone here from your department, I 
used the food court example, where you innocently sit in a 
public place and get involved in a conversation with someone 
that you don't know, just out of courtesy, and then become an 
object and suspected of having some relationship to someone. 
And then, all of a sudden you are subject to an NSL.
    And I wanted you to continue the discussion, to tell us why 
you think it's so important, even if you end up violating the 
privacy of innocent people.
    Mr. Comey. Yes, ma'am. Mr. Nadler had me in the food court. 
It's sometimes hard for people to hear, coming from a 
prosecutor, or it sounds odd to them. We don't just investigate 
the guilty. We end up investigating a lot of people who turn 
out to be innocent. And that's true in the criminal arena; 
which is understandable, if you sort of focus on what we do. 
Even if we're investigating a fraud, we know the fraudster ran 
a company. And we need to know, well, did those around him at 
the meetings with him, were they in on it.
    And a lot of them may turn out, no, they didn't know about 
it. Those are the truly innocent people. Or they may be people 
we just decide we can't--there isn't enough evidence to charge 
them, and so that goes away.
    It's true, as well, in the intelligence and 
counterterrorism context. As I mentioned earlier, we get a lot 
of what I call ``poison pens''--letters, e-mails, phone calls--
telling us that neighbors and friends and, in many, many cases, 
former spouses and former significant others, are spies and 
terrorists. We have to check that out. We have to investigate 
that. We would be drilled if we didn't and one of them turned 
out to be a bad guy.
    And so we have to investigate people all the time based on 
our belief that information about them will be relevant to an 
investigation. The food court example is a good one, although 
Mr. Nadler had excellent hypotheticals to tease it out. If we 
saw someone having dinner with, sitting in a food court, 
talking in an animated way with Mohamed Atta, you're darn 
sure--and everybody in this room would want us to--we're going 
to figure out who that person is. And we may use an NSL, we may 
use 215, we may use a grand jury subpoena. We need to know more 
about them. And we'd probably start with a credit check.
    Ms. Waters. Well, if Mohamed Atta was in the----
    Chairman Sensenbrenner. The gentlewoman's time has expired.
    Ms. Waters.--in that food court, I would suspect that you 
should have caught him before that.
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Forbes.
    Mr. Forbes. Thank you, Mr. Chairman. And Mr. Chairman, 
thank you for holding this hearing.
    Mr. Comey, I want to thank you not just for your 
substantive knowledge of the PATRIOT Act, but for the 
articulate way that you've been able to explain to us some of 
the myths that we have been hearing about it.
    Piggybacking on what Congressman Feeney said, I've seen few 
measures that have had more misinformation than the PATRIOT 
Act; some of that unintentional, much of it intentional. So I 
thank you for clearing some of that up.
    One of the areas is section 213. And I know that you've 
talked a lot about that today, but specifically I was 
wondering, just two aspects of that, if you would clarify for 
us today. On the delayed notification of search warrants, it's 
my understanding you still need judicial review and approval. 
And I was wondering if you could just tell us for the record 
what the Government needs to show to get delayed notification.
    And as part of that, I know that one of the justifications 
is that it would--giving contemporaneous notice would seriously 
jeopardize the investigation. And there are some arguments that 
that perhaps is too broad of a scope. And I wonder if you would 
just respond to that as you explain the Government's burden.
    Mr. Comey. Yes, sir. Thank you. Under the PATRIOT Act, 
which codified existing practice over 40 years before that, the 
Government has to go to a Federal judge, make a written showing 
of probable cause based on a sworn affidavit. The judge has to 
conclude there's probable cause to search, and issue the 
warrant. The judge will only give the Government permission to 
delay notice--not suspend notice, but delay notice--if the 
judge concludes that one of five things is true. And those are 
the five categories in the PATRIOT Act: one of them being 
``seriously jeopardize an ongoing investigation;'' another one 
being ``that lives will be at risk;'' ``that there will be 
witness intimidation, flight, destruction of evidence,'' as I 
recall them, serious events in the course of an investigation.
    And it's a tool that, as before the PATRIOT Act, we don't 
use much. As I said, I think we use it about 50 times a year--
once for each State, once a year. We use it when it really, 
really matters; when people are going to get killed, bad guys 
are going to flee, people are going to get hurt. If we have to 
tell them that we were the ones who went into the drug house 
and took their drugs--instead of having them think it was 
stolen by rival drug dealers--if we tell them we went in, 
they're going to know who the informant was, and they're all 
going to flee.
    Folks have said that ``seriously jeopardize'' is too broad, 
and inappropriate. I don't think so, and in fact I don't think 
Federal judges have found that. We've provided to Congress 
examples where that provision was the one where judges found a 
basis to delay notice of a search warrant. And it's one that 
judges have used sparingly, that we've used sparingly; but when 
it matters, it's a tool we really need.
    Mr. Forbes. Thank you, Mr. Chairman. I yield back the 
balance of my time.
    Chairman Sensenbrenner. The gentleman from Iowa, Mr. King.
    Mr. King. I thank the Chairman. And I want to thank the 
gentleman for his testimony before this Committee. It has been 
enlightening. And it's important to have this Committee 
informed. It's also important to have much of the presentation 
in the record.
    I would just make a statement and ask your reaction to 
this, and that's with regard to the PATRIOT Act. The 
allegations that it either violates constitutional rights or 
allows for the violation of constitutional rights, rights to 
privacy or civil liberties, would you say that that allegation 
has become an urban legend in this country?
    Mr. Comey. Yes, sir, I would. I say when I speak publicly 
it's become part of the drinking water. So much so that we have 
two groups in this country when you go out and meet real folks: 
those who think it's okay that there's been a tradeoff of 
liberty for security, and those who think that's not okay. And 
I always propose to the group: Could you open your mind to the 
possibility that there ought to be a third group--of which 
maybe I'm the only member----
    Mr. King. I'm with you.
    Mr. Comey.--that there hasn't been a tradeoff. But it's so 
much part of the drinking water that people think you must have 
smoked something before you came into the meeting. That's 
absolutely true.
    Mr. King. Well, it's clear you have not. And I appreciate 
that, particularly being able to articulate that in a fashion 
more clearly than we have heard before, I believe, before this 
Committee.
    In your mind, is there a particular definition of a 
terrorist that you're looking for, that helps you narrow the 
focus from this mass of information that you have, for one 
thing? You spoke to the information that--how do you sort 
through all that? How do you identify where to target your 
investigations?
    Mr. Comey. We work from known facts. I think sometimes 
people imagine--maybe folks who watch ``24''--that we somehow 
zoom over with a satellite and look for bad guys everywhere. 
What we do is capture an al-Qaeda guy; find out what's in his 
pockets; find those phone numbers; find out whose phones those 
are; find out where those people are, who they might know, to 
try--just the way we do criminal investigations. We start from 
a known fact, a known bad guy, and we try and figure out who's 
connected to him.
    And that's why, to respond to the concern earlier, we have 
to end up looking at people--maybe he called a particular 
number 15 times. We have to check that out. We may find out 
it's the Domino's pizza place, but it's incumbent upon us to 
check that out.
    That's how we work. We start with a known fact, with a 
known bad guy, and try and figure out where the web is, where 
the connections are. Because our goal is prevention. We need to 
find those, especially those who are here looking to harm us, 
but then those around the world who are looking to come here to 
harm us.
    Mr. King. Are there distinctions between the approach to 
terrorists, and al-Qaeda in particular, from the investigation 
and prosecution of the Mob? Are there some things there that 
transpose across into terrorist investigations that are very 
similar?
    Mr. Comey. Very, very similar. And it's why some of the 
best counterterrorism investigators started out as La Cosa 
Nostra, Mafia investigators, because they are used to secretive 
organization, bound by an oath--``bayat'' in al-Qaeda, 
``omerta'' in La Cosa Nostra; and I've done Cosa Nostra work. 
And it's a web of connections where people are looking to 
conceal themselves in ordinary businesses: ``I'm just a 
butcher,'' or ``I'm just a--you know, I just sell clothes for a 
living,'' when you're really a Mob guy.
    And those skills, the ability to put together networks and 
connect, and flip people, develop sources to move up the 
chain--same tools we use in the criminal--on the 
counterterrorism side.
    Mr. King. And there are common denominators there that 
would be maybe family relationships, business relationships, 
ethnicity, religion, those kind of things, as well?
    Mr. Comey. Yes. All those things that connect good people 
also connect bad people, and help us understand who are the 
potential bad guys close to the known bad guy. That's the work 
we do. And we try to use all tools at our disposal to 
incapacitate. With Al Capone, we used spitting on the sidewalk, 
tax charges. We do the same with counterterrorism.
    The one advantage we have is the response of--the real 
heroes in this story are not people like me, but are the people 
in the military and the intelligence community who have taken 
the fight to the enemy far from here. That's made an enormous 
difference. That's a tool we didn't have in the Mob, 
appropriately; but that's made an enormous difference.
    Mr. King. And one of the things that I would think would be 
part of the initiative would be to keep the terrorists out of 
the United States. And I would point out that, to our records, 
1,129,000 were apprehended coming across the southern border in 
the last year. The most consistent number I hear is that for 
every one that's apprehended, two make it through--that would 
be roughly three million-plus--to here. They may or may not 
have gone back. In that huge haystack of illegal immigration 
that's pouring across this border, how can we ask you to find 
the needles that are the terrorists?
    Mr. Comey. That's a very, very big challenge, and a thing 
that's of great concern to us, great concern to the Department 
of Homeland Security. It is an obsession of ours, and it should 
be.
    Mr. King. I thank you very much for your testimony, and I 
yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from Arizona, Mr. Franks.
    Mr. Franks. Well, thank you, Mr. Chairman. And thank you, 
General Comey. I am one of those who is constantly having to 
explain to constituents, you know, some of the urban legend 
that you spoke of earlier. And so let me just ask you first--
you know, sometimes a policy is measured in the context of the 
experience that you have with it. Having said that, do you have 
any examples or any indication or research that shows where 
people that were truly innocent victims have been caught up in 
a misapplication or perhaps as a result of some flaw in the 
PATRIOT Act?
    Mr. Comey. No, absolutely not. And I mean that. I mean 
none. We have a very aggressive, very talented Inspector 
General at the Department of Justice. And it's his job, under 
section 1001 of the PATRIOT Act, to receive complaints and 
investigate them, of abuses of the PATRIOT Act. And our record 
is perfect in that regard.
    The Mayfield case from Oregon was mentioned earlier, where 
the fellow was arrested as a material witness and held for 2 
weeks based on a mistaken identification of his fingerprint 
from a bag in a van near the Madrid bombings. But that's not 
the PATRIOT Act. I mean, he was detained under the material 
witness provision, which has been a part of the criminal code 
for many, many years.
    But under the PATRIOT Act, I'm very confident in saying 
there have been no abuses found; none documented. Plenty 
alleged, but most of it turns out to be stuff that, again, has 
nothing to do with the PATRIOT Act.
    We had a lady call in and say there was a line across the 
top of her television screen, and she thought that had 
something to do with the PATRIOT Act. And you know, we get a 
lot of stuff like that. And it all goes to the Inspector 
General, and he has to decide what to do with it.
    Mr. Franks. Well, General, you know, sometimes the example 
that's given, that with the people in power now, there's a 
great deal more comfort level with a given policy; but should 
those people change--you know, you articulated it very well 
yourself--you never know who will gain the reins of power at 
some point.
    I think that today, as we consider terrorists, we're not 
concerned at all, in a sense, that England may have the nuclear 
capability to essentially devastate us, because they're 
friends, they're people that we trust. But of course, if an al-
Qaeda or someone like that gained even one nuclear capability, 
then we would be very, very concerned. So who is in power is of 
preeminent consideration.
    Having said that, if the wrong people got in power--and I 
realize the wrong people can ultimately subordinate and twist 
any policy--but if the wrong people did somehow get into power, 
that had no real concern or respect for the kind of civil 
liberties that we have grown to enjoy, what do you see, 
personally--and this is a bad question to ask, but what do you 
see, personally, as the greatest weakness contained within the 
PATRIOT Act, or the greatest opportunity for it to be misused 
at some point?
    Mr. Comey. That's a great question, Congressman. To start 
with the premise, I agree with you completely. I said this to 
Senator Craig in the Senate. I don't think it came out the way 
I meant it. I said to him, ``You shouldn't trust me.'' I mean, 
I didn't mean that. I mean, you should, and I trust me, and I 
like the people who lead the Justice Department and the 
Executive Branch now.
    But I meant that, when I say we are a country of laws, not 
men, we can't devise the systems based on who's in the office; 
because you could have other people there. But second, good 
people make mistakes when under great pressure. I mean, if, God 
forbid, there's another attack in this country, there will be 
tremendous pressure from the American people to respond to it. 
And we need these laws and this oversight in place.
    I think the greatest risk is that--to pick on something 
Congressman Lungren said--that oversight won't mean anything; 
that gradually the culture will drift to a point where people 
doing this work understand that nobody in Congress reads the 
reports, and so just, you know, send them up there; that 
there's no real check.
    We need a check on our power. I do. And I need to know that 
someone is going to look at what I do. It helps me. It helps me 
when I'm tired not to make a mistake. It helps me when I'm 
over-eager sometimes not to make a mistake.
    So if there's a risk, I think the PATRIOT Act is chock-full 
of what we need: judges, inspector general, and oversight. But 
if the culture of that drifts and 5 years from now it's sort of 
a myth, or 10 years from now nobody even looks, you could have 
problems. Because it happens. We have a history of it 
happening.
    Mr. Franks. Well, that's kind of a segue into my last brief 
question here. Given the fact that you consider oversight so 
important, I know that, as I understand, the Department itself 
has--I won't use the word ``vacillated,'' but something along 
those lines--on this review, this sunset that would occur at 
some point. And it occurs to me that that's a good idea; even 
though my own perspective has developed in this situation. You 
know, I've come to----
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from Massachusetts, Mr. Delahunt.
    Mr. Delahunt. I thank the Chair. And I apologize for not 
being here sooner, but there's a markup going on. And I welcome 
Mr. Comey.
    I'm just going to make an observation that I think segues 
into what I anticipate as the observation that was going to be 
made by the gentleman from Arizona, and your comments earlier. 
I happened to catch your reference to congressional oversight 
as being a check, if you will, on behavior of the executive 
branch. And I agree with that. And I know you're sincere in 
that comment.
    And I also want to acknowledge that there has been very 
good input from the Department of Justice during the hearings 
by the Crime Subcommittee on the reauthorization. And I should 
commend the Chair for directing Chairman Coble in conducting 
those hearings. I think it's been very fruitful.
    And I think that there's the potential for some consensus 
on some of the substantive issues. But I've said this publicly 
at these hearings, and let me just repeat it once more. I think 
there's a natural disinclination on the part of the executive--
and I'm not referring specifically to the Department of 
Justice, but to all executive agencies--to cooperate on an ad 
hoc basis, when it suits their particular agenda, with 
Congress.
    I look back 4 years now, when we were in the process of 
passing the PATRIOT Act. And as you well know, it came out of 
this Committee with a 36-to-nothing, unanimous vote; which was 
extraordinary. It subsequently was changed, to the chagrin of 
some of us. But I keep hearing the comment from witnesses and 
from others saying that, ``We have to make this permanent.''
    After, I think, eight or nine hearings by the Crime 
Subcommittee, I am now convinced that that would be a mistake, 
to make it permanent. In fact, I would go so far as to insist, 
or at least make an effort to have a sunset attached to the 
PATRIOT Act, and maybe to other pieces of legislation that come 
before this Committee for its considerations. Because it does 
really secure the cooperation of the Executive--in this case, 
the Department of Justice--to be much more forthcoming and to 
be much more cooperative. Your response?
    Mr. Comey. It's not an unreasonable thing to say. The 
reason I would urge that we not do that is a number of things. 
I think, as I said earlier, that especially with some of these 
tools, if you sunset them again we will never be able to get 
people to completely buy that the world has changed, 
particularly on information sharing. We're trying to change a 
culture, which is like turning a battleship. And if people 
think, ``Well, Congress might just take away the tug boats, 
then why are we all going to work to turn that battleship?'' 
That's one worry.
    The second is, I think the tools are in there. And maybe, 
you know, I overestimate the ability of oversight to get it 
done; but I don't think so. I mean, I think that, with the 
power of the purse and the power of legislation, this Committee 
and the others have the ability to haul us up here and demand 
to know what we're doing. And if we're not giving you the 
information, to have some consequences for that. I think that's 
a far better way to proceed.
    Mr. Delahunt. Let me reclaim my time. Because I really want 
to let you know that I disagree with you. Okay? And it's been 
the experience, I believe, of this Committee in a variety of 
different areas, not just the PATRIOT Act itself, but where the 
lack of cooperation has been frustrating, aggravating, and on 
different occasions has required rather strong action, not just 
by the Chair of this particular Committee but by other 
Committees, to secure cooperation. And if we don't have some 
leverage, we're not going to get it. That's been the conclusion 
that I've reached as a result of my experience here.
    Chairman Sensenbrenner. The time of the gentleman has 
expired.
    Mr. Delahunt. Would the Chair indulge me for an additional 
30 seconds?
    Chairman Sensenbrenner. I will. Proceed.
    Mr. Delahunt. In addition to the incentive--and I 
understand the culture change that you're talking about--you 
know, if the tug boats aren't there--I think that was your 
metaphor--I just want to encourage and incentivize the 
Department of Justice to keep the tug boats running well. 
That's what I see as the incentive. We're watching, and we do 
have leverage.
    And as long as those tug boats are steaming, and steaming 
well, and not going off course, are charting a course that we 
can all embrace and be proud of as Americans with our cherished 
core values of civil liberties and privacy, then fine. But 
we're going to incentivize.
    Chairman Sensenbrenner. The time of the gentleman has once 
again expired.
    Mr. Comey, thank you very much for coming here and for your 
testimony. I would like to echo the words of Mr. Delahunt. I 
believe that in the last year and a half the Justice Department 
has been much more forthcoming on the PATRIOT Act and on other 
issues than in the two and a half years prior to that.
    And this Chair has both publicly and privately expressed to 
former Attorney General John Ashcroft that an ``I've got a 
secret'' attitude on legitimate oversight that does not involve 
classified information is self-defeating.
    I would like to salute both you and Attorney General 
Gonzales. I think that there has been a change in attitude that 
has been particularly marked in the hearings that we've had on 
this. You help your cause by coming up here and answering 
questions in the way that you did, and the way that your boss 
did a couple of months ago. And I hope that continues.
    Thank you very much for coming. The hearing is adjourned.
    Mr. Comey. Thank you, Mr. Chairman.
    [Whereupon, at 11:55 a.m., the Committee was adjourned.]


                            A P P E N D I X

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               Material Submitted for the Hearing Record

Indictment of TARIK IBN OSMAN SHAH submitted by F. James Sensenbrenner, 
               Jr., Chairman, Committee on the Judiciary



                                 
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